pageok
pageok
pageok
The "Special Needs" Exception:
In his Slate piece from 2002, Eugene argues that checking radiation levels to avoid a nuclear attack is "just different" from using an infrared device in a routine criminal case. He writes:
  Sure, normally the Fourth Amendment applies equally to all serious crimes, and that's normally right. But finding dirty bombs must simply be different from fighting normal crime. Searches for weapons of mass destruction can't be treated like searches for marijuana-growing devices or even for murder weapons.
  The Fourth Amendment, by its terms, only bans "unreasonable searches and seizures"—and it cannot be unreasonable to examine homes with Geiger counters in order to prevent a city from being rendered uninhabitable by an enemy bombing. Protecting people's privacy is important, and so is constraining government power. But sometimes we need extraordinary government power to protect against extraordinary threat.
  I just thought I would add that there is a Fourth Amendment doctrine that recognizes Eugene's intuition: the "special needs" exception. The idea behind the "special needs" exception is that the government has lots of legitimate interests beyond collecting evidence in criminal cases. When government agents are pursuing those other interests, the warrant requirement is relaxed and the overall requirement is reasonableness. There are a bunch of Supreme Court cases on this doctrine, starting (I believe) with Camara v. Municipal Court in 1967 and receiving more formal attention in cases like O'Connor v. Ortega.

Related Posts (on one page):

  1. The "Special Needs" Exception:
  2. Radiation Surveillance:
  3. FBI Radiation Surveillance Program:
Anomolous:

But finding dirty bombs must simply be different from fighting normal crime. Searches for weapons of mass destruction can't be treated like searches for marijuana-growing devices or even for murder weapons.


Well, being pedantic here, it doesn't seem to me like we should lump "dirty bombs" (dispersal of radioactive material by explosive means) into the WMD category. Would it make good headlines for CNN for a couple of days? Yes. If you don't die in the explosion and you hung around the scene for an extended peroid of time, you might develop radiation sickness (first responders). If you are down wind, you might have an increased risk of developing certain cancers. Your property might become inhabitable. But its hard to see "the terrorists" killing off more that a hundred people with a dirty bomb. Now a fission or fusion device, that's something to be worried about.
12.23.2005 7:03pm
The Original TS (mail):
But you don't really need to evoke such an exception. In fact, it's a needless complication. I think, for reasons I discussed in your original post, that the technology is so disimilar that it barely qualifies as a "search." in any event, measuring radition is certainly not an unreasonable search since it can't really reveal any information except as it pertains to illegal/dangerous activity.
12.23.2005 7:04pm
Dave Hardy (mail) (www):
Thoughts...

Police in Virginia use a "radar detector detector" -- radio receivers in fact radiate radio emissions, and it's tuned to radar detectors' distinctive frequency. Provided traffic is light, they can wait until it signals, then pull over the car that was then passing (radar detectors being illegal in VA, at least 10-15 yrs ago when I first heard of this).

I could see a reasonable expectation of privacy there (few people know this) and in the infrared setting. But I find it harder to see that a person with a bunch of radioactive material has a reasonable expectation that no one will bring a geiger counter within range. The very term radioactive suggests that it is putting out emissions.

(Of course this leads us into the familiar circularity -- if the government announces it is going to wiretap at random, can it defeat any reasonable expectation of privacy?)

BTW, I once knew an infrared expert who sometimes testified (both for defense and for prosecution, I might add -- he was scrupulously honest). He said he'd often caught police playing with the machines. The dead giveaway was when they'd start recording -- house would show no suspicious hotspots -- and then on tape turn up the "gain" (roughly, brightness or sensistivity control) until hotspots showed -- as they would in any house if you run the gain up enough. He attributed it to laziness. Traditionally, you got a lead and then got the guy's utility bills (a basement full of grow lamps uses up a lot of current), compared that to utility bills for comparable homes, etc.. They were finding it easier just to find someone who visits head shops, tail him home, fiddle with the infrared camera, and then get a search warrant.
12.23.2005 7:05pm
pmorem (mail):
One nuclear bomb can ruin your whole day.
12.23.2005 7:20pm
Ron Wright (mail):
The Traditional Law Enforcement/Criminal Justice System Paradigm Is Ill Prepared to Fight this War On Terror

Please excuse me for being redundant but here's a comment I just posted several topics below.

Ron

*****

OK. I've taken a couple of deep breaths. I've been a local LE investigator for almost 35 years (So Cal Agency).

Here's a post I just sent to some of my contacts re this article. I rarely resort to lettered profanity but this just takes the cake.

*****

HT Memoerandum

OK folks this takes the cake. Whatever happened to the saying, "loose lips sinks ships." STHFU!

This is becoming very trite but THIS COUNTRY IS AT WAR!

So what if someone has a radiation monitor in a driveway/parking lot or other generally common public area BFD!

If it was me I would walk around with a personal radiation monitor and pretend to be the "cable guy" or some other suitable ruse to get access where the potential/suspicion that the enemy has secreted this material.

EXCUSE ME - if there was significantly more than a background level of natural radiation I would have every alphabet soup agency converge on the premis like, "stink on poop." I would consider this a genuine "exigent circumstance" under the recognized exceptions to the s/w requirement of the 4th Amendment.

WTF are people thinking. Have they ever watched FOX's 24 Hours to know the iminent threat posed by such material?

I'm sorry this is not worthy of academic debate. Common sense would dictate secure the radiological material and then sort out the pieces later.

This is the danger I've been harping about for two years the traditional LE/criminal justice paradigm [*]is ill prepared to deal with the enemy in the GWOT with regard to rules of engagement.

There comes a point in which the LL, MSM, armchair pundits, and the ivory tower legal eagles need to take a backseat and let common sense reign.

Ron

[*]

The Traditional Law Enforcement/Criminal Justice System Paradigm Is Ill Prepared to Fight this War On Terror -

What Should Our Domestic Rules of Engagement be?

By Ron Wright
August 11, 2004

[...]

Armed Liberal was kind enough to post this as a separate thread after closing another hot discussion thread at Winds of Change:

Here
12.23.2005 7:25pm
Michael B (mail):
"The Traditional Law Enforcement/Criminal Justice System Paradigm Is Ill Prepared to Fight this War On Terror

WTC '93, barely a month into an eight-year presidency, was "handled" almost exclusively within that paradigm. Too, one of the perps of WTC '93 successfully fled to Hussein &Sons's Iraq and the court transcripts of the trial resulting from WTC '93 provided some appreciable insight into what it would require in order to more "successfully" topple the towers. And yet, civil rights were meticulously observed in virtually every detail.

I.e., the prosecution of the WTC '93 perps, at least the ones who were apprehended (in part as a result of their own stupidity), was a stirling success in the eyes of many. Harrumph.
12.23.2005 7:49pm
Legal Thoughts (mail):
This string has deviated a bit from Prof. Kerr's post, so I thought I would get us back on track.

I'll admit that I've never felt comfortable with the "special needs" analysis under the Fourth Amendment. Starting with the Blackmun concurrence in New Jersey v. TLO (which paved the way for the Court's considerably more controversial Earls decision in 2002), the doctrine seems to me to have morphed into a justification for programs that many sensible folks think are required but that implicate important privacy concerns.

My discomfort with the doctrine stems, in large part, from the absence of any practical limitations on it. As Profs. Volokh and Kerr apparently imply in their posts, terrorism (or national security in general) could become the next "special needs" carve-out. If that happens, would the government's ex post invocation of amorphous national security concerns validate an otherwise unconstitutional (read: unreasonable) search? I'm not sure that the government, given its recent behavior, has earned that much trust either from the citizens generally or the judiciary specifically.

In any event, I recall that the en banc Ninth Circuit bandied about some of these concerns in the context of DNA testing in the recent case of U.S. v. Kincade, 379 F.3d 813 (2004). The case raises interesting analytical questions about the boundaries of the special needs exception and the Court's 2001 decision in U.S. v. Knights.
12.23.2005 8:18pm
The Drill SGT (mail):
Anomolous,

WRT a dirty bomb, you left off the lasting impact:

perhaps a square mile of urban area effectively permanently contaminated, a billion plus in economic costs and a major urban area disrupted for a long period of time..
12.23.2005 8:28pm
Brett Butler:
The commentary on this matter seems to assume that radiation detection of this type is a binary check for a nuclear weapon--but most radiation detection is a much blunter instrument, that it may be more likely tell you when a person nearby had cancer treatment than that there's the proverbial suitcase nuke within.

Check out Schneier's cite to this story for an example.

Once there's some plaintiffs, it'll be interesting to test how the Scalia wing of the court will deal with this--Scalia has been critical of Camara for providing for a judicial authorization on less than probable cause, and he also struck the balance in favor of privacy against the Ninth Circuit's heat emanation analysis in Kyllo. If the detection tells too much about people rather than devices, the surveillance may impact the concerns expressed there.
12.23.2005 10:02pm
Anomolous:
The Drill SGT,

Yes, a billion dollars (approx. 0.4% of the cost of the Iraq War so far). Heck, there was a billion dollars was stolen in one heist.
12.23.2005 11:07pm
Ron Wright (mail):
A Case for Transparent Privacy

I would encourage readers to check out my piece re the LE paradigm. Granted, it might be a little rough around the edges for these hollowed halls. It does come from my perspective as a local LE professional who has written over 500 search warrants in his career some of which have included high tech related issues.

It boils down to this, you can't win a war by playing defense. There is no way you can protect all potential targets from attack from all possible scenarios. This results in the under utilization and misallocation of scarce resources. Think "pork barrel" and "gold plated fire trucks" that everyone is trying to get with DHS money.

You must play offense, deploy your resources intelligently, and in all cases engage the enemy.

This is where the traditional LE paradigm breaksdown. This is not a police action where the rules can include the finer points of probable cause. The apprehension and prosecution of the prepetraitors becomes nonrelevant. The mission should be to prevent an attack. The players become insignificant. After all because of the enemy's radical extremist religious cult-like ideology/belief structure, it's agents launch suicidal attacks.

While this is not rational from our frame of reference, it's entirely rational from the enemy's perspective. Think Waco - David Koresh and the Branch Davidians [disavowed sect of the Seventh Day Adventists] and Jim Jones and the Kool-Aid Sect of whatever belief structure. There is no one left to prosecute. Now fuel this with Saudi petrol dollars worldwide in building and supporting radical mosques and madrasses.

The term "first responder" is reactionary/defensive/passive and flawed because it implicitly gives the enemy first strike capability. The mindset should be "first preventers" which conveys an offensive posture to seek out the enemy to prevent an attack. That should be the mission goal.

This is the classical eithical dilemma of the relativistic good of the many vs. the good of the few:

[...]

AQ struck in a deliberate, unprovoked, pre-mediated attack to kill as many people as possible. This was an act of war. This is a war we cannot lose against a nontraditional enemy, which is stateless, and wears no distinctive military markings. This enemy seeks the violent overthrow of our government. These are not normal times. Once this is understood, then appropriate rules of engagement can be formulated while still protecting individual citizens' rights.

[...]

The traditional law enforcement/criminal justice system paradigm is ill prepared to counter this new threat. AQ terrorists are not typical crooks but an embedded enemy poised ready to strike again. Our domestic criminal justice system by nature is reactionary and not preventative. Law enforcement's primary mission must now be to prevent, deflect, or preempt a strike. The arrest and prosecution (a misnomer) of the perpetrators is secondary. To concentrate on the latter, may preclude the first, which is not an option. Conventional weapons strikes while destructive are trival when compared with the unimaginable horrors of a WMD strike (e.g. bioterrorism hit). The panic and terror following such a strike could cause governmental instability. The FOX Network's series, 24 Hrs, whose scenarios while fictional are realistic examples of WMD attacks. They give a sense of urgency to law enforcement's new mission.

[...]

Once the ends of this Islamofascist enemy are understood, I'm sure our courts will give law enforcement considerable flexibility and latitude. This Country is as war. A clear and present danger can be demonstrated to invoke the exigent circumstances exception to the Fourth Amendment prohibition against search and seizure without warrant. [ed note: Think WMD, bombs, and bio-chem]. It's no big secret that al Qaeda has gone high tech and taken this war into cyberspace. AQ is now using cyberspace for command and control, propaganda, and recruiting purposes. AQ has uniquely co-opted the media with heinously barbaric vile forms of visual terrorism to strike fear in our hearts.

[...]

Our enemy is exploiting our tolerance and respect for individual rights, religious freedom, and other cultures. This is the classical ethical dilemma, of the relativistic good of the many vs. the good of the few. Collectively we must defend our Country against this foreign enemy that has infiltrated our society while at the same time striking a fair balance to protect the individual rights of the few. Given our Country must survive to protect the rights of the few, this in this unique circumstance:

[...]

I don't for a minute believe our founding fathers intended to extend the constitutional rights of U.S. citizens to a hostile embedded enemy, which seeks the violent overthrow of the government. The preservation of the Nation must come first. Collateral intrusions into the personal privacy of a few should not be a bar to actively pursing the enemy. Unrelated criminal activity inadvertently discovered while pursuing the enemy should continue [to] receive the protection of the Exclusionary Rule.

The sooner we get our collective act together and the American People unite both left and right to crush this enemy of Islamofascism, the less lives will be lost will be lost in the process.

[...]

[See link to WoC above]

There is historical precedent. See this excerpt from a letter by President Abraham Lincoln to his critics during the Civil War:

[...]

I can no more be persuaded that the government can constitutionally take no strong measure in time of rebellion, because it can be shown that the same could not be lawfully taken in time of peace, than I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown to not be good food for a well one.[My emphasis] Nor am I able to appreciate the danger, apprehended by the meeting, that the American people will, by means of military arrests during the rebellion, lose the right of public discussion, the liberty of speech and the press, the law of evidence, trial by jury, and Habeas corpus, throughout the indefinite peaceful future which I trust lies before them, any more than I am able to believe that a man could contract so strong ! an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life.


[...]
Link

[From a lenghtly discussion thread at Winds of Change with links to other discussion sites]

While President Bush has made big mistakes and other blunders along the way, the consequences of not acting would have been far greater. See the piece by Victor Davis Hansen I linked to re the blunders on D-Day in WWII. We should crack our history books from time to time. Our enemy is an astute student of our history.

For those who would ask why didn't President Bush follow the provisions of the FISA Act, I would offer the same findings that all the 9/11 commissions found as the causal factors of why our domestic intel agencies failed to detect the attack. In several words this was due to bureaucratic inertia, organizational terf wars, lack of immagination, creativity, innovation, and above all risk aversion. Mind you we have currently an all out war between the CIA and the Office of the President while we are at war!

For the inner workings of FISA, see this piece over at Strata-Sphere:

FISA Court - "Speedy" as Molasses!

HT Strata-Sphere

[...]

A great piece over at Strata-Sphere about the mechanics of the FISA court and the LL's and MSM's meme about it would be simple to comply with the law.

In peace time perhaps but in time of war with this enemy we are now engaging, it's "pie in the sky" idealism. The enemy is free to shove it up our "as--" where the sun doesn't shine, multiple times before the process can cycle once!

The reality is the process is very slow and has built in bureaucratic stagnation and risk aversion.

This is a must read about the "speedy" process of the FISA Court. Speedy is damn right - like molasses on a cold winter's day!

In the federal frame of reference I guess this is a swift flowing river.

Unfortunately the enemy's decision making cycle is probably well over 1 ghz faster.

[...]

Here

Don't get me started on the topic of dirty bombs, AQ and our open Southern Border.

A teaser. Think the Port of Long Beach, a small terror cell with a small dirty device. Strike from the interior using a truck, container, RR car et al. Get device into the port and detonate with convential explosives. The economic impact of shutting this port down temporarily would be $35 Billion to the US economy. We're not talking liquor store robberies.

And of course there is always the low-tech bio-chem weapon that the English used against the French in the French Indian Wars in the 1700s - smallpox. Move forward to our time. Think infected suicidal delivery agents mingling with illegal immigrants waiting to cross our border. My guess is it wouldn't be until third generation cases would it be detected. Our public health delivery system would be overwhelmed and fail. CDC's current ring containment response would be a day late and a dollar short. The disease would have to run its course in the unvaccinated population until new vaccinations took hold.

Read More

Here

And finally let's not forget the cauldron being brewed by the Mad Mullahs' of Iran if we're talking doomsday weapons of Armageddon. There has been a recent shift in their strategic foreign policy from one of talk-talk tan-tan (Maoist strategy for stalling for time). Makes me think the Mullahs may be closer to having a few tactical nukes than they're given credit for. Why switch when you have a good thing going with the EU appeasers.

A rare but really scary possibility. Scenario - small tactical nuke (courtesy A.Q. Kahn), delivered by a Scud (ala our friends the Chinese and the Norks), ship launched/lobbed from one of AQ's navy of junk cargo ships (There are approx 15 plying the seas), up over the Northeastern United States at around 100km (the Iranians have been activily test firing over the Caspian Sea. The Scuds seem to self-destruct in midflight. Nah!)

The loss of life from the initial blast would be minimal but the resultant electro magnetic pulse (EMP) has been hypothosized would take out the power grid that is marginally stable on most days. It would take days to restore the grid because of damaged transformers/switches. This is longer than most emergency power generators would have fuel to run. This would cascade into other necessary infrastructures that our high tech society depends on to function. Need I mention Katrina?

Anyone of these could literally destablized our government and society. Now you tell me whether a little transparent privacy is in order here until we can wipe this ideology of hate and evil from the face of this earth?

OK I'm done now.

Ron
12.23.2005 11:31pm
Defending the Indefensible:
Ron,
I don't think we need a Ministry of Pre-Crime.
12.24.2005 12:28am
Apodaca:
Personally, I don't think one needs to invoke the "special needs" doctrine to engage in warrantless radiological monitoring. I think it likely that the technology used meets the Kyllo exception for devices in general public use, and I agree with the observations made elsewhere that the degree of intrusiveness is much lower than with FLIR (which can potentially reveal body shapes/orientation).

That said, "special needs" has become IMHO the last refuge of any scoundrel seeking to invade a Fourth Amendment interest. Fortunately, SCOTUS put a leash on this doctrine in Ferguson v. City of Charleston (2001).
12.24.2005 8:57am
kien:
I'm with DtI. With all due respect, Ron, it seems to me that you're accomodating the goals of AQ quite well.

Back OT, I don't see a problem with radiation monitoring devices at all.
12.24.2005 9:05am
Soldier's Dad:
Being a simple citizen, I fail to see how measuring for radiation is any different than measuring air quality or water quality. Regardless of the criminal aspects, the presence of a radiological device presents an enormous public health concern.

Last I knew, the EPA doesn't get a search warrant to measure the quality of the water running off a property or the quality of the air blowing from the direction of a factory, or for that matter, the level of sound emanating from a Rock Concert.
12.24.2005 10:07am
Pierre Owner Bouncer Pink Flamingo Bar & Grill (www):
My interest lies in the sort of punishment availible to the government for those who leak top secret programs during wartime. I imagine that had some disgruntled government employee divulged the secrets to our code breaking efforts of WW2 that it would have been hard to keep him from the Electric Chair. Where do we stand nowadays, in our new enlightened era where one disgruntled employee can endanger, literally the lives of millions?

Thanks for any information
12.24.2005 10:10am
PantsB (mail):
"I imagine that had some disgruntled government employee divulged the secrets to our code breaking efforts of WW2 that it would have been hard to keep him from the Electric Chair. Where do we stand nowadays, in our new enlightened era where one disgruntled employee can endanger, literally the lives of millions? "

That happened and no one was charged (including the Naval officer who was their source). After the Battle of Midway, the Chicago Tribune reported as part of their dispatch that the US had broken the Japanese code, allowing them to know the enemy's plans (which they did). No one in connection was indicted let alone put to death.
-------
"Being a simple citizen, I fail to see how measuring for radiation is any different than measuring air quality or water quality. Regardless of the criminal aspects, the presence of a radiological device presents an enormous public health concern. "
Since the reports indicate an accurate reading required entering private property and places were searched on a more than daily basis (and only a small subset of the actual structures in an area were searched) I don't think this can reasonably be justified as "Special Needs."

The Kyllo case doesn't differ signifigantly from this one. You can replace infrared device with geiger counter in that decision and the decision would not change in meaning. In fact, the minority opinion which based itself on the fact that a normal person might be able to discern from outside the property the heat level and that the device only looked at "off-the-wall" radiation would be weakened much more than the majority decision.
12.24.2005 10:42am
Pierre Owner Bouncer Pink Flamingo Bar & Grill (www):
Well there goes that assumption...thanks for the information!

Do we have any reason to believe that the punishment has gotten more serious or less?
12.24.2005 11:11am
Justin (mail):
I submit that this seems closer to special needs than Ron's "if you invoke the magic words the Constitution just disappears" approach.
12.24.2005 11:34am
Publis:
Well Ron, we could each give up some freedom, or we could eliminate about 95% of the threat by not granting visas to people from Muslim/Arab countries and tightening up border security. I know what I prefer.
12.24.2005 11:36am
Frank Drackmann (mail):
Whos going to drive the cabs in DC?
12.24.2005 11:44am
dk35 (mail):
Barron's online has a great editorial regarding why strict constructionists should be supporting impeachment.
12.24.2005 12:24pm
owlbear1 (mail):
50 years of Communist threat, Thousands and Thousand of Multi-Megaton warheads. Warsaw Pact, Soviet Red Army.

And Georgie trashes the Constitution because 19 men crash four planes?

That is the definition of Cowardice and Incompetence.
12.24.2005 1:05pm
Brian G (mail) (www):
How dare Bush try to prevent a nuclear attack without the permission of some judge? Doesn't he know that it is judges who rule this country, not him? Seriously, this is what I expect from the President. The anti-Bush idiocy is astonishing, and it is all from the same people who thought that 1 sentence, "bin Laden determined to attack inside the U.S." constituted 100% irrefutable proof that Bush knew that 19 guys were going to hijack airplanes on 9/11/01 and crash into buildings.

As for the genuis right above me, if you think that these types of measures weren't taken by Clinton, Bush Sr., Reagan, Carter, Ford, Nixon, LBJ, Kennedy, Eisenhower, Truman, and FDR in response to the Communist threat etc, then you are a sad, delusional fellow. The only difference is today is that the CIA and State Department no longer work for our country, they work against it, and the news media hate America more than ever, and just can't wait to report everything that makes America look bad. (Of course, that doesn't apply to Democratic administrations)

Trashes the Constitution? I feel sorry for you if you believe that. You probably believed every word of the guy who said he was visited by the Feds after taking out Mao's Little Red Book too. The definition of "Cowardice and Incompetence" is the failure to do anything out of fear of what a Carter-appointed judge might say. Kind of like Clinton and every liberal European leader who appeases Iran.
12.24.2005 3:26pm
Neal Lang (mail):
I.e., the prosecution of the WTC '93 perps, at least the ones who were apprehended (in part as a result of their own stupidity), was a stirling success in the eyes of many. Harrumph.

On the basis of the President's charge in the 2001 Approval to Use Military Force resolution (a.k.a. the War on Terror) the results of the 1993 WTC bombing is a total failure. You are attempting to compare a police investigation and prosecution, after the fact, with a proactive campaign to stop terror before it takes place. The successful 1993 would be rightfully considered a failure were it occur today. Harrumph, indeed!
12.24.2005 5:45pm
PersonFromPorlock:
Assuming that the government managed to tie itself in knots over this, would there be any reason why a Minuteman-style civilian organization couldn't do radiation surveillance on its own?
12.24.2005 5:45pm
DougA (mail):
This piece might interest you.

NRO link http://tinyurl.com/84tlv

Which sites Illinois vs Caballes

Findlaw link http://tinyurl.com/56hav

Justice Stevens writing the option for the majority (O'Connor, Scalia, Kennedy, Thomas, and Breyer, Rehnquist did not take part, Souter and Ginsberg dissenting)

"Accordingly, the use of a well-trained narcotics-detection dog—one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U. S., at 707—during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement.

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."
12.24.2005 6:01pm
Neal Lang (mail):
That happened and no one was charged (including the Naval officer who was their source). After the Battle of Midway, the Chicago Tribune reported as part of their dispatch that the US had broken the Japanese code, allowing them to know the enemy's plans (which they did). No one in connection was indicted let alone put to death.

In 1942, the feud with FDR took a dramatic turn following a sensational Tribune scoop. An account of the battle of Midway gave evidence that victorious U.S. Navy commanders had known of the Japanese battle plans in advance--possibly by breaking their codes. The story, which ran unvetted by Navy censors, caused a furor: FDR threatened to send Marines to occupy Tribune Tower, then pushed the Justice Dept. to indict his bitter foe under the Espionage Act. But the Navy's reluctance to publicly discuss code-breaking led, in the end, to a dismissal of charges. For the President, it was a brutal defeat--compounded by the success of the Tribune, which that year had a circulation of one million. From: THE COLONEL - The Life and Legend of Robert R. McCormick - By Richard Norton Smith

Now you know the rest of the story. Perhaps President Bush should have the Marine occupy the offices of the New York Times until the successful conclusion of the War on Terror.
12.24.2005 6:06pm
Neal Lang (mail):
I don't think we need a Ministry of Pre-Crime.

Who do you suppose will prevent the terrorism before it can happen?
12.24.2005 6:11pm
Neal Lang (mail):
Yes, a billion dollars (approx. 0.4% of the cost of the Iraq War so far). Heck, there was a billion dollars was stolen in one heist.

A mere pittance when compared to the 10s of billions stolen from the straving Iraqi kids through the "Oil for Food and Bribes" Program by the Coalition of Weasles who were attempting to prop-up their favorite tyrannt, Saddam Hussein and his demented sons.
12.24.2005 6:22pm
Hamilton Lovecraft (mail):
Neal Lang:

Answer honestly: You started caring about starving Iraqi kids...
(a) Before August 1990
(b) Before October 1997
(c) Before September 2001
(d) Before March 2003
(e) After March 2003
12.24.2005 6:33pm
Henry Bowman:
The NY Times quotes an FBI official [speaking on anonymity, of course; don't they all]:


"If you can go drive a car into the parking lot near the shopping mall, we can go there," he said. "It's nothing intrusive. We're not searching into a particular building, just sniffing the air in the area."


This, if true [do FBI folks ever lie?], would make the whole matter seem pretty benign. Gamma-ray "sniffers" are basically air samples, although they can be exceptionally sensitive, depending upon which model is used.
12.24.2005 6:42pm
Paul Dietz (mail):
Gamma-ray "sniffers" are basically air samples

No, they have nothing to do with air sampling. They detect photons emitted by a remote source, not radioactivity of isotopes carried in the air. If they were the latter, they could be easily foiled by hermetically sealing the source.
12.24.2005 7:05pm
jrose:
DougA,

I emailed Orin about Caballes. His reply:

"I don't think that argument works. Radiation isn't contraband. Radiation is everywhere, and it's not illegal per se to possess things that emit radiation"

I don't know if Orin is correct on the science. But if he is, then Caballes wouldn't apply.
12.24.2005 7:36pm
Neal Lang (mail):
Answer honestly: You started caring about starving Iraqi kids...

I have also cared about straving children. Why? When did you?
12.24.2005 8:23pm
Neal Lang (mail):
Should read:
I have always cared about straving children. Why? When did you?
12.24.2005 8:26pm
DougA (mail):
Of course it is not illegal but it is highly regulated. Without proper license, it is illegal to possess certain radioactive sources. Legal radioactive sources have to be shielded or in other words need to be limited in the amount of radiation that is released to the environment. To exceed these limits would be a violation of its license.

In the Caballes case, the substance was marijuana. It is not illegal to have marijuana if you have the proper license. In the thermal imaging case, just emiting more heat from a house or room gives no indication if the activity is legal or illegal. Caballes basically says that the presumption is that the possesion of marijuana is illegal to begin with unless you can show otherwise.

I would guess the detectors they are using are able to find certain types and levels of radiation that would indicate the source is either a legal device that is violating its license or an outright illegal source.
12.24.2005 8:39pm
Henry Schaffer (mail):
"Radiation isn't contraband. Radiation is everywhere, and it's not illegal per se to possess things that emit radiation"

"Radiation" includes heat and light as well as ionizing radiation such as the gamma radiation discussed above. Radioisotopes are the usual source, and posession of significant quantities is heavily regulated (by the NCR, EPA, DOE, DOT, and perhaps others. See, e.g. NCSU's Radiation Safety page for more information on regulations. To possess enough gamma-emitting material inside a building that its radiation is detectable (above normal background variation) from outside surely crosses into the arena of being subject to substantial regulation.

I.e., I don't think we're talking about a glow-in-the-dark watch/clock dial or gun-sight, although note that these generally contain Tritium, which is a Beta emitter. (The original type of watch dials used radium which does emit Gamma radiation.)
12.24.2005 8:53pm
B Dubya (mail):
How about a little science in the discussion..
If I am looking for radioisotopes of the fissile persuasion, then I am going to use a detector that is tunes to the energy of the particle emmitted in the natural decay of the isotope. Even though there is natural radiation all around us, the presence of, say, 5 kilograms of plutonium would leave a specific radiation signature. If your neighbor is building a dirty bomb, and he decides to use cobalt 60 as the main contaminant, the technology exists to detect that material from a considerable distance because it emits a very highly energetic gamma that is unique to Co60.
Frankly, I'd like to know if somebody has a fissile nuclear device hidden in their basement, or if they plan on distributing a lot of highly radioactive material via a chemical explosion in my neighborhood.
12.24.2005 10:07pm
Ron Wright (mail):
A follow-up comment

Pulbis - I'm with you regarding the border. PersonFromPorlock - I'm down with citizen patriots filling in where appropriate to defend this Country against enemy attack. Perhaps this is the true meaning our founding fathers intended with the 2nd Amendment?

Neil Lang you're too much of an out-of-the-box thinker. Your fired! See my post re The New French Connection re the UN Oil for Food Scandal.

B Dubya and Henry Schaffer you just make too much common sense in this serious legal debate. You too are fired! Yes, it's all about detecting gamma rays [particle or wave?:—)]. If you want a reasonable expectation of privacy then shield your stash! Gee, do the Mad Mullahs' of Iran get the same protection while making their bombs under the noses of the IAEA.

OT - Our "PCism" is going to catch up with us.. Until just recently we we're cite/releasing "other than Mexicans" (OTM) into our immigration courts. A good percentage of the OTM simply failed to appear and went underground. It was only after a ruckus was raised by Michelle Malkin, John and Ken (LA KFI640 Talk Radio) and others did the DHS begin to screen OTMs against the watch lists before cite/releasing them. DAH!

Do you suppose AQ is aware of this? Furthermore do you suppose AQ would send agents in it knew were on any of the watch lists? AQ et al generally uses newbies anyway. The watch lists are problematic at best. I have firsthand experience with ICE a couple of years ago and I'm a first responder. I hope they have improved. The lists often generate more frustration with the traveling public than deterring or capturing any real enemy agents. I won't touch on the policy fallacy of harassing old ladies from Pasadena at airport gates and the billions we are spending to do this. These measures only provide a false sense of security. AQ does not operate in a vacuum and most assuredly will change its manner of attack.

See this piece at The Strategy Page:

Here

I should make it very clear. I'm not advocating throwing the baby out with the wash re probable cause and the 4th Amendment. Nor I'm willing to grant the government a blank check to carve out new territory in the exigent/special circumstance exception. I too am wary of unchecked governmental authority.

The intent of my hyperbole is to interject some common sense and "out-of-the-box-thinking" into these policy and legal debates in light of the high stakes nature involved in the GWOT aka War On Islamofascism.

The Strategy Page recently had an excellent column by Austin Bay that was directly on point that I forwarded to some friends:

To Fix Intelligence, Hire Artists and Fire Bureaucrats

HT Strategy Page
.
Bay's column succinctly distills what's wrong with our current intelligence gathering abilities. Our current governmental bureaucratic structures stamp out any creativity, imagination, and risk taking within our domestic law enforcement communities.

The former speaker of the House [Newt Gingrich], testifying on Oct. 19, focused on American intelligence performance and organizational flaws. These are abundant, abysmal and, as we know from both Pearl Harbor and 9-11, potentially fatal.

Gingrich says, bluntly, "The nation's intelligence system is broken, and we cannot rest until we fix it." He suggests measures that reward intelligence success and penalize failure. Given Washington's bureaucratic and political impediments — turf wars, ego-crats, electioneering, etc. — merely reorganizing intelligence agencies and creating a new intel czar doesn't solve fundamental problems.

[…]

"major organizational change (in the intel community) is not the salvation. I would submit the real challenge lies in recruiting, fostering, training and motivating people with insight."


Read More

Here

My goal here is to bring online the tremendous, collective, creative, genus and power of The Blogos [e.g. Hugh Hewitt].

The purpose is to answer fundamental questions regarding what governmental intrusions are necessary re the right of all American citizens to a reasonable expectation of privacy vs. the relativistic need of this Country to defend against an embedded hostile enemy intent on its destruction.

This is getting rather long winded so I break here and let this digest a while.

TO BE CONTINUED
12.25.2005 12:18am
Mobius (mail):
If your neighbor was dumping hazardous waste, would you not want the government testing? Just like a property owner does not have an absolute right to pollute his land neither does someone have the right to possess nuclear material on their property.

If the EPA can do air surveys, water surveys and other tests to identify who is polluting, why can't the government also test the air for radiation?

This is a public health and safety issue, not a civil rights issue.
12.25.2005 1:20am
Ron Wright (mail):
Great Mobius!

This is actually the dilemma of the "tragedy of the commons"
and the justification for government to exist in the first place.
12.25.2005 1:46am
Defending the Indefensible:
Ron:

"the right of all American citizens to a reasonable expectation of privacy vs. the relativistic need of this Country to defend against an embedded hostile enemy"

First off, you would perhaps have more credibility if you didn't try to puff up your language. "Relativistic" is not the same as "relative."

Secondly, it is not the expectation of privacy which must be reasonable according to the constitution, but searches themselves. The difference is important, let me try to give an example. If the state says, point-blank, "We are going to wiretap all phone conversations from here on out," a reasonable person would expect his or her phone conversations to be listened to. Therefore, the reasonable expectation of privacy has been destroyed. However, this is not a reasonable search, as it makes no differentiation between those who probably are or who probably are not engaged in criminal (including terrorist) activity. As such, it would be unconstitutional.
12.25.2005 8:30am
Milhouse (www):
I think Orin's missing an important distinction with Kyllo. When Scalia wrote that infrared surveillance would show the lady of the house taking a sauna, I don't think that was just an example picked at random. That example goes to the essence of the sort privacy the 4th amendent was intended to protect. Even if radiation detectors could potentially pick up traces of non-contraband, they're not things the ordinary person would mind others knowing about.
12.25.2005 9:31am
Ron Wright (mail):
Defending the Indefensible,

Point taken re relativistic vs. relative. I probably got a little carried away. My reference was to Ethical Relativism

Reasonable - Yes. I think the general phrase is "unreasonable searches and seizures." This would include both and not just one or the the other. The search must be legal on its face and then the subsequent seizure must be reasonable. The later generally comes into play when forcing blood from an individual is refusing and there is a legal right to take it.

With that in mind I was actually seeking debate on what is "reasonable" in time of war. Do we fight a war based on case law? What moral moral beliefs/standards are we willing to flex temporarily to win the war? We will not tolerate torture or inhumane treatment of prisoners but passive monitoring gamma radiation is a reasonable intrusion into the general expectation of privacy during wartime but not during peace?

Actually my piece on the LE paradigm was to challenge the law enforcement community on issues dealing with cyberspace as the enemy is waging the war there. The enemy as noted above is definitely using cyberspace as "battlespace." We need to counter and take strategic advantage.

My analogy is would we give up air superiority over the battlefield. The simple answer is HELL NO!

Unfortunately case law in this area is almost nonexistant. That's the direction I was seeking and will pose in my next post.
12.25.2005 10:54am
Defending the Indefensible:
Ron:

What moral beliefs/standards are we willing to flex temporarily to win the war?

For myself, none. To surrender morality in order to "win" is to lose oneself, to become that which you despise.

Indeed, it is far worse and more dangerous to allow the US government to engage in criminality than the risk of external terrorists, because there is no real constraint (other than morality, which if your formulation is accepted, may be set aside as deemed necessary) on their ability to do harm to America.

If warrants need to issue or laws need to be changed, then pursue such changes as may be needed, and explain to the courts and the congress the reasons for them. Do not ever allow unchecked executive authority to occur, because there is no stopping point. I would not accept dictatorship as the price of security, but this is precisely what is being offered -- even if it is a soft-dictatorship for now, which impinges little upon most of us.
12.25.2005 11:35am
Apodaca:
Milhouse writes:
Even if radiation detectors could potentially pick up traces of non-contraband, they're not things the ordinary person would mind others knowing about.
So long as the noncontraband "things" are actually held private from others, SCOTUS precedent suggests that they are within the protection of the Fourth Amendment. Case in point: if the police secretly install a radio transponder in a package, such that the transponder emits a radio signal when the package is opened, then monitoring for that signal without a court order infringes a Fourth Amendment privacy interest because it reveals private activity within the home. See United States v. Karo, 468 US 705 (1984).
12.25.2005 11:42am
Horatio:
Neal Lang writes:
I have always cared about straving children.
The word is spelled "strafing."

HTH. HAND.
12.25.2005 11:49am
Defending the Indefensible:
Milhouse:

Even if radiation detectors could potentially pick up traces of non-contraband, they're not things the ordinary person would mind others knowing about.

It has been mentioned here several times that some people undergoing radiotherapy for cancer may be detectable, and there are few things considered more entitled to privacy than medical conditions especially where there is no risk of contagion.

It is also important to recall that the government has admittedly been trespassing onto private property to conduct their radiological surveillance, it is not merely from the street. While it may be absolutely reasonable and necessary to conduct these sorts of scans, these arguments *should* be made to an appropriate court and not undertaken by sheer executive fiat.
12.25.2005 11:58am
Henry Bowman:
From the recent posts and comments, seems to me that Evgeni should subtitle the blog "Supporting Big Bro' at all costs!".
12.25.2005 1:43pm
Humble Law Student:
MERRY CHRISTMAS!!!
12.25.2005 2:56pm
Dave Hardy (mail) (www):
My interest lies in the sort of punishment availible to the government for those who leak top secret programs during wartime.

I think it's called the Pulitzer.
12.25.2005 5:51pm
Ron Wright (mail):
MERRY CHRISTMAS TO ALL AS WELL!!!

While we celebrate the holidays this time of year, go about our busy schedules and find time to debate these issues, take a moment to remember some special folks as well.

Our brave men and women in uniform defending our Country against an enemy that seeks our destruction. Our service personnel are fighting the fight to protect these freedoms we hold dear.

They are other totalitarian regimes in this world that do police the Net and Blogos and jail those who have thoughts not permitted by the ruling Theocracy (e.g. Iran). The Mad Mullahs of Iran are actively filter/block/ and shut access to the outside world because they are afraid of the truth.

Mullahs versus the bloggers

Mullahs versus the bloggers

Ben Macintyre

The explosive growth of youthful, irreverent online diaries has alarmed Iran's hardline Government
THE MUSIC OF Eric Clapton was banned in Iran this week. Broadcasters were ordered to cease playing "decadent" western songs and stick to "fine Iranian music". Not content with denying the Holocaust, Israel's right to exist, and advertising hoardings featuring David Beckham, Iran's hardline President, Mahmoud Ahmadinejad, has now denied his people the chance to listen to Layla — cruel and unusual punishment indeed.


If you would like to help to tear down these walls go over to Dr. Zin's site Regime Change Iran and spread the word. The Mullahs can block the entire net.

http://regimechangeiran.com/
12.25.2005 5:53pm
Splunge (mail):
Argh, what a shame lawyers in general know so little about physics! B. Dubya has the critical point: if the government is going to efficiently and effectively look for substantial amounts of fissile material -- which, of course, it is wildly illegal to possess -- they are going to look for a particular wavelength of gamma radiation.

That is, this case is utterly unlike the use of a an IR scanner, radar detector, or camera. Unlike the latter forms of surveillance, there is zero chance looking for fissiles by detecting gammas could infringe on someone's right to privacy while engaged in some legal activity, because there are no legal activities that generate the correct frequency of gamma rays.

This is really no different from the right of a policeman while walking past an elementary school to listen for gunshots. Any detection at all raises such an immediate and compelling suspicion of wrong-doing that no reasonable person (who understands physics, that is) could doubt the government has the right to investigate further.
12.25.2005 5:54pm
John Lederer (mail):
"Indeed, it is far worse and more dangerous to allow the US government to engage in criminality than the risk of external terrorists"

Unless, of course, the terrorist kills you.
12.25.2005 10:38pm
topcat:
I think many of the distortions in this debate are the result of our assinine war on drugs; but for the problems caused by pursuing victimless crimes that ordinary feel no objections to facilitating, we would have clearer lines of debate on this issue.
12.25.2005 10:39pm
Ron Wright (mail):
"What would Lincoln do? What Lincoln did."

HT Poweline

Thoughts re what a great US President did.

December 26, 2005
What Kuttner could learn from Lincoln

On Saturday in "Thinking about the Great Liberator" I wrote a little on Lincoln's exercise of the commander-in-chief's war powers during the Civil War. Wielding Lincoln as his club, left-winger Robert Kuttner coincidentally attacked President Bush in a column for the Boston Globe on Sunday: "What Bush could learn from Lincoln." At Discriminations, John Rosenberg commented on Kuttner's column: "What would Lincoln do? What Lincoln did."

My point was that Lincoln's construction of the war powers of the commander-in-chief belies much of the silly commmentary by liberals like Kuttner on Bush. I would enjoy reading Kuttner on Lincoln's defiance of Chief Justice Taney's order to free John Merryman on the ground that Lincoln's suspension of habeas corpus was unconstitutional. Lincoln respectfully disagreed and declined to honor Taney's order. I hope Kuttner will get around to writing such a column someday; he might learn something if he studies up enough to write it.

Lincoln enunciated his understanding of public necessity enhancing the constitutional powers of the president during wartime on many occasions, perhaps none so memorably as in his letter to Albert Hodges on the Emancipation Proclamation. Read and learn from America's greatest, most influential interpreter of the Constitution:

[...]

Read More

Here
12.26.2005 10:43am
Defending the Indefensible:
John Lederer:

"Indeed, it is far worse and more dangerous to allow the US government to engage in criminality than the risk of external terrorists"

Unless, of course, the terrorist kills you.

Indeed, but the odds of my being killed by a terrorist are rather slight, and the danger of the unchecked executive are demonstrably worse. I certainly don't contend that there ought not to be steps taken to defend against terrorism, only that such steps be in conformity to the law. Is it so much to ask?
12.26.2005 11:34am
vader (mail):
If I was of the terrorist bent, first of all I would create distrust of the government by its citizens and over reaction by its leaders and maximize damage.

I would simply place lots of samples of materials that are very small and easily hid that are alpha/beta emitters and place them on random autos, trucks, cargo cantainers and the like. Say a magnet with a small sample attached stuck to random cars at a air port parking lot, sports stadium parking lot or the like.

Maybe even balloons with samples attached released-"Party City" stores have baloons and helium.

The 'real' stuff could be well shielded. I understand that human skin is sufficent to block the radiation from plutonium, much less lead or other metal foil. http://en.wikipedia.org/wiki/Plutonium http://www.epa.gov/radiation/radionuclides/plutonium.htm

In theory, sufficent plutonium to shut down a major water supply say to New York City, could be swallowed by a mule, like drugs are smuggled and carried into the US.
12.26.2005 12:05pm
Cecil Turner (mail):
I certainly don't contend that there ought not to be steps taken to defend against terrorism, only that such steps be in conformity to the law. Is it so much to ask?
The constitutional bits about "provide for the common defence," "declare war," and "Commander in Chief" are also the law. At times there will be conflict between those parts and others (e.g., the Fourth Amendment), and the differences need to be hashed out. You appear to be asking for conformity with a certain interpretation of the law; and yes, that's too much to ask.

The tension here is between the Government's legitimate need for information regarding nuclear explosive devices, balanced against the citizenry's reasonable expectation of privacy for those things that might be revealed with a radiation scan. From what I can gather, the scan is unlikely to garner much information in most circumstances, though it might show the presence of someone undergoing radiation therapy, and there are few lawful activities that would generate enough pertinent radioactivity to be measurable.

The government's interest is obvious, and in light of the credible threat, compelling. Absent a showing of some private activity that might be unreasonably intruded upon, the reasonable privacy expectation in hiding radioactive material doesn't seem particularly valid. And the slope appears rather gentle, with reasonable traction.
12.26.2005 12:43pm
Ron Wright (mail):
Cecil Turner - You're fired too! :--)

DITTO - A voice of common sense and reason re the devining of the atomic nucleus.
12.26.2005 12:58pm
Ron Wright (mail):
Vader good points but I would do a little Google research on gamma radiation.

This stuff is a bitch to contain. That's the point of several other "generalists" in this thread. If there was a reading above the natural background level (I'm not talking residue radiation leftover from medical treatments) eminating from a residence, building, truck, RR car, or any other like item it would be time to go to RED ALERT(e.g. TREK) until its nature could be determined.

In the general view of "There's a bomb" example of the exigent circumstance exception, I think such a detection would necessitate a warrantless intrusion.
12.26.2005 1:07pm
Defending the Indefensible:
Cecil:

The tension here is between the Government's legitimate need for information regarding nuclear explosive devices, balanced against the citizenry's reasonable expectation of privacy for those things that might be revealed with a radiation scan.

No, Cecil, that is not at all the tension at issue. This is a perfectly reasonable argument to make to a court in order to obtain a warrant, or to the congress in order to obtain a legal authority. What is not reasonable, and is in fact completely unacceptable in a democratic republic, is for the executive to ignore the law and the constitution unilaterally and without review. There is no governmental interest which can support this, it is to defeat the system of government altogether in behalf of an unlimited executive dictatorship -- however benign and harmless it may at first seem and however it may limit itself, because such constraints are purely self-imposed once the shackles of divided government are off.
12.26.2005 6:12pm
Defending the Indefensible:
Ron:

In the general view of "There's a bomb" example of the exigent circumstance exception, I think such a detection would necessitate a warrantless intrusion.

Sure, if there were a bomb detected in the first place, it would justify emergency warrantless intrusion, but to make warrantless intrusions to search for bombs where no bomb has been detected in the first place, that is more to the point. Where's the legal authority for this?
12.26.2005 6:16pm
Ron Wright (mail):
Splunge's gunshot sound on par with monitored radiation spike

DIF

I was trying to think of a common sense analogy. But Splunge beat me to it upthread. Spulge your fired too! Too much common sense.

This is really no different from the right of a policeman while walking past an elementary school to listen for gunshots. Any detection at all raises such an immediate and compelling suspicion of wrong-doing that no reasonable person (who understands physics, that is) could doubt the government has the right to investigate further.

Yes, I agree the existance of a high level of radiation would not conclusively establish the existence of a nuke and/or more importantly the presence of radiological material possessed to build or present in an already constructed "dirty bomb."

Please remember though the first WTC bombers were making fuel/fertilizer bombs using urea and ammonium nitrate prills in their appartment. The detonation of which probably whould have made a very bad day for neighborhood for at least the surrounding half mile radius.

We are talking matters of degree of threat to the gneral public. I would agrue Splunge's sound of a gunshot warranting immediate investigation is akin to monitoring a radiation spike along the lines of the other commenters here. This is a common exception to the 4th Amendment.

BTW Topcat, I too believe these spliting of the nits of the atoms has more to do with the "war on drugs," than it does with the need to prevent an attack from the enemy GWOT.

I too am very wary of allowing the government more leeway here. I will discuss this in a later update in this thread.
12.26.2005 7:23pm
Defending the Indefensible:
There is no analogy to hearing a gunshot from the street because the government trespassed on private property to take readings.
12.26.2005 7:28pm
Ron Wright (mail):
A Case for Transparent Privacy

A follow-up comment -
Part II

As said earlier my goal is to bring online the tremendous, collective, creative, genus and power of The Blogos [e.g. Hugh Hewitt]. By drawing across many fields of human knowledge we can pull together a cogent plan of attack to vanquish this enemy that seeks our destruction. In short this is an out-of the-box creative exercise. I want to set the perspective, mindset and frame of reference that this Country is at war with a very unique enemy that could employ doomsday weapons of Armageddon.

The purpose is to answer fundamental questions regarding what governmental intrusions we will tolerate re our right to a reasonable expectation of privacy visa v. the relativistic (OK relative) need to defend this Country against attack from the enemy. This embedded, determined, cunning, hostile enemy's intent is this Country's destruction in the GWOT. I fault this administration for not clearly defining this enemy and the threat its ideology, Islamofascism, poses not only to the American people but all free people of the world. Fortunately this administration, albeit late, is now speaking out.

The LL and the MSM for various reasons, to many to enumerate [read more here], can't or won't acknowledge these facts or dangers. A good case can be raised that by their actions, words, and deeds are perversely "rooting" for and aiding the enemy.

This enemy, driven by its radical cult like religious fanaticism, has clearly demonstrated from its past actions and pronouncements, its intent is the violent overthrow of our government. Further to kill all of us who refuse to convert to Islam, to impose an Islamic theocracy, and to destroy what we hold most dear, the universal truth of the free will of men and women (See Jihad Watch, and here).

Yes, these indeed are special times and I would defer to the words of President Lincoln [see above via Powerline].

The enemy struck in a deliberate, unprovoked, pre-mediated attack to kill as many people as possible. This was an act of war.[from thread above]

I wrote the piece I excerpted in the previous comment in August of 04. This was to generate a serious policy and legal debate within the local, regional, and state law enforcement and legal communities into uncharted waters where there is little case precedent. Our fast paced technologically driven society has overtaken judicial reasoning and findings re conducting a war of information in the battle space known collectively as Cyberspace that the enemy is effectively using to its fullest potential.

This is a new mission for domestic law enforcement, "We are the boots on the ground."

TO BE CONTINUED

What is this winter break? Some folks just have too much time on their hands :--) If you want to quote just credit the source but don't imply this was your own creative thought.
12.26.2005 7:45pm
Ron Wright (mail):
DIF

Your previous arguements have had more merit :-(

Are you cooking "speed" somewhere and are afraid of being detected?

Sorry but I couldn't resist.
12.26.2005 7:49pm
Michael B (mail):
"On the basis of the President's charge in the 2001 Approval to Use Military Force resolution (a.k.a. the War on Terror) the results of the 1993 WTC bombing is a total failure. You are attempting to compare a police investigation and prosecution, after the fact, with a proactive campaign to stop terror before it takes place. The successful 1993 would be rightfully considered a failure were it occur today. Harrumph, indeed!" Neal Lang

I respectfully yet decidedly disagree. If comparisions are occasionally invoked to imply co-equivalence, more typically they serve as comparative contrasts wherein no simple or total equivalence is implied, but where salient and even critical aspects provide a striking comparison nonetheless. Some points of comparison between WTC '93 and 9/11:

1) WTC '93 was a jihadist inspired, foreign terrorist attack perpetrated on domestic soil, targeting tens-of-thousands of civilians and targeting the two WTC towers for both symbolic and economic effect. Those are salient and highly conspicuous points of comparison, not pseudo-equivalencies or reflective of overwrought rhetoric.

2) WTC '93 was designed to topple one tower upon the other and also upon other adjacent structures. If WTC '93 would have been entirely successful, tens-of-thousands of people would have been killed and many billions of dollars of damage would have been sustained.

Summarizing, it isn't as if 9/11 was designed to target the World Trade Center towers while WTC '93 was a minor affair whose perpetrators were never identified as being foreign jihadists, having links to broader jihadist networks. What is warranted is both the comparison (a domestic terrorists attack, perpetrated by foreign, Arab/Muslim jihadists, also reflecting a global jihadist mindset, intent upon slaughtering tens-of-thousands, destroying the WTC towers and adjacent buildings both for their symbolic/iconic value and the economic damage) - as well as the contrast (success vs. a lack of success).

The Islamicist's successful 9/11 attack has been compared to Japan's successful attack on Pearl Harbor, Dec. 7, 1941. To further draw an analogy with WTC '93, imagine if, a few years prior to Dec., 1941, Japan had attempted an attack upon Pearl Harbor, but one which had been almost entirely unsuccessful, which killed only half-a-dozen people, yet one which, in the ensuing weeks and months after the attempt, our intelligence discovered Japan had been the perpetrator. Within that scenario it's more than a little difficult to believe a president of that era, a Roosevelt, would have acted in any way similar to the way Clinton's administration acted, post-WTC '93. Especially so as additional incidents continued to occur.

Even all that is not intended to imply a simple co-equivalence, only that the points of comparison are in fact salient and striking enough such that the comparison is warranted and in fact is highly instructive as well. If the Clinton/GWB presidencies had been reversed, where GWB had been president beginning in '93 and Clinton had succeeded him in 2001, and obviously where WTC '93 had occurred merely a single month into a GWB presidency, do you really believe Left/Dem outlooks and MSM reportage would be neglecting a highly critical and thorough-going review of how a GWB presidency had handled WTC '93?
12.26.2005 8:17pm
subpatre (mail):
It's interesting that 'Defending the Indefensible' thinks irradiating a neighborhood is a protected right of privacy, and I wonder what he thinks would constitute probable cause. A medical diagnosis of radiation poisoning? ...nearby (public) objects beginning to glow from irradiation?

Out of curiosity, do most people think there's a right to bombard fellow citizens with undetectable, harmful rays? The logic (!) that appears to flow from this concept makes anthrax or neurotoxin detection an "unwarranted intrusion on private property" because those aren't apparent to the senses either.
12.26.2005 8:28pm
Defending the Indefensible:
It's interesting that subpatre claims that I think things I never said or implied.
12.26.2005 8:45pm
Cecil Turner (mail):
What is not reasonable, and is in fact completely unacceptable in a democratic republic, is for the executive to ignore the law and the constitution unilaterally and without review.
Is there a law restricting the use of portable radiological detectors? Does the Fourth Amendment forbid screening for radioacivity during wartime (especially after an exposed plot to smuggle a "dirty bomb" into the US)? Does the Supreme Court now provide reviews to guide the actions of the Executive?

Again, you've apparently already decided a warrant is required, and no other interpretation of the law is possible. Not only do I disagree with your certitude, I predict disappointment if and when the matter is resolved.
12.26.2005 9:02pm
Ramon:
I find it interesting that noone seems to be discussing Truong, 629 F.2d 908, which held that the President has not only the inherent authority, but the constitutional responsibility to conduct foreign intelligence. Also the In Re Sealed Case, 310 F.3d 717, which cites Truong, aptly states, as should have been the focus of all of the discussions on these allegedly "illegal" wiretaps, that once it is shown that such surveillance is no longer for foreign intelligence, but is primarily being used for a criminal investigation, all probable cause requirements are back on the table. This seems to me to be the answer to this whole issue from the get-go.

Why is it problematic for the nation to conduct foreign intelligence, if it is not shown to have been used in a criminal matter without probable cause? If there is no such showing, where is the constitutional harm, and how is that not precisely what the executive is commanded to do from Article II?
12.26.2005 10:51pm
Jutblogger (www):
I still don't follow what the harm is if there is no criminal proceeding tied to the surveillance. If there is none, two things strike me:
1) the information wasn't being gathered for criminal activity to begin with, and, most likely, was actually related to foreign intelligence; and
2) there is no aggrieved party.


How is it not the president's duty to conduct these searches, assuming they are for national security alone?
12.26.2005 11:13pm
Ron Wright (mail):
A Case for Transparent Privacy

A follow-up comment
Part III


This is a new mission for domestic law enforcement, "We are the boots on the ground."

Here's an excerpt from the essay I didn't include above:

The federal government is waging this war on many fronts including engaging the enemy abroad. Needless to say the white horse from DC will not be riding to town soon to the rescue. Law Enforcement must take the point to protect our own backyards. We can't wait for federal solutions that are still years in the making. We must build quickly cross-linked intelligence networks and operational units from the ground up to freely share information to defend against and protect against domestic attacks. We must only draw from public sector resources e.g., local, regional, state and federal levels but also from the private sector too. Private sector resources are immense. Further the private sector controls over 80% of this Nation's critical infrastructure infrastructure that is likely to be targeted by the enemy. The private sector has a significant economic interest at stake.


This new mission is far greater than the federal government can do alone. Traditional bureaucratic, top down governmental organizational structures and intel/information sharing practices as we have seen are incapable of responding to this immediate threat. Forward, not reactionary, thinking is needed to organizationally respond to this new challenge. Horizontal, fluid/adapting, adhoc/matrix organizational structures with short lines of communication and decision-making cycles are necessary to carry out this mission (See Mission Focused Strategic Communications).

The vast resources of our private and the American people need to be brought online. Why involve private sector resources? Because it has a vested economic interest in preventing and also surviving in the aftermath of an attack. Government has no such incentive. In many cases government is too top heavy, defensive, staid, formalized, and risk averse with a prevailing attitude of not rocking the boat to respond in a timely and effective manner. With all the medias' attention with bureaucrats' jobs on the line, just how venturesome and creative will the bureaucracy be when failure is not an option?

The American people given pertinent information re the enemy, its organizational structure and behaviors, can be a tremendous asset, a force multiplier. Think of it as millions of additional eyes ever vigilant. Think interconnected neighborhood watches cross-linked via the Blogos, independent of traditional sources of info like the MSM. The 9/11 hijackers were here a year or more before this attack. The enemy agents displayed many unusual behaviors that were noticed by the public but were not necessary criminal and were not responded to.

An example of the emerging importance of the Blogos, occurred during the immediate aftermath of Katrina (A little prescience here?). Several have written about this that is called Spontaneous Order.

All of these efforts have something in common: They were quick, voluntarily organized and reasonably effective. That is, sadly, almost exactly the opposite of the government efforts that were slow, disorganized and ineffective—or at least seemed to be until political pressure mounted and National Guard troops finally entered the waterlogged city in force on Friday.

[...]

. . .to recognize the inefficiency of top-down systems such as the federal government compared with the rapid, efficient and effective organizing that individuals can accomplish on their own.
This is what the late Austrian economist F.A. Hayek called "spontaneous order," referring to the marvel that happens every day when people work together and agree on transactions, voluntarily, without a central authority dictating what happens.


See this article in the current edition of Wired Magazine

Reinventing 911
How a swarm of networked --citizens is building a better --emergency broadcast system.


Couple this with the emerging Blogos e.g., a intelligent distributive computer network like SETI. This network is a real-time knowledge base; capable of mobilizing massive parallel processing power on a given problem set e.g., a natural disaster, detection of the enemy, and coordinating response after an enemy attack.

Unlike SETI though the individual interconnected nodes of the Blogos are infinitely more powerful than any Cray computer now online -- THE HUMAN BRAIN. The human brain while having slower synaptic circuits, has the uniquely and unreplicated sentient power to observe and detect cognitive relationships across multiple fields of human intelligence in diverse data sets.

OT- See how the Blogos aided in the capture of the homicidal pedophile, Joseph Duncan, in Idaho. The Blogos provided the key linkage to law enforcement that probably would have gone unnoticed or discovered too late to have an impact. Envision turning the passion and endless time of all our online gaming freaks loose on the enemy. The Mad Mullahs' of Iran have recognized the emergening importance of the Blogos, Mullahs versus the bloggers. See this piece from Outside the Beltway Blog, Bloggers Now Weapons in Information War

And yes this resource is FREE at not cost to the government!

TO BE CONTINUED
12.27.2005 1:59am
subpatre (mail):
Defending the Indefensible wrote "It's interesting that subpatre claims that I think things I never said or implied."

Sure you did. You wrote (and here) that government's detection of radioactivity is "warrantless intrusion", 'government criminality', "unlimited executive dictatorship", etc., along with similar invective and substantial exaggeration.

Nuclear radiation is not detectable to the senses; it's inherently damaging and injurious to health. There is no beneficial level of public exposure.

When radioactivity's effects become apparent enough to establish probable cause for a warrant, the damage --permanent damage-- is done. You endorse a protection to irradiate others, in practice a "right" to slowly poison the public without detection.

Then you wrote "Sure, if there were a bomb detected in the first place, it would justify emergency warrantless intrusion,..."

How is this bomb detected? Will it have the word "BOMB" painted on it's side in enormous letters and left in a window visible from the street? (If it were painted would any magistrate believe it? LOL) The only way to probably determine a bomb's existence is radiation detection, exactly what's claimed can't be done without warrant. It's a ludicrous argument.

The medical reasoning is equally ridiculous; some people undergoing cancer radiation therapy are radioactive and detectable. Such non-contagious medical conditions do not merit extra privacy; patients are radioactive and are cautioned against holding grandchildren or ruining camera film. Non-medical exposure, even emitted from medical patients, is never beneficial.

Other non-contagious medical conditions such as kleptomania, Tourrette's, priaprism, may well merit extra law enforcement attention, not privacy. Nobody's claiming medical patients need arresting, just that it's perfectly reasonable for inquiry. I don't hold with Terry entirely, but it's an obvious police duty to inquire more closely of unusual or suspicious situations.

The question --deftly avoided-- is what 'Defending the Indefensible' thinks would constitute probable cause to look for radioactive material without pre-detection?
12.27.2005 2:21am
Pixy Misa (mail) (www):
A number of commenters have held that a properly conducted radiation scan does not constitute a search because it does not provide any information other than whether or not the proscribed materials are present. The only problem with this is that alpha- and beta- emitters are probably good enough for the purposes of a "dirty bomb", and are much easier to shield.

Which is probably why the agents went on to the properties (assuming that the report is correct), when a gamma-ray check could have been done from the street (albeit taking more time). And that - going on to the property to conduct the check - is itself a concern.

If they had done the scan from the street, I'd say it was a slam dunk for not constituting a search, but if they did go onto the properties, it's not as clear.
12.27.2005 7:51am
Defending the Indefensible:
Subpatre, perhaps you should read more closely what I have written:

It is also important to recall that the government has admittedly been trespassing onto private property to conduct their radiological surveillance, it is not merely from the street. While it may be absolutely reasonable and necessary to conduct these sorts of scans, these arguments *should* be made to an appropriate court and not undertaken by sheer executive fiat.

By what legal argument does the government constitutionally trespass without probable cause and without a warrant?
12.27.2005 12:21pm
subpatre (mail):
Defending the Indefensible still can't answer the question: What would constitute probable cause to look for radioactive material without pre-detection?

DTI wrote "It is also important to recall that the government has admittedly been trespassing onto private property to conduct their radiological surveillance"

No they haven't, that's a gross misrepresentation of the article. There's no allegation the monitoring was done from anywhere except public property or public access. (Trespass is a defined offense. Even if true it's a minor midemeanor, $200 fine in this state, that doesn't justify "unlimited executive dictatorship")

The legal expert quoted in the article, GU Professor Cole is critical of the program, states
"They don't need a warrant to drive onto the property -- the issue isn't where they are, ..."
Routine police patrol of parking lots, public or privately owned, that are accessible to the public is fully accepted by the courts.

Trespass isn't the issue. You're defending the ability of people to irradiate citizens without detection.
12.27.2005 1:12pm
Defending the Indefensible:
Asking what would constitute probable cause is nullified if the courts are not to be consulted and the laws are not to be observed. If the sole determination is by the executive, then anything could be sufficient, or nothing at all.

It is not possible to know whether a sufficient basis existed or exists to constitute probable cause unless presented with the specific facts and justification. There is no purpose in trying to speculate on this argument, it is for an independent judiciary to make this determination, but that has been bypassed.

It is this presumed immunity from review that makes the behavior unacceptable, not the surveillance itself, and I've made this point well enough that it can only be misunderstood intentionally.
12.27.2005 1:35pm
Ron Wright (mail):
DIF your logic is faulty.

It's the chicken and the egg as to what came first.

In order to obtain a warrant you have to state clearly to a court the probable cause by which you believe there is something present at the location that is necessary for the investigation and prosecution of your criminal case. I'm not going to touch the issue of something that is not criminal.

If a LE agent is in a place where he has legal right to be and it was clearly stated upthread this includes all those areas where the public would normally be permitted and this does include private property, and then detects something that gives probable cause to believe something is present at that location the court will issue the warrant.

The probable cause is based on the LE experience, knowledge and training that there is PROBABLE CAUSE (burden of showing less than REASONABLE CAUSE) the item/evidence/info will be found there.

Hence with the debate in this thread I would offer anyone in LE to use to educate a judge when seeking a warrant. (I wont' concede the need under war powers to engage the enemy from attack), radiation levels significant to make folks glow in the neighborhood would rise to the PC level for search warrant to enter and determine its source.

But I would go one further in that because of the imminent danger to public safety, entry could be made without warrant based on exigent circumstances to render the immediate hazard safe.
12.27.2005 4:32pm
Rick A Hyatt (mail) (www):
The smokescreen of all of the White House scandals now make any intelligent person scratch their heads, none are the real truth behind it all.
I am that "NSA Whistleblower." I am the one central reason for all the ruckus, but more: This "NSA Surveillance" is a much, much deeper way of deep-sixing a guy who knows too much, and has been since the inception of the FISA Court in 1978.
It boils down to what I know about Gary Condit and Dick Cheney when I knew them in the mid-70's. Cheney was "Office of Economic Opportunity," and Condit had just started his political career.
Please visit my blog at http://www.bloglines.com/blog/RickAHyatt or my website for more details. I would appreciate any legal or investigative journalism help, as well.
I openly post my address and phone number: 621 West Buffalo Rawlins WY 82301 and 307 324 8430.
Obviously, this is only the "Tip of the Iceberg," as they're now saying.
1.5.2006 1:03am