The 2nd U.S. Court of Appeals has ruled that a court order is not needed to wiretap Americans overseas. Fourth Amendment rights and protections cannot always be guaranteed to American spies when they leave this country.
The opinion (pdf) of the 2nd U.S. Court of Appeals found that although wiretapping Americans overseas is invasive, an American court order would have “dubious legal significance” outside of America.
According to an article by Ryan Singel at Wired, the ruling which came down on Monday, Nov 24, 2008, rejected the appeal of Wadih El-Hage, “an American citizen convicted of conspiracy in the deadly 1998 al Qaeda bombings of U.S. embassies in East Africa.”
A review of the opinion shows that the Appellee is also known by the following names:
MOHAMED SADEEK ODEH, also known as Abu Moath, also known as Noureldine, also known as
Marwan, also known as Hydar, MOHAMED RASHED DAOUD AL-’OWHALI, also known as Khalid Salim Saleh Bin Rashed, also known as Moath, also known as Abdul Jabbar-Ali Abel-Latif, WADIH EL HAGE also known as Abdus Sabbur.
The Defendants-Appellants, is KHALFAN KHAMIS MOHAMED, also known as Khalfan Khamis.
According to the 2nd U.S. Court of Appeals opinion, following a jury trial Wadih El-Hage and his co-defendant were “found guilty of offenses arising from their involvement in an international conspiracy—led by Osama Bin Laden and organized through the al Qaeda terrorist network.”
El-Hage, a citizen of the United States, filed a pre-trial motion which contended, “inter alia” (among other things), “that evidence obtained overseas without a warrant should have been suppressed.”
The government opposed El-Hage’s motion on the ground that the Fourth Amendment’s warrant requirement is inapplicable to overseas searches conducted for the purpose of gathering foreign intelligence. It also asserted that the need for an evidentiary hearing probing the basis for the Kenyan searches was outweighed by the need to maintain the confidentiality of the underlying intelligence.
The pre-trial motion to suppress was withdrawn.
Singel reported that in filing the appeal to his conviction, El Hage contended that the government had violated his constitutional rights by listening in on his two phone lines for a year while he lived in Kenya.
Singel wrote that Executive Order 12333 was violated when the government failed to get a court order to wiretap El-Hage overseas, and also failed to get the approval of the Attorney General.
The court ruled differently, however:
Turning to the merits of El-Hage’s motion, the District Court recognized the novelty of the issue before it—that is, “whether an American citizen acting abroad on behalf of a foreign power may invoke the Fourth Amendment, and especially its warrant provision, to suppress evidence obtained by the United States in connection with intelligence gathering operations.” . . .
Because the surveillance of suspected al Qaeda operatives must be sustained and thorough in order to be effective, we cannot conclude that the scope of the government’s electronic surveillance was overbroad. While the intrusion on El-Hage’s privacy was great, the need for the government to so intrude was even greater. Accordingly, the electronic surveillance, like the search of El-Hage’s Nairobi residence, was reasonable under the Fourth Amendment.
Singel also quoted ACLU attorney, Jameel Jaffer, as indicating that this new ruling might not hold up to review because the ACLU “hopes to turn that reasonableness argument against the government’s newfound legal powers to monitor Americans’ international phone calls,” etc.
According to Single when Congress passed the FISA Amendments Act this past July, it gave the executive branch broad powers to access all communications when “one party to the conversation is thought to be overseas.”
The same law, however, tightened the requirements for targeting a specific American overseas -- as in the case of El Hage, for the first time requiring that the nation's spying court approve such wiretaps.
Additionally, Single reported that the ACLU ‘s lawsuit, Amnesty vs. Mukasey “will be argued Tuesday in the Electronic Frontier Foundation’s suit against AT&T,” and that “the 2nd Circuit’s decision is unlikely to play a role in Tuesday’s hearing in San Francisco,” but it could keep the government from attempting to have it dismissed.
The EFF also filed suit directly against the government in September.