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.

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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.

Imagine if the police showed up in your neighborhood, for no legitimate reason, began wandering onto every private driveway and started sniffing for marijuana.

Then, when asked whether they had warrants for these sweeping incursions onto private property, they informed you that, since driveways are deemed "public access," they in fact do not need a warrant.

Would you commend them for their "constitutional" behavior, or would you be upset and indignant?

Now you know how certain law-abiding people might feel:

Faced with angry complaints, U.S. officials defended an anti-terrorism program yesterday that secretly tested radiation levels around the country — including at more than 100 Muslim sites in the Washington area — and insisted that no one was targeted because of his or her faith.
...
"We have not violated the law; we have not violated the Constitution; we have not gone on private property," [a senior FBI official] said. He said that he could provide few details because the program remains classified but added that the monitoring devices involved were "passive," roughly akin to holding a thermometer out the window of a moving car to measure the temperature.
...
Most of the testing was apparently done from nearby streets. But, according to U.S. News & World Report, in as much as 15 percent of the cases, officials had to go onto private property, such as mosque parking lots and private driveways, to get accurate readings.

Officials involved with the program said no warrants were needed because they were in public access areas.

I of course disagree, for reasons that I explain in this post.

If the government has credible evidence to seek out radioactivity at a particular site, then they should indeed be allowed to test and probe as much as they need to. On the other hand, "credible evidence" is just another term for "probable cause." Go figure.

If one thing is obvious, it's that the answers to these questions about the new disregard for warrants in the War on Terror are not so obvious. Yet at every turn, with every new revelation, there is an increasingly unapologetic smugness in the responses by government officials, who seem more interested in explaining (or simply declaring without explanation) why these actions are (supposedly) constitutional instead of explaining why they're either useful or necessary.

I guess it's simply a new twist on the old quip about lawyering: If the law is on your side, then argue the law. If the facts are on your side, then argue the facts. If neither the law nor the facts are on your side, then play the "War on Terror card" and call those who disagree with you "unpatriotic" or "naive" or "privacy absolutists" or some other gobbledygook.

That's the real "ticking time bomb" in this country.