Fourth Amendment Rights for Nonresident Aliens

Abstract

The U.S. National Security Agency has nearly unlimited authority to spy upon citizens of foreign countries while they are outside the United States. It goes almost without saying that such targeting of U.S. citizens, without any hint of individualized suspicion either of criminal wrongdoing or of being a threat to national security, would be constitutionally prohibited under the Fourth Amendment. However, the dominant view in the American legal community is that there is nothing constitutionally wrong, or even suspect, about such targeting of nonresident aliens (NRAs).I contend here that the dominant view of the law is wrong both descriptively and normatively. It is wrong with regard to the proper interpretation of the relevant constitutional case law, because that case law is more open ended and unclear than the dominant view represents it as being. And it is wrong with regard to the underlying legal and moral principles that should guide the interpretation and development of constitutional law. Those principles call for recognizing that NRAs enjoy constitutional protection against unjust harms — a point I argue for in a companion paper, “Constitutional Rights for Nonresident Aliens.” And I argue here that those same principles imply that NRAs enjoy the Fourth Amendment’s prohibition on unreasonable searches and seizures.