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Defendant-appellant Wadih El-Hage, a citizen of the United States, challenges his conviction in the United States District Court for the Southern District of New York (Leonard B. Sand, Judge) on numerous charges arising from his involvement in the August 7, 1998 bombings of the American Embassies in Nairobi, Kenya and Dar es Salaam, Tanzania (the “August 7 bombings”).
El-Hage contends that the District Court erred by (1) recognizing a foreign intelligence exception to the Fourth Amendment’s warrant requirement, (2) concluding that the search of El-Hage’s home and surveillance of his telephone lines qualified for inclusion in that exception, and (3) resolving El-Hage’s motion on the basis of an ex parte review of classified materials, without affording El-Hage’s counsel access to those materials or holding a suppression hearing. Because we hold that the Fourth Amendment’s requirement of reasonableness — and not the Warrant Clause — governs extraterritorial searches of U.S. citizens and that the searches challenged on this appeal were reasonable, we find no error in the District Court’s denial of El-Hage’s suppression motion. In addition, the District Court’s ex parte, in camera evaluation of evidence submitted by the government in opposition to El-Hage’s suppression motion was appropriate in light of national security considerations that argued in favor of maintaining the confidentiality of that evidence. El-Hage’s Fourth Amendment challenge to his conviction is therefore without merit.
I. BACKGROUND
A. Factual Overview
American intelligence became aware of al Qaeda’s presence in Kenya by mid-1996 and identified five telephone numbers used by suspected al Qaeda associates. United States v. Bin Laden, 126 F.Supp.2d 264, 269 (S.D.N.Y.2000). From August 1996 through August 1997, American intelligence officials monitored these telephone lines, including two El-Hage used: a phone line in the building where El-Hage lived and his cell phone. See id. The Attorney General of the United States then authorized intelligence operatives to target El-Hage in particular. Id. This authorization, first issued on April 4, 1997,
B. El-Hage’s Pretrial Motion to Suppress Evidence Obtained from His Residence and Telephones in Kenya
El-Hage filed a pretrial motion pursuant to the Fourth Amendment
The government opposed El-Hage’s motion on the ground that the Fourth Amendment’s warrant requirement is inapplicable to overseas searches conducted for the purpose of gathering foreign intelligence. It also asserted that the need for an evidentiary hearing probing the basis for the Kenyan searches was outweighed by the need to maintain the confidentiality of the underlying intelligence. With respect to evidence obtained pursuant to the FISA-authorized surveillance of El-Hage’s Texas home, however, the government “assured the [District] Court that it d[id] not intend to offer any of this evidence in its case-in-chief and ... also indicated that there [we]re no fruits from the FISA tree with respect to [E]l[-]Hage.” United States v. Bin Laden, No. 98 Cr. 1023, 2001 WL 30061, at *5 (S.D.N.Y. Jan.2, 2001) (quoting Letter from Assistant United States Attorney Kenneth M. Karas to the District Court dated Oct. 23, 2000) (internal quotation marks omitted). Based on the government’s representations, El-Hage withdrew his suppression motion insofar as it related to the surveillance of his Texas home.
The District Court denied El-Hage’s request for a suppression hearing held in open court, choosing instead to resolve the motion based on an in camera, ex parte review of the government’s submissions, which included classified materials relating to the Kenyan searches. In an Opinion dated December 5, 2000, the District Court .explained that its decision to forgo an adversarial hearing was based on (1) the need to maintain the confidentiality of the relevant classified materials and (2) the limited scope of the factual inquiry necessary to resolve the motion. Bin Laden, 126 F.Supp.2d at 287. First, the District Court was persuaded by the government’s representations that al Qaeda posed an “ongoing threat” to the United States and that disclosure of the sensitive material underlying the Kenyan searches would have a “potentially damaging impact ... on existing foreign intelligence operations.” Id. Second, the District Court construed the issues presented by El-Hage’s motion as “predominantly legal,” requiring only a “limited factual inquiry.” Id. Because El-Hage’s motion did not turn on the resolution of factual disputes, the District Court concluded that “the benefit of holding an adversary hearing was substantially lessened.” Id. Taking these two factors into account, the District Court concluded that an in camera, ex parte review of the relevant evidence — and not an adversarial hearing in open court — was warranted.
Turning to the merits of El-Hage’s motion, the District Court recognized the novelty of the issue before it — that is, “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.” Id. at 270. Relying principally on Justice Black’s plurality opinion in Reid v. Covert, 354 U.S. 1, 7, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (concluding that Fifth and Sixth Amendment protections extend to U.S. citizens on foreign territory), the District Court determined that the protections articulated in the Fourth Amendment apply in some form to U.S. citizens, such as El-Hage, when they are abroad. See Bin Laden, 126 F.Supp.2d at 270-71. The District Court qualified its determination, however, explaining that the “extent” of the Fourth Amendment’s protections and, .in particular, the “applicability” of the Fourth Amendment’s Warrant Clause remained “unclear.” Id. at 271. .
Without determining whether warrants are generally required for overseas searches involving U.S. citizens, the District Court concluded that even if the warrant requirement applied, the bulk of the Kenyan searches would not be subject to it, based on the Court’s determination that an exception for searches conducted to gather foreign intelligence existed. Id., at 277-82. The District Court acknowledged that the Supreme Court has left unresolved the issue of the applicability of the warrant requirement and the existence of a foreign intelligence exception. Id. at 271 (citing 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 no warrant exception existed for “domestic security” surveillance but explicitly stating that the Court had “not addressed, and expressed] no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents”)). Noting pre-FISA precedents from the Third, Fourth, Fifth, and Ninth Circuits, the District Court observed that courts had “affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target for
Evaluating the first factor — the President’s authority over international relations — the District Court noted the long line of cases recognizing the “constitutional competence of the President in the field of foreign affairs” generally and the “power over foreign intelligence collection” specifically. Id. at 272. While noting that this authority does not exempt the President from compliance with other provisions of the Constitution, the District Court observed that foreign intelligence gathering unauthorized by warrants had been an “established practice of the Executive Branch for decades,” id. at 273, and that Congress had not attempted to impose restrictions on that practice when implemented overseas, despite having adopted restrictions in FISA on foreign intelligence gathering conducted domestically, id. The District Court also noted that the Supreme Court had not expressed disapproval of the practice. Id. In light of the Constitution’s grant of authority over foreign affairs to the President, the President’s longstanding assertion of that authority, and the apparent acquiescence of Congress and the Supreme Court to that authority, the District Court determined that this factor weighed in favor of recognizing an exception to the warrant requirement.
Turning next to the costs arising from imposing a warrant requirement, the District Court identified authority set forth by the Supreme Court and by our Circuit, recognizing 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.” Id. Imposing a warrant requirement on foreign intelligence searches conducted abroad would, in the District Court’s view, impose such a burden on the President because obtaining a warrant would (1) delay executive action, (2) jeopardize the confidentiality of sensitive information, and (3) possibly disrupt cooperative relationships with foreign powers fearful of inadvertent disclosures in the course of U.S. court proceedings. Id. at 274-75. This factor, therefore, also supported recognition of an exception for the overseas searches at issue.
Finally, the District Court observed that procedures for obtaining warrants to conduct overseas searches did not exist, noting “there is presently no statutory basis for the issuance of a warrant to conduct searches abroad.” Id. at 275. According to the Court, the government could not be expected to rely on existing warrant procedures geared toward domestic searches, which were ill-suited to the needs of foreign intelligence gathering conducted overseas for two reasons: (1) U.S. courts lack jurisdiction to issue such warrants and (2) the probable cause and notice requirements, integral to U.S. warrant procedures, would undermine the timeliness and effectiveness of covert intelligence gathering abroad. Id. at 276 & n. 14. This factor, combined with the previous two, persuaded the District Court that an exception to the Fourth Amendment’s warrant requirement existed for “searches tar
The District Court then defined the scope of the foreign intelligence exception “to include only those overseas searches, [1] authorized by the President (or his delegate, the Attorney General), which are [2] conducted primarily for foreign intelligence purposes and which [3] target foreign powers or their agents.” Id. With respect to the latter two criteria, the District Court found, based on its in camera, ex parte review of the classified evidence, that the primary purpose of the Kenyan searches was to obtain foreign intelligence pertaining to the activities of Osama Bin Laden and al Qaeda, id. at 278-79, and the government had probable cause to believe that El-Hage was an agent of a foreign power, specifically al Qaeda, id. at 277-78. Only a portion of the surveillance, however, satisfied the first criterion. .The District Court noted that even though the Kenyan telephone lines were monitored from August 1996 through August 1997, the Attorney General had not given her express authorization to conduct this surveillance until April 1997, eight months after it was already underway. Id. at 279. Accordingly, the District Court ruled that the telephone surveillance conducted between April and August 1997 and the search of El-Hage’s Nairobi residence in August 1997 qualified for the foreign intelligence exception to the warrant requirement, but the pre-April 1997 surveillance did not. Id.
The District Court nevertheless declined to suppress the fruits of the pre-April 1997 surveillance on the grounds that (1) doing so would not deter official misconduct and (2) the government acted in good faith. Id. at 282. Relying on precedents of the Supreme Court and this Court, the District Court reasoned that the “main purpose of the exclusionary rule is deterrence,” id. at 282, and suppression is not warranted when “it would achieve little or no deterrence,” id. at 283 (quoting United States v. Ajlouny, 629 F.2d 830, 840 (2d Cir.1980)). In light of the government’s strong interest in gathering intelligence on the activities of al Qaeda, the District Court concluded that the pre-April 1997 surveillance was primarily for the purposes of foreign intelligence rather than criminal investigation and, consequently, would have occurred even if the government knew that any evidence thereby obtained would be excluded from any future criminal trial. Id. at 283. Because the deterrence would be limited, the District Court invoked the “good faith” exception to the exclusionary rule, as set forth by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987), as another ground for denying suppression. 126 F.Supp.2d at 283. The District Court found reasonable, if ultimately inaccurate, the government’s belief that it did not need authorization to conduct surveillance on the Kenyan telephones in the absence of controlling precedent to the contrary and in light of the primary purpose of the surveillance, which was to obtain foreign intelligence. Id. at 284. Accordingly, the District Court was “persuaded that the officials who conducted the electronic surveillance operated under an actual and reasonable belief that Attorney General approval was not required prior to April 4, 1997,” id., and, on that basis, the District Court declined to suppress the surveillance conducted between April and August 1997 as fruits of the pre-April 1997 surveillance.
The District Court then considered whether the Kenyan searches satisfied the Fourth Amendment’s core requirement of reasonableness. The District Court explained that even if the Warrant Clause
D. Post-Conviction Rulings
In a post-conviction motion, El-Hage challenged the District Court’s decision not to suppress the evidence resulting from the Kenyan searches. He contended that (1) the finding of good faith was erroneous, (2) the foreign intelligence exception did not apply because the government’s motive for the Kenyan searches was primarily for the purposes of a criminal investigation, and (3) a warrant should have been obtained for the search of his computer, which had been seized from his Nairobi home. See United States v. Bin Laden, No. 98 Cr. 1023, 2001 WL 1160604, at *2-6 (S.D.N.Y. Oct.2, 2001). Adhering to its pretrial ruling, the District Court rejected El-Hage’s contentions and denied the motion. Id.
Over two years later, El-Hage filed another post-conviction motion, contending that “new evidence” supported his request to suppress the evidence from Kenya. In this motion, El-Hage relied on the then-recently issued July 24, 2003 Report of the United States Senate Select Committee on Intelligence and the United States House of Representatives Permanent Select Committee on Intelligence on the Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, which documented certain errors made in various FISA applications filed around the same time as the FISA-authorized surveillance of El-Hage’s Texas home. See United States v. Bin
II. DISCUSSION
A. In Camera, Ex Parte Review of Evidence
As a preliminary matter, we address El-Hage’s objection to the District Court’s resolution of his suppression motion on the basis of an in camera, ex parte review of evidence submitted by the government. El-Hage argues strenuously that without an evidentiary hearing the District Court could not properly evaluate the merits of his motion. Specifically, El-Hage contends that had he been permitted access to those materials and given an opportunity to be heard with regard to them, he would have argued that (1) the majority of the intercepted communications were unrelated to national security, (2) the government failed to limit (or “minimize”) its surveillance of irrelevant communications, (3) the search of his Kenyan home was pursuant to a criminal investigation and not part of an effort to gather foreign intelligence, and (4) the surveillance was not conducted in “good faith on any level.” El-Hage Br. 165-73, 185-86. The District Court’s failure to hold a hearing, El-Hage urges, cast aside the integral role of the adversarial process in determining the primary purpose of the surveillance and whether the government acted in good faith. We disagree. In light of the limited factual inquiry into evidence of consequence to national security that was necessary to resolve El-Hage’s motion and because the legal issues were “thoroughly-briefed by the parties,” Bin Laden, 126 F.Supp.2d at 287, we see no error — much less an abuse of discretion — in the District Court’s decision to review in camera the government’s ex parte submissions.
The denial of a defendant’s request for a suppression hearing is reviewed for abuse of discretion. See, e.g., United States v. Pena, 961 F.2d 333, 339 (2d Cir.1992). Under our precedents, “an evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question.” United States v. Watson, 404 F.3d 163, 167 (2d Cir.2005) (internal quotation marks omitted). Nevertheless, under certain circumstances an evidentiary hearing need not be held, provided that “in camera procedures will adequately safeguard the defendant’s Fourth Amendment rights” and that “accurate resolution of the factual issues would not have been materially advanced by either disclosure of the information to the defendant or an adversary hearing.” United States v. Ajlouny, 629 F.2d 830, 839 (2d Cir.1980) (citing Taglianetti v. United States, 394 U.S. 316, 317-18, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969)).
As in Ajlouny, the suppression motion at issue here involved a “limited” factual inquiry into the purpose and scope of the contested surveillance based on evidence relating to national security. As referenced above, the District Court observed that “the issues raised by El-Hage’s motion were predominantly legal questions and the fact-based inquiry [into whether the surveillance was conducted for foreign intelligence purposes or law enforcement purposes] was limited.” Bin Laden, 126 F.Supp.2d at 287. In addition, the District Court found “persuasive [the government’s] arguments about [an] ongoing threat posed by al Qaeda and the potentially damaging impact of disclosure [of the surveillance records] on existing foreign intelligence operations.” Id. Our own review of the record persuades us of the correctness of the conclusions of the District Court with respect to the limited nature of the inquiry into the purpose of the surveillance and the need, at the time, to keep the government’s submissions confidential.
In reaching this conclusion, we do not minimize El-Hage’s valid interest in examining the government’s evidence and challenging the government’s assertions. Nor do we doubt the utility of the adversary process to determine facts or ventilate legal arguments in the normal course. Nevertheless, the imperatives of national security and the capacity of “m camera procedures [to] adequately safeguard [El-Hage’s] Fourth Amendment rights,” Ajlouny, 629 F.2d at 839, weighed against holding an evidentiary hearing under these circumstances. See Belfield, 692 F.2d at 149 (“[I]n a field as delicate and sensitive as foreign intelligence gathering, as opposed to domestic, criminal surveillance, there is every reason why the court should proceed in camera and without disclosure to determine the legality of a sur
B. The District Court’s Denial of El-Hage’s Motion to Suppress Evidence
1. Standard of Review
We review de novo the legal issues raised in a motion to suppress evidence. See, e.g., United States v. Rommy, 506 F.3d 108, 128 (2d Cir.2007); United States v. Casado, 303 F.3d 440, 443 (2d Cir.2002). We review a district court’s factual findings for clear error, viewing the evidence in the light most favorable to the government. Casado, 303 F.3d at 443.
2. Extraterritorial Application of the Fourth Amendment
In order to determine whether El-Hage’s suppression motion was properly denied by the District Court, we must first determine whether and to what extent the Fourth Amendment’s safeguards apply to overseas searches involving U.S. citizens. In United States v. Toscanino, a case involving a Fourth Amendment challenge to overseas wiretapping of a non-U.S. citizen, we observed that it was “well settled” that “the Bill of Rights has extraterritorial application to the conduct abroad of federal agents directed against United States citizens.” 500 F.2d 267, 280-81 (2d Cir.1974); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 283 n. 7, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (Brennan, J., dissenting) (recognizing “the rule, accepted by every Court of Appeals to have considered the question, that the Fourth Amendment applies to searches conducted by the United States Government against United States citizens abroad”); Rosado v. Civiletti, 621 F.2d 1179, 1189 (2d Cir.1980) (considering a Fourth Amendment challenge to a search conducted abroad by foreign authorities and observing in dicta that “the Bill of Rights does apply extra-territorially to protect American citizens against the illegal conduct of United States agents” (citing Reid v. Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957))). Nevertheless, we have not yet determined the specific question of the applicability of the Fourth Amendment’s Warrant Clause to overseas searches.
The Fourth Amendment to the U.S. Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Supreme Court has explained that “[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (internal quotation marks omitAdditional Information