Which Side Are They On?

You've got to wonder just how fast today's mainstream media would have leaked the breaking of Enigma to the Germans.

From U.S News & World Report:

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.

I would certainly hope that U.S. mosques, where terrorists have already attempted to purchase surface to air missiles, are under surveillance for radiological weapons. I should hope they are being monitored for suspicious chemicals and biological agents as well.

Perhaps not surprisingly, the main ingredient in the U.S. News story is the "surprising" fact that - get this - some suspicious Muslim sites were monitored without obtaining warrants. The rest of the story - including the "omitted details of how the monitoring is conducted" - has been public knowledge at least since June 9 of 2002 when much of this same ground was covered by the Boston Globe:

[NEST] teams have been driving around urban areas in vans known as ''Hot Spot Mobile Labs,'' armed with instruments that detect alpha, beta, gamma, and neutron radiation. Other teams are equipped with backpacks that hold smaller detectors...

...

Though the effort has relaxed somewhat since the October scare, one official said NEST units still go on random, weekly search missions in different cities, focusing on ports, warehouse districts, and other locations where a smuggled weapon might be housed.

NEST teams may have driven their vans onto mosque property to sniff the air for radioactive isotopes. Backpack-equipped NEST team members may have walked through a neighborhood or apartment complex.

The government holds that these sniff tests are legal. Not surprisingly, U.S. News was able to find a dissenting expert.

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."

U.S. News might have also mentioned that Georgetown University Professor David Cole, "a constitutional law expert," is also the legal affairs correspondent for The Nation, a far left liberal magazine.

It gets worse.

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.

Because of course, sensors used for national security are the exact same thing as local cops making a pot bust. Brilliant comparison, Professor Cole.

Perhaps because of his politics, Cole does not bother to mention the blatantly obvious fact that these radiation-sensing technologies should not violate the "unreasonable search" clause of the Fourth Amendment because of the "special needs" exception.

Nor does Cole mention that going into publicly-accessible driveways and parking lots without a warrant is not necessarily unconstitutional.

You would think that Cole or U.S. News would have tried to seek a more balanced approach to this story.

Of course, if they did, there wouldn't be a story, would there?