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Monitoring for Radiation

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Another Rorschach test story. US News reports that the United States has been monitoring more than 100 Muslim sites, including mosques and homes, for radiation. From the story:

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.

From Reuters:

The Council on American-Islamic Relations advocacy group said the report, coupled with news of the domestic eavesdropping, “could lead to the perception that we are no longer a nation ruled by law, but instead one in which fear trumps constitutional rights.”

“All Americans should be concerned about the apparent trend toward a two-tiered system of justice, with full rights for most citizens, and another diminished set of rights for Muslims,” it said in a statement.

Some reactions are going to be in the camp that concludes hat our government is very, very worried about a WMD attack involving at best a dirty bomb and at worst the real nightmare.

Others are going to ask were warrants required and not obtained?

Both are important questions, but the former is far, far more crucial. If surreptitious entry of a private home of an American citizen was made without a warrant, that will not have the instant, easy and unassailable defense that the NSA program received and deserved.

UPDATE: Orin Kerr has a first cut, as does Eugene Volokh, and the first case to read is Kyllo.


I interviewed Eugene Volokh at the beginning of the show today, and he takes a much more nuanced view of the issue of the program’s legality than the only legal scholar quoted in the US News story, Professor David Cole of Georgetown Law.

While it is important that civil libertarians be given their opportunity to opine on the program, the imbalance in the US News reprot is striking. it wasn’t difficult to find and quote Professpr Volokh this afternoon with a much more government-friendly view than that of Professor Cole.

But of course it isn’t much of a story if you have two law professors saying that they don’t have enough facts to decide one way or the other and there isn’t much case law to boot. Better to wrap the breathlessness in the credibility of a single hyper-critical law prof.

Interesting reading, but don’t call it reporting.


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