Page 238 - Privacy in a Cyber Age Policy and Practice

226 NOTES

132. It was initially unclear whether Verdugo would evolve into a general rule or a
fact-specific finding, so I think a clarifying point is in order. In order to draw
the conclusion that the finding does in fact limit Fourth Amendment rights
this broadly, it would be necessary to also provide evidence that the finding
has since been interpreted as a general rule rather than a fact-specific finding.
A wide range of dissenting and concurring opinions written by the various
justices has apparently ‘muddied the water’ and led Verdugo to be understood
to apply in a “diverse array” of situations.
133. This is a reference to the eight Nazis who came entered the United States
via submarine with explosives and instructions to destroy vital war-time
infrastructure. President Roosevelt set up a military commission for their
prosecution. Stuart Taylor Jr., “The Bill to Combat Terrorism Doesn’t Go Far
Enough,” National Journal, October 29, 2001, http://www3.nationaljournal.
com/members/buzz/2001/openingargument/102901.htm.
134. Anderson makes a similar point. The constitutional rights and criminal
protections granted to American citizens ‘have developed within a particu-
lar political community, and fundamentally reflect decisions about rights
within a fundamentally domestic, democratic setting in which all of us
have a stake in both side of the equation . . . because we are part of the
political community which must consider both individual rights and col-
lective security . . . Terrorists who come from outside this society . . . cannot
be assimilated into the structure of the ordinary criminal trial.” (Kenneth
Anderson, “What To Do with Bin Laden and Al Qaeda Terrorists?: A Quali-
fied Defense of Military Commissions and United States Policy on Detainees
at Guantanamo Bay Naval Base,” Harvard Journal of Law and Public Policy
[2001–2002]: 610.)
135. United States v. Verdugo-Urquidez, 856 F.2d 1214, 1218 (9th Cir. 1988).
136. Ibid.
137. Ibid.
138. Mary Lynn Nicholas, United States v. Verdugo-Urquidez: Restricting the Bor-
ders of the Fourth Amendment, Fordham International Law Journal 14/1
(1990): 270.
139. Ibid.
140. “H.R. 6304 (110th): FISA Amendments Act of 2008,” http://www.govtrack.
us/congress/bills/110/hr6304/text.
141. Ibid.
142. “50 USC § 1801 – Definitions,” Legal Information Institute, http://www.law.
cornell.edu/uscode/text/50/1801.
143. Barton Gellman and Laura Poitras, “U.S., British Intelligence Mining Data
from Nine U.S. Internet Companies in Broad Secret Program,” The Wash-
ington Post, June 6, 2013, http://www.washingtonpost.com/investigations/us
-intelligence-mining-data-from-nine-us-internet-companies-in-broad-secret
-program/ 2013/06/06/3a0c0da8-cebf-11e2-8845-d970ccb04497_story_1
.html.
144. “Letter from the Honorable Reggie B. Walton to Senator Patrick Leahy”
(2013), https://www.fas.org/irp/news/2013/07/fisc-leahy.pdf.