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

Thank you for the information, however, it doesn't mention articles of impeachment, et al that antiRepublicrat mentioned.

Article 2: Abuse of Power.
Using the powers of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, imparting the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposes of these agencies. This conduct has included one or more of the following:
(1) He has, acting personally and through his subordinated and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigation to be initiated or conducted in a discriminatory manner.
(2) He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; and he did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.
(3) He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens, authorized and permitted to be maintained a secret investigative unit within the office of the President, financed in part with money derived from campaign contributions to him, which unlawfully utilized the resources of the Central Intelligence Agency, engaged in covert and unlawful activities, and attempted to prejudice the constitutional right of an accused to a fair trial.
(4) He has failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted executive; judicial and legislative entities concerning the unlawful entry into the headquarters of the Democratic National Committee, and the cover-up thereof, and concerning other unlawful activities including those relating to the confirmation of Richard Kleindienst as attorney general of the United States, the electronic surveillance of private citizens, the break-in into the office of Dr. Lewis Fielding, and the campaign financing practices of the Committee to Re-elect the President.
(5) In disregard of the rule of law: he knowingly misused the executive power by interfering with agencies of the executive branch: including the Federal Bureau of Investigation, the Criminal Division and the Office of Watergate Special Prosecution Force of the Department of Justice, in violation of his duty to take care that the laws by faithfully executed.
In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.
Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.
(Approved 28-10 by the House Judiciary Committee on Monday, July 29, 1974.)
http://www.historyplace.com/unitedstates/impeachments/nixon.htm

Obviously, the articles of impeachment describe conduct that is far different from warrantless surveillance for national security purposes, and I haven't seen any comparison of GWB with Nixon in that regard.

The broader point is that the tools of surveillance can be misused. " 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."

While the events leading to the Watergate impeachment articles probably did not include any claim of "the black bag job was in the interest of national security," (in fact, it was called a 3rd rate burglary), the object of the post is to get readers to carefully consider trust in government, and in particular, concentration of authority in any one branch.

Nice names, but I don't recall articles of impeachment, et al. Can you enlighten me? Which Presidents are we talking about here?

Projects Minaret and Shamrock were the NSA domestic spying on those labelled as "subversives," e.g., anyone the administration didn't like.

Projects CHAOS, MERRIMAC and RESISTANCE were run by the CIA to collect info on Americans. CHAOS had an original intent to see if foreign powers were influencing protest groups in the US, but grew to a general domestic spying network after initial results were negative. The illegally gained information was passed to the FBI.

COINTELPRO was an FBI program for the spying on and infiltration and disruption of groups deemed undesirable by the administrations. It started to see if the KGB had influence over the Communist Party U.S.A., but grew to the spying on and disruption of any organization the administrations didn't like, including Martin Luther King, Jr.

As far as claims of "national security" when presidents break the law, Nixon tried to get the CIA to hinder the FBI's investigation of Watergate using national security claims. Articles of impeachment over the scandal were drawn-up when it was found out, but Nixon resigned when he was told there were enough Republican senators against him to guarantee an impeachment.

I have no problem with reasonable searches and neither does the Constitution.

True, but the devil is in the definition of "reasonable", or more precisely, in who decides what is "reasonable". If the searchers are the ones to decide which searches are "reasonable", then the fourth amendment is effectively nullified.

There is fairly good precedent for the interpretation of reasonableness in searches. For example, looking at what is in plain view is not considered an unreasonable search. This has even included cases in which a police helicopter hovered over a property observing what went on below, and this was (legitimately) upheld. Similarly, picking through someone's trash has been upheld, since one doesn't legitimately consider one's trash "private". The usual test is a "reasonable expectation of privacy".

There have also been some bad decisions. The "open fields" rule, which seems like a special case of "things in plain sight," has been extended to permit officers to trespass on private property without a warrant, to look at outdoor areas not visible from outside the property's boundary. This is clearly wrong, though it's currently legal. By contrast, it's both right and legal to conduct aerial surveillance, precisely because one does not own the airspace over one's property.

Historically, the interpretation has been that someone making a telephone call has a reasonable expectation of privacy. Thus, warrants are required for wiretaps.

The issue is confounded by the notion of "exigent circumstances", which essentially mean that some conditions can justify unreasonable searches. This reopens the original can of worms under a new heading, namely: who decides whether circumstances were exigent? If it's the searcher who decides, then the fourth amendment is again nullified.

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