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.