Does the Fourth Amendment Follow the Flag? In an Understandable but Problematic Ruling in a Terrorism Case, A Federal Appeals Court Says Yes, But Only at a Distance
	By MICHAEL C. DORF
	Wednesday, Dec. 03, 2008

Thus, the ruling-which bears the nicely descriptive caption, In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges) -is unsurprising. Nonetheless, the underlying principles the court applied, in order to get to this result, are problematic.

The Factual and Procedural Background

In August 1998, terrorists affiliated with the Al Q'aeda network carried out simultaneous bombings of the U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, killing hundreds of people, most of them local civilians. United States law enforcement and counter-terrorism officials, who had already been conducting surveillance and investigations of Al Q'aeda in Africa and elsewhere, cooperated with Kenyan and Tanzanian officials in identifying perpetrators.

One of the suspects was El-Hage, who had already been the object of U.S. concern when he was living in Kenya. For roughly a year, from 1996 through 1997, American intelligence officials monitored El-Hage's mobile and land telephones. Based on what they learned from those conversations and from other sources, the Attorney General authorized further investigation of El-Hage. This resulted in the search of his Nairobi house in August 1997. The search was carried out in cooperation with Kenyan officials, who showed El-Hage's wife a Kenyan warrant authorizing a search for "stolen property."

After his arrest, El-Hage denied any connections to Al Q'aeda, but he was nonetheless charged with multiple crimes. Prior to trial, he brought a motion to suppress evidence obtained from the electronic surveillance and the search of his home. That motion was denied and, after a jury trial, El-Hage was found guilty. He was sentenced to life imprisonment without eligibility for parole.

Last week's ruling by the appeals court affirmed El-Hage's conviction but remanded for re-sentencing in light of Supreme Court rulings changing the mandatory nature of the Federal Sentencing Guidelines (which once bound federal judges, but are now simply advisory). Given his leading role in the bombings, however, it is unlikely that El-Hage's sentence will change.

The Appeals Court Says that the Fourth Amendment Warrant Requirement Does Not Apply Overseas

The Second Circuit had to decide numerous issues in order to resolve El-Hage's appeal, but here I shall focus on the one ruling that will likely have the most far-reaching impact beyond El-Hage's case: The court ruled that the Fourth Amendment does not require the U.S. government to obtain a warrant from a federal judge or magistrate to authorize an overseas search targeting a U.S. citizen. The appeals court based that ruling on a number of factors, but as we shall see, none of these considerations was entirely persuasive.

The court began by acknowledging, as it had in prior rulings, that the Fourth Amendment restricts the conduct of U.S. officials investigating U.S. citizens abroad. The court next turned to the text of the Fourth Amendment. It provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Although lawyers and laypeople alike often assume that the Fourth Amendment requires warrants for searches and seizures, that is not literally true. As the foregoing text makes plain, the only right it expressly guarantees is to be free of "unreasonable searches and seizures." The Fourth Amendment restricts the circumstances under which warrants may be issued, but does not, in so many words, require warrants.

Thus, the Second Circuit explained correctly that in numerous contexts, the Supreme Court has held that a search may be "reasonable" even though no warrant authorized it. For example, searches supported by probable cause are legal where there are exigent circumstances that make it infeasible to obtain a warrant in a timely fashion. Likewise, administrative searches of heavily-regulated industries do not require warrants. And so on.

Yet the difficulty with this line of reasoning should be apparent to anyone familiar with Fourth Amendment jurisprudence: Although the text of the Fourth Amendment does not require warrants, the case law does, absent one of an admittedly large number of exceptions. Crucially, the Second Circuit did not deny that if government officials had conducted the exact same search of El-Hage's home within the United States as was in fact conducted in Kenya, the warrant requirement would have applied. For that reason, the particular exceptions to the warrant requirement that the court cited should have been irrelevant.

A Critical Supreme Court Precedent Involving Searches of Non-Citizens Overseas

The critical precedent upon which the Second Circuit relied was the 1991 ruling of the Supreme Court in United States v. Verdugo-Urquidez. There, the Court held that non-citizens outside the United States have no Fourth Amendment rights because they are not among "the people" that it protects. The literal holding of Verdugo-Urquidez does not apply in the El-Hage case because El-Hage is a U.S. citizen. However, the appeals court took note of the fact that seven Justices in Verdugo-Urquidez opined that U.S. courts lack authority to issue warrants authorizing searches and seizures overseas.

Although that argument is now steeped in the authority of the Supreme Court, it is still quite weak. Granted, compliance with the U.S. warrant requirement will not typically authorize a search that is otherwise illegal under the law of the locale where it occurs. But that is beside the point. El-Hage was asking for a constitutional rule that would make the lawfulness of the search for U.S. purposes turn on compliance with the warrant requirement. Such a rule would in no way have prevented the federal officers who conducted the search from also complying with local (here, Kenyan) law.

To be sure, both the Supreme Court in Verdugo-Urquidez and the Second Circuit in El-Hage doubted that a federal judge or magistrate could issue a warrant for searches conducted overseas. But to the extent that this reflects a statutory gap, there is little doubt that Congress would quickly authorize jurisdiction for such warrants if the federal courts were to hold that they are required by the Fourth Amendment.

That authorization would in turn be constitutionally valid: Neither the Fourth Amendment, nor any other provision of the Constitution, requires that the target of a search or seizure be physically present in any district in which a court sits.

The Second Circuit in El Hage cited one of its own 1942 precedents, which suggested that the Sixth Amendment-which, among other things, guarantees a criminal defendant a trial by a "jury of the State and district wherein the crime shall have been committed"-might prevent Congress from authorizing federal courts to grant warrants for overseas searches. However, this suggestion is far-fetched. The FBI routinely conducts multi-state investigations, with warrants issued and executed in one state ultimately leading to evidence introduced in criminal trials in other states.

Indeed, a much more straightforward reading of the Sixth Amendment would appear to invalidate the entire prosecution of El Hage. By its terms, the Sixth Amendment assumes that the federal courts can only try crimes committed within a "State," and thus within the United States. Yet El Hage and other terrorists who have been convicted in federal courts committed their crimes abroad.

The Second Circuit in El Hage also followed the Verdugo-Urqidez Court's treatment of the drafting of the Fourth Amendment. Yet as the Supreme Court recognized there, the record of the early Republic is almost completely bare with respect to the extra-territorial application of the Fourth Amendment. The Supreme Court did cite one post-ratification episode involving American seizures of French ships, but that hardly bears on the question of whether the warrant requirement was perceived as applying to searches of U.S. citizens. And it is important to bear in mind that the Second Circuit accepted in El Hage that the Fourth Amendment does apply to searches and seizures targeting Americans overseas; the issue in the case was whether the warrant requirement or mere all-things-considered reasonableness applied.

The Real Factors at Work in El Hage: The Exclusionary Rule and Non-Retroactivity

Having determined that a balancing test, rather than the warrant requirement, was the measure of El Hage's Fourth Amendment rights, the appeals court had little difficulty finding that both the search of his home and the year-long electronic surveillance of his telephone conversations were reasonable. Those conclusions are themselves eminently sensible, given the stakes: The government did have legitimate reasons to believe that El Hage was plotting terrorist acts against the United States, and the measures taken to detect and frustrate his plans were well within the norm for both criminal investigations and foreign intelligence-gathering.

But for just these reasons, warrants almost certainly would have been issued had the government sought them from a court of competent jurisdiction. The problem for both the district judge and the appeals court in El Hage was that there was no way to impose such a rule prospectively. Holding that the government had violated El Hage's Fourth Amendment rights would have resulted in the exclusion of the evidence obtained via the search and the surveillance, and thus might well have let El Hage go free. That is always a cost of the so-called Fourth Amendment "exclusionary rule," but the cost seems almost unbearably high where the criminal who goes free because of the constable's blunder is a terrorist committed to mass murder.

Perhaps the ideal solution would have been for the appeals court to declare that henceforth, warrants will be required for U.S. searches and seizures targeting U.S. citizens abroad whenever they would be required for the same activity targeting U.S. citizens inside the United States. But the Supreme Court has long construed the "case or controversy" requirement of Article III as forbidding federal courts from issuing "advisory opinions," and current case law treats purely prospective judicial rulings as just such impermissible advisory opinions.

Accordingly, the Second Circuit really was caught between a rock and a hard place: Either put forward unpersuasive justifications for applying the Fourth Amendment's reasonableness requirement, but not the warrant requirement, to searches and seizures abroad, or free a terrorist. Or to put the point more charitably to the Second Circuit judges, given the terrible consequences of finding the warrant requirement applicable in this case, they understandably perceived the arguments against such a requirement as stronger than close analysis suggests they actually are.

Does that perception ultimately matter beyond this case? It certainly does. As the Supreme Court explained sixty years ago in Johnson v. United States, in language that has been repeatedly quoted ever since: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."

There is no reason to think that federal investigators would be less zealous in pursuing terrorist suspects than in tracking ordinary criminals. Nor, despite the arguments advanced by the Second Circuit in El-Hage, is there any reason to think that the logic of the Fourth Amendment's warrant requirement would break down at the national border.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.