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).
Bump for later read tomorrow; although I think it's a little over my head.