Fourth Amendment and Foreigners: Does it Apply?

By:  Joe Wolverton, II, J.D.
Fourth Amendment and Foreigners: Does it Apply?

In light of revelations of NSA surveillance of foreign leaders and people, the question of whether the Fourth Amendment applies to citizens of other countries is being debated.

The National Security Agency’s (NSA) surveillance of foreign leaders has been well publicized. The phones of politicians from Germany to Brazil, from France to Spain, were tapped and the conversations were monitored and recorded by agents of the government of the United States.

Although President Obama has committed to “curbing” the spooks’ unwarranted and out of control surveillance of ostensibly friendly leaders, no such order has to date been issued.

None of the president’s promised “reforms,” however, addresses the problem of the “vacuuming up” of international data from a Fourth Amendment perspective. When it comes to the surveillance of non-Americans and the protections provided by law against such action, relevant provisions of the Foreign Intelligence Surveillance Act (FISA) are most often cited, not the Fourth Amendment or any other part of the Constitution. 

One can assume, therefore, that neither the president nor the heads of the U.S. intelligence agencies believe that the Bill of Rights covers targets residing outside the borders of the United States.

In an opinion piece published in the Washington Post, David Ignatius puts a finer point on the official denial of fundamental rights — in this case, the Fourth Amendment — to foreigners. He writes:

Just considering this question unsettles U.S. intelligence officials, who for years have responded to queries about privacy issues with a bland dismissal. “The Fourth Amendment doesn’t apply to foreigners,” officials will say. The dirty little secret (not so secret anymore) is that the job of spy agencies is to violate other countries’ borders and laws to collect information.

Later, Ignatius draws on the research of a legal scholar regarding the real repercussion of dividing people into various classes: those with rights and those without. 

“Are there to be two classes of people in society — those who ‘deserve’ rights, and have them, and those who do not?” asks my friend Garrett Epps, a professor of constitutional law at the University of Baltimore, in discussing the Fourth Amendment in his new book, “American Epic,” which examines line by line what the Constitution actually says. 

Ignoring this strictly constitutional approach, other writers who have raised the issue of the Fourth Amendment in the context of the NSA’s foreign surveillance typically arrive at a prohibition on such from a decidedly unconstitutional source.

For example, in a blog post he calls “We are all Foreigners: NSA Spying and the Rights of Others,” Georgetown Law School professor David Cole argues for an end to the overseas monitoring based on the following rationales:

First, “The right to privacy, protected in human rights treaties that the US has signed, such as the International Covenant on Civil and Political Rights, is not limited to the people’s leaders, but is said to be a right of all human beings.”

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