ACLU accuses DoJ of hiding Domestic Spying Memos

By Mark Wachtler

January 24, 2013. San Francisco. When the US government began spying on American citizens, groups like the ACLU sued to obtain specific details and tried to stop abuse by rogue agencies and agents. The Supreme Court agreed, for the most part. But when an ACLU attorney stumbled across an FBI lawyer speaking at San Francisco University, the agent mentioned 2 secret DoJ memos that detail how authorities interpret the ruling. Ignoring an FOIA request, those 2 memos are still secret.

55 of the 57 pages of the DoJ’s domestic spying Memo provided to the ACLU look exactly like the page on the right – completely blacked-out. Image courtesy of the ACLU.

Fourth Amendment to the US Constitution

America’s founding fathers weren’t only wise, they actually predicted things hundreds of years into the future with 100% accuracy. If anyone doubts that fact, read the 4th Amendment to the US Constitution:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

With thousands of public and private attorneys collectively being paid tens of millions of US taxpayer dollars to find a way to circumvent this Amendment, as well as the rest of the Bill of Rights, score one for the founders in that domestic spy agencies are having a hard time finding a loophole. And as described by the ACLU, many fear the feds are making their own loopholes, knowingly and willingly violating the law, the Constitution and the US Supreme Court.

Supreme Court ruling

In February 2012, the US Supreme Court issued a landmark ruling in the case of US v. Jones. Unfortunately, the narrowly categorized decision only addressed one small aspect of domestic spying, but the ruling was none the less favorable to civil rights and privacy advocates. The Court decided that the act of attaching a GPS tracking device on or in an American citizen’s car does in fact fall under the legal description of a “search” and is therefore covered by the 4th Amendment.

As explained by an ACLU attorney however, “Although the Court’s decision in Jones makes clear that the government’s attachment and use of a GPS tracker on a car constitutes a search under the Fourth Amendment, it does not say whether that search requires a warrant from a judge – a crucial protection because it forces agents to justify their actions to a neutral outsider. Furthermore, the court’s opinion does not address other methods of location tracking, such as cell phone tracking, drones, or license plate readers.”

FBI hiding in plain sight

Apparently, Justice Department and Homeland Security officials are so comfortable in their quest to bypass the US Constitution and the Bill of Rights that they publish memos and lead panel discussions advising hundreds of thousands of secret agents across America on how to do it. Imagine the surprise of ACLU attorneys when they stumbled upon one such lecture being held at San Francisco University and led by the lawyers from the Federal Bureau of Investigation. The forum was held early in 2012, immediately after the Supreme Court’s ‘Jones’ decision.

During that lecture, the FBI’s General Counsel referred to two specific DoJ memos detailing the federal government’s internal interpretation of the 4th Amendment, as well as the Court’s just-returned ruling in the Jones case. Sensing a widespread and covert attempt to get around the Supreme Court’s ruling, the ACLU filed a Freedom of Information Act request for copies of those two memos.

As summarized by the ACLU, Americans have a right and a need to know the details of the law – when they can be spied on, for what reasons, and by what methods. The Obama administration and Eric Holder’s Justice Department disagreed.

Dept of Justice responds

Justice Department officials responded to the ACLU FOIA request, but not in the way the group had hoped. DoJ officials supplied two memos, assumedly the two mentioned at San Francisco University. But both memos were almost entirely blacked out by the government. ACLU staff attorney Catherine Crump immediately released a statement criticizing the DoJ’s response.

“The Justice Department’s unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking – possibly for months at a time – or whether the government will first get a warrant,” Crump wrote, “This is yet another example of secret surveillance policies – like the Justice Department’s secret opinions about the Patriot Act’s Section 215 – that simply should not exist in a democratic society. Privacy law needs to keep up with technology, but how can that happen if the government won’t even tell us what its policies are?”

View the secret DoJ Memo here. 55 of the 57 pages are blacked-out.

While the DoJ memos were almost entirely censored, the few portions left untouched reveal a glimpse of the government’s motives and strategy. As is typical of federal officials in recent years, the DoJ appears to be using the same policy it did in the notorious witch hunt and overturned conviction of Alaska US Senator Ted Stevens.

In that 2008 case, the 27-year US Senator was convicted of accepting gifts using falsified evidence and perjured testimony. When the conviction was thrown out after the DoJ admitted to lying under oath, the government’s official position was that the Judge never specifically and individually notified each DoJ attorney that he or she could not commit perjury or falsify evidence. Their courtroom oath and a bevy of laws, they argued, was not enough to legally force them to tell the truth. In the end, their argument won and no DoJ attorneys were held legally liable.

Read the 2011 Whiteout Press article, ‘No Charges for Busted DoJ Lawyers’ for more information.

Translating the legal-speak of both the DoJ and the ACLU, it appears that federal officials may be taking the position that the 4th Amendment only applies to specifically listed items, such as cell phones, automobiles and airplanes. Of course, none of those things existed in the 1787 when the US Constitution and the Bill of Rights were written, and therefore, aren’t listed or protected. And that’s the loophole. Another loophole mentioned is that the US Constitution only applies to acts committed on US soil, and exempts actions committed only inches or feet across the US border in Canada or Mexico.

Another small section of the DoJ memo not blacked out is particularly ominous: “The opinion of the Court, written by Justice Scalia and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held that a Fourth Amendment search takes place when, “as here, the Government obtains information by physically intruding on a constitutionally protected area***.””

First, it’s always worth noting the level of contempt the federal government has for the US Constitution. That is evidenced in the way government memos never capitalize the ‘C’ in Constitution. Yet they don’t hesitate to always capitalize their own titles, department names and even generic job descriptions and words such as ‘Government’.

More importantly, and ominous as well, is the way the DoJ focuses on the word ‘physically’. It appears the agency may take the position that the Supreme Court ruled that the 4th Amendment only applies to the use of spying devices that are implanted by ‘physically’ trespassing on a citizen’s private property, such as their home or their car. Using methods like personal cell phone GPS tracking chips and US satellites, as just one example, federal officials could theoretically bypass the 4th Amendment because agents did not have to trespass to plant the monitoring device. It already comes standard in all cell phones, as well as many other electronic devices and automobiles.

Showing that it is more fact than fiction at this point, the ACLU announcement reminds citizens that cell phone carriers receive roughly 1.5 million requests from the US government each year, and growing, for the personal phone records of Americans. Many of these requests, the civil rights organization points out, are for the GPS movement history of the targeted individual.

The ACLU is in the process of filing a lawsuit against the Dept of Justice for the release of the full memos. As the organization’s Catherine Crump writes, “We will ask the court to order the Justice Department to release them because they are being improperly withheld. The purpose of FOIA is to make sure the government doesn’t operate under secret law – and right now that’s exactly what these memos are.”

Read the full ACLU announcement here.

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