In re Terrorist Bombings of U.S. Embassies (Fourth Amendment Challenges)
__ F.3d __ (2d Cir. 2008) (2008)
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Rule of Law:
The Fourth Amendment's Warrant Clause does not apply to extraterritorial searches of U.S. citizens conducted by U.S. agents. Such searches are governed only by the Fourth Amendment's requirement that they be reasonable.
Facts:
- Wadih El-Hage is a United States citizen.
- By mid-1996, American intelligence became aware of al Qaeda's presence in Kenya and identified telephone numbers used by suspected associates.
- From August 1996 through August 1997, U.S. intelligence officials monitored telephone lines in Kenya, including a landline and a cell phone used by El-Hage.
- In April 1997, the U.S. Attorney General authorized intelligence operatives to specifically target El-Hage, and this authorization was renewed in July 1997.
- On August 21, 1997, U.S. officials, working with Kenyan authorities, conducted a physical search of El-Hage's residence in Nairobi, Kenya.
- During the search, El-Hage's wife was shown a document described as a Kenyan warrant authorizing a search for 'stolen property.'
- At no point did U.S. officials apply for or obtain a search warrant from a U.S. court for either the electronic surveillance or the physical search of El-Hage's home.
Procedural Posture:
- Defendant-appellant Wadih El-Hage filed a pretrial motion in the U.S. District Court for the Southern District of New York to suppress evidence obtained from the search of his home and electronic surveillance in Kenya.
- The government opposed the motion and submitted classified materials for the court's ex parte, in camera review.
- The District Court denied El-Hage's request for an adversarial suppression hearing.
- The District Court denied the motion to suppress, holding that the searches fell under a 'foreign intelligence exception' to the warrant requirement and were reasonable.
- Following a jury trial, El-Hage was convicted on numerous charges.
- El-Hage filed post-conviction motions challenging the suppression ruling, which the District Court denied.
- El-Hage (appellant) appealed his conviction and the denial of his suppression motion to the U.S. Court of Appeals for the Second Circuit, where the United States was the appellee.
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Issue:
Does the Fourth Amendment's Warrant Clause apply to searches of U.S. citizens conducted by U.S. agents outside the United States?
Opinions:
Majority - Cabranes
No. The Fourth Amendment's Warrant Clause does not apply to searches of U.S. citizens conducted by U.S. agents abroad; such searches must only satisfy the Fourth Amendment's core requirement of reasonableness. The court reasoned that there is no historical precedent for requiring U.S. warrants for foreign searches, as the Fourth Amendment was originally intended to restrict domestic searches. Furthermore, a warrant issued by a U.S. court would be a 'dead letter' or 'nullity' in a foreign sovereign nation, as U.S. judicial officers lack the authority to authorize searches there, and such an attempt could create diplomatic complications. The court rejected the district court's 'foreign intelligence exception' and its 'primary purpose' test, finding that analysis unstable and unrealistic. Instead, all extraterritorial searches of U.S. citizens are subject to a reasonableness balancing test. Applying that test here, the court balanced the intrusion on El-Hage's privacy against the government's paramount need to investigate threats to national security posed by al Qaeda. Given the gravity of the threat and El-Hage's connection to the terrorist organization, both the year-long electronic surveillance and the search of his home were deemed reasonable.
Analysis:
This decision establishes a clear and significant precedent within the Second Circuit regarding the extraterritorial application of the Fourth Amendment to U.S. citizens. By holding that the Warrant Clause is geographically limited to the United States, the court strengthens the executive branch's authority to conduct foreign intelligence and law enforcement investigations abroad without judicial pre-approval. The rejection of the complex 'primary purpose' test in favor of a straightforward 'reasonableness' standard simplifies the legal analysis for such searches. This ruling provides government agents with greater operational flexibility in national security cases, while confirming that citizens abroad retain the core Fourth Amendment protection against unreasonable searches, which will be evaluated by courts on a case-by-case basis using a totality of the circumstances balancing test.
