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U.S. v. BIN LADEN

December 5, 2000

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.



The opinion of the court was delivered by: Sand, District Judge.

      OPINION*fn1

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.*fn2

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.

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 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 Amendment*fn3 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 searches*fn4 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 ascertain whether the Amendment applies in this situation. El-Hage is an American citizen and the searches at issue were conducted in Kenya. The Defendant argues that the protection of the Fourth Amendment "does not dissolve once a United States citizen leaves the borders of the United States." (El-Hage Mot. at 4.) The Government seems to concede the general applicability of the Fourth Amendment to American citizens abroad, but asserts that the particular searches contested in this case (which were conducted overseas to collect foreign intelligence) call for a more limited application of the Amendment.

The Supreme Court cases on point suggest that the Fourth Amendment applies to United States citizens abroad. See Reid v. Covert, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion) (stating, in a case involving the Fifth and Sixth Amendments, that the "shield" provided to an American citizen by the Bill of Rights "should not be stripped away just because he happens to be in another land"). Cf. United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (holding that aliens outside the United States who lack a "substantial connection" to this country do not enjoy the protection of the Fourth Amendment because they are not "the people" whose protection was contemplated by the framers of the Fourth Amendment). Thus, this Court finds that even though the searches at issue in this case occurred in Kenya, El-Hage can bring a Fourth Amendment challenge. However, the extent of the Fourth Amendment protection, in particular the applicability of the Warrant Clause, is unclear.*fn5

II. An Exception to the Warrant Requirement for Foreign Intelligence Searches

The Government urges that the searches at issue in this case fall within an established exception to the warrant requirement.*fn6 According to the Government, searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant. The Defendant asserts that such an exception does not exist and should not be recognized by this Court.

The Supreme Court has acknowledged but has not resolved this issue. See United States v. United States District Court (Keith), 407 U.S. 297, 321-22, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (holding that there is no warrant exception for "domestic security" surveillances but explicitly stating that the Court had "not addressed, and express[ed] no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents"). Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir. 1970) (upholding warrantless foreign intelligence surveillance); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973) ("Restrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere."); United States v. Butenko, 494 F.2d 593, 605 (3d Cir. 1974) (upholding warrantless foreign intelligence surveillance and relying on the "good faith' of the Executive and the sanctions for illegal surveillances incident to post-search criminal or civil litigation"); United States v. Buck, 548 F.2d 871, 875 (9th Cir. 1977) ("Foreign security wiretaps are a recognized exception to the general warrant requirement."); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir. 1980) (finding that a requirement that officials secure a warrant before these types of searches "would `unduly frustrate' the President in carrying out his foreign affairs responsibilities"). The Second Circuit and the D.C. Circuit have commented on but not decided this question.*fn7 No court has considered the contours of such an exception when the searches at issue targeted an American citizen overseas.*fn8

The question, for this Court, is twofold. First, it is necessary to evaluate whether there is an exception to the warrant requirement for searches conducted abroad for purposes of foreign intelligence collection. Second, if such an exception exists, the Court must evaluate whether the searches conducted in this case properly fall within the parameters of that exception.

A. The Constitutional and Practical Bases for the Exception

Because the Second Circuit has not confirmed the existence of a foreign intelligence exception to the warrant requirement and because no other court has considered the applicability of such an exception overseas, the factors which call for the adoption of the exception are reviewed here.

1. The President's Power Over Foreign Affairs

In all of the cases finding an exception to the warrant requirement for foreign intelligence collection, a determinative basis for the decision was the constitutional grant to the Executive Branch of power over foreign affairs. On numerous occasions, the Supreme Court has addressed the constitutional competence of the President in the field of foreign affairs. See, e.g., Chicago & Southern Air Lines, v. Waterman S.S. Corporation, 333 U.S. 103, 111, 68 S.Ct. 431, 92 L.Ed. 568 (1948) (explaining that the judiciary should not interfere with the "delicate" and "complex" decisions of foreign policy which are "wholly confided by our Constitution to the political departments of the government, Executive and Legislative"); United States v. Curtiss-Wright, 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255 (1936) (discussing the "very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations"). It is also generally recognized that this authority includes power over foreign intelligence collection. See Totten v. U.S., 92 U.S. 105, 106, 2 Otto 105, 23 L.Ed. 605 (1875) (recognizing the President's power to conduct intelligence operations and to employ secret agents); Webster v. Doe, 486 U.S. 592, 605-06, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (O'Connor, J., concurring in part, dissenting in part) (describing, in civil employment suit, "[t]he functions performed by the Central Intelligence Agency and the Director of Central Intelligence" and "at the core" of the President's foreign relations power).

At the same time, in these cases and others, the Supreme Court has established that even in the exercise of his foreign affairs power, the President is constrained by other provisions of the Constitution. See United States v. Robel, 389 U.S. 258, 264, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967) ("It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties — the freedom of association — which makes the defense of the Nation worthwhile."); United States v. Curtiss-Wright, 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255 (1936) (explaining that the President's power over foreign affairs, "like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution"). Thus, even if this Court deems it necessary to establish an exception to the warrant requirement for foreign intelligence collection, these cases require vigilant protection of the Fourth Amendment interests which are at stake.

Warrantless foreign intelligence collection has been an established practice of the Executive Branch for decades. (Resp. at 69.) See also Keith, 407 U.S. at 310, 92 S.Ct. 2125 (finding that warrantless electronic surveillance "has been sanctioned more or less continuously by various Presidents and Attorneys General since July 1946"); William F. Brown and Americo R. Cinquegrana, Warrantless Physical Searches for Foreign Intelligence Purposes: Executive Order 12,333 and the Fourth Amendment, 35 Cath. U.L.Rev. 97, 103 (1985) ("Warrantless electronic surveillance has been used by the Executive to collect intelligence information since at least the mid-1800s . . . Warrantless physical searches have been used for a much longer period of time."). Congress has legislated with respect to domestic incidents of foreign intelligence collection, see FISA, 50 U.S.C. § 1801 et seq. (1978), but has not addressed the issue of foreign intelligence collection which occurs abroad. The Supreme Court has remained, in the three decades since Keith, essentially, silent on both aspects of the issue. But cf. Verdugo-Urquidez, 494 U.S. at 273-74, 110 S.Ct. 1056 (noting that a warrant requirement for overseas searches "could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest"). While the fact of this silence is not dispositive of the question before this Court, it is by no means insignificant. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) ("[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on `Executive Power' vested in the President by § 1 of Art. II."); Payton v. New York, 445 U.S. 573, 600, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) ("A longstanding, widespread practice is not immune from constitutional scrutiny. But neither is it to be lightly brushed aside.").

2. The Costs of Imposing a Warrant Requirement

It is generally the case that imposition of a warrant requirement better safeguards the Fourth Amendment rights of citizens in the Defendant's position. But several cases direct that when the imposition of a warrant requirement proves to be a disproportionate and perhaps even disabling burden on the Executive, a warrant should not be required. See Truong, 629 F.2d at 913 (finding that a requirement that officials secure a warrant before these types of searches "would `unduly frustrate' the President in carrying out his foreign affairs responsibilities"); Keith, 407 U.S. at 315, 92 S.Ct. 2125 ("We must also ask whether a warrant requirement would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it."). See also Griffin v. Wisconsin, 483 U.S. 868, 876, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (finding that a warrant requirement would interfere with the supervision of probationers and would impede the responsiveness of probation officers); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ("The Government's interest in regulating the conduct of railroad employees to ensure safety . . . presents `special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements."); Camara v. Municipal Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (holding that the imposition of the warrant requirement "depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search."). For several reasons, it is clear that imposition of a warrant requirement in the context of foreign intelligence searches conducted abroad would be a significant and undue burden on the Executive.

It has been asserted that the judicial branch is ill-suited to the task of overseeing foreign intelligence collection. Foreign affairs decisions, it has been said, are often particularly complex. See Chicago & Southern Air Lines, 333 U.S. at 111, 68 S.Ct. 431 (explaining that foreign affairs decisions are "of a kind for which the Judiciary has neither aptitude, facilities nor responsibility"). These arguments have, to some extent, been undercut by both the Supreme Court, in Keith, and Congress, in FISA.*fn9 On the other hand, neither Keith nor FISA addresses the particular difficulties attendant to overseas foreign intelligence collection. In fact, as mentioned previously, it was precisely these peculiarities which caused Congress to restrain the reach of FISA to domestic searches.*fn10 The Government makes several persuasive points about the intricacies of foreign intelligence collection conducted abroad. First, the Government cautions that a court would have greater difficulty (than in the domestic context) predicting "the international consequences flowing from a decision on the merits' regarding Executive Branch foreign policy decisions." (Resp. at 41.) Often these decisions have significant impacts on the essential cooperative relationships between United States officials and foreign intelligence services. (Id.) In addition, when some members of the government of the country in which the searches are sought to be conducted are perceived as hostile to the United States or sympathetic to the targets of the search, a procedure requiring notification to that government could be self-defeating. The Government also explains that too much involvement could place American courts in an "institutionally untenable position" when the operations which are authorized are violative of foreign law. (Id. at 42.)

These concerns about the complexity of foreign intelligence decisions should not be taken to mean that the judiciary is not capable of making these judgments. Judges will, of course, be called on to assess the constitutionality of these searches ex post. Requiring judicial approval in advance, however, would inevitably mean costly increases in the response time of the Executive Branch. Although the Defendant asserts that such concerns are accommodated by existing allowances for exigent circumstance,*fn11 the Court is not persuaded that the exigent circumstances doctrine provides enough protection for the interests at stake. See Truong, 629 F.2d at 913 ("[A] warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives [and] in some cases delay executive response to foreign intelligence threats."); Butenko, 494 F.2d at 605 (concluding that imposition of a warrant requirement would interfere with the "continuous flow of [foreign intelligence] information" thus making the "Executive's foreign policy-making apparatus" less efficient).

In addition to concerns about the impact of a warrant requirement on the speed of the executive response, there is an increased possibility of breaches of security when the Executive is required to take the Judiciary into its confidence.*fn12 The Government emphasizes the detrimental impact that the existence of a warrant requirement for foreign intelligence searches might have on the cooperative relationships which are integral to overseas foreign intelligence collection efforts. As the Government explains, "[t]he mere perception that inadvertent disclosure is more likely is sufficient to obstruct the intelligence collection imperative." (Resp. at 45.) The United States' heightened dependence on foreign governments for assistance in overseas foreign intelligence collection is a concern that was not addressed by the circuit courts that considered an exception to the warrant requirement for foreign intelligence collection within this country.

3. The Absence of a Warrant Procedure

The final consideration which persuades the Court of the need for an exception to the warrant requirement for foreign intelligence collection conducted overseas is that there is presently no statutory basis for the issuance of a warrant to conduct searches abroad.*fn13 (Resp. at 68.) In addition, existing warrant procedures and standards are simply not suitable for foreign intelligence searches.*fn14 The Defendant, nevertheless, argues strenuously that "if the government insists on exercising jurisdiction over conduct occurring extra-territorially, it must also abide by constitutional limitations on its own conduct in pursuing criminality in those same foreign locales." (El-Hage Mot. at 12.) See also Best v. U.S., 184 F.2d 131, 138 (1st Cir. 1950) ("Obviously, Congress may not nullify the guarantees of the Fourth Amendment by the simple expedient of not empowering any judicial officer to act on an application for a warrant."); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144, 160 (D.D.C. 1976) ("Rule 41(a) cannot limit or restrict the dictates of the Constitution to the United States, however, particularly when the Supreme Court has held those dictates applicable overseas."). El-Hage's argument is significantly undercut by clear language from the Supreme Court decision in Verdugo-Urquidez. See 494 U.S. at 274, 110 S.Ct. 1056 (6-3 decision) (noting that a warrant from an American magistrate "would be a dead letter outside the United States"). See also Verdugo-Urquidez, 494 U.S. at 278, 110 S.Ct. 1056 (Kennedy, J., concurring) (explaining that several factors counsel against overseas application of the warrant requirement including: "the absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials"); Verdugo-Urquidez, 494 U.S. at 279, 110 S.Ct. 1056 (Stevens, J., concurring) (concluding that the Warrant Clause does not apply to overseas searches of noncitizen's homes because of the powerlessness of American magistrates to authorize such searches).

Despite El-Hage's assertions to the contrary (El-Hage Mot. at 12 n. 3) the language employed by the Justices in Verdugo-Urquidez who challenged the overseas application of the warrant requirement does not suggest that the criticisms were limited to cases involving noncitizens.*fn15 The Justices' skeptical remarks were universally critical of the impotence of American warrants overseas and were not explicitly limited to application to noncitizens. There was no indication that any of the Justices would espouse a different view of the warrant requirement for searches of Americans abroad.

B. Adoption of the Foreign Intelligence Exception to the Warrant Requirement

In light of the concerns outlined here, the Court finds that the power of the Executive to conduct foreign intelligence collection would be significantly frustrated by the imposition of a warrant requirement in this context. Therefore, this Court adopts the foreign intelligence exception to the warrant requirement for searches targeting foreign powers (or their agents) which are conducted abroad. As has been outlined, no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States. With those precedents as guidance, it certainly does not appear to be unreasonable for this Court to refuse to apply a warrant requirement for foreign intelligence searches conducted abroad.

At the same time, the Court is mindful of the importance of the Fourth Amendment interests at stake. In keeping with the precedents reviewed above, the warrant exception adopted by this Court is narrowly drawn to include only those overseas searches, authorized by the President (or his delegate, the Attorney General), which are conducted primarily for foreign intelligence purposes and which target foreign powers or their agents. See Truong, 629 F.2d at 915-17. The protection of individual rights in this context is not a significant departure from that which is envisioned by the Fourth ...


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