Posted on 12/28/2005 6:50:02 PM PST by PerConPat
Wed Dec 28, 5:35 PM ET WASHINGTON (Reuters) - The U.S. government on Wednesday asked the Supreme Court to transfer American "enemy combatant" Jose Padilla from U.S. military custody to federal authorities in Florida -- one week after an appeals court refused a similar request.
In a filing to the high court, Solicitor General Paul Clement asked for Padilla's release so he can stand trial on charges of being part of a support cell providing money and recruits for militants overseas.
Padilla was indicted last month in Florida for conspiracy to murder and aiding terrorists abroad but the charges make no reference to accusations made by U.S. officials after his arrest in May 2002 that he plotted with al Qaeda to set off a radioactive "dirty bomb" in the United States.
Last week, in a rebuke to the Bush administration, a U.S. appeals court in Richmond, Virginia, denied the Justice Department's request to approve his transfer from military to civilian custody...
(Excerpt) Read more at news.yahoo.com ...
COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES
By DAVID BURNHAM, SPECIAL TO THE NEW YORK TIMES (NYT) 1051 words Published: November 7, 1982
A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.
Hi, lugsoul.
No president has ever ceded his authority under the Constitution to any court or Congress.
Why do you think this isn't a "real" war as the term is used in the Constitution?
United States v. Jabara, 644 F.2d 574
The difference between the surveillance conducted on Abdeen Jabara (the guy referenced in your link) and the "warrantless" surveillance in question now is that, in fact, no direct surveillance was conducted on Jabara.Rather, the NSA was monitoring international communications for certain key words, and intercepting those communications that contained those key words. And some of Jabara's communications were thus intercepted in what was a random, anonymous NSA sweep. His communications were then shared, without warrant, between government agencies, and eventually landed with the FBI.
The lower court's decision read:
"We do not believe that an expectation that information lawfully in the possession of a government agency will not be disseminated, without a warrant, to another government agency is an expectation that society is prepared to recognize as reasonable."Thus, according to FISA, the NSA can conduct random and undirected interceptions of foreign communications if those communications contain certain key words. What FISA does not allow is warrantless directed surveillance, that is, a specific wiretap against all communications of a certain person.
Jabara v. Webster, 691 F.2d 272 (6th Cir. 1982).I'm off to see if I can find a link to the case itself.Mr. Jabara was a Detroit attorney of Arab ancestry who sued then FBI Director William Webster and others, including officials of the National Security Agency, for federal civil rights violation concerning their obtaining and use of warrantless National Security Agency intercepts of his telephone calls overseas which were provided to the FBI, and for violation of the federal privacy act - 5 U.S.C. 552a(e)(7).
Jabara won summary judgment in the district court. The 6th Circuit reversed on appeal.
Jabara did not contend that the NSA violated any of his rights by intercepting his overseas phone calls & telegrams. He alleged that the NSA violated his rights by providing the information obtained by the intercepts to the FBI without the FBI obtaining a search warrant for the information. The parties agreed that the contents of the intercepts did not show that Jabara was a foreign agent, and that the government had no information whatever tending to show that Jabara was a foreign agent.
The 6th Circuit found that Jabara did not have a reasonable expectation of privacy in the content of his messages once they were in the NSA's possession, specifically that he could not reasonably expect the NSA not to share that information with other agencies.
It is my initial opinion, upon a quick reading of this case, that the NY Times article erred in stating that the 6th Circuit found that the NSA's intercepts of Jabara's messages was constitutional. The 6th Circuit simply found that because Jabara did not challenge its constitutionality, "... we may therefore take it as a given that the information was lawfully in the hands of the NSA."
So the NY Times article in 1982 about this case may establish that the NY Times invented phony indignation last week over non-news about NSA intercepts, but the Jabara v. Webster ruling itself did not address the constitutionality of the NSA's intercepts.
#7 from Ron Wright on December 23, 2005 11:59 PM
It didn't have as many eminations and penumbras as it does now.
Padillawas arrested in Chicago. His lawyers filed a petition for habeas corpus in New York. The federal court in New York, and the U.S. Court of Appeals for the Second Circuit, both held that a U.S. citizen arrested on American soil cannot be held as an enemy combatant. The Government appealed to the Supreme Court, which reversed, 5-4, solely on the ground that the federal courts in New York had no jurisdiction over Padilla's habeas petition because Padilla was not being held in New York (he is being held in a Navy brig in South Carolina).
Padilla's lawyers then re-filed his habeas in South Carolina. The Fourth Circuit held (contrary to the Second Circuit's earlier ruling) that Padilla could lawfully be held as an enemy combatant. Padilla asked the Supreme Court to hear the case again, and, the day before its answer in the Supreme Court was due, the Government asked the Fourth Circuit to release Padilla from military custody so it could try him in a civillian court (on different charges, not the "dirty bomb" allegations that led them to seize him initially).
The Fourth Circuit refused, saying that Padilla was entitled to have the Supreme Court consider the issue which the Fourth Circuit had already ruled on.
A preliminary question presented on this appeal is whether this court can, as contended by defendants, properly consider in camera the classified appendix that defendants filed in the district court. Jabara's position is that this court should not consider the materials in the classified appendix at all unless the materials are made available to him or at least to his counsel subject to a protective order. The district court determined (75 F.R.D. 475, 487 (1977)) that these materials, because they are properly protected by the state secret privilege, should be submitted in camera; this was done without access by Jabara or his counsel. We conclude that the district court was correct in its ruling and, further, that this court likewise may properly receive in camera and so consider such materials in the classified appendix. United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); and Halkin v. Helms, 598 F.2d 1 (D.C.Cir.1978).II.
To understand the fourth amendment issue raised by the NSA's interception of Jabara's communications and supplying these to the FBI, all without a warrant, it is necessary briefly to describe the factual background of this claim and then to outline the contentions of the parties.
The NSA intelligence gathering operation is described sufficiently for present purposes in Halkin, 598 F.2d at 4, as follows (footnote omitted):
A brief description of NSA and its functions is appropriate. NSA itself has no need for intelligence information; rather, it is a service organization which produces intelligence in response to the requirements of the Director of Central Intelligence. Intelligence Activities: Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the U. S. Senate, 94th Cong., 1st Sess. Vol. V at 9 (1975) (Hearings). The mission of the NSA is to obtain intelligence from foreign electrical communications. Signals are acquired by many techniques. The process sweeps up enormous numbers of communications, not all of which can be reviewed by intelligence analysts. Using "watch-lists"-lists of words and phrases designed to identify communications of intelligence interest-NSA computers scan the mass of acquired communications to select those which may be of specific foreign intelligence interest. Only those likely to be of interest are printed out for further analysis, the remainder being discarded without reading or review. Intelligence analysts review each of the communications selected. The foreign intelligence derived from these signals is reported to the various agencies that have requested it (Hearings at 6). Only foreign communications are acquired, that is, communications having at least one foreign terminal (Hearings at 9).On November 1, 1971, the FBI, without a warrant, requested the NSA to supply it with the contents of Jabara's telegraphic communications sent overseas, and the NSA complied by furnishing the FBI with summaries of six of such communications.
Defendants contend that the fourth amendment does not apply to and limit NSA's gathering of foreign intelligence. They also contend that, in any event, the facts surrounding the acquisition by the NSA of overseas telegraphic communications such as those sent by Jabara are subject to the state secret privilege.
Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA. What Jabara does contend, and the district court agreed, is that his rights were violated when the NSA turned over the information, without a warrant, to the FBI. Defendants, on the other hand, contend that, since the NSA had lawfully intercepted and had made a record of the content of Jabara's communications, the fourth amendment was not implicated when the FBI requested and obtained the summaries from the NSA. This is so, defendants contend, because there simply was no "search" or "seizure" when this information was turned over to another agency of the government.
Defendants still further contend that, even if there was a "search" or "seizure" when the FBI obtained the summaries from the NSA, a warrant was not required because there is a "foreign agent" exception to the warrant requirement and the foreign agent exception was applicable here since, at the time the FBI made the request for the summaries, it had reasonable cause to believe that Jabara was in fact a foreign agent. Jabara, on the other hand, contends that there is no foreign agent exception to the warrant requirement and that, in any event, at the time the FBI made the request, it had no reasonable cause to believe that he was a foreign agent.
In connection with defendants' contention that the FBI had reasonable cause to believe that Jabara was a foreign agent when it requested the summaries, there is a threshold procedural issue. After the district court had made its decision that Jabara's fourth amendment rights were violated when the summaries were supplied to the FBI (476 F.Supp. 561 (1979)), defendants moved for reconsideration and filed additional open and in camera affidavits ^6 to support their contention that, at the time the FBI made the request for the summaries, it had reasonable cause to believe that Jabara was a foreign agent. The defendants argued, in support of their motion to reconsider, that they had been surprised by the court's decision that the FBI's acquisition of the summaries was a fourth amendment violation since they had thought that the controlling issue was the legality of the NSA's interception of the overseas telegraphic communications. Defendants further argued that, since the NSA's interception of the overseas telegraphic communications in performance of its foreign intelligence function did not invade Jabara's fourth amendment rights whether or not Jabara was a foreign agent, they had no reason to emphasize the FBI's reasonable belief that he was. The district court, in its unreported memorandum denying the motion to reconsider (App. at 190), determined that the question whether there was cause to believe Jabara was a foreign agent had been an issue in the case and that it had theretofore determined (75 F.R.D. at 493) that, in the record then before it, there was no evidence that Jabara was connected with or was a foreign agent. ^7 The district court further determined that the additional affidavits executed by FBI agent French and filed in support of the motion to reconsider (as proof of a reasonable belief that Jabara was a foreign agent) contained no information that had not been available to defendants throughout the litigation. The district court denied the motion to reconsider because the foreign agent status of Jabara had been in issue and because the information in the additional affidavits had been available to defendants prior to the grant of summary judgment. ...
The district court, in determining that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications, distinguished the holding of the District of Columbia Circuit in Halkin v. Helms, 598 F.2d 1 (1978). There the court held (see note 5 herein at page 275) that application of the state secret privilege required dismissal of plaintiffs' claims based on alleged interception by the NSA of their overseas communications because the fact of interception need not be and was not divulged. Here, on the other hand, defendants had divulged the interception and later transmittal to the FBI. Thus, the district court reasoned, the state secret privilege was no impediment to the adjudication of Jabara's fourth amendment claim. The district court went on to hold, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the fourth amendment was implicated since Jabara had a reasonable expectation of privacy with respect to his overseas telegraphic communications. The district court further held that, since the record, classified or otherwise, did not reveal evidence that Jabara was a foreign agent or was acting in collaboration with a foreign agent, even if there is a foreign agent exception to the warrant requirement, the exception could not be applied here. The district court therefore granted summary judgment and injunctive relief to Jabara. 476 F.Supp. at 577-579.
As heretofore stated, Jabara does not contend on appeal that the NSA's interception of his foreign telegraphic communications violated his fourth amendment rights, and therefore we may take as a given the proposition that the NSA lawfully received and was in possession of the communications. From this proposition defendants argue, we think correctly, that Jabara's fourth amendment rights were not violated when the summaries were turned over to the FBI because this was not a "search" or "seizure" within the meaning of the amendment. This is a clear implication of such decisions as United States v. Gargotto, 476 F.2d 1009 (6th Cir. 1973), cert. denied, 421 U.S. 987, 95 S.Ct. 1990, 44 L.Ed.2d 477 (1975). There an arson investigator gathered some papers from the floor of the burned building as evidence of the cause of the fire. These papers were later turned over to federal agents when they appeared to be gambling records. The court held that the papers were lawfully in the possession of the arson investigator under the "plain view" exception. It further held that the federal agents lawfully obtained possession from the arson investigator, stating (476 F.2d at 1014):
Evidence legally obtained by one police agency may be made available to other such agencies without a warrant, even for a use different from that for which it was originally taken. Gullett v. United States, 387 F.2d 307 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968).
Thank you for a concise explaination. I waded through the associated links and did not find such a clear summary on this issue.
No, that is not the case. The underlying issue is that the Administration has claimed that Padilla is an illegal combattant and has held him in military custody under this claim. In order to avoid the SC adjudication of this issue, the Administration is now trying to transfer him to civilian custody under civilian charges, making moot the SC case regarding military custody.
This is the Department of Justice playing games with itself. The problem is that one way or another it is likely to outsmart itself and lose.
Hell in a handbasket. Are we at war or not?
No he didn't. He just told the adminstration that they chose the game, cut the deck, dealt the cards, and now they have to play the hand.
Bump for later read tomorrow; although I think it's a little over my head.
Whoever composed the summary I posted at 88 has accurately represented the case. I have to admit though, the case has an Alice in Wonderland aura about it. I say this due to the rationale given for concluding that a certain type of NSA surveillance is constitutional.
Jabara does not contend on appeal that the NSA's interception of his foreign telegraphic communications violated his fourth amendment rights, and therefore we may take as a given the proposition that the NSA lawfully received and was in possession of the communications.In short, the Court says that the interception is constitutional because Jabara didin't assert otherwise. "You snooze, you lose." Once lawfully intecepted, goes the case, the government is free to share the data with all enforcement agencies.
So if these new defendants, who have been captured through the use of wiretaps make the claim the wiretaps were illegal, where do we stand, based on the "snooze/lose" scenario?
Well, we don't have any defendants confronted with evidence obtained from the recently-leaked NSA wiretap activity, but assuming some surface ...
The Jabara case is not useful, because the contention that NSA wiretaps are constitutional was not tested there. Also, the NSA wiretaps at Jabara had a "random" quality to them; Jabara was not a target of a wiretap. A loose corollary is DUI roadblocks - they don't target anybody, they are random.
My "snooze/lose" comment was just a reflection that Jabara never asserted the NSA random search violated his 4th amendment rights. The court construed the absence of argument as an admission that the facts obtained in the NSA search were legally obtained. Once legally obtained, the data can be shared w/o a warrant.
Another interesting part of the case is that neither Jabara nor his counsel were ever permitted to see parts of the evidence used to convict him, because the evidence was protected by state secret priviledge. I assume that this evidence was information that substantiated the reliability of the intercepted transmission; and even if Jabara had that information, it would not provide a defense to the opinion rendered by the appeals court.
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