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
Civil liberties are a moot point when basic liberties are absent. I guess I just hold the right to life, liberty and the pursuit of happiness more dear.
And I haven't had any of my civil liberties impinged since we went to war with Iraq and neither has anybody else I know. I'd wager that goes for you too, and everybody else posting on this thread.
What about the lives of your children?
"I think the issue is obtaining the contents of communications."
Well, we don't know that NSA was tracking the content of anyone's communications under this program.
My guess is that they were tracking *connections* in order to build a network diagram of potential al Qaeda operators, and obtaining FISA warrants if further observation was required.
That would be fully within the law.
I am childless. Are you suggesting that I give up my rights so your kids can be all cozy??
FISA applied to US persons not just citizens. US person included not only citizens but those here legally with permanent US visas. Others here in the US are not covered by the act. Of course FISA was passed in response to the Church Committee so it's going to be really hard on any kind of intelligence work. I'm going to make a trek in the next few days to the local Federal Depository Library to see what I can find in the Congressional Record.
By the way, when you say "monitored" you don't define what that means.
If you are making outbound calls to international numbers, and those connections (not content) are captured by the NSA downlink in the U.K., that seems to be fully within its legal scope.
But I also think a FISA warrant would be issued against your telephone calls in very short order thereafter.
You have given up no rights and no rights have been taken from you. Your rights end where the rights of others begin. If you want to lose your head, so be it. I would wager that everyone who died on Sept. 11 might have a slightly different opinion than you do as would their love ones.
I think it's reasonable to say that they're tracking all manifestations of al Qaeda and its offshoots. The resolution is broadly written.
It's my understanding that the number of FISA apps that were "modified" by the FISA Court from 2001 to the present is more than the number "modified" in all the previous years combined. Whatever "modified" means.
As I read it, Congress can authorize War and actions short of War. The execution of that is left up to the Commander in Chief.
Additionally, Joint Resolution SJ 23 of 18 Sep 01 (one week after 9/11) gave the president the following authorization:
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be itResolved by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the `Authorization for Use of Military Force'.
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL- That 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. http://www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm
No, because a pattern of communication would present the probable cause necessary for a more (rightly) intrusive monitoring program against suspect individuals and organizations using a FISA warrant.
If they're lawfully listening to an Al Qaeda member, and he happens to be talking to you, then it's not a violation of your rights, even though you aren't a target and they have no warrant to listen to you personally.
If they next say, "Aha, let's find out what this other guy is up to as well," and they start listening to all of your conversations, without first procuring a warrant to do so, then they've crossed the line.
The definition of tapping itself is irrelevant--whether they use a physical tap on your physical phone line, or an electronic ear, or a bug, or a laser pointed at your window, doesn't matter. What matters is whether they're hearing you as an incident to listening lawfully to someone, or whether they've decided to listen unlawfully to you personally.
Does that help clear it up?
I was not aware of anybody talking about Congress taking away your rights to life, liberty and the pursuit of happiness.
Or were you under the impression that the Goverment's job was to guarantee that nobody else infringed on your rights to life, liberty and the pursuit of happiness?
And I haven't had any of my civil liberties impinged since we went to war with Iraq and neither has anybody else I know. I'd wager that goes for you too, and everybody else posting on this thread.
And you know this, how?
Wishing won't make it so.
Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.
Daniel Webster
US diplomat, lawyer, orator, & politician (1782 - 1852)
That's the fundamental question, isn't it? Would you willingly sell your children into slavery, if the only alternative was their death?
If this were not an issue that hit a cord with Americans we wouldn't be talking about it.
We're talking about it because the Democrats think they have found an issue they can use in the upcoming elections. That's it pure and simple. If you think those politicians crying about abuse of power really believe what they're saying you should review Clinton's abuse of the IRS and FBI and the vast silence emanating from the left regarding those abuses.
I mean that the contents are recorded and transcribed for analysis and possible action, up to and including use of force against me in order to protect the public.
If you are making outbound calls to international numbers, and those connections (not content) are captured by the NSA downlink in the U.K., that seems to be fully within its legal scope.
My understaning is that mechanical capture of the contents is constitutional, and that "issues" arise if I become the target of filtering what has already been captured. The result of filtering is my communications, which can then be analyzed by a human for consideration of further action.
But I also think a FISA warrant would be issued against your telephone calls in very short order thereafter.
I think the nature of the issue is the grounds for issuance of a warrant, or that the time required does not permit the wide, rapid-response monitoring that the government feels is prodent and reasonable to prevent terrorist violence. No doubt, in some cases (fact pattern specific, having other evidence, no clear urgency, etc.) FISA warrants are obtained. But there would be no NSA "issue" if citizens were not subjected to warrantless monitoring.
This is like saying "whats the difference between a cow and a goldfish both of them are alive".
Hmm, I didn't think I did. I believe I said ALL previous Presidents. That would include both before and after FISA. I was replying to a poster who was concerned about Hillary possibly aquiring this authority. Well, it is a historical Presidential authority, envisioned in the Constitution.
If, God forbid, Hillary were to become President, she will also need such authority to fight foreign enemies.
I would do what it took to save their lives with the hope that in time the present situation would change. History teaches us that nothing is forever.
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