Because there just haven't been enough government scandals lately...

December 23, 2005 12:40 PM

Federal surveillanceof over a hundred homes, businesses, mosques, warehouses and other sites has been conducted without warrants, according to a new USNews report. Indications are that the persons so targeted were US citizens. "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. Some participants were threatened with loss of their jobs when they questioned the legality of the operation, according to these accounts."
posted by darkstar (131 comments total)

Should have included in the description: the nature of the surveillance was testing for radiation that might come from a possible nuclear source and the program primarily targeted Muslims.
posted by darkstar at 12:42 PM on December 23, 2005

I-word! I-word! I-word! Let's all start saying it...!
posted by twsf at 12:43 PM on December 23, 2005

From dKos:

Is a warrant needed to conduct surveillance on public property? No, not really. But these searches were conducted on the private residences of Muslims throughout the nation. Does monitoring radiation levels constitute a "search"? In 2001, as the article points out, the Supreme Court ruled that the use of thermal imaging to detect heat lamps in a residence was a "search" under the 4th amendment and a warrant was needed. The case was U.S. v. Kyllo, and the opinion was written by Justice Scalia.

...From Justice Scalia in Kyllo:

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a "search" and is presumptively unreasonable without a warrant.

posted by darkstar at 12:46 PM on December 23, 2005

lesbian!
posted by revfitz at 12:46 PM on December 23, 2005

Well, I'll be! All those folks saying let's wait and see, well, we waited and now we're seeing.

The only problem with impeachment is that would leave us with the Big Dick in charge and truly that just scares me. Can we impeach the entire administration and start fresh?
posted by fenriq at 12:50 PM on December 23, 2005

Damn, that's crazy. I wonder if they really had intelligence that someone was keeping a nuke in their house or in the local mosque.
posted by b_thinky at 12:51 PM on December 23, 2005

Which, if I'm counting correctly, amounts to three separate federal programs uncovered just this past week to conduct surveillance on US citizens without warrants:

1. The NSA program,
2. The DoD program, and
3. This program by the FBI and the Department of Energy's Nuclear Emergency Support Team (NEST).

It looks like the whole federal government's getting in on this act.
posted by darkstar at 12:51 PM on December 23, 2005

Spy Net May Pull in All U.S. Calls Overseas
posted by ericb at 12:54 PM on December 23, 2005

"John Conyers, Jr., (D - MI) ranking member of the House Judiciary Committee, and 26 other Congressmen today submitted a resolution of inquiry into warrantless wiretapping of citizens on U.S. soil.

The resolution would demand that Attorney General Gonzales turn over documents believed to be in his possession authorizing the National Security Agency to conduct warrantless electronic surveillance. It would also request documents detailing any legal recommendations regarding the order.

Deadline for the hand-over would be 14 days." [source]
posted by ericb at 12:55 PM on December 23, 2005

"The cause of [the Constitution's] demise is the corrosive interplay between the Bush administration, a bevy of blind apologists, a politically apathetic public, a well-oiled rightwing message machine, lapdog reporters, and a disorganized opposition. The domestic spying case perfectly illuminates the workings of that system. And the unfolding of this story augurs poorly for those who expect it to yield different results from other administration scandals....The president breaks the law. Life goes on....Rinse and repeat." - Peter Daou
posted by ericb at 12:58 PM on December 23, 2005

fenriq, then we're stuck with President Hasert.
posted by MikeKD at 1:01 PM on December 23, 2005

This doesn't bother me all that much, except for the cases involving intrusions on private property. Testing the air for radiation doesn't reveal any private information about those being monitored, unlike wiretaps, thermal imaging, etc. This practice might well be ruled illegal, but it's a lot easier to defend than, say, warrantless monitoring of domestic phone calls.
posted by brain_drain at 1:07 PM on December 23, 2005

Good thing all this is coming out during the Christmas season, or people might actually be paying attention.

Timing is everything.
posted by five fresh fish at 1:08 PM on December 23, 2005

MikeKD, nah, I was talking about the entire lot of them.

brain_drain, its invasive in that they are using specialized equipment to "look" into private residences without court approval.
posted by fenriq at 1:10 PM on December 23, 2005

It doesn't matter if it bothers you or not, brain_drain. It's against the law, making either a high crime or a misdemeanor .
posted by If I Had An Anus at 1:16 PM on December 23, 2005

Spy Net May Pull in All U.S. Calls Overseas

OMG. So it's 100% I'm on that list. That's just great.

There has to be one Democratic Senator with the balls to call for impeachment. Right? ...RIGHT? Murtha? Anybody?

I'm going to drink myself in a stupor now (Who am I kidding. Like today is any different than any other day).

PS. If you voted for Nader in 2000 please kill your self immediatly. Thankyou.
posted by tkchrist at 1:19 PM on December 23, 2005

Oh god, don't bring Nader into this.
posted by If I Had An Anus at 1:21 PM on December 23, 2005

MikeKD, nah, I was talking about the entire lot of them.
posted by fenriq at 1:10 PM PST on December 23

How much of the House are you planning on impeaching?
posted by ScottMorris at 1:22 PM on December 23, 2005

brain_drain, its invasive in that they are using specialized equipment to "look" into private residences without court approval.

My point is that I care a lot whether the feds are listening to my phone calls. I care a lot whether the feds are able to see cigarettes, hookahs, bunsen burners, whatever on my property. I don't care all that much whether the feds know how much nuclear radiation surrounds my property. What private information could this possibly reveal?

It doesn't matter if it bothers you or not, brain_drain. It's against the law, making either a high crime or a misdemeanor .

This is untrue. Illegal searches happen all the time. Sometimes the evidence is excluded. Sometimes the victims sue the government. No one is ever impeached. In any event, the government will have a plausible defense on the law here. Anyone focused on impeachment should go for the slam dunk case on warrantless wiretaps, not the more murky case of radiation monitoring.
posted by brain_drain at 1:28 PM on December 23, 2005

Oh god, don't bring Nader into this.
Your right. It's time to heal the bitterness.
posted by tkchrist at 1:29 PM on December 23, 2005

My point is that I care a lot whether the feds are listening to my phone calls. I care a lot whether the feds are able to see cigarettes, hookahs, bunsen burners, whatever on my property. I don't care all that much whether the feds know how much nuclear radiation surrounds my property. What private information could this possibly reveal?

And the real point is that it doesn't matter what you care about, because certain things are simply against the law - warrantless searches being one of them.
posted by odinsdream at 1:37 PM on December 23, 2005

What private information could this possibly reveal?

How I used the microwave to dispose of the body of my girfriend?

This is untrue. Illegal searches happen all the time. ... No one is ever impeached. ... Anyone focused on impeachment should go for the slam dunk case on warrantless wiretaps, not the more murky case of radiation monitoring.

But it's rarely (ever?) been the POTUS running the illegal searches. True the wiretaps the main issue, but this revelation helps demonstrate it's just part of a larger conspiracy by this administration.
posted by If I Had An Anus at 1:39 PM on December 23, 2005

He sees you when you're sleeping
He knows when you're awake
He knows if you've been bad or good
So be good for goodness sake

You'd better watch out ...
posted by Pinback at 1:42 PM on December 23, 2005

odinsdream: I'm not a judge, but the judges who ultimately consider this issue will be asking the same questions and testing their comfort levels in much the same way I am. There is a plausible -- not necessarily winning, but plausible -- argument that this is not a "search" because it is not intrusive and reveals no personal/private information.

IIHAA: Fair point, but to nail POTUS (or VPOTUS) on illegal searches, you need an airtight case that they were clearly and obviously illegal. I do agree that this program is worthy of extra scrutiny and skepticism in light of the related and flagrant violations of the law.
posted by brain_drain at 1:55 PM on December 23, 2005

"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."

"Hey Tariq? Did you order this warrantless government radioactivity inspection?"

"Uhmmm...no...I ordered some girlscout cookies though."
posted by odinsdream at 1:55 PM on December 23, 2005

Brain_drain, breaking and entering (which is what illegal searches and seizures within private property are, them being illegal and all) happens all the time, too, but there was this one time that it happened that it led to a President resigning before he could be impeached. It's fascinating how when the President does (or orders, or explicitly condones) something, it actually does elevate it from one of those things that happens all the time to one of those things because of which our Constitution specifically says we can remove our leader.

Who are we kidding, nobody seems to give a crap that our leaders are currently running as roughshod as ever over our well-established civil liberties, so who'll have the nerve to stand up in Washington, D.C. and bet their political career on calling them out over it...
posted by delfuego at 2:00 PM on December 23, 2005

brain_drain,

I figure that the purpose of revelations such as this are to simply add fuel to the fire. When there's enough outrage burning, when critical mass is obtained, then some enterprising politicians may _finally_ see that they could gain from impeachment. At that point the strong cases will be separated from the weak and then brought before a judge.

This... this is mickey mouse, but enough mickey mouse might bring down the house. More power to those out there digging furiously for more of this information.
posted by C.Batt at 2:03 PM on December 23, 2005

Anyone want to start a pool on when and which will be the fourth federal program of warrantless surveillance to be uncovered?
posted by darkstar at 2:08 PM on December 23, 2005

December 29th I bet,,,
Anyone else?
posted by Elim at 2:12 PM on December 23, 2005

Protection of the individual from unreasonable or arbitrary power – in the hands of government and its agents – is a crucial part of the individual security of all citizens in democratic states. While terrorists have shown themselves to be capable of causing enormous harm with modest resources, the very enormity state power means that it can do great harm through errors or by failing to create and maintain proper checks on authority.

Link to longer discussion
posted by sindark at 2:17 PM on December 23, 2005

I'm not sure I see the problem here.

They are not entering the premises and the search is quite limited in scope and reveals nothing about the occupants of the building. Absolutely nothing. The argument that the NEST teams should have the same access to property as a delivery man seems reasonable to me.

I'm not convinced that sampling air can even be considered a search.

Despite the slippery slope arguments -- they're looking for friggin' radioactive material -- they aren't peeking in windows, opening mail or eavesdropping on conversations. In light of recent revelations there is plenty to get outraged about but I'm having a hard time mustering much indignation over this one.
posted by cedar at 2:53 PM on December 23, 2005

Where do we get the "WARRANTLESS GOVERMENT RADIOACTIVITY INSPECTORS WILL BE SHOT" signs to staple to every tree in our yards?
posted by parallax7d at 2:54 PM on December 23, 2005

Cedar, that's true, if you trust warrantless searchers on your property to ignore everything but the readout on their geigers.

But if your worried about warrantless trespassers doing other things, like threatening you or any other number of things, then it's something to worry about.

So who here trusts warrantless searchers to behave themselves?
posted by parallax7d at 2:57 PM on December 23, 2005

How hard would it be to get a warent if there was any evidence someone had a nuke?

Not only that, but this thing sounds super-paranoid and a waste of time and money. Checking the home of all muslims for nukes?
posted by delmoi at 3:06 PM on December 23, 2005

cedar: apperantly in some cases they did enter the buildings. So stfu, xthnks.
posted by delmoi at 3:07 PM on December 23, 2005

er, I mean kthx
posted by delmoi at 3:08 PM on December 23, 2005

So, ah, we're only targeting Muslims?

Because, what, Timothy McVeigh and Eric Rudolph don't know from radioactive?
posted by orthogonality at 3:08 PM on December 23, 2005

Anyone want to start a pool on when and which will be the fourth federal program of warrantless surveillance to be uncovered?

My money is on the 25th when you find out you were found to be naughty.
posted by srboisvert at 3:23 PM on December 23, 2005

Delmoi, nice. Very nice, nothing like a bit of civility. Grow up.

Also, at the risk of asking you to actually contribute to the discussion, could you point to where it says anything about actually entering the buildings?

Oh yeah, "How hard would it be to get a warent if there was any evidence someone had a nuke?"

Uh, wouldn't the detection of radioactive material be the probable cause for a warrant? Or would you rather they rounded up a few friendly judges and just searched 120 places a day? This seems like a non-invasive way to minimize a potential threat.

These are scientists and technicians doing a very specialized job, it ain't Sheriff Bufford kicking in doors. At least that's what the Discovery Channel tells me.

Ortho, they have been doing this for thirty years. I'm sure, at some point, they have targetted people other than Muslims. I imagine the deployments focus on whoever they decide is a threat at the time, I wouldn't be at all surprised if fifteen years ago it was an entirely different group.

I'm anything but a Bush apologist but fer cryin' out loud, they're looking for nuclear bombs and monitoring radiation levels. It may well be futile and waste of resources but I don't think it's harbinger of the coming dictatorship.
posted by cedar at 3:31 PM on December 23, 2005

I'm not convinced that sampling air can even be considered a search.

Um, didn't you see Scalia's (Scalia!) decision above that called similar shit a search that required a warrant -- it's a search.
posted by jmgorman at 3:40 PM on December 23, 2005

What other things, I wonder, would it be appropriate for the Feds to sniff for at your keyhole?

I mean, if radiation is acceptable to some, is that the only thing? What about other bad things? Conventional bomb-making materials? Drug cultivation, processing or use? Illegally imported spices? Endangered animal smuggling? Milk being drunk past the expiration date? AXE, TAG or BOD body spray use?

Yeah, that's being facetious. But is the comfort level with warrant-less searches simply due to the concerns about the danger of the thing being searched for and, if so, where do you draw the line appropriately?
posted by darkstar at 3:42 PM on December 23, 2005

Um, didn't you see Scalia's (Scalia!) decision above that called similar shit a search that required a warrant...

Do you mean the thermal imaging thing?

If so, I don't think they are the same thing. I don't think you can compare looking into someones property (no matter what technology is used) with sniffing the air around someones property.

I know I sound like I'm parroting the official response, but in this case I think that the official response is reasonable. I would be more comfortable if the technology was at the point where they could do it from a greater distance -- or maybe they can and just don't want to -- but I don't think that, considering the potential risk, that this is an unreasonable practice.

I would go as far as to say that this is a marvelous technology that should be used even more. I like anything that targets a specific threat in such limited way. Sure, there is plenty of room for abuse (well, I was Geigering the house and heard funny noises so I kicked in the door) but when isn't there room for overzealous assholes to abuse their power?
posted by cedar at 3:53 PM on December 23, 2005

This practice might well be ruled illegal, but it's a lot easier to defend than, say, warrantless monitoring of domestic phone calls.

The Administration's ultimate legacy -- lowering the bar to such an extent that certain illegal acts it commits seem "not so bad" compared to others.
posted by clevershark at 3:53 PM on December 23, 2005

I get the feeling that we've already slipped off the slope, and at best are hanging by our fingernails. The only question left is how fast we'll be going when we hit the bottom.
posted by bashos_frog at 4:33 PM on December 23, 2005

We're seriously angry that they held up a geiger counter to someone's house without a warrant?

O. M. G.

Then let the exclusionary rule kick in, as with all other warrantless searches. Done and done. What's the outrage all about?
posted by JekPorkins at 4:34 PM on December 23, 2005

Delmoi, nice. Very nice, nothing like a bit of civility. Grow up.

Since we seem to live in a world ruled by infants, that could be maladaptive. I'll look into it, though.
posted by delmoi at 4:50 PM on December 23, 2005

And the real point is that it doesn't matter what you care about, because certain things are simply against the law - warrantless searches being one of them.

The REAL point is that theyaren't against the law in certain circumstances ... in fact (as has been mentioned) both Clinton and Carter authorized them.

Protection of the individual from unreasonable or arbitrary power – in the hands of government and its agents – is a crucial part of the individual security of all citizens in democratic states. While terrorists have shown themselves to be capable of causing enormous harm with modest resources, the very enormity state power means that it can do great harm through errors or by failing to create and maintain proper checks on authority.

What harm? WHAT SPECIFIC HARM has, or COULD come to ANYONE from testing their residence for fricking RADIATION? The journalists (who's motive is to make their names and reputations from these profound revelations), and the politicians (and bloggers) who are generating "outrage" at the thought that Bush is actually (horror!) checking the country for RADIATION are actually saying "well, this is just another example of our civil liberties getting trashed, and another reason to impeach Bush.

Right.

The Administration's ultimate legacy -- lowering the bar to such an extent that certain illegal acts it commits seem "not so bad" compared to others.

Unlike Al ("Clipper Chip") Gore, Our the previous Attorney General who torched a religious compound and sent stormtroopers in to "rescue" a kid from fishermen (so he could be sent back to Cuba). The Clinton Administration lowered so many bars, in so many ways, so low, that NOTHING Bush does can even come close. Of course, no one wants to talk about that anymore - about the fact that liberal blogs ignored Clinton, but want to hold Bush to standards way higher (I almost can't imagine what liberal outrage there would be if the currently attorney general did even a fraction of the SHIT that Janet Reno did).

Bush is simply travelling down the road Clinton built - and seems to be doing it - at least part of the time - for the purpose of actually stopping fuckwits from blowing up our country.
posted by MidasMulligan at 4:50 PM on December 23, 2005

Can i say it? Anyone that wants to support bush in this is a moron! Simple as that...

Anyone that can't see the problem with ANY type of illegal search is an idiot...

and, MidasMulligan...you sound like a third grader saying "You can't get me in trouble 'cuz johnny did something worse and HE didn't get in trouble..." I don't care if Clinton did something illegal, he's gone, he can't hurt us... bush the shithead still can! He needs to go away!
posted by HuronBob at 5:00 PM on December 23, 2005

It seems to me that there is a lot of righteous indignation bujt little understanding. If bush is somehow doing things with NSA that had not been done before, then what, just what, do you think NSA has been doing up till Bush took office? Waiting for him to give them the go-ahead to spy on Americans?
NSA is a bigger organization than all the other intelligence groups (ie, CIA, FBI etc) put together.
posted by Postroad at 5:05 PM on December 23, 2005

This issue will raise ungodly stink with the liberals and no one else will care. The end result will be a lessening of the impact that the illegal wiretaps have on the public outrage scale. Those are the real issue. This is beyond ridiculous and might even lend credence to the neccessity of the other illegal searches. "OMFG, they're scanning for nukes! They must know something! Protect us President Bush!"
posted by IronLizard at 5:12 PM on December 23, 2005

"OMFG, they're scanning for nukes! They must know something! Protect us from President Bush!"

fixed that sentence for you
posted by wakko at 5:19 PM on December 23, 2005

Anyone that can't see the problem with ANY type of illegal search is an idiot...

Well, yeah.

Now, please explain to me why it is illegal.

Considering the debate among legal scholars about the legality of these searches and the lack of consensus (the comment sections of Little Green Footballs and Kos don't count) or case law I'm not as certain as you that the law is being broken. Wiretaps without warrants on US citizens, I can get behind the hang 'em high plan. Sniffing the air around a building, I'm not so sure.

Let's not conflate the two.
posted by cedar at 5:22 PM on December 23, 2005

Welcome back (?) Midas.
posted by Mid at 5:27 PM on December 23, 2005

and, MidasMulligan...you sound like a third grader saying "You can't get me in trouble 'cuz johnny did something worse and HE didn't get in trouble..." I don't care if Clinton did something illegal, he's gone, he can't hurt us... bush the shithead still can! He needs to go away!

I was pointing out two things:

1. If people are trying to use this as the current "outrage" in the campaign to discredit Bush (which a number of people are), I wonder why they were so silent when Clinton did the same (and far worse things) prior to 9/11. I assume that most folks trying to make political points will go out of their way to try to completely ignre the fact that CLINTON set the standard for horrendous behavior, but it is always charming to see how this is avoided (this one is good ... "He's not in power anymore, so its not relevent").

2. There are only two possible results of testing for radiation:
a.) No radiation is found. Nothing happens to anyone.
b.) Radiation IS found. And EVERYONE (except someone wanting to use it for illegal and horrible purposes) is better off because it is found.

For most of American history, this would seem like a very good thing to do.
posted by MidasMulligan at 5:42 PM on December 23, 2005

The REAL point is that they aren't against the law in certain circumstances ... in fact (as has been mentioned) both Clinton and Carter authorized them.

Jesus crap. First of all, if Clinton had done the same or worse, it is no justification for letting Bush off the hook. That argument is called a tu quoque fallacy.

More directly, however, there is NO EVIDENCE that Clinton and/or Carter EVER authorized warrantless searches or wiretaps against US citizens.

This is what Bush is claiming to have done. This is clearly, unquestionably contrary to the straightforward wording of the FISA law. Hence, if Bush says what he and Gonzales are saying that they have been doing (and intend to continue to do), then Bush is clearly breaking the law. This is not in question.

The executive orders of Clinton and Carter only authorized warrantless wiretaps/searches PER THE RESTRICTIONS OF FISA. Namely, that they NOT be conducted against US citizens. Hence, Clinton and Carter did NOT break FISA law.

This is so incredibly simple. It doesn't matter whether you believe it was appropriate or not. The fact is, Bush broke the law. It's fair enough to debate whether Bush had overriding authority to break that law via AUMF (discredited by Daschle's comments, et al.) or Article II (worth discussion). But it is most certainly an illegal act under FISA.

Sweet magnolia, people. The cognitive bias exhibited in some of these comments is embarrassing.

Since it seems probable cause to believe Bush broke the law (based on his own and the AG's comments), there needs to be two things to happen:

1. A finding of fact as to whether FISA was breached. Since the mechanism for a finding of fact in a possible Presidential breach of law is impeachment, that is the reasonable next step.

2. As for whether the President has the authority to authorize warrant-less wiretaps on US citizens based on Article II, that is a question that has to be addressed by the appropriate mechanism: review by the Supreme Court.

That's what would happen under the Rule of Law, anyway.
posted by darkstar at 5:46 PM on December 23, 2005

WHAT SPECIFIC HARM has, or COULD come to ANYONE from testing their residence for fricking RADIATION?

where do you live MM? I'd like to stop by, unannounced, oh, sometime next week to inspect your the interior of your residence for RADIATION.

The Kyllo court held, 9-0 I might add, that a man's home is his castle, and held 5-4 that even non-intrusive thermal imaging (that revealed no details of actual human activity) of the exterior was an unconstitutional invasion of privacy unless the police could show probable cause to the court and get a search warrant.

Note even that Scalia and Thomas were of the opinion that non-intrusive imaging of the just the EXTERIOR of the house was still an unreasonable invasion of privacy without a warrant.

Though radiation is a separate phenomenon with no human connection, there's still the ACT of search, ie human observation, independent of what is being collected, that is invasive.

The REAL point is that theyaren't against the law in certain circumstances ... in fact (as has been mentioned) both Clinton and Carter authorized them.

good to see the Drudge bs taking root.

about the fact that liberal blogs ignored Clinton

yeah, it is really weird how eg. metafilter has virtually NO history of talking about Clinton, especially in the mid-90s, at the height of his abuses...

Domain Name: METAFILTER.COM
Created on: 18-MAR-99
Expires on: 18-MAR-09
Last Updated on: 25-OCT-05
posted by Heywood Mogroot at 5:59 PM on December 23, 2005

brain_drain, its invasive in that they are using specialized equipment to "look" into private residences without court approval.

I agree with brain-drain that, absent actual physical trespass and observation, the bulk scanning for radiation is not intrusive, in that no human activity is being disclosed.

Ie if ONLY radiation is being sensed by the authorities, outside of what the general public can see, then there is no loss of privacy and no harm.

ie2 we, as a society, don't have a reasonable expectation to keep radiological evidence private.

This would be different if there were benign civil uses of radiological agents.
posted by Heywood Mogroot at 6:04 PM on December 23, 2005

After a moment to cool down, I have to apologize for the profanity. Totally uncalled for, ungentlemanly and coarsens the discourse.

The rest of what I wrote stands.
posted by darkstar at 6:17 PM on December 23, 2005

The argument that the NEST teams should have the same access to property as a delivery man seems reasonable to me.

That sounds perfectly reasonable to me. In case you didn't catch it in comedy form previously, I already addressed this. Delivery people come to your house when you ask them to deliver something to you. The mailman comes to your house because you expect to receive mail from him. Nobody expects their house to be searched for nuclear weapons, so yes, the NEST teams should have the same access; i.e., they should need to be invited first, or, get a warrant like any other search requires, even if that warrant is after-the-fact, per FISA.

ie2 we, as a society, don't have a reasonable expectation to keep radiological evidence private.

It's fun to make things up, isn't it?
posted by odinsdream at 6:21 PM on December 23, 2005

Note that I think the minority: Stevens, Rehnquist, O'Connor, & Kennedy of Kyllo had the better argument; Scalia was his usual obtuse self in failing to see the difference between "through-the-wall" vs. "off-the-wall" search.

The court has held that the state can access utilities records to search for abnormal energy usage in the home, and the thermal imaging was just disclosing abnormal energy exhaust, not any particular evidence of actual human activity:

the thermal imager did not expose any intimate details of Kyllo's life, only amorphous hot spots on his home's exterior.
posted by Heywood Mogroot at 6:27 PM on December 23, 2005

2. There are only two possible results of testing for radiation:
a.) No radiation is found. Nothing happens to anyone.
b.) Radiation IS found. And EVERYONE (except someone wanting to use it for illegal and horrible purposes) is better off because it is found.

You'd make exactly the same argument about drugs: there are only two possible results of testing for excess heat, light, smells, whateverthefuck...

...except the dozens of times that the cops have fucked it up and outright murdered innocent people because they've busted into the wrong home or someone thinking they were being home-invaded hauled out the gun or granny kacks it from a heart attack or whatever.

The people who are defending these illegal actions by their President are the very definition of anti-American. What the fuck are you all waiting for? It's time to start putting a hell of a lot of pressure on your representatives.

Don't allow your nation to be destroyed by bad and corrupt politicians!
posted by five fresh fish at 6:31 PM on December 23, 2005

ie2 we, as a society, don't have a reasonable expectation to keep radiological evidence private.

It's fun to make things up, isn't it?

No, I think if you poll people, they wouldn't have a problem with eg. satellites pinpointing radiological sources, even in private residences, from orbit.

The issue comes from the ACTUAL, human, invasion of expected privacy of having agents tooling around neighborhoods "measuring" for nukes.

There's a two-sided constitutional test, both the subject of the search needs to reasonably expect privacy, AND the society as a whole agrees with that.
posted by Heywood Mogroot at 6:33 PM on December 23, 2005

You'd make exactly the same argument about drugs: there are only two possible results of testing for excess heat, light, smells, whateverthefuck...

No, the issue is one of false-positives, and the fact we have mixed-emotions about eg. pot growers.

There's no rational basis for tolerating people making nuclear bombs in the privacy of their own home.

If there were search technologies that ONLY revealed radiological evidence, without ANY other disclosure of private matters, there would be no unreasonable invasion of the privacy of one's person, papers, or effects.
posted by Heywood Mogroot at 6:35 PM on December 23, 2005

There's a two-sided constitutional test, both the subject of the search needs to reasonably expect privacy, AND the society as a whole agrees with that.

There you go making stuff up again. Do you not understand that our law doesn't work in a "raise your hands if you think so" fashion?
posted by odinsdream at 6:37 PM on December 23, 2005

(though how Scalia and Thomas square the above opinion with their Kyllo decision is going to be interesting ... the minority WARNED them not to legislate from the bench, but did they listen ... ~~~no!!~~~
posted by Heywood Mogroot at 6:38 PM on December 23, 2005

From Kyllo:

As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.

You people are turning me into a conservative, folks.
posted by Heywood Mogroot at 6:39 PM on December 23, 2005

But Yale Law School professor Jack Balkin said Fourth Amendment privacy rights can still be violated without human contact if the NSA stores copies of everyone's messages, raising the possibility that a human could get access to them later. The administration has not revealed how long the NSA stores messages.

this was interesting.... I was reading the Roe v. Wade decision today (I'm getting addicted to SCOTUS decisions), and the court denied standing to a married couple (the Does) that was afraid the Texas law would, in the future, should they get pregnant, infringe on their freedoms.

The court asserted that worrying about future harm is not enough standing to make a case.

I'll note that Rehnquist, being the asshole he was, in his dissent said that Roe herself no longer had standing to sue for injunctive relief because she was no longer pregnant by the time the case got to the SCOTUS.
posted by Heywood Mogroot at 6:49 PM on December 23, 2005

Would someone who's familiar with radiation detecting and all that please figure out how strong a radiation source would be required in order that it be detected from streetside distance, say 30' away?

I'm thinking that if it's powerful enough to be detected from that distance, it's powerful enough to cause physical harm to the occupants of the home.

In which case the radiation detecting is an entirely bogus cover for spying on people.

---

It occurs to me that the chickenshits and chickenhawks need an option that allows them to save face. It must be completely humiliating to feel that one needs to continue to support one's ill-chosen government for fear of having to admit that it was a mistake to elect them.

Does the structure/rules of the US political system support a means to remove a person or party from power without requiring full-on open revolution?

ie. in Canada, the opposition can sometimes force an election, the Governor General can always force an election, the provincial Premiers can apply crippling pressure, etc.
posted by five fresh fish at 6:52 PM on December 23, 2005

In which case the radiation detecting is an entirely bogus cover for spying on people.

I agree that this is bad. but..

please figure out how strong a radiation source would be required in order that it be detected from streetside distance, say 30' away

particulates can dissipate into the local environment, so it's not a matter of Roentgens or whatever.
posted by Heywood Mogroot at 6:59 PM on December 23, 2005

Besides, the more of these things that happen unchecked, the more precedents are in place for further violations, no?
posted by Samizdata at 7:09 PM on December 23, 2005

Nobody expects their house to be searched for nuclear weapons...

Gawd, this is frustrating.

Nobody is kicking down doors or pulling 'black bag' jobs.

Vans, with some technicians in them, are patrolling our streets. Sometimes, when a building is particularly solid or set back from the street it is necessary to get closer, the linked story says this happens 15% of the time. This might mean pulling into a driveway or parking lot.

The air around these buildings is being sniffed for radioactivity. The air.

They are allowed to do this. It is not a search.

Kyllo is not relevant. Thermal imaging is invasive and literally sees through walls. This is not the same thing as detecting something in the air, something that reveals nothing about the interior of the premises or the people inside. It's also worth mentioning that grow lights or other heat sources have legitimate uses and are evidence of little more than the fact you like to garden or prefer a warm house -- radioactive material, in detectable levels, has very few uses outside of the laboratory.

Now, if you fail to seal your grow operation properly and vent the dank out into the street and a cop smells it, your toast. If they suspect something and knock on your door and smell it, your done. That's the analogy. Whether it's cops nose or an electronic device they are sensing what's in the air -- not searching private property.

The bulk of the people in this thread are frothing at the mouth because of these illegal actions. Yet, nobody has come close to explaining what it is about sniffing air without a warrant that is illegal. The trespass test also fails. The police are certainly entitled to come knock on your door anytime they want. You don't have to let them in, but just try telling them that they aren't allowed to pull into your driveway to talk to you.

This is not the same thing as wiretaps or searches without a warrant. It is crazy to conflate two and the more knees that jerk over this red herring the less attention legitimate -- and, hopefully, impeachable -- breaches of the law and Constitution will get.

By all means, discuss the resources being used, the profiling used for targetting or the technical merits of the procedure; but, please stop ranting about 'illegal searches' until you can cite the relevant law and/or a court establishes that is, in fact, illegal.

Man, that Rove is a clever dude. Radiation and nuclear bombs are so damn sexy and now we can all focus on the illegality of a search that is neither a search nor proven to be illegal.
posted by cedar at 7:21 PM on December 23, 2005

Thermal imaging is invasive and literally sees through walls

This is incorrect. The thermal imaging in the Kyllo case was just imaging the WALLS themselves. The majority had a weird, new, standard of "not in general use", missing the point of whether or not actual human activity was being surveiled from the outside.
posted by Heywood Mogroot at 7:26 PM on December 23, 2005

Yet, nobody has come close to explaining what it is about sniffing air without a warrant that is illegal.

It depends how much actual invasion of privacy is going on. We wouldn't tolerate a Secret Police state where everyone we come in contact with -- meter readers, garbage men, UPS guy -- are deputized agents working for the state security apparat (eg. that TIPS program didn't fly very far).

The trespass test also fails. The police are certainly entitled to come knock on your door anytime they want.

No, they're not. This, reading "anytime they want" to mean "as they will", would be unconstitutional infringment of civil liberties to be let alone.

You don't have to let them in, but just try telling them that they aren't allowed to pull into your driveway to talk to you.

I believe the court wouldn't accept this level of nuisance, since they have made it pretty clear with Kyllo that the home is sacrosanct from arbitrary, invasive inspection.
posted by Heywood Mogroot at 7:34 PM on December 23, 2005

Heywood Mogroot: This is incorrect. The thermal imaging in the Kyllo case was just imaging the WALLS themselves.

Your entirely right. I'm not sure exactly how that works, but that seems to be what they are saying.

I was looking more at the portion of the opinion when they say the methods, "...uncovered portions of the house and its curtilage that once were private."

It would be difficult to say that the air around a building was 'once private'. Air is funny like that, unlike walls, it moves.
posted by cedar at 7:39 PM on December 23, 2005

It depends how much actual invasion of privacy is going on. We wouldn't tolerate a Secret Police state where everyone we come in contact with -- meter readers, garbage men, UPS guy -- are deputized agents working for the state security apparat (eg. that TIPS program didn't fly very far).

No, but I wouldn't have a problem with the meter reader or UPS guy wearing a radiation detector.

No, they're not. This, reading "anytime they want" to mean "as they will", would be unconstitutional infringment of civil liberties to be let alone.

Sure they are. These people are being targetted because the FBI, for reasons however specious, believe they may be involved in something illegal. They are certainly within the law to investigate.

They can't enter and search without a warrant, but they can surely knock on the door.
posted by cedar at 7:45 PM on December 23, 2005

No, but I wouldn't have a problem with the meter reader or UPS guy wearing a radiation detector.

agreed. AFAIK there are NO false positives with this, and from a civil liberties standpoint I have no problem having a "zero-tolerance" catch & kill program for radiological terrorists.

These people are being targetted because the FBI, for reasons however specious, believe they may be involved in something illegal

I'm thinking of the 15% of the people who have walls that are too thick, or too much setback. These are the innocent people who are getting nuisanced by this.

Then again, we all tolerate incredible nuisance at airports, so the reasonable test does have two axes -- our willingness to lose privacy relative to the perceived danger.
posted by Heywood Mogroot at 7:53 PM on December 23, 2005

(by losing privacy, I mean a "who's that van in our driveway" reaction to the invasion of psychologically private space)
posted by Heywood Mogroot at 7:55 PM on December 23, 2005

So let me understand this. Federal officials visit Mosques with Geiger counters (or whatever the modern equivalent is called). The mosques are open to the public. Where's the constitutional harm? Radioactivity is not the heat of thermal imaging. Why? Because all human activity gives off heat; radioactivity can only be the sign of dangerous illegal activity. This is more fear-mongering by the Left.

F'em. Good work, President Bush.
posted by ParisParamus at 8:00 PM on December 23, 2005

There is no constitutional right to bear uranium.
posted by ParisParamus at 8:01 PM on December 23, 2005

I'm thinking of the 15% of the people who have walls that are too thick, or too much setback. These are the innocent people who are getting nuisanced by this.

Maybe. Maybe not. I don't know enough about the technology to determine the nuisance level. I hope that they are sophisticated enough that it's little more than a strange vehicle turning around in your driveway.

Then again, we all tolerate incredible nuisance at airports, so the reasonable test does have two axes -- our willingness to lose privacy relative to the perceived danger.

This is where my ignorance is most bothersome.

I simply don't know enough about this to have any handle on what the danger is. Fearless Leader would have me believe that airplanes are going to start falling out of the sky and every mosque is a hotbed of terrorism. I'm not buying that -- I know very little about Islam but can tell you that the fellows worshipping down the street have done more for my little piece of the ghetto and the day to day safety of my children than every city agency combined.

On the other hand, I sure would hate to be wrong and get all blowed up. That's why I support this kind of surveillance in general. It seems a decent way to monitor a specific threat without treading unduly on the civil liberties of the innocent. Who knows, they might find one someday.
posted by cedar at 8:09 PM on December 23, 2005

That is, of course, assuming that this method is even remotely effective at combating a threat that honestly hasn't even been defined.

I mean, the onion did a nice little comedy piece about this a few weeks ago: Terrorist Has No Idea What To Do With All This Plutonium, but the topic it discusses is actually (as is usually the case) not at all funny - what the hell is this threat we're "fighting"? Does it even make the slightest bit of sense?

How are we "more protected" by detecting radiation? What's the next step - raid the mosque because radiation was detected in the air surrounding it*? On that basis alone?

Has any agency done a study of the feasability of a loosely-organized group of religious fanatics actually being able to construct an effective nuclear device? It took the best scientists from around the world, working in complete secrecy, with the best equipment and funding available in the world how long to make a successful device? And how large was it?

* Admittedly I don't know much about detecting radiation - but I find it interesting that the thread took a turn for the "in the air" theory pretty sharply - even though the article specifically mentions that it does not go into detail about the actual methods. Where did everyone decide this was more-or-less air monitoring?
posted by odinsdream at 8:32 PM on December 23, 2005

How are we "more protected" by detecting radiation? What's the next step - raid the mosque because radiation was detected in the air surrounding it*? On that basis alone?


Get a search warrant from a judge, and raid the place.
posted by ParisParamus at 8:38 PM on December 23, 2005

it's time for giant class-action suits--the People of the United States v. the Bush Administration and all agencies involved.
posted by amberglow at 8:47 PM on December 23, 2005

I hope that they are sophisticated enough that it's little more than a strange vehicle turning around in your driveway.

Like I said, the SCOTUS takes a jaundiced eye to any invasion of the sancity of the privacy of being in one's home the "curtilage" of one's home.

The whole point of the 4th amendment is simply not being hassled by the government without a good reason, most especially when in one's home.

But this hassle is in fact similar in scale to the airport hassles, so the "reasonable" test may not be a problem. The difference is, though, that hassles at airports, border crossings, and roadblocks is far away from the home. Driving up to persons' houses is a different constitutional area.
posted by Heywood Mogroot at 8:48 PM on December 23, 2005

Odinsdream, I agree that it's pretty unlikely the bad guys are going to whip one up in the basement. However, I imagine they could buy or steal one -- I hear the security in the old Soviet states isn't all it could be. Or some lunatic dictator could give them one.

I wonder what the feasability of a loosely-organized group of religious fanatics highjacking four commercial jets on the same morning is?

My scientific knowledge is pretty much nonexistant but five minutes with Google tells me that a Geiger counter is basically a gas filled tube that is electrified. When a radioactive particle enters the tube it interacts with the gas creating a pulse (click) that can be measured.

In essence, the Geiger counter is measuring particles in the air.
posted by cedar at 8:59 PM on December 23, 2005

Like I said, the SCOTUS takes a jaundiced eye to any invasion of the sancity of the privacy of being in one's home the "curtilage" of one's home.

So, the obvious solution -- at least until the technology improves -- is to knock out that fifteen percent. For the ones they can't get from the street they will just have to come up with a compelling enough reason to get a warrant.

In todays climate that shouldn't be too onerous a task.
posted by cedar at 9:04 PM on December 23, 2005

It took the best scientists from around the world, working in complete secrecy, with the best equipment and funding available in the world how long to make a successful device? And how large was it?

There are three types of radiological threats:

1) dirty bomb: just blow something up with radiological waste in it, and you get a nice dispersion of nastiness.

2) Simple Uranium bomb. Press xlbs of weapons-grade U-235 into a critical mass correctly, and BOOM! there goes the zip-code.

3) High Tech bomb: plutonium, other stuff, lots of engineering, and you get a BOOM! without all the hard-to-make U-235.

As for the WW2 nuclear effort, the hard part was getting the U-235. The U-235 device was so simple (just a cannon firing one subcritical piece into the other) that it wasn't necessary to test it. That was Little Boy, which would fit in a Ryder truck fine these days.

The bulk of the WW2 research was a) figuring out how to manufacture U-235 for Little Boy, and b) working on how to use Plutonium, a byproduct of fission, as a bomb-material for Fat Man.

If you were to give me ~100lbs of U-235 I could make a bomb no problem, just from my reading of the Manhattan Project and basic knowledge of physics.

as for present-day particulate monitoring, I know that radiation really can't zoom that far through materials -- alpha is stopped by paper, beta by clothing, gamma rays can zoom for a while, but bricks can stop them.
posted by Heywood Mogroot at 9:09 PM on December 23, 2005

the Geiger counter is measuring particles in the air.

alpha particles are helium nuclei flung off by eg. U

beta rays are electrons that are really cooking

gamma rays are energy waves that can pass through several inches of metal

and great, all this searching means tomorrow the black van is going to tool down my street...
posted by Heywood Mogroot at 9:18 PM on December 23, 2005

I wonder what the feasability of a loosely-organized group of religious fanatics highjacking four commercial jets on the same morning is?

Is this supposed to somehow approach the level of difficulty of building a nuclear bomb, no matter how easy Heywood Mogroot thinks it would be? It doesn't even come close.

As for H.M.'s list, #1 is no more dangerous than a "clean" bomb. The whole "dirty bomb" thing is a manufactured threat, certainly not something worthy of developing a national policy of having detection vans roving our neighborhood streets.
#2; Yes, the keyword in your sentence was "correctly." That's where the engineering and research comes in.
#3; Not even remotely feasible.
posted by odinsdream at 9:20 PM on December 23, 2005

odins, the Executive is simply looking at cost-benefit here.

150 radiological teams, at $2M/yr each, is a $300M/yr expense, 0.06% of our annual defense budget.

If they're tooling down the street, there is ZERO 4th amendment issue involved, unless they're getting false positives from radon or something.

What, exactly, is your problem with it? The fear-mongering?
posted by Heywood Mogroot at 9:31 PM on December 23, 2005

(as I've said above, I find the physical insertion of inspection teams somewhat troubling, since that is an invasion of privacy without probable cause)
posted by Heywood Mogroot at 9:32 PM on December 23, 2005

Let me guess, we don't want the smoking gun to come in the form of a mushroom cloud? Come on - and that was with an entire country - we're talking about groups of people who blow up busses. Conventional explosives are much, much more of a threat, and infinitely more accessible to these kinds of operations. I've seen no good evidence that the threat of terrorists building or obtaining a nuclear device is at all realistic. There is a wealth of evidence for conventional explosives, of course. So - are we now in the business of protecting ourselves against imaginary threats? What percentage of the GDP should we allocate to protect against these phantoms, you know, just in case?

In any case - yes, I do have a problem with the fear-mongering. You don't? I didn't think I lived in a country where the most important thing was safety. I thought the most important thing was freedom. I accept that every time I go to the mall I put myself at risk of being killed in a suicide bombing attack - I still go to the mall. I don't want my mall to be policed by bomb-sniffing dogs, either, even if that might make me feel "better" about not being killed by an attack, and wouldn't technically interfere with anyone's rights. That's not the country I want to live in.
posted by odinsdream at 10:02 PM on December 23, 2005

I-word! I-word! I-word! Let's all start saying it...!

Has he had any unsanctioned blowjobs?

No?

Well, that's all right then. As you were...
posted by PeterMcDermott at 10:18 PM on December 23, 2005

Heywood: the rule of law is not about short term cost benefit analysis. This has been settled in kyllo, Thermal radiation is viewable from down the street as well.

Paris: How about get a search warrant 72 hours later and raid the place, as per FISA? At least there is oversight(by a secret court)? Or is the light of day too much for the republicans to handle?


Seriously, when did the republicans, and america in general become so afraid? Why is Bush such a wuss? We live in a free society! There are risks to living in a free society! If you cannot accept those risks, go live in North Korea. You won't get mugged, and fundamentalist wahhabi muslims won't threaten to blow you up. Though if you don't parrot the party line, you might start to understand the risks involved. Luckily, some people here seem fairly adept at that skill. Otherwise accept the possibility that those free citizens standing next to you might want to kill you, and that you can't violate their rights based on a hunch. You've got to have evidence, and you can't violate their rights to get it. That's what the rule of law is about, and it's why we don't live in tyranny.

Defenders of a Surveillance Society: You are weak, scared and spineless. You are not worthy of calling yourselves Americans. Land of the Brave, my ass.

[/rant]
posted by Freen at 10:21 PM on December 23, 2005

So let me understand this. Federal officials visit Mosques with Geiger counters (or whatever the modern equivalent is called).

Saddam DID SO have those weapons of mass destruction, and any minute now, we'll get around to finding them.

If he's been hiding them on American soil, then so much the better...
posted by PeterMcDermott at 10:23 PM on December 23, 2005

You have to let this one go. I see some of the responses here and elsewhere and I just shake my head. This is not a winning case, at least in the eyes of Mainstream America.

By concentrating on this case and raising a stink all you are doing is empowering this administration and playing into their hands. Come on, this is a set-up people. US News & World Report? Come on!

They want the meme to spread "Bush was just checking for radiation with all them there illegal searches - maybe they shouldn't be illegal. You must really hate America if you want radiation in your neighborhoods. What about the phones? I don't know maybe they were talking about all those Nuklur Weapons they were building. Clinton broke the law to get a blowjob and Carter did it because he was a dirty hippie peanut famer - Bush breaks the law to sniff out Nuklur Weapons O Mass Destruction in our neighborhoods and you want him impeached? Wait... I bet you hate Christmas too!"

Seriously, this story's sole purpose is to conflate the issue and the timing of it's release is not a coincidence. Let this one go.

There is a slam dunk case against this administration and once again their media savvy and ability to frame the debate is going to get them off if these issues coalesce. It shames me a bit to say it but sometimes you have to pick and choose your battles. Let this one go.
posted by mortisimo at 10:24 PM on December 23, 2005

This has been settled in kyllo, Thermal radiation is viewable from down the street as well.

Infrared sensors can image human activity with sufficient resolution, and even with the minimal resolution of Kyllo's sensors you could eg. tell when someone was taking a shower in the house.

There is NO reasonable human privacy connection with radiological agents in and from the house.

One of the key concepts of 4th amendment is that it protects PEOPLE not places. Does anyone have a (reasonable) sense of personal violation if a geiger counter is run down their street?

There is NO imaging capability or other form of exposure one's private areas involved, and, more importantly, this requisite of 4th Amendment protections:

"and society is willing to recognize that expectation as reasonable"

is patently not present wrt "reasonable expectation of privacy" of harboring radiologicial agents.

Paris: How about get a search warrant 72 hours later and raid the place, as per FISA?

FISA covers electronic surveillance of communications, not radiological threats.
posted by Heywood Mogroot at 11:03 PM on December 23, 2005

I believe there is a distinction, and one which is legally valid, between thermal imaging of someone's house and merely sniffing the air outside it.

The former collects specific information about what is going on within the house (i.e., something that is generating abnormal heat signatures). The latter is merely testing what could not be considered specific to private activity (i.e., in the outside environment).

However, the question arises as to whether some of the tests are being done with the specific intent to elucidate what might be going on in the house. That is, are vans driving up into people's driveways and sniffing the houses to detect evidence of contraband (in this case radioactive materials) within the house? Doesn't that then functionally elucidate the nature of activities/items inside the house?

Would it be acceptable for K-9 units to bring hounds to sniff around your front yard searching for any signs of drugs that might be inside? Without a warrant? I don't think so.

I am personally torn by this, because I would love for the government to be able to find anyone messing around with radioactive materials. As I would want them to be able to find anyone running a crystal meth operation, trafficking in ocelots or burying people in their basement and put a stop to it.

But I also know that the government will always have "good reasons" to abridge peoples' rights. Police who are searching around your side yard for radiation are not simply going to look the other way if they find any other contraband. And so, under the aegis of "looking for radiation", government agents now have pretty much unlimited access to enter and conduct searches on my provate property without a warrant. That's what bothers me about this.

If they were sniffing from the sidewalk, that's one thing, but to come up into my yard with their detection equipment, without a warrant, seems to be a warrantless search of my property. Which, in my limited understanding, is problematic.

But while I have certain conflictions and legal objections to warrantless entry of private property to conduct radiation surveillance, though, I am in NO way conflicted about the warrantless wiretaps. Those activities are most definitely breaking a very clearly worded federal law. When a President breaks a law, our Constitution says we're supposed to have an impeachment.

That there are a whole slew of people who are downplaying this crime because they are Bush apologists or because they fear terrorists more than they value everyone else's civil liberties is almost as scandalous as the fact that Bush broke the federal law to begin with.
posted by darkstar at 5:31 AM on December 24, 2005

It's not a crime. It's constitutional and violates no law. However I hope you think it is a crime if it annoys you.
posted by ParisParamus at 6:36 AM on December 24, 2005

"Paris: How about get a search warrant 72 hours later and raid the place, as per FISA?"

Actually, the French are probably doing this, too.

I reject the notion that one should need a court order to sniff the air for radiation. For example, if a synogogue is open for business, I see no issue with an NSA employee equipped with a "sniffer" opening the front door, chatting with people in the office, looking around.


And by the way,

"The Clinton adminstration has inherent power to conduct warrant-less searches for national security purposes"--Jamie Gorelick, 1994
posted by ParisParamus at 6:48 AM on December 24, 2005

It's not a crime. It's constitutional and violates no law. However I hope you think it is a crime if it annoys you.

This is factually, clearly wrong.

1. FISA is a federal law.

2. FISA requires that warrantless wiretaps NOT be conducted if there is any chance that communications of US citizens might be tapped. FISA is a federal law.

3. Ergo, wiretapping US citizens without a warrant breaks federal law.

If you persist in saying Bush broke no law in ordering warrantless wiretaps on US citizens, then please refute one of the above three numbered statements that form the argument in opposition to your position.

Because, so far, all you have is argument by assertion. If you can refute my points specifically, then I'd be happy to change my mind. But so far, you're not even trying to address the substance of the argument.

You are clearly, demonstrably wrong on this point, P_P.
posted by darkstar at 7:01 AM on December 24, 2005

When will people stop trotting out the "It was OK for Bill Clinton to do it, so it's OK for Bush!" Although partisan politics play a role in these arguments, I believe that I would be indignant about this, regardless of the party in power -- not everyone in the world thinks that Bill Clinton was the pinnacle of good government.
posted by trey at 7:04 AM on December 24, 2005

The 4th amendment is all about expectations of privacy. Have a conversation in a public place and the cops overhear it? No expectation of privacy, you're toast. Put a bunch of incriminating evidence in the garbage at your curbside? Same thing.

Emit radioactive particles that travel through your house and out into the world, where they may be picked up on a geiger counter? Not seeing a privacy interest here.

The thermal imaging, as other have said, is distinguishable because people do have an expectation of not being visualized by the police when taking a shower. Yes, yes, you're still emitting radiation, of a form, that can be detected on the street--just like the nukes--but it's the visualization that is the problem.

The only real issue here is whether the gov't can actually drive up on your property (i.e., in your driveway or in a parking lot) to get a better signal on the geiger counter rather than just crusie by on the public street. I'm not so cool about that without a warrant. But, if these are public places (i.e., mosques or community centers) that allow visits by the general public (i.e., "all are wlecome!"), then I'm not so sure there's a real privacy interest here. A residence would be different.
posted by Mid at 7:17 AM on December 24, 2005

But FISA does not define the limits of constitutional, warrant-less searches!
posted by ParisParamus at 7:19 AM on December 24, 2005

Shorter Paris: If Clinton and the French did it, then it is clearly morally and legally sound.
posted by Freen at 9:18 AM on December 24, 2005

Freen: I have no respect for the French. IF Clinton did it, that doesn't make it right or Constitutional. But if Clinton did it (Gorelick spoke of the legality of doing it, not that it was done, but that just means it was done...) But it does reduce the whole issue to a constitutional debate; if it was, a close call, than it wouldn't be "sexy" for the Left and on Metafilter.
posted by ParisParamus at 9:21 AM on December 24, 2005

If you persist in saying Bush broke no law in ordering warrantless wiretaps on US citizens, then please refute one of the above three numbered statements that form the argument in opposition to your position.

darkstar, you need to look at what FISA defines as "electronic surveillance" in the first place. See my posts in the other thread, but the short answer is, to my untrained eyes, there are plenty of loopholes in FISA.

eg. if they tap a cable outside the US, they can do what they want without any application of FISA.
posted by Heywood Mogroot at 9:22 AM on December 24, 2005

My beef isn't directly with a debate over the constitutionality of the surveillance; it's with the idiots shouting IMPEACHMENT!

Then again, as Mark Steyn has written:

Remind me never to complain about "liberal media bias" again. Right now, liberal media bias is conspiring to assist the Democrats to sleepwalk over the cliff.
The Chicago Sun-Times, November 17th 2002
posted by ParisParamus at 9:25 AM on December 24, 2005

PP: nowhere in Gorelick's quote, contrary to your little neocon friends at nro fantasies, does she say warrantless searches of US citizens, which is the point under review.

From the article:

"The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers."
posted by Heywood Mogroot at 9:26 AM on December 24, 2005

Shorter, slightly more pithy Paris: This has been going on for years, done by morally reprehensible people I despise for committing such crimes against civilization, however, now that my team is doing it, It's A-OK.
posted by Freen at 9:29 AM on December 24, 2005

PP: I don't believe it is a High Crime & Misdemeanor to collect this surveillance for intelligence purposes, just an aggressive expansion of the power of the Executive.

Should Congress and/or the Courts order the Executive to stop collecting this, then we get into a Constitutional crisis.

And that comes down to politics. If the people do not want to be spied upon like this, they can motivate the House to impeach and the Senate to convict.

Saying people are idiots for bringing up the impeachment of Bush is simply unamerican. People have a good-faith reason to balance the possibility of a really abusive secret police state vs. the intelligence value of spying on Americans.
posted by Heywood Mogroot at 9:31 AM on December 24, 2005

Having a good faith reason to balance... /= yelling impeachment every time you don't like what the President doing is asinine.
posted by ParisParamus at 9:35 AM on December 24, 2005

PS: it's pretty rare that I use that word, either here or elsewhere.

PS2: this is obviously a concerted effort by the NYT to make the President look bad and scuttle the Patriot Act.
posted by ParisParamus at 9:37 AM on December 24, 2005

PP: I see you apparently chose to ignore the point that gorelick's statement pulled out by nro was in the context of surveilling foreign embassies and suspected foreign agents, two points that totally destroy any similarity between the Clinton surveillance and this Bush surveillance, since calling overseas does not make one a suspected foreign agent.
posted by Heywood Mogroot at 9:46 AM on December 24, 2005

Heywood, that's a good point. Except it's a point that was made pre-9/11. There was no perceived compelling need to survey wacko Islamofascist terrorists at the time. We are rapidly approaching a period where wackos in Tehran and elsewhere will have nuclear and radiological capability. Times change we need to balance harm v. good.

Listen. i respond to over-the-top claims and proposals in kind. i also respond to nuanced arguments in kind.
posted by ParisParamus at 9:51 AM on December 24, 2005

yes, I have made similar points that reasonableness is a two-dimensional thing.

We have our reasonable expectations of privacy, and the government has their reasonable exercises of authorities to execute their constutional and statutory duties.

The intersection of these is the society we live in.
posted by Heywood Mogroot at 10:00 AM on December 24, 2005

Paris: There was no perceived fundamentalist islamic threat prior to 9/11??? You've got to be kidding me. The world trade center was bombed before by fundamentalist muslims. 9/11 only change the world for people who were living with blinders on.
posted by Freen at 10:59 AM on December 24, 2005

Freen, that's why I said "perceived." The Clinton Administration treated terrorism as a criminal justice problem (like Election Mode Kerry).

There are people out there who want to WMD us. We need to understand that. Iran will have nukes soon--wake up!
posted by ParisParamus at 11:13 AM on December 24, 2005

Clinton didn't go to war against Osama in Afghanistan! We should have invaded Afghanistan in 1993!
posted by ParisParamus at 11:14 AM on December 24, 2005

"Net May Pull in All U.S. Calls Overseas"

I wonder if they are tapping services like Skype and Vonage.


Heywood Mogroot writes "There is NO imaging capability or other form of exposure one's private areas involved, and, more importantly, this requisite of 4th Amendment protections:"

What so the only privacy worth protecting is imaging of your privates?

ParisParamus writes "this is obviously a concerted effort by the NYT to make the President look bad and scuttle the Patriot Act"

You say that like it's a bad thing.
posted by Mitheral at 4:04 PM on December 24, 2005

We're seriously angry that they held up a geiger counter to someone's house without a warrant?

Yup.

A cop on my property without a warrent is to me just a guy in a blue outfit carrying a gun - and he's going to get shot.

But this is all academic. Why wouldn't a judge allow a blanket warrent(s) to gauge radiation levels in the area? What good can possibly come - in this case - of avoiding judicial approval or getting at least a public judicial opinion?
Even if they "know" this is ok to do without a warrent? Since when do bureaucrats not play "cover our ass"?

This lends credence to the "participants were threatened with loss of their jobs when they questioned the legality of the operation" part of the story.

Well, why would that happen?

After that the reasoning becomes simple.

Speaking of simple... I remember back in the Clinton years, H. Allen Holms and General Shoomaker sat on their asses all day drinking coffee. No one was even talking about counterproliferation, precluding and resolving terrorist
actions throughout the entire threat spectrum, taking defensive measures to reduce vulnerability to terrorist acts, conducting reconnaissance or information ops to affect adversary information and information systems. No way. Not in my military!

We weren't fighting Al Qaeda in Bosnia back before anyone had started to pretend they were experts on Osama bin Laden and the World Islamic Front for Jihad Against the Jews and Crusaders.

The 1998 U.S. embassy bombings in Nairobi, Kenya, and Dar-Es-Salaam, Tanzania, were "total political theater" and we hired some rent-a-cops to investigate those.
Loads of other embassies were blown up...but Clinton somehow hid those reports and replaced them with propaganda of intelligence work and military action combining to defeat plots to blow up embassies.

Clinton then, personally, fired a missle up a camels ass in order to "wag the dog" and divert suspicion from an important blowjob investigation.

Anyone remember that?

I seem to remember hearing "wag the dog" from right wingers over and over and over (Sen. Arlen Specter comes to mind) everytime anyone mentioned fighting terrorism.
The federal anti-terror budget tripled on Clinton's watch, to $6.7 billion. It was said he was making the thing with bin Laden personal and accused of hysteria.

In 1993 I seem to remember people being against nation building and questioning why we were in Somalia.

Same pea-brain reflexes that partisan adherance is the best method of thinking.

Same thing here. God forbid we recognize the problem as opposed to hashing details.
posted by Smedleyman at 12:09 PM on December 26, 2005

"Why wouldn't a judge allow a blanket warr[a]nt(s) to gauge radiation levels in the area? What good can possibly come - in this case - of avoiding judicial approval or getting at least a public judicial opinion?"

And if a Judge would approve it in every case, what's the big deal? The point is, every investigative action doesn't require a warrant--ever hear of probable cause? There's simply no veritable deprivation of rights involved in sniffing for radioactivity. The deprivation would come if one needed to break into/on property to do the sniffing. And if the mosque is open to the public, it's also open to a government agency that wants to sniff.
posted by ParisParamus at 12:31 PM on December 26, 2005

/derail
Is this:
"The Clinton adminstration has inherent power to conduct warrant-less searches for national security purposes"--Jamie Gorelick, 1994

The same as this or this which was discussed here?
My brain isn't on today.
posted by Smedleyman at 12:37 PM on December 26, 2005

"And if a Judge would approve it in every case, what's the big deal? The point is, every investigative action doesn't require a warrant--ever hear of probable cause?" - posted by ParisParamus

My point exactly. Why then not have the assurance? Both from a civil liberty and legal standpoint. How does procuring a warrant interfere with a non-targeted sampling investigation?

Yeah, right, I never heard of probable cause.

Actually - what probable cause do they have? What initiated the investigation? What reasoning is there to attract suspicion? Why would a cop think there would be elevated radiation levels near a mosque as opposed to another building?

The point is, every investigative action should have a reason behind it. There should be a reason a cop diferentiates between persons A and B.

"In search of a terrorist nuclear bomb..." - so they have information there might be a nuke in downtown Washington D.C.? I demand they evacuate the city.

"...they have resumed daily checks during periods of high threat"
So they search for nukes based on generalized threat levels which are elevated? This is third hand information. Do we want to allow warrentless searches based on third hand information?

/They're legal, but I'm against random DUI stops. Random stop and checks of any kind for that matter.

If it's like thermal imaging - it's illegal. If it's non-directional - then what good is it to avoid a warrent? If it's about urgancy and the capital of the U.S. why is it being done in Chicago, Detroit, Las Vegas, New York, and Seattle? (Presumably also without warrants)

And if it's ok, why did those who complain lose their jobs?
posted by Smedleyman at 12:57 PM on December 26, 2005

"There should be a reason a cop diferentiates between persons A and B." - typical common sense concessions of course. If person A attracts attention somehow (typical police investigation initiatives) - but I'm arguing closer to the cop on the beat smelling dope as opposed to the cop circling the same house every day until he smells it.
posted by Smedleyman at 1:01 PM on December 26, 2005

Curiously, I'm not against random DUI stops. I am particularly in support of them on the high-risk days of the year (New Year's Eve, for example.)

By that rationale, I'd have to be in support of random Geigering... if I thought that the risk to my own safety and the likelihood of catching transgressors were high enough.

But I don't think any of these broad spying actions are going to be effective and I do not think any one citizen of the USA is at high risk of being harmed by an attack. At their most spectacular best, the bad guys haven't been able to kill more than a few thousand of you, and achieved that only by unexpected luck.
posted by five fresh fish at 2:26 PM on December 26, 2005

No, it's not like thermal imaging. There is/are no benign explanation(s) for detecting radiation of the kind they are looking for (or should be looking for).

Here's another analogy: why is it not unconstitutional for police radar to be measuring you speed on the highway, even when you're not oging over the speed limit? Should all radar dections require a search warrant? Please distinguish this from going "radiation hunting."
posted by ParisParamus at 2:42 PM on December 26, 2005

five fresh fish: "we shouldn't have entered WWII because the Nazis never go to US shores....
posted by ParisParamus at 2:43 PM on December 26, 2005

(got to our shores)
posted by ParisParamus at 2:46 PM on December 26, 2005

Don't worry, you're safe in Canada. The terrorists like Canadians...
posted by ParisParamus at 2:46 PM on December 26, 2005

Aw - that's so sad that you can't comprehend how radar detectors work Paris!
posted by odinsdream at 12:06 PM on December 27, 2005