Court Slashes Constitutional Curbs on U.S. Agents Abroad

In a decision that bolsters the Bush Administration’s aggressive pursuit of the drug war in Central and South America, the Supreme Court ruled Wednesday that the Constitution’s ban on “unreasonable searches and seizures” does not protect foreign citizens abroad.

The 6-3 ruling grew out of the pursuit of Mexican drug traffickers who murdered U.S. drug agent Enrique Camarena, but it may have more impact on the prosecution of ex-Panamanian strongman Manuel A. Noriega.

Lawyers for Noriega contend that U.S. agents violated the Fourth Amendment’s ban on unreasonable searches and seizures when they took thousands of documents and other evidence from his home and offices in Panama to bolster their drug-trafficking case against him in Miami.

But Chief Justice William H. Rehnquist said that foreign citizens like Noriega have no constitutional right to protest illegal seizures by U.S. agents abroad.

“The purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own government,” Rehnquist said. “It was never suggested that the provision was intended to restrain the actions of the federal government against aliens outside of the United States’ territory.”

In dissent, the three liberal members of the court said that, if the U.S. government is going to extend the reach of U.S. law abroad, it must live by the restraints of the U.S. Constitution.

“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,” Justice William J. Brennan Jr. wrote for the dissenters.

Rehnquist’s opinion set no specific limits on the actions of U.S. agents abroad. If such limits are to be set, he said, they “must be imposed by (the President and Congress) through diplomatic understanding, treaty or legislation.”

In recent months, Bush Administration officials have asserted a broad authority for U.S. agents to operate overseas in pursuit of terrorists and drug criminals.

Although the high court put no legal limits on the government’s authority, officials of the Drug Enforcement Administration say that they are restrained by political considerations.

“We do not operate unilaterally in a foreign country,” DEA spokesman Cornelius Dougherty said. “We are there working with the host government.”

Justice Department lawyers said also that U.S. agents do not undertake criminal investigations abroad without the approval of a high-level inter-agency committee of federal officials.

Rehnquist noted that, after they are brought to the United States to stand trial, foreign citizens have the same constitutional rights as U.S. citizens under the Fifth and Sixth amendments. These include the rights to have a lawyer, to confront witnesses against them and to be protected from self-incrimination.

He noted also that illegal aliens living in the United States are protected by the Fourth Amendment.

The case arose in January, 1986, when Mexican police officers, working with U.S. agents, arrested drug-trafficking suspect Rene Verdugo Urquidez in Mexico. A year before, DEA agent Camarena had been kidnaped and murdered near Guadalajara, and Verdugo was considered a suspect in that murder.

To gather more evidence against him, DEA agents and Mexican policemen searched his home in Mexicali and found ledgers documenting marijuana shipments.

When Verdugo was indicted in San Diego for drug trafficking, his lawyers said that the evidence taken from his home should be suppressed because it had been seized illegally. U.S. District Judge J. Lawrence Irving agreed, concluding that a search without a warrant violated the Fourth Amendment.

In 1988, the U.S. 9th Circuit Court of Appeals, based in San Francisco, affirmed that conclusion on a 2-1 vote. “We cannot relieve the government from its obligation to obtain a search warrant simply because the place to be searched by the government is outside this country,” the appeals court said.

In a separate indictment, Verdugo was charged along with two others in federal court in Los Angeles with involvement in the Camarena murder. Two years ago, he was convicted by a jury and sentenced to 240 years in prison.

Despite that, the Justice Department worried that the 9th Circuit’s ruling, if followed, could crimp overseas drug investigations. It appealed the case (U.S. vs. Verdugo Urquidez, 88-1353) to the high court.

The DEA told the Supreme Court that it operates in 45 countries and arrested 1,200 narcotic suspects abroad in 1988. Requiring agents to get search warrants from U.S. courts would be time-consuming and wasteful, Justice Department lawyers argued.

Rehnquist’s opinion freeing the government from that obligation was joined by Justices Byron R. White, Antonin Scalia, Sandra Day O’Connor and Anthony M. Kennedy. Justice John Paul Stevens agreed with the judgment but did not sign Rehnquist’s broad opinion.

Atty. Gen. Dick Thornburgh applauded the ruling. “This decision will clarify and assist our international cooperative law enforcement efforts, particularly in overseas drug cases,” he said in a statement. “Drug traffickers and terrorists will take no cheer from the court’s opinion.”

Patrick Q. Hall, a San Diego lawyer who represented Verdugo, said he was not surprised that his client lost but added that he was disturbed by the sweep of the court’s opinion. “This will allow agents to commit whatever violations they want overseas and not be accountable to anyone,” Hall said.

In a second ruling on the Fourth Amendment, the court said that police officers who enter a house with an arrest warrant may conduct a “protective sweep” of all the rooms if they have reason to fear that another suspect may be lurking on the premises. On a 7-2 vote, the justices reversed a Maryland court decision that said policemen may not search other rooms (Maryland vs. Buie, 88-1369).

In addition, the court upheld Pennsylvania’s death-sentencing law against a challenge that it took the decision out of the hands of the sentencing jury. The law permits juries to consider both “aggravating” and “mitigating” evidence when deciding whether to send a murderer to death or to life in prison. But, if the defense lawyer offers no mitigating evidence in his client’s behalf and the jury concludes there is some aggravating evidence, the law says that the “verdict must be a sentence of death.”

In the past, the court has struck down laws that mandate death for certain crimes, but Rehnquist said this law was not unconstitutionally mandatory. In writing for a 5-4 majority, he said that Pennsylvania allowed jurors to consider all evidence on both sides before making their decision (Blystone vs. Pennsylvania, 88-6222).