U.S. v. Bin Laden, No. S(7) 98 CR.1023(LBS).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtSand
Citation126 F.Supp.2d 264
PartiesUNITED STATES of America, v. Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.
Docket NumberNo. S(7) 98 CR.1023(LBS).
Decision Date05 December 2000

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126 F.Supp.2d 264
UNITED STATES of America,
v.
Usama BIN LADEN, a/k/a "Usamah Bin-Muhammad Bin-Ladin," a/k/a "Shaykh Usamah Bin-Ladin," a/k/a "Abu Abdullah," a/k/a "Mujahid Shaykh," a/k/a "Hajj," a/k/a "Abdul Hay," a/k/a "al Qaqa," a/k/a "the Director," a/k/a "the Supervisor," a/k/a "the Contractor," Muhammad Atef, a/k/a "Abu Hafs," a/k/a "Abu Hafs el Masry," a/k/a "Abu Hafs el Masry el Khabir," a/k/a "Taysir," a/k/a "Sheikh Taysir Abdullah," a/k/a "Abu Fatimah," a/k/a "Abu Khadija," Ayman Al Zawahiri, a/k/a "Abdel Muaz," a/k/a "Dr. Ayman al Zawahiri," a/k/a "the Doctor," a/k/a "Nur," a/k/a "Ustaz," a/k/a "Abu Mohammed," a/k/a "Abu Mohammed Nur al-Deen," Mamdouh Mahmud Salim, a/k/a "Abu Hajer al Iraqi," a/k/a "Abu Hajer," Khaled Al Fawwaz, a/k/a "Khaled Abdul Rahman Hamad al Fawwaz," a/k/a "Abu Omar," a/k/a "Hamad," Ali Mohamed, a/k/a "Ali Abdelseoud Mohamed," a/k/a "Abu Omar," a/k/a "Omar," a/k/a "Haydara," a/k/a "Taymour Ali Nasser," a/k/a "Ahmed Bahaa Eldin Mohamed Adam," Wadih El Hage, a/k/a "Abdus Sabbur," a/k/a "Abd al Sabbur," a/k/a "Wadia," a/k/a "Abu Abdullah al Lubnani," a/k/a "Norman," a/k/a "Wa'da Norman," a/k/a "the Manager," a/k/a "Tanzanite," Ibrahim Eidarous, a/k/a "Ibrahim Hussein Abdelhadi Eidarous," a/k/a "Daoud," a/k/a "Abu Abdullah," a/k/a "Ibrahim," Adel Abdel Bary, a/k/a "Adel Mohammed Abdul Almagid Abdel Bary," a/k/a "Abbas," a/k/a "Abu Dia," a/k/a "Adel," Fazul Abdullah Mohammed, a/k/a "Harun," a/k/a "Harun Fazhl," a/k/a "Fazhl Abdullah," a/k/a "Fazhl Khan," Mohamed Sadeek Odeh, a/k/a "Abu Moath," a/k/a "Noureldine," a/k/a "Marwan," a/k/a "Hydar," a/k/a "Abdullbast Awadah," a/k/a "Abdulbasit Awadh Mbarak Assayid," Mohamed Rashed Daoud Al-`Owhali, a/k/a "Khalid Salim Saleh Bin Rashed," a/k/a "Moath," a/k/a "Abdul Jabbar Ali Abdel-Latif," Mustafa Mohamed Fadhil, a/k/a "Mustafa Ali Elbishy," a/k/a "Hussein," a/k/a "Hussein Ali," a/k/a "Khalid," a/k/a "Abu Jihad," Khalfan Khamis Mohamed, a/k/a "Khalfan Khamis," Ahmed Khalfan Ghailani, a/k/a "Fupi," a/k/a "Abubakary Khalfan Ahmed Ghailani," a/k/a "Abubakar Khalfan Ahmed," Fahid Mohammed Ally Msalam, a/k/a "Fahad M. Ally," Sheikh Ahmed Salim Swedan, a/k/a "Sheikh Bahamadi," a/k/a "Ahmed Ally," Defendants.
No. S(7) 98 CR.1023(LBS).
United States District Court, S.D. New York.
December 5, 2000.

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Mary Jo White, United States Attorney, New York City, Kenneth M. Karas, Patrick J. Fitzgerald, Michael J. Garcia, Paul W. Butler, Andrew McCarthy, Assistant United States Attorneys, for the Southern District of New York.

Sam A. Schmidt, Joshua L. Dratel, Kristian K. Larsen, New York City, for Defendant El-Hage.

Frederick H. Cohn, Laura Gasiorowski, David Preston Baugh, New York City, for Defendant Al-`Owhali.

Jeremy Schneider, David Stern, David Ruhnke, New York City, for Defendant Khamis Mohamed.

Anthony L. Ricco, Edward D. Wilford, Carl J. Herman, Sandra A. Babcock, New York City, for Defendant Odeh.

OPINION1

SAND, District Judge.


The Defendants are charged with numerous offenses arising out of their alleged participation in an international terrorist organization led by Defendant Usama Bin Laden and that organization's alleged involvement in the August 1998 bombings of the United States Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania. Presently before the Court are Defendant El-Hage's motions which seek the following: suppression of evidence seized from the search of his residence in Nairobi, Kenya in August 1997 and suppression of evidence obtained from electronic surveillance, conducted from August 1996 to August 1997, of four telephone lines in Nairobi, Kenya.2

BACKGROUND

A detailed factual background of this case was set forth in the Court's memorandum and order addressing the Defendants' request for a bill of particulars. See United States v. Bin Laden, 92 F.Supp.2d 225, 228 (S.D.N.Y.2000). For the purpose of resolving these motions, however, it is necessary to review some of the relevant facts before proceeding.

The charges currently pending against each of the Defendants in this case arise from their alleged involvement with an international terrorist organization known as "al Qaeda" or "the Base." (Indictment S(7) 98 Cr. 1023(LBS) ("Indictment") ¶ 1.) Since its emergence in 1989, al Qaeda is

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alleged to have planned and financed (both independently and in association with other terrorist groups) numerous violent attacks against United States personnel and property abroad. (Id. ¶¶ 1, 12.) The United States Attorney's Office in the Southern District of New York has been investigating al Qaeda since at least 1996. (Id. ¶ 72; see also Affirmation of Patrick J. Fitzgerald of Jan. 24, 2000 ¶ 6 (dating the involvement of the United States Attorney's involvement in the investigation to late 1995 or early 1996).) In the spring of 1996, Bin Laden, the founder and leader of al Qaeda (Indictment ¶ 1) was identified by the United States Government as "a serious threat to national security" (Government Response ("Resp.") at 2).

Among other things, the Government alleges that al Qaeda coordinates the activities of its global membership, sends its members to camps for military and intelligence training, obtains and transports weapons and explosives, and explicitly provides Muslims with religious authority for acts of terrorism against American citizens. (Id. ¶ 12.) In August 1996, Bin Laden "effectively declared a war of terrorism against all members of the United States military worldwide." (Resp. at 2.) In February of 1998, this declaration was expanded to include attacks on American civilians. (Id.) Al Qaeda, which has at different points in its history been headquartered in Afghanistan, Pakistan and the Sudan, has maintained an international presence through "cells" (and al Qaeda personnel) located in a number of countries including Kenya, Tanzania, the United Kingdom, Canada and the United States. (Indictment ¶ 5.)

By the late spring of 1996, the United States intelligence community ("Intelligence Community") became aware that persons associated with Bin Laden's organization had established an al Qaeda presence in Kenya. (Resp. at 2.) In addition, the Intelligence Community had isolated and identified five telephone numbers which were being used by persons associated with al Qaeda. (Id.) All five of these phone lines were monitored by the Intelligence Community from August 1996 through August 1997. (Id. at 3.) One of these phone lines was located in an office in the same building where the Defendant, El-Hage, and his family resided. (Id. at 2.) (El-Hage, an American citizen, and his family lived in Nairobi from 1994 to 1997. (Schmidt Aff. ¶¶ 16, 62-63.)) Another of the phone lines, was a cellular phone used by El-Hage and others. (Id. ¶ 23.)

On April 4, 1997, the Attorney General authorized the collection of intelligence specifically targeting El-Hage. (Resp. at 4.) This authorization was renewed on July 3, 1997. (Id.) On August 21, 1997, American and Kenyan officials conducted a search of the Defendant's residence. (Schmidt Aff. ¶ 38.) The Defendant's wife (the Defendant was not present during the search) was shown a document which was identified as a Kenyan warrant authorizing a search for "stolen property." (Id. ¶ 37; see also Resp. at 4.) The American officials who participated in the search did not, however, "rely upon the Kenyan warrant as the legal authority for the search." (Resp. at 4.) At the end of the search, the Defendant's wife was given an inventory by one of the Kenyan officers present which enumerated the items which had been seized during the search. (Schmidt Aff. ¶ 40; see also Coleman Aff. ¶ 4).

ANALYSIS

The Defendant seeks suppression of the evidence which was seized during the warrantless search of his home in Kenya and the fruits thereof. In addition, he seeks the suppression of evidence derived from electronic surveillance of several telephone lines over which his conversations were recorded, including the telephone for his Nairobi residence and his cellular phone. The Defendant also asks that the Court

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hold a hearing with respect to the validity of the surveillance and the search.

El-Hage bases his challenge to the evidence on the Fourth Amendment3 and asserts that the search and the electronic surveillance were unlawful because they were not conducted pursuant to a valid warrant. If the Court accepts the Government's argument that no warrant was required, El-Hage argues, in the alternative, that the searches4 were unreasonable. In its response to the Defendant's motion, the Government asserts that the searches were primarily conducted for the purpose of foreign intelligence collection and are, therefore, not subject to the Warrant Clause of the Fourth Amendment. As a result, it is the Government's position that the aforementioned evidence should not be suppressed. In addition, the Government claims that no hearing is necessary.

El-Hage's suppression motion raises significant issues of first impression concerning the applicability of the full panoply of the Fourth Amendment to searches conducted abroad by the United States for foreign intelligence purposes and which are directed at an American citizen believed to be an agent of a foreign power. Although numerous courts and Congress have dealt with searches in the United States for foreign intelligence purposes and other courts have dealt with searches of foreigners abroad, we believe this to be the first case to raise the question 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.

I. Application of the Fourth Amendment Overseas

Before proceeding to that Fourth Amendment analysis, it is necessary to...

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21 practice notes
  • United States v. Muhtorov, 18-1366
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2021
    ...a person's conversations during an otherwise lawful surveillance is not violative of the Fourth Amendment." United States v. Bin Laden, 126 F.Supp.2d 264, 280 (S.D.N.Y. 2000), aff'd sub nom. In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157 (2d Cir. 2008); see also Unite......
  • IN RE TERR. BOMBINGS OF US EMB. IN EAST AFRICA, Docket No. 01-1535-cr(L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 24, 2008
    ...terrorism directed at U.S. nationals, other "internationally protected persons,"5 and U.S. interests. See United States v. Bin Laden, 126 F.Supp.2d 264, 268-69 (S.D.N.Y.2000). Bin Laden came to the attention of the U.S. government as early as 1992 when the U.S. Department of 549 F.3d 157 St......
  • United States v. Mohamud, No. 14-30217
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 2016
    ...overheard," but "the complete absence of prior judicial authorization would make an intercept unlawful"); United States v. Bin Laden , 126 F.Supp.2d 264, 280 (S.D.N.Y. 2000) (explaining that "in the Title III context, incidental interception of a person's conversations during an otherwise l......
  • Kindhearts v. Geithner, Case No. 3:08CV2400.
    • United States
    • U.S. District Court — Northern District of Ohio
    • August 18, 2009
    ...(1971) (national security "is not a talisman in whose presence the Fourth Amendment fades away and disappears."); U.S. v. Bin Laden, 126 F.Supp.2d 264, 273 (S.D.N.Y.2000) ("even in the exercise of his foreign affairs power, the President is constrained by other provisions of the OFAC's bloc......
  • Request a trial to view additional results
21 cases
  • United States v. Muhtorov, 18-1366
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 8, 2021
    ...a person's conversations during an otherwise lawful surveillance is not violative of the Fourth Amendment." United States v. Bin Laden, 126 F.Supp.2d 264, 280 (S.D.N.Y. 2000), aff'd sub nom. In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 157 (2d Cir. 2008); see also Unite......
  • IN RE TERR. BOMBINGS OF US EMB. IN EAST AFRICA, Docket No. 01-1535-cr(L)
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 24, 2008
    ...terrorism directed at U.S. nationals, other "internationally protected persons,"5 and U.S. interests. See United States v. Bin Laden, 126 F.Supp.2d 264, 268-69 (S.D.N.Y.2000). Bin Laden came to the attention of the U.S. government as early as 1992 when the U.S. Department of 549 F.3d 157 St......
  • United States v. Mohamud, No. 14-30217
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 5, 2016
    ...overheard," but "the complete absence of prior judicial authorization would make an intercept unlawful"); United States v. Bin Laden , 126 F.Supp.2d 264, 280 (S.D.N.Y. 2000) (explaining that "in the Title III context, incidental interception of a person's conversations during an otherwise l......
  • Kindhearts v. Geithner, Case No. 3:08CV2400.
    • United States
    • U.S. District Court — Northern District of Ohio
    • August 18, 2009
    ...(1971) (national security "is not a talisman in whose presence the Fourth Amendment fades away and disappears."); U.S. v. Bin Laden, 126 F.Supp.2d 264, 273 (S.D.N.Y.2000) ("even in the exercise of his foreign affairs power, the President is constrained by other provisions of the OFAC's bloc......
  • Request a trial to view additional results

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