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
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 nothing."