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Sheesh. Looks like I got it backwards but as I understand it now the case finally said nothing about 4th amendment rights as the appeals court said he failed to assert them. Cosequently this case says nothing about the current debate. Is that right?

The fact pattern admits obfuscation, since more than one government agency is involved. I'll try to make a short version with regard to the "warrantless wiretapping" charge. The lower court held that the government action violated Jabara's fourth amendment rights because the FBI selection of NSA intercepts ("give us all your Jabara stuff") targeted Jabara, was not accompanied by a warrant, and Jabara did not fit the "foreign agent" definition.

The Circuit Court of appeals construed the lower court decision in a specific way, "that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications." The Circuit Court focused on the passing of information from the NSA to the FBI, and blew off any questions about the obtaining or "filtering" of NSA-held data. Intellectually, that's pretty cheezy. At any rate, the Circuit Court said the NSA surveillance was lawfully received because Jabara didn't assert otherwise; and information in the lawful possession of the NSA can be passed to the FBI without a warrant.

I think the fact pattern is pretty square with the fact pattern at hand in the current NSA debate; but if you take the Circuit Court case on it's face, it doesn't probe the questions of obtaining, filtering or forwarding NSA-held data. In that sense, I think it isn't helpful. As a matter of intellectual pursuit, the two cases together are darn good.

Eventually, what one who studies this stuff realizes, is that nearly ALL appellate cases are outcome driven. The fact that this Circuit Court decision is (IMO) logically weak does not mean that its outcome would not be upheld under a Supreme Court review. Right now, this case is the law of the Circuit.

Sheesh. Looks like I got it backwards but as I understand it now the case finally said nothing about 4th amendment rights as the appeals court said he failed to assert them. Cosequently this case says nothing about the current debate. Is that right?

Both the lower court and appeals court had plenty to say about the 4th amendment. The appeals case speaks for itself, and I think can be construed in various ways that are useful in the current debate. But the case does not challenge the Constitutionality of NSA data gathering, nor does it probe or challenge the propriety of filtering that information in response to warrantless FBI requests for specific information.

The district court, in determining that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications, distinguished the holding of the District of Columbia Circuit in Halkin v. Helms, 598 F.2d 1 (1978). There the court held (see note 5 herein at page 275) that application of the state secret privilege required dismissal of plaintiffs' claims based on alleged interception by the NSA of their overseas communications because the fact of interception need not be and was not divulged. Here, on the other hand, defendants had divulged the interception and later transmittal to the FBI. ^8 Thus, the district court reasoned, the state secret privilege was no impediment to the adjudication of Jabara's fourth amendment claim. The district court went on to hold, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the fourth amendment was implicated since Jabara had a reasonable expectation of privacy with respect to his overseas telegraphic communications. The district court further held that, since the record, classified or otherwise, did not reveal evidence that Jabara was a foreign agent or was acting in collaboration with a foreign agent, even if there is a foreign agent exception to the warrant requirement, the exception could not be applied here. The district court therefore granted summary judgment and injunctive relief to Jabara. 476 F.Supp. at 577-579.

As heretofore stated, Jabara does not contend on appeal that the NSA's interception of his foreign telegraphic communications violated his fourth amendment rights, and therefore we may take as a given the proposition that the NSA lawfully received and was in possession of the communications. From this proposition defendants argue, we think correctly, that Jabara's fourth amendment rights were not violated when the summaries were turned over to the FBI because this was not a "search" or "seizure" within the meaning of the amendment. ...

Jabara contends, however, that there was a "search" or "seizure" when the summaries were turned over by the NSA to the FBI under the holding in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). There some pornographic 8-millimeter films, in boxes that were in sealed packages, were misdelivered after shipment, and the recipient opened the packages. On the boxes were descriptions and drawings that clearly indicated their contents. The recipient, however, did not view the films but turned them over to an FBI agent. FBI agents, then, without a warrant, viewed the films with a projector. The question before the Court was whether the films should have been suppressed because the showing of the films with a projector was an illegal search under the fourth amendment.

In a five-to-four decision, the Court held that the showing of the film with a projector was a "search" and therefore the showing violated the fourth amendment. Justice Stevens authored the lead opinion for the majority, saying (447 U.S. at 654, 100 S.Ct. at 2400):

(N)otwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.

It is perfectly obvious that the agents' reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation-that is to say, a search of the contents of the films-was necessary in order to obtain the evidence which was to be used at trial.

The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field's opinion for the Court in Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877, established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.

(Citations and footnotes omitted).

In the instant case, on the contrary, Jabara's very words, summaries of which were supplied to the FBI, had been lawfully intercepted by and were in the records of the NSA. NSA therefore already had in its records, after it intercepted, all that it supplied to the FBI. Jabara appears to argue, however, that the fact that the NSA acquired, stored and retrieved a large amount of information using sophisticated, high-technology methods and equipment should lead to the conclusion that the NSA's acquisition of Jabara's telegraphic messages was not a search and that the only search occurred when, at the request of the FBI, the NSA retrieved Jabara's messages and delivered summaries to the FBI. There are two difficulties with this argument. First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI. Second, to the extent that Jabara relies on alleged facts surrounding the methods and technology of acquisition, storage and retrieval of information, such are, as was held by the district court, subject to the state secret privilege. It was recognition of the effect of the privilege that caused the district court to limit its consideration to the question whether the targeting of Jabara's communications by the FBI, in obtaining the summaries from the NSA, was a fourth amendment violation irrespective of the facts surrounding the acquisition, storage and retrieval of the information by the NSA. ... [snip discussion of "Bailey" case, where a warrant is required to insert a "beeper" to track a drum of chemicals] ...

We consider it irrelevant whether a particular governmental intrusion is classified as a "search" or as a "seizure." What matters is whether it violates an individual's legitimate expectation of privacy. Therefore, it is not necessary to speculate whether a beeper "searches" or "seizes" anything.

Our court then quoted (628 F.2d at 941) from Justice Harlan's concurring opinion in Katz to the effect that, while a reasonable expectation of privacy is the test, this means that the person asserting the claim must have exhibited an actual (subjective) expectation of privacy and that the expectation must be one that society is prepared to accept as reasonable.

Applying this analysis utilized by our court in Bailey, we agree that Jabara exhibited an actual (subjective) expectation of privacy when he sent the telegraphic massages overseas. But the question here is whether he had an expectation of privacy that society is prepared to recognize as reasonable after the messages had lawfully come into the possession of the NSA. For it was after the messages were intercepted and within the possession of the NSA and only when they were delivered to the FBI that Jabara contents that his fourth amendment rights were violated. We do not believe that an expectation that information lawfully in the possession of a government agency will not be disseminated, without a warrant, to another government agency is an expectation that society is prepared to recognize as reasonable. In this connection, we believe that it is irrelevant that Jabara did not know that the NSA had intercepted his messages. To hold otherwise would in many instances require, for fourth amendment purposes, a succession of warrants as information, lawfully acquired, is passed from one agency to another.

We conclude, therefore, that Jabara's fourth amendment rights were not violated when the FBI obtained summaries of his overseas telegraphic communications from NSA and that the district court erred in granting summary judgment to Jabara and that, on the contrary, it should have granted summary judgment to defendants as to this claim.

There was a brief dissent ...

MERRITT, Circuit Judge, dissenting from the order of the Court denying a rehearing en banc.

I believe that Jabara's Fourth Amendment rights were probably violated when the FBI, without a warrant, requested and received summaries of Jabara's overseas messages. I am of the opinion that the issue is of sufficient importance to require a hearing by the full Court.

The case cited here was over ruled on appeal.

The (lower court -- District Court) case sited here stands for the proposition that the warrantless sureveillance by NSA against Jabara violated Jabara's fourth amendment rights. The Circuit Court of Appeals reversed that conclusion, on the grounds that Jabara failed to assert that the NSA activity violated his fourth amendment rights; and that since Jabara conceded the information was lawfully obtained, it was not a violation of the fourth amendment to pass the information to the FBI.

The appellate case (Jabara v. Webster, 691 F.2d 272 (1982)) has an Alice in Wonderland quality ;-)

Jabara, however, does not even contend on this appeal that the interception by the NSA violated his fourth amendment rights; we may therefore take as a given that the information was legally in the hands of the NSA. What Jabara does contend, and the district court agreed, is that his rights were violated when the NSA turned over the information, without a warrant, to the FBI. Defendants, on the other hand, contend that, since the NSA had lawfully intercepted and had made a record of the content of Jabara's communications, the fourth amendment was not implicated when the FBI requested and obtained the summaries from the NSA. This is so, defendants contend, because there simply was no "search" or "seizure" when this information was turned over to another agency of the government.

I'd be comfortable, based on what I have read, in betting a considerable sum of money that they had been provided access to at least Secret level material, and most likely higher.

See, e.g., Pentagon Papers which were classified.

What if the administration wanted to leave the impression that the laws were such that terrorists could call US citizens without fear of tapping.

FISA says international calls are fair game, or more narrowly, where one end of the call is "Abdul, out of the USA."

What if the Bush wanted terrorists to keep their guard down?

I'm sure that's the case.

Such a policy disclosure would amount to disclosing methods.

Then the FISA statute itself amounts to disclosing methods, because it sets forth policy boundaries.

At some point, I think it is useful to have some rhetoric available to distinguish the range of acceptable uses (policy) from the way those uses would be accomplished (technology) and any specific intelligence obtained thereby. I inserted the word "policy" in order to facilitate that sort of differentiation. The policy under FISA is to limit warrantless surveillance targeting "United States persons" in a specific way. I hold that saying "there is surveillance outside of the FISA bondary" does not amount to disclosing a method.

If saying "there is surveillance outside of FISA boundaries" amount to a violation of law, color me guilty.

The program itself may not be classified information; however, its targets may be.

Its specific targets CERTAINLY are classified information. The difference, I surmise, between the contested NSA program and FISA is the broad admission that the contested NSA program (policy) includes SOME U.S. people as targets of warrantless surveillance.

The fact that one of the earliest (and unsuccessful) challenges to the NSA program involved a specific defendant (whose name is part of the U.S. Supreme Court case that he eventually lost) and a specific security-related issue tells me that there is nothing classified about what the NSA has been doing.

The general capabilities of the NSA are public, and have been for years due to Senate hearings and court cases.

But the specifics of the capabilities, as well as the intelligence gathered, is classified and protected. One term of art in the law is "methods and procedures." An old method, for example, was a spike microphone. Disclosing the existence and/or capability enabled by a spike microphone would have been a violation.

I agree with your later conclusion, NYT is not in violation of a statute. NYT has disclosed a policy exapansion. THis does not provide any specifics relating to capability or methods for carrying out the policy.

There are mechanisms in U.S. law to deal with classified information in criminal court cases (e.g., having the case heard in a special court outside public view), and the fact that these mechanisms were not put into motion in the 1979 case is a very telling sign.

If you are thinking of the Jabara cases, some of the evidence was taken in Camera - not even provided to Jabara.

The NSA intelligence gathering operation is described sufficiently for present purposes in Halkin, 598 F.2d at 4, as follows (footnote omitted):

A brief description of NSA and its functions is appropriate. NSA itself has no need for intelligence information; rather, it is a service organization which produces intelligence in response to the requirements of the Director of Central Intelligence. Intelligence Activities: Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the U. S. Senate, 94th Cong., 1st Sess. Vol. V at 9 (1975) (Hearings). The mission of the NSA is to obtain intelligence from foreign electrical communications. Signals are acquired by many techniques. The process sweeps up enormous numbers of communications, not all of which can be reviewed by intelligence analysts. Using "watch-lists"-lists of words and phrases designed to identify communications of intelligence interest-NSA computers scan the mass of acquired communications to select those which may be of specific foreign intelligence interest. Only those likely to be of interest are printed out for further analysis, the remainder being discarded without reading or review. Intelligence analysts review each of the communications selected. The foreign intelligence derived from these signals is reported to the various agencies that have requested it (Hearings at 6). Only foreign communications are acquired, that is, communications having at least one foreign terminal (Hearings at 9).

http://www.freerepublic.com/focus/f-news/1550960/posts?page=35#35 <- work back from there

Hearings begin on the 9th.

It is likely that there is no crime involved in the dissemination of information about an NSA program that has been written into U.S. law and has passed Supreme Court review on a number of occasions dating back at least as far as 1979.

I had a similar thought yesterday. If the warrantless surveillance is inside the policy limits set by FISA, and the NYT only discloses policy, not methods or capabilities, then what's the leak?

FWIW, I think parts of the anti-terrorism surveillance are outside the policy limits set in FISA, and that is why the strong objection to public disclosure.

There's more of a difference between what Nixon did and what this administration has done, but maybe some can't see it.

I think we can all see the differences. Did you read the details of the national security surveillance, etc.? There is lots of history there. What about Porter Goss's comments? Is he full of crap?

No reply needed, BTW. Take care.

We need to be praying for the recovery of Randy, he's got a real fight ahead of him.

My dear daughter, bless her heart, on hearing he was dehydrated, got to wondering if he had a living will.

LOL I would say that the whole Nixon thing was a bit different from what we are talking about with the present administration.

Yeah, that would change the assertion to ...

"Of course, the results of previous presidents having spied on Americans using the 'national security' excuse were scandal, congressional investigations, and new laws to prevent it."

Thank you for the information, however, it doesn't mention articles of impeachment, et al that antiRepublicrat mentioned.

Article 2: Abuse of Power.

Using the powers of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, imparting the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposes of these agencies. This conduct has included one or more of the following:

(1) He has, acting personally and through his subordinated and agents, endeavored to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposes not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigation to be initiated or conducted in a discriminatory manner.

(2) He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; and he did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.

(3) He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens, authorized and permitted to be maintained a secret investigative unit within the office of the President, financed in part with money derived from campaign contributions to him, which unlawfully utilized the resources of the Central Intelligence Agency, engaged in covert and unlawful activities, and attempted to prejudice the constitutional right of an accused to a fair trial.

(4) He has failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted executive; judicial and legislative entities concerning the unlawful entry into the headquarters of the Democratic National Committee, and the cover-up thereof, and concerning other unlawful activities including those relating to the confirmation of Richard Kleindienst as attorney general of the United States, the electronic surveillance of private citizens, the break-in into the office of Dr. Lewis Fielding, and the campaign financing practices of the Committee to Re-elect the President.

(5) In disregard of the rule of law: he knowingly misused the executive power by interfering with agencies of the executive branch: including the Federal Bureau of Investigation, the Criminal Division and the Office of Watergate Special Prosecution Force of the Department of Justice, in violation of his duty to take care that the laws by faithfully executed.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

(Approved 28-10 by the House Judiciary Committee on Monday, July 29, 1974.)

http://www.historyplace.com/unitedstates/impeachments/nixon.htm

Obviously, the articles of impeachment describe conduct that is far different from warrantless surveillance for national security purposes, and I haven't seen any comparison of GWB with Nixon in that regard.

The broader point is that the tools of surveillance can be misused. " 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."

While the events leading to the Watergate impeachment articles probably did not include any claim of "the black bag job was in the interest of national security," (in fact, it was called a 3rd rate burglary), the object of the post is to get readers to carefully consider trust in government, and in particular, concentration of authority in any one branch.

Thank you for the information, however, it doesn't mention articles of impeachment, et al that antiRepublicrat mentioned.

I think that is a reference to Nixon. The warrantless surveillance of Watergate and all that.

Listening into someone from one of the drug cartels calling a major dealer in the US without a warrant would IMO be unreasonable.

That was one of the primary uses of warrantless wiretapping in the '70's.

What if the drug kingpin was also considering terror? There is one instance of a drug kingpin downing an airplane in order to dispose of witnesses. IIRC, over 100 dead.

Here are some facts on that one (granted, the terrorism was not "in the US," but the incident points out that there is no way to untangle "terrorism" from other activities.

Incidents of Major Airline Terrorism. By Wm. Robert Johnston.

Nov. 27, 1989 -- A bomb exploded aboard a Colombian Avianca Boeing 727 passenger jet departing Bogota, Columbia, en route to Cali, at 7:16. Exploding 5 minutes after takeoff in a passenger seat, the bomb ignited fuel vapors and caused the plane to crash, killing all 107 aboard as well as 3 on the ground. The bomb was planted by members of the Medellin drug cartel, led by Pablo Escobar who was charged by the U.S. in August 1992. The bomb may have been supplied by Islamic terrorists, based on similarities to the one that destroyed Pam American Flight 103. Five passengers were informants who had been targeted by the drug cartel. Two Americans were among those killed. Fatalities: 110.

Listening into someone from one of the drug cartels calling a major dealer in the US without a warrant would IMO be unreasonable.

That was one of the primary uses of warrantless wiretapping in the '70's.

What if the drug kingpin was also considering terror? There is one instance of a drug kingpin downing an airplane in order to dispose of witnesses. IIRC, over 100 dead.

Drawing lines between "reasonable" and "unreasonable" isn't easy, and at some point will come off as somewhat arbitrary.

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.

Really? Got some examples? I sure don't remember all that fuss.

Excerpts from 1975 Senate Hearings re: NSA Activity

That page is excerpts. The source links there (lengthy) have a good deal of history and law. Some examples are warrantless surveillance of MLK & Commies. Hoover's FBI ran warrantless surveillance programs that he ordered be kept from Congress.

See also House Report 106-130, jumping to Porter Goss's comments at the end. Most of his commentary is aimed to justify Congress sticking its nose in, but opens with the following ...

ADDITIONAL VIEWS OF CHAIRMAN PORTER J. GOSS

Recently, and perhaps for the first time in the committee's history, an Intelligence Community element of the United States Government asserted a claim of attorney-client privilege as a basis for withholding documents from the committee's review. Similarly, various agencies within the Intelligence Community have asserted, with disturbing frequency, a `deliberative process' or `pre-decisional' argument as a basis for attempting to keep requested documents from the committee's scrutiny. These claims are unpersuasive and dubious.

As part of its regular oversight responsibilities and preparatory to the committee's legislative action on this bill, the committee was questioning the National Security Agency's (NSA) application of current operational guidelines in light of the enormous technological advances that have been made in the past several years. The committee was seeking to ensure that the NSA was carrying out its signals intelligence mission in consonance with the law, relevant executive orders, guidelines, and policy directives. At bottom, the committee sought to assure itself that the NSA General Counsel's Office was interpreting NSA's legal authorities correctly and that NSA was not being arbitrary and capricious in its execution of its mission. ^1

[Footnote 1: In the 1970s it was learned that the NSA, as well as other elements of the United States intelligence community, engaged in serious abuses of the privacy interests of U.S. persons. The congressional hearings on these and other matters led directly to the establishment of the Senate Select committee on Intelligence; see S. Res. 400, 94th Congress; and the House Permanent Select Committee on Intelligence (HPSCI); see H. Res. 658, 95th Congress. Additionally, as a result of those inquiries, executive orders were issued and guidelines and policy statements were promulgated defining the mission of the NSA and its legal obligations and responsibilities pursuant to the Constitution and other laws of the United States. See Legislative Oversight of Intelligence Activities: The U.S. Experience, Senate Select Committee on Intelligence, 103rd Cong., 2d Sess., at 2-6 (Comm. Print)(October 1994).]

But for intelligence collection purposes, you don't care about pressing charges, only disrupting incoming attacks.

You want both. There's tension between requiring probable cause and preventing criminal activity before it occurs. But the folks charged with prevention do want to eliminate the threat.

Authorizing 'rubber stamped warrants' is a threat to our personal liberties far, far greater than any secret wiretapping program.

And there is also tension between civil liberties and preventive law enforcement. Dragging the courts into a secret monitoring program (i.e., the courts are willing co-participants) would signal a deeper systematic threat to civil liberties than when the executive branch unilaterally undertakes warrantless surveillance, but others have noted pretty well, "If it's targeted only at bad guys, and the public is unaware, is it really a threat to personal liberties?"

I don't think they had an embedded reported in the mine and am pretty sure the information relayed was what was given to them by the command center.

The post mortem I'm reading indicated the media said "unconfirmed reports," and the media is inclined to blame the command center for not acting faster to correct the unconfirmed report.

The media was an unwitting part of the rumor mill, the megaphone part, a positive feedback loop where the word "unconfirmed" was quickly lost is the euphoria.

Newsweek's "Flush the Koran"