Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

President may constitutionally authorize warrantless wiretaps!!
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN ^ | June 13, 1979 | OPINIONBY:FREEMAN

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


TOPICS: Constitution/Conservatism; Foreign Affairs; Front Page News; News/Current Events; War on Terror
KEYWORDS: authority; executiveorder; good; nsa; search; spying; unconstitutional; warrantless
Navigation: use the links below to view more comments.
first previous 1-20 ... 121-140141-160161-180 ... 241-260 next last
To: Shalom Israel
It's ironic, because under those circumstances probable cause is airtight, and getting a warrant should take about five minutes. IOW, the argument for a warrantless tap is in reality the strongest argument why they should certainly go for a warrant.

It should take a few minutes, but it's often a few weeks. While it's true that the approval rate is very high, that's because the vetting process is extremely stringent. So the 'tap now warrant later' line doesn't work, because it the warrant request wouldn't be ready by the deadline, and may not be approved anyway.

On that note, you don't want judges to simply rubber stamp warrants anyway. They're doing their job correctly. A warrant can be used in building a criminal case, and so needs to be a legitimate tool of law enforcement. But for intelligence collection purposes, you don't care about pressing charges, only disrupting incoming attacks. Authorizing 'rubber stamped warrants' is a threat to our personal liberties far, far greater than any secret wiretapping program.

That said, FISA judges are not going to give a warrant to wiretap a phone based on no evidence other than calling contacts. It could be a wrong number, there could be a U.S. citizen on the other end of the line that may not realize they're talking to a terrorist, you just don't know. It's suspicious, sure, but there's no proof, in the legal sense, that the person on the other end of the phone is doing anything illegal.

You could probably do some quick research into a suspicious number and determine if there's a bad guy at the other end, but if you're waiting on a warrant, you aren't going to get anywhere based on a 'hunch'. If you had corroborating information like a source on the inside passing us information, that would be good grounds, but our HUMINT is still underdeveloped and weak.

In short, it seems that this program is closing a legal loophole that created a blind spot in our intelligence collection. The same blind spot that allowed Al Qaida to sneak past us prior to 9/11. With a transnational enemy you need a tool to combat the threat effectively. We simply didn't have one before this.

141 posted on 01/03/2006 10:18:57 AM PST by Steel Wolf (If the Founders had wanted the President to be spying on our phone calls, they would have said so!)
[ Post Reply | Private Reply | To 23 | View Replies]

To: Miss Marple
NSA is listening to calls into the USA from AQ and known AQ contacts. They are not listening to you, unless you are getting calls from such people.

*************

A fact conveniently ignored by those who oppose President Bush on this issue.

142 posted on 01/03/2006 10:25:27 AM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: SBD1

I understand your point on the separation of powers and that the Congress cannot pass laws restricting the right of the President, but what about the fact that the President signs such law? Does he thereby subordinate his rights to the legislation voluntarily?


143 posted on 01/03/2006 10:28:59 AM PST by scannell
[ Post Reply | Private Reply | To 1 | View Replies]

To: Cboldt; airedale

"Reasonable" is what a president thinks it is, regardless of whether that decision has any basis in the larger reality. Remember, this is the same government that says "anything that gets us more tax revenue" means the same as "public use."


144 posted on 01/03/2006 10:56:31 AM PST by antiRepublicrat
[ Post Reply | Private Reply | To 117 | View Replies]

To: Cboldt

Or we could just follow the Constitution, which is what I proposed.


145 posted on 01/03/2006 10:59:00 AM PST by Recovering_Democrat ((I am SO glad to no longer be associated with the party of Dependence on Government!))
[ Post Reply | Private Reply | To 38 | View Replies]

To: Recovering_Democrat
Or we could just follow the Constitution, which is what I proposed.

We're in agreement then! Follow the Constitution, voila. I just don't get all the ruckus when everybody is in agreement.

146 posted on 01/03/2006 11:02:44 AM PST by Cboldt
[ Post Reply | Private Reply | To 145 | View Replies]

To: antiRepublicrat
"Reasonable" is what a president thinks it is, regardless of whether that decision has any basis in the larger reality. Remember, this is the same government that says "anything that gets us more tax revenue" means the same as "public use."

It would be much more tidy if it was out of the public dialog.

147 posted on 01/03/2006 11:04:09 AM PST by Cboldt
[ Post Reply | Private Reply | To 144 | View Replies]

To: angkor
With the help of your watch list, you now observe which connections "light up".

You're talking about what in the phone business is known as a pen register or trap and trace, and it extends to the Internet. This data is considered to have no real constitutional protection, the only protections existing in current law. To get a warrant for that, law enforcement just has to tell the judge they need it in relation to an ongoing investigation, and the judge "shall issue" it.

148 posted on 01/03/2006 11:04:53 AM PST by antiRepublicrat
[ Post Reply | Private Reply | To 123 | View Replies]

To: MEGoody; CrawDaddyCA
So you think that G.W. is the first President ever to do this?

He isn't. 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.

149 posted on 01/03/2006 11:09:50 AM PST by antiRepublicrat
[ Post Reply | Private Reply | To 138 | View Replies]

To: trisham
They are not listening to you, unless you are getting calls from such people.

A fact conveniently ignored by those who oppose President Bush on this issue.

A fact? Are you sure?

150 posted on 01/03/2006 11:11:41 AM PST by antiRepublicrat
[ Post Reply | Private Reply | To 142 | View Replies]

To: antiRepublicrat
A fact? Are you sure?

****************

Feel free to provide evidence to the contrary.

151 posted on 01/03/2006 11:13:11 AM PST by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
[ Post Reply | Private Reply | To 150 | View Replies]

To: trisham
Feel free to provide evidence to the contrary.

Shamrock, Minaret, CHAOS, COINTELPRO. Presidents have a firm history of doing it when they believe they have the power. History tends to repeat itself when it comes to government power, so there are decent odds that it has been abused. Far from "fact" that it has not.

152 posted on 01/03/2006 11:25:59 AM PST by antiRepublicrat
[ Post Reply | Private Reply | To 151 | View Replies]

To: Lady Heron
Not with a democrat judge playing politics with our safety.

If a judge should be impeached, or arrested, then impeach, or arrest him. I wouludn't start using it as an excuse to just bypass the judicial system entirely.

153 posted on 01/03/2006 11:38:37 AM PST by Shalom Israel (Pray for the peace of Jerusalem.)
[ Post Reply | Private Reply | To 119 | View Replies]

To: Prodigal Son
Better to have al Qaeda cut my head off than to give up everything that makes life worth living. bravado Dictionary bra·va·do (brə-vä'dô) n., pl. -dos or -does. Defiant or swaggering behavior: A pretense of courage; a false show of bravery. A disposition toward showy defiance or false expressions of courage.
154 posted on 01/03/2006 11:43:53 AM PST by saganite (The poster formerly known as Arkie 2)
[ Post Reply | Private Reply | To 130 | View Replies]

To: Prodigal Son
Hmmmm. So, what's the difference between the Stasi in East Germany saying it was for 'National Security' and a democratic White House under Hillary Clinton saying it's for 'National Security'? And when it's no longer Al Qaeda they're worried about? When they begin to consider political action groups to be a threat to 'National Security'? What then?

The rest of you can lap this up if you want- that's you're choice of course- but nothing on this Earth can make me like this. If that makes me a 'bad conservative'- I don't care.

If she is in power under your terms, what's to stop a Clinton sympathizer judge from authorizing a bad search on you with a warrant? De facto bad ending for you if you extrapolate. IOW, in this new paradigm we a living in, you have to trust the good guys RIGHT NOW. We can deal with Hillary later, namely at the polls.

155 posted on 01/03/2006 11:55:05 AM PST by 101st-Eagle
[ Post Reply | Private Reply | To 7 | View Replies]

To: Prodigal Son
I guarantee that if this were Al Gore doing this right now, you would find narry a Freeper to go along with it and that they do it now just to support this President is a bit sickening in my opinion.

I don't know about that. I think conservatives are different than traitorous liberals because, in general, we rally behind even a Democrat in times of war when the enemy is real, as this one has been for many years.

156 posted on 01/03/2006 11:58:24 AM PST by 101st-Eagle
[ Post Reply | Private Reply | To 10 | View Replies]

To: Cboldt
It would be much more tidy if it was out of the public dialog.

Definitely. The Pentagon Papers and COINTELPRO were really messy and embarrassing too once they hit the public dialog.

157 posted on 01/03/2006 12:10:57 PM PST by antiRepublicrat
[ Post Reply | Private Reply | To 147 | View Replies]

To: CrawDaddyCA
I'm glad someone else is thinking of the future and not just the here and now.

Indeed. People around here seemed a lot clearer on the concept that this country has a President, not a King, prior to 20 January 2001....

158 posted on 01/03/2006 12:13:48 PM PST by steve-b (A desire not to butt into other people's business is eighty percent of all human wisdom)
[ Post Reply | Private Reply | To 8 | View Replies]

To: Badray

I think that I replied to the wrong post. When I posted that I was up damn near 24 hours. Sorry.


159 posted on 01/03/2006 12:21:35 PM PST by Badray (In the hands of bureaucrat, a clip board can be as dangerous to liberty as a gun.)
[ Post Reply | Private Reply | To 44 | View Replies]

To: SBD1
EXECUTIVE ORDER 12949

- - - - - - - FOREIGN INTELLIGENCE PHYSICAL SEARCHES




By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.

Sec. 3. Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches:

(a) Secretary of State;

(b) Secretary of Defense;

(c) Director of Central Intelligence;

(d) Director of the Federal Bureau of Investigation;

(e) Deputy Secretary of State;

(f) Deputy Secretary of Defense; and

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advice and consent of the Senate.

WILLIAM J. CLINTON
THE WHITE HOUSE,
February 9, 1995.
160 posted on 01/03/2006 12:25:24 PM PST by mnehring (“Anybody who doesn’t appreciate what America has done and President Bush, let them go to hell”...)
[ Post Reply | Private Reply | To 1 | View Replies]


Navigation: use the links below to view more comments.
first previous 1-20 ... 121-140141-160161-180 ... 241-260 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson