The proposition is, of course, not that the Constitution 'does not apply' overseas, but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place.
--Justice John Harlan (1)
The United States intelligence community subjects certain American citizens living abroad to secret wiretaps of their phones and physical searches of their homes, without obtaining a judicial warrant. Take for instance a Texan, living with his wife and young children in Kenya, whose every telephone conversation was monitored for a year and whose home was entered while he was away in order to confiscate his property. Should Americans care that their government might so intrude on their privacy without a warrant? Should those sentiments change when the Texan is an al-Qaeda operative who participated in the terrorist attacks on United States Embassies in Kenya and Tanzania, and who was later convicted of conspiracy to commit murder and destroy U.S. property?
Certainly, Americans should be concerned about their government's surveillance powers, especially during a war on terror that differs from any other conflict in our nation's history. Yet since a federal district judge decided five years ago in United States v. Bin Laden (2) that a judicial warrant is not required to search Americans abroad when the information sought is primarily for foreign intelligence rather than criminal investigative purposes, (3) the judiciary has been silent on this point. Because the constitutionality of these warrantless searches is by no means settled, the recent five-year anniversary of Bin Laden makes this a fitting time to re-examine the judicial approach to searches of Americans living abroad during the war on terror and to determine whether a different standard is needed.
This Note argues that warrants to conduct electronic surveillance and physical searches of Americans abroad are neither constitutionally required nor an effective safeguard of liberty. Whereas the majority of the scant commentary on Bin Laden has criticized it for asserting a foreign intelligence exception (4) to the Fourth Amendment warrant requirement, (5) this Note attempts to shift the framework within which the Bin Laden court worked. Although Bin Laden's acceptance of the foreign intelligence exception correctly prevented the court from having to exclude valuable evidence that helped convict an international terrorist, future courts should not be confined by the warrant requirement and the exclusionary rule.
Instead, this Note proposes that the Constitution does not require a warrant for searches and seizures of Americans abroad, whether the searches are for foreign intelligence gathering or normal criminal investigations. This proposition may at first seem an anathema, but Fourth Amendment jurisprudence is riddled with exceptions to the warrant requirement that prove it is not absolute. (6) Although a warrant is constitutionally required in many domestic searches, that does not lead indubitably to the conclusion that a warrant is required for searches outside of the United States. The many exceptions in modern Fourth Amendment jurisprudence suggest that courts have been heavily influenced by policy considerations in making their constitutional pronouncements regarding warrants. (7) Yet there is little in the text or history of the amendment that mandates a preference for warrants, and in the case of searches abroad, practical and policy considerations weigh against recognizing a warrant requirement. One of the central policy considerations behind recognizing a warrant requirement is to protect the privacy of American citizens against unreasonable searches, but this Note contends that, for searches occurring overseas, courts could ensure greater privacy protection by developing a more rigorous legal reasonableness standard (8) that opens the federal government up …