## Facts

- After the August 7, 1998 bombings of U.S. embassies in Nairobi, Kenya and Dar es Salaam, Tanzania, the United States prosecuted alleged participants in federal court in the Southern District of New York.
- Wadih El-Hage, a U.S. citizen living in Kenya and suspected of involvement with al-Qaeda’s East Africa operations, was charged and tried on terrorism-related offenses.
- Beginning in 1996, U.S. authorities conducted electronic surveillance in Kenya of multiple telephone lines associated with suspected al-Qaeda operatives, including lines used by El-Hage.
- The Attorney General authorized the surveillance targeting El-Hage and renewed the authorization; the surveillance was not supported by a U.S. judicial warrant and was undertaken for foreign-intelligence purposes.
- U.S. agents, working with Kenyan police, searched El-Hage’s Nairobi residence while he was away; officers presented his wife with a document described as a Kenyan warrant for stolen property and seized documents and other items.
- U.S. agents did not seek or obtain a U.S. search warrant for the Nairobi search; Kenyan police later provided an inventory of seized items.
- Before trial, El-Hage moved to suppress evidence derived from (1) the Kenyan electronic surveillance and (2) the Nairobi home search, arguing both violated the Fourth Amendment.
- The district court denied suppression, El-Hage was convicted, and he appealed the denial of his Fourth Amendment suppression motions.

## Issues

1. Whether the Fourth Amendment applies to U.S. citizens subjected to electronic surveillance abroad by U.S. agents for foreign-intelligence purposes, and whether a warrant is required.
2. Whether the Fourth Amendment requires U.S. warrant procedures for a search of a U.S. citizen’s foreign home conducted abroad with foreign officials and U.S. participation.
3. Whether the overseas surveillance and search were reasonable under the Fourth Amendment.

## Decision

- The Second Circuit affirmed the denial of El-Hage’s suppression motions and upheld his convictions.
- The court held that the Fourth Amendment’s protections extend to U.S. citizens abroad, but the Warrant Clause’s domestic warrant framework does not transfer wholesale to overseas foreign-intelligence activity.
- The electronic surveillance in Kenya, authorized at the highest executive level and directed at foreign-intelligence and national-security objectives, was reasonable without a U.S. judicial warrant.
- The Nairobi residence search, conducted abroad with Kenyan authorities under Kenyan process and with U.S. participation, did not require a U.S. warrant and was reasonable under the circumstances.
- Alleged noncompliance with foreign (Kenyan) law, standing alone, did not mandate suppression in a U.S. criminal trial; the constitutional question was Fourth Amendment reasonableness.

## Legal Principles

- The Fourth Amendment applies extraterritorially to U.S. citizens, but the manner of satisfying its requirements depends on context, including practical constraints on overseas government action.
- Extraterritorial foreign-intelligence surveillance of a U.S. citizen may be conducted without a U.S. judicial warrant when assessed under a reasonableness standard that weighs privacy interests against national-security needs and the realities of operating abroad.
- Searches of a U.S. citizen’s property abroad conducted with foreign officials are not automatically subject to domestic U.S. warrant procedures; the governing constitutional test is overall reasonableness.
- Suppression in U.S. courts turns on violations of the U.S. Constitution, not on asserted violations of foreign procedural law absent constitutional unreasonableness.

## Conclusion

The Second Circuit ruled that, although U.S. citizens abroad remain protected by the Fourth Amendment, overseas foreign-intelligence surveillance and foreign-assisted searches are evaluated for reasonableness rather than under domestic warrant requirements, and the evidence obtained from the Kenya surveillance and Nairobi home search was admissible.


In re Terrorist Bombings of U.S. Embassies in E. Afr. (Fourth Amend. Challenges), 552 F.3d 157 (2d Cir. 2008)