Foreign Warrantless Surveillance Was Reasonable

A three-judge panel of the U.S. Court of Appeals for the Second Circuit has turned away the appeal on 4th Amendment and other grounds by three Al Qaeda operatives sentenced to life for conspiracy in the August 7, 1998 bombings of American embassies in Kenya and Tanzania.

The authorities may lawfully conduct searches and electronic surveillance against United States citizens in foreign countries without a warrant, a federal appeals court panel said on Monday [November 24], bolstering the government’s power to investigate terrorism by ruling that a key constitutional protection afforded to Americans does not apply overseas.

In criminal law parlance, improperly obtained evidence is considered the so-called "fruit of the poisonous tree," and as such, must be thrown out as an illegal search and seizure. In a lengthy opinion for the court that denied an attempt by the defendants so suppress evidence used against the defendants at their trial in U.S. District Court, Judge Jose A. Cabranes wrote that...

First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search...Second, 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...Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation...Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches...For these reasons, we hold 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 Court found the challenged surveillance reasonable under the 4th Amendment for the following reasons:

First, complex, wide-ranging, and decentralized organizations, such as al Qaeda, warrant sustained and intense monitoring in order to understand their features and identify their members...Second, foreign intelligence gathering of the sort considered here must delve into the superficially mundane because it is not always readily apparent what information is relevant...Third, members of covert terrorist organizations, as with other sophisticated criminal enterprises, often communicate in code, or at least through ambiguous language...Fourth, because the monitored conversations were conducted in foreign languages, the task of determining relevance and identifying coded language was further complicated....Because the surveillance of suspected al Qaeda operatives must be sustained and thorough in order to be effective, we cannot conclude that the scope of the government’s electronic surveillance was overbroad.

The court conceded that while the intrusion into the privacy of one of the defendant's was great, the need for U.S. counter-terrorism authorities to intrude was "even greater." The defendant in question, a naturalized U.S. citizen and close associate of Osama Bin Laden, sought to suppress evidence gathered from the search of his Nairobi home and surveillance of his Kenyan landline and cell phones. The full, three part opinion in In re Terrorist Bombings of U.S. Embassies in East Africa, Docket # 01-1535-cr(L), can be found here.

Thanksgiving Eve Musings

This blog's charter allows us to on occasion veer off into other legal issues apart from homeland security. So what better time than on Thanksgiving Eve. Did you know that Canada celebrates its own Thanksgiving in mid October? In any event, speaking of Canada (and the possible connection with festive eating), that country's Supreme Court ruled on November 19 that obese people have the right to two seats for the price of one on domestic flights. Actually, the High Court let stand a lower court ruling to that effect, but the net result is the same.

This is the type of legal dispute that stirs up profound mixed emotions, like the 2001 Casey Martin case. In general, we don't favor government intervention into how businesses manage their internal operations. Yet, this news report cites individuals with severe arthritis or hormonal disorders that will be legitimately helped by this decision. And airplane seats are not roomy to begin with for any passenger. On the other hand, for the ordinary overweight person, if there is such a thing, wouldn't it be better to seek remedies through diet, nutrition, and exercise rather than through the courts? How many other travelers will be prevented from getting a ticket on a flight under this new policy? And to what extent will this mandate undermine the airline industry's already shaky financial viability? The news article also identifies at least one practical problem in terms of implementation: "A possible sticking point is how to decide when obesity is a disability. The agency has recommended the airlines adopt a policy used by Dallas-based Southwest Airlines, which gives a free seat to people who are too big to lower their armrest." Unfortunately, courts are often ill-equipped or unwilling to address real-world implementation or the associated unintended consequences.

Here in the states, the number of overweight persons seems to be, well, expanding. At least that's what the media says, but visiting any mall or other public gathering place seems to provide empirical evidence. This reminds us of a seemingly unrelated issue: the syndicated courtroom shows on television. In virtually all of those shows, the television judge hearing the cases--complaints that originated in Small Claims courts around the country--showboats, grandstands, and yells at the litigants. Note that these proceedings are technically binding arbitration hearings; the parties have agreed to drop their actual Small Claims case in the original jurisdiction in order to get the case heard on TV by an arbitrator (typically a former judge) but with the trappings of a court trial

The one exception seems to be Marilyn Milian, a former state circuit judge from Miami, who currently presides over The People's Court. (The New York Times called the show "quick and dirty justice served up for mass consumption." Judge Milian often says on the show that she administers "rough justice".) Okay, so she also showboats, grandstands, and yells at the litigants, and she sometimes even prevents the parties from introducing all of their evidence. Yet, the show is unusually informative for the viewer in that Judge Milian takes the time to explain how the principles of law apply to each case (as does the TMZ guy who does the wrap-around commentary in Times Square). She even discusses how the law of the parties' jurisdiction--which may differ in certain respects from general legal principles--applies to their case. So amidst the fender benders, shady contractors, and jilted lovers fighting over the eternal question of loan vs. gift, you can really learn a lot about law from that program.

But, we have noticed that somewhere in the range of roughly 60-70% of the litigants seem to be, well, noticeably overweight. So is there an odd correlation between Small Claims and large bodies, or is the show merely a cross-section of the real America?

Federal Jury: Charity Guilty on All Counts

On November 24, a Dallas federal jury found the Holy Land Foundation and five of its organizers guilty on 108 separate charges connected with illegally funnneling at least $12 million to Hamas, the Palestinian terrorist organization. The government's first attempt at prosecuting the charity ended in a mistrial in 2007. This jury rejected defense claims that the now-defunct foundation, which U.S. officials shut down in 2001, was a legitimate charity. According to the Dallas Morning News...

The verdicts are a major triumph for the outgoing administration of President George W. Bush, whose efforts at fighting terrorism financing have been troubled. Two other similar high-profile prosecutions targeting supporters of Palestinian militants have ended in acquittals, deadlocked juries or convictions on lesser charges...

Terrorism experts say Monday's verdicts demonstrate that complicated terrorism financing cases can be successfully prosecuted in American criminal courts. The verdicts also lend credibility to the Treasury Department's oft-criticized program of designating terrorist entities and freezing assets.

The verdict "sends a crystal-clear message that the United States will neither allow itself to serve as a cash cow for terrorist groups nor allow the charitable sector to be abused by groups financing terrorism under the cover of charity," said Matt Levitt, a Hamas expert and former high-ranking government intelligence official who testified in both trials.

The convictions were a culminaton of a 15-year investigation. The Holy Land Foundation was once the largest Islamic charity in the U.S. The U.S. State Department has formally designated Hamas as one of 44 foreign terrorist organizations.

Not All Detainees Victims of Circumstance

As a follow on to the previous post, the New York Times--perhaps the most fierce critic of Bush Administration homeland security policies--suggested on the day before the election that maybe, just maybe, some of the Gitmo detainees deserve to be there after all:

They were called the Dirty 30 — bodyguards for Osama bin Laden captured early in the Afghanistan war — and many of them are still being held at Guantánamo Bay, Cuba. Others still at the much-criticized detention camp there include prisoners who the government says were trained in assassination and the use of poisons and disguises...an extensive review of the government’s military tribunal files suggests that dozens of the roughly 255 prisoners remaining in detention are said by military and intelligence agencies to have been captured with important terrorism suspects, to have connections to top leaders of Al Qaeda or to have other serious terrorism credentials...The next president will have to contend with sobering intelligence claims against many of the remaining detainees...But as a new administration begins to sort through the government’s dossiers on the men, the analysis shows, officials are likely to face tough choices in deciding how many of Guantánamo’s hard cases should be sent home, how many should be charged and what to do with the rest.

Obama Advisors Craft Plan for Gitmo Detainees

The Associated Press is reporting that the Obama administration plans to close the Guantanamo Bay detention center and bring suspected terrorists to the U.S. for trial.

Under the plan being crafted inside Obama's camp, some detainees would be released and others would be charged in U.S. courts, where they would receive constitutional rights and open trials. But, underscoring the difficult decisions Obama must make to fulfill his pledge of shutting down Guantanamo, the plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases. Many of the about 250 Guantanamo detainees are cleared for release, but the Bush administration has not able been to find a country willing to take them.

Not all Democrats are on board with creating a new legal system for the detainees. And Republicans such as Senate Judiciary Committee member John Cornyn of Texas believe that treating terrorism as a mere crime would be a "colossal mistake."

According to the senator, "It would be a stunning disappointment if the one of the new administration's first priorities is to give foreign terror suspects captured on the battlefield the same legal rights and protections as American citizens accused of crimes." Sen. Cornyn added that the Senate overwhelmingly passed a nonbinding resolution last year opposing bringing detainees here. Obama failed to vote on the resolution, however.

Leaving aside the politics, campaign promises, and the symbolism, as a practical matter is it really a good idea from a security standpoint to bring these detainees to the U.S. mainland? Given the existing security problems within America's overcrowded jails, do we want these individuals mixing with the general prison population? Would those terror suspects found not guilty then be released into the local community? It's all well and good to advocate "change," but protecting the American people must remain the highest priority.

The procedures for conducting the trials themselves raises a host of practical problems, as the AP article indicates: "Evidence gathered through military interrogation or from intelligence sources might be thrown out. Defendants would have the right to confront witnesses, meaning undercover CIA officers or terrorist turncoats might have to take the stand, jeopardizing their cover and revealing classified intelligence tactics."

According to an July 2007 account in the Australian press, at least at least 30 former Guantanamo Bay detainees have been killed or recaptured after apparently resuming their terrorist activities following their release.