2nd Cir: 4th Amendment Warrant Clause Does Not Apply Overseas

By Big Tent Democrat, Section Civil Liberties
Posted on Mon Nov 24, 2008 at 11:58:19 AM EST
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NYTimes reports:

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 Jose 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.

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And so far as I can tell, the 2nd circuit (none / 0) (#1)
by andgarden on Mon Nov 24, 2008 at 12:05:12 PM EST

doesn't like to find a reasonable expectation of privacy if it doesn't have to. If you want one, you better pay your hotel bill.

Seems a reasonable (none / 0) (#2)
by oculus on Mon Nov 24, 2008 at 12:08:57 PM EST

decision to me.


Well, the 9th Circuit (none / 0) (#3)
by andgarden on Mon Nov 24, 2008 at 12:13:46 PM EST

has a different view. (I just did a project on hotel searches, so this is fresh in my mind).


: Yes, the Ninth Circuit (5.00 / 1) (#5)
by oculus on Mon Nov 24, 2008 at 12:27:46 PM EST

frequently has a different view!

Me too (none / 0) (#4)
by Big Tent Democrat on Mon Nov 24, 2008 at 12:16:25 PM EST

Who then is the arbiter of what is (5.00 / 1) (#6)
by inclusiveheart on Mon Nov 24, 2008 at 02:01:46 PM EST

reasonable?

Some guy named Tod at NSA?

Warrants - the process of obtaining warrants - seem to be the only mechanism for testing the validity of the government's desire to spy on someone. Without that requirement who is to say that something is reasonable or unreasonable?

And what about the laws in the other country? Who oversees that aspect of the effort?


Tod at NSA (5.00 / 1) (#8)
by Ed Drone on Mon Nov 24, 2008 at 03:25:02 PM EST

Todd spells his name with two d's, and doesn't like being mentioned on the internet. You'll be hearing from him, I suspect. Especially if you ever leave the country.

: Well, now you've gone and done it. (none / 0) (#10)
by inclusiveheart on Mon Nov 24, 2008 at 04:21:01 PM EST

You shouldn't have told about the extra "d" in his name. Now we're both in trouble.

me three! (5.00 / 1) (#7)
by cpinva on Mon Nov 24, 2008 at 02:49:14 PM EST

lots of pretzel logic being twisted there, in order to come to a conclusion that doesn't stand, in light of the fourth amendment's clear, non-exceptioned requirement that a warrant be secured, prior to the search, in the absence of exigent circumstances.

there is no requirement that the warrant actually be enforceable (which it probably wouldn't be, in a foreign country), only that it be issued.


Well... (none / 0) (#11)
by Categorically Imperative on Mon Nov 24, 2008 at 06:26:53 PM EST

Say what you will about how the 4th Amendment ought to be interpreted, but on its face it does not contain a "clear, non-exceptioned requirement" that a warrant be obtained in order for the search to be deemed constitutionally valid. All it says is that searches must be reasonable and that no warrants shall issue unless probable cause exists.

There is a very good historical argument that the 4th Amendment was designed to render general warrants illegal, which the British government had used to great effect in persecuting American revolutionaries. That is, because a warrant would immunize a search and/or seizure from scrutiny, the 4th Amendment was designed, in part, to make warrants more difficult to obtain and to lessen their use, imposing instead a standard of reasonableness that could be evaluated later by a judge or jury.

http://islandia.law.yale.edu/amar/lawreview/1994Fourth.pdf


: so, (none / 0) (#14)
by cpinva on Wed Nov 26, 2008 at 03:12:58 AM EST

All it says is that searches must be reasonable and that no warrants shall issue unless probable cause exists.
where do you see an exception?

So.. (none / 0) (#9)
by TheRealFrank on Mon Nov 24, 2008 at 04:14:53 PM EST

What about the authorities abroad? It seems that they might have something to say about this.

How about obtaining permission abroad? Imagine foreign agents doing searches in the US.

Americans Living Abroad care about this... (none / 0) (#12)
by kcbill13 on Tue Nov 25, 2008 at 07:48:09 AM EST

And it really is a bad thing. We expect our government to respect our rights whether we currently live in the US, or are living abroad for whatever reason.

There are approximately 7 million American citizens living abroad. Quite a few of us voted in the recent election. I happen to reside in Melbourne, Australia at the moment, am married to an Australian citizen, and have dual citizenship children.

I think this ruling is bad because it allows our constitutional rights to be infringed upon whenever we might be residing overseas. I do business with American companies, sell American products, and then I get chomped on by Republican appointed judges while exporting goods from the USA.

What do you want your citizens to do, all stay in America all the time, or you do not get your rights from the Bill of Rights? WTF??

Bill Davis
Democrats Abroad
Secretary,
Melbourne, Australia

: Rather than our government being (none / 0) (#13)
by inclusiveheart on Tue Nov 25, 2008 at 08:32:26 AM EST

of, by and for the people - the view has shifted. Our government now owns us. I used to live overseas too. I was in the Caribbean. Our country has forced its way into these countries using threats to destroy their economies. It is really offensive and disgusting in my mind. The most blatant and disgusting abuse of power came when the US Coast Guard was allowed to patrol foreign waters and board foreign registered boats without cause - meaning tourists on holiday in a foreign country could be subject to search just because they felt like it.