This week provides both an example of the Justice Department's selective approaches to secrecy and an example of the Justice Department's alarming Fourth Amendment interpretations.
Today, The Washington Post reported on an New York lawsuit between two government contractors that has revealed significant details about the Central Intelligence Agency's (CIA) supposedly super-secret rendition program.
In past lawsuits, the Justice Department - under both George W. Bush and Obama - has obstructed accountability by claiming that the rendition program must remain secret. The Justice Department asserted the state secrets privilege and sought to dismiss a lawsuit brought by victims of the CIA's rendition program against those accused of kidnapping and torturing them. The Justice Department argued that it would reveal state secrets to even answer the complaint or allow the victims to proceed with the lawsuit based upon the mostly public information the victims already have.
Yet, in a suit over money between two government contractors, the Justice Department hasn't intervened or even bothered to contact the attorneys despite that the contractor billing suit has revealed:
. . . more than 1,500 pages from the trial and appeals court files appear to include sensitive material, such as logs of air-to-ground phone calls made from the plane. These logs show multiple calls to CIA headquarters; to the cell- and home phones of a senior CIA official involved in the rendition program; and to a government contractor, Falls Church-based DynCorp, that worked for the CIA.
And testimony from a contractor head that:
“We were transporting government personnel and their invitees.”
The lack of Justice Department intervention in the billing dispute lawsuit calls the government's outlandish claims of state secrecy in the victims' lawsuits further into question. If the Justice Department's claims of secrecy in the victims' lawsuits are legitimate, than why has the contractors' billing lawsuit been allowed to proceed uninhibited by claims of "state secrecy?"
The Justice Department's selective assertion of the state secrets privilege is not this week's the only example of questionable government behavior. (More after the jump.)
Fourth Amendment Interpretation - GPS Tracking
On Monday, even WaPo's fairly conservative editorial board objected to the Justice Department's interpretation of the Fourth Amendment that a warrant was not required to place a GPS tracking device on a suspect's car:
. . . the U.S. Court of Appeals for the D.C. Circuit ruled that the government breached the Constitution — and Mr. Jones’s reasonable expectations of privacy — because law enforcement officers placed the device on the SUV and tracked his every movement without a valid court order. . . . It’s not an easy case, but we think the appeals court got it right.
WaPo's editorial follows a USA Today op-ed from Marc Rotenberg, who heads the Electronic Privacy Information Center, warning of the privacy implications of insurance companies requiring GPS tracking devices in vehicles:
Now car insurance companies want you to install a new device in your car so they can track how you drive and when you drive. The companies say this could reduce your insurance rates, but there is more to the story.
The data that are collected by the insurers don't stay with the insurers and won't be used only to calculate rates. Police could get access to your driving habits, as could state agencies.
If the Justice Department believes law enforcement does not need a warrant to place a GPS on a car, it does not bode well for private citizens when law enforcement is tempted to request tracking information from their car insurance providers. The amount of information the government can obtain about persons using GPS tracking is staggering. As WaPo said in quoting D.C. Circuit judge Douglas Ginsberg:
“A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts,” D.C. Circuit Judge Douglas Ginsburg aptly noted in invalidating Mr. Jones’s conviction.
Criminalizing whistleblowing was enough to insist the Justice Department change its priorities, and the selective secrecy claims about rendition and questionable Fourth Amendment interpretations are more examples of the Justice Department moving in the wrong direction.
Jesselyn Radack is Naitonal Security and Human Rights Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.