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November 24, 2008

Second Circuit Rules that Fourth Amendment Warrant Requirement Doesn't Apply Overseas

An important ruling for the War on Terror in In re Terrorist Bombings of U.S. Embassies (PDF). One of the convicted conspirators, a U.S. citizen, claimed that a search of his residence in Nairobi, Kenya and electronic surveillance of telephone lines in Kenya should have been suppressed at his trial because the intelligence agencies involved failed to obtain a warrant.

The Fourth Amendment 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."

The issue was what part of of the Amendment applies overseas. The panel unanimously decided that the Fourth Amendment’s requirement of reasonableness—but not the Warrant Clause—applies to extraterritorial searches and seizures of U.S. citizens.

There was a second part to the case and it may be of more importance. The district court here examined much of the government's evidence in camera and ex parte. That is, in chambers and without the defense ever seeing it. This was justified, says the Second Circuit, because of the "imperatives of national security."

Here's the N.Y. Times on the decision. (Sorry, they're the only ones with an article up already.)

Also: Lemme get it on the record; everyone is focusing on the Fourth Amendment issue here. By which I mean the Times' article and much of the coverage on the lawblogs hasn't even mentioned the second part of the opinion. But I think that second issue, a due process question involving secret evidence, will be more important in the long run. Defendants who never get to see the evidence against them? Whoa. Tread carefully, my friend.


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posted by Gabriel Malor at 01:41 PM

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