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Nuclear Monitoring of Muslims Done Without Search
Warrants
By David E. Kaplan
12/22/05 "US
News" -- -- 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 entitles 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."
Copyright © 2005 U.S.News & World Report, L.P. All rights reserved
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