EXCLUSIVE: Nuclear Monitoring of Muslims Done Without Search Warrants
Posted 12/22/05
By David E. Kaplan

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

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

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