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Second Circuit Rules that Warrantless Searches Against US Nationals Aboard Can be Permissible

The New York Times reports:

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, bolstering the government’s power to investigate terrorism by ruling that a key constitutional protection afforded to Americans does not apply overseas.
The unanimous decision by a three-judge panel of the United States Court of Appeals for the Second Circuit, in Manhattan, came in the case of three Al Qaeda terrorists convicted a few months before 9/11 in a conspiracy that involved the 1998 bombings of two American embassies in East Africa.

The court did not address the question of whether the government could conduct warrantless wiretaps of international calls involving people in the United States, an issue that drove a wedge between the Bush administration and Congress. But the ruling did give footing to those who say that terrorism suspects can be successfully and effectively prosecuted in civilian courts.

The warrantless searches must still be reasonable, as the Constitution requires, Judge José A. Cabranes wrote for the panel, adding that the government had met that standard in the case of one defendant, Wadih el-Hage, a close aide to Osama bin Laden and a naturalized American citizen who was living in Nairobi, Kenya. The government searched his home and monitored his phone conversations.

“The Fourth Amendment’s requirement of reasonableness — but not the Warrant Clause — applies to extraterritorial searches and seizures of U.S. citizens,” the judge wrote.

Mr. el-Hage and two other defendants had appealed their convictions for conspiring with Mr. bin Laden in a plot to kill Americans around the world.

The conspiracy included the 1998 bombings of the United States Embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224 people and wounded thousands.

While noting that Mr. el-Hage “suffered, while abroad, a significant invasion of privacy by virtue of the government’s yearlong surveillance of his telephonic communications,” the panel offered a detailed analysis of why the search was reasonable under the Constitution, given the “self-evident need to investigate threats to national security” that foreign terrorist organizations presented.

The panel said the electronic surveillance was justified — and reasonable — for a number of reasons, including that “sustained and intense monitoring” was necessary to understand a “complex, wide-ranging and decentralized” organization like Al Qaeda; and that members of covert terrorist organizations often communicated in code.

“While the intrusion on el-Hage’s privacy was great, the need for the government to so intrude was even greater,” Judge Cabranes wrote.

The opinions in the case can be found here, here, and here.

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.