"ALL CAPS IN DEFENSE OF LIBERTY IS NO VICE."

Saturday, December 24, 2005

THE LEFT IS WRONG AGAIN: RADIATION DETECTION WITHOUT A COURT ORDER IS LEGAL AND CONSTITUTIONAL

USNEWS ran a traitorous story - based on an illegal and traitorous leak - about how the FBI and the DoE's "N.E.S.T." service have been monitoring hundreds of sites in the USA (which would have no legal use of radioactive material) in an effort to detect radiation which might indicate the presence of radioactive material for a nuclear device or a dirty bomb. Many of the sites monitored have been mosques. (GEE: I WONDER WHY?! Sheesh.)

Many other outlets in the MSM (350 so far, according to a GOOGLE NEWS search I just ran) have portrayed this monitoring by the FBI as illegal and unconstitutional because these efforts at radiation detection were done without a court-order, and just based on intelligence. THIS IS WRONG. Here are two great analyses of the issues involved:

(1) From a commenter ("The Original TS") at VOLOKH who asked if measuring ambient gamma rays different from measuring infrared radiation emanating from a specific surface (which the SCOTUS has previously held does require a court order? [SEE: Kyllo v. United States.]

Yes, extremely different. First, gamma ray radiation can't be used for imaging. Infrared radiation can. One of the big Constitutional problems in Kyllo was that allowing the police to do infrared imaging would effectively mean that everyone was living in glass houses without curtains.

Measuring radioactivity does not present the same issues. It's more aking to "smell" than it is to "sight." While it is improper for the police to use infrared detectors to "see" a drug lab from the street, there is no problem with "smelling" a drug lab from the street.

Another point is that, unlike infrared imaging, measuring radiation is extremely unlikely to reveal legal activity. Everything emits infrared radiation, especially, people. Hardly anything emits high levels of radiation, especially people. In fact, I'd be willing to bet (though I don't actually know for sure) that possessing something that is highly radioactive is a per se violation of some federal statute. In other words, at some level, radiating your neighborhood is a crime in and of itself.

The point here is that measuring radiation levels is not violating anyone's privacy since it won't provide information regarding legal activities.

Generally speaking, can law enforcement authorities use nuclear detection devices against someone's house without a warrant? This question is at root of the latest "no warrant" controversy.

Readers would do well to examine the Supreme Court case Illinois v. Caballes, decided earlier this year. The Court ruled that when a dog sniffed out drugs during a routine traffic stop, without a warrant, it did not constitute an illegal search because, in the words of Justice Stevens,

"Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment. Jacobsen, 466 U.S., at 123."
The Court noted that "any interest in possessing contraband cannot be deemed 'legitimate,' and thus, governmental conduct that only reveals the possession of contraband 'compromises no legitimate privacy interest.' Ibid."

Note that in an earlier case, Kyllo v. US, the Court ruled that thermal detection devices could not be used to surveil houses without a warrant because this would compromise privacy -- the difference being that such devices pick up licit as well as illicit activity. In his dissent in that case, Justice Stevens pondered whether "public officials should not have to avert their senses or their equipment from detecting emissions in the public domain such as ...radioactive emissions .. which could identify hazards to the community.

In my judgment, monitoring such emissions with 'sense-enhancing technology,' ... and drawing useful conclusions from such monitoring, is an entirely reasonable public service."

C
learly Caballes rather than Kyllo controls in the case of using detection equipment to pick up emissions from nuclear materials banned under 18 USC 831 since, to quote Stevens' majority opinion, such activity "reveals no information other than the location of a substance that no individual has any right to possess." And even if you want to subject this to a balancing test, I think the government would not have to argue very strongly that there is a compelling state interest in keeping nuclear weapons out of the hands of private citizens.

The fact that the MSM would run this story about a TOP SECRET RADIATION DETECTION PROGRAM - (EVEN THOUGH EXPOSING IT MAKES US MORE VULBNERABLE TO A NUKE ATTACK OR A DIRTY BOMB ATTACK BECAUSE IT TIPS OFF THE ENEMY AND ENABLES HIM TO CHANGE TACTICS) - reveals just how insanely angry and afraid of "King George BusHitlerburton" the Left is.

There's only one thing that will stop this spate of traitorous leaks: throw the leakers and those that published the leaks in jail - or execute them for treason. YEAH: I AM SERIOUS! These leakers are endangering millions of lives and trillions of dollars and our economy and our effort in the GWOT. They are traitors and should be tried and executed.

6 comments:

stackja1945 said...

The Rosenbergs did not re-offend in the 1950s.

Pastorius said...

These leaks just keep piling up, all in the same vein.

It would seem there is a coordinated effort.

Concerned Citizen said...

What will it take??
I mostly support the President and look upon him as honorable and of good intentions. But, the Justice Dept, Attorney General and the President are not doing their job.

Its beginning to look like Janet Reno is in charge.

Bush needs to pull the trigger on this. Is he worried about protecting America or is he more afraid of the MSM or some other response?

There are other subjects also, i e the Garret report on the Clinton's abuse of the IRS and FBI.Or Jamie Gorelick and "Able Danger" or Sandy Berger stealing classified docs by hiding them in his underwear.

It makes one suspicious of potential blackmail. For example every time there is a potential of exposing Criminal or Treasonous acts of the Clintons, Bush either blocks it or refuses to pull the trigger.

On the surface, it is against his and the country's interest. That is unless, he is covering up something even more nefarious that they will release on him or his father.

And also the Bushes continue to cozy up to the Clintons in spite of the Clintons having no reticence about constantly trashing the Pres.

What a way to run a country.

reliapundit said...

concerned citizen;

bush is way too soft in many MANY areas:

immigration (he let's vincente fox walk all over him);

Abbas/PNA (they haven't disarmed a single terrorist group);

the GWOT (we should have used a small nuke or two on tora bora;

that would've killed OBL and sent the RIGHT message: "Don't fuck with us!");

the WMD issue: Bush spoke of MANY reasons for war versus saddam, not just WMD stockpiles; however his administration NEVER made the counter-case to the "Bush Lied" chrage effectively;

and all these leaks and how they're twisted by the MSM.

LET'S FACE IT: though his speeches are right-on, he is basically a lousy communicator and his White House communications staff SUCKS BIGTIME.

I have posted on this MANY times. Since Karenb Hughes and Ari fleischer left the WH and and Tory Clarke left the Pentagon their communications efforts SUCK.

so i think it's this and not balckmail.

THEN AGAIN: he is a good "poker player" and plays his best cards LAST, and seems to win MOST of the big hands.

then again, he has lost some recently.
(the PATRIOT ACT, etc.)

then again, when Bush DOESN'T compromise he gets slammed by the MSM for being too stubborn. and then when he DOES compromise he gets slammed by the MSM for being weak.

the MSM will NEVER let him win a thiung becasue they MSM is dominated by LEFTIES. That's a fact that's been proven over and over and over again.

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