CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, November 24, 2008

2nd Circuit Upholds Warrantless Extraterritorial Searches of U.S. Citizens

A federal appeals court in Manhattan upheld the convictions on Monday of three Al Qaeda operatives in a ruling that bolsters the government’s power to investigate terrorism by holding that a key Constitutional protection afforded to Americans does not apply overseas.

The unanimous decision by a three-judge panel of the United States Court of Appeals for the Second Circuit holds for the first time that government agents may obtain admissible evidence against United States citizens through warrantless searches abroad.

The searches must still be reasonable, as the Constitution requires, Judge José A. Cabranes wrote, adding that the government had met that standard in its search of the home and monitoring of the telephone of one defendant, Wadih El-Hage, a close aide to Osama bin Laden, who was a naturalized American citizen living in Nairobi, Kenya.

“The Fourth Amendment’s requirement of reasonableness — but not the Warrant Clause — applies to extraterritorial searches and seizures of U.S. citizens,” the judge wrote.

Mr. El-Hage and two other defendants had appealed their convictions for participating in a terrorism conspiracy, led by Mr. bin Laden, to kill Americans around the world. The conspiracy included the 1998 bombings of two American embassies, in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224 people and wounded thousands. They were convicted in Manhattan federal court in 2001 in the last major terrorism trial in the United States before the Sept. 11 attacks.

The two other defendants whose convictions were upheld were Mohamed Rashed Daoud al-’Owhali and Mohammed Saddiq Odeh. A fourth defendant, Khalfan Khamis Mohamed, did not appeal his conviction. The men were convicted in a federal trial in Manhattan in early 2001. All four men are serving life sentences in the so-called Super Max prison in Florence, Colo.

Read full article here. [Brooks Holland]

Criminal Law, Homeland Security, International, Search and Seizure | Permalink

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