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Monitoring from public places was conducted without warrants, officials say

A classified radiation monitoring program, conducted without warrants, has targeted private U.S. property in an effort to prevent an al-Qaida attack, federal law enforcement officials confirmed Friday.

While declining to provide details, including the number of cities and sites monitored, the officials said the air monitoring began after the Sept. 11 attacks and was conducted from publicly accessible areas, which they said made warrants and court orders unnecessary.

U.S. News and World Report first reported the program on Friday. The magazine said the monitoring was conducted at more than 100 Muslim sites in the Washington, D.C. area — including Maryland and Virginia suburbs — and at least five other cities when threat levels had risen: Chicago, Detroit, Las Vegas, New York and Seattle.

The magazine said that at its peak, three vehicles in Washington monitored 120 sites a day, nearly all of them Muslim targets identified by the FBI. Targets included mosques, homes and businesses, the magazine said.

The revelation of the surveillance program came just days after the New York Times disclosed that the Bush administration spied on suspected terrorist targets in the United States without court orders. President Bush has said he approved the program to protect Americans from attack.

Targeted for being Muslims
Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, a Washington-based civil rights group, said Friday the program "comes as a complete shock to us and everyone in the Muslim community."

"This creates the appearance that Muslims are targeted simply for being Muslims," he said. "I don't think this is the message the government wants to send at this time."

Hooper said his organization has serious concerns about the constitutionality of monitoring on private property without a court order.

Brian Roehrkasse, a Justice Department spokesman, said Friday that the administration "is very concerned with a growing body of sensitive reporting that continues to show al-Qaida has a clear intention to obtain and ultimately use chemical, biological, radiological and nuclear" weapons or high energy explosives.

To meet that threat, the government "monitors the air for imminent threats to health and safety," but acts only on specific information about a potential attack without targeting any individual or group, he said.

"FBI agents do not intrude across any constitutionally protected areas without the proper legal authority," the spokesman said.

In a 2001 decision, the Supreme Court ruled 5-4 that police must get warrants before using devices that search through walls for criminal activity. That decision struck down the use without a warrant of a heat-sensing device that led to marijuana charges against an Oregon man.

Local officials not notified
Roehrkasse said the Justice Department believes that case does not apply to air monitoring in publicly accessible areas.

Two federal law enforcement officials, speaking on condition of anonymity because the program is classified, said the monitoring did not occur only at Muslim-related sites.

Douglas Kmiec, a professor of constitutional law at Pepperdine University, said the location of the surveillance matters when determining if a court order is needed.

“The greatest expectation of privacy is in the home,” said Kmiec, a Justice Department official under former presidents Ronald Reagan and George H.W. Bush. “As you move away from the home to a parking lot or a place of public accommodation or an office, there are a set of factors that are a balancing test for the court,” he said.

Despite federal promises to inform state and local officials of security concerns, that never formally happened with the radiation monitoring program, said one official, who spoke on condition of anonymity because of the sensitivity of the information.

The official said that after discussions with attorneys, some state and local authorities decided the surveillance was legal, equating it to air-quality monitors set up around Washington that regularly sniff for suspicious materials.

"They weren't targeting specific people, they were just doing it by random, driving around (commercial) storage sheds and parking lots," the official said.

Asked about the program's status, the official said, "I'd understood it had been stopped or significantly rolled back" as early as eight months ago.

Such information-sharing with state and local officials is the responsibility of the Homeland Security Department, which spokesman Brian Doyle said was not involved in the program.