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Justice Department Not Appealing Cell Phone Surveillance Cases

The US Department of Justice (DOJ) has told the Electronic Frontier Foundation (EFF) that it will not appeal a New York decision that forcefully rejected its request to track a cell phone user without first showing probable cause of a crime. It also appears that DOJ will not appeal a similar opinion recently issued in Texas. Last week in the Eastern District of New York, Federal Magistrate Judge James Orenstein, in a scathing opinion, rejected DOJ's request to track a cell phone without a warrant, agreeing with a brief EFF filed in the case. Describing the government's justifications for the tracking request as "unsupported," "misleading," and "contrived," Orenstein ruled that tracking cell phone users in real time required a showing of probable cause that a crime is being committed. Earlier this month, another federal magistrate judge in the Southern District of Texas published his own opinion denying another government application for a cell phone tracking order. DOJ has failed to file timely objections with the District Court in that case, too. Although DOJ may still decide to appeal that case to the Fifth Circuit, its choice not to appeal the nearly identical opinion in the New York case makes that seem unlikely. "The government's decision not to appeal either of these cases is disappointing," explained EFF staff attorney Kevin Bankston. "The magistrate judge in New York explicitly encouraged the government to appeal the decision so that he and his fellow judges around the country could get some guidance from the higher courts. The very important question of when the government can track your cell phone remains an open question that should be argued openly in the appeals court, not litigated piece-meal in lower-court proceedings where the government is secretly presenting cell phone tracking requests." An October 28 story in the Washington Post reported that, when questioned about the court decisions, "Justice Department officials countered that courts around the country have granted many such orders in the past without requiring probable cause." "The Justice Department has been arguing for warrantless cell phone tracking in secret proceedings with magistrate judges across the country, probably for years," said Bankston. "My biggest fear is that DOJ intends to continue these illegal surveillance orders in secret, while avoiding scrutiny from higher courts." You can read the full text of Judge Orenstein's opinion, and the similar Texas opinion, at http://www.eff.org/legal/cases/USA_v_PenRegister.


CONGRESS CONFIRMS LACK OF ATF TESTING STANDARDS

We're proud to announce a major breakthrough in the long battle to curb the abuses of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The Congressional Research Service (CRS), an arm of the U.S. Congress, has issued a memo telling the world what we've always said that ATF "experts" use arbitrary, made-up standards when they bring charges against gun owners and testify against us in court. You can read the CRS report here: http://www.jpfo.org/ATFguntests.pdf YOUR work was instrumental, too, if you were one of the many Americans who asked their representatives to get a copy of the ATF's testing procedures manual. No such ATF manual exists. One after one, at gun owners' urging, congressmen asked the CRS to get the manual. The CRS asked the ATF to produce the manual. And they hit a wall. Then something ominous happened. For several weeks, the CRS, urged on by a frantic Justice Department, planned to bury this information. Why? Because these revelations could potentially overturn hundreds, even thousands, of criminal prosecutions of innocent gun owners, going back decades. Finally the CRS had no choice but to reveal the truth: the ATF simply "makes it up as they go along." The CRS memo changes nothing by itself. It has no legal force. But it is the first light Congress has shone on the ATF in 23 years. It is a _beginning_. It is a tool concerned gun owners -- and defense attorneys -- can use....

Bipartisan Call for Modest Reforms Rejected by Congressional Negotiators, "Freedom to Read" Amendment Would Have Fixed Some Patriot Act Problems

Negotiators reconciling differences between the House and Senate bills to fund the Justice Department today dropped the "Freedom to Read" amendment, which was passed by a bipartisan majority in the House. The American Civil Liberties Union today expressed its disappointment that conferees dropped the provision authored by Rep. Bernie Sanders (I-VT), which would have denied funding for the FBI to access library and bookstore records under section 215 of the Patriot Act. The Sanders amendment had been adopted on a vote of 238-187 this summer. The Patriot Act expanded the power of the federal government to obtain any record or tangible thing in an intelligence investigation and eliminated the requirement that federal agents demonstrate that there are facts connecting the records sought to a suspected foreign terrorist. The Bush Administration opposed the bipartisan amendment to exempt library and book records from these secret search powers and threatened to veto the funding bill if it were included....

Detainee Policy Sharply Divides Bush Officials

The Bush administration is embroiled in a sharp internal debate over whether a new set of Defense Department standards for handling terror suspects should adopt language from the Geneva Conventions prohibiting "cruel," "humiliating" and "degrading" treatment, administration officials say. Advocates of that approach, who include some Defense and State Department officials and senior military lawyers, contend that moving the military's detention policies closer to international law would prevent further abuses and build support overseas for the fight against Islamic extremists, officials said. Their opponents, who include aides to Vice President Dick Cheney and some senior Pentagon officials, have argued strongly that the proposed language is vague, would tie the government's hands in combating terrorists and still would not satisfy America's critics, officials said. The debate has delayed the publication of a second major Pentagon directive on interrogations, along with a new Army interrogations manual that was largely completed months ago, military officials said. It also underscores a broader struggle among senior officials over whether to scale back detention policies that have drawn strong opposition even from close American allies. The document under discussion, known as Department of Defense Directive 23.10, would provide broad guidance from Defense Secretary Donald H. Rumsfeld; while it would not spell out specific detention and interrogation techniques, officials said, those procedures would have to conform to its standards. It would not cover the treatment of detainees held by the Central Intelligence Agency. The behind-the-scenes debate over the Pentagon directive comes more than three years after President Bush decided that the Geneva Conventions did not apply to the fight against terrorism. It mirrors a public battle between the Bush administration and Senator John McCain, Republican of Arizona, who is pressing a separate legislative effort to ban the "cruel, inhuman or degrading treatment" of any detainee in United States custody. After a 90-to-9 vote in the Senate last month in favor of Mr. McCain's amendment to a $445 billion defense spending bill, the White House moved to exempt clandestine C.I.A. activities from the provision. A House-Senate conference committee is expected to consider the issue this week....

CIA Holds Terror Suspects in Secret Prisons

The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement. The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents. The hidden global internment network is a central element in the CIA's unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions. The existence and locations of the facilities -- referred to as "black sites" in classified White House, CIA, Justice Department and congressional documents -- are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country. The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held. Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long....