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] - http://www.usdoj.gov/olp/generalcrimes2.pdf

These guidelines are aimed at situations where crimes have or may have occurred.

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 involved.

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 security threats.

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?

Yes

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?

Deterrence?

What does this mean?

What does it deter?

How?

Why does it not matter for foreign police?

What about alternatives?

Damage claims?

Disciplining officers who violate rights?

What is wrong with these?

Is there a good faith exception to the exclusionary rule in the US?

Yes

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 Mexico

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 to?

Any person on trial in the US, and US citizens abroad

What did Congress authorize to deal with French attacks on US vessels in 1798?

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 foreign nationals?

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)

US Citizens

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 application questions?

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 abroad?

It is shocking but not illegal

How does the Detainee Treatment Act change that?

Says we cannot use torture

Does it apply to everyone?

Yes

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

Electronic surveillance

Is this a US citizen?

Does FISA address foreign searches?

What does this court assume that means? No limits or usual 4th amendment tests?

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 overseas

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 gathering

Do you think this would still apply, given the rejection of Truong for domestic searches?

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 electronic surveillance?

No

What is the justification for the surveillance?

It was incidental

Does the court accept this?

Why not?

The government knew it who they were listening to and he was a suspect

What could the government have done to cure the problem with the electronic surveillance?

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 intelligence purposes.

Did the court find that the government was acting in good faith?

Yes

What does the court look at to decide if the search of the residence was reasonable?

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 investigation.

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 be admissible?

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 platter doctrine?

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?

No

Is this an issue in the Guantanamo detainee trials?

Yes, a US prosecutor refused to prosecute at least one case because of torture