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
You don't have to be a libertarian whack-job to be concerned about a concetration of power. If this were not an issue that hit a cord with Americans we wouldn't be talking about it.
The only question we need to consistently ask those who put down expressions of concern is whether they feel completely comfortable if a President Hillary Clinton would have this same power? If they say yes, they are legitimate. If they waffle, they are just Bushbots or closet monarchists.
It depends on the order. The surveillance orders recapitulate statutory language, and are therefore not bothersome to Congress. But Congress did circumscribe Lincoln's suspension of habeas corpus (not that he followed their grant, and not that he thought he needed it anyway).
Others have posted, at some point, executive initiative becomes a political issue. There will be much invasion of privacy as the public will accept.
Citing the prior usage by Carter and Clinton hardly instills confidence in me. The Dem hypocrisy is glaring, but I'm not sure that this is the best selling point.
"I guarantee that if this were Al Gore doing this right now, ..... to support this President is a bit sickening in my opinion."
There is no doubt that an Al Gore or Hitlery Clinton would also face substantial criticism were they involved in this fight against the Islamists. From both the right and the left.
However, using NSA (a military agency) to track communications to and from our Islamist (aka "al Qaeda")enemies *no matter where they are* would not be my concern.
The rise of transient and anonymous phone numbers, disposable email addresses, free personal cryptograpy, and widespread VoIP availability has made FISA a bit of an anachronism for certain types of operations (even with the 72 hour window).
bump.
"Better to have al Qaeda cut my head off than to give up everything that makes life worth living."
You and Craig Crawford have the same point of view, even ending your screeds with identical sentiments.
I suggest you buy a ticket to Kuwait City, outfit yourself appropriately, cross the border and join in the fight against the "al Qaeda of Mesopotamia". They *will* cut your head off, and they do not care about your liberties.
Year------Number of------Number of------Number of
-------------FISA------------FISA----------FISA
--------Applications----Applications----Applications
---------Presented--------Approved--------Rejected
1979------- 199------------- 207-------------- 0
1980------- 319------------- 322-------------- 0
1981------- 431------------- 433-------------- 0
1982------- 473------------- 475-------------- 0
1983------- 549------------- 549-------------- 0
1984------- 635------------- 635-------------- 0
1985------- 587------------- 587-------------- 0
1986------- 573------------- 573-------------- 0
1987------- 512------------- 512-------------- 0
1988------- 534------------- 534-------------- 0
1989------- 546------------- 546-------------- 0
1990------- 595------------- 595-------------- 0
1991------- 593------------- 593-------------- 0
1992------- 484------------- 484-------------- 0
1993------- 509------------- 509-------------- 0
1994------- 576------------- 576-------------- 0
1995------- 697------------- 697-------------- 0
1996------- 839------------- 839-------------- 0
1997------- 749------------- 748-------------- 0
1998------- 796------------- 796-------------- 0
1999------- 886------------- 880-------------- 0
2000------ 1005------------ 1012-------------- 0
2001------- 932------------- 934-------------- 0
2002------ 1228------------ 1228-------------- 0
2003------ 1727------------ 1724-------------- 4
2004------ 1758------------ 1754-------------- 0
Well, I'm sure the government could come up with something that would be guaranteed to make us 100% safe from terrorists. I'm not sure I would like what they came up with, though...
'Course, then it wouldn't work, after all...
There should be a limit on how much liberty we give up for safety. Each citizen draws the line in his own place. I guess you draw it a little closer to "safety". May your chains rest on ye lightly, friend...
Congressional expression was protective of 4th amendment (requirement for a warrant) when the target of surveillance was a US citizen.
Define "tapping".
Is that when someone "listens" to your conversations? When they monitor your outbound calls to another known al Qaeda number?
"Why wouldn't you approve of using the same tools against a McVeigh? Hamas?"
SJ Res 23, 9/13/2001
"...the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."
Love the tin foil hat you're wearing.
Is that when someone "listens" to your conversations? When they monitor your outbound calls to another known al Qaeda number?
I think the issue is obtaining the contents of communications. In the circumstances we are in, review of contents would seem to be of equal interest on both parties in the communications. That is, all of my outbound calls should be monitored, not just the ones to Al Qaeda, if I am implicated in a terrorist network, and regardless of my citizenship.
The administration holds, I think, that it is reasonable to undertake this interception of contents without obtaining a warrant.
There has been no offical confirmation anyhere that NSA was listening to the contents of anyone's communications in this particular operation.
I am of the opinion - nothing more - that they were capturing the connections between known and (previously) unknown individuals for the purpose of building a network diagram of al Qaeda operators and sympathizers, whether internationally or here in the US.
Also that FISA warrants were subsequently requested against individuals found to have any communication patterns of note.
This approach would be permissable under Jabara.
SJ Res 23, 9/13/2001 ... against those [who] aided the terrorist attacks that occurred on September 11, 2001.
So absent some linkage to 9/11, the surveillance would be unauthorized? That would be a pain to carry through in court proceedings. Are we going to wait for the successor to ALQaeda to mount a successful attack before we athorize warrantless monitoring of their adherants? Or are we going to grant the office of president wide berth in use of judgement as to who is a worthy target in prosecuting this war?
No, I hope the chains are heavy. Crushingly heavy. Maybe then people will understand.
Here's a "for instance". Congress just rewrote the bankruptcy laws.
How many folks know the following? During the colonial years, England developed a nasty little habit. If a person was in debt, it made no sense to imprison them, because then they couldn't work and pay back the debt.
So they came up with a nice little plan, they would imprison YOUR CHILDREN.
And of course there was only about a 25 percent chance that your child would live through disease and starvation.
When you know the REASONS the founders wrote the stuff they did, you become far less willing to give it up.
But, in fact, probably not.
I am of the opinion - nothing more - that they were capturing the connections between known and (previously) unknown individuals for the purpose of building a network diagram of al Qaeda operators and sympathizers, whether internationally or here in the US.
You might be right, but that would be a darn weak protective/preventive measure.
As others have said, the only ralistic approach to communications is to assume that 100% of the contents can be and is intercepted - act accordingly and you'll be fine.
Under the specific conditions of a legally-declared enemy (SJ Res 23, 8/13/2001), yes, I'd be OK with any President exercising the role of Commander In Chief.
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