Isn't it curious how things come together, sometimes. While reviewing the once secret written notes of Madison from the Constitutional Convention, I stumbled upon the ACLU FOIA responses, discussed in this diary.
A year ago in April 2011, I wrote a diary on a cell phone forensics tool, and recommended federal review. It's interesting what the ACLU was able to provide from local law enforcement on cell phone location tracking.
The issue isn't just cell phone location data. The law enforcement community can track not only your location using a cell phone, but can access the content within your cell phone without a warrant.
Today, one question is who has standing to bring suit for unlawful cell phone tracking; and how this intelligence collection squares with FISA and the FISA Immunity Act. However, in light of the reporting on the CIA-NYPD domestic surveillance, the FOIA responses do not paint a comfortable picture, but raise serious constitutional issues warranting judicial and public review.
Unfortunately, the NYPD -- and the state of New York, and other states --- did not (yet) provide a response on cell phone tracking; or their responses are not (yet) posted on the ACLU website. (You'll notice on the ACLU map of the cell phone tracking responses, that there are no links to any New York Police Department FOIA responses.)
This absence of information contrasted sharply with the Framer's intent to thwart tyranny through sunlight, an informed voting citizenry, and checks and balances.
Under the current (unfavorable) climate of unconstitutional conduct enabled by the Congress and President, it's interesting to review the FOIA responses of those non-NY-police jurisdictions where the NYPD was operating.
Let's compare the ACLU list of cell phone tracking FOIA responses with the places the NYPD has been operating. You'll notice there's not much information in the responses to the ACLU about what the NYPD might be doing either in NYC, New York, or any other national jurisdiction providing a response on law enforcement cell phone location tracking.
The AP reports on the jurisdictions:
Possible Relationship Between NYPD Operations and Local Law Enforcement Tracking of Cell Phone LocationIt appears the NYPD conducted prohibited surveillance in non-NYPD jurisdictions because local police departments had no policy on cell phone location tracking. That smacks of the NYPD taking advantage of a lack of policy to meet its intelligence objectives beyond what are isolated to New York.
AP [Link added]: "Outreach programs have operated in Boston, Cleveland, Detroit, Minneapolis, Portland, Oregon, and Washington — all have large Muslim communities — while law enforcement around the country has stepped up investigative efforts to stave off attacks."
According to the ACLU map, there is no data [FOIA response related to local law enforcement collection of cell phone location data] from several of the locations where the NYPD was operating outside the NYPD jurisdiction.
The AP articles are important starting point to compare the NYPD operations with the FOIA responses to the ACLU. For example: AP [Linked added, not in original AP report]: "For months in mid-2007, plainclothes officers from the NYPD's Demographics Units fanned out across Newark, taking pictures and eavesdropping on conversations inside businesses owned or frequented by Muslims."
The inconsistent local law enforcement responses to the FOIA request raise questions of federal uniformity in enforcing local compliance and cooperation with possibly unconstitutional federal intelligence collection and consolidation efforts after 9-11.
The supposed benefits of a federal constitution have not been realized in both efforts to preserve the Constitution, nor in government or public oversight into compliance with protecting the established order.
The lessons of the Articles of Federation and 9-11 -- the benefit of federal coordination to align resources with lawful assertions of power -- have been lost on the current law enforcement, intelligence, and legal communities at the state, local, and federal levels.
It remains unclear how ODNI worked with not just NYPD but other local law enforcement units to gather not just cell phone location but other information that otherwise could not be collected, retained, or disseminated under federal jurisdiction.
However, the Framers intended for the States to fall under federal -- indeed, national -- jurisdiction. Yet, without that oversight and umbrella of a federal law enforcement regime, the States remained separate countries; and there would have been no united [small "u"] States of America.
The benefit of having a federal system was that Congress would have the power to compel the states to provide money so that Congress could get resources to support it's power of raising an Army. Indeed, absent that power to compel the States to respond to this funds request, the "power" to raise an army was in name only.
Federal Power Requires Enforcement on States to Provide Resources Needed to Assert That Power
For there to be enforceable power, there must be consequences on the States for their failure to provide those resources support to Congress.
With that digression into (some) of the Constitutional history, consider what (little) we've been told about the cell phone tracking system.
Somehow, local law enforcement has been in some cases highly cooperative with information requests; in others, there is (supposedly) "no" policy and "no" record within the local law enforcement unit related to cell phone tracking.
It seems strange that this "apparent" inconsistent police department policy across the states would have continued after 9-11. Supposedly, after 9-11, the "lesson" was that there was no centralized intelligence monitoring, tracking, and analysis.
Indeed, the same problem which occurred before 9-11 -- lack of centralized authority, power, resources, and information -- relates directly to the problem in the wake of the Articles of Confederation: A federal objective, without federal resources.
How does Congress explain the (apparent) failure of the federal government to create a federal oversight program that would work with local law enforcement to have a uniform policy toward obtaining, securing, and analyzing cell phone tracking data?
Because there is no enforceable federal power that would uniformly compel local law enforcement to breach the warrant requirement. Indeed, the Supreme Court raises a reasonable question for law enforcement when GPS-data attached to government placed equipment cannot be lawfully collected or used unless there is a warrant.
With a private cellphone, there's no government equipment, and less likely the Supreme Court would rule the other way. But rather than allow the courts to review the question of cell phone tracking data, it seems there's been no desire of Congress, the Courts, or the Executive to create, establish, enforce, or review a consistent federal policy to collect cell phone location data.
So much for the current government actually applying the lessons of the Articles of Confederation; or ensuring there is a lawful federal mechanism to uniformly (and lawfully) collect information.
Why does there exist no "uniform" policy? Because there is not a lawful, enforceable federal mandate, program, or rule which can compel law enforcement to do things outside the warrant requirement. In theory, there must be something that is questionable, dubious, or unlawful which is compelling, inspiring, or persuading some -- but not others -- in law enforcement to provide location tracking data.
Conversely, that incentive is not required if only one local law enforcement unit collects information from citizens in a different jurisdiction. However, the ACLU data shows us there is more than one law enforcement unit willing to do just that; only ten (10) responded that they do not track.
If we believe that some are (supposedly) not tracking this data, raising the question going back to the Articles of Confederation and 9-11: Why is there no consistent, federal mandate, program, or requirement?
Because that federal objective using that method is (more likely than not) unconstitutional, raising the prospect that there should be judicial review of the ODNI data collection practices, despite the Executive order to shield that information from the Privacy Act.
Indeed, the ACLU data raises the question about what other mechanisms are used to compel, encourage, prompt or inspire some local law enforcement to do something questionable: Not just collect GPS data from government-placed/owned equipment, but collect location data from private equipment.
Indications of DOJ OLC Memo
The Supreme Court struck down [U.S. v. Jones] the lawfulness of the former: GPS information from a government-placed/owned device; it defies reason to believe the Supreme Court will approve the latter: Warrantless collection of private cell phone location.
That possible outcome is the likely reason DOJ OLC has written a memo to keep these questionable federally connected data collection methods -- and cooperation between the federal and local governments -- out of federal court on the basis of dubious claims of "state secrets," "national security" or some other (unconstitutional) excuse which the Framers found repugnant because it hinted of tyranny.
The current environment does more than hint at tyranny. There is a fowl stench which continues to linger and has somehow affected the thinking of independent members of Congress.
The same Congress which refuses to allow Judicial review FISA violations. However, Congress has no enforceable legislative power decide whether the Judiciary -- the sole branch with judicial power -- will or will not review breaches of not only public law, but domestic threats to the established order.
We believe there is a classified DOJ OLC memo which does just this; but remains subject to classified legal dispute between local, state, and federal intelligence and law enforcement personnel.
We also believe Congressional staffers connected with the House and Senate Intelligence Committees have been briefed on this memo, but not given adequate ability to independently review with proper legal counsel the lawfulness of these executive legal positions.
It is also likely -- as occurred with the FISA violations -- that the Congress is well aware of classified (but dubious) federal "mandates"; but they've failed to adequately bring before federal court -- or under legislative review -- disputes related to "local PD non-compliance" because the legal issue cannot survive judicial review.
Why? Because Congress wants there to be breaches of the Constitution for a reason which the public needs to understand, review, and publicly discuss.
Moreover, the history of DOJ OLC suggests that when there is a supposed problem where the courts might inject itself into a constitutional issue, DOJ tends to favor an expansive assertion of federal executive power, without allowing the courts the option to find that activity unconstitutional. Rather than permit judicial review of FISA violations, the DOJ OLC expanisvely ruled the activity was a state secret.
Indeed, if it is a "state secret" that there is unconstitutional activity, what is that secret really protecting? The power of the federal government to abuse power, in secret, without adequate review. The Framers had another word for that.
Inconsistency Raises Prospect of Other Dubious Federal Intelligence Operations at Local Level
Something isn't adding up. A federal policy, if it were uniform, would provide a clean story on how the information is aligned with federal requirements. The current disclosures are not consistent with the principles of uniformity, consistency, or coherence.
Specifically, it makes no sense for there to be an "apparent" inconsistent policy at the local law enforcement level related to cell phone tracking unless we consider something else: That the supposed "benefits" of a union -- and the supposed basis for the unlawful activity to preserve the same -- are placed superior to the very document which created that established order.
That apparent (and emerging reality) remains not just a legal question, but a matter of public discussion and debate: If the existing established order -- as defined in the Constitution -- is not cable of self-checking and thwarting tyranny -- despite the supposed threat of voting consequences -- then something must be modernized, improved, and strengthened to preserve the established order from tyranny, especially when that threat remains a domestic component.
In other words, the law enforcement and intelligence community know that they cannot survive judicial review of the local law enforcement warrantless surveillance, unless it is devoid of any link to non-emergency requests for information.
But their mandate is to collect intelligence, regardless whether that information is or is not an emergency.
So there must be something else that is the vehicle to collect local, private citizen cell phone information above and beyond what has been disclosed through the responses to the ACLU FOIA.
Indications of Other Local Intelligence Programs Beyond NYPD Law Enforcement
Further, it remains unclear how local law enforcement is gathering non-emergency related information; and how this collection is masked as something else; and/or there remains no serious effort within US DOJ to investigate that warrantless surveillance.
Moreover, the ODNI cannot explain why there exists a federal system of oversight and intelligence gathering unless there is a balanced system to ensure the collection, use, and dissemination of that information remains consistent with the Constitution.
We need to know more about the consequences the federal government imposed on local officials, law enforcement, and others for their refusal to breach their oath; and/or provide to ODNI and others at the federal level information gleaned from warrantless cell phone tracking.
Exploring Federal Incentives For Unconstitutional ConductBecause we don't have enough information about the government's compliance with FISA, it's premature for the government can say -- today, on short notice -- that there are "no" questions about the linkage between federal budgets and local decisions to cooperate or not cooperate with questionable cell phone tracking requests sent through ODNI.
Here are some research questions which may be useful in reviewing the scope of local law enforcement cooperation with the federal government; and the relationship between federal programs and local enforcement policies.
A. Alleged Improper Favoritism For Breaching Constitution
Were federal grants improperly awarded to local law enforcement who agreed to participate in questionable intelligence gathering?
B. Alleged Unlawful Federal Sanctions On Locals For Preserving Warrant Requirement
Were bonafide needs rejected in favor of police jurisdictions with inferior requirements merely because one local law enforcement had an unfavorable policy on collecting, using, and disseminating cell phone data?
C. Federal ByPass: Clouding Affected Party With Standing, Clouding Brady Compliance
When local law enforcement personnel did not cooperate with (questionable) federal data collection interests, how were non-local law enforcement contacted to monitor citizens cell phone tracking data outside the police department jurisdiction?
D. Executive-Legislative Collusion: Lawful to Shield Unconstitutional Government Conduct, Discussions, Information Exchanges Between Branches?
Did the White House and Intelligence Committees agree to link, relate, or connect (a) the award of federal drug enforcement grants for local law enforcement improperly with (b) local decisions to cooperate or not cooperate with questionable federal requests sent through ODNI?
Indeed, it is because of the alleged Congressional staffer complicity with war crimes and FISA violations that makes this "lesser" violation something that would easily be approved. They approved something more serious; in their mind, this type of "lesser" constitutional violation "isn't" something as serious.
Lessons from FISA Immunity Act, Telecom Complicity
It might be, for now, easy under a "state secrets" regime to thwart all investigation of questionable federal connections between (a) the award or non-award of federal grants on the basis of (b) cooperation or non-cooperation with dubious (unconstitutional) surveillance practices.
All the more reason for judicial review of whether the courts, even in national security cases, should strike down the state secrets doctrine because its use thwarts the established order, and threatens the Constitution.
DOJ OLC has an (unconstitutional) interest to argue in (secret) memoranda that the issues related to warrantless cell phone tracking "cannot" be brought before the courts because the issues "might" raise constitutional questions, and tip away from the deference to the Executive.
The excuses used to shield judicial review do nothing to inspire confidence that the established order is protected from tyranny. It has enabled tyranny.
The Judicial branch remains a separate branch of government. Albeit weak, it is not a silent bystander, especially when there remains a glaring inconsistency between what the Framers intended -- a federal system of governance -- but there remains after 9-11 a supposed "local" (and inconsistent) system of conducting warrantless surveillance of cell phones.
Public Debate: Congress Cannot Reconcile Principles of Constitution With Federal Intelligence Collection Policies
Either we have a federal system of governance where the states and local officials are on board with lawful federal mandates and consequences; or the patchwork of inconsistencies demands judicial review to understand why our current "leaders" in Congress have developed a system of intelligence collection that remains outside full, coherent, and uniform federal oversight, policy, control, accountability, and governance.
A failure to uniformly enforce a policy raises the question of whether any enforcement of that policy is lawful. Where there is evidence that a federal mandate has not been uniformly enforced, there is a judicial question of whether selective enforcement of that policy is lawful, enforceable, or constitutional.
It defies reason for the Judiciary to avoid judicial review of a patchwork of inconsistent local, state, and federal policies -- which were supposedly fixed after (a) the failure of the Articles of Confederation, and (b) the failure of the intelligence community and defense industries to properly account for their 9-11 disaster -- while those supposed "inconsistent" policies appear to be on both sides of the Constitutional boundary.
Indeed, despite the "lesson" of the Articles of Confederation -- where we "needed" a federal government to properly align, motivate, and task local and state resources -- we're asked to believe that the current Constitution still cannot uniformly mobilize local officials to cooperate with a dubious ODNI policy. That inconsistency deserves public debate and review, regardless the lack of interest the Judiciary has to open their eyes to the unfavorable weather.
Either the solution after the Articles of Confederation -- that is, our current, not necessarily final or last, Constitution -- still has not addressed this federal governance issue; or there is something that our current federal oversight system has not adequately addressed because there is inconsistent enforcement of the warrant requirement at the local, state, and federal level. Something isn't adding up.
That deserves judicial review and Youngstown shows us that the US government -- and President -- can be subject to judicial review during wartime. We see nothing before us that suggests Youngstown has been trumped by "state secrets". Rather, the Constitution remains a binding object of the oath: To defend the same from domestic threats collecting without a required warrant, cell phone location data through NYPD to ODNI, Congress and the White House.
Federal Government Workaround: Federal/ODNI Method to ByPass Local Officials Attempting to Enforce Warrant Requirement
We don't see anything that would prevent local law enforcement in one state getting contacted to monitor cell phone location surveillance in a (different) jurisdiction that refused to conduct this type of surveillance; or for federal intelligence to by-pass local jurisdictions that attempted to enforce the warrant requirement, and seeking NYPD-like assistance to conduct the primary surveillance outside the primary NYPD-jurisdiction.
However, one of many problems is that there are dubious exceptions to the Constitution which take us down the path to tyranny. DOJ OLC and their enablers within the intelligence community embrace (1) secret cooperation related to unlawful surveillance; rather than (2) a public review in court of the federal process to collect the fruits of that unlawful, warrantless surveillance.
Conversely, it remains to be understood how federal dollars were awarded -- or denied -- based on a local law enforcement unit's cooperation or non-cooperation with the questionable intelligence gathering orchestrated through ODNI via the cell phone location tracking.
There is a legitimate constitutional question related to federal policies to collect information from local law enforcement. There appears to be a problem between the supposed lessons of 9-11 and the Articles of Confederation and what the federal government is directing local law enforcement to do.
These issues have bearing on other federally-directed programs above and beyond what the NYPD is doing to bypass judicial review and Constitutional requirements in additional domestic intelligence programs.
The ACLU shared important information about questionable cell phone tracking information which appears outside what the Supreme Court would permit re the GPS. Although Jones narrowly applied to government supplied GPS equipment, it remains an important benchmark for how far DOJ OLC will go to derail judicial review of cell phone tracking.
Congress appears to have sponsored, enabled, or not adequately compelled a coherent federal policy on local law enforcement contributions to federal intelligence efforts. This state of affairs does not appear to reconcile with the federal interests the Framers enshrined in properly aligning federal power with federal policies on the states.
The public is encouraged to carefully review how the ACLU-published cell phone tracking data squares with the NYPD-CIA domestic surveillance. The constitutional questions appear larger, more pervasive, and of DOJ OLC interest to thwart judicial review.