President may constitutionally authorize warrantless wiretaps!!

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

I have many times and reasonable searchs don't require a warrant. That's why they search your baggage at customs without a warrant. It's considered reasonable. That's why customs can inspect incoming and outgoing shipments without a warrant and search ships. That's why we all get searched each and everytime we fly commerically. They are considered reasonable under current conditions. What's reasonable searching for a small amount of drugs (or a large amount for that matter) is very different than what's reasonable searching for a nuclear weapon that you think will go off shortly for example.

That's why the issue in terms of the needs of warrants not only revolves around the presidential foreign affairs and war powers but even if the Bush administration is wrong about those then were the actions reasonable under the circumstances at the time considering what the threat was. If searching each and every passanger flying commerically is reasonable due to the terrorist threat then wouldn't listening to and taking action on converstations between Al Queda operatvives overseas talking to people in the US also be reasonable? Considering what happened on 9/11; the first World Trade Center Bombing; the thwarted attack on the Brooklyn Bridge; the Cole Bombing; the thwarted attack on Los Angeles International Airport, etc. I think it is reasonable. Listening into someone from one of the drug cartels calling a major dealer in the US without a warrant would IMO be unreasonable. While both are threats of serious harm the first one is far more dangerous and represents the highest level of threat.

Here is some material on it:http://www.njsbf.com/njsbf/student/eagle/winter00-1.cfm

http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

http://www.nolo.com/article.cfm/catId/3900BEB2-2599-4E9F-B5F09F0DF3E33C7B/objectId/DED24689-ADA8-4785-887A0B4A19A694DE/104/143/ART/

http://www.oyez.org/oyez/portlet/directory/0/16/

http://www.lectlaw.com/def/f081.htm

I guess that we speak different languages.

The 4th Amendment says that the right of the people against unreasonable searches SHALL NOT be violated. To acomplish that, warrants are required and they can only be issued after meeting certain criteria. That means that the government was required to jump through hoops.

Mere suspicion or even being in the wrong place at the wrong time is not enough to justify a search. There has to be probable cause, preferably some evidence, and a sworn affidavit before a warrant can be issued and a search conducted. How far afield we have drifted.

Therefore, for a search to be reasonable, a warrant must be issued. Any search without one is unreasonable by definition.

Don't get me wrong, I am sure that there is case law that states the the damn government can do anything that they deem to be reasonable, but that doesn't make it right. And remember that when you argue for 'reasonable' you also argue for reasonable restrictions on your other rights.

Be careful what you wish for. You just might get it.

Sorry your wrong. Take a look at the links I posted to you. Not all searches require a warrant. Never have, never will. I'm not a constitutional lawyer, but I've had enough con law courses over the years to know the parameters of the 4th amendment in this area. The government may make reasonable searches at reasonable times. Getting a warrant essentially guarantees (even though the defense can argue it wasn't reasonable or the details weren't correct, etc. and sometimes win)that the grounds are reasonable so it doesn't have to be completely litigated during trial.

In terms of electronic surveillance FISA has defined the search of US persons (not just US citizens) to require a warrant with exceptions. Read the act for the exceptions. However, Congress can not limit the inherent powers of another branch of government unless the right to limit it is in the Constitution. For example congress can limit what areas courts have authority over or specify areas or cases that the courts can't deal with.

There are several issues with the current case. The first is the inherent power of the president as Commander in Chief and the presidents sole authority in foreign affairs except for the advice and consent provisions for treaties. Congress' control is through the purse. In addition to the inherent powers of the president in both those areas Congress through the joint act that they passed after 9/11 gave the president even broader powers (read the act). A lot of those powers are explicit in the act but even more powers are implicit in the act.

The second issue is the listening that they were doing on international calls from and to known Al Quada operatives and agents to US Persons reasonable under the conditions that existed at the time. To and from non US Persons no warrant is required by FISA (it's in the act).

In addition to be covered by the FISA act the calls have to be intercepted within the United States (per the act). If they were intercepted in the UK, Australia and several other countries where we have major facilities no warrant is required per FISA since it only applies to calls intercepted within the US.

The president has a pretty strong legal position in my and many constitutional lawyers opinions in spite of what the media might say. The weakest one is the reasonableness argument. That's a matter of opinion and there are lots of shades of gray. What's reasonable depends on the situation at the time it occurs. In a war against a stateless enemy who operates world wide what's reasonable hasn't been defined.

You've gone far afield from this comment that I responded to:

The 4th amendment protects against unreasonable search and seizure. The issue is what's reasonable and unreasonable. Those change with the situation just like what's free speech. You can't yell fire in a crowded theater. You can search a building for someone if you're in hot pursuit without a warrant when under ordinary circumstances it would require a warrant. Your luggage can be opened and inspected by customs without a warrant when you are entering or leaving the country. Your vehicle can be searched when entering and leaving the building. If you're driving across the country they can't search your luggage or car without a warrant (with exceptions)

Unreasonable means no warrant. Reasonable means that they get a warrant and had better be able to back it up.

BTW, you can yell fire in a theater. In fact, there are times that you should. If there happens not to be a fire, then that is a different issue. That's a misuse of your right to free speech and you can be charged.

Exigent circumstances do allow police to enter a building if they hear a cry for help or are chasing a suspect and he just entered the building. That searching would not include anyplace that a person could not hide in. But neither of these situations are what we are discussing.

Forget your lawbooks for a minute. I've acknowledged that the 'law' might say something different. I'm asking you to read the 4th carefully. My reading doesn't require that you torture or twist the words. The Founders intended that the government jump through hoops to search you or your effects -- even in scary times. If you want to change that, amend the Constitution.

The law does say something different and that's the point. You have a misunderstanding of the meaning of unreasonable and reasonable. For you reasonable means you have a warrant and it's unreasonable if there isn't a warrant. That's not the law or the meaning of the constitution. That's why the details of what the administration did or didn't do matter. That's why we're a nation of laws.

If you go to fly commercially at the airport you submit to a warrantless search by a government law enforcement officer. That's a reasonable search. If you change your mind and leave without being searched in order to search you the conditions have changed and with some exceptions searching you without a warrant is probably unreasonable. I say probably because what ever actions you took in protesting the initial search may have given officers probable cause or you may have broken a law which in arresting you they are allowed to again search you without a warrant (including body cavity searches if appropriate and they are very intrusive). The airport is a very clear example of a warantless search that is considered reasonable and not a violation of the 4th amendment. If you don't think so head down to your local commercial airport and go through the check point and refuse to be searched. Then when they are done with you can sue them and the judge will explain to you the difference between reasonable and unreasonable searches and when warrants are required and when they aren't. The fine and the legal costs will cement the lesson.

In answer to your questions:

1. Do you believe that the SCOTUS is unbiased? Or are you just willing to accept what some biased, anti liberty justices have to say?

That's one of the trade offs that are made in a republic like ours. Anti liberty and biased are loaded terms. I'm sure that those who support People for the American Way feel that a different set of justices on the Supreme Court are biased and anti-liberty. That's part of the genius of our early founders that SCOTUS and some of lower courts meet in panels. In SCOTUS case it's all 9 (currently though it's been other numbers of justices in the past). The idea is that the collective wisdom is more than the sum of it's parts. It's also not the view of one person who can become a tyrant. Having that many people on a panel selected at different times is probably the best solution for obtaining judges. I'm more concerned about the quality of the intelect, honesty, integrity and a willingness to really grapple with tough issues within the framework of our constitution.

Do you like the way the SC interprets the Constitution?

Not all of the time, but I'd be a really special person if SCOTUS always agreed with me.

Do you believe that McCain Feingold is constitutional?

Simple answer is no. I think it was wrongly decided in it's 5/4 decision. I think it's a limit on free speech. I also think it may be part of the reason that the Abramoff scandal occurred. McCain Fiengold took the political parties out of the fund raising and put it into groups with less discipline and less transparency. The opportunities for this kind of thing to occur increased exponentially. It's part of the law of unintended consequences. Not that McCain or Feingold or the liberal media will ever admit that it is a fault of the law.

As a 5/4 it's still open to challenge on other issues that SCOTUS hasn't decided yet. Being new it's easier for the court to correct it's mistakes or fine tune its decisions.

Don't give me what the courts have said. What do you think?

On search and seizure for the most part I agree with the courts decisions on interpreting the law. I'm not a constitutional lawyer and there are probably lots of aspects of the law and the decisions that I haven't thought of or analyzed in conjunction with the laws passed by congress and the constitution. It's a very complicated issue as are all issues that reach SCOTUS.

If I'm interested in an issue that's before the court or has been decided by the court I read not only the decision but as much of the supporting material as possible including amicus briefs and lower court decisions in multiple circuits if the case is at SCOTUS. If it's a 9th Cirucit case which is where I live I read the lower court decision and as much of the material that's on line. I don't trust the media to really tell me the issues being decided in either emotional cases or politically loaded cases. I've seen too much sloppiness and inaccurate reporting. They seem to like the emotional arguments rather than the legal ones. The last case I studied was the medical marijuana case. SCOTUS decided the case the way they had to based upon their prior decisions involving interstate commerce. The initial decsions many years ago caused problems in my mind about issues involving the 10th amendment, but they followed the earlier decisions logic. It's part of the fight that existed since the founding between the federalist and the anti-federalist. Thats why those early arguements are still important today (even though the schools at least when I was in school taught mostly from the federalist point of view.

In the current issue I agree with the presidents position. Based upon what I know it seems legally sound. When more details come out and better legal minds than mine weigh in I might change my mind. If SCOTUS some how rules against the president I'll still disagree but will live with it. If they rule part of the actions are unconstitutional or illegal I'll review their decision and if I disagree with their reasoning I'll work for changes in the law. The only other choice is to abandon the US or start a revolution and win it. I'm not willing at this point to do either.

But for intelligence collection purposes, you don't care about pressing charges, only disrupting incoming attacks.

You want both. There's tension between requiring probable cause and preventing criminal activity before it occurs. But the folks charged with prevention do want to eliminate the threat.

Authorizing 'rubber stamped warrants' is a threat to our personal liberties far, far greater than any secret wiretapping program.

And there is also tension between civil liberties and preventive law enforcement. Dragging the courts into a secret monitoring program (i.e., the courts are willing co-participants) would signal a deeper systematic threat to civil liberties than when the executive branch unilaterally undertakes warrantless surveillance, but others have noted pretty well, "If it's targeted only at bad guys, and the public is unaware, is it really a threat to personal liberties?"

Of course, the results of previous presidents having spied on Americans using the "national security" excuse were scandal, congressional investigations, new laws to prevent it, and even articles of impeachment drawn-up.
Really? Got some examples? I sure don't remember all that fuss.
Excerpts from 1975 Senate Hearings re: NSA Activity
That page is excerpts. The source links there (lengthy) have a good deal of history and law. Some examples are warrantless surveillance of MLK & Commies. Hoover's FBI ran warrantless surveillance programs that he ordered be kept from Congress.
See also House Report 106-130, jumping to Porter Goss's comments at the end. Most of his commentary is aimed to justify Congress sticking its nose in, but opens with the following ...

ADDITIONAL VIEWS OF CHAIRMAN PORTER J. GOSS
Recently, and perhaps for the first time in the committee's history, an Intelligence Community element of the United States Government asserted a claim of attorney-client privilege as a basis for withholding documents from the committee's review. Similarly, various agencies within the Intelligence Community have asserted, with disturbing frequency, a `deliberative process' or `pre-decisional' argument as a basis for attempting to keep requested documents from the committee's scrutiny. These claims are unpersuasive and dubious.
As part of its regular oversight responsibilities and preparatory to the committee's legislative action on this bill, the committee was questioning the National Security Agency's (NSA) application of current operational guidelines in light of the enormous technological advances that have been made in the past several years. The committee was seeking to ensure that the NSA was carrying out its signals intelligence mission in consonance with the law, relevant executive orders, guidelines, and policy directives. At bottom, the committee sought to assure itself that the NSA General Counsel's Office was interpreting NSA's legal authorities correctly and that NSA was not being arbitrary and capricious in its execution of its mission. ^1
[Footnote 1: In the 1970s it was learned that the NSA, as well as other elements of the United States intelligence community, engaged in serious abuses of the privacy interests of U.S. persons. The congressional hearings on these and other matters led directly to the establishment of the Senate Select committee on Intelligence; see S. Res. 400, 94th Congress; and the House Permanent Select Committee on Intelligence (HPSCI); see H. Res. 658, 95th Congress. Additionally, as a result of those inquiries, executive orders were issued and guidelines and policy statements were promulgated defining the mission of the NSA and its legal obligations and responsibilities pursuant to the Constitution and other laws of the United States. See Legislative Oversight of Intelligence Activities: The U.S. Experience, Senate Select Committee on Intelligence, 103rd Cong., 2d Sess., at 2-6 (Comm. Print)(October 1994).]

Listening into someone from one of the drug cartels calling a major dealer in the US without a warrant would IMO be unreasonable.

That was one of the primary uses of warrantless wiretapping in the '70's.

What if the drug kingpin was also considering terror? There is one instance of a drug kingpin downing an airplane in order to dispose of witnesses. IIRC, over 100 dead.

Here are some facts on that one (granted, the terrorism was not "in the US," but the incident points out that there is no way to untangle "terrorism" from other activities.

Incidents of Major Airline Terrorism. By Wm. Robert Johnston.
Nov. 27, 1989 -- A bomb exploded aboard a Colombian Avianca Boeing 727 passenger jet departing Bogota, Columbia, en route to Cali, at 7:16. Exploding 5 minutes after takeoff in a passenger seat, the bomb ignited fuel vapors and caused the plane to crash, killing all 107 aboard as well as 3 on the ground. The bomb was planted by members of the Medellin drug cartel, led by Pablo Escobar who was charged by the U.S. in August 1992. The bomb may have been supplied by Islamic terrorists, based on similarities to the one that destroyed Pam American Flight 103. Five passengers were informants who had been targeted by the drug cartel. Two Americans were among those killed. Fatalities: 110.

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