Spying Feeding Frenzy

In an amazingly influential way, the New York Times article on NSA intelligence gathering last week has touched off a feeding frenzy in the press, where every outlet is rushing to get out their stories about how the Bush administration is violating the rights of average American citizens in their paranoid fantasy about terrorist enemies. The latest entry comes from U.S. News & World Report as they reveal, in news that's sure to shock America, that the government is actually taking concerns about possible nuclear terrorism seriously.
In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned.
(Down at the bottom of the piece, we find out that "officials... reject any notion that the program specifically has targeted Muslims. Which means that they're either lying, or putting political correctness ahead of efficiency.) In any event, this is obviously a bad thing.

Oh, you don't think it's obviously a bad thing? Well, read further.

In numerous cases, the monitoring required investigators to go on to the property under surveillance, although no search warrants or court orders were ever obtained, according to those with knowledge of the program....Federal officials familiar with the program maintain that warrants are unneeded for the kind of radiation sampling the operation entails, but some legal scholars disagree.
Now, if "some" legals scholars disagree, that would imply that others agree, right? Which kind do you suppose get quoted in this piece?

OK, that wasn't a real tough question.

Government officials familiar with the program insist it is legal; warrants are unneeded for monitoring from public property, they say, as well as from publicly accessible driveways and parking lots. "If a delivery man can access it, so can we," says one.

Georgetown University Professor David Cole, a constitutional law expert, disagrees.

For those of you waiting for the quotes from constitutional law experts who agree with the unnamed government officials as opposed to Professor Cole, let me end the suspense now. U.S. News & World Report didn't seem to find any of them. If found, their quotes were not considered newsworthy. (And those of you who might find it relevant that Professor Cole is the legal affairs correspondent for The Nation, and suspect partisan motives as a result, would have to look it up for yourselves, as U.S. News didn't mention that piece of information, either.) In any event, by going to Professor Cole, the story managed to dig up a Supreme Court decision that could be made to sound relevant to the case, and, by implication, impugn the efforts.
Cole points to a 2001 Supreme Court decision, U.S. vs. Kyllo, which looked at police use -- without a search warrant -- of thermal imaging technology to search for marijuana-growing lamps in a home. The court, in a ruling written by Justice Antonin Scalia, ruled that authorities did in fact need a warrant -- that the heat sensors violated the Fourth Amendment's clause against unreasonable search and seizure.
Well, that sounds sort of like what they're doing, although (and to their credit it does get mentioned) it's not really the same thing.
officials familiar with the FBI/NEST program say the radiation sensors are different and are only sampling the surrounding air. "This kind of program only detects particles in the air, it's non directional," says one knowledgeable official. "It's not a whole lot different from smelling marijuana."
Funny that the knowledgable official should use that analogy. Because there's a Supreme Court case that's more recent than Kyllo, that seems to be more relevant, as well. Yet somehow, in their extensive research for the piece, they missed ILLINOIS v. CABALLES, decided just over a year ago, in which the US Supreme Court ruled that
Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. Jacobsen, 466 U. S., at 123. We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.” Ibid. This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that society is prepared to consider reasonable.”
In other words, there can be no legitimate right for a citizen to possess a nuclear weapon, and any search that would reveal only that would not violate any constitutional right to privacy.

And the SCOTUS hadn't forgotten Kyllo - no, as a matter of fact, they mentioned it in the Caballes decision.

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U. S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity—in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
One can assume that Professor Cole doesn't agree with the 6-justice majority on Caballes, but an unbiased news story that mentioned Kyllo would probably not stop there. But it's plain that that, an unbiased news story, is not what this particular piece is...

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