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For the first time, a judge has recognized an exception to the Fourth Amendment’s warrant requirement for searches conducted abroad against U.S. citizens for purposes of foreign intelligence collection. Refusing to suppress evidence assembled in Kenya against accused terrorist Wadih El-Hage, District Judge Leonard B. Sand of the U.S. District Court for the Southern District of New York found that the primacy of the executive branch in foreign affairs and other policy reasons support judicial recognition of the exception. The judge characterized the new formula as “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.” Jury selection is scheduled to begin in two weeks for the trial of El Hage, a resident of Texas, and three other men who are accused of being part of a vast conspiracy to attack U.S. citizens and installations here and abroad, including the 1998 bombings of two U.S. embassies in Africa. Sand’s ruling allows the government to use at trial evidence of recorded phone calls made in Kenya and material seized from El-Hage’s temporary home in that country. The government claims that El-Hage was a member of the alleged terrorist group al Qaeda, which operated under the reputed direction of Usama Bin Laden, one of several indicted co-conspirators who have yet to be apprehended. Sand, ruling in United States v. Bin Laden, 98 Cr. 1023, found that the government had probable cause to suspect that El Hage was an agent of a “foreign power” — al Qaeda. The decision was written on Dec. 5, but unsealed only Tuesday. “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 foreign intelligence gathering operations,” the judge said. El-Hage claimed that the exception does not exist and should not have been recognized by the court. SEVERAL REASONS FOR EXCEPTION CITED But Sand cited several reasons why the exception to the warrant requirement should be recognized, including that “warrantless foreign intelligence collection has been an established practice of the Executive Branch for decades.” He said the court was not persuaded by El-Hage that the “exigent circumstances doctrine provides enough protection for the interests at stake.” In addition, Sand said, “There is an increased possibility of breaches of security when the Executive is required to take the Judiciary into its confidence,” and that the acquisition of a warrant “would certainly have been impracticable given the absence of any statutory provisions empowering a magistrate to issue a warrant and the unsuitability of traditional warrant procedures to foreign intelligence collection.” Sand said the new exception was “not a significant departure from that which is envisioned by the Fourth Amendment.” “All warrantless searches are still governed by the reasonableness requirement and can be challenged in ex post criminal or civil proceedings,” he said. After finding that the government had demonstrated it had probable cause to believe that El-Hage was the agent of a foreign power, Sand went on to rule that the search of his home was conducted “primarily” for foreign intelligence purposes: gathering information about Usama Bin Laden and al Qaeda, even though an F.B.I. agent was present during the search. The electronic surveillance of El-Hage from August 1996 through 1997 focused on four fixed-telephone lines and a cellular phone being used at the Fedha Estates in Nairobi, Kenya, which the government asserts is an “al Qaeda safehouse.” Between August 1996 and April 1997, the surveillance was conducted without the express approval of the president or Attorney General Reno. The attorney general gave her express authorization for the electronic surveillance on April 4, 1997, and later gave approval for the search of his home. The government defended using the fruits of the surveillance because El-Hage was considered, at the time, to be “incidental” to and not a “target” of, the investigation — an opinion that later changed when El-Hage was eventually recognized as an important figure in the matter. “Ultimately, the court holds that with respect to the electronic surveillance of the home and cellular phones, El-Hage was not intercepted ‘incidentally’ because he was not an unanticipated user of those telephones and because he was believed to be a participant in the activities being investigated,” he said. Therefore, El-Hage had a reasonable expectation of privacy on those phones, Sand said, and the government should have obtained approval from either the president or Attorney General Reno before beginning the surveillance in August 1996. Nonetheless, Sand refused to suppress the fruits of the surveillance. “Despite the fact that the electronic surveillance was unlawful, the court finds that the exclusion of this evidence would be inappropriate because it would not have the deterrent effect which the exclusionary rule requires and because the surveillance was taken in good faith,” he said. Sand said much of his finding of “good faith” by the government was based on his review of classified material. And in a declassified appendix to his opinion, he said an unnamed government declarant had made a sufficient showing that the search of El-Hage’s home yielded “important information about Bin Laden’s organization.” Sam Schmidt, Joshua L. Dratel and Kristian K. Larsen represented El-Hage. Kenneth M. Karas, Patrick M. Fitzgerald, Michael J. Garcia, Paul W. Butler and Andrew McCarthy represented the government.

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