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.

“Do the senators suggest that the person be unrepresented?” wondered retired Navy Lt. Commander Charlie Swift, who helped defend Salim Hamdan alongside Neal Katyal, the deputy solicitor general whom Grassley and Sessions slimed. “Can they concede that a court in which they are unrepresented [fails to] meet that Common Article 3 standard?” Funny thing about that.

In 2006, Congress passed the Military Commissions Act. Among the provisions of the Military Commissions Act of 2006 — specifically, Section 948k — is that detainees under the commissions are entitled to defense counsel. You’ll never guess which two senators voted for the Military Commissions Act, with its nefarious promises of detainee counsel: Chuck Grassley and Jeff Sessions.

“If they didn’t think attorneys should do this, or that such people are traitors for doing it, why did they establish the requirement?” said Swift, now a lawyer in private practice in Seattle. “I don’t understand. To me, it’s political cheap shots. It’s not the law.”

Another funny thing: This particularly sleazy argument has all played out before. In 2007, Cully Stimson, then the top Pentagon official for detainees (now with the conservative Heritage Foundation), said in an interview that he was eager to see law firms pay a price for choosing to represent Guantanamo detainees. “When corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks,” Stimson said. “And we want to watch that play out.” The Washington Post’s editorial page replied that it was “offensive” for Stimson to argue “that law firms are doing anything other than upholding the highest ethical traditions of the bar by taking on the most unpopular of defendants.”

And you know who agreed with the Post? No less a law-breaking, impunity-loving executive-power-drunk official than soon-to-be-disgraced Attorney General Alberto Gonzales. “Good lawyers representing the detainees is the best way to ensure that justice is done in these cases,” Gonzales told The New York Times. Even Alberto Gonzales thinks that Guantanamo detainees deserve good legal counsel!

Perhaps it’s unsurprising that this episode has fallen down the right-wing memory hole now that a Democrat is in office. “This entire attack is representative of the extraordinary double standard to which members of the Obama administration are held, as opposed to members of the Bush administration,” Swift observed, adding for good measure about his friend Katyal: “Neal is the modern-day John Adams, in fact. … Neal came in out of the highest of principles. He took the case even though he knew he might be attacked later for doing it. He argued it from the highest of principles, he conducted himself at every moment as the most principled attorney I’ve ever seen. And he won the case.”

“Neal in particular was and is one of the sharpest and hardest-working attorneys I’ve known in the 27 years I’ve been practicing law,” said Davis, who supervised prosecutions at Guantanamo from 2005 to 2007. “It is absolutely outrageous for the Cheney-Grassley crowd to try to tar and feather Neal and Jennifer and insinuate they are al-Qaeda supporters. You don’t hear anyone refer to John Adams as a turncoat for representing the Brits in the Boston Massacre trial.” Davis, of course, opposed Katyal on the famous case of Guantanamo Bay detainee Salim Ahmed Hamdan’s habeas corpus rights — a case that Katyal won in the Supreme Court, striking down the first iteration of the military commissions. “He was the epitome of professionalism, and I can’t say that about a lot of the folks involved” in the commissions, Davis continued.

“If you zealously represent a client, there’s nothing shameful about that,” said the retired Air Force colonel. “That’s the American way.”

Sen. Chuck Grassley of Iowa is rightly unhappy that the Justice Department won’t divulge the names of the nine Justice Department lawyers who directly represented suspected-terrorist detainees, or their cases. Grassley identified two himself, Neal Katyal (an aside: Katyal is a very impressive guy and very charming and level-headed) and Jennifer Daskal.

There’s absolutely nothing “hidden” about this; it’s a pure smear job. Daskal, a former Human Rights Watch attorney, is so committed to hiding her representation of Guantanamo detainees that it’s on her Wikipedia page. And Katyal, the deputy solicitor general whom even this Washington Times bottom-feeder has to concede is a talented attorney, very publicly represented Salim Ahmed Hamdan and took his case to the Supreme Court, which promptly struck down the first phase of the military commissions. There is not a shred of a legitimate issue here, just pure innuendo.

Grassley knows exactly what he’s doing. He’s taking one of the strengths of the American justice system — the fact that everyone is entitled to legal representation — and implying that it’s unseemly. It’s a testament to the weakness of his character that he will never forthrightly accuse these attorneys of what he’s implying — sympathy with accused terrorists — in a way that they could refute. What a pathetic excuse for a man. Those of us in the media have an obligation to call this smear campaign what it is.

The South Carolina senator said that in a series of meetings and phone calls over the last “several weeks,” he has pressed to establish a new national security court that would keep most Guantanamo detainees out of the federal courthouse. He expressed confidence that he could strike a deal to extend some measure of habeas corpus rights to prisoners detained on terrorism charges and to draft a “law of war” statute that ensures no one can be detained on the whim of the executive branch without oversight or judicial recourse.

A breakthrough on those issues could lead to agreement on trials for Guantanamo prisoners outside the federal court system, he said.

So the price of closing Guantanamo is to create a “new national security court” from out of nowhere, according to the senior senator from South Carolina. The U.S. tried that once before when it created the military commissions. The courts have consistently found the commissions to be procedurally problematic, and even when the Obama administration embraced the commissions, senior officials testified that in essence they were going to make them more like civilian trials in order to withstand future scrutiny from the bench. Besides, the administration has declined to embrace the creation of new national security courts, even though some senior officials, like deputy solicitor general Neal Katyal, have long championed them. What’s to stop the courts from challenging another newly-created structure?

And for that matter, what’s wrong with the federal courts, which have a far better record of successfully convicting terrorists than any other model? Just yesterday, Attorney General Eric Holder, announcing the plea deal of Najibullah Zazi, affirmed, “the criminal justice system has proved to be an invaluable weapon for disrupting plots and incapacitating terrorists, one that works in concert with the intelligence community and our military. We will continue to use it to protect the American people from terrorism.”

Of course, it may be that the administration goes back on that principled stance because White House Chief of Staff Rahm Emanuel really believes, as he recently told The New York Times, “You can’t close Guantánamo without Senator Graham, and [Khalid Sheikh Mohammed] was a link in that deal.” That’s a political calculation, though, since Graham has no chairmanship or appropriations status or anything else. And if Emanuel thinks that Graham can really bring along his GOP colleagues to sing kumbaya with the Obama administration over national security courts, it’s worth asking why Graham’s support of a climate change bill hasn’t weakened GOP opposition to it. The Republicans are committed as a political strategy to opposing everything the Obama administration does, and on national security — despite the record — they think they can win. Does Emanuel, whose political skills were honed in the Clinton White House and the partisan Congress, really think the howling on the right will stop just because Lindsey Graham gets the administration to compromise its principles for a dubious detentions fix?

The federal law makes it illegal to make and sell commercially “any visual or auditory depiction” of the killing or serious abuse of a living animal so long as that conduct is illegal.

Deputy U.S. Solicitor General Neal Katyal, appealing to the Court to reinstate the law, which was struck down by the Third Circuit Court of Appeals, explained that Congress intended to shut down “a robust market” for “crush videos” — images of small animals being stomped to death.  The law, said Katyal, was a “narrowly targeted restriction.”

But Denniston reports that most of the Justices did not appear to be buying his argument. They tossed out a series of hypotheticals asking what would be banned under the law — from videos of bull-fighting to the making of foie gras — to suggest that Congress overreached on this one. Only Justice Samuel Alito, writes Denniston, seemed prepared to support the law as it was written.

As Spencer wrote today, someone in the administration told ProPublica’s Dafna Linzner and The Washington Post’s Peter Finn that yes, civil liberties groups support the idea of an order that “would embrace claims by former President George W. Bush that certain people can be detained without trial for long periods under the laws of war.” That statement amazed the civil liberties groups that Spencer then spoke to. I’ve gotten similar reactions from civil liberties lawyers I’ve been speaking to since Friday as well.

But it turns out that there are some progressives, and some who’d even traditionally be called civil libertarians — though not representatives of the traditional civil liberties groups Spencer and I have spoken to — who have been floating the idea, but in a more limited way than the Post story suggested.

Specifically, a group of prominent military and criminal defense lawyers and academics on June 8 sent President Obama a letter urging him not to create a new system of preventive detention, but instead, to rely on the one we already have — with modifications, if necessary. Although they don’t specifically recommend an executive order, that’s the logical way for the administration to modify and clarify its authority.

“Our country can achieve its legitimate goals through existing laws which authorize the detention of those who should be detained in the fight against international terrorism,” says the letter, which I received just this afternoon. It’s signed by 11 prominent lawyers, including Retired Rear Admirals Donald Guter and John Hutson of the Navy’s Judge Advocate General’s Corps; Abner Mikva, a former federal appellate court judge, University of Chicago law professor, White House counsel under President Bill Clinton and a mentor to president Obama; and Thomas Wilner, a prominent corporate defense lawyer who’s represented Guantanamo detainees in some of the landmark cases decided by the U.S. Supreme Court.

“Longstanding law-of-war principles authorize the detention for the duration of armed hostilities of those who engage in armed conflict against the United States or its allies,” these experts write, adding: “Some modifications to the existing system may be warranted, but no new system is necessary.”

The letter specifically tries to steer President Obama away from proposing or supporting any new legislation that would create a new preventive detention authority.

Ken Gude at the influential Center for American Progress has also suggested that the president should clarify his authority of detention under the laws of war. In a recent memo he co-authored with Kate Martin of the Center for National Security Studies, he and Martin write that the “ambiguities” left by the Bush administration over who is detainable under the laws of war “compound the lack of fundamental fairness in treating suspected criminals as combatants and holding them without trial.” Given how the detention authority has been used over the past eight years, “the new administration should now reassert the traditional understanding of the limits of the law of war and reject the former administration’s effort to read the word “organization” in the AUMF [Authorization for the Use of Military Force] as effecting an unprecedented extension of the traditional understanding of the military’s extraordinary powers of detention during war.”

In an e-mail this afternoon that he sent from Paris, Gude says he never specifically proposed an executive order, but supports the idea and adamantly opposes new legislation.

Gude laid out his support publicly for a limited system of preventive detention, authorized by the laws of war which allow detention of combatants during a military conflict, on CAP’s site and in The Guardian.

Even David Cole, the normally staunch civil libertarian law professor at Georgetown, has argued that the administration has that authority, calling it “an appropriate and necessary means of dealing with enemy fighters during wartime.” (Cole was pilloried for taking that position by Kenneth Anderson in Opinio Juris, who asks, “if it’s sensible and legal now, why wasn’t it sensible and legal during the Bush years? Is this the same David Cole who appeared on panels with me over the last few years and who didn’t seem in those years to have any daylight between him and the Center for Constitutional Rights, Human Rights Watch, or Human Rights First on the principle of try-or-release?”)

Let’s set aside for now the very legitimate question of whether these progressive civil libertarians would have taken the same position during the Bush years, or if they just inherently trust President Obama to handle battlefield detention against a non-traditional enemy better than Bush did. The positions these people are taking is informed, at least, by what the Supreme Court ruled in Hamdi v. Rumsfeld, although that case pertained only to the detention of Taliban fighters, while we were at war with Afghanistan. And it’s in line with what the federal courts have been ruling, with some variations, in a string of habeas corpus cases.

The proposal for an executive order to clarify the Obama administration’s position on the extent of its wartime authorities of preventive detention is very different, however, from the controverisal position that some more conservative lawyers and think-tank scholars like Jack Goldsmith, Benjamin Wittes and Neal Katyal (traditionally a moderate Democrat and now deputy solicitor general in the Obama administration) have been promoting. The Wittes proposal released on Friday with Brookings colleague Colleen Peppard, for example, would create an entirely new system of preventive detention that’s not limited to the president’s authority under the laws of war.

On Monday, Goldsmith, a Harvard law professor and former head of the Office of Legal Counsel at DOJ under President Bush, joined Wittes, a Brookings scholar, in a Washington Post op-ed to argue that a preventive detention scheme should be debated in Congress and spelled out clearly through legislation, not by the president by executive order. To them, an executive order would be “a nearly wholesale adoption of the Bush administration’s unilateral approach to detention.”

That, it seems, is where the current debate lies. Committed civil liberties advocates such as the ACLU, Center for Constitutional Rights, Human Rights Watch and others may still be arguing against a preventive detention scheme entirely, but given that the Obama administration has consistently argued its right to detain “combatants” (however they’re defined) during what it continues to call a “war” — not only in the Gitmo habeas cases but in regards to the detention of some 600 men imprisoned at the U.S. Air base in Bagram, Afghanistan — it’s impossible to imagine that the administration is going give up that authority in the future.

Although as Spencer pointed out, White House spokesman Robert Gibbs did say on Monday that the president is not considering issuing an order that “relies on legal theories that we have the inherent authority to detain people,” he certainly didn’t rule out basing a preventive detention system on some other authority — whether granted by the laws of war, or by an act of Congress.

I’ll be writing more soon about what that Congressional act might look like.

On Tuesday, senior Obama foreign policy adviser Denis McDonough said that while Obama agreed the Guantanamo prison should be closed, there was “absolutely no truth to reports that a decision has been made about how and where to try the detainees, and there is no process in place to make that decision until [Obama’s] national security and legal teams are assembled.”

Still, the apparent leak that Obama was even considering a special court system was a step into a legal policy minefield.

Advocates on all sides have staked out strong positions on the matter: the ACLU and a bipartisan coalition created by the Constitution Project, along with some lawyers who have represented detainees at Guantanamo Bay, make a strong case that specially-created national-security courts are unnecessary and likely unconstitutional. And Human Rights First has issued a study demonstrating that the federal court system works just fine for prosecuting terrorists.

Meanwhile, the neo-conservative Foundation for Defense of Democracies, a group started after 9/11 that includes former FBI Director Louis J. Freeh and former House Speaker Newt Gingrich, supports creating special courts.

So does Harvard Law Professor Jack Goldsmith, who served briefly as director of the Justice Dept.’s Office of Legal Counsel before resigning and writing his book, “The Terror Presidency,” which includes a scathing critique of the Bush administration’s legal analysis and policies on the treatment of detainees.

But it’s not just conservatives that support a special court system to try suspected terrorists. Moderate liberals like Georgetown University law professor Neal Katyal, who represented Osama bin Laden’s driver, Salim Hamdan, before the U.S. Supreme Court, and later at his military commission trial, has written in favor of creating special courts to try suspected terrorists, and even their “preventive detention.”

Harvard Law Professor and Obama adviser Laurence Tribe has written (with Katyal) that the use of military tribunals to try suspected terrorists could be constitutional and even wise, so long as they’re authorized by Congress and comport with constitutional commands.

How a President Obama is going to weigh all these different viewpoints remains to be seen. As I pointed out yesterday, the challenge Obama faces is made far more difficult because of the harsh interrogation methods used against suspected terrorists, or “enemy combatants,” as the Bush administration calls them. The problem is that evidence obtained by coercion isn’t admissible in regular U.S. courts; but letting potential terrorists go, possibly to strike again, isn’t a politically acceptable option for a new president.

Then again, a special court created to accommodate the torture problem and even permit preventive detention of suspected warriors would set a troubling precedent that we’d be stuck with for many years to come.