The Detroit Free Press reports:

At least seven times this month, including Tuesday, motorists have said they have seen a pickup towing a large sign on I-69 or U.S.-23 that depicts the sheriff’s badge and warns: “Sheriff narcotics check point, 1 mile ahead — drug dog in use.”

The checkpoints are part of a broad sweep for drugs that Genesee County Sheriff Robert Pickell and his self-titled Sheriff’s Posse said are needed, calling Flint a crossroads of drug dealing because nearly a half-dozen major roads and expressways pass in and around the city. Pickell said he decided to try checkpoints when he learned that drug shipments might be passing through Flint in tractor-trailers with false compartments…

Based on a case out of Indianapolis, the U.S. Supreme Court held in 2000 that narcotics checkpoints where everyone gets stopped on a public road are not legal and violate Fourth Amendment protections against illegal searches and seizures, professor David Moran at the University of Michigan Law School said.

Wayne State University Law School professor Peter Henning said police can set up roadblocks to search all who pass by, but only if a crime has just been committed.

And Genesee County Prosecutor David Leyton, who said he was not consulted by Pickell about the checkpoints, said that after a court challenge, the Michigan Supreme Court ruled in 1990 that so-called “sobriety check lanes,” put in place to nab drunken drivers, were illegal.

The new practice of narcotics checkpoints “certainly brings up probable-cause issues,” Leyton said Thursday.

The Fourth Amendment to the Constitution prohibits the government from engaging in a search without first showing probable cause, except under very specific and narrow conditions.

Passive GPS tracking is a known — and, as smart phones begin to dominate the cellular market, much more common — feature of mobile technology. The issue with the Apple devices is that they don’t just dump the data after a certain amount of time, like Android phones do, and that they restore the internal tracking database across backups and even migrate it over to new devices when, for example, a user upgrades to a new iPhone.

Privacy advocates who have voiced similar discomfort with Google and Facebook’s information collection practices say that the information could conceivably be sold to the highest bidder to bolster targeted corporate advertising. But last week’s developments could have larger resonance and far more immediate impact in the ongoing push to allow law enforcement to use GPS tracking information as evidence in federal court.

There is no uniform federal policy on whether search warrants are required for police and other law enforcement officers to track suspects using GPS devices. In August, the Ninth Circuit Court of Appeals, which has jurisdiction over the entire West Coast, plus Hawaii, Alaska, Montana, Idaho and Nevada, ruled in agreement with a lower court that police can legally attach GPS monitoring devices to suspects’ cars without needing a warrant. The court claimed that there is no reasonable expectation of privacy when one travels on public roads and that just following someone’s actions as they do so is fair game.

The very same month, however, the Court of Appeals for the D.C. Circuit fell on precisely the opposite side of the issue. It ruled that the FBI and D.C. police couldn’t use information from a tracking device as evidence in a drug conviction for a nightclub owner and suspected cocaine kingpin.

The Obama administration has now stepped in to fill in the gap that has arisen within the federal courts over the issue. Solicitor General Neal Katyal has submitted a petition to the Supreme Court asking it to review the D.C. Circuit Court’s decision. And the administration is proving to be no friend to privacy advocates: Katyal wants the Supreme Court to overturn the D.C. ruling and bring it in line with what was decided in California.

The Washington Post’s Robert Barnes reports:

The decisions come as judges increasingly are asked to unravel the connection between modern technology and constitutional protections of privacy and against unreasonable searches. GPS devices in cell phones and cars contain a wealth of information about a person’s movements, and a smartphone can provide law enforcement with vast amounts of information.

“This case is really going to confront the court with the problem of adopting the Fourth Amendment to a new information age,” said Daniel Prywes, a Washington lawyer who wrote a brief in the Jones case for the American Civil Liberties Union and the Electronic Frontier Foundation.

“I think it’s the seminal privacy case of the 21st century.”

It’s unknown if the Supreme Court will follow up on the administration’s request and hear the case. There are dueling precedents at play that cloud any theorizing over how the court would rule if it elects to take up the issue. In 1983, the Burger court ruled in United States vs. Knotts that the installation of a beeper-enabled tracking device on a vat of chemicals didn’t constitute a privacy violation, while a year later, the same court ruled in United States vs. Karo that installing such a tracking device on a can of ether became a privacy violation as soon as the can left public roads and ended up on private property (the conviction in that case was upheld anyway).

Both rulings, however, asserted the legality of the use of tracking devices to monitor evidence that could otherwise be obtained by simply watching suspects go about their business. If the Supreme Court interprets precedent along the lines desired by the Obama administration, it could very well pave the way to unimpeded, warrantless use of smart phones’ tracking information by law enforcement. The future of the government’s take on privacy rights in the information age hinges on what the Supreme Court does next, if it decides to take the case.

Bolton ruled against a few parts of the lawsuit:

For example, she did not find standing for two New Mexico residents who felt that their driver’s licenses would deny them a constitutional right to travel because that state does not verify immigration status in issuing licenses.

She rejected arguments by the ACLU that forbidding illegal immigrants from soliciting work violated the First Amendment and that the language of the law was unconstitutionally vague.

The Friendly House and ACLU lawsuit was one of seven filed against SB 1070. Two of the lawsuits, Escobar v. Brewer and Frisancho v. Brewer, have been dismissed, while two others have yet to go before Bolton. An appeals court will hear the Justice Department case against SB 1070 in November.

What’s particularly interesting about the assertion this time, though, is that it doesn’t appear to be simply covering up Bush-era government misconduct. The case, Shubert v. Bush, suggests an ongoing illegal government data-mining program that intercepts and listens in on a huge range of communications by U.S. citizens. The complaint (PDF), filed by ordinary U.S. citizens living in Brooklyn, N.Y., who communicate with people in different countries, is a fascinating read that charges the government is engaged in a bizarrely vast surveillance dragnet. On the one hand, it sounds completely paranoid; on the other hand, it could be true.

We may never know, however, because if Attorney General Eric Holder has his way, the case will be dismissed before the lawyers even get a chance to investigate. That’s because the government has “to protect against a disclosure of highly sensitive, classified information that would irrevocably harm the national security of this country,” as Holder said in a statement released late on Friday. Holder has once again invoked the so-called “state secrets privilege,” this time reluctantly, he says, because “there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.”

In fact, federal courts handle classified and sensitive information all the time without disclosing it publicly, by filing records under seal and requiring the lawyers involved in the case to obtain security clearance. It’s unclear why that wouldn’t work in this case. But one implication of Holder’s statement is that the spying and data-mining program is ongoing, so to reveal it would harm national security.

Another equally disturbing implication of Holder’s statement is that even if the government were engaged in blatantly illegal conduct that violates the U.S. Constitution, the Foreign Intelligence Surveillance Act, the Wiretap Act and other federal laws, there would be no way for any U.S. citizen targeted by the government’s illegal conduct to find out, let alone to hold anyone accountable.

As Ilann Maazel, a lawyer representing the plaintiffs who filed the case, told the National Law Journal earlier today, “In the Justice Department’s view, the government is free to violate any law” based on the assertion that national security is involved. “What the government is doing is avoiding any inquiry into the program.”

Judge Vaughn Walker in the Northern District of California, where the case is pending, has previously greeted the government’s assertion of the state secrets privilege with skepticism, and, in at least one case against an Islamic charity that claimed it was wiretapped, allowed the case to proceed.

We’ll be following closely to see what he does with this one.

Elliot Madison, who counsels seriously mentally ill patients, first came under suspicion when, at the G-20 gathering of world leaders in Pittsburgh in September, he was arrested for allegedly listening to a police scanner and then sending out the information on Twitter to help protesters avoid the heavily armed police. Wired notes that the State Department applauded the same activity when protesters did it in Iran.

But in Madison’s case, the following week the Joint Terrorism Task Force got a warrant and raided the 41-year-old social worker’s home, where he lives with his wife and some roommates. The feds seized his computers, books, camera memory cards, air-filtration masks, bumper stickers and political posters. These were all supposedly evidence of his breaking the federal anti-rioting law. If found guilty, he could spend up to five years in prison.

Among his possessions taken were an electronic manuscript of a book he was working on. His first book, written with the “Curious George Brigade,” is called “Anarchy in the Age of Dinosaurs.”

Madison and his lawyer are now claiming that the search and seizure were unconstitutional.

Wired reporter Ryan Singel is decidedly sympathetic, suggesting that Madison is “yet another casualty of the government’s nasty, post-9/11 habit of considering political dissidents as threats to national security.”

The House Judiciary Committee is actually holding a hearing on a related subject this afternoon — the case of Ashcroft v. Iqbal, in which one of the thousands of Muslims rounded up, treated harshly and detained in the United States just after 9/11 sued the government for wrongful imprisonment and violation of his constitutional rights. In May, the Supreme Court dismissed Iqbal’s claims.

Rep. John Conyers (D-Mich.) (WDCpix)

Eight years after it was passed, the USA Patriot Act remains among the most controversial pieces of counterterrorism legislation in the so-called “war on terror.” On December 31 of this year, some of its more controversial provisions will expire, forcing Congress to revisit it and decide whether to reauthorize the expiring provisions, amend them, or re-work the entire law.

The sections set to expire give the government the authority to access business records, operate roving wiretaps and conduct surveillance on “lone wolf” suspects with no known link to foreign governments or terrorist groups. A justice Department official last week told Congress that the Obama administration supports their renewal. Assistant Attorney General Ronald Weich wrote to Senator Patrick Leahy (D- Vt.) that the administration would consider stronger civil rights protections “provided that they do not undermine the effectiveness of these important (provisions).”

Illustration by: Matt Mahurin

But at a House Judiciary Committee hearing on Tuesday, it was clear that Democrats don’t uniformly support the White House on that. Some Democrats on the committee were still bitter that some Republicans back in 2001 had pushed aside a bipartisan version of the bill produced by the Judiciary Committee in favor of a version substantially revised and altered by the Rules Committee, led by then-chairman David Dreier (R-Calif.).

“Then-Chairman Dreier under Lord knows whose instructions, substituted that bill for another bill, that we at judiciary had never seen. So we come here today now to consider what we do with those parts that are expiring” and that, according to committee Chairman John Conyers (D-Mich.), created problems that the bill he’d approved would have prevented.

“We held in this committee five days of markup and achieved unanimity on the Patriot Act,” Rep. Jerrold Nadler (D-NY) echoed later in the hearing. “Then the bill just disappeared. And we had a new several hundred page bill revealed from the Rules Committee” that had to be voted on the next day, before most members of Congress even had a chance to read it, said Nadler.

The fight over the bill appears to be as partisan today as ever. At the House hearing, Democrats and their witnesses warned that provisions of the law that allow “roving wiretaps” of different communications devices used by unnamed suspects, or electronic surveillance of suspects with no affiliation to known terrorist organizations, violate constitutional safeguards against unreasonable searches and seizures. And a “gag order” provision of the bill, they complained, violate the First Amendment by preventing the recipient of an FBI-issued National Security Letter, which can request customer information from businesses, from disclosing to their customers that the information was requested.

While Democrats in the House yesterday cast these provisions as unnecessary and abusive, Republicans deemed them critical to national security.

“We must not be lulled into a false sense of security,” warned Rep. Lamar Smith (R-Texas). “The threat remains high,” he added, and proceeded to list about a half a dozen terrorist plots that were either carried out or planned but foiled by the FBI since September 11, 2001, including the 2004 Madrid train bombings, the 2008 terrorist attacks in Mumbai, and the thwarting of what he called a “plot to kill U.S. soldiers at the Fort Dix Army base” in 2007.

But several witnesses, such as Suzanne Spaulding, a national security lawyer and former staff director of the House Permanent Select Committee on Intelligence, testified that parts of the law such as the “lone wolf” provision, which allows the FBI to monitor suspects with no connection to foreign terrorist organizations, “undermines the policy and constitutional justification for the entire [Foreign Intelligence Surveillance Act] statute. “This extraordinary departure from the Fourth Amendment’s warrant standards is justified only in investigation of foreign powers or their agents,” she said. The “lone wolf” provision would allow the government to spy an someone suspected of participating in terrorism but where the evidence is not strong enough to meet the stricter standards for obtaining a regular warrant from an ordinary federal court.

Michael German, a former FBI agent and now policy counsel at the American Civil Liberties Union, noted that the FBI inspector general himself in 2007 concluded that the Patriot Act had been abused. Section 505 of the Act increased the number of officials who could authorize national security letters, seeking private information about certain businesses’ customers, reduced the standard necessary to obtain information with them, to the point where information could be collected about people who are not even suspected of having done anything wrong, testified German.

Even with such broad latitude, German testified, the Inspector general reports “confirmed widespread FBI mismanagement, misuse and abuse of these Patriot Act authorities.” The inspector general reported that the FBI’s record-keeping was so poor it didn’t know how many national security lettesr it had issued, and it often sought private information that it was not entitled to.

“Most troubling, FBI supervisors used hundreds of illegal “exigent letters” to obtain telephone records without national security letters by falsely claiming emergencies,” German added in written testimony submitted to the subcommittee on Tuesday.

And Thomas Evans, a former Republican Congressman from Delaware testified on behalf of the bipartisan Constitution Project that the section of the Act allowing the FBI to issue National Security Letters without a court order and accompanied by gag orders creates “great potential for abuse.” Last week the Constitution Project sent a letter to the Senate Judiciary Committee, signed by 26 policy experts across the political spectrum, seeking major reforms to the Patriot Act.

On Tuesday, Todd Hinnen, Deputy Assistant Attorney General in the National Security Division of the Justice Department testified that many of the problems identified by the Inspector General and others have been solved. “Since that time, FBI has put in a new data subsystem governing those [national security letters],” he said, adding that the National Security Division of the Justice Department has increased its oversight and Congress and the Inspector General retain their oversight authority.

Hinnen testified further that the expiring Patriot Act provisions were absolutely necessary tools for law enforcement to pursue terror suspects. “We feel that these are very important investigative authorities and that it would be very unfortunate to allow them to lapse. The administration firmly supports renewal before December 31 so there’s no gap in the investigative abilities of the government.”

Conyers was not impressed. “You sound like a lot of people from DOJ that have come over here before, and yet you’ve only been there a few months,” he said, after Hinnen said he started in the job on January 21. “Do you think that’s a good thing or a bad thing?” Conyers asked. As Hinnen hesitated, Conyers added: “You don’t have to respond to that.”

On Wednesday, the Senate Judiciary Committee will hold its own hearing on the Patriot Act. That promises to be equally contentious. Already, several senators have introduced bills to reauthorize and amend expiring provisions of the Patriot Act, although there’s already evidence of disagreement among Senators on the same side of the aisle.

Last week, Senator Russ Feingold (D-Wisc.), with co-sponsorship from Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), Daniel Akaka (D-HI) and Ron Wyden (D-OR), introduced a bill to narrow the Patriot Act, called The Judicious Use of Surveillance Tools In Counterterrorism Efforts Act, or the JUSTICE Act. The Act would amend not just the expiring provisions but would add protections for privacy civil liberties in each section fo the Patriot Act and other surveillance laws. It would also repeal the retroactive immunity granted to telecommunications companies included in the FISA Amendments Act passed last year.

The Obama administration has supported and defended in court this immunity for telecom companies.

A bill introduced on Tuesday by Sens. Patrick Leahy (D-Vt.), Benjamin Cardin (D-Md.) and Ted Kaufmann (D-Md.), does not repeal the immunity provision, and makes more modest amendments to the Patriot Act. It extends all three of the provisions set to expire this year, but expands reporting requirements to allow Congress to monitor how the administration is using the law.

Abdullah al-Kidd, a Kansan who converted to Islam in college, was arrested in 2003 after he and his wife became targets of an FBI anti-terrorism investigation involving surveillance of Arab and Muslim men. The FBI never found any evidence against al-Kidd, but believed he might have information that would be useful to another prosecution. Although al-Kidd agreed to cooperate, the FBI detained him for the next 16 days in high-security prisons in Virginia, Oklahoma and Idaho. Strip-searched and shackled, he was kept in a cell that was lit 24 hours a day.

Al-Kidd was finally allowed to leave, but only if he promised to live at his in-laws’ home in Nevada, limit his travel to only four states, report regularly to a probation officer and consent to home visits for more than a year. Fifteen months’ later, he and his wife had separated, and al-Kidd was fired from his job after he was denied a security clearance due to his arrest, he claims. He was also denied a chance to study in Saudi Arabia on a scholarship.

Al-Kidd was never charged with any crime or called as a witness in any trial.

In March 2005, Al-Kidd sued Ashcroft for what he claims was an illegal policy of detaining Muslim men suspected of terrorism as material witnesses even though there was no evidence against them, they’d agreed to cooperate with the government and posed no security risk.

Like other former government officials sued in recent years for promulgating unlawful counter-terrorism policies, Ashcroft claimed he was immune from suit as a government official doing his job. But in this case, the court ruled against him. There was no doubt that it was unconstitutional to arrest a person without probable cause that he committed a crime under the pretext that he may be a witness to one, the court ruled.

“All seizures of criminal suspects require probable cause of criminal activity. To use a material witness statute pretextually, in order to investigate or preemptively detain suspects without probable cause, is to violate the Fourth Amendment.”

Writing for the court, Judge Milan Smith continued, suggesting concerns broader than al-Kidd’s case alone:

Framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a “material witness” under the circumstances, and for the immediate purpose alleged, in al-Kidd’s complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.

Al-Kidd still has to prove the facts of his case, but he’s scored a significant legal victory.

“The court made it very clear today that former Attorney General Ashcroft’s use of the federal material witness law circumvented the Constitution,” said American Civil Liberties Union Immigrants’ Rights Project Deputy Director Lee Gelernt, who argued the appeal. “Regardless of your rank or title, you can’t escape liability if you personally created and oversaw a policy that deliberately violates the law.”

That victory may not translate to many of the other cases involving victims of post-9/11 U.S. government detention policies who were not U.S. citizens, however, or who were detained in prisons abroad. Courts have generally ruled that the rights of non-citizens detained in overseas prisons were not sufficiently clear in the initial years after the September 11, 2001 terrorist attacks to warrant denying government officials immunity from lawsuits, even if the detainees were held for years without charge or trial.

Attorney General Eric Holder and Katie Couric (CBS News)

In an interview that aired Wednesday night on the CBS Evening News, Attorney General Eric Holder suggested to Katie Couric that the Obama administration is unlikely to depart dramatically from the Bush administration’s position on the use of the state secrets privilege, noting just one case out of about 20 currently under review in which the Justice Department is seriously considering changing its stance. He did not say which case that was.

Most likely, the reversal won’t come in the case of Jewel v. NSA, because Holder’s Justice Department Friday again broadly asserted the “state secrets” privilege as a grounds for dismissing the case, brought by AT&T customers alleging the government used dragnet surveillance to monitor the domestic telephone communications of millions of ordinary Americans.

Illustration by: Matt Mahurin

The Department of Justice – first under President George W. Bush and now under President Obama – has repeatedly invoked this executive privilege, which allows the president to prevent public disclosure of evidence in court by claiming that its release would endanger national security. And increasingly, the Department of Justice has used the privilege not only to prevent public disclosure of documents, but to dismiss entire cases brought by victims of illegal policies, claiming that the subject matter of the case itself is a state secret, and that even the judge shouldn’t review the documents in private. A recent report by the Constitution Project, a bipartisan think tank, found that the Bush administration used the privilege to seek “blanket dismissal of every case challenging the constitutionality of specific, ongoing government programs” in 92 percent more cases per year than in the previous decade.

Last night, Holder told Couric that after he took over the attorney general’s office, he asked lawyers in the Justice Department to see “if there’s a way where we can be more surgical, whether there is a way in which we can share more information.” The state secrets privilege, he said, is appropriately invoked “at certain times”, but “I want to make sure that we only do it where it’s absolutely necessary. I would only apply the doctrine where national security was at stake, where the lives of the American people were at stake,” he said.

Yet it’s difficult to see that standard at work in the recent cases where the Justice Department has invoked the state secrets privilege.

For example, in a federal court in San Francisco on Friday, the Obama Justice Department moved to dismiss the Jewel case based in part on the state secrets privilege. The AT&T customers who filed suit, represented by the Electronic Freedom Foundation, claim the National Security Agency illegally intercepted their calls and obtained their phone records as part of a broad-reaching, ongoing national security surveillance program and in violation of the First and Fourth Amendments of the United States Constitution, the separation of powers doctrine and federal statutes.

In its legal brief filed with the court, the government’s lawyers claim the case must be dismissed because allowing it to go forward at all would disclose information about the NSA surveillance program, which is itself a state secret. Disclosure of the information the customers want to see, claims the government, “which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” Justice Department lawyers said in their filing.

This is the second attempt by ordinary AT&T customers to learn more about the government’s secret domestic wiretapping program and to hold the government or a company that assisted it accountable. An earlier case, also brought by the Electronic Frontier Foundation against AT&T itself, was quashed when, after the Bush administration had made the state secrets arguments in court, Congress passed a law granting immunity to AT&T and other telecommunications companies from lawsuits from customers who claimed the companies helped the government spy on them.

The broad use of the state secrets privilege to dismiss entire court cases challenging unlawful government actions has outraged civil liberties and open government groups such as the American Civil Liberties Union and Center for Constitutional Rights. Such advocates had counted on Obama’s promises in the first days of his presidency to run a more transparent government than his predecessor. But the Obama Justice Department already, in several cases seeking information about Bush administration counter-terrorism activities, has invoked the state secrets privilege to prevent the disclosure of critical evidence.

For example, in Al-Haramain Islamic Foundation v. Obama, which TWI has been following, the Obama administration asserted that the Bush administration’s domestic warrantless wiretapping program, or Terrorist Surveillance Program, is a state secret that cannot be revealed without endangering national security. Never mind that President George W. Bush had himself acknowledged the program’s existence, and President Obama has said it is no longer operative.

And in Mohammed v. Jeppesen Dataplan, which TWI first wrote about in January, the Obama administration asserted the state secrets privilege to seek dismissal of a case brought by five victims of the Bush administration’s “extraordinary rendition” program — which transferred prisoners to foreign countries for interrogation under torture. In that case, the victims, including Binyam Mohamed, the British resident I’ve written about, sued the subsidiary of Boeing that allegedly assisted the CIA in its torture program. The Bush administration immediately swooped in and convinced the federal court to dismiss the case because the now-defunct extraordinary rendition program is supposedly a “state secret.” In February, the Obama administration, to the surprise of even some of the judges sitting on the U.S. Court of Appeals for the Ninth Circuit that day, continued to maintain that argument.

During last night’s interview, Couric asked Holder whether he thought the state secrets doctrine had been abused by the Bush administration.

“Well, I don’t know,” said Holder. “On the basis of the two, three cases we’ve had to review so far, I think that the invocation of the doctrine was correct. We – reversed – are in the process of looking at one case. But I think we’re very likely to reverse it.”

Presumably, the three cases he’s referring to are the Jewel, Al-Haramain and Jeppesen Dataplan. But Holder went on to say that there have been more than 20 such assertions in cases that are still open. He added that a report on the Justice Department’s use of the privilege is being prepared, and his “hope is to be able to share the results of that report with the American people.”

Marc Ambinder, who obtained an early transcript of the interview, wrote Wednesday in The Atlantic that a senior Justice Department official “declined to elaborate” on in which case Holder was planning to reverse the department’s position.

Congress, meanwhile, may not leave the matter in Holder’s hands. In February, Rep. Jerold Nadler (D-N.Y.) and several co-sponsors introduced the State Secrets Protection Act of 2009, which would require a federal judge to look at the disputed evidence rather than dismiss the case outright based solely on the government’s assertion that its disclosure would endanger national security. A parallel bill was introduced in the Senate by Sen. Patrick Leahy (D-Vt.) and has six co-sponsors.