In re Terrorist Bombings, Us Embassies, E. Africa

• Citation: 552 F.3d 157
• Decision Date: 24 November 2008
• Docket Number: Docket No. 01-1571-cr (con).,Docket No. 05-6149-cr (con).,Docket No. 05-6704-cr (con).,Docket No. 01-1535-cr (L).,Docket No. 01-1553-cr (con).,Docket No. 01-1550-cr (con).
• Parties: In re TERRORIST BOMBINGS OF U.S. EMBASSIES IN EAST AFRICA (Fourth Amendment Challenges), United States of America, Appellee, v. 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, Defendants-Appellants, Khalfan Khamis Mohamed, also known as Khalfan Khamis, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

552 F.3d 157

In re TERRORIST BOMBINGS OF U.S. EMBASSIES IN EAST AFRICA (Fourth Amendment Challenges) United States of America, Appellee, v. 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, Defendants-Appellants Khalfan Khamis Mohamed, also known as Khalfan Khamis, Defendant.

Docket No. 01-1535-cr (L).

Docket No. 01-1550-cr (con).

Docket No. 01-1553-cr (con).

Docket No. 01-1571-cr (con).

Docket No. 05-6149-cr (con).

Docket No. 05-6704-cr (con).

United States Court of Appeals, Second Circuit.

Argued: December 10, 2007.

Decided: November 24, 2008.

David Raskin and Leslie C. Brown, Assistant United States Attorneys (Michael J. Garcia, United States Attorney, on the brief, Iris Lan, David O'Neil, Katherine Polk Failla, Celeste L. Koeleveld, Assistant United States Attorneys, of counsel), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee United States of America.

James E. Neuman, New York, NY, for Defendant-Appellant Mohamed Sadeek Odeh.

Frederick H. Cohn, New York, NY, for Defendant-Appellant Mohamed Rashed Daoud Al-'Owhali.

Joshua L. Dratel and Sam A. Schmidt (Erik B. Levin, Renita K. Thukral, Meredith S. Heller, of counsel), New York, NY, for Defendant-Appellant Wadih El Hage.

Before: FEINBERG, NEWMAN, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge:

Defendant-appellant Wadih El-Hage, a citizen of the United States, challenges his conviction in the United States District Court for the Southern District of New York (Leonard B. Sand, Judge) on numerous charges arising from his involvement in the August 7, 1998 bombings of the American Embassies in Nairobi, Kenya and Dares Salaam, Tanzania (the "August 7 bombings").¹ In this opinion we consider El-Hage's challenge to the District Court's denial of his motion to suppress evidence obtained by the government from an August 1997 search of his residence in Nairobi, Kenya and electronic surveillance of telephone lines—land-based and cellular— conducted in Kenya between August 1996 and August 1997. Other challenges and those of El-Hage's co-defendants, Mohamed Sadeek Odeh and Mohamed Rashed Daoud Al-'Owhali, are considered in two separate opinions filed today, In re Terrorist Bombings of U.S. Embassies in East Africa, ___ F.3d ___ (2d Cir.2008), and In re Terrorist Bombings of U.S. Embassies in East Africa (Fifth Amendment Challenges), ___ F.3d ___ (2d Cir.2008).

El-Hage contends that the District Court erred by (1) recognizing a foreign intelligence exception to the Fourth Amendment's warrant requirement, (2) concluding that the search of El-Hage's home and surveillance of his telephone lines qualified for inclusion in that exception, and (3) resolving El-Hage's motion on the basis of an ex parte review of classified materials, without affording El-Hage's counsel access to those materials or holding a suppression hearing. Because we hold that the Fourth Amendment's requirement of reasonableness—and not the Warrant Clause—governs extraterritorial searches of U.S. citizens and that the searches challenged on this appeal were reasonable, we find no error in the District Court's denial of El-Hage's suppression motion. In addition, the District Court's ex parte, in camera evaluation of evidence submitted by the government in opposition to El-Hage's suppression motion was appropriate in light of national security considerations that argued in favor of maintaining the confidentiality of that evidence. El-Hage's challenge to his conviction is therefore without merit.

I. BACKGROUND

A. Factual Overview

American intelligence became aware of al Qaeda's presence in Kenya by mid-1996 and identified five telephone numbers used by suspected al Qaeda associates. United States v. Bin Laden, 126 F.Supp.2d 264, 269 (S.D.N.Y.2000). From August 1996 through August 1997, American intelligence officials monitored these telephone lines, including two El-Hage used: a phone line in the building where El-Hage lived and his cell phone. See id. The Attorney General of the United States then authorized intelligence operatives to target El-Hage in particular. Id. This authorization, first issued on April 4, 1997 was renewed in July 1997. Id. Working with Kenyan authorities, U.S. officials searched El-Hage's home in Nairobi on August 21, 1997, pursuant to a document shown to El-Hage's wife that was "identified as a Kenyan warrant authorizing a search for `stolen property.'" Id. At the completion of the search, one of the Kenyan officers gave El-Hage's wife an inventory listing the items seized during the search. Id. El-Hage was not present during the search of his home. Id. It is uncontested that the agents did not apply for or obtain a warrant from a U.S. court.

B. El-Hage's Pretrial Motion to Suppress Evidence Obtained from His Residence and Telephones in Kenya

El-Hage filed a pretrial motion pursuant to the Fourth Amendment² for the suppression of (1) evidence seized during an August 1997 search of his home in Nairobi and the fruits thereof; (2) evidence obtained through electronic surveillance of four telephone lines, including the telephone for his Nairobi residence and his Kenyan cellular phone, conducted between August 1996 and August 1997; and (3) tape recordings or summaries of telephone conversations resulting from electronic surveillance of El-Hage's home in Arlington, Texas, conducted in August and September 1998 pursuant to the Foreign Intelligence Surveillance Act of 1978 ("FISA"), Pub.L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801 et seq.). El-Hage urged the suppression of the evidence resulting from the search of his Nairobi home and surveillance of his Kenyan telephone lines (collectively, the "Kenyan searches") on the grounds that neither search was authorized by a valid warrant and, in the alternative, that the searches were unreasonable. With respect to the electronic surveillance of his home in Texas, El-Hage maintained that the government failed to comply with certain safeguards set forth in FISA. To establish a factual record for the resolution of his motion, El-Hage requested a hearing before the District Court.

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. With respect to evidence obtained pursuant to the FISA-authorized surveillance of El-Hage's Texas home, however, the government "assured the [District] Court that it d[id] not intend to offer any of this evidence in its case-in-chief and ... also indicated that there [we]re no fruits from the FISA tree with respect to [E]l[-] Hage." United States v. Bin Laden, No. 98 Cr. 1023, 2001 WL 30061, at *5 (S.D.N.Y. Jan.2, 2001) (quoting Letter from Assistant United States Attorney Kenneth M. Karas to the District Court dated Oct. 23, 2000) (internal quotation marks omitted). Based on the government's representations, El-Hage withdrew his suppression motion insofar as it related to the surveillance of his Texas home.³ See Bin Laden, 2001 WL 30061, at *5.

C. The District Court's Decision

The District Court denied El-Hage's request for a suppression hearing in open court, choosing instead to resolve the motion based on an in camera, ex parte review of the government's submissions, which included classified materials relating to the Kenyan searches. In an Opinion dated December 5, 2000, the District Court explained that its decision to forgo an adversarial hearing was based on (1) the need to maintain the confidentiality of the relevant classified materials and (2) the limited scope of the factual inquiry necessary to resolve the motion. Bin Laden, 126 F.Supp.2d at 287. First, the District Court was persuaded by the government's representations that al Qaeda posed an "ongoing threat" to the United States and that disclosure of the sensitive material underlying the Kenyan searches would have a "potentially damaging impact ... on existing foreign intelligence operations." Id. Second, the District Court construed the issues presented by El-Hage's motion as "predominantly legal," requiring only a "limited factual inquiry." Id. Because El-Hage's motion did not turn on the resolution of factual disputes, the District Court concluded that "the benefit of holding an adversary hearing was substantially lessened." Id. Taking these two factors into account, the District Court concluded that an in camera, ex parte review of the relevant evidence — and not an adversarial hearing in open court — was warranted.

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." Id. at 270. Relying principally on Justice Black's plurality opinion in Reid v. Covert, 354 U.S. 1, 7, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (concluding that Fifth and Sixth Amendment protections extend to U.S. citizens on foreign territory), the District Court determined that the protections articulated in the Fourth Amendment apply in some form to U.S. citizens, such as El-Hage, when they are abroad. See Bin Laden, 126 F.Supp.2d at 270-71. The District Court qualified its determination, however, explaining that the "extent" of the Fourth Amendment's protections and, in particular, the "app...