A Stitch in Haste

Not to gloat or anything, but I was, to the best of my knowledge, the first to raise, in the context of the warrantless wiretapping scandal, the specter of Kyllo v. U.S., 533 U.S. 27 (2001), in which the Supreme Court held that law enforcement may not, without a warrant, use thermal imaging technology to "peer inside" homes (i.e., to detect special heat lamps used to grow marijuana indoors).

I explicitly noted that although Kyllo was not specifically on point in "snoopgate," the analytical framework (i.e., that the government may not claim that "mere" technology is somehow "exempt" from the Fourth Amendment) was nevertheless apropos.

Well, scratch the "not specifically on point" part:

Clandestine FBI and Energy Department teams have monitored private property in the United States for signs of radiation without warrants, U.S. officials said yesterday.

Officials said the monitoring, which intensified after the Sept. 11, 2001, attacks, did not require warrants or court orders because it took place from publicly accessible areas or from parking lots or driveways leading to private facilities, which the FBI believes do not carry privacy protections.

Wrong. Not just wrong, but "flunk the final" wrong. No one could possibly read Kyllo and think this was permissible. Not even close.

I can think of only three possible partial defenses to this practice:

1. Kyllo specifically referred to homes. It was fundamental to the Court's analysis. It is therefore possible that searches of non-residential areas might — might — not be covered by Kyllo. I leave to others the question of "What reasonable expectation of privacy does a house of worship enjoy under the Fourth Amendment?" (My response, for what it's worth, would be "a lot.")

2. Kyllo concerned the War on Drugs. "Geigergate" concerns the War on Terror. Is Kyllo therefore totally distinguishable? Which brings us right back to the warrantless wiretap scandal: "What is the nature of Article II power, especially the Commander-in-Chief Clause, in time of war against a nebulous entity that is not a nation-state?"

3. "Radiation" is not the same as "heat." If I were a Bush Justice Department lawyer, this would be my plea for mercy.

This story has legs. Stay tuned...

More thoughts at PoliBlog.

---

Strictly as a footnote, Edward Lazarus, a former federal prosecutor, has an outstanding commentary on the warrantless wiretap scandal. Suitable for non-lawyers and therefore a must-read. I concur unequivocally with his analysis.