According to Reuters on 12/23:
"U.S. officials have secretly monitored radiation levels at Muslim sites, including mosques and private homes, since September 11, 2001 as part of a top secret program searching for nuclear bombs, U.S. News and World Report said on Friday. "

In the same article, CAIR is quoted in saying that said monitoring:
"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.

If journalists are saying that Al-Qaeda is seeking nuclear materials (here), if Pakistani Nuclear experts advised Bin Laden here and Muslim leaders admittedly trained in Al Qaeda Camps here, why on earth would the FBI not be monitoring them?

Questions for Debate:

1. Is the FBI out of line for monitoring mosques?

2. Should the FBI also profile sites owned by other religious groups?

3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)?

This isn't a new story, although the discovery of the "targetting" of mosques may be.

Building the Nuke Wall: April 2003 Wired Magazine



So that answers Question #3.

1. Is the FBI out of line for monitoring mosques?

I do believe that you need more probable cause than "they're Muslims" to do this on private property. On public property or in public places (such as an open attendance mosque), it's fair game.

2. Should the FBI also profile sites owned by other religious groups?

If they have probable cause, yes. That's a bit doubtful at this point, however.

In answer to the unstated "what's the big deal" question in the title - the big deal as usual is Constitutional rights and this administration's disregard of them.

The Dallas Morning News has an article on this if you'd like to read it. I want to call attention to this section:


The Supreme Court has already made a ruling on a similar case and they have said that you cannot do this without a warrant. As usual the Bush administration's "justice" department believes that it is above the law and will find any loophole to justify their behavior rather than play by the rules.

If you want to monitor radiation levels then one of the following must occur:
- A warrant based on probable cause must be obtained from a federal judge
- The Supreme Court must issue a new ruling allowing this practice
- We must alter the laws/Constitution to allow it

There is not a 4th option that says violate the rights of US citizens in the name of "security".

1. Is the FBI out of line for monitoring mosques?
No, as long as they have a warrant or proper authorization to monitor them.

The city of Glendale, California recently had a crew here on my street. It seems that they had sent a "sniffer truck" down my street and detected a natural gas leak in front of my neighbor's house. They did this without a court order. As horrible a violation of my neighbor's civil rights as that was, it gets worse.....

The next thing they did was to block off the curb in front of not only my neighbor's house, but mine as well, thus denying me the constitutional right to park in front of my own house. All of this so they could tear up the street and repair the gas leak. They did all of this without a warrant. I feel abused, the government has trampled my rights, where is the ACLU??? How dare they repair that gas leak and deny me the right to sue the city when it blew up and burned down my house! I am outraged at this gross abuse of human rights! Where is the ACLU? Off eating donuts?

1. Is the FBI out of line for monitoring mosques?

No


2. Should the FBI also profile sites owned by other religious groups?

The FBI should monitor wherever they think they should. That's their job.


3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)?

Why not? If they can check for a gas leak in front of my house to protect the public safety, then why not check for radiation?

Edited to add something that just dawned on me.....

My neighbor is Hispanic and I am half-Comanche. Maybe that makes this gasline repair caper a racially motivated hate-crime?

Let me try to follow the logic of the questions submitted for debate by aevans176, as I think that we're missing what he is trying to say. Correct me if I misunderstand you.

Questions one and two seem to really be asking "Is it OK for the FBI to monitor Islamic sites, and not the sites of other faiths?" The three news stories linked are offered as evidence that Muslims require more monitoring than members of other faiths. Given this evidence, we are supposed to answer "yes" to the above question. Given this answer, we are then supposed to approve of religiously-based monitoring in other situations. Thus, I believe that question three is really asking if religious or ethnic profiling is OK in general, and is not asking if monitoring for radiation is OK in general. Let me point out an objection I have to this line of thinking.

The three news stories (and many more such stories) offer evidence that there is an element within Islam which is dangerous. This I accept. What I have trouble doing is making the leap from "Some Muslims are dangerous" to "Muslims require more monitoring than members of other faiths." To be sure, it is an undeniable fact that a random American Muslim has a statistically higher chance of being a danger than a random American Buddhist. However, I think it is also true that this statistical difference is meaningless when it comes to the monitoring of religious sites.

As far as I can tell, this monitoring program did not focus on specific threats from specific individuals. (If it did, warrants would be easy to obtain, and there would be no controversy.) It seems to have been based solely on the idea that random Muslim sites in the United States should be monitored for evidence of nuclear weapons. If there is no specific threat in mind, surely such random monitoring is not only unjustified, but a waste of resources. Similarly, religious or ethnic profiling in other situations without a specific threat is unjustified and a waste of time. No matter how tempting it might be, there is no good reason to subject random young male Muslims to greater monitoring than that which is reasonably required of the general public.

In response to Aquilla, I have to suggest that there is some difference between the government monitoring public facilities (the city streets and the natural gas pipeline) for safety and the government monitoring private facilities for evidence of criminal activity. (I have to think of a place of worship as a private facility, even if it allows anyone to enter at any time.) I also have to object to the implication that there should be no limits whatsoever on what the FBI is allowed to monitor.

I think there is a distinction between using some type of enhanced vision or detection device to go inside a private space and sampling the air in public space. I am not sure about this radiation detection in terms of where the detecting happens.

But if it is the same type of thing that could be done on a typical visual patrol of a neighborhood by local police I do not have a problem with it.

But that does not make a leap of association for me from detection of radiation in public places to greater general searches of the Muslim/Arab population against the 4th Amendment.

CJ identifies this briefly and VS looks at it in greater detail. (I took a snippet from it and put it here)




I do not think that Mosques and Muslims and Arabs should be generally targeted because I think this violates the liberties and democracy that America stands for. We founded are country on the concept of limited government and broad freedoms.

Our system fails when we start creating different levels of equality in society. And we have a tendency to try to do this periodically and use security or defense of American values as the reason.

We should investigate our existing leads and stop this Orwellian drift towards data-mining. There is a disturbing trend toward cavalierly crossing the line of constitutional liberties today. Be it our communications, (did you see the NSA cookies story in the news today) our general patterns of activity, our membership in political protest groups or other items that are going on today.

1. Is the FBI out of line for monitoring mosques? It is if it is monitoring mosques without probable cause. The due process liberties of our country will lead to the need to call the targets of illegal/unconstitutional investigations as non-entities or non-citizens. We should include our judicial branch publicly in the pursuit of criminals trying to act against Americans with random violence. We should turn on the lights and stop turning out so many lights. Religious organizations should be approached cautiously because of our religious freedoms and the appearance of religious harassment that could make an entire population feel alienated from our civil society. But when evidence is available under probable cause it should be investigated as the law and constitution allows in a diligent manner.

2. Should the FBI also profile sites owned by other religious groups?

I don't believe the FBI should profile any religious groups.

3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)?

Again targeted profile searches are wrong-headed and unconstitutional in my mind.
If whites tend to be neo-nazis, that does not justify monitoring me simply because I am white. The last step on the slippery slope is that humans are most likely to commit crimes and the government should have complete rights of surveillance and secretly be allowed to use modern technology to monitor our households for any reason.

I'm not really sure why you posted the Dallas Morning News article... but here goes... (did anyone read the articles that I posted?? )

-We've already shown credible sources to state that Muslim leaders within our borders have been known to have been trained by Al Qaeda, have attempted to obtain nuclear materials, and are obviously interested in causing harm to American people... what on earth is so important about warrants?

- Since when is national security LESS IMPORTANT than civil liberties of a group of people predominantly held by non-citizens?

- If Muslim religious/civic groups have nothing to hide and understand the threat at hand, why on earth would they even care?

Constitutional rights are never outweighed by the safety of the majority. If there were white Neo-Nazi groups committing terrorist acts on large scales, and were the enemy of the state as Al Qaeda is, I'd be happy to allow the FBI to search my home and/or church.
WHY?
Because I have nothing to hide. heck, I might like it if more gov't types hung out at our church.

If we allow terrorist organizations to have sanctuary in our legal system, allow them to hide in our back yards, and allow them to fund and plan future attacks on our soil unchecked... 9/11 will be relived at a greater scale. Consider that the Holy Land Foundation lived down the street from my first Dallas apartment for years prior to being broken down by the very same intelligence agency accused of profiling. How awful... boo hoo.

I guess that puts you in the anti-Bill of Rights crowd. If so I respect your opinion.

If not how do you reconcile this statement and the freedoms and liberties established by the Constitution. I think the greatest real threat to most Americans is the government. Not in a conspiracy theory sort of way, but either we are a society that protects the freedom of the individual or we accept the possibility of an authoritarian government in the United States.

The threat here is our freedom. And the threat of another attack on American civilians can be dealt with in a COnstitutional way. It cannot ever be removed from our lives, but there are risks to having an open and free society.

And BTW do you have any proof that the group of people that attend Mosques are predominantly non-citizens? Or do I misread that statement?

Well... actually, it's nearly impossible to prove religion, mosque attendance, and demographics as our nation doesn't send census employees into churches and mosques... however, even according to A muslim voice, Most Muslim Americans are first generation immigrants.

What does that mean? From the same article:
This new ethnic group, because of modern transportation and communication, has the ability to stay in touch with the “old world” in a way that was not possible for the traditional ethnic groups of America who migrated from Europe. Muslim immigrant groups, then, are living in two worlds.

It doesn't take Sherlock Holmes to deduce that in many cases there are most likely militants and/or sympathizers living and working in our communities. This isn't a subversive or controversial thought process, but simple logic.

Maybe the word most is a little harsh, but I'm sure that there are many muslims that are either foreign nationals and/or first generation immigrants in the US, whom presumably probably don't possess the same patriotic affiliation that we might. Specifically, it would be easy to presume that being torn between an anti-American culture and living in the US might pose problems.

If Protestants (as a group) were announcing religious war against our nation, I would be definitely in favor of monitoring Protestant Churches. However, this really isn't the case...

So you have information that terrorists want to obtain nuclear material and use it against the US, that isn't exactly a news flash.

Do you have any sort of information suggesting a specific mosque may be hiding terrorists or nuclear materials? If not then you are violating the constitutional rights of everyone in that mosque.

There is a difference between having a reason to search and going on a fishing expedition.

And what is so important about warrants is we have this amendment which protects us called the 4th amendment. It stops the government from doing what it wants because it "knows best".


Now there's quite a generalization you can't even begin to back up. A good number of muslims in America are citizens and if even one of them has their Constitutional rights violated that is wrong.

National security is less important than civil liberties, anyone who values the Constitution would agree.


That is exactly the reason why we have Constitutional protections. I know it would be so much easier if we lived in a totalitarian state where the police could monitor everything you did, but thankfully we don't live in that state. It really is kind of funny to hear you say that since we spent the better part of a century fighting other countries that believed the police should have that kind of power.


Simple, to show you there is already a Supreme Court decision on the books which applies to this scenario.

I don't equate monitoring radiation to living in a totalitarian state, and believe that most would agree.

The reality is that a police officer on I-635 can pull you over, "suspect that you've been drinking", and subject you to far more tests than any radiation monitoring would ever include. In the United States, Constitutional Rights are necessary, but I don't believe that we're dragging people out of their homes in their under-roos in the mid of night... It's not quite the same really... no boot prints on foreheads or late night raids.

Why on earth would Muslims want the Government to stop monitoring for radiation?? Hmmm.... Maybe for the same reason that I wish the Dallas PD would stop putting up speed traps... (umm, I tend to have a lead foot...)

What I'm arguing is that monitoring their mosques for radiation is neither intrusive nor detrimental. There's a stark contrast to that and portraying my ideals as "Stalinist" or non-Constitutional...

That isn't what you said. You said verbatim "If Muslim religious/civic groups have nothing to hide and understand the threat at hand, why on earth would they even care?" That is a line straight out of the police state handbook. Greetings comrade!


There is a huge difference here - the police officer has probable cause and therefore has the right to conduct a search and administer tests to determine your sobriety.

The government, without information about a specific mosque, does not.

I think this case gets at the heart of the matter. The full text of Kyllo v. US can be found
here.
Written by Scalia of all people.

The ruling sets a precedent that what the FBI is doing now is considered a search:


The part that could be fought in court is whether this a public or private place.
(bolding mine)

I guess it's up to society if a place of worship is public or private. Keep in mind, location of the place doesn't matter as a telephone booth is concidered a private place protected by the 4th Amendment. [Katz v. United States, 389 U.S. 347 (1967)]

In summary they ruled:


I hate to use the slippery slope argument but it seems the Supreme Court already did:


Allowing these kind of tactics opens up quite a few scary possibilities .
I would suggest you address the rulings of the Supreme Court and address the implications of your belief aevans176, (or whoever agrees this is ok) as hypotheticals such as "speeding" are fruitless.

On this topic I disagree with many ADers who I generally agree with. I have regarded the proliferation of nuclear weapons as one of the greatest threats to modern societies since their invention. For that reason, I consistently opposed the "Atoms for Peace" program and the subsequent commercializing of nuclear technology. It was these programs and activities that led to the proliferation of enrichment technology and which provided the cover for the development of nuclear weapons by Israel, South Africa, India, Pakistan, and even North Korea. For the same reason, I have been very critical of the current administration's failure to put more resources into securing the bombs and nuclear material of the states that made up the former Soviet Union. These weapons and materials are a far bigger threat than Iraq ever was!

Now that the genie is loose, so to speak, I think it is appropriate to take extra ordinary steps to track and locate any "loose nooks" that are out there. I know on good authority that American harbors have been monitored for radiation sources for at least a decade. So long as monitoring for radiation sources takes place from a public street, I have no particular problem with it. If information gathered from such monitoring is legally insufficient to be used to obtain a subsequent search warrant if radiation is detected, then the executive needs to petition Congress to cure the legal deficiencies in current law. I would not consider such a law as being in violation of the 4th Amendment constrain against "unreasonable searches."

The issue of targeting Muslim Mosques and other Islamic related sites over other facilities is complex. The administration has already made huge errors in detaining and questioning American Muslims arbitrarily and thereby limiting the amount of needed cooperation that is forthcoming from that community. We certainly don't need to rub salt into that wound! On the other hand, it is true that the largest terrorist threat comes from a subset of Muslims and there is some justification in concentrating resources. I would favor open discussion with the American Muslim leadership about the need for radiation monitoring. After all, most American Muslims would be horrified if a radical exploded a nuclear device in an American city. They would also suffer unjustified retaliation.

1. Is the FBI out of line for monitoring mosques?

Not if they have clear authority in existing law. If they don't they should seek it. In any case, any monitoring activity should be subject to active Congressional oversight.

2. Should the FBI also profile sites owned by other religious groups?

Not particularly. They should monitor the Christian Identity movement, other radical right groups, and other organizations historically associated with irrational violent acts. Would Timothy McVeigh have used a nuclear device if he had one?

3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)?

As I pointed out, some harbors have been monitored for some time. I have no problem with monitoring any public facility or event for radiation sources and I believe that many have been.

I'm kind of wondering why the legal precedence on this subject is being ignored. Forward-Looking Technologies are an area of concern for the law and the Supreme Court has ruled on these issues.

Granted, in the Supreme Court's case (Kyllo v. United States) the search was conducted in a home, but that does not mean "oh well, then it doesn't count." Rather, it means that we have to look at their decision and consider the implications of different circumstances. So then there are two points to consider (which apparently nobody here in their rush to condemn millions of people have bothered doing.)

1. Do people have an expectation of privacy in places of worship?

2. Are non-invasive technology-based searches from public into private searches permissible?

If the answers to these questions are "no" and "yes" then all the other questions are irrelevant. If this qualifies as a "search," and people have an expectation of privacy, then the 4th amendment is "in play" and there is no doubt that these searches are illegal. And the last time I checked, it is illegal to violate the rights of Muslims just as it is for everyone else.

So lets actually consider these two questions.

I'm reading from the opinion from Scalia (you know, the Conservative one...) So first we must put the 4th amendment in context. A search is not a search when...



Here the question isn't even one of social expectations. Whether or not we consider mosques a private place is irrelevant. What is relevant is if we can reasonably agree that the subject in question considered their worship habits private. It seems to me then that the only people who wouldn't find their mosque a place of "private worship" are those who are using them for illegal activities. Now Aevans has already made it pretty clear that he figures that hundreds if not thousands of Muslims are in fact guilty, but simply believing that does not make it so. Assuming for a moment that most of the participants in a mosque are not engaged in criminal activity, and the non-criminal participants understand themselves to be in a non-criminal environment, then it is entirely reasonable for said participant to believe that their actions in the mosque are private.

So, then we need to ask ourselves, does this technology constitute a "search" or is it just monitoring? I find this discussion particularly interesting because I studied a similar case in Canadian Constitutional Law considering thermal imaging... not surprisingly, the decision and rational reached was almost identical (albeit with entirely different precedence considered.) Now, is this a search? The "test" or "criteria" that Scalia establishes can be read from this section:



Is the standard visible here for everyone? The reason why I mention standards is simple: this case establishes a criteria for determining whether new (or old and previously unused) technologies are used as a "search" or plain-sight observation. The standard has two simple parts:

- Does the technology yield information that could not otherwise be obtained without entering the "constitutionally protected area?"

- Is the technology in general public use?

Radiation "monitoring" pretty clearly yields information that would otherwise be unavailable, and outside of certain limited industrial uses the technology in question is not in use. So clearly a search has been conducted. And a reasonable person can expect their place of worship to be private.

Makes a pretty convincing case that a search has been conducted. Since there has been no discussions of warrants, I think it is safe to assume that none were issued, and therefore these searches are illegal.

You really should work for the DNC... SPIN MASTER!..

Seriously, the reality is that all of the monitoring was even done from OUTSIDE according to CNN, which is a far cry from Russian Totalitarianism. It's a far cry from even a routine traffic stop. There are no reports that even mention the government entering homes and/or mosques.

From CNN.com (CNN article)

Several sources said the covert program is legal because the authorities conduct the testing in areas like parking lots.

Frankly, I could even make a case for debate that states that this is no different from a police officer standing on an off ramp w/ a radar detector... why is that not unconstitutional?... oh, maybe because the only ones pulled over are speeders.

(**Side note- I hate that I have to spell some things out...**)

Follow me here... if a government official wasn't on private property and conducting said search for radiation of a specific nature, How is it any different from the police setting speed traps that happen to catch speeders??

Finally... from the Seattle Times.com...
"This is being done in a manner that protects U.S. constitutional rights," said Brain Roehrkasse, a Justice Department spokesman. "FBI agents do not intrude across any constitutionally protected areas without proper legal authority"

Aevans, I know you posted before mine was visible, but I suggest you go back and read it.



Ok, MAKE that case. You suggest that you can, but the proof is in the pudding, no. There is a process for establishing precendence... and it is not saying "I could make the case that." If it was, this site would be hella-boring.



Cube's post linked to a Supreme Court decision which found that searches conducted FROM a public place were unconstitutional. So far I've got at least one case that BACKS ME UP. You have the protestations of the DOJ, which I can't help but notice are devoid of actual caselaw. If you will note, in Kyllo the search was conducted from a public place into a private one. The Supreme Court found the distinction irrelevant. Just for review, this is what Kyllo v. US established:



If we substitute "place of worship" or "mosque" for "home," then the law is quite clear. I have taken the time to demonstrate how such a substitution can be made. Care to refute me, or are you just going to continue making vague references to what you "can" do while throwing the entire Muslim population under suspicion?

Questions for Debate:

QUOTE

1. Is the FBI out of line for monitoring mosques?

I will assume that since there are not nearly enough FBI personnel to monitor all mosques and homes of Arabs that they have selected those sites and people they have reason to believe could be involved with out terrorist enemies. This is certainly a good idea – although worthless now that the “top secret” program is public. INO we need to find the traitors who are doing this and execute them

QUOTE

2. Should the FBI also profile sites owned by other religious groups?

Why would they. Is there any indication that Catholics or any other denomination is under suspected of working with terrorists? If/when there is then they should.

QUOTE

3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)?

Profiling for terrorists should be acceptable everywhere and not just for nationality. Security screeners use a number of criteria and are trained in spotting people who may have something to hide.

I try not to digress into USSC rulings, as they are often controversial and debatable in themselves.

However, if you'd like to discuss the Kyollo case in its relevance to this subject I'd be happy to.

The case was ruled at 5-4, with the Stevens dissenting opinion stating clearly that "observations were made with a fairly primitive thermal imager that gathered data exposed on the outside of [Kyllo's] home but did not invade any constitutionally protected interest in privacy," and were, thus, "information in the public domain."

This is a fine line, in that no materials that the mosque or home should legally possess should emit radiation in the fashion that would be searched for.

That being said, the court of appeals even stated that " the Court of Appeals held that Kyllo had shown no subjective expectation of privacy because he had made no attempt to conceal the heat escaping from his home, and even if he had, there was no objectively reasonable expectation of privacy because the imager "did not expose any intimate details of Kyllo's life," only "amorphous 'hot spots' on the roof and exterior wall."

Let's take a look at the Fourth Amendment...
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation...

Ok. So, the logical argument would be to ask whether it's logical to see the side of the dissenting opinion? Is there not a realistically well thought out dissent in this case? Not to mention 4 of 9 dissented... That could easily have been different dependant upon the time in American history and the demographics of the court (conservatives v liberals).

Also, I wouldn't necessarily hinge my argument on the Kyollo case in that the mosques should have no logical/legal use for radioactive material.

Your argument is bewildering. You do of course understand that the "dissent" has no legal standing, right? No matter how compelling you find it, or how close the decision is, the Kyollo decision established clear legal guidelines for what constitutes an invasive search.



This position you have taken flies in the face of "innocent until proven guilty," the Fourth Amendment, and pretty much every standard of law in existence in the West. You MUST HAVE PROBABLE CAUSE TO CONDUCT A WARRANTLESS SEARCH OF AMERICANS. This is quite possibly the easiest concept in American law for you to understand, yet you are either ignorant of it, or you believe that the past events establish probable cause to believe that ALL (OR MOST) MUSLIMS ARE TERRORISTS. If the latter is true, then there is no point in trying to argue with you based on facts or reason. There is no evidence that a all, majority, or even a large minority has, will, or wishes to conduct a crime... If it is not, then I can't for the life of me understand how you function with such a flawed understanding of the basic principles of the American justice system.



No, the logical argument is to find EXISTING LAW which contradicts it. The dissent has no legal standing whatsoever. The decision establishes the law by which all future decisions must be measured. The dissent can be considered, but it has no bearing on the law. Until you do that you will continue to be, in these eyes, a hothead with no understanding of American law, and nothing resembling a cogent, coherent and relevant argument agains the points I (and others) have made.



Huh? You do understand that a search is illegal, even if it uncovers illegal activity, yes? Because that seems to be a tragic misunderstanding you are making. Of course it is all irrelevant because there have been no allegations or evidence of illegal radioactive materials found?!

You're basically arguing that the searches are legal because the dissent from a legal decision says they are, because they are against Muslims, and because they are watching for illegal activity which isn't taking place.

I'm waiting for the premature "April Fools" exclamation.

You could make that case but according to the same laws by which this ruling was made you'd be wrong, this is Constitutional. Our courts have repeatedly ruled that searches based on "plain sight" are Constitutional because law enforcement officials can't very well be expected to avert their eyes. You also have no reasonable expectation of privacy when driving on a public road, so your speed could be monitored.

Your example simply doesn't fly.


That is pretty much a non-statement because in your opening post you stated that this was being done secretly on both mosques and private homes and no where does it state that warrants were obtained to do this. If a warrant based on probable cause was granted by a federal judge then the FBI statement is accurate.

So, are you saying that the appellate courts and dissenting justices are fools?

Because I don't necessarily agree with the 5 Supreme Court justices whom set the standard (as of late), it's illogical? Good debating technique.

My point of contention is that if someone is monitoring from public property, if the muslims had nothing to hide, and if no physical search happened, there should be no complaint. The 4th amendment includes searches of person and belongings, in which nearly 1/2 the Supreme Court and all of the lower courts in this case agreed that thermal imaging didn't invade anyone's civil rights. Does monitoring radiation invade said rights? absolutely not.

Maybe we should sue the NSA for having satellites that might accidentally catch me in the back yard in my underwear...

Some of this debate is going way overboard.

First off the detection devices in use for nuclear material work similar to the gas detectors. They are deployed on public property and do not require a warrant, since they are detecting radioactive particles in the ambient air.

So the entire issue of search warrants, etc. is moot.

1. Is the FBI out of line for monitoring mosques?
No they are not. Instead of the random searching that TSA employees, so that they can not be accused of profiling, which results in hundreds of little old ladies and young children being searched, the FBI is looking at a pattern of activity. If mosques happen to be one of the places that a number of people that match a profile of likely individual then they must look around there.

Does it make sense to monitor a Quaker Meeting House? There is a limited asset of agents, and the risk of a nuclear weapon means that they must use their assets in the most efficient manner

2. Should the FBI also profile sites owned by other religious groups?
If they fit the same type of pattern of most likely risks, heck yes. This is pretty basic and totally non-intrusive.

3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)?
I do not think that those areas would be useful of the storage of nuclear material. It has be a place that has limited outside access.

Most mosques are located around communities with Muslim populations (big surprise). If there is a large number of Muslims that fit the profile, does it make any sense to search around a football stadium?

The police and FBI have limited resources, let them work smarter, not harder

Aevans you are free to think that the searches are justified. You are free to suggest that they SHOULD be legal. But you can't use the dissent to claim that they are legal. That is what I take issue with.

I never claimed judges that disagree are fools. Even the most perfunctory reading of my post would not yield that observation. Yet somehow you did...

What I did suggest is that the Supreme Court's decision is the final word as far as the law is concerned. If you don't understand that, then fine. Doesn't make it false.



Actually, this question was discussed in Kyllo. In that case the Attorney General argued that the thermal imaging only detected heat coming from outside the house-proper. The court (including the dissenters, I might add) found the distinction between "off-the-wall" and "through-the-wall" surveilliance immaterial. To simplify, the S.C. has basically said that in the case of technological surveilliance, observations which derive from "information" directly from the private area are considered an intrusion into that area. "Heat" emanating from the house is just thermal energy being transferred from the external surface to the surrounding air. If information gleamed from such a transfer is an unconstitutional search, then surely observations of hte ambient radiation created from the potential radioactive materials in the area are equally off-limits.

Which is of course irrelevant since there is no evidence that radiation is being observed. The last time I checked, a search is illegal if it doesn't find anything just as if it does.



What profile? There has been no assertion that there is a clearly marked threat from these populations. If there was a specific threat that was being monitored then maybe you would have a tenuous legal observation. But the very language being used by the DOJ and the White House describes this as a preventative program, not part of an investigation.

Actually, that's not really the case. USSC decisions are the final word, so long as they aren't overturned.
Here's a good link you might want to look into..
Overturned USSC decisions...

Interesting isn't it? It's not that I don't understand, but moreover that I don't agree. Guess that's where dissenting opinions come from... and maybe overruled decisions...

Most importantly, maybe this is where the case w/ CAIR might end up falling. It's marginally different in that the gov't isn't specifically even investigating the "happenings" behind walls and/or closed doors, but moreover the contents of the air within the proximity of said building.

I will have to disagree with you on the search warrant. Radioactive material is in itself inherently dangerous. More so than say a gas leak, over a long period of time. It does not take any court order for authorities to detect a hazardous material. The fact is most cities in the US have radiation detectors permanently placed is strategic areas. This has been in place for the past 50 years now.

Most Moslems are not terrorists, but most terrorists are Muslims. In fact over 90% of all terrorists are Arab Muslims. So to claim that there is no profile for the FBI to use is ludicrous . Of course they have an idea of who to look for.

As for CAIR it is just another terrorist front organization, which even the Arabs acknowledge.

by Al Skudsi bin Hookah a roving reporter for the Gaza Gajeera

Questions for Debate:

1. Is the FBI out of line for monitoring mosques?
No. The radiological hazard itself is justification for monitoring, add to that the simple fact, as noted, that the vast majority of terrorists in the world today claim their motivation to be jihad, and that they have declared war on the US, made known their desire to acquire and use nuclear weapons, its a no brainer.

Islamic terrorists have expressed intent to carry out further attacks against the US.
Islamic terrorists have demonstrated capability to carry out attacks in the US.
Islamic terrorists have utilized mosques, both here and abroad for staging and planning attacks.

That's sufficient "probable cause" for me.

2. Should the FBI also profile sites owned by other religious groups?
They already do. Military satellites were utilized by the Clinton Administration to "profile" domestic religious sites after the Oklahoma City bombing. Given that none of the non-Islamic domestic groups have expressed any interest in nuking American cities, radiological monitoring would be a waste of resources. When numerous leaders of the Church of Scientology express a desire to turn Cleveland into a glass plain, then monitoring of their sites may make sense.

3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)? Airports and sporting events already have much greater security in place, and are already subject to monitoring. Furthermore, neither is suitable as locations for planning and prepping nuclear terrorism, due to their very public nature. The purpose of the monitoring is to prevent the attacks, and in all likelihood by the time a nuclear device gets to a stadium, the attack is in its final stages. Religious sites can be controlled much easier by the terrorists, limiting access, who gets in, etc.

Those of you carrying on about search warrants and the like are overlooking a very critical element. This is not about preventing crime, it is about fighting a war. If you think passive radiological monitoring for nuclear weapons capable of killing tens of thousands, if not millions, of your fellow citizens is "unreasonable", then please, do everybody a favor. Go somewhere out in the middle of the desert and commit suicide on your own. I, for one, have no desire to join you in a death pact.


I am constantly amazed that an entire segment of our society that dedicates so much of its energy to identifying "root causes" and attempting to address them so completely ignores the role of Islam in this terrorism.

NEWS FLASH : The common thread in terrorist attacks from Beslan, 9/11, Bali, Jordan, Madrid, London, the murder of Theodor Van Gogh, etc, is Islam. Not poverty, not "Western imperialism", not oil, not Palesine, no, its Islam. The best place to find Islamic terrorists is going to be where they congregate, and mosques are it.

If the FBI were obtaining warrants to search specific mosques that would be fine because the citizens involved would have had due process and there would be judicial oversight. However, I highly doubt that any federal judge would grant a blanket warrant to search all mosques with no specific information relating to a threat as you are advocating.

The type of thinking summarized in the few sentences above is wrong and it has lead to other wrongs against specific groups in the past. Japanese internment camps during WWII were rationalized based on the same thinking. The degree of severity may be different but the thinking that brought it about is the same.

That way of thinking was wrong and unjust then and it is wrong and unjust today.

Wait a second, there was no mosques searched at all. This was a monitoring of the air in the public areas in the locale of mosques. There was no searches going on at all.

What CAIR is claiming is that it is illegal to monitor the air for radioactive particulate matter. Which is patent nonsense, since we do it daily for over 50 years now.

To compare that to the internment of the American of Japanese ancestry is a leap that defies all logic. It would be more akin to monitor the air waves for coded signals being transmitted.

You know, I could have sworn someone posted on the legality of "monitoring" and dug up some case law on the subject... Oh wait, that was me.

Did you read the post? The Supreme Court has ruled that devices which derive information about an area (or the activities within), even without actually penetrating INTO that area, are still considered searches. You can (and most likely will) continue to call it monitoring, but until someone actually shows me some law or document that says otherwise it is just wishful thinking.

You know, at least in the NSA wiretapping thread people are bothering to consider the points of the people they are debating with and doing some actual legwork. There is a compelling legal case to be made here, and so far nobody who supports these searches has even bothered to try (except for Aevans in his own misguided way.) I don't understand it, really.

I say "there is a Supreme Court decision that specifically deals with this kind of search" and the response is "terrorists want to kill us." If that is the level of debate I can expect in this discussion, then why should I continue to make my own case and invest time and effort in the process?

Oh and by the way... I'm still waiting for someone... anyone to come up with any statement or news release saying that this is anything other than a preventative program, which by it's very nature turns "probable cause" on its head.

Actually, Joe, some attempt has been made.

Cities monitor for gas leaks (at least according to Aquilla). Cities monitor for radiation (according to loreng and myself). They have done so before, without a warrant or probable cause.

This debate is also in that fuzzy area of national security. I think it's pretty clear that a judge will not order a search warrant without something more than "well, they're Muslims and they could have radioactive material". However, we do have a national security duty (as opposed to a law enforcement duty) to make sure radioactive material is not present.

Is this a search? Have communications been monitored?
Is this a seizure? Has property been confiscated?

What civil right has been violated? Freedom to have radioactive material? Most of that type of stuff is illegal to possess in any case so there is no Constitutional right to have contraband.

Is this harassment on religious grounds? Not unless the groups can demonstrate harm. I suppose there is a negative press angle there, but it is the groups themselves bringing this to public attention (how, exactly, did they find out anyway?)

There is a pretty big difference between those two activities.

1. Gas leaks would presumably be monitored in order to maintain public and private infrastructure. It really isn't any different than a company monitoring their web server to make sure it is up. They are also monitored for liability reasons. If a leak is sprung and it blows up someone's house that person could sue the gas company.

2. The purpose is also different. One would be "monitoring" radiation to detect criminal activity, one would not be monitoring for gas leaks to detect criminal activity.

The Kyllo decision definitely applies here since both mosques and private residences are being monitored. When we are dealing with potential criminal activity due process must be observed.

I don't know how many times I can go back to this. Scalia, writing the opinion in Kyollo set a specific criteria for what qualifies a search using "sensing" technology. General public use, and the ability to acquire the information without trespass. Until someone demonstrates how radiation monitoring satisfies either of these criteria I fail to see what your case is? What law states that there is no search if communications haven't been monitored? I'm not familiar with any such statute or caselaw.

Which civil right is being violated? I didn't realize I'd have to spell it out.



The standards for "reasonable" are established through centuries worth of law (which you have not even considered, let alone use in making your case), and the standard for a search in this case has been clearly established. So what is your case? It's not a civil rights violation because I don't think it is? Is "they don't have the rights to have radioactive material" your defense?

Because if it is, then there is nothing stopping the government from kicking down your door looking for child pornography... I mean, by your logic since you don't have any then your rights are not being violated.

Sorry, didn't mean to use the word logic there... I should have said thinking.

1. Is the FBI out of line for monitoring mosques?

Well, considering Joe's point, then yes. Its obviously illegal without a warrant, so unless the FBI is allowed to operate outside the law then this is clearly 'out of line'.


2. Should the FBI also profile sites owned by other religious groups?

I don't know that any profiling should be done. It seems like a stab in the dark to me. Surely its better to follow leads and paper trails and what have you. The idea that you might just get lucky and catch that one Muslim who just happens to have a smuggled atom bomb in his car seems a bit optimistic...

On the other hand though, what happens if a nuclear weapons is detonated in the USA?

How long does a law live? Until its replaced or until it kills people?


3. If such probing is acceptable, why not make the same assumptions in other public ventures (such as airports or sporting events)?

I don't know. If it were up to me, I'd have these devices all over the place, all the time.

You are wrong. Gas leaks are monitored in order to prevent explosions, fire, property damage, injury and death. Maintaining infrastructure and limiting liability are secondary. (btw, avoiding liability for what? oh, yeah - property damage, injury and death....)



Nuclear attacks are not "criminal activity", they are acts of war.

Ok, does anyone actually comprehend what constitutes surveilliance? Anyone? Monitoring for gas leaks does not convey any information about the activities of the person in a given protected area, so the detection of gas does not qualify as a search. Unless you can find some other law or regulation that develops a different standard for sensing technologies, then again you have failed to meet ANY criteria for a search.

One of the findings of Kyllo was the following.....



and....



One possible interpretation to this is the apparent perception of the court that the thermal imaging capabilities of the state are not available to the public, and quite possibly at that time they weren't. I don't know if this means the court believed at the time this decision was rendered that such technology "tipped the playing field" (to coin a phrase) unfairly in the favor of the state. However, in this case such an argument would be difficult to make I think.

Want to do "radiation monitoring"? Here ya go.

Edited to add a response to UJ.....



Monitoring for gas leaks could most certainly convey information on activity, even illegal activity. Let's say that the reason for the gas leak at my neighbor's house was because he had re-plumbed the lines to bypass the meter. In the process of tracing that leak, they would have discovered that and what do you think would have happened?

Actually it would be exceedingly easy. Note that it doesn't say "public use" it says "general public use." That language, and the language of the decision in its entirety makes it pretty clear that the standard is widespread or common use, to the point that it can reasonably be concluded that anyone could be using that technology at a given point, therefore there is no expectation of privacy from that form of monitoring.

Geiger counters are publicly available.

Here is one source of them. For $400 you can check your local churches, mosques, or synagogues yourself.

From the FAQ on that site:



The technology is certainly in the public domain.

A similar situation occurs with the paparazzi. It has been ruled that the photographers can photograph the inside of people's homes as long as they do so from public property. These photographers can legally follow anyone whom they deem newsworthy and take photographs of them doing whatever they are doing in public.

Whatever you do in public (which includes any location observable from a public place) is fair game.

You're right, Geiger counters are widely available. However, there is a big difference between widely available and in general public use. I hate to split hairs, but you've brought us to this. Do you have any sources to show that their use is widespread, or even "general." How many users of these devices are there outside of specialized, applied fields. Does ANYONE use them for public surveillance?

Every doctor I know owns a stethescope. Are they in "general public use?" Hardly.



Are you honestly suggesting that cameras are on the same level of "general use" as geiger counters? Because I would assert that they're not, and as such your example is flawed. But leaving this oversight aside, lets consider again the Kyllo case. Now, I know I've posted this numerous times... but I keep coming back to it because there has so far been no other relevant legal precedence established to contradict it.

Kyllo makes it incredibly clear that if the information cannot be obtained through another means without trespass, then it does in fact qualify as a search. The last time I checked, the only other way to check radiation other than "sense-technology" is direct exposure, which requires trespass. So it fails on that front. Your example however falls apart on several elements there. First of all, a camera is not a sensing device. I can just as well observe the interior of a home with the naked eye (the image reproduction is not a legal element.)

Of course your example also fails pitifully because paparrazi are not government agents. Then again, you already knew that.

editted to be less of a hothead.

Joe, here's your definition:



Now certainly you are not taking it to the extreme to expect that every person may be using a technique for surveillance. The criteria is that any person could use such a technique.

Anyone could buy a geiger counter. They're $400. That isn't much more than a digital camera or camcorder. It isn't unreasonable to think that anyone you might meet could have one. So the technologies are equally available, even if they are not equally widespread.

The website I linked said that one type of customer (they listed it as customer type #2, for whatever that's worth) is

So clearly they have sold units for exactly the purpose we are talking about in this example. If it is illegal for the feds to do this, it would be illegal for a citizen to do it.

Additionally, if it is NOT illegal for a citizen to do this (and if it is, someone should report that website I linked to), then I submit that it would follow that it would also NOT be illegal for the government to do it. Which is why it is legal for the government to take photos in public, ala the paparazzi.

It seems clear that (in your words) "anyone could be using that technology at a given point", given the fact that the company lists this use as one of the four types of customers it has.

Amlord, have you ever heard of a device called "TV-Be-Gone"? It is essentially a small remote, that costs about $15 and can be ordered online and delivered just about anywhere. They are cheap, unobstrusive and convenient. Now, are they in widespread public use? Well, they satisfy your criteria. I mean, anyone can get them... so obviously they are in general public use. You are basically saying "because the company sells them to everyone, then obviously they are commonly used and people can reasonably expect that the radiation levels in their homes are being monitored."

Doesn't that seem flimsy to use?

More to the point, you have yet to demonstrate that a personal, handheld geiger-counter has the same capabilities as the technology being used by the government for these searches. If you did, then maybe you'd have a case. Until then though, it's like arguing that infra-red scanning is legal without a warrant because I can buy an IR lens for my camera.

Do you own one Amlord? They are cheap for sure but I can't say I know even one person that owns one.

If you go to one of those affectionately termed "spy shops" you can buy just about any piece of equipment used by law enforcement officials for wiretapping, etc. You probably can't buy the type of quality annd sophistication available to agencies like the CIA, NSA, etc but I bet it comparable to a large police department and the FBI. Does that make these kinds of searches legal? By your (flawed) definition it does.

This is a flawed line of argument in the first place because it is focused on less than a sentence of thhe entire decision which is based on numerous concepts well established within our body of laws.

DANNY LEE KYLLO, PETITIONER v. UNITED STATES

To me it seems that the radiation detection (I am NOT going down the general use or general availability avenue here)

The Kyllo case does reference a heat detection targeted at the house. It would seem to me that an alert that would lead to a suspicion that radioactivity was present in an area could lead to a constitutional patrol for radiation in that area. And if that, like a bloody or muddy footprint led the investigators to a structure such as a mosque I would think that the gaining of evidence would be ruled admissible and constitutitonal. Now, placing geiger counters inside mosques, that wouldn't pass my test.


If my private possessions were leaking detectable radiation out into public places and could be detected without aiming at my home, I think that radiation evidence would likely be admissible in a criminal trial.

So I don't think Kyllo definitively resolves this issue. I think the targeting of the searches would be different.

Actually I know a number of people who have portable radiation detectors, most of them contractors. Southern California has a number of areas with Radon gas problems. Contractors use these detectors to check for Radon gas when they are building a home, or even repairing one. As one can see from the link I provided, the State of California has done Radon surveys throughout Southern California (and elsewhere I suspect). So, like the city driving a "sniffer truck" down my street to check for natural gas leaks, it seems reasonable (a word used extensively in Kyllo) to assume that the California Geological Survey would have monitored my street for radiation at one time or the other.

Now, it seems to me that if we apply the tests applied in Kyllo which dealt with expectations of privacy in the home and society's view of "reasonableness" that a very compelling argument can be made that radiation monitoring from public streets, even in front of mosques is within 4th amendment bounds.

Actually just about every water department in the country both public and private own them. They are required by most states to test for Gross Alpha and Gross Beta particles on a regular (read at least annual) basis.

Every major city has maintained them for 50 years to sample the area. Many private companies as well are required to monitor the air as well.

So to answer your question, are they in wide spread use, yes. Available to the public, yes again. This is nearly as common as radar and lasers for law enforcement in use with many police departments.

I'd have to say that I'm confused as to why Amlord's logic is flawed? Because it's in disagreement with your opinion? I'd be interested in seeing how you justify such statements.

Frankly, the Kyollo decision, as controversial as it is, is different from measuring particles in the air outside a building. It's non-invasive, and even similar to measuring relative humidity or pollution.

Please explain how this logic is contrary to the Kyollo decision....

I have two questions... one specifically for aevans to answer I suppose.

First (aevans)... by what standard is the Kyllo decision controversial? I have never heard that term used to describe that particular case. In fact, I had never heard of the Kyollo decision until CJ's first post in here included an article that made a passing reference to it. A google search of "Kyllo" and "controversy" yields no relevant hits and it has not been considered controversial (as near as I can tell) by anyone outside of this current discussion, let alone by anyone at any point before this story broke. So again, by what standard is it controversial, aside from the fact that you disagree with it and it seriously undercuts your arguments?