I followed the link and this is indeed the Jabara case. I haven't followed the discussion on this particular case but it doesn't look relevant as you say it wasn't decided on constitutional grounds.
This thread contains the lower court's opinion. It is not the same one that I commented on at http://www.freerepublic.com/focus/f-news/1548460/posts?page=91#91, although it involves the same fact pattern and prosecution.
My comments in the earlier thread are on the Circuit Court opinion, that is, the case on appeal. Here is some of what the District Court said about the use of warrantless NSA surveillance against Jabara ...
Furthermore, any contention that a warrantless search directed at Jabara can be justified by the plaintiff's affiliations must fail in light of the Court's earlier finding "that its In camera review (of materials submitted by the government) has not revealed any evidence to establish that the plaintiff or the domestic organization to which he belongs has been implicated in any way with a foreign agent or organization or acting in collaboration with a foreign power." Jabara v. Kelley, 75 F.R.D. at 493.Thus, it is clear to the Court that a fourth amendment violation has occurred. As noted above, the mode of interception employed by NSA does involve serious fourth amendment questions with respect to whether NSA surveillance Alone violates a person's reasonable expectations of privacy and is subject to the warrant requirement of the fourth amendment. However, the examination of the contents of conversations thus intercepted would violate a person's reasonable expectation of privacy n13 and is tantamount to what has generally been referred to as an interception in cases and statutes dealing with more traditional modes of electronic surveillance. Consequently, absent some recognized exception [**55] to the warrant requirement, the targeting of a person's conversations intercepted by NSA for summarization, transmission to, and subsequent examination by other agencies must be done pursuant to prior judicial authorization akin to a warrant. Here no such exception exists. Jabara has not been shown to be an agent or collaborator of a foreign power and even if it were shown that such an agent or collaborator was the other party to Jabara's intercepted communications, that circumstance would be irrelevant to the warrant requirement. Since the FBI's interest in Jabara led to the transmission and examination of the summaries in question, any applicable exception to the warrant requirement must be based on Jabara's status or identity.
n13. This is es pecially true in this case where at least two of the communications in question were used for investigative lead purposes by the FBI.Accordingly, the plaintiff's motion for summary judgment with respect to this issue is granted.
That last sentence means that the government summarily LOST, and the plaintiff obtained declaratory and injuctive relief against the warrantless electronic surveillance.
The appeals court carefully abstracted the NSA activity away from the FBI activity, as discussed on the other thread. The reversal of the grant of summary judgement below is stated thusly:
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.
The grounds asserted by the plaintiff, Jabara, are clearly constitutional in this part of the case.