provide it to some other Bin Laden guesthouse user requested by
the caller." (Id. ¶ 5) It is clear from these accounts that the
Government's initial assumptions about the use of the phone were
borne out by the evidence accumulated during the surveillance.
The Court is persuaded that the surveillance was undertaken in
good faith reliance on a mistaken interpretation of the law. For
that reason, as outlined in the opinion, the evidence from the
pre-April 4, 1997 electronic surveillance is not suppressed.
*fn2 El-Hage also seeks additional relief, including:
suppression of statements made by the Defendant to United States
law enforcement agents, on August 21, 1997, at Kenyatta
International Airport in Nairobi, Kenya; dismissal of the
Indictment or suppression of evidence in light of the
Government's allegedly outrageous conduct during its
investigation of the Defendant; partial disqualification of
Assistant United States Attorney Patrick Fitzgerald; suppression
of tape recordings or summaries of telephone conversations which
are the product of electronic surveillance conducted in
Arlington, Texas, pursuant to the Foreign Intelligence
Surveillance Act, during August and September, 1998; and
sanctions against the Government for destruction of tape
recordings of the electronic surveillance conducted, pursuant to
the Foreign Intelligence Surveillance Act ("FISA"), in August and
September, 1998. These issues will be addressed in a subsequent
*fn3 The Fourth Amendment provides that "[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized."
U.S. CONST. amend. IV.
*fn4 When referring to the physical search and the electronic
surveillance together, the Court will use the term "searches"
unless there is a need to distinguish between the two. Whether
these two Fourth Amendment events merit different levels of
scrutiny is a question that will be addressed later in this
opinion. See infra Section IV. A.
*fn5 As already stated, El-Hage asks this Court to suppress the
evidence obtained from the searches and the fruits thereof. The
Government takes the position that the exclusionary rule should
not be applied because the government officials acted in good
faith. Indeed, the Government suggests that El Hage's motion
could be disposed of "solely" on this basis "without reaching the
validity of the searches at issue." Resp. at 62 (relying in part
on United States v. Ajlouny, 629 F.2d 830, 840 (2d Cir. 1980)
(determining that because officers acted in good faith belief
that foreign intelligence exception applied, court need not reach
the question of the validity of the exception)). Ajlouny is
distinguishable from this case because it immediately preceded
the enactment of FISA. See 50 U.S.C. § 1801-1811 (1978). The
Ajlouny court reasoned that the potential for deterrence was
significantly changed by the enactment of FISA (which outlines
procedures for foreign intelligence surveillance conducted within
the United States) and concluded that "the passage of the Act
substantially reduced the importance of deciding in this case
whether the Constitution independently requires the obtaining of
a warrant for foreign intelligence electronic surveillance."
Id. at 842.
The Court has determined that with the exception of the
pre-April 4, 1997 electronic surveillance, there was no Fourth
Amendment violation. As such, the Court finds it unnecessary to
consider the question of good faith, except with respect to the
pre-April 4, 1997 surveillance, which is dealt with later in the
opinion. See infra Section III. B.
*fn6 It is important to note at the outset of this Fourth
Amendment analysis that a Kenyan warrant was presented to Mrs.
El-Hage during the physical search of the Nairobi residence, but
the Government explicitly states that "American authorities . . .
did not rely upon the Kenyan warrant as legal authority for the
search." Resp. at 4. Therefore, the question of the relative
levels of participation of the two sovereigns (Kenya and the
United States) is not presented here.
*fn7 See Birnbaum v. United States, 588 F.2d 319, 332 n. 26
(2d. Cir. 1978) (stating in dicta that the warrantless mail
openings at issue "might" have been lawful if conducted pursuant
to authorization of the President (in light of his Article II
power to conduct foreign affairs)); Ajlouny, 629 F.2d at 840
(pre-FISA case finding that officers acted in good faith reliance
on the foreign intelligence exception to the warrant requirement,
but deferring consideration of the constitutionality of such
exception); United States v. Duggan, 743 F.2d 59, 71 (2d Cir.
1984) (acknowledging that before FISA "virtually every court that
had addressed the issue had concluded that the President had the
inherent power to conduct warrantless electronic surveillance to
collect foreign intelligence information"). See Ellsberg v.
Mitchell, 709 F.2d 51, 65-66 (D.C.Cir. 1983) (forestalling
resolution of the issue of a foreign intelligence exception to
the warrant requirement because of an undeveloped factual
record); United States v. Ehrlichman, 546 F.2d 910, 936
(D.C.Cir. 1976) (noting in dicta that "no court has ruled that
the President does not have [the prerogative to authorize
warrantless foreign intelligence collection] in a case involving
foreign agents or collaborators with a foreign power"). Cf.
Zweibon v. Mitchell, 516 F.2d 594 (D.C.Cir. 1975) (refusing to
apply foreign intelligence exception where searches targeted
people who were not agents or affiliates of a foreign power).
*fn8 All of the circuit cases finding a foreign intelligence
exception arose before the enactment of FISA (which sets forth
procedures for foreign intelligence collection, see
50 U.S.C. § 1801 et seq.) and are probably now governed by that legislation.
FISA only governs foreign intelligence searches conducted within
the United States. See 50 U.S.C.A. §§ 1801(f)(1-4), 1803(a),
*fn9 In Keith, the Court did not accept the argument that the
task, at least in the context of domestic, national security
surveillance, was beyond the ken of the judiciary. See Keith,
407 U.S. at 319, 92 S.Ct. 2125. Congress, by enacting a statute
which calls for judicial oversight of foreign intelligence
surveillance, albeit in a modified form, also does not appear to
have adopted this view of judicial unsuitability. See
50 U.S.C. § 1801 et seq. (1978).
*fn10 There is a limited record of why Congress confined FISA to
surveillances and searches occurring within the United States.
One Senate Report regarding the original (1978) FISA bill noted
that "legislation [governing foreign intelligence surveillance
abroad] should be considered separately because the issues are
different than those posed by electronic surveillance within the
United States." S. REP. NO. 95-701, at 7 n. 2 (1978). See also
Foreign Intelligence Electronic Surveillance: Hearings Before
the Subcommittee on Legislation, 95th Cong. 12-13 (1978)
(statement of Attorney General Griffin Bell) ("[B]ecause `there
is a fair degree of cooperation between our Government and the
police and intelligence services of other nations, limitations on
[overseas foreign intelligence] surveillances could result in the
loss of cooperation.'"); H.R. REP. 95-1283, at 27-28 ("[C]ertain
problems and unique characteristics preclude the simple extension
of [FISA] to overseas surveillances.").
*fn11 Several cases have provided for an exception to the
warrant requirement in the context of an exigency. See, e.g.,
Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 18
L.Ed.2d 782 (1967) ("The Fourth Amendment does not require police
officers to delay in the course of an investigation if to do so
would gravely endanger their lives or the lives of others.");
Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d
486 (1978) ("Our decisions have recognized that a warrantless
entry by criminal law enforcement officials may be legal when
there is compelling need for official action and no time to
secure a warrant.").
*fn12 Concerns about security obviously influenced the drafters
of FISA who established special procedures for the authorization
of foreign intelligence collection which are protective of the
often highly sensitive information involved in those cases. See
50 U.S.C. § 1801 et seq. (1978).
*fn13 There is not even a statutory provision for standard law
enforcement searches conducted abroad. Rule 41(a) of the Federal
Rules of Criminal Procedure, which governs domestic law
enforcement searches, limits the jurisdiction of a federal
magistrate. In the 1990 Amendment notes, the Advisory Committee
noted that the Supreme Court had considered, but not adopted, a
proposed amendment to Rule 41(a) which would have provided a
mechanism for issuing "warrants to search property outside the
United States." The Advisory Committee noted that without such a
rule, "it was unclear how federal officers might obtain warrants
authorizing searches outside the district of the issuing
magistrate." Similarly, Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., which
prescribes procedures for electronic surveillance for law
enforcement purposes, includes no provision for overseas
electronic surveillance. See U.S.C. § 2518. See also United
States v. Toscanino, 500 F.2d 267, 280-81 (2d Cir. 1974);
Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C.
*fn14 Even without their jurisdictional limitations, neither
Rule 41 nor Title III would be well-suited to the foreign
intelligence context because their traditional law
enforcement-based requirements prove to be unsuitable analogs for
foreign intelligence collection. They rely on a different
probable cause standard, they both eventually require some form
of notice to the targets of the search and they provide very
limited security for the highly classified information that forms
the basis for Executive action. See United States v. Belfield,
692 F.2d 141, 144 n. 8. (D.C.Cir. 1982) (explaining that
intelligence information often "has nothing to do with the
contemplated commission of a crime" and that the notice provision
imposed by traditional warrant procedures would hinder the use of
*fn15 But cf. United States v. Juda, 797 F. Supp. 774, 782
(N.D.Ca. 1992) ("The Supreme Court [in Verdugo-Urquidez] . . .
did not decide whether a warrant may be required for searches
conducted abroad against Americans, as opposed to foreigners.").
*fn16 In its surreply to El-Hage's Reply Memorandum, the
Government does allow for the possibility that "the applicability
of the Warrant Clause does not hinge on Congress's willingness to
create a warrant mechanism." (Surreply at 11 n. 9.) Several
decisions have outlined the power of the courts to issue warrants
for subjects not governed by any statute. See United States v.
New York Tel. Co., 434 U.S. 159, 169 n. 14, 98 S.Ct. 364, 54
L.Ed.2d 376 (1977) (discussing "an inherent power . . . to issue
search warrants under circumstances conforming to the Fourth
Amendment"); United States v. Torres, 751 F.2d 875 (7th Cir.
1984) ("[T]he power to issue a search warrant was historically,
and is still today, an inherent (by which we mean simply a
nonstatutory, or common law) power of a court of general
jurisdiction. . . . Although Congress can limit the procedural
authority of the federal courts . . . until it does so with
respect to a particular subject the courts retain their
traditional powers."); United States v. Falls, 34 F.3d 674, 678
(8th Cir. 1994) ("A court of general jurisdiction has inherent
power to issue a search warrant within the limits set forth in
the Fourth Amendment."). In some of these cases, the language
used by the courts has suggested the possibility of extension of
this common law doctrine to this case (where no court possesses
statutory jurisdiction to issue a warrant overseas). But see
Weinberg v. United States, 126 F.2d 1004, 1006 (2d Cir. 1942)
("With very few exceptions, United States district judges possess
no extraterritorial jurisdiction.").
*fn17 In Butenko, as El-Hage cites (Reply at 30) the court
quoted twice the district court's finding that the surveillances
at issues "`were conducted and maintained solely for the purpose
of gathering foreign intelligence information.'" 494 F.2d at 601,
605. But the Butenko court did not incorporate "solely" into
the test that it created for the warrant exception. Rather, the
court described the test as one of "primary" purpose. Id. at
*fn18 In all of the cases finding a foreign intelligence
exception to the warrant requirement, the authorization of the
President or Attorney General had been obtained and was part of
the basis for each court's decision. See Clay, 430 F.2d at 166;
Brown, 484 F.2d at 426; Butenko, 494 F.2d at 605. In fact, in
several cases, searches undertaken without specific Attorney
General or Presidential authorization were deemed to have
exceeded the narrow scope of the exception. See Truong, 629
F.2d at 917 (stating, with respect to one package search, that
"[b]ecause the government agents did not receive executive
authorization, the foreign intelligence exception to the warrant
requirement does not legitimate this search"); Ehrlichman, 546
F.2d at 925, 927-28 (finding that foreign intelligence exception
to the warrant requirement was not available where there was no
"specific authorization by the President or the Attorney General"
for the searches in question).
*fn19 The Government is aware that application of the foreign
intelligence exception requires explicit authorization from the
President or Attorney General. (Resp. at 27.)
*fn20 The Government relies on several cases for the more broad
proposition that if government agents have probable cause to
intercept the conversations of one participant in a conversation,
they may lawfully intercept "the statements of the other
participants . . . if pertinent to the investigation."
Tortorello, 480 F.2d at 775 (2d Cir. 1973); Figueroa, 757
F.2d at 475 (same); United States v. Scott, 516 F.2d 751, 755
(D.C.Cir. 1975) (permitting more extensive electronic
surveillance "where at least one party [to a conversation] is a
suspected participant in the criminal conduct"). However, the
courts issuing these decisions each highlighted that this rule is
generally premised on the fact that the government is not in a
position to identify, at the outset of a surveillance, all of the
people who may be implicated by the surveillance. The emphasis in
the caselaw on differentiating between known and unknown
participants is in large part due to Title III's requirement that
a law enforcement officer seeking a wiretap order provide to the
judge the "identity of the person, if known, committing the
offense and whose communications are to be intercepted."
18 U.S.C. § 2518(1)(b)(iv).
*fn21 Because the Court finds in the next section of the
opinion, that the exclusionary rule cannot be applied to this
case, El-Hage's reasonable expectation of privacy on the other
phone lines is not discussed.
*fn22 The Government suggests that El-Hage's expectation of
privacy was not reasonable. The Government asserts that because
El-Hage spoke cryptically in his phone calls and because one
associate expressed concern that the phone was tapped, his
expectation of privacy was reduced. See Resp. at 52 n. 21
(citing United States v. Hall, 488 F.2d 193, 198 (9th Cir.
1973)) ("It would be absurd to hold that one is constitutionally
protected from untoward results when he makes statements at a
time when he has reason to know that some third party is, or
probably is, listening."). But see El-Hage Reply at 27 ("Mr.
El-Hage's expectation of privacy in his telephone communications
in Kenya was absolute in light of Kenya's complete prohibition
on wiretapping."). It is also suggested that El-Hage's
expectation of privacy was diminished because he lived in another
country. See Resp. at 52 n. 21. Finally, the fact that El-Hage
allowed al Qaeda associates to stay at his home is said to have
reduced his expectation of privacy. But cf. Minnesota v. Olson,
495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (affording
Fourth Amendment protection to an overnight guest because he had
a reasonable expectation of privacy in the residence that was
searched). These considerations, while relevant, do not sway the
Court's finding that El-Hage had a reasonable expectation of
privacy in his home and cellular phones. See Katz v. United
States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
The conclusion that he did have a reasonable expectation of
privacy seems unassailable, in light of both the doctrinal
holding of Katz and its factual predicate — the defendant's
telephone conversations (deemed worthy, by the Court, of Fourth
Amendment protection) occurred in a public phone booth.
*fn23 The Court does not extend this holding beyond the
particular facts of this case where the Defendant was intercepted
on his home and cellular phones. In addition, the Court does not
take issue with the policies and procedures developed by the
Executive Branch for foreign intelligence collection abroad.
These are outlined in Executive Order 12,333, which was issued by
President Reagan on December 4, 1981. In Section 2.5 of that
order, the President delegates to the Attorney General:
the power to approve the use for intelligence
purposes, within the United States or against a
United States person abroad, of any technique for
which a warrant would be required if undertaken for
law enforcement purposes, provided that such
techniques shall not be undertaken unless the
Attorney General has determined in each case that
there is probable cause to believe that the technique
is directed against a foreign power or an agent of a