Monday, November 24, 2008

Fourth Amendment's Warrant Clause does not apply overseas

The Court of Appeals affirmed the convictions of al Qaeda terrorists by holding for the first time that portions of the Fourth Amendment do not apply when U.S. agents are gathering evidence overseas.

The case is In Re Terrorist Bombings, issued on November 24. The Court of Appeals actually issued three separate opinions, each focusing on a different issue. In the Fourth Amendment opinion, the Second Circuit considered whether U.S. agents were able to search defendant El-Hage's residence and conduct electronic surveillance of his telephone lines, both land-based and cellular in August 1996 and August 1997. Normally, under the Fourth Amendment, you need a warrant to search someone's home or phone lines. The angle here is that this all happened abroad, and that the U.S. did not search defendant's private affairs with a warrant.

The Court holds that "the Fourth Amendment’s Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness." The reasons for this holding are as follows: (1) no U.S. precedent supports the defendant's argument that a warrant is needed; (2)
"nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own"; (3) any warrants issued by American judicial officers would have dubious legal significance in a foreign nation; and (4) it's not even clear that American judicial officers have the power to issue such warrants in any event.

Under the reasonableness standard outlined above, American authorities properly searched the defendant's property and phone lines in Kenya. American officials knew that al-Qaeda was operating in Kenya at that time. Suspected al-Qaeda associates were using telephones in the building where the defendant lived. American authorities had a disciplined approach to monitoring this activity and determining that the search was necessary. The Court concludes, "U.S. agents did not breach the privacy of El-Hage’s home on a whim or on the basis of an unsubstantiated tip; rather, they monitored telephonic communications involving him for nearly a year and conducted surveillance of his activities for five months before concluding that it was necessary to search his home."

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