US authorities may lawfully conduct searches and electronic surveillance against US 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 2nd US Circuit Court of Appeals, in Manhattan, New York, came in the case of three members of al-Qaeda convicted a few months before Sept. 11, 2001, in a conspiracy that involved the 1998 bombings of two US 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 US, an issue that drove a wedge between the US President George W. Bush 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 Jose 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 US 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 US citizens,” the judge wrote.
El-Hage and two other defendants had appealed their convictions for conspiring with bin Laden in a plot to kill Americans around the world.
The conspiracy included the 1998 bombings of the US embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224 people and wounded thousands of others.
While noting that 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 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,” Cabranes wrote.
The panel also made it easier for prosecutors to protect sensitive information in terrorism cases by holding that judges may bar defendants from having access to classified materials that their lawyers may otherwise examine, if there is concern that unauthorized disclosures of information could jeopardize lives or investigations.
The panel declined to declare, as a lower court judge had, that Miranda warnings were required in overseas interrogations of foreign suspects, but it said that a modified version of the warnings, adapted to local circumstances, could be acceptable.
“It is only through the cooperation of local authorities that US agents obtain access to foreign detainees,” Cabranes wrote. “We have no desire to strain that spirit of cooperation by compelling US agents to press foreign governments for the provision of legal rights not recognized by their criminal justice systems.”
Defense lawyers said that they would appeal.
Joshua Dratel, a lawyer for el-Hage, said that the appellate decision “would seem to say that the government’s invocation of national security can trump a US citizen’s constitutional rights across the board.”
Since the Sept. 11 attacks, there has been a national debate over whether people accused of terrorism should be treated as criminals and tried in the federal courts, or held as enemy combatants to be tried, if at all, before military tribunals, where defendants have fewer rights and there is less public disclosure.
David Cole, a law professor at Georgetown University, said the ruling underscored “that we don’t need a specialized national security court; that we don’t need to depart from the traditional criminal justice system approach for prosecuting terrorists.”
‘GREAT OPPRTUNITY’: The Paraguayan president made the remarks following Donald Trump’s tapping of several figures with deep Latin America expertise for his Cabinet Paraguay President Santiago Pena called US president-elect Donald Trump’s incoming foreign policy team a “dream come true” as his nation stands to become more relevant in the next US administration. “It’s a great opportunity for us to advance very, very fast in the bilateral agenda on trade, security, rule of law and make Paraguay a much closer ally” to the US, Pena said in an interview in Washington ahead of Trump’s inauguration today. “One of the biggest challenges for Paraguay was that image of an island surrounded by land, a country that was isolated and not many people know about it,”
DIALOGUE: US president-elect Donald Trump on his Truth Social platform confirmed that he had spoken with Xi, saying ‘the call was a very good one’ for the US and China US president-elect Donald Trump and Chinese President Xi Jinping (習近平) discussed Taiwan, trade, fentanyl and TikTok in a phone call on Friday, just days before Trump heads back to the White House with vows to impose tariffs and other measures on the US’ biggest rival. Despite that, Xi congratulated Trump on his second term and pushed for improved ties, the Chinese Ministry of Foreign Affairs said. The call came the same day that the US Supreme Court backed a law banning TikTok unless it is sold by its China-based parent company. “We both attach great importance to interaction, hope for
‘FIGHT TO THE END’: Attacking a court is ‘unprecedented’ in South Korea and those involved would likely face jail time, a South Korean political pundit said Supporters of impeached South Korean President Yoon Suk-yeol yesterday stormed a Seoul court after a judge extended the impeached leader’s detention over his ill-fated attempt to impose martial law. Tens of thousands of people had gathered outside the Seoul Western District Court on Saturday in a show of support for Yoon, who became South Korea’s first sitting head of state to be arrested in a dawn raid last week. After the court extended his detention on Saturday, the president’s supporters smashed windows and doors as they rushed inside the building. Hundreds of police officers charged into the court, arresting dozens and denouncing an
‘DISCRIMINATION’: The US Office of Personnel Management ordered that public DEI-focused Web pages be taken down, while training and contracts were canceled US President Donald Trump’s administration on Tuesday moved to end affirmative action in federal contracting and directed that all federal diversity, equity and inclusion (DEI) staff be put on paid leave and eventually be laid off. The moves follow an executive order Trump signed on his first day ordering a sweeping dismantling of the federal government’s diversity and inclusion programs. Trump has called the programs “discrimination” and called to restore “merit-based” hiring. The executive order on affirmative action revokes an order issued by former US president Lyndon Johnson, and curtails DEI programs by federal contractors and grant recipients. It is using one of the
RSS