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The Fourth Amendment Abroad:
The Second Circuit has just handed down a very important new Fourth Amendment case on how the Fourth Amendment applies overseas: In re Terrorist Bombings of U.S. Embassies (Fourth Amendment Challenges). In an opinion by Judge Cabranes, the court held that the warrant requirement does not apply to searches abroad conducted by U.S. officials: searches abroad are governed by a reasonableness standard instead of the warrant requirement.

  It's interesting to compare the Second Circuit's approach with the rule that the Ninth Circuit has taken in cases involving joint investigations. In most criminal cases investigated abroad, the U.S. works closely with foreign law enforcement: the FBI and the foreign authorities conduct a joint investigation. In that setting, the Ninth Circuit has held that the Fourth Amendment requires reasonableness, and that the reasonableness of a joint investigation is governed by its compliance with the law where the search occurred. The basic idea is that if the U.S. law enforcement authorities are working with their foreign counterparts and conducting searches abroad, then the most you can expect is that the joint investigation will comply with the letter of the law where the search is occurring.

  Today's decision by the Second Circuit deals with a different circumstance: Here the U.S. was acting alone, with intelligence agencies investigating in Kenya without the assistance of Kenyan authorities. Until today, there were no federal appellate decisions on this set of facts, and the only lower court decision (that I know of) was the district court decision below. The Second Circuit applied a different sort of reasonableness rule: It applied a totality of the circumstances test that generally balances the individual's privacy interest with the government's interest in collecting the information. Notably, in this case the test factored in the government's national security interests in investigating terrorism -- an interest that the court indicated was paramount and that the court was "loathe" to discount.

  This is roughly the framework that it seems that U.S. intelligence agencies had been assuming applying to its surveillance of those with Fourth Amendment rights abroad, and if anything is more government-friendly than the very sparse precedents in this area would suggest -- certainly more so than Judge Sand's opinion for the district court. But this area has long been a question mark in the Fourth Amendment area: While there have been a number of "joint investigation" cases, the legal framework for U.S.-only monitoring of U.S. citizens abroad has long been a largely open question.

  Finally, note that this opinion doesn't change the law that applies to the bulk of national security monitoring abroad. Most national security surveillance outside the U.S. is of individuals that have no Fourth Amendment rights at all under United States v Verdugo-Urquidez because they have no significant voluntary contact with the U.S. (such as would generally be the case with a foreigner abroad who doesn't live in the U.S. or have property here). The rules that apply to such monitoring is statutory rather than constitutional, and this decision (which applies in the case of a U.S. citizen) doesn't change that.
cboldt (mail):
-- Today's decision by the Second Circuit deals with a different circumstance: Here the U.S. was acting alone, with intelligence agencies investigating in Kenya without the assistance of Kenyan authorities. Until today, there were no federal appellate decisions on this set of facts, and the only lower court decision (that I know of) was the district court decision below. --
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United States v. Bin Laden, 126 F. Supp.2d 264, 277-78 (S.D.N.Y. 2000)

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The target of the overseas search was an American citizen, Wadih El Hage. I don't recall the country, and that case may be exactly the same one you are referring to here.
11.24.2008 1:36pm
cboldt (mail):
Ah yes ... exactly the same case. Good to see it upheld on appeal.
11.24.2008 1:38pm
Lior:
Should the governing law in such cases be whatever the local laws of the place where the search took place?

Is evidence obtained abroad in contravention of the local laws admissible in US courts?
11.24.2008 1:46pm
eck:
Coincidentally, note that Fed. R. Crim. P. 41 will change, effective December 1, to permit federal magistrate judges to issue search warrants effective in certain places outside any federal district: specifically, for searches in a US territory/possession/commonwealth or for searches of US diplomatic or consular premises (or diplomatic/consular residences) in other countries.
11.24.2008 3:35pm
BCohen:

It applied a totality of the circumstances test that generally balances the individual's privacy interest with the government's interest in collecting the information. Notably, in this case the test factored in the government's national security interests in investigating terrorism -- an interest that the court indicated was paramount and that the court was "loathe" to discount.


Couldn't this be described as a "Reasonable expectation of privacy minus" standard? Are there any exceptions other than "national security" that would factor into a "totality of the circumstances" determination that would render a different outcome than applying the REP test? I would presume that under such a test, the government, by itself (no joint investigation) investigating U.S. citizens involved in non-terrorist activities such as garden-variety wire fraud, wouldn't be able to engage in surveillance activities that would violate the 4th Am. domestically.
11.24.2008 3:43pm
CDU (mail) (www):
Should the governing law in such cases be whatever the local laws of the place where the search took place?

Is evidence obtained abroad in contravention of the local laws admissible in US courts?


The problem with applying local law is that a lot of U.S. intelligence operations (particularly those in unfriendly countries) are conducted in violation of local law. Treason and espionage are crimes pretty much everywhere, but the whole raison d'ĂȘtre of the CIA's human intelligence operations is to convince the citizens of other countries to commit them. Saying that evidence obtained by violating a local law would exclude most human intelligence (and quite a bit of electronic intelligence) from the courtroom.
11.24.2008 6:05pm
Lior:
CDU: The raison d'ĂȘtre of intelligence gathering is usually just that: to gather intelligence, in other words information to be used in (political) decision-making. Intelligence-gathering is usually not thought of as a criminal investigation. If the CIA is looking for evidence to be used in criminal trials then something has gone wrong.

Information which is useful in executive decision-making might not be admissible in court. There's nothing wrong with this.

The CIA does not protect the custody chain of evidence. It does not document its methods and publicly discusses them so their accuracy can be evaluated. The CIA cannot be required to meaninfully reveal this information to the court, especially to the defendant, who has a right to confront the witnesses against him. There's nothing wrong with this -- the CIA cannot function otherwise. But there's something wrong about using such evidence in a court of law.

The CIA cannot testify in court to support its evidence without damaging its intelligence-gathering ability. The CIA cannot by definition give the court the same background it gives sworn-to-secrecy decision-makers in the executive that allows them to trust the judgement of the CIA.

In the political arena, the CIA tell the decision-maker: "having gathered the evidence, we think the balance of probabilities is as follows ...". When they present the actual intelligence (depending on the need for security), the person seeing that has a good idea of the reliability and capabilities of the CIA. A court of law cannot make rulings in similar situations.
11.24.2008 6:50pm
CDU (mail) (www):
If the CIA is looking for evidence to be used in criminal trials then something has gone wrong.


Intelligence information is seldom used in criminal trials (largely to protect sources and methods) but the threat of such use is an important tool for encouraging suspects to accept bargains, particularly in counterespionage cases.
11.24.2008 7:43pm
jccamp (mail):
Lior -

You should read the decision. The CIA collected the (majority of the) data in '96 and '97. The underlying crime that the defendant was convicted of occurred in 1998. That the principal interest of the search &seizure was intelligence collection should be fairly evident from the dates alone. One of the main alterations in law, post-9/11, was that the so-called Chinese Wall between intelligence gathering and criminal prosecution was lowered or reduced, to allow exactly this kind of knowledge to be introduced as evidence in criminal trials.

As you can see from the case law, the evolution of an intelligence role in criminal prosecution continues.
11.24.2008 8:12pm
Ignatius Riley (mail):
Typically, if members of our military are stationed overseas and living off base, their commanding officer has the ability to authorize a search of their residence (or car, locker, etc.) and a seizure of any items. Host-nation laws aren't considered. The Military Rules of Evidance require that the standard for the warrant is probable cause.
11.24.2008 8:15pm
zippypinhead:
This is an interesting and probably Constitutionally-correct decision. But it deals with a fact pattern that is really quite rare - U.S. agents conducting an independent operation offshore that results in evidence offered in a subsequent U.S. criminal prosecution. In the vast -- VAST -- majority of criminal cases in which foreign-seized evidence plays a role, it is either gathered under color of foreign law by foreign law enforcement (either in their own investigation, or in a multinational joint investigation), or is obtained at the request of U.S. authorities through well-established but kludgy international cooperation agreements. See, e.g., Letters Rogatory or MLATs.

And while I've been accused of being more cynical than your average pinhead, I expect that in an increasing number of GWOT actions by U.S. intelligence agencies in select countries, the ultimate compulsory process will be delivered by a Hellfire missile launched from a UAV. Which tends to cut down on the subsequent evidentiary issues...
11.25.2008 11:15am
Tony Tutins (mail):
I see Orin was quoted in the New York Times on this issue (I forget if it was in Monday's or Tuesday's paper.)
11.25.2008 7:29pm