T Nation

Warrantless Nuclear Surveillance Program


#1

The feds have been monitoring Muslim sites, including businesses, mosques and private property, for radiation, in the DC area and in 5 other major cities. Without warrants.

http://www.usnews.com/usnews/news/articles/nest/051222nest.htm

What do you think about that?

The article says some unnamed legal scholars question whether warrants should have been required, but declines to give any reasoning or names. It seems to me that this is perfectly Constitutional.

Here's why:

http://volokh.com/posts/chain_1135371699.shtml

Radiation Surveillance:

Apropos Orin's post, two thoughts:

(1) The argument that the police can't aim radiation surveillance devices at homes (and likely businesses, mosques, and the like) without a warrant is a nontrivial one: It's basically Kyllo v. United States (no aiming heat sensors at homes without a warrant) meets Mincey v. Arizona (no special Fourth Amendment exceptions for investigations of very serious crimes). I discuss this in this Slate piece from 2002 ( http://www.slate.com/?id=2067037&device= ).

My ultimate conclusion is that such radiation surveillance from outside the buildings should be constitutional, because what's an "unreasonable search" when looking for drugs (or even for evidence of murder) becomes reasonable when looking for radiation weapons: "[F]inding dirty bombs must simply be different from fighting normal crime. Searches for weapons of mass destruction can't be treated like searches for marijuana-growing devices or even for murder weapons." Others have argued that it might be constitutional for another reason -- searches that are likely to reveal only evidence of contraband (which, the argument would go, includes searches for radioactive materials but not for heat sources) don't invade any reasonable expectation of privacy; I'm not as wild about that theory, but I agree with its bottom line. Nonetheless, I think the Slate piece may help explain the nature of the argument that such searches are unconstitutional.

(2) Orin points out that "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." I want to caution people against assuming that going onto the property under surveillance without a warrant is per se unconstitutional under existing law. There are various reasons why entering the property wouldn't itself be treated as an unconstitutional search, for instance if the parts of the property that they entered was generally open to the public, or if the property was the urban equivalent of "open fields" ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=480&invol=294 ) as opposed to the inside of someone's building (or the "curtilage" ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=476&invol=227 ) of that building).

Some of these doctrines are quite complex and unsettled, and I don't want to go into them in detail here; and I also want to stress that even if entering the property wasn't a search, doing some things on that property (perhaps including measuring radiation, or perhaps not, see item 1 above) may well be a search. But people should realize that whether "go[ing] on to the property under surveillance" is unconstitutional without a warrant is a difficult question.


The "Special Needs" Exception: In his Slate piece from 2002, Eugene argues that checking radiation levels to avoid a nuclear attack is "just different" from using an infrared device in a routine criminal case. He writes:

 [i] Sure, normally the Fourth Amendment applies equally to all serious crimes, and that's normally right. But finding dirty bombs must simply be different from fighting normal crime. Searches for weapons of mass destruction can't be treated like searches for marijuana-growing devices or even for murder weapons.

  The Fourth Amendment, by its terms, only bans "unreasonable searches and seizures"?and it cannot be unreasonable to examine homes with Geiger counters in order to prevent a city from being rendered uninhabitable by an enemy bombing. Protecting people's privacy is important, and so is constraining government power. But sometimes we need extraordinary government power to protect against extraordinary threat.[/i]

I just thought I would add that there is a Fourth Amendment doctrine that recognizes Eugene's intuition: the "special needs" exception. The idea behind the "special needs" exception is that the government has lots of legitimate interests beyond collecting evidence in criminal cases. When government agents are pursuing those other interests, the warrant requirement is relaxed and the overall requirement is reasonableness. There are a bunch of Supreme Court cases on this doctrine, starting (I believe) with Camara v. Municipal Court ( http://www.justia.us/us/387/523/case.html ) in 1967 and receiving more formal attention in cases like O'Connor v. Ortega ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=480&invol=709 ).


#2

I think looking for radioactive eminations is perfectly legal.

It would be the same as detecting (not necessarily listening to) radio waves or light beams from a source.

It's not invasive, it doesn't provide any personal information about anyone, though I can see being investigated when you are innocent would be annoying.

It may qualify as a form a racial or religious profiling. A more egalitarian program might be to look for signs of radioactivity within regions or cities instead of particular sites -- given that any terrorist worth his salt will expect religious sites to be bugged, infiltrated and under observation.


#3

I do not want to deal with a dirty bomb so this is a good idea IMO.


#4

WHy does US News feel the need to expose this program?

Was it classified?


#5

Yes, it was.

I am definitely concerned with the number of classified items that have been leaked recently by "anonymous officials."

This program, the CIA foreign prison facilities, the details on the NSA stuff -- where are all the Democrats who were so concerned with the illumination of Valerie Plame's identity (which wasn't even covert) being a threat to national security? They were so concerned about that whole thing because they characterized it as a threat to national security, right? Where's Teddy K?


#6

I think this is correct. The claim is that all the investigations/monitorings were based on intelligence information -- I wouldn't actually be surprised if that didn't end up making the targets precisely representative of the ethnic and religious makeup of a given city.

As to monitoring a region, I'm just guessing here, but I would suspect that the radiation detectable from a dirty bomb (as opposed to a nuke) might be pretty small, so they would need to do directed monitoring to detect it. And also, I would think they are likely doing region-wide monitoring in addition to any directed monitoring. Hopefully they're doing a whole bunch of stuff that we don't know about w/r/t attempting to detect any sort of attack like this.


#7

I should note that some people maintain that al Queda already has at least a dirty bomb:

http://www.pbs.org/wgbh/nova/dirtybomb/chrono.html

I should also remind people of some forecasts of damage from a dirty bomb let off in a major US city:

http://www.cdi.org/terrorism/dirty-bomb.cfm