Another scandal–Bush is protecting us against nuclear attack! U.S. News reports:
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.
As usual, the legality of the radiation monitoring might be debatable, but the legality of the leaks isn’t:
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.
Subpoena the reporters. Identify the leakers. Prosecute them for their felonious conduct. Lock them up.
Still, it is scary to see the full weight of federal power brought to bear against a handful of citizens:
At its peak, they say, the effort involved three vehicles in Washington, D.C., monitoring 120 sites per day…
Three vehicles! Bushitler has indeed loosed the federal juggernaut on those poor suspected terrorists.
What about the legality of the radiation monitoring? It’s no surprise that it was warrantless, since there presumably was no probable cause to search any one of the locations involved. The closest precedent is the Kyllo case, in which a marijuana grower was caught following thermal imaging of his home. In a 5-4 decision, the Supreme Court threw out his conviction, holding:
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.
Kyllo is an interesting decision, pre-September 11 both literally and metaphorically: it was decided in June 2001. Justice Scalia, bete noir of the left, wrote the majority opinion, while liberal icon John Paul Stevens wrote the dissent, which argued that the “observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of [Kyllo's] home but did not invade any constitutionally protected interest in privacy,” and were, thus, “information in the public domain.”
The radiation surveillance case could be distinguished from Kyllo on a number of grounds, but let’s cut to the bottom line; I can’t improve on what Eugene Volokh wrote, somewhat presciently, in 2002:
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.
In my opinion, the idea that, in the context of the terrorist threat we currently face, the government can’t use radiation-detecting devices in public places–there is no indication that federal agents broke into anyone’s home with a Geiger counter–to look for nuclear weapons, is ludicrous.
I’d like to hear from the Democrats on this one. Yesterday, Mrs. R. and I were watching a television news program, when someone pointed out that no leading Democrat has yet called on President Bush to terminate the NSA intercept program. I laughed out loud. Good point! Likewise with the radiation story: Do we have the Democrats’ pledge that under a Democratic administration, the government would not use radiation-detecting equipment to search for dirty bombs? If so, that should make it a lot easier for millions of Americans to cast their votes in the 2008 election.