A Perplexing Question: Is This Also Protected?

Hugh Hewitt brought to light a situation reported by US News. Now, the report itself is fairly slanted, but it does bring to light an important question or whether or not a warrant was needed.

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.

So, we engaged in a warrantless search on sites that Muslims frequented. Now, as people know what I have said over the last couple of days, if there is a US citizen involved in a case, a warrant is needed. This is an unescapable, and unarguable fact. The Fourth Amendment is explicit. A warrant must be obtained to search their homes, their effects, their papers, etc., etc. We know this. So, if the sites searched belonged to a US citizen, and a warrantless search was initied, then the government broke the law.

However, if their was enough probable cause, at the time, and a connection to national security was established, technically under the argument made thus fart regarding the president's warrantless searches could apply. This is a tricky case, and much of it, I believe, revolves around timing. In other words, was their a specific time frame, based on a threat assessment, that the search had to be done in. This is the argument that the president presented when he admitted the NSA surveillance.

The FISC, the court that oversees the FISA warrants, was deemed to slow in some instances. If it could be proven by the government that some of these were of that sort, then it's feasible to assume that this sort of surveillance, too, was protected by the president's powers.

This isn't spinning. I'm trying to analyze the situation that has been presented based on what I know of the law. There is a tiny loophole this could fit in. Notice I said "could." This isn't definite, and if the government broke the law they should be held accountable. However, as Orin Kerr and Eugene Volokh pointed out today, there isn't enough information, thus far, to draw a solid conclusion, and theirs match mine, for the most part. Hugh seems to agree. I stated that the president's powers during wartime were nearly unlimited. We still have a Constitution he must abide by in all respects; not just those related to his power alone.

What I hope, in this instance, is that my scenario is the sort used. How many places were "physically" searched or scanned? Was it an actual on-site search, or a simple scan of the area surrounding the sites in an effort to catch it all? These are just a couple of the wuestions needing to be answered. Another is "how many were US citizens?" And I mean citizens, not what the Left deems a citizen; we already know they want citizen protections instituted for terrorists, as well as Americans.

I assure our readers, there will be more to come on this as more information comes out about it.

Publius II