Posted on 01/03/2006 1:45:06 AM PST by SBD1
Jabara v. Kelley June 13, 1979
CASE SUMMARY
PROCEDURAL POSTURE: Plaintiff citizen filed suit against defendants, the National Security Agency, the Federal Bureau of Investigation, and their agents. Plaintiff raised several constitutional and statutory challenges to various practices employed by defendants in conducting an investigation of him. Plaintiff filed a motion for summary judgment and defendants filed a motion to dismiss and for summary judgment.
OVERVIEW: Plaintiff was an active member of various Arab organizations. Defendants maintained an ongoing investigation of plaintiff and employed a variety of tactics therein. The court granted in part and denied in part the motions by both parties and held that: 1) plaintiff's claims could not be rendered moot because of the likelihood of future investigation and unresolved legal issues; 2) plaintiff presented a justiciable First Amendment claim because the unlawful intrusions exceeded a subjective chill of plaintiff's right of free speech; 3) defendants' motion to dismiss all Fourth Amendment claims based on physical surveillance, use of informers, inspection of bank records, and the maintenance and dissemination of the obtained information was granted because plaintiff had no reasonable expectation of privacy therein; 4) there was a genuine issue of material fact regarding the legitimacy of the investigation and the alleged violation of plaintiff's First Amendment rights; and 5) a warrant was not required for the incidental interception of plaintiff's conversations with the targets of wiretaps because the surveillance was for foreign intelligence purposes.
Clear language of Title III reveals that it did not legislate with respect to national security surveillances and that such surveillances therefore are not subject to the warrant requirements contained in 18 U.S.C.S. § 2518. While Title III does not legislate with respect to the necessity of obtaining a warrant for national security wiretaps, it does provide procedures and remedies applicable to any national security wiretap where a warrant is otherwise required by the constitution.
Because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.
A warrant is not required for foreign intelligence electronic surveillances authorized by the President where the target of the surveillance is an agent of or acting in collaboration with a foreign power.
First, it is clear that the plaintiff's theory of recovery cannot be based on the provisions of Title III. Although Title III requires a warrant for certain types of electronic surveillance, it did not legislate with respect to the President's power to authorize electronic surveillance with respect to matters of national security. 18 U.S.C. § 2511(3). In United States v. United States Court (Keith), 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972), the Supreme Court held that HN8clear language of [**42] Title III reveals that it did not legislate with respect to national security surveillances and that such surveillances therefore are not subject to the warrant requirements contained in 18 U.S.C. § 2518. Accord, Hallinan v. Mitchell, 418 F. Supp. 1056 (N.D.Cal.1976). However, in Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 516 F.2d 594 (1975), (En banc ), a plurality of the Court held that Title III was applicable to any situation where a warrant was constitutionally required for electronic surveillance. In other words, the Court recognized that while Title III does not legislate with respect to the necessity of obtaining a warrant for national security wiretaps, it does provide procedures and remedies applicable to any national security wiretap where a warrant is otherwise required by the constitution.
[*576] Thus, even considering Zweibon, it is clear that Title III does not in and of itself require a warrant for national security investigations. As a result, the issue which must be resolved is whether there is a constitutional basis, aside from Title III, which requires a warrant for electronic surveillance such as that conducted in this case. In Keith, the Court held that [**43] a warrant was constitutionally required for domestic national security wiretaps. However, the Court specifically left open the issue of whether a warrant is required for a foreign national security wiretap:
Because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, (430 F.2d 165 (5th Cir. 1970), rev'd on other grounds 403 U.S. 698, 91 S. Ct. 2068, 29 L. Ed. 2d 810 (1970)), that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence.
the President's authority with respect to the conduct of foreign affairs does not excuse him from seeking judicial approval before instituting a surveillance, at least where the subject of the surveillance is a domestic organization that is not the agent of or acting in collaboration with a foreign power. Id. 170 U.S.App.D.C. at 62, 516 F.2d at 655.
In light of these decisions, the Court is of the opinion that HN10a warrant is not required [**45] for foreign intelligence electronic surveillances authorized by the President where the target of the surveillance is an agent of or acting in collaboration with a foreign power.
n14. From the In camera affidavits it appears that Title III would not provide a separate ground for requiring a warrant in this case in view of the Supreme Court's holding in Keith that national security surveillance conducted pursuant to executive order is not within the ambit of Title III.
SBD
Lincoln didn't need a 'suicide pact' wrt the Constitution. He was intent on murdering it.
A majority SCOTUS ruling in the late 1940s ignored the bleatings of the minority opinion that 'the Constitution is not a suicide pact.' They ruled that the liberties of the people were more important than any threat.
Posted on another thread (by me), and related to Padilla, not the NSA matter, but Congress has managed to keep out of taking a position.
Playing the Padilla case through the speculation forward machine, an astute thinker (not me) said, "Although Congress has not yet passed a 'Detention of Enemy Combatants Act,' there is no reason to think that, in the aftermath of a reversal of the Fourth Circuit in Padilla II, it wouldn't."
How supportive of the WOT is Congress, anyway?
Even the 'reasonable' searches require a warrant based on a sworn afidavit and probable cause.
Read the 4th Amendment. It won't take long.
Inasmuch as FISA itself is not an issue, neither is the EO. THe issue arises because the fact pattern of warrantless surveillance is alleged to be outside of what FISA expressly permits.
I don't know, but we could think of it this way: The President has blinders on to prosecute the WOT by any means necessary, which is not completely a bad thing as it means he's working hard on it. Then we have the courts looking out for us to make sure our rights don't become collateral damage. Then there's Congress on the fence, charged both with looking out for us and giving the President the necessary tools to fight this "war." Sort of balanced, I guess, but we shouldn't complain when the balances kick in.
BTW, I wrote "war" because I'm tired of the "War on XXX" moniker, especially since all previous ones have failed.
Yes, of course I would.
It's not balanced the way you described though. Courts are supposed to be reluctant to make law, and lack the power to declare war and describe the parameters of war. I just skimmed the Quirin case, and man, what a contrast with the legal framework in place today. I think Congress needs to take a stand, one way or the other.
Lindsey Graham's amendments to reign-in SCOTUS's holding that Gitmo detainees are entitled to the writ of habeas corpus come to mind. That was a "balance kicking in."
I wrote "war" because I'm tired of the "War on XXX" moniker, especially since all previous ones have failed.
Oh, I dunno, it depends on your role in the scheme of things. The wars on poverty and drugs have opened up lots of nifty jobs ;-)
Why not worry about eminent domain abuse, takings through regulation, or the IRS and BATF, all things that are filled with real abuse and that occur each and every day??
Nail, meet hammer.
You are right, but I suspect for the wrong reasons.
Fear is a powerful tool. If you can keep everyone in fear of others around them, then they are too busy to look at those above them.
I think that you'd agreed that there are lots of distractions to keep us busy from looking at the day to day things that the government is doing.
Rather than castigating Prodigal Son (et al), we should be thanking them for keeping their eye on the ball.
Really folks, with everything that the government screws up on a daily basis, do you really believe that they are that good (at this new job of finding terrorists -- by whatever means) that we have not suffered another attack because of them? One of them (the government) said, (paraquoting) 'the bad guys only have to get lucky once. We have to be perfect 100% of the time.' That's very true and there are countless ways to inflict terror that don't require much planning or international coordination. Why haven't they been lucky even once? Do you really believe that the government is 100% perfect?
Then now is the time...
Do you feel that the lack of warrantless wire taps is what enabled the 9/11 hijackers?
Really? Got some examples? I sure don't remember all that fuss.
Strange, ain't it? :-)
"Why not worry about eminent domain abuse, takings through regulation, or the IRS and BATF, all things that are filled with real abuse and that occur each and every day??"
My thoughts on this...
This stuff with the President being unconstitutional makes no sense whatsoever. So, it must be something that was just thrown out there to keep people's minds occupied while many folks are being kicked out of their homes. Look at the emminent domain abuse to put more money in some pockets?
If it were false, you'd have a point. Just because your own personal calculus dictates something different does not mean others feel the same way.
Let me know when you're going to submit to the knife.
The way I have been reading all the posts since Dec 16 is that FISA does NOT apply to the POTUS fighting FOREIGN terrorists and no laws passed by the Congresscritters can ever reduce, limit, or withdraw that Constitutional authority. Why do you think NSA has been intercepting communications for decades?
I don't think that police enabled speeding by not having radar guns, or that doctors enabled illness by not modern pharmaceuticals.
You can make a good case that moderate uses of both are very helpful to a society, just as overuse can be harmful. As far as the wiretaps go, you can't say for sure we'd be able to prevent 9/11, and I really don't think we should use that as a reasonable goal. I do think we would have made 9/11 less likely. At least it would have given us a fighting chance.
Have you completely forgotten what Billary did when they were in the WH? No law is going to change anything that Billary will do again if they once again reside in the WH - they will break any law they feel is necessary. This is the Lib way - the NYT not only has a right, but an obligation, to tell the American citizen all the Government secrets so that Bush can be removed because we no longer have separation of powers. Pubbies have all three (er, I mean two) branches of Govenerment. That allows the libs to do anything they want and break any law they want in order to restore balance to the separation of powers arrangement.
The difference is between using and abusing power.
George W. Bush is exercising his legitimate constitutional powers to surveil suspected foreign agents for national security purposes, without benefit of a warrant.
Hpwever, Hillary Clinton would be abusing her constitutional authority if she was surveiling you without a warrant because you were suspected of growing marijuana.
Recall that the Clintons were able to conduct all sorts of nefarious beyond-the-law actions during their reign simply because they ignored existing laws, not because they were enabled by them.
Out best defense against a Hillary Clinton is the ballot box, not legislation that restricts the executive.
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