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.Among the interesting Fourth Amendment questions here is whether this monitoring is distinguishable from Kyllo v. United States. For example, is measuring ambient gamma rays different from measuring infrared radiation emanating from a specific surface? Are Geiger counters (or whatever tool they used to measure radiation) in "general public use"? And does Kyllo, which was focused on the case of a private home, also apply to mosques, businesses, and warehouses?
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. . . .
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.
I'm scheduled to go to the ABC News studio in a bit to discuss some of these issues; if it works out, a blurb or two on the legal issues might make it on to World News Tonight. (BTW, what's with all the high-tech surveillance stories breaking when I'm supposed to be grading exams? Bad timing.)