Chapter 22 - Organization and Coordination of Investigations
This chapter reviews material on coordination of investigation between
different agencies. We have seem much of this material before.
Attorney General’s Guidelines on General Crimes, Racketeering Enterprise
and Terrorism Enterprise Investigations [Domestic Security Guidelines] -
These guidelines are aimed at situations where crimes have or may have
These provide a useful view of how information that does not merit a full
investigation is handled. They also detail how a terrorism investigation can
also be done as a RICO investigation, depending on the nature of the crimes
The guidelines constantly remind us that the FBI claims that it does not
act on information that would be protected under the first amendment, but the
guidelines authorize significant authority to investigate such activity
(political protests, etc.) to make sure they are just political speech.
Attorney General’s Guidelines for FBI National Security Investigations and
Foreign Intelligence Collection
These guidelines are aimed at preventing terrorist acts and national
The guidelines provide the framework for data mining and other techniques
we discussed in previous chapters.
Legal force of guidelines
These are not regulations, they are only internal guidance documents. They
have no legal force and cannot be enforced in judicial proceedings.
Chapter 23 - Surveillance Abroad
Reid v. Covert, 354 US 1 (1957)
What are the ‘‘Insular Cases’’?
The ‘‘Insular Cases,’’ which arose at the turn of the [twentieth]
century, involved territories which had only recently been conquered or
acquired by the United States. These territories, governed and regulated by
Congress under Art. IV, §3, had entirely different cultures and customs from
those of this country.
Did Justice Black find that the US constitutional requirements for a jury
trial applied to US citizens abroad?
How did Justice Harlan limit his concurrence? What crimes would he agree
with Black on and which did he think could be tried
He limited his concurrence to capital crimes.
Thinking about the exclusionary rule
What evidence does it exclude?
Is the rule in the constitution?
Where did it come from?
What is the purpose of the exclusionary rule?
What does this mean?
What does it deter?
Why does it not matter for foreign police?
What about alternatives?
Disciplining officers who violate rights?
What is wrong with these?
Is there a good faith exception to the exclusionary rule in the US?
When is it usually applied?
Technically invalid warrants
The exclusionary rule in foreign searches - US v. Verdugo-Urquidez, (494 US
259 (1990) - 642
What are the facts?
Defendant is foreign national seized by the Mexican police in
US agents, without a warrant, seized documents in Mexico and
used them in the trial
What is the legal challenge?
Exclusion of evidence
How does the language of the 4th amendment differ from the language of the
5th and 6th amendments?
4th - ‘‘The right of the people
The language of these Amendments contrasts with the words
‘‘person’’ and ‘‘accused’’ used in the Fifth and Sixth Amendments regulating
procedure in criminal cases.
Why does the court say this change in language is significant?
What does it tell us about when and who the 5th and 6th amendments apply
Any person on trial in the US, and US citizens abroad
What did Congress authorize to deal with French attacks on US vessels in
In an Act to ‘‘protect the Commerce of the United States’’ in
1798, Congress authorized President Adams to ‘‘instruct the commanders of the
public armed vessels which are, or which shall be employed in the service of
the United States, to subdue, seize and take any armed French vessel, which
shall be found within the jurisdictional limits of the United States, or elsewhere,
on the high seas.’’
Why does this tell us that the 1798 Congress, which had a good idea of what
the founders intended, did see the 4th amendment applying outside the US to
Could not have done the searches and seizures
What does Dorr v. United States, 195 U.S. 138 (1904), tell us about the
application of the constitution in US held territory?
we declared the general rule that in an unincorporated
territory— one not clearly destined for statehood—Congress was not required to
adopt ‘‘a system of laws which shall include the right of trial by jury, and
that the 644 Chapter 23. Surveillance Abroad Constitution does not, without
legislation and of its own force, carry such right to territory so situated.’’
What rights would apply in such territory?
Only ‘‘fundamental’’ constitutional rights are guaranteed to
inhabitants of those territories.
What are these rights?
Was this at issue in the Guantanamo detainee cases?
What was the issue in Johnson v. Eisentrager, 339 U.S. 763 (1950)?
The Court held that enemy aliens arrested in China and
imprisoned in Germany after World War II could not obtain writs of habeas
corpus in our federal courts on the ground that their convictions for war
crimes had violated the Fifth Amendment and other constitutional provisions.
How did the court rule in Johnson?
‘‘Such extraterritorial application of organic law would have
been so significant an innovation in the practice of governments that, if
intended or apprehended, it could scarcely have failed to excite contemporary
comment. Not one word can be cited. No decision of this Court supports such a
view. Cf. Downes v. Bidwell, 182 U.S. 244 [(1901)]. None of the learned
commentators on our Constitution has even hinted at it. The practice of every
modern government is opposed to it.’’ Id., at 784.
How does the court distinguish Reid v. Covert, 354 U.S. 1 (1957)
How would a universal application of the US Constitution affect our ability
to use the military abroad?
Could Congress just suspend the Constitution to allow wars?
Why did Justice Kennedy say he concurred?
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 all indicate that the Fourth Amendment’s warrant requirement
should not apply in Mexico as it does in this country.
What did the dissent say?
Dissent says that if US power allows foreign enforcement of
criminal laws, then the constitution should follow.
Justice Blackmun wrote: American agents acting abroad generally do not
purport to exercise sovereign authority over the foreign nationals with whom
they come in contact.
What does this mean?
Is this the key to understanding the foreign/domestic constitutional
What did Harbury v. Deutch, 233 F.3d 596 (D.C. Cir. 2000), tell us about
the application of the 5th amendment to torture of foreign nationals done
It is shocking but not illegal
How does the Detainee Treatment Act change that?
Says we cannot use torture
Does it apply to everyone?
What does Little v. Barreme, 2 Cranch 170 (1804) tell us about the
enforceability of the Act by a tortured foreign national?
Should this still be the law?
Does this interfere with the president's foreign policy if he thinks
torture is necessary?
United States v. Bin Laden, 126 F. Supp. 2d 264 (S.D.N.Y. 2000)
Remember - Truong, which the court relies on, is no longer good law.
What events are being investigated?
Bombing of the embassy in Kenya
What are the two suppression requests?
Search of defendant's home
Is this a US citizen?
Does FISA address foreign searches?
What does this court assume that means? No limits or usual 4th amendment
More limited than FISA
Had warrantless searches been done in the past?
Warrantless foreign intelligence collection has been an
established practice of the Executive Branch for decades.
What is the biggest problem with a warrant requirement for a foreign search?
Who would issue it?
Could this be cured by using a US judge?
What practical problems might that entail?
When does the court say that the appropriateness of the search will be
reviewed by a judge?
When the evidence is at issue in a trial
What is the foreign intelligence exception that the court is applying?
Exception to the 4th amendment for foreign intelligence
Who does this apply to?
Agents of a foreign power
How does the court apply the requirement from Truong?
Requires that the primary purpose be foreign intelligence
Do you think this would still apply, given the rejection of Truong for
Who has to authorize the search?
Authorization from the President or the Attorney General
Do they have to do it personally?
How far can this be delegated?
Does the government claim the foreign intelligence exception for the
What is the justification for the surveillance?
It was incidental
Does the court accept this?
The government knew it who they were listening to and he was a
What could the government have done to cure the problem with the electronic
Have it authorized by the President or the AG
What did the government say were complicating factors that made the
electronic surveillance difficult?
In addition, the Government emphasizes that the recorded
conversations were conducted in a foreign language and that there was a high
likelihood that some of the seemingly innocuous conversations were in code.
The Government minimized the electronic surveillance by
limiting the conversations for which verbatim transcripts were prepared and by
disseminating the Defendant’s name only where necessary for foreign
Did the court find that the government was acting in good faith?
What does the court look at to decide if the search of the residence was
In addition, the limited scope and overall nature of the search
indicate that the search was executed in a reasonable manner and was not, as
El-Hage alleges, ‘‘conducted as if pursuant to a ‘general warrant.’’’
The Government and the Defendant both state that the search was
conducted during the daytime, an inventory of the items seized was left at the
residence and that an American official was present for the search (and
‘‘identified himself . . . in true name’’).
The scope of the search was limited to those items which were
believed to have foreign intelligence value and retention and dissemination of
the evidence acquired during the search were minimized.
What is the standard for reasonableness for drug dealers in United States
v. Barona, 56 F.3d 1087 (9th Cir. 1995)?
a divided court came up with different tests for reasonableness
of warrantless surveillance of U.S. citizens abroad in a drug-smuggling
The majority looked to good faith compliance with the law of
the foreign country where the surveillance was conducted, absent conduct that
shocks the conscience.
What if the foreign courts are more flexible than the US courts?
The court distinguished cases where the US agents were in a joint venture
with the local police, in which case there would be more scrutiny - what would
this amount to after Bin Laden?
What if the US has signed an agreement with the foreign government to use
its legal process, then fails to?
Should this be the basis for excluding the evidence if it would otherwise
Does the Silver Platter doctrine apply to foreign police or governments?
How would the joint venture limitation apply?
What is the "shocks the conscience" exception to the silver
What was shocking about United States v. Fernandez-Caro, 677 F. Supp. 893
(S.D. Tex. 1987)?
He was tortured to get a confession by the Mexican police,
which was obvious to the US authorities
Has this been accepted in many cases?
Is this an issue in the Guantanamo detainee trials?
Yes, a US prosecutor refused to prosecute at least one case
because of torture