Where is the line between government’s need to pursue evildoers and the privacy rights of Americans, including safeguards against unreasonable searches? That line always should be drawn in favor of protecting citizens against an overenthusiastic government.
Last week, the U.S. Supreme Court heard arguments in three cases that test the limits of personal freedom. One case deals with warrantless surveillance of American citizens. The other two asked whether there should be a performance standard for drug-sniffing dogs, and whether a police pooch nosing around on your porch constitutes an illegal search.
The 1978 Foreign Intelligence Surveillance Act allows the federal government to monitor international telephone calls and other electronic communications by foreign nationals to and from people in the United States. In 2008, the requirement that the government get a warrant first was removed. Now, federal agents can monitor nearly anyone they want for almost any reason — or no reason at all.
Several groups sued, including human rights organizations, lawyers for detainees captured in the war on terror, and journalists. They claim that listening to their phone conversations and reading their emails without a warrant violates constitutional protections against unreasonable search.
But before the constitutionality of warrantless wiretaps can be determined, the justices must decide whether there is a case to hear. Federal lawyers say the plaintiffs can’t sue, because the surveillance is secret, so they can’t prove their communications were intercepted.
That argument is particularly cynical and should be rejected. As Justice Antonin Scalia noted, the court has examined cases in the past in which no one had standing.
They should do so again in this case. Warrantless surveillance of emails and phone calls fails the same constitutional tests as police attaching a global positioning system to an automobile.
The drug-dog cases originated in Florida. One case challenges the belief, shared by justices, that dogs trained to sniff out drugs almost never are wrong. In 1983, the Supreme Court said that a warrant wasn’t needed to sniff suitcases. In 2005, they extended warrantless searches to automobiles.
But drug dogs are not infallible. In fact, studies have found that they are right less than half the time. Worse, their false hits appear to be influenced by subtle cues from their handlers.
The other Florida case asks: Is a drug dog sniffing outside the door of a home conducting an illegal search? If the answer is no, police will be able to use drug dogs to sweep randomly for drugs in apartment complexes, public housing, and other places — no probable cause needed. So the answer must be yes.
The high court has said heat-detecting devices can’t be used to identify houses in which marijuana might be growing. A drug dog sniffing a door jamb without a warrant appears at least as intrusive.
Law enforcement officials sometimes find that the freedoms they are sworn to uphold are inconvenient to their search for lawbreakers, terrorists, and others who would do America harm. When that happens, they have to be reminded that without those constitutional protections, there is nothing to defend.