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
The fact that the government is not doing things that are entirely appropriate and within their power to protect the nation, and is instead doing other things, should concern even you.
In any case, I think you are off-base in your assertion that the Constitution's statements in support of the rights of life, liberty and the pursuit of happiness means the government can do whatever is necessary to stop all crime. After all, there are a host of legitimate restrictions on government when it comes to stopping crime. If it is a mugger in the alley instead of a suicide bomber on the bus, are you any less dead?
If I receive one word that unlocks a coded meesage in an otherwise mundane conversation and I have never had previous communication could the US get a warrant even after the fact?
What you and ProdigalSon are failing to understand is that DemRats like Hillary wouldn't bother with little things like LAWS and the constitution ANYway, so why even worry about that? We already know that for a fact from their past 8-yr history in office and little things like almost a thousand FBI files on their opposition which they obtained illegally, using the IRS to harass their political opponents, selling our military missle technology to the commies, and sending in jack-booted thugs to wipe out whole families.
If Bush fails to protect this country from another attack, the lefties will be back in power as soon as the next election occurs ANYway (and probably even sooner if they managed to finally get their Impeachment Wish). We have to worry about the here and now because if we don't survive the here and now, there won't BE anything else to worry about for our future. And that is exactly what Bush is doing and has been doing. Taking care of the present, here and now.
If that philosophy makes me a Bushbot in your eyes, I'll take that hit. And GLADLY so.
Yup. That's a perfectly legitimate stance. Thanks.
All the US could know (if it even knows this) is that you received a message from somebody. And I think you're onto the nub of the NSA issue. If the person you received a communication from (not necessarily the coded one) is suspected of being a terrorist, should the government be required to obtain a warrant to monitor your communications? Does one contact constitute probable cause?
Or maybe the timeframe for obtaining a warrant is such that the delay admits too much risk of attack.
Even if it is technically legal. is it a good idea? The government has a long and proven track record of abusing the power to intercept communications. If not this president, then the next, or the next, but it will be abused.
I'm not even sure I trust this president. After all, he showed no regard for constitutional rights in signing CFR and promising to sign the reauthorization for the "assault weapons" ban. He had protesters he didn't like arrested on the sidewalk of the governor's mansion. He was even in an abuse of eminent domain in a land grab for private gain, and don't forget his "There ought to be limits to freedom" quote when referring to the 1st Amendment rights of his detractors.
Why should he care about our rights when it comes to intercepting communications?
"FRIDAY AUGUST 17th. IN CONVENTION
...Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.
Mr. SH[E]RMAN thought it stood very well. The Executive shd. be able to repel and not to commence war."
"Good citizens" consider the members of the Constitutional Convention the "Framers", not the members of the Church Committee LOL!
To the Founders the issue to be addresed is whether the president was acting in defense to repel an attack.
Some Americans don't consider it reasonable to suspect people talking overseas to AlQueda phone numbers of being part of a "sudden attack" upon the US. They will, I assume, call for impeachment- the constitutional remedy provided for abuse of authority.
BTW: the Constitution has a method to amend it which must be followed. It can not be amended by mere statute.
bookmark for later
It is if the distinction between "civil" and "basic" liberties itself is problematic. To many, or at least to me, there is only one liberty: the right of self-determination. That includes making any decisions for myself that don't take away your right to make decisions for yourself. Since there is only one liberty, there can't be two different kinds--and hence, one can't take second place to another.
I think what you're calling "basic liberty" essentially means "not dying." The trouble is, there is no such right. People have no right to kill you, and if they try, you have a right to defend yourself--but no "right" guarantees that your self-defense will succeed, or that your murderer will fail. If you give up self-determination in exchange for an outcome, such as survival, then that's your choice, but it's mislabeling to call that "freedom", or a case of "one freedom outweighing another".
In what way? The stop and search must have been reasonable, by definition. As you say ...
I have little concern I'm being scrutinized. Why? Because there's no reason to.
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.
I'm not "worried" about it (although I expect some amount of protection from my overlords), but your advocacy for surveillance hasn't even roughly defined an outer perimeter.
I believe they should be doing all of that.
In any case, I think you are off-base in your assertion
I understand that you do.
"why are the hiding the Barrett report?"
I would really love to see that report.
Cute. But this isn't about Al Qaeda trying to cut off your head, it is about AQ trying to murder thousands or hundreds of thousands of Americans in a single act. Those persons aren't yours to offer up as a sacrifice, but the President did swear an oath to protect and defend them.
"I would really love to see that report."
Me to. New campaign 2006 "Free the Barrett report"!!! What are liberals hiding????
I try to employ common sense cbolt. I have only a minute to continue on this before I return to work though.
While at war, many/most people will accept a chance their civil liberties might be stepped on (emphasize might be) for the greater good of defeating or retarding the enemy. In peacetime, those levels of tolerance might change, however that's not where we find ourselves today.
I have no idea why the bus was searched. It was at one of the checkpoints we went through and full of elderly mostly white Americans. I meant by common definition in this country, as there were no warrants, no probable cause, no consent.
Perhaps the guide didn't grease the federales palms quickly enough :^)
I think there is quite the blurry line between domestic and foreign communications too, but be that as it may ...
Regarding foreign affiars, there is no "reasonable" boundary. The president is empowered to take all he can get. I was just pondering the wisdom of granting the President the sole authority to determine "reasonable" without having to justify his judgment to the people. Or more precisely, how little (or how much) oversight should exist. And then, when there is a difference of opinion between the president and the overseers, what should happen?
There aren't clear cut answers to those. I see Lincoln's habeas corpus actions as somewhat parallel - give and take between the branches following perceived exigencies of circumstance. What's a bit concerning to me is that the people don't "get" the process, and will react to sound bite sloganeering.
Yes, that's the good point that was raised earlier on the thread. This isn't just about one person, or individual. Thinking collectively is also called for.
aack, now I'm really late, LOL
Not with a democrat judge playing politics with our safety.
I find there is a lot of apathy about the concept of the government databasing potentially every communication you make, with that data to be saved forever. Maybe some people haven't imagined how a future government could make surreptitious use of such data without every bringing a legal complaint against you, if they are so motivated.
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