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
I would much rather fight the forces that seek to enslave them while these forces might still be defeated. Wouldn't you?
I meant to ping you all to #70 for corrections, adjustments, etc.
Yeah - I'm just using shorthand. FISA covers a range of entites from foreign enemy to loyal born-citizen, with a few stops in between.
FISA was passed in response to the Church Committee so it's going to be really hard on any kind of intelligence work.
That pesky Constitution, especially the 4th amendment, is an impediment, no doubt. ;-)
Some links here -> http://www.freerepublic.com/focus/f-news/1550340/posts?page=51#51 for inquiry into the history of FISA and some of the concerns relating to warrantless surveillance.
That is precisely how Rome went from a (mostly) free republic, to an empire, to a kingdom, to a disunited Europe.
BTTT!
The President made an extraordinary decision that day....to shoot down our own planes in necessary. It was an extraordinary statement and I know we all cringed.
Fortunately, we had EXTRAORDINARY CITIZENS who in all likelyhood saved our Nations Capital, the majority of the buildings and the as*** of not only ordinary citizens but MANY POLITICIANS from destruction. They should kiss the ground they walk on!!
I hope that after 9-11, that the President issued an order to investigate the possibility of other planes being used as missiles, i.e., checked ALL THE PASSENGER LISTS looking for other terrorists.
We found some cells. Some of these folks were citizens. May they fry in hell.
Treason is not a right under the Constitution embolded by the right to Privacy.
Someone here on FR referred to Lincoln's statement: The Constitution is not a suicide pact. I can't think of a better way to say it.
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.
Again I say, you may be right. I was imagining a person avoiding the creation of any pattern, generally by staying quiet. A sleeper, if you will. If it takes one or two coded contacts to initiate pre-planned action, then waiting for a pattern will not result in prevention.
If I am charged with preventing attacks, I want the contents of the communications.
I don't know either. I have a vague picture of administrative "promises" about the use of intelligence gleaned, in order to separate the use of intelligent in a "foreign intelligence" sense (e.g., terrorism prevention), vs. for crime prevention or prosecution.
Well your first problem is you've asked an intelligent well thought out question that looks at the larger picture and takes the future into consideration. May I suggest you shut down your higher brain functions (you know that part that remembers the intent of the Framers) and just play along subject citizen. After all since the current leadership has a R by its name it can do no wrong and always has our best interest at heart...
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)
Are you being obtuse? The issue that's been raised on thise thread (yet again) is that the wiretapping is posing an unacceptable violation of privacy.
My point is, if we don't do what's necessary to protect the nation our basic liberties are threatened. The government's job is to protect the nation's interests, it's borders (not a stellar track record, I'll grant you on this one) and the citizenry from attack. Civil liberties come second to basic liberties in my book. This really isn't hard to grasp...
To answer your last question, I just returned from Mexico where our bus was searched by federales. My civil liberties, although non-existenent there, were by definition, violated. In fact, we were racially and nationally profiled. Nothing even remotely like that happens here. Since I don't fund or speak with terrorists, I have little concern I'm being scrutinized. Why? Because there's no reason to. The govt. will put it's time, money and energies in the direction that it's most needed. And that isn't me.
I find recent the indignant "concern" about practices that go back to the days of Hoover and probably beyond most amusing.
If you aren't talking to AQ, I doubt you have much to worry about. But if you need something to keep you up at night, be my guest.
Me, I'll worry about a suitcase nuke in Boston or Omaha, not about the methods that were used to try to prevent it from going off.
Than that makes whatever else you have to say about this absolutely legitimate. And I respect that.
Another part of the issue is who decides reasonable v. unreasonable, and whether or not there is an obligation to explain the boundaries between reasonable and unreasonable.
If you're driving across the country they can't search your luggage or car without a warrant (with exceptions)
Heheheh - "with exceptions."
So are you for or against the President having this power?
Being against Clinton and MSM isn't really all that interesting of a stance here at FR.
Do you think that President Hillary should have these powers or not? Take a stance.
WE all think you folks have shut down your brains and not looked at the big picture. There is no accident that our natural rights begin with Life, followed by Liberty.
Truly it is one of the finest things Lincoln never said...
I agree with the constitution and it says yes.
It's not what I believe. The President has these powers at his disposal and Bush isn't the only one who has used them. If the current effort to roll back some of these powers succeeds that's fine. However, claiming Bush has violated the constitution by using these powers won't get far in court. The MSM and the Democrats will be able to mislead the public though so it will be a campaign issue.
Personally, I believe Bush did the right thing to authorize the NSA to listen in on terrorists plotting attacks on this country. That should be clear enough for you.
Steganography.
To assume that the terrorists are not expecting us listening in is absurd. They will be taking all sorts of measures to avoid dedection.
I agree.
Asking FISA permission for any of these monitorings would likely yield a no answer. If it were done once, the administration would have a problem with precedents set.
I don't think the warrants are drawn in a way that limits the ability to gather whatever useful data is there. The NSA issue is whether or not a reasonable expectation of privacy (impying a private communication) of a US citizen is violated by a warrantless intrusion that supposedly is also short on probable cause.
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