Relying on prior precedents, the Second Circuit acknowledges that the Fourth Amendment itself does apply to such investigative activities by the government, but that the Fourth Amendment only requires reasonableness, not warrants. My column does not address an implicit aspect of the court's reasonables analysis---that reasonableness is to be determined by the court itself under an all-things-considered approach. As Orin Kerr noted last week (here), that approach stands in contrast to the approach taken by the 9th Circuit in cases of investigations undertaken jointly by U.S. and foreign government agents; there, Kerr notes, the 9th Circuit has said that compliance with foreign law by itself establishes reasonableness.
I have a small technical difference with Kerr, and then a bigger observation. First, the technical difference: Kerr says that in the investigation giving rise to the 2nd Circuit ruling, "the U.S. was acting alone, with intelligence agencies investigating in Kenya without the assistance of Kenyan authorities." But the 2nd Circuit opinion states:
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.Perhaps Professor Kerr was referring only to the surveillance of El-Hage's phone calls, which was conducted by the U.S. alone. But even if so, the 2nd Circuit opinion does appear to conflict with the 9th Circuit approach, as the 2nd Circuit applied its own all-things-considered reasonableness judgment to the home search (conducted with the Kenyans) as well as to the phone call monitoring. Or perhaps I've misunderstood Kerr or the ruling in some other way.
In any event, on the question of whether a U.S. court should apply its own sense of all-things-considered reasonableness or accept compliance with the law of the site of the search as the full measure of reasonableness, it seems to me that the former is preferable. It's true that Americans traveling abroad can only expect government officials they encounter abroad to comply with their own law. But it hardly follows that Americans should have to expect no more than compliance with, say, the search-and-seizure law of Syria or Egypt, from their own government.
Given the Bush Administration policy of "extraordinary rendition," it is hardly fanciful to imagine that U.S. officials might take advantage of weak or nonexistent protections for privacy to spy on
U.S. citizens traveling abroad.
Posted by Mike Dorf