Case Who and Facts Test Holding Type

Where
Keith Domestic -US Citizen -Is it domestic - 4th Amendment SURVEILLANCE
(SCOTUS -Evidence at trial: tape surveillance for national governs domestic (electronic)
1972) obtained without a security? intelligence
warrant If so, prior judicial -Congress did not
approval required create an exception to
(something like a Title III for national
warrant) security for domestic
surveillance (simply did
not want to legislate)

Truong (4th Domestic -Non-US citizen passing
Cir. App. info to informant
1980) overseas.
-Surveilled electronically
without a warrant.
-Original goal:
intelligence; switches to
criminal investigation at
a certain point.
Ehrlichman Domestic - Executive officers
(D.C. App. broke into US citizen’s
1976) office to obtain records
of a patient who leaked
docs to media
Smith Domestic -Gov’t requested pen
(SCOTUS register records (do not
1979) disclose contents of calls,
just numbers dialed)
without a warrant
-Primary Purpose Test: The law of intelligence SURVEILLANCE
Intelligence gathering should be (electronic)
gathering: 4th shaped by what the
amendment warrant not government is
necessary attempting to do with
Criminal the knowledge it is
Prosecution: once trying to obtain.
purpose shifts, 4th
amendment warrant
necessary
-Is it domestic physical -Unclear if 4th SURVEILLANCE
surveillance for national amendment exception (physical)
security? to physical searches for
If so, presidential national security, but if
authorization required there is, President needs
to specifically authorize
-Is there a legitimate No reasonable SURVEILLANCE
expectation of privacy? expectation of privacy (electronic)
If not, no warrant in information given to
necessary. or held by 3rd parties.
US v. Maynard Domestic -Is the surveillance Use of GPS to SURVEILLANCE
(Jones) (DC constant? undertake constant (electronic/physica
Circuit 2011)  Need a warrant surveillance of a l)
suspect must get a
warrant, even though
physical surveillance
would not require a
warrant
Reid v. Covert US Persons - Women killed their -Is it a US person being -Courts of law alone ACCESS TO
(SCOTUS on US servicemen husbands tried for breaking a US have the power to try COURTS (US
1957) military bases while living and law? civilians for their Person, domestic
abroad stationed overseas; tried Protected by the Bill offenses against the and international)
overseas on US military of Rights United States: US is a
bases under military law creature of the
because the crimes were constitution and its
committed on the citizens abroad subject
overseas bases, petition to Bill of Rights
for habeas (5th and 6th -Military bases are US
amendment rights land
violated)
Verdugo- Non-US - DEA agents executed a -Is the person affected a 4th amendment does SURVEILLANCE
Urquidez Person search of a Mexican member of the class of not apply to the search (physical)
(SCOTUS internationally citizen in Mexico persons part of national and seizure by the US
1990) without a warrant from a community or who of property owned by a
US court. have otherwise nonresident alien and
developed a sufficient located in a foreign
connection with this country
country to be
considered part of that
community?
If not, not due
protections of Bill of
Rights
In Re TerroristUS Person Working with Kenyan
Bombings of internationally authorities, U.S. officials
US Embassies searched D’s home in
in East Africa Nairobi, pursuant
(2nd Cir. 2008) Kenyan warrant (but
without a US warrant). D
was not present during
the search of his home.
Rosen US Persons -Charged with violating a
(E.D.Va. 2006) domestically Espionage Act to
communicate national
defense information to
someone not authorized
to receive it
-Gov't got orders from
FISC, under FISA,
authorizing physical
searches and electronic
surveillance
In Re Sealed
Cases (FISC
2002)
Is it an overseas search Constitution doesn't SURVEILLANCE
of a US citizen? impose a warrant (electronic and
Needs to satisfy 4th requirement here; FISA physical (FISA))
Amendment statute just builds in a
reasonableness level of statutory
requirement. protection over and
above baseline supplied
by constitution.
Is there PC to believe FISC had PC to believe SURVIELLANCE
targets are agents of a defendants were agents (electronic and
FP? of a foreign power physical (FISA))
If yes, FISA warrant when granting warrant.
proper
Significant purpose test: -FISA did not require SURVEILLANCE
Is gov't entertaining a government to
realistic option of demonstrate that its
dealing with an agent of primary purpose in
a FP other than through conducting electronic
criminal prosecution? surveillance was not
If yes, foreign criminal prosecution
intelligence collection -Patriot Act's
does not need to be amendment to FISA,
primary purpose of permitting government
investigation to conduct surveillance
of agent of foreign
power if foreign
intelligence is

Doe v. US Persons US ISPs issued NSLs
Ashcroft (people and complaining that:
(S.D.N.Y. telecoms) -Subscribers’ 1st
2004) domestically amendment rights may
be violated because there
is not judicial review
(chilling subscribers); -
ISP’s 1st amendment
rights are being violated
by this gag order
Arnold (Cal. US Person US Person returning
2008) entering the from trip; laptop was
US (at border) seized, searched, and
child porn found on it
without a warrant
Farag US Persons Arab men switching
(E.D.N.Y. on a domestic seats; speaking a mixture
2008) flight of Arabic and English;
checking watch; deleting
cell phone numbers upon
landing; electing to sit in
a middle seat
“significant purpose” of
such surveillance, did
not violate Fourth
Amendment.
-National Security SURVEILLANCE
Letter provision (national security
forbidding disclosure letters)
violated Fourth
Amendment as applied
-Disclosure bar was not
narrowly tailored to
further Government's
interest in protecting
the integrity and
efficacy of international
terrorism and
counterintelligence
investigations, in
violation of First
Amendment free
speech protections
At the border, the test is Reasonable suspicion is SURVEILLANCE
not intrusiveness, but a not needed for customs (physical, border)
more general officials to search
laptop
Probable cause: need Tacking together SEIZURE (arrest)
reasonable suspicion benign circumstances to
create a great number
of “suspicious”
inferences does not
create PC
MacWade (2nd US Persons Random subway Is this regime serving a SURVEILANCE
Cir. 2006) domestically searches by LE in NYC purpose different from (physical searches)
criminal investigation?
If yes, balance:
-Weight/immediacy of
gov't interest
-Nature of privacy
interest alleged
-Character of intrusion
imposed
-Efficacy of the search
in advancing the
interest
Milligan US Person Habeas corpus Is there a real prospect President has the DETENTION
(SCOTUS domestic suspended during the of getting justice in authority to suspend the (domestic)
1866) Civil War by the some other way than a writ of habeas corpus,
President; Milligan, military tribunal/are but unless the civil
sympathizer (but not courts open and courts are actually
enemy combatant) functioning? closed, they are
arrested and detained. Then denial of that perfectly competent to
State not an active zone option to a US person is try this case, and
of hostilities and end of unconstitutional. should-no right to
civil war hostilities. detain a US citizen
indefinitely
Quirin US and non- German spies caught in Citizenship irrelevant: because being charged DETENTION
(SCOTUS US Persons plainclothes (losing legal If an enemy combatant with violating laws of (domestic)
1942) domestic combatant status while violating the laws of war and because
doing so) on US soil war, eligible to be tried Congress did not mean
during WWII (beginning by military to extend 5th and 6th
of US involvement) commission. amendments to trial by
military commission,
proper to try them by
military commission
Hamdi US person US citizen, captured on -Who can be detained? -AUMF authorizes the Detention (US
(SCOTUS battlefield the battlefield in Individuals who are detention of Hamdi Person, domestic,
2004) Afghanistan, moved to “part of or supporting because detention is a international)
GTMO, then held on a forces hostile to the US fundamental incident of
military brig on SC as an or coalition partners” in waging a war (act of
enemy combatant (to Afghanistan who are congress allowing
insulate GTMO from “engaging in an armed detention of a US
habeas petitions) conflict against the citizen)
U.S.” -Some level of DP
-What level of DP is required, not to extent
required? of full criminal trial.
 Balancing between: -Limited to detention
Private interest affected for the duration of
(risk of erroneous conflict for combatants
deprivation, interest in captured on the
life and liberty) AND battlefield.
Gov't's asserted interest
and burdens gov't
would face in providing
greater process
Padilla (4th US citizen on Arrested in O’Hare when 4th Circuit upheld DETENTION (US
Cir. 2005) US soil returning from Pakistan indefinite detention Person, domestic)
(released before
SCOTUS could rule)
Al-Marri(4th US Person on Resident alien arrested Different for each Authority to detain DENTENTION
Cir. 2008) US soil for credit card fraud and judge? militarily, but due (US Person,
lying to the FBI process standards not domestic)
met
Eisentrager Non-US Post-WWII, German -Are they a US Person Constitution does not DENTENTION
(SCOTUS persons soldiers fighting after or on US soil? grant aliens the right to (Non-US persons
1950) international Germany had already If neither, no file habeas petitions. international)
surrendered, never Constitutional right to Federal courts will not
present on US soil, file a habeas petition. be open to detainees
 habeas petition. who have been tried by
US military tribunals
abroad.
Boumediene Non-US Aliens detained at Were detainees -Suspension Clause has DETENTION
(SCOTUS persons, Guantanamo after being afforded some sort of full effect at GTMO
2008) battlefield/inte captured in Afghanistan process akin to habeas? -Aliens detained as
rnationalG or elsewhere abroad and If not, process enemy combatants
TMO designated enemy unconstitutional. GTMO were entitled to
combatants by CSRTs. privilege of habeas
Boumediene, a Bosnian corpus to challenge
of Algerian decent, was legality of their
arrested by US forces in detention;
Bosnia in fall of 2001 & -MCA clause denying
sent to Gitmo as an federal courts of
enemy combatant. He jurisdiction to hear
reportedly was under habeas corpus actions
suspicion for making lots that were pending at the
of phone calls to time of its enactment
Afghanistan and effected
Pakistan. Bosnian courts unconstitutional
found no evidence suspension of writ of
against him. habeas corpus.
Ghailani I Alien at Assisted AQ with East A defendant is not INTERROGATIO
(SDNY 2010) GTMO Africa bombings suppressible fruit, as in N
what he said elicited by
torture enough that he
is the fruit of the torture
and the case should be
dismissed
Ghailani II Alien at Assisted AQ with East Was the an Gov’t did not prove INTERROGATIO
(SDNY 2010) GTMO Africa bombings incriminating statement attenuatedness of N
obtained through testimony by KSM,
coercion? would violate 5th
 If yes, Fifth amendment to use even
Amendment right if obtained for
against self- intelligence purposes
incrimination prohibits
use of the statement or
its fruits (evidence
derived from any
statement coerced from
the defendant, unless
the evidence has been
come at instead by
means sufficiently
distinguishable to be
purged of the primary
taint). Burden on gov’t.
Humanitarian Relief organizations that ? -No DP violation: CRIMINAL
Law Project support two FTOs (that statutory terms clear
(SCOTUS engage in humanitarian here in application to
2010) AND terrorist work) P's proposed conduct
challenging statute that -Support is not
forbids proving those equivalent to freedom
FTOs with “training” in of speech: support is
the form of legal training fungible and any
to petition the UN for support devoted to
relief, etc. innocent endeavors by
an FTO could be used
(or enable other funds)
to be used for the
terrorist activities.
-No freedom of
association violation:
Congress allowed to
forbid training, even if
 in legal techniques
Bin Laden Non-US US laws can reach CRIMINAL;
person outside outside the US; limit is EXTRATERRITO
the US due process RIALITY
Moussaoui (4th US Person In order to mount his government's rightful CRIMINAL
Cir. 2004) domestic defense, D needs to be exercise of its
able to depose KSM who prerogative to protect
will then be able to show national security
that he was not in fact an interests by refusing to
instrumental planner of produce the witnesses
9/11. warranted use of
written summaries of
the witness' statements
made over the course of
several months in lieu
of their deposition
testimony.
Lee (D. N.M. US Person, Lee accused of passing Classified Information CRIMINAL
2000) domestic classified information Procedures Act does
not violate privilege
against self-
incrimination, the 6th
amendment right to
confront, and due
process; just general
disclosure of what
classified info expect to
use at trial, not what
will cross on, and not
one sided burden on
defense.
Abu Ali (4th. US Person, Abu Ali was born in US, Can use CIPA unless it Redaction of CRIMINAL
Cr. 2008) arrested went to Saudi Arabia for violates Confrontation information itself is not
 internationally college, became Clause a violation of CIPA, but
, turned over affiliated with AQ cell, there is a violation of
to US arrested by Saudi the Confrontation
officials and turned over Clause when
to the US prosecution only
provides the redacted
version to the defense,
and give the jury access
to the unredacted
version
Rosen US Persons Two employees for pro- Balancing test: Espionage Act upheld CRIMINAL
(E.D.Va. 2006) domestically Israel lobby (AIPAC) in -Assessment of the as constitutional as
DC are being prosecuted competing societal applied to non-officials
for the violations of the interests transmitting oral
espionage act, received Defendants: information that they
confidential information Significant, implicate KNOW is potentially
from a US government core values 1st harmful to U.S.
official and then passed amendment designed to
the information along to protect
Israeli officials and the Gov’t: Not just gov’t
media (but private secrets but NDI, no
citizens, not gov’t matter value of an
officials) informed public, may
be restricted in service
of nation’s security
-Narrowly tailored to
instances in which need
for secrecy is legitimate
Relationship of gov’t
to person whose First
Amendment rights are
implicated (those
w/official gov’t
 positions and those
outside the gov’t)
Must be info person
KNOWS, if disclosed,
is potentially harmful to
the U.S.
Boim (7th. Cir. US person Kid killed by members -To give money to an -Donation to terrorist CIVIL
2008) killed of Hamas; family sued organization that group that targets
overseas foundations allegedly commits terrorist acts is Americans outside
supporting Hamas not intentional United States is within
misconduct unless: statute's scope;
Knows that the -Donor's liability
organization engages in requires showing of
such acts OR knowledge or deliberate
Is deliberately indifference
indifferent to whether it -Causation element of
does or not(one knows civil liability statute
there is a substantial could be satisfied by
probability that the defendants' having
organization engages in donated money to
terrorism but does not terrorist organization
care)
-Standard of causation:
 Significantly
enhancing the risk of
terrorist acts
Gates (D.D.C. Sovereign Families of two US Except for immunity of Syrian Arab Republic CIVIL
2008) entity contractors suing Syria foreign sovereign if can be held liable for
international for supporting terrorists state sponsor of money damages to the
that killed their family terrorism families of the two men
members pursuant to the Foreign
Sovereign Immunities
Act