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.”
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