Second Circuit Rules that U.S. Government Does Not Need a Warrant When it Investigates American Citizens Abroad

Guest contributor Justin Sher, Esq., writes:

Several months ago, the Second Circuit issued an opinion in In re Terrorist Bombings of United States Embassies in East Africa, 552 F.3d 157 (2d Cir. 2008), and became the first appellate court to hold that the government does not need a warrant when it conducts an extraterritorial search or seizure affecting an American citizen.  In doing so, the court sanctioned the government’s practice of conducting searches and seizures abroad without first demonstrating probable cause to an impartial magistrate.

Facts

Wadith El-Hage was an American citizen living in Nairobi, Kenya.  From August 1996 through August 1997, American intelligence officials monitored El-Hage’s cell phone and a telephone in his residence as part of their investigation of al Qaeda’s presence in Kenya.  El-Hage claimed that 25 percent of the intercepted calls were made by or to a Kenyan businessman who had no affiliation with al Qaeda and that transcripts retained by the government reflected calls between El-Hage and his wife concerning their children.  At no time did the American intelligence officials obtain a warrant to monitor El-Hage’s phone lines.

In August 1997, U.S. officials, in conjunction with Kenyan authorities, searched El-Hage’s home in Nairobi and seized several items.  Although El-Hage’s wife was presented with a Kenyan warrant authorizing a search for stolen property, the American officials had not obtained a warrant from a U.S. magistrate.

Facing prosecution for his involvement in al Qaeda’s terrorist activities, El-Hage moved to suppress evidence obtained from both the government’s electronic surveillance of his phones and the government’s seizure of items from his home.  El-Hage argued that the searches were unlawful under the Fourth Amendment because they were not authorized by valid warrants and, alternatively, because the searches were unreasonable. 

The Holding

The district court denied El-Hage’s motion according to the “foreign intelligence exception” to the warrant requirement and on the related grounds that application of the exclusionary rule would not deter intelligence officials from conducting similar searches in the future.  On appeal, the Second Circuit affirmed on different, more sweeping grounds.  The court held categorically that the Warrant Clause of the Fourth Amendment does not govern searches conducted abroad by U.S. agents regardless of whether the searches involve U.S. citizens.  The court rested its decision on four grounds. 

First, the court observed that foreign searches historically have not been subject to the warrant procedure.

Second, the court rejected the possibility that the Warrant Clause required a U.S. official to obtain a warrant from a foreign magistrate before conducting an extraterritorial search or seizure.  The court suggested that empowering a body other than the executive branch of the U.S. government to restrict American actions abroad would interfere with the government’s ability to pursue effective foreign policy.  The court explained, “the Constitution does not condition our government’s investigative powers on the practices of foreign legal regimes ‘quite different from that which obtains in this country.’”

Third, relying on “guidance” from the Supreme Court in United States v. Verdugo-Urquidez, the court explained that a warrant obtained from a U.S. magistrate would be a “dead letter” in a foreign country because it would have no legal effect.  The court was not persuaded by the argument that the purpose of a warrant is to have a “neutral and detached magistrate” evaluate the reasonableness of a search and satisfy him or herself that the search is justified by probable cause.  The court explained that the interest served by having a judicial officer make a disinterested determination was “lessened” in the context of extraterritorial searches because a domestic judicial officer would have difficulty determining the reasonableness of a search on foreign soil and because courts should respect the wide discretion given to the executive branch in foreign affairs.

Fourth and finally, the court observed that there is no clear means by which a U.S. judicial officer could be authorized to issue warrants for overseas searches.

Having found that the government was not required to obtain a warrant, the court concluded that the intrusion on El-Hage’s privacy was outweighed by the government’s need to monitor the threat presented by al Qaeda to national security and, on this basis, held that the searches satisfied the Fourth Amendment’s reasonableness requirement.

Conclusion

Terrorist Bombings limits the extraterritorial reach of the Fourth Amendment by holding that the U.S. government may conduct a search or seizure of an American citizen abroad without a warrant.  Before the U.S. government monitors phone calls, seizes documents or freezes bank accounts in another country, it need not demonstrate probable cause or describe the person or property to be searched with particularity.  Instead, in order to satisfy the Fourth Amendment, the search or seizure need only qualify as reasonable. 

Most courts have held that an extraterritorial search is reasonable if it complies with the law of the foreign jurisdiction in which the search takes place.  And even when an extraterritorial search violates the law of the foreign country, the fruits of the search will not be excluded from a criminal case as long as American law enforcement agents are simply told by a foreign official that the search is legal.     

Paradoxically, the rule adopted in Terrorist Bombings seems to limit or expand the U.S. government’s power to investigate its own citizens in foreign countries according to the practices of foreign legal regimes – a scenario the Second Circuit expressly sought to avoid.  It is thus unclear what force the Fourth Amendment has at all if only foreign law and the representations of foreign officials protect an American citizen traveling or storing property abroad.  Indeed, Judge Reinhardt of the Ninth Circuit expressed this very concern in his dissent in Barona:

Under the majority's holding, the Fourth Amendment's requirements are wholly redundant since they provide nothing more than is already provided by foreign law. In fact, under the majority's rule, the Fourth Amendment provides even less protection than foreign law since, according to the principal case on which the majority relies, the Constitution does not even require foreign officials to comply with their own law; all that is required is that American officials have a good faith belief that they did so. . . . [W]hen Americans enter Iraq, Iran, Singapore, Kuwait, China, or other similarly inclined foreign lands, they can be treated by the United States government exactly the way those foreign nations treat their own citizens--at least for Fourth Amendment purposes. The majority's failure to heed these warnings ensures that when, as here, the United States government is unable to obtain a search warrant because it lacks probable cause, it can simply wait until a suspect goes abroad . . . .  Barona, 56 F.3d 1087, 1100-01 (Reinhardt, J. dissenting).

Whether the U.S. government will expand its extraterritorial searches in response to Terrorist Bombings remains to be seen.  In the meantime, targets of criminal investigations who have the means to flee to other countries may think twice about doing so.