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
What is being tampered?
The Constitution gives the President authority to do this.
Just read your first sentence. Look up the definitions if you have to. Take a day or two to THINK through what you just said. You have it all almost exactly backwards and is contrary to the idea of liberty.
Sorry. I don't mean to be rude, but that first sentence is just so wrong on so many levels that I can't believe that you actually posted it.
I appreciate your civility in disagreement since we usually view things from the same side of the table.
To be a 'reasonable' search there would need to be a good reason to search. With a good reason, there exists a probably cause to search. Same idea with different words.
The Fourth Amendment does not prohibit reasonable searches, nor does it require a warrant to do so.
It would not be reasonable to grab random citizens for pat downs, but it could be reasonable to pat down a group at a crime scene where one of the group is probably the perpetrator and probably still has evidence on him, especially a weapon.
Now that I have had some rest, let me take you through my reading and reasoning. First off, the words and the style of writing were different back then. I will translate. ;-)
"The right of the people to be secure
(Safe. Free from the prying eyes of government)
in their persons, houses, papers, and effects,
(you, your property, your possession, your papers -- and your computer)
against unreasonable
(Random and without evidence of a crime, meant to intimidate and harrass.)
searches and seizures, shall not be violated,
(EXPRESSLY FORBIDDEN)
and no warrants shall issue,
(To be reasonable, there must be a warrant)
but upon probable cause,
(They (the gubmint) better damn well have reliable evidence or information)
supported by oath or affirmation,
(Someone can be held accountable if it fails to meet this standard)
and particularly describing the place to be searched, and the persons or things to be seized.
(That's so that an agent can't make it up as they go along just to cover their ass if they just screwed up or were messing with you.
So, if were written today, it might read like this:
"The people have the right to be free from the prying eyes of government. They and their property, possession, papers, books, and computers shall not be subject to search or seizure at random or with the effect or intent to harass or intimidate.
For a search and/or seizure to be legitimate, the agent must get a warrant. The agent seeking the warrant must present evidence or reliable information specifically naming the suspect, his location and what the agent is looking for.
The agent or agents involved will be held accountable and are subject to civil and/or criminal penalties if they fail to meet these standards."
lol...nah..I'm too hard headed and stubborn.
I know where we disagree, and it revovles around warrants for searches.
The thing is that there are situations, some I've mentioned, where a search is reasonable and there's no need for warrant.
Those situations are fairly limited and when the State oversteps those limits the courts usually toss it.
The key is that there has to be a reason for it to be reasonable.
We're probably wearing this one thin!
The judge on Fox News said that this git that is now asking to testify before congress is not protected under the whistleblower law, if he told the NYT.
The judge on Fox News said that this git that is now asking to testify before congress is not protected under the whistleblower law, if he told the NYT.
The only 'search' that I see as reasonable without a warrant is the 'pat down' when a suspect is apprehended. This is reasonable for officer safety.
But that's it. A pat down. Arrest him and get an order if you have a case to be made against him.
The other 'exception' isn't really a search and that's when the cop hears a cry for help. Again, he can open a closet to see if someone is in it, but he can't look in drawers and briefcases and such.
Beyond that, I don't see anything else that would dictate a search without a warrant.
And if you don't agree with me now, you really are stubborn. LOL
BTW, I was going back and forth with someone a few weeks ago. This person was being disruptive and I didn't want to let his crap go unchallenged.
Someone sent me a private message telling me that this poster would never be convinced. I explained why I continued to respond and he said that he admired my tenacity.
I told him that most people aren't as nice. I'm usually just called a stubborn bastard.
Sometimes is it worth enduring a troll (ie, Moj***) to preach to the lurkers.
I have actually seen some fence sitters moved by seeing how the two sides debate and display their positions.
Those who have to lie to support their views don't have views worth supporting.
And reasonable people can see the same thing differently and still stay reasonable.
You are exactly right. I am often called names, but NEVER does anyone try to refute the evidence I present. They may come to a different conslusion as to what to do about it, if anything, but no one even tries to disprove it.
If I ever post something in error, I don't have a problem in posting a retraction or apology. I think my accuracy rating is higher than Rush's 98.4%.
Nope. Jabara came in under the 'agent of a foreign power' exception.
I've just been looking over your series of exchanges with airedale on this thread and wanted to add my own thoughts, albeit three weeks late. I appreciate what you're saying about "put the law books down for a second and think", but I would suggest going back and re-reading the fourth Amendment in the following way...
| The Actual Fourth Amendment | The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. |
| Badray's Fourth Amendment | The right of the people to be secure in their persons, houses, papers, and effects, against warrantless searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. |
I did that to emphasize the fact that the Fourth Amendment does not guarantee your right to a warrant, it only guarantees your right to reasonableness. Note that the only reference to a warrant in the Fourth Amendment is only for purpose of describing its form, not its requirement.
So where did this fiction that reasonableness-equals-warrant come from? It came from the fact that since 99.9% of the cases do in fact require a warrant, everyone just presumes that it must be a 100% requirement. It's not, not in law, not in history, and not in reason nor logic.
Just something to think about...
They can strangle his budget, though. That's how Vietnam ended.
That said, the more I read it, the more convinced I am that (my version) was the intent of the Founders. I am not an attorney or scholar, but I think that I understand their intent.
I ask you now to thoughtfully consider -- and if you are an attorney, to put down the law books -- as I explain.
First off, the Constitution's Bill of Rights guarantees nothing. They serve as a reminder what the government must not do.
Second, to put this in context, remember that the Founders did not use words as we do today. Meanings have changed and we cannot read the words as we know them to mean today to understand what they meant as they were written back then.
For instance, "well regulated" did not mean rules and regulation as interpreted or understood today. It meant that someone or something was trained or in good working order.
Now take 'reasonable'. If there was a reason (good cause to believe or evidence) to do something, it was reasonable.
Since unreasonable (those without reason -- fishing expeditions and to harass) searches are never allowed, what defines the difference? The warrant does.
The warrant is what makes the search reasonable . It provides the reason and it's done under oath to emphasize the seriousness with which it's done. It details the who and what that is to be searched and/or seized, and the probable cause of why the person and place is to be searched.
This wasn't something that they took lightly or wanted to be done on a whim. They had been subjected to searches any time the king's men felt like it. They weren't about to authorize the new government to do the same thing, therefore, no reason, no warrant, as in "...no warrant shall issue..."
Our understanding of reasonable today is too subjective and would never have been acceptable to them. Their standards were much higher than ours. We need to raise our sights.
If you are an attorney, you probably have more ready access to case law than I do. My guess is that challenges to the 4th Amendment standard of reasonable are relatively recent ones and are virtually non existent for the first 100 or so years of our nation's history. Not that there weren't abuses, but the closer to the time of our founding, the better they understood the intended meaning.
It's no different with the 2nd Amendment. It took 100 years or longer for the understanding to change and for the meaning to be lost. Well, 100 years and some lawyers.
Actually, it was the other way around. Challenges to warrantless searches, for instance, those searches incident to arrest, were virtually unheard of until the early 20th century.
In any event, your reply was very reasoned, and thoughtful and provided food for thought.
I'm not sure that we are disagreeing here.
(I only got 3 hours of sleep and each hour was interupted at least 2 times and I'm still groggy.)
Can you point me to a good place to research this. Even though I am sleep challenged, I am time challenged as well. I wear too many hats.
I believe that there were plenty of abuses and for a long time, we sided with the police too readily and almost blindly. If the police said that someone was guilty, we believed it. There was no reason to question them.
I am happy to hear that you found my argument to be worthy of further consideration. Thanks for any help that you can point me to.
Considering NONE had been denied previous to the four denials on 2004, and undoubtedly when the administration saw a political trend with the FISA court, they went their own way. Smart move. I'm sure we would have seen many more denials if Bush would have continued to rely on FISA
Two of those targets were also approved, that is, the administration filed two requests for the same target, one was rejected and the second one was approved.
One was also denied in 1997. I checked all of the reports to Congress ...
http://www.freerepublic.com/focus/f-news/1551988/posts?page=65#65
I'm sure we would have seen many more denials if Bush would have continued to rely on FISA
The administration is continuing to rely on FISA. The "issue program" started in October 2001, and the FISA statistics show no abatement in the years 2002-2004, in fact, they increased rather dramatically.
Glad you wrote back and glad you asked. I had intended to add just such a link to my previous post, but just like you, I'm sleep deprived, too.
For future reference, the following FindLaw.com webpage is an excellent starting point to bookmark, and a primary go-to reference source on anything about the constitution or law. At the top of the page, it links you to the U.S. Constitution, including text and annotations, (which are short synopsis of background, history, major issues, case law, etc.). This same page also links you to the U.S. code, so you can quickly look up things like FISA, Patriot Act, etc. Here it is...
FindLaw Constitution, Cases and U.S. Code
This next link will take you to the Fourth Amendment, text and annotations.
FindLaw U.S. Constitution Fourth Amendment
When you bring the above page up, note the links to the annotations below the text. For your purposes, the first link outlines the meat of the history and major issues involved and would be a good starting point. It is also the most direct response in answer to your request for a research link on the 4th Amendment. I don't know whether to characterize the webpage as "short", or just an easy read, but I think you'll enjoy it. Try some of the links within the annotation webpage or some of the other links to 4th Amendment annotations (there are six pages, total).
BTW, these annotations are taken from a highly acclaimed series written by the lawyers and historians at the Congressional Research Service and have been reproduced in several civics texts as well as numerous websites. But the FindLaw.com version is best because they enhanced the original with copious links to other documents and well as the actual cases.
Thank you. I really appreciate this info.
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