Jabara v. Kelley

• Decision Date: 13 June 1979
• Docket Number: Civ. No. 39065.
• Citation: 476 F. Supp. 561
• Parties: Abdeen M. JABARA, Plaintiff, v. Clarence M. KELLEY et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

476 F. Supp. 561

Abdeen M. JABARA, Plaintiff, v. Clarence M. KELLEY et al., Defendants.

Civ. No. 39065.

United States District Court, E. D. Michigan, S. D.

June 13, 1979.

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John H. F. Shattuck, American Civil Liberties Union, Washington, D. C., and Ronald Reosti, Detroit, Mich., for plaintiff.

R. John Seibert, Washington, D. C., and L. Michael Wicks, Detroit, Mich., for defendants.

MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

This case presents a constitutional and statutory challenge to various practices employed by the National Security Agency, the Federal Bureau of Investigation and several of their agents in conducting an investigation of the plaintiff. Although long, the history of this case is one consisting mainly of contested discovery matters, most of which have involved various privilege claims on the part of the government. See Jabara v. Kelley, 75 F.R.D. 475 (E.D. Mich.1977); Jabara v. Kelley, No. 3-9065 (E.D.Mich. June 27, 1975); Jabara v. Kelly, 62 F.R.D. 424 (E.D.Mich.1974). The motions now before the Court, the defendants' motion to dismiss and for summary judgment and the plaintiff's motion for summary judgment, represent the first time the Court has been called upon to resolve the merits of this suit.

The facts in this case have been developed through a long and tedious process of discovery which has caused the Court a great deal of concern. However, the Court is now satisfied that the plaintiff has received all of the requested discovery material to which he is entitled. Similarly, the Court is satisfied that the disclosures required of the defendants have not compromised the national security or any ongoing criminal or national security investigation.

Because the Court has upheld certain governmental claims of executive privilege and the state secrets privilege, the following summary of facts is necessarily incomplete. Although the public record is incomplete, the defendants, during the course of this litigation, have submitted various in camera affidavits upon which they now rely in support of their motions.

I. FACTS

The plaintiff, Abdeen Jabara, a Detroit attorney, has been and is an active member of or participant in various Arab organizations. Beginning in 1967, the FBI began investigating Jabara and that investigation continued with some interruptions until December, 1975. The investigation, although appearing to have some continuity, involved a plurality of discrete and independent events, each of which has led to some FBI intelligence gathering activity directed at Jabara. Although the investigation did involve at least one criminal aspect, the record is devoid of any evidence linking the plaintiff to the commission or anticipated commission of any specific crime. Instead, the defendants seek to justify their intrusions into the plaintiff's life as a legitimate national security investigation.

The investigatory tactics employed by the FBI include physical surveillance by informants and agents, inspection of Jabara's bank records, warrantless electronic surveillance by the FBI and NSA, interviews of third parties regarding Jabara and the maintenance and dissemination of information gained during the investigation.

The most frequently used investigatory tactic was the use of informants who reported on Jabara's presence at various public and private political gatherings. In addition to reporting Jabara's presence at such gatherings, the information supplied by the informant usually included a summary of political discussions or speeches by Jabara. In addition, the FBI file contains several reports which appear to have resulted from the physical surveillance of the plaintiff. The record also supports the conclusion that much of the public and private surveillance of Jabara was the result of incidental contacts. In other words, the presence of FBI informants at meetings and discussions attended by Jabara does not appear to have resulted solely from an investigatory interest in Jabara. Included in information regarding Jabara is data which the FBI has received from Zionist sources.

In addition to the surveillance mentioned above and as a part of broader national security investigation, the FBI sought to obtain information regarding Jabara's bank records. Although there is some dispute regarding the scope of this portion of the investigation, it does appear that the FBI obtained information regarding a deposit to one of Jabara's accounts, revealing the identity of one of his clients.

The record also establishes that Jabara's telephone and wire communications have been intercepted by the FBI and NSA. On several occasions the FBI has incidentally intercepted Jabara communications pursuant to electronic surveillance directed at others. Furthermore, the FBI, as part of its investigation of Jabara, requested that NSA forward to the Bureau any information coming into its possession regarding the plaintiff. Pursuant to this request NSA supplied the FBI with several summaries of Jabara's foreign wire communications. None of these electronic surveillance activities were conducted pursuant to a warrant.

The information obtained through these various investigatory tactics has been recorded and maintained in FBI files. In addition, the FBI has disseminated information regarding Jabara in its possession to 17 government agencies and three foreign governments.

From this factual basis, Jabara seeks relief pursuant to eight separate causes of action. The first cause of action alleges a violation of the fourth amendment and 18 U.S.C. §§ 2511 and 2520 as the result of the defendants' electronic surveillance of Jabara's telephone and other communications. The second cause of action alleges that the defendants' conduct violated the plaintiff's first amendment rights of freedom of speech and association. The third cause of action alleges warrantless searches, seizures and collection of information in violation of the first and fourth amendments. The fourth cause of action alleged that the interception of conversations between the plaintiff and his clients violated the clients' sixth amendment rights, and damaged Jabara's professional reputation and his ability to pursue his profession in violation of the first and fifth amendments. The fifth cause of action alleges unreasonable invasions of the plaintiff's privacy in violation of the first, fourth, fifth and ninth amendments. The sixth cause of action alleges that the inspection of the plaintiff's bank records violated the fourth amendment. The seventh cause of action alleges that the conduct of the FBI in this case exceeds its statutory authority and is also beyond the constitutional authority of the executive branch of the federal government. The eighth cause of action alleges that the defendants have violated various provisions of the Privacy Act by maintaining and disseminating records concerning Jabara's first amendment activities.

As part of the relief sought the plaintiff requests an injunction against the defendants' further interception of his wire communications; an injunction prohibiting the defendants from conducting surveillance, collecting, recording, maintaining, using or disseminating information of any kind about the lawful political, social, banking, telephone and other activities of the plaintiff; a mandatory injunction ordering the defendant FBI to produce before the Court for destruction all records or other materials of any kind maintained by them concerning Jabara's constitutionally protected activities.¹

II MOOTNESS

The defendants contend that Jabara's claims for declaratory and injunctive relief should be dismissed as moot because of the current status of the FBI investigation of the plaintiff. First, the FBI, through the affidavit of Special Agent Robert F. Peterson, asserts that in December 1975, it determined that it had no further investigatory interest in Jabara and thereupon terminated its investigation. Second, the defendants have agreed to destroy all files maintained under Jabara's name as requested by Jabara. Third, the FBI has submitted an extensive set of guidelines relating to criminal and security investigations which it contends protects against the possibility of future abusive conduct such as that alleged in the plaintiff's second amended complaint.

While some Courts have refused to grant injunctive relief where official policy revisions have, in effect, made continuation of the challenged conduct impossible, see Washington Free Community, Inc. v. Wilson, 157 U.S.App.D.C. 360, 484 F.2d 1078 (1973), and other courts have recognized that injunctions should be cautiously issued against police conduct on the mere possibility that it may be repeated, see Long v. District of Columbia, 152 U.S.App.D.C. 187, 469 F.2d 927 (1972), the Court is of the opinion that Jabara's claim for injunctive relief is not moot. The Court has examined the extensive set of regulations submitted by the FBI and cannot conclude that they preclude conduct of the type alleged here. Indeed, many sections of the defendants' brief could, in another context, be used to support an argument that the FBI's conduct in this case was within the ambit of those regulations. Therefore, the Court cannot conclude that these guidelines would necessarily inhibit future FBI conduct of the kind alleged in this case and, therefore, does not render Jabara's claim for relief moot.

Nor is the Court persuaded that the cessation of the Jabara investigation requires that the plaintiff's claims be dismissed as moot. Numerous Supreme Court antitrust decisions have cautioned against declaring a case moot where the defendant would be free to reinstitute the complained of practice. United States v. Phosphate Export Ass'n, 393 U.S. 199, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953). This consideration applies with even more...