Nuclear Monitoring of Muslims Done Without Search Warrants

US News & World Report ^ | 12/22/2005 | David E. Kaplan

[wjersey]

In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned. 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.

Federal officials familiar with the program maintain that warrants are unneeded for the kind of radiation sampling the operation entails, but some legal scholars disagree. News of the program comes in the wake of revelations last week that, after 9/11, the Bush White House approved electronic surveillance of U.S. targets by the National Security Agency without court orders. These and other developments suggest that the federal government's domestic spying programs since 9/11 have been far broader than previously thought.

The nuclear surveillance program began in early 2002 and has been run by the FBI and the Department of Energy's Nuclear Emergency Support Team (NEST). Two individuals, who declined to be named because the program is highly classified, spoke to U.S. News because of their concerns about the legality of the program. At its peak, they say, the effort involved three vehicles in Washington, D.C., monitoring 120 sites per day, nearly all of them Muslim targets drawn up by the FBI. For some ten months, officials conducted daily monitoring, and they have resumed daily checks during periods of high threat. The program has also operated in at least five other cities when threat levels there have risen: Chicago, Detroit, Las Vegas, New York, and Seattle.

FBI officials expressed concern that discussion of the program would expose sensitive methods used in counterterrorism. Although NEST staffers have demonstrated their techniques on national television as recently as October, U.S. News has omitted details of how the monitoring is conducted. Officials from four different agencies declined to respond on the record about the classified program: the FBI, Energy Department, Justice Department, and National Security Council. "We don't ever comment on deployments," said Bryan Wilkes, a spokesman for DOE's National Nuclear Security Administration, which manages NEST.

In Washington, the sites monitored have included prominent mosques and office buildings in suburban Maryland and Virginia. One source close to the program said that participants "were tasked on a daily and nightly basis," and that FBI and Energy Department officials held regular meetings to update the monitoring list. "The targets were almost all U.S. citizens," says the source. "A lot of us thought it was questionable, but people who complained nearly lost their jobs. We were told it was perfectly legal."

The question of search warrants is controversial, however. To ensure accurate readings, in up to 15 percent of the cases the monitoring needed to take place on private property, sources say, such as on mosque parking lots and private driveways. 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.

Georgetown University Professor David Cole, a constitutional law expert, disagrees. Surveillance of public spaces such as mosques or public businesses might well be allowable without a court order, he argues, but not private offices or homes: "They don't need a warrant to drive onto the property -- the issue isn't where they are, but whether they're using a tactic to intrude on privacy. It seems to me that they are, and that they would need a warrant or probable cause."

Cole points to a 2001 Supreme Court decision, U.S. vs. Kyllo, which looked at police use -- without a search warrant -- of thermal imaging technology to search for marijuana-growing lamps in a home. The court, in a ruling written by Justice Antonin Scalia, ruled that authorities did in fact need a warrant -- that the heat sensors violated the Fourth Amendment's clause against unreasonable search and seizure. But officials familiar with the FBI/NEST program say the radiation sensors are different and are only sampling the surrounding air. "This kind of program only detects particles in the air, it's non directional," says one knowledgeable official. "It's not a whole lot different from smelling marijuana."

Officials also reject any notion that the program specifically has targeted Muslims. "We categorically do not target places of worship or entities solely based on ethnicity or religious affiliation," says one. "Our investigations are intelligence driven and based on a criminal predicate."

Among those said to be briefed on the monitoring program were Vice President Richard Cheney; Michael Brown, then-director of the Federal Emergency Management Administration; and Richard Clarke, then a top counterterrorism official at the National Security Council. After 9/11, top officials grew increasingly concerned over the prospect of nuclear terrorism. Just weeks after the World Trade Center attacks, a dubious informant named Dragonfire warned that al Qaeda had smuggled a nuclear device into New York City; NEST teams swept the city and found nothing. But as evidence seized from Afghan camps confirmed al Qaeda's interest in nuclear technology, radiation detectors were temporarily installed along Washington, D.C., highways and the Muslim monitoring program began.

Most staff for the monitoring came from NEST, which draws from nearly 1,000 nuclear scientists and technicians based largely at the country's national laboratories. For 30 years, NEST undercover teams have combed suspected sites looking for radioactive material, using high-tech detection gear fitted onto various aircraft, vehicles, and even backpacks and attaché cases. No dirty bombs or nuclear devices have ever been found - and that includes the post-9/11 program. "There were a lot of false positives, and one or two were alarming," says one source. "But in the end we found nothing."

[Publius6961]

Another leaker in search of a firing squad.
What is it about the concept of "war" that escapes these nut jobs?

[StormEye]

"Nuclear Monitoring of Muslims Done Without Search Warrants"

Oh, the humanity!

[muawiyah]

Once again the legal experts come out and say "yeah, they need a warrant", forgetting, of course, that to possess materials capable of emitting radiation of certain minimum strength levels you must first have a permit, and must also allow spot or continuous inspections. Even if you challenged the legitimacy of the search that revealed your hidden stash of nukes, the law will not allow you to "keep them". You will have to give them up anyway.

Besides that, unshielded radioactive materials can harm at a distance ~ which will upset your neighbors and might well induce in them murderous rage.

As a resident of one of the areas subject to this surveillance, which was NOT invisible, let me say I am happy to hear that they didn't find anything. Still, if the government has a need for a permanent site to mount a sophisticated radiation monitor, my lot is available.

Now, to the question of the folks complaining about this, I'd like to know their names and addresses.

[joseph20]

The WH will unload the leak investigations on the Demonrats, just before the '06 - '08 elections.

[omega4412]

I think it would be an impeachable offense for the president not to have ordered this.

[coloradan]

You mean like he pressed for prosecution of the Clinton crime machine last term?

[VeniVidiVici]

This has got to be the funniest headline ever produced by the MSM. Don't they realize how stupid it sounds?

[magua]

From your lips to god's ear.

[Reaganesque]

The heck with what the MSM and Liberals think! Tell them the government was monitoring Radon levels.

[Conservativegreatgrandma]

Why don't we publish everything we do to stop terror and be done with it?

Or to please the Democrats and the MSM, we can just surrender and make life easier.

[Publius6961]

Radical Islam has declared its intention to destroy our country and our way of life. Playing nice and blind, unilateral adherence to PC rules will help them do it.

And they've been doing it for years...

"Islam isn't in America to be equal to any other faiths, but to become dominant. The Koran, the Muslim book of scripture, should be the highest authority in America, and Islam the only accepted religion on Earth." --- Omar Ahmad Co-founder of CAIR (Council on American-Islamic Relations) at an Islamic conference held in Freemont, California, in July of 1998.

It embarrasses me to feel the need to mention this, but islam is no less a Political system than it is a religion.

Q.E.D.

[samadams2000]

Dont they have a right to bake a Nuke in their Beehives...er..I mean mosques? (little m- denoting disrespect)

[DJ Taylor]

"The question of search warrants is controversial"

The question is this: Does a person with radio active material have a reasonable expectation of privacy concerning the radiation emitting from his private property? Don't laugh, the courts recently decided that drug agents couldn't use sensors to detect the special lighting marijuana growers use to grow marijuana indoors.

[coloradan]

"We thought they might be smoking cigarettes."

[Muzzle_em]

How would they feel if a nuclear weapon was discovered?
Would the MSM even report it at all?

[colonialhk]

JTTF/NEST team....coffee in my neighborhood for all you guys and gals. White panel vans welcome....

[coloradan]

There are legal reasons for someone's attic to be warmer than usual. But I'm not so sure there are legal reasons for an office, mosque, or house to be emitting neutrons, gammas, or other radiation at much above background levels.

[Darkwolf377]

How is doing radiation detection anywhere an infringement of anyone's rights?

If they were looking for handguns, the MSM would be praising this as a righteous blow for human freedom. But I guess they think Muslims having nuclear devices in their mosques is some kind of basic constitutional right.

Libs: Christmas trees NO! Nukes for Muslims YES!

[inquest]

How is doing radiation detection anywhere an infringement of anyone's rights?

It's not at all. It's the un-PC-ness of it all that has the libs all indignant. They're upset because it was done to mosques but not to churches and synagogues.

[Sam Hill]

The only "expert" that US News could find to express outrage was a fellow reporter, David Cole, who has made a career out of attacking Bush for his jackbooted thug violations of the Constitution.

David Cole also happens to be the “legal affairs correspondent” for the unambiguously Communist magazine, “The Nation."

Here are some of the highlights of his career as an unbiased journalist:

The Nation
David Cole
Legal Affairs Correspondent

David Cole (cole@law.georgetown.edu), The Nation’s legal affairs correspondent and a professor at Georgetown University Law Center, is the author of No Equal Justice: Race and Class in the American Criminal Justice System (New Press), co-author, with James X. Dempsey, of Terrorism and the Constitution: Sacrificing Civil Liberties for National Security (New Press) and author of Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New Press), forthcoming in a revised paperback edition in July.

ARTICLES BY David Cole

2005

The Emperor’s Powers
David Cole | The Bush Administration believes it can ignore the rule of law–in pursuit of torture, Pentagon surveillance of antiwar groups and now, domestic spying. We must continue to insist that in a democracy, the rule of law cannot be ignored. SUBSCRIBERS ONLY
January 9, 2006 issue

Post-9/11 Shell Game
David Cole | To this day, no explanation has been offered as to why José Padilla spent years bandied around in US courts and detention centers. Now that Padilla faces reduced criminal charges, the government will never have to explain its actions, and never will.
December 19, 2005 issue

Intolerable Cruelty
David Cole | If the US is to prevail in the war on terror, we must do it by distinguishing ourselves from the enemy. Torture and degrading treatment are as morally evil as terrorism, because they brutally disregard the value of human life.
November 21, 2005 issue

Blank Check for Bush?
David Cole | Recent rulings upholding the right of the executive branch to jail and try terror suspects in military tribunals raise questions about whether the judiciary can keep presidential powers in check. Will a realigned Supreme Court give Bush a blank check to rise above the law?
October 24, 2005 issue

Card-Carrying Member…
Our Readers & David Cole SUBSCRIBERS ONLY
July 4, 2005 issue

The Missing Patriot Debate
David Cole | The case for a human rights-based opposition to the Patriot Act.
May 30, 2005 issue

Accounting for Torture
David Cole SUBSCRIBERS ONLY
March 21, 2005 issue

The Lynne Stewart Trial
David Cole
March 7, 2005 issue

2004

Taking Liberties: Profiles in Legal Courage
David Cole SUBSCRIBERS ONLY
December 20, 2004 issue

Taking Liberties: Gonzales: Wrong Choice
David Cole
December 6, 2004 issue

Taking Liberties
David Cole
November 15, 2004 issue

Taking Liberties: Ashcroft: 0 for 5,000
David Cole | Ashcroft’s record is 0 for 5,000.
October 4, 2004 issue

No Blank Check
David Cole
July 19, 2004 issue

Outlaws on Torture
David Cole SUBSCRIBERS ONLY
June 28, 2004 issue

Taking Liberties: ‘Bad Guys’
David Cole SUBSCRIBERS ONLY
May 10, 2004 issue

Taking Liberties: Guantánamo, Revisited
David Cole
May 3, 2004 issue

Taking Liberties: Playing the Security Card
David Cole SUBSCRIBERS ONLY
April 12, 2004 issue

Taking Liberties: Spying on the Guild
David Cole SUBSCRIBERS ONLY
March 1, 2004 issue

2003

Taking Liberties: The War on Our Rights
David Cole
January 12, 2004 issue

Korematsu II?
David Cole SUBSCRIBERS ONLY
December 8, 2003 issue

Syria, US Torture Center
David Cole SUBSCRIBERS ONLY
December 1, 2003 issue

9/11 and the LA 8
David Cole
October 27, 2003 issue

On the Road With Ashcroft
David Cole | He’s trying to talk up the Patriot Act, but americans may no longer be buying. SUBSCRIBERS ONLY
September 22, 2003 issue

Court-Watching
David Cole SUBSCRIBERS ONLY
July 21, 2003 issue

A Rebuke to Ashcroft
David Cole SUBSCRIBERS ONLY
June 30, 2003 issue

Defending Show Trials
David Cole SUBSCRIBERS ONLY
June 16, 2003 issue

Guantánamo Gulag
David Cole SUBSCRIBERS ONLY
June 9, 2003 issue

Driving While Immigrant
David Cole SUBSCRIBERS ONLY
May 12, 2003 issue

Lawyers Keep Out
David Cole SUBSCRIBERS ONLY
April 21, 2003 issue

Shocks to the Constitution
David Cole | If history is any guide, this is exactly the time to sound the alarms about civil liberties at home.
April 14, 2003 issue

Patriot Act’s Big Brother
David Cole
March 17, 2003 issue

2002

Blind Sweeps Return
David Cole SUBSCRIBERS ONLY
January 13, 2003 issue

Ashcroft, Unabashed
David Cole
October 28, 2002 issue

Enemy Aliens and American Freedoms
David Cole | The Administration has yet to make the case that the terrorist threats justify compromising our fundamental principles of liberty and justice.
September 23, 2002 issue

Leash the FBI
David Cole SUBSCRIBERS ONLY
June 24, 2002 issue

Operation Enduring Liberty
David Cole
June 3, 2002 issue

Understanding Ashcroft
David Cole SUBSCRIBERS ONLY
May 6, 2002 issue

2001

National Security State
David Cole | Due process has given way to detention. Public scrutiny to secret trials. And we’re only two months into this thing.
December 17, 2001 issue

A Matter of Rights
David Cole
October 8, 2001 issue

Scalia’s Kind of Privacy
David Cole
July 23, 2001 issue

Death and Disparity
David Cole
June 25, 2001 (web)

Rainbow School Colors
David Cole SUBSCRIBERS ONLY
April 16, 2001 issue

2000

Official Secrets Law
David Cole SUBSCRIBERS ONLY
November 20, 2000 issue

Hear No Evil, See No Evil
David Cole
October 9, 2000 issue

The ‘Cuba Exception’
David Cole
February 7, 2000 issue

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