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
But what are you giving up?
I was making the argument that no civil liberty was stepped on. Should the matter of preventing mass casualties give the executive authorities the unilateral power to monitor?
I meant by common definition in this country, as there were no warrants, no probable cause, no consent.
You have to read the fine print, you consented to be bound to the laws of your host country ;-) The federales don't have to express their probable cause in order to conduct the search in any event. And besides, warrants and probable cause are notions that play when more than one branch of government is acting - we are discussing the limits of permitting hidden unilateral action by one branch.
Regarding "hidden," the President asserts that this program was intended to be kept secret from the people, which implies that he figures it's outside of FISA as presently construed in the courts.
At any rate, it's an academic point, IMO, for a few reasons. The president HAS the power (the tools, the facilities, the manpower, etc.), and WILL use it as he wants and sees fit. Another being that technology admits more extensive data gathering (see Able Danger for example). Another is that as compared with the rest of the world, Americans have more Constitutional freedom - resulting in a state of affairs that any who want the most freedom will stay here even if the government steps on individual rights.
this is an aside, but there were articles recently about plans in the UK to record tag numbers with all operating cameras, so that all car trips are recorded from this time forward. I cannot imagine knowing that every car trip I ever took (from day x) existed in a government database, ready to be pulled out for any reason sufficient to order it.
Some posters only look at the legal.criminal aspects, but in dealing with an ever-growing state, it is good to consider how such data could be used to intimidate/harrass you with no legal action at all. Many presidents have abused powers they possessed for domestic political purposes (Clinton and the IRS, for example). it is naive to think that new databasing of our activities will not be subject to similar abuse in the future.
Traditionally only police states have even tried to achieve the level of serf/citizen surveillance that is now becoming possible and even implemented in some western countries (Particularly the UK). At some point, abuse of this data is going to be reported (probably long after the media knows of it, they seem to like big government too), but by then it is too late.
The reason for not obtaining FISA warrants is that they were processing large numbers of email and phone "addresses" (numbers), looking for patterns of connections.
Some would bear further scrutiny, some would be discarded. As time (days) go on, further monitoring produces (a) more interesting connections and (b) more "addresses" for addition to the "watch list".
As the network produces probable patterns of "connected" activity, then and only then do you go to FISA for a "content" warrant.
This seems to me to be a perfectly legitimate exercise of the NSA's role as a military intelligence organization.
He's justified it numerous times in the last two weeks, unambiguously. And within the scope of SJ Res 23 and the Constitution, he does have the right and responsibilty to determine what's "reasonable".
"This is a great find but I'm wondering why this case hasn't been cited by anyone. The lack of comment regarding this decision makes me think there may be other court cases since that have muddied the waters."
Since most people, watch the news, this should be repeated on the air for people to see and hear. Maybe then the extremists, will realize WE know they are not the President.
He would have not done so, had he had his way and the project was kept secret from the people. That was the arena in my mind when I composed my post - how far can he go without answering?
And within the scope of SJ Res 23 and the Constitution, he does have the right and responsibilty to determine what's "reasonable".
I'd argue that even in the absence of the AUMF, he will make an independent judgment of reasonableness. If there is an argument or difference of opinion on that, it can only be settled in hindsight, and then with the involvement of another branch of government.
Back to Lincoln, he thought suspension of habeas corpus to be reasonable under the circumstances; history showed a difference of opinion and SCOTUS (a co-equal) said that some of the suspensions of habeas were not. Likely moot for the people affected, but there it is.
There are worse things than death or its particular vehicle.
Oh, I don't. Realistically, I know they're just going to do what the hell they want anyway. But... But, they won't hear me on the sidelines cheering 'em on. If they listen in my direction I'll be loud and clear about how I feel about it. I don't like it one damned bit.
It's not fear. I just don't like it and I'll be damned if I'll sit on the sidelines and rationalize why it's good for this administration to do it simply because they're waving the GOP banner. I wouldn't like it if it were the Clintons doing it and I don't like it now. Bush doesn't need any sycophants.
But I do. And better men than me have felt the same as I- that death would be a better choice than the loss of what one holds dearest in this life.
Of course, you're free to decide what's more important for yourself and I say more power to you. But people need to understand not everyone is comfortable with the Security over Liberty argument and I'm one of 'em and I won't change my mind no matter how much I get flamed or ranted at. I'd rather die than change my mind- it's as simple as that.
Well, I only got one but he can decide for himself. This is the point. I aint demanding anyone agree with me. I am not asking anyone to conform to my point of view. I am not asking anyone to fight my battles for me.
The way I was raised, freedom was something worth killing for and something worth dying for. It was something worth sending sons and daughters out to die for.
If my son's generation would rather be 'secure' than free- well, I pity 'em. They will have lost something more precious than anything their security could ever do for them.
No, it's not. The Stasi used the exact same argument for wiretapping all of East Germany: 'National Security'. And to wit, there are still oodles of Ossies who think it was a good thing to have done.
Now, I grew up being taught by my parents and by my teachers in school that communism/socialism was evil and that wiretapping your own citizens was evil. That America, the one I was raised in, has seemingly disappeared.
Well... I see it like this. They're going to do it anyway. But that doesn't mean I can't howl in anguish against it. It doesn't mean I have to sit here and be a cheerleader for it.
My main concern is that the current generation of Americans will become used to the government monitoring their phone calls with software. The next generation will not put up as much argument when the government decides they need to look at other things too. And so forth and so on. It's that slippery slope thing you always hear thrown around. The Republicans aren't always going to be in the White House. And when we get someone really bad in the White House from the left, all the grass-roots Republicans are going to have all their arguments thrown right back in their face when they start complaining about what that President is doing.
Ok, fair enough. They can interpret the law how they need to to do what they want to do- they always do. But later on when I want to complain about Hillary doing it- I'll have some moral authority while the ones cheerleading this stuff will have to rationalize why it was ok for Bush but not for Hillary.
I don't care if it makes me unpopular here or not. It's the long run that matters to me.
So you think that G.W. is the first President ever to do this?
Well, that's you. I don't want him listening to mine.
"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 am confused over this. The President, any president, has plenary powers under the Constitution that are absolutely independent of Congress or the Judiciary. Under Article II he is Commander in Chief. As such any president has both the power and responsibility to intercept intel in the war on terror.
THIS president is using a system of checks and ballances well beyond anything required by anything. The program is reauthorized every 45 days, is extensively reviewed, and has been run by Justice. In addition, there are a host of federal legal decisions that support a foreign intel exemption to the 4th.
Unless one can explain to me how using a system that is not unlike my computers virus or spyware scans in some way equates with reading my mail, I will simply observe the issue is a tempest in a teacup.
The president has this power
The president has always had this power
Every president holds this power
Neither congress nor the courts can remove the power
The power has most assuredly NOT been abused
No one is reading millions of communications, instead they are scanned like a virus scan on a computer and only if such a treason virus pops up in the review, is anything really read at all.
Why not worry about eminent domain abuse, takings through regulation, or the IRS and BATF, all things that are filled with real abuse and that occur each and every day??
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