Saturday, December 24, 2005

Government Monitoring of Radiation

U.S. News and World Report reports:

In search of a terrorist nuclear bomb, the federal government since 9/11 has run a ... 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 ... . 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 ... .

...

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.

The story correctly notes that the U.S. Supreme Court ruled in 2001 that the government's use of "thermal imaging technology to search for marijuana-growing lamps in a home" requires a warrant. Note, however, that there are several differences between thermal imaging to search for marijuana equipment in a home and radiation monitoring to search for a nuclear bomb.

1. The scope of the threat to society from marijuana is far less than from a nuclear bomb.

2. The potential crimes involving marijuana are minor compared to ones involving a nuclear bomb.

3. Thermal imaging peers inside the home, while radiation monitoring samples the outside sir. The expectation of privacy within the home is far greater than the expectation of privacy in the great outdoors. Think, for example, whether a court is more likely to find probable cause if a policeman conducted a search after smelling marijuana in the open air rather than after detecting a thermal image in the home.

4. The search for a marijuana-growing lamp is purely domestic law enforcement. The search for a nuclear bomb is protection from a national security threat, specifically Al Qadea's known goal to explode a dirty nuclear device in a major U.S. city.

5. Radiation monitoring is part of the effort to defend America fro Al Qaeda in the War on Terror. This brings into play the President's power as commander in chief to order operations in the course of a war.

The differences listed above and perhaps other differences make courts more likely to find that a search by radiation monitoring is reasonable and therefore does not require a warrant.

The part of the radiation monitoring program that may in some cases trouble me is the federal agent's entry onto private property. Entry onto a mosque's parking lot is less troubling than entry onto a residential driveway. Still, even a residential driveway is accessible to anyone making a delivery to the home. It is not the same as breaking into a home.

All in all, the radiation monitoring program appears at first glance to be a reasonable warrantless search.

What is more troubling is the leak of classified information. What was the source of the information reported by U.S. News?

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.

The leaking of classified programs is becoming a serious issue. The FBI needs to investigate the source of the leaks, and the Justice Department needs to prosecute them. The harm done is too great to ignore. The harm is certainly greater than was done in the Valerie Plame affair.

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