More Secret, Warrantless Surveillance

The FBI has been monitoring Muslims at mosques, private businesses, and homes to detect radiation levels that might indicate the presence of nuclear weapons. This has been going on since the beginning of 2002, and, in keeping with the Bush administration's signature surveillance style, has been done secretly and entirely without the use of court orders or search warrants.

It's important to note that "Muslim" does not mean "non-citizen." In fact, almost all the people who were monitored were U.S. citizens.

Of course, the government says this is all perfectly legal, although not all FBI employees who were or are involved with the program agree. If they expressed their concerns out loud, though, they were threatened with the loss of their jobs.

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.
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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."

Right. But the intelligence always leads officials to Muslim religious sites and Muslim businesses and Muslim homes. And you know why? It's because they use that "criminal predicate" -- known in less fancy language as "racial profiling." The lists of sites to monitor are predicated on the assumption that the "criminals" are Muslim.

Interesting, isn't it? As Faiz at Think Progress reminds us, this targeting of Muslim Americans based on the thinking that Muslims -- even if they are U.S. citizens -- are more likely to have ties to terrorism is not exactly consistent with Pres. Bush's statement right after 9/11:

On September 17, 2001, President Bush visited the Islamic Center of Washington, D.C., to declare that Muslims "share the same values of respect and dignity and human worth. ...They love America just as much as I do." But the actions Bush took in the days shortly after 9/11 sent a clear signal that his administration viewed those who stood with him in the Islamic Center as national security threats, not as individuals who shared American values.