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
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.
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A fact conveniently ignored by those who oppose President Bush on this issue.
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?
"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."
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.
It would be much more tidy if it was out of the public dialog.
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.
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.
A fact conveniently ignored by those who oppose President Bush on this issue.
A fact? Are you sure?
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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.
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.
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.
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.
Definitely. The Pentagon Papers and COINTELPRO were really messy and embarrassing too once they hit the public dialog.
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....
I think that I replied to the wrong post. When I posted that I was up damn near 24 hours. Sorry.
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