United States v. Verdugo-Urquidez/Dissent Brennan

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Today the Court holds that although foreign nationals must abide by our laws even when in their own countries, our Government need not abide by the Fourth Amendment when it investigates them for violations of our laws. I respectfully dissent.

* Particularly in the past decade, our Government has sought, successfully, to hold foreign nationals criminally liable under federal laws for conduct committed entirely beyond the territorial limits of the United States that nevertheless has effects in this country. Foreign nationals must now take care not to violate our drug laws, our antitrust laws, our securities laws, and a host of other federal criminal statutes. The enormous expansion of federal criminal jurisdiction outside our Nation's boundaries has led one commentator to suggest that our country's three largest exports are now "rock music, blue jeans, and United States law." Grundman, The New Imperialism: The Extraterritorial Application of United States Law, 14 Int'l Law. 257, 257 (1980).

The Constitution is the source of Congress' authority to criminalize conduct, whether here or abroad, and of the Executive's authority to investigate and prosecute such conduct. But the same Constitution also prescribes limits on our Government's authority to investigate, prosecute, and punish criminal conduct, whether foreign or domestic. As a plurality of the Court noted in Reid v. Covert, 354 U.S. 1, 5-6, 77 S.Ct. 1222, 1224-25, 1 L.Ed.2d 1148 (1957): "The United States is entirely a creature of the Constitution.  Its power and authority have no other source.  It can only act in accordance with all the limitations imposed by the Constitution." (Footnotes omitted.) See also ante, at 277 (KENNEDY, J., concurring) ("[T]he Government may act only as the Constitution authorizes, whether the actions in question are foreign or domestic"). In particular, the Fourth Amendment provides:

"The right of the people to be secure in their persons,     houses, papers, and effects, against unreasonable searches      and seizures, shall not be violated;  and no Warrants shall      issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to      be searched, and the persons or things to be seized."

The Court today creates an antilogy: the Constitution authorizes our Government to enforce our criminal laws abroad, but when Government agents exercise this authority, the Fourth Amendment does not travel with them. This cannot be. At the very least, the Fourth Amendment is an unavoidable correlative of the Government's power to enforce the criminal law.

The Fourth Amendment guarantees the right of "the people" to be free from unreasonable searches and seizures and provides that a warrant shall issue only upon presentation of an oath or affirmation demonstrating probable cause and particularly describing the place to be searched and the persons or things to be seized. According to the majority, the term "the people" refers to "a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." Ante, at 265. The Court admits that "the people" extends beyond the citizenry, but leaves the precise contours of its "sufficient connection" test unclear. At one point the majority hints that aliens are protected by the Fourth Amendment only when they come within the United States and develop "substantial connections" with our country. Ante, at 271. At other junctures, the Court suggests that an alien's presence in the United States must be voluntary and that the alien must have "accepted some societal obligations." Ante, at 273. At yet other points, the majority implies that respondent would be protected by the Fourth Amendment if the place searched were in the United States. Ante, at 266, 274-275.

What the majority ignores, however, is the most obvious connection between Verdugo-Urquidez and the United States: he was investigated and is being prosecuted for violations of United States law and may well spend the rest of his life in a United States prison. The "sufficient connection" is supplied not by Verdugo-Urquidez, but by the Government. Respondent is entitled to the protections of the Fourth Amendment because our Government, by investigating him and attempting to hold him accountable under United States criminal laws, has treated him as a member of our community for purposes of enforcing our laws. He has become, quite literally, one of the governed. Fundamental fairness and the ideals underlying our Bill of Rights compel the conclusion that when we impose "societal obligations," ante, at 273, such as the obligation to comply with our criminal laws, on foreign nationals, we in turn are obliged to respect certain correlative rights, among them the Fourth Amendment.

By concluding that respondent is not one of "the people" protected by the Fourth Amendment, the majority disregards basic notions of mutuality. If we expect aliens to obey our laws, aliens should be able to expect that we will obey our Constitution when we investigate, prosecute, and punish them. We have recognized this fundamental principle of mutuality since the time of the Framers. James Madison, universally recognized as the primary architect of the Bill of Rights, emphasized the importance of mutuality when he spoke out against the Alien and Sedition Acts less than a decade after the adoption of the Fourth Amendment:

"[I]t does not follow, because aliens are not parties to the     Constitution, as citizens are parties to it, that, whilst      they actually conform to it, they have no right to its      protection.  Aliens are no more parties to the laws than they      are parties to the Constitution;  yet it will not be disputed      that, as they owe, on one hand, a temporary obedience, they      are entitled, in return, to their protection and advantage." Madison's Report on the Virginia Resolutions (1800),     reprinted in 4 Elliot's Debates 556 (2d ed. 1836).

Mutuality is essential to ensure the fundamental fairness that underlies our Bill of Rights. Foreign nationals investigated and prosecuted for alleged violations of United States criminal laws are just as vulnerable to oppressive Government behavior as are United States citizens investigated and prosecuted for the same alleged violations. Indeed, in a case such as this where the Government claims the existence of an international criminal conspiracy, citizens and foreign nationals may be codefendants, charged under the same statutes for the same conduct and facing the same penalties if convicted. They may have been investigated by the same agents pursuant to the same enforcement authority. When our Government holds these codefendants to the same standards of conduct, the Fourth Amendment, which protects the citizen from unreasonable searches and seizures, should protect the foreign national as well.

Mutuality also serves to inculcate the values of law and order. By respecting the rights of foreign nationals, we encourage other nations to respect the rights of our citizens. Moreover, as our Nation becomes increasingly concerned about the domestic effects of international crime, we cannot forget that the behavior of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere. As Justice Brandeis warned in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928):

"If the Government becomes a lawbreaker, it breeds contempt     for law;  it invites every man to become a law unto himself;      it invites anarchy.  To declare that in the administration of      the criminal law the end justifies the means . . . would      bring terrible retribution.  Against that pernicious      doctrine, this Court should resolutely set its face." Id.,     at 485, 48 S.Ct., at 575 (dissenting opinion).

This principle is no different when the United States applies its rules of conduct to foreign nationals. If we seek respect for law and order, we must observe these principles ourselves. Lawlessness breeds lawlessness.

Finally, when United States agents conduct unreasonable searches, whether at home or abroad, they disregard our Nation's values. For over 200 years, our country has considered itself the world's foremost protector of liberties. The privacy and sanctity of the home have been primary tenets of our moral, philosophical, and judicial beliefs. Our national interest is defined by those values and by the need to preserve our own just institutions. We take pride in our commitment to a Government that cannot, on mere whim, break down doors and invade the most personal of places. We exhort other nations to follow our example. How can we explain to others-and to ourselves-that these long cherished ideals are suddenly of no consequence when the door being broken belongs to a foreigner?

The majority today brushes aside the principles of mutuality and fundamental fairness that are central to our Nation's constitutional conscience. The Court articulates a "sufficient connection" test but then refuses to discuss the underlying principles upon which any interpretation of that test must rest. I believe that by placing respondent among those governed by federal criminal laws and investigating him for violations of those laws, the Government has made him a part of our community for purposes of the Fourth Amendment.

In its effort to establish that respondent does not have sufficient connection to the United States to be considered one of "the people" protected by the Fourth Amendment, the Court relies on the text of the Amendment, historical evidence, and cases refusing to apply certain constitutional provisions outside the United States. None of these, however, justifies the majority's cramped interpretation of the Fourth Amendment's applicability.

The majority looks to various constitutional provisions and suggests that " 'the people' seems to have been a term of art." Ante, at 265. But the majority admits that its "textual exegesis is by no means conclusive." Ibid. One Member of the majority even states that he "cannot place any weight on the reference to 'the people' in the Fourth Amendment as a source of restricting its protections." Ante, at 276 (KENNEDY, J., concurring). The majority suggests a restrictive interpretation of those with "sufficient connection" to this country to be considered among "the people," but the term "the people" is better understood as a rhetorical counterpoint to "the Government," such that rights that were reserved to "the people" were to protect all those subject to "the Government." Cf. New Jersey v. T.L.O., 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720 (1985) ("[T]he Court has long spoken of the Fourth Amendment's strictures as restraints imposed upon 'governmental action' "). "The people" are "the governed."

In drafting both the Constitution and the Bill of Rights, the Framers strove to create a form of Government decidedly different from their British heritage. Whereas the British Parliament was unconstrained, the Framers intended to create a Government of limited powers. See B. Bailyn, The Ideological Origins of the American Revolution 182 (1967); 1 The Complete Anti-Federalist 65 (H. Storing ed. 1981). The colonists considered the British Government dangerously omnipotent. After all, the British declaration of rights in 1688 had been enacted not by the people, but by Parliament. The Federalist No. 84, p. 439 (M. Beloff ed. 1987). Americans vehemently attacked the notion that rights were matters of " 'favor and grace,' " given to the people from the Government. B. Bailyn, supra, at 187 (quoting John Dickinson).

Thus, the Framers of the Bill of Rights did not purport to "create" rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing. See, e.g., U.S.C.onst., Amdt. 9 ("The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people"). The Fourth Amendment, for example, does not create a new right of security against unreasonable searches and seizures. It states that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." The focus of the Fourth Amendment is on what the Government can and cannot do, and how it may act, not on against whom these actions may be taken. Bestowing rights and delineating protected groups would have been inconsistent with the Drafters' fundamental conception of a Bill of Rights as a limitation on the Government's conduct with respect to all whom it seeks to govern. It is thus extremely unlikely that the Framers intended the narrow construction of the term "the people" presented today by the majority.

The drafting history of the Fourth Amendment also does not support the majority's interpretation of "the people." First, the Drafters chose not to limit the right against unreasonable searches and seizures in more specific ways. They could have limited the right to "citizens," "freemen," "residents," or "the American people." The conventions called to ratify the Constitution in New York and Virginia, for example, each recommended an amendment stating, "That every freeman has a right to be secure from all unreasonable searches and seizures. . . ." W. Cuddihy, Search andSei zure in Great Britain and the American Colonies, pt. 2, p. 571, n. 129, 574, n. 134 (1974). But the Drafters of the Fourth Amendment rejected this limitation and instead provided broadly for "[t]he right of the people to be secure in their persons, houses, papers, and effects." Second, historical materials contain no evidence that the Drafters intended to limit the availability of the right expressed in the Fourth Amendment. The Amendment was introduced on the floor of Congress, considered by Committee, debated by the House of Representatives and the Senate, and submitted to the 13 States for approval. Throughout that entire process, no speaker or commentator, pro or con, referred to the term "the people" as a limitation.

The Court also relies on a series of cases dealing with the application of criminal procedural protections outside of the United States to conclude that "not every constitutional provision applies to governmental activity even where the United States has sovereign power." Ante, at 268. None of these cases, however, purports to read the phrase "the people" as limiting the protections of the Fourth Amendment to those with "sufficient connection" to the United States, and thus none gives content to the majority's analysis. The cases shed no light on the question whether respondent-a citizen of a nonenemy nation being tried in a United States federal court-is one of "the people" protected by the Fourth Amendment.

The majority mischaracterizes Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), as having "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." Ante, at 269. In Johnson, 21 German nationals were convicted of engaging in continued military activity against the United States after the surrender of Germany and before the surrender of Japan in World War II. The Court held that "the Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States." 339 U.S., at 785, 70 S.Ct., at 947 (emphasis added). As the Court wrote:

"It is war that exposes the relative vulnerability of the     alien's status.  The security and protection enjoyed while      the nation of his allegiance remains in amity with the United      States are greatly impaired when his nation takes up arms      against us. . . .  But disabilities this country lays upon      the alien who becomes also an enemy are imposed temporarily      as an incident of war and not as an incident of alienage." Id., at 771-772, 70 S.Ct., at 940.

The Court rejected the German nationals' efforts to obtain writs of habeas corpus not because they were foreign nationals, but because they were enemy soldiers.

The Insular Cases, Balzac v. Porto Rico, 258 U.S. 298, 42 S.Ct. 343, 66 L.Ed. 627 (1922), Ocampo v. United States, 234 U.S. 91, 34 S.Ct. 712, 58 L.Ed. 1231 (1914), Dorr v. United States, 195 U.S. 138, 24 S.Ct. 808, 49 L.Ed. 128 (1904), and Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016 (1903), are likewise inapposite. The Insular Cases all concerned whether accused persons enjoyed the protections of certain rights in criminal prosecutions brought by territorial authorities in territorial courts. These cases were limited to their facts long ago, see Reid v. Covert, 354 U.S., at 14, 77 S.Ct., at 1229 (plurality opinion) ("[I]t is our judgment that neither the cases nor their reasoning should be given any further expansion"), and they are of no analytical value when a criminal defendant seeks to invoke the Fourth Amendment in a prosecution by the Federal Government in a federal court.

The majority's rejection of respondent's claim to Fourth Amendment protection is apparently motivated by its fear that application of the Amendment to law enforcement searches against foreign nationals overseas "could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest." Ante, at 273-274. The majority's doomsday scenario-that American Armed Forces conducting a mission to protect our national security with no law enforcement objective "would have to articulate specific facts giving them probable cause to undertake a search or seizure," ante, at 274-is fanciful. Verdugo-Urquidez is protected by the Fourth Amendment because our Government, by investigating and prosecuting him, has made him one of "the governed." See supra, at 284, 287. Accepting respondent as one of "the governed," however, hardly requires the Court to accept enemy aliens in wartime as among "the governed" entitled to invoke the protection of the Fourth Amendment. See Johnson v. Eisentrager, supra.

Moreover, with respect to non-law-enforcement activities not directed against enemy aliens in wartime but nevertheless implicating national security, doctrinal exceptions to the general requirements of a warrant and probable cause likely would be applicable more frequently abroad, thus lessening the purported tension between the Fourth Amendment's strictures and the Executive's foreign affairs power. Many situations involving sensitive operations abroad likely would involve exigent circumstances such that the warrant requirement would be excused. Cf. Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967). Therefore, the Government's conduct would be assessed only under the reasonableness standard, the application of which depends on context. See United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 3308, 87 L.Ed.2d 381 (1985) ("What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself").

In addition, where the precise contours of a "reasonable" search and seizure are unclear, the Executive Branch will not be "plunge[d] . . . into a sea of uncertainty," ante, at 274, that will impair materially its ability to conduct foreign affairs. Doctrines such as official immunity have long protected Government agents from any undue chill on the exercise of lawful discretion. See, e.g., Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). Similarly, the Court has recognized that there may be certain situations in which the offensive use of constitutional rights should be limited. Cf. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971) (precluding suits for damages for violations of the Fourth Amendment where there are "special factors counselling hesitation"). In most cases implicating foreign policy concerns in which the reasonableness of an overseas search or seizure is unclear, application of the Fourth Amendment will not interfere with the Executive's traditional prerogative in foreign affairs because a court will have occasion to decide the constitutionality of such a search only if the Executive decides to bring a criminal prosecution and introduce evidence seized abroad. When the Executive decides to conduct a search as part of an ongoing criminal investigation, fails to get a warrant, and then seeks to introduce the fruits of that search at trial, however, the courts must enforce the Constitution.

Because the Fourth Amendment governs the search of respondent's Mexican residences, the District Court properly suppressed the evidence found in that search because the officers conducting the search did not obtain a warrant. I cannot agree with Justice BLACKMUN and Justice STEVENS that the Warrant Clause has no application to searches of noncitizens' homes in foreign jurisdictions because American magistrates lack the power to authorize such searches. See post, at 297 (BLACKMUN, J., dissenting); ante, at 279 (STEVENS, J., concurring in judgment). The Warrant Clause would serve the same primary functions abroad as it does domestically, and I see no reason to distinguish between foreign and domestic searches.

The primary purpose of the warrant requirement is its assurance of neutrality. As Justice Jackson stated for the Court in Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) (footnotes omitted):

"The point of the Fourth Amendment, which often is not     grasped by zealous officers, is not that it denies law      enforcement the support of the usual inferences which      reasonable men draw from evidence.  Its protection consists      in requiring that those inferences be drawn by a neutral and      detached magistrate instead of being judged by the officer      engaged in the often competitive enterprise of ferreting out      crime.  Any assumption that evidence sufficient to support a      magistrate's disinterested determination to issue a search      warrant will justify the officers in making a search without      a warrant would reduce the Amendment to a nullity and leave      the people's homes secure only in the discretion of police      officers. . . .  When the right of privacy must reasonably      yield to the right of search is, as a rule, to be decided by      a judicial officer, not by a policeman or government      enforcement agent."

See also Welsh v. Wisconsin, 466 U.S. 740, 748-749, and n. 10, 104 S.Ct. 2091, 2096-2097, and n. 10, 80 L.Ed.2d 732 (1984); Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564 (1971). A warrant also defines the scope of a search and limits the discretion of the inspecting officers. See New York v. Burger, 482 U.S. 691, 703, 107 S.Ct. 2636, 2644, 96 L.Ed.2d 601 (1987); Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927). These purposes would be served no less in the foreign than in the domestic context.

The Warrant Clause cannot be ignored simply because Congress has not given any United States magistrate authority to issue search warrants for foreign searches. See Fed. Rule Crim.Proc. 41(a). Congress cannot define the contours of the Constitution. If the Warrant Clause applies, Congress cannot excise the Clause from the Constitution by failing to provide a means for United States agents to obtain a warrant. See Best v. United States, 184 F.2d 131, 138 (CA1 1950) ("Obviously, Congress may not nullify the guarantees of the Fourth Amendment by the simple expedient of not empowering any judicial officer to act on an application for a warrant"), cert. denied, 340 U.S. 939, 71 S.Ct. 480, 95 L.Ed. 677 (1951).

Nor is the Warrant Clause inapplicable merely because a warrant from a United States magistrate could not "authorize" a search in a foreign country. Although this may be true as a matter of international law, it is irrelevant to our interpretation of the Fourth Amendment. As a matter of United States constitutional law, a warrant serves the same primary function overseas as it does domestically: it assures that a neutral magistrate has authorized the search and limited its scope. The need to protect those suspected of criminal activity from the unbridled discretion of investigating officers is no less important abroad than at home.

When our Government conducts a law enforcement search against a foreign national outside of the United States and its territories, it must comply with the Fourth Amendment. Absent exigent circumstances or consent, it must obtain a search warrant from a United States court. When we tell the world that we expect all people, wherever they may be, to abide by our laws, we cannot in the same breath tell the world that our law enforcement officers need not do the same. Because we cannot expect others to respect our laws until we respect our Constitution, I respectfully dissent.