[El Gato]

To date, that's what the lower federal courts have concluded.

Not the fifth circuit, one other IIRC, nor now the Circuit for the District of Columbia.

There is a definite disagreement between the circuits.

[robertpaulsen]

"Not the fifth circuit, one other IIRC, nor now the Circuit for the District of Columbia."

The 5th Circuit in Emerson and the DC case. The "one other" that you're thinking of could be the finding of the U.S. Attorney General.

Unlike the DC case, the decision in Emerson did not reverse the lower court ruling with the individual rights finding. The 5th Circuit simply wanted to make a statement.

Which thoroughly infuriated the 9th Circuit. They fired back with a 75-page diatribe in Silveira v Lockyer.