Daniel ELLSBERG, et al., Appellants v. John N. MITCHELL, et al.
No. 82-1085.
United States Court of Appeals, District of Columbia Circuit.
Argued Nov. 22, 1982. Decided May 10, 1983. As Amended June 7, 1983.
709 F.2d 51
R. Joseph Sher, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees.
Before MacKINNON and EDWARDS, Circuit Judges, and SWYGERT,* Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
* Sitting by designation pursuant to
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
Separate opinion, concurring in part and dissenting in part, filed by Circuit Judge MacKINNON.
At issue in this appeal is the validity of the District Court‘s treatment of one aspect of a constitutional tort action, in which the plaintiffs seek compensation for injuries sustained through their exposure to warrantless electronic surveillance. Two questions are presented: Did the District Court err in upholding a formal claim of “state secrets” privilege entered by the United States in opposition to the plaintiffs’ motions to compel discovery? Was it proper for the District Court to dismiss those aspects of the suit affected by the government‘s claim of privilege, on the theory that the plaintiffs would be unable to make out a prima facie case?
We conclude that, while the District Court‘s accession to the government‘s state secrets privilege claim was proper for the most part, the court erred in one important respect: it improperly upheld the government‘s refusal to disclose the identities of the Attorneys General who authorized the wiretaps, despite the absence of any explanation of how the revelation of such information might affect national security. This error was highlighted during the oral argument before this court, when government counsel frankly conceded that there is nothing in the documents or other submissions received by the trial court or this court justifying a refusal by the government to disclose the identities of the responsible Attorneys General. When the District Court‘s ruling is modified to require disclosure of the names of the officials who ordered the surveillance, it becomes evident that the dismissal of the relevant portions of the suit cannot stand. We thus reverse the judgment and remand the case for further proceedings.
I. BACKGROUND
The plaintiffs in this case were the defendants and their attorneys and advisors in the “Pentagon Papers” criminal prosecution.1 In the course of that proceeding,
After filing their complaint, the plaintiffs submitted interrogatories to each individual defendant, asking for detailed information regarding the wiretaps.3 The defendants’ responses to the plaintiffs’ allegations (and specifically to their request for information) occurred in two phases, separated by approximately four years. In the first phase, the defendants admitted to two wiretaps—one on “one of plaintiffs’ attorneys or consultants”4 and one by the FBI on the tele-
On August 2, 1973, relying on Kleindienst‘s exhibit and affidavit, the District Court denied the plaintiffs’ motion for an order compelling the defendants to answer their interrogatories. Surprisingly, however, the court rested its ruling not on a finding that the government‘s claim of privilege was proper, but on its conclusions that the two “overhearings” admitted by the defendants were “legal and not violative of any provision of the Constitution of the United States... or of any Federal statute” and that the plaintiffs had failed specifically to allege any other injuries sufficient to give them “standing.”9 For purposes relevant to this appeal, that order effectively halted litigation.10
The second phase of this suit began on March 29, 1977. On that date, the plaintiffs moved for reconsideration of the District Court‘s 1973 order, supporting their motion with a memorandum challenging the legal basis of the court‘s conclusion that they lacked “standing,” and submitted a “Request for Production of Documents” relating to the alleged wiretaps. The District
Four formal claims of privilege were entered in order to explain and justify the defendants’ position concerning the “foreign intelligence” surveillance. On August 12, 1977, Attorney General Griffin Bell submitted an in camera exhibit containing information relevant to “the overhearings of plaintiffs Leonard B. Boudin, Thomas Hayden, and Robert Scheer,” along with a brief supportive public affidavit.15 Like the Kleindienst affidavit, on which it appears to have been modeled, the Bell affidavit acknowledged that the taps were “authorized by the Attorney General” but did not indicate which Attorney General was responsible.16 Subsequently, the Director of Central Intelligence and the Secretary of Defense submitted a total of three in camera affidavits with accompanying exhibits in support of their privilege claims; these latter claims were not, however, accompanied with any public explanation of the nature
The plaintiffs then sought an order compelling fuller responses by the defendants. After reviewing in camera the various affidavits and exhibits submitted by representatives of the government and considering the plaintiffs’ objections thereto,18 the District Court concluded that disclosure of the information requested “would reveal sensitive governmental matters related to the national defense and the international relations of the United States” and accordingly denied the motion.19 On September 2, 1981, the defendants filed a motion in limine, requesting dismissal of those of the plaintiffs’ claims that pertain to surveillance of their foreign communications. After hearing argument, the District Court granted the motion and subsequently certified its decision as a partial final judgment subject to review by this court.20 This appeal followed.
II. THE PRIVILEGE CLAIMS
A.
It is now well established that the United States, by invoking its state secrets privilege, may block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security. Prior to World War Two, the government rarely had occasion to exercise this prerogative, and, consequently, the scope of the privilege remained somewhat in doubt.21 In recent years, however, the state secrets privilege has been asserted in a growing number of cases, and the resultant bevy of judicial decisions assessing the legitimacy of its invocation has brought its lineaments into reasonably sharp focus. The following principles may be distilled from the case law.
The privilege may be asserted only by the government itself; neither a private party nor an individual official may seek its aid.22 Furthermore, in order to invoke it, “[t]here must be a formal claim of
When properly invoked, the state secrets privilege is absolute. No competing public or private interest can be advanced to compel disclosure of information found to be protected by a claim of privilege.28 However, because of the broad sweep of the privilege, the Supreme Court has made clear that “[i]t is not to be lightly invoked.”29 Thus, the privilege may not be used to shield any material not strictly necessary to prevent injury to national security; and, whenever possible, sensitive information must be disentangled from nonsensitive information to allow for the release of the latter.30
It has been argued that certain limitations on the capacity of the judicial branch safely and reliably to evaluate invocations of the state secrets privilege should induce the courts to renounce any role in this area,31 i.e., to accept without question a
The head of an executive department can appraise the public interest of secrecy as well (or perhaps in some cases better) than the judge, but his official habit and leaning tend to sway him toward a minimizing of the interest of the individual. Under the normal administrative routine the question will come to him with recommendations from cautious subordinates against disclosure and in the press of business the chief is likely to approve the recommendation about such a seemingly minor matter without much independent consideration.32
Sensitive to these concerns, the Supreme Court has declared that “[j]udicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.”33 Thus, to ensure that the state secrets privilege is asserted no more frequently and sweepingly than necessary, it is essential that the courts continue critically to examine instances of its invocation.
Although there can be no abdication of a judicial role in connection with proposed applications of the state secrets doctrine, it is nevertheless frequently noted that the trial judge should accord considerable deference to recommendations from the executive department.34 Moreover, it is recognized that the government need not demonstrate that injury to the national interest will inevitably result from disclosure; a showing of “reasonable danger” that harm will ensue is sufficient.35 Finally, when assessing claims of a state secrets privilege, a trial judge properly may rely on affidavits and other seсondary sources more often than he might when evaluating assertions of other evidentiary privileges.36
Whether (and in what spirit) the trial judge in a particular case should examine the materials sought to be withheld depends upon two critical considerations. First, the more compelling a litigant‘s showing of need for the information in question, the
B.
With these principles in mind, we turn to the objections made by the plaintiffs to the positions taken by the defendants, the government, and the District Court. The plaintiffs’ first argument—a challenge to the scope of the privilege claim—is necessarily somewhat vague. Ignorant of what in fact has been withheld, they are able to say only that “too much” has been shielded.
The tasks of posing and answering more specific questions therefore devolve on us. We have examined all of the various affidavits and exhibits submitted to the District Court for in camera inspection. For the most part, the documents contained therein indicate what the defendants’ responses to the plaintiffs’ interrogatories would be, and why such responses cannot be made public.40 With regard to almost all of the material, we find that the District Court was correct in concluding that invocation of the state secrets privilege was proper. In other words, we conclude that there is a “reasonable danger” that revelation of the information in question would either enable a sophisticated analyst to gain insights into the nation‘s intelligence-gathering methods and capabilities or would disrupt diplomatic relations with foreign governments.41
In one important respect, however, we find that the government and the Dis-
At oral argument, counsel for the defendants conceded that none of the in camera exhibits or accompanying public affidavits submitted by the government explain why the identities of the authorizing officials must be concealed.44 After examining all the materials presented to the District Court, we agree that the government‘s concession is fully warranted; further, we can think of no reason why such information should be withheld. The defendants have admitted (indeed insisted) that each tap was authorized by an Attorney General. We cannot see, and the government does not even purport to explain, how any further disruption оf diplomatic relations or undesirable education of hostile intelligence analysts would result from naming the responsible officials.
Thus, we conclude that the District Court erred in upholding this aspect of the government‘s claim of privilege. On remand, the defendants should be instructed to identify the Attorneys General who authorized the surveillances.
C.
The plaintiffs’ second argument is that the procedures used by the District Court to test the validity of the government‘s privilege claims were improper. They point out that two of the privilege claims upheld by the District Court were accompanied with no public explanation whatsoever; the affidavits and supporting exhibits submitted by the Director of Central Intelligence and Secretary of Defense were seen only by the trial judge. Additionally, the plaintiffs point out that the brief affidavits submitted on the public record by Attorneys General Kleindienst and Bell allege only that the “national interest” would be “prejudice[d]” by release of the requested materials;45 what that “interest” consists of and how it might be damaged are not specified. The plaintiffs insist that, confronted with these meager public justifications by the government, the trial judge should have acted in one of two ways. Either he should have permitted the plaintiffs’ counsel to participate in the examination of the in camera exhibits or he should have insisted that the government provide a fuller public account of why disclosure of the information would harm national security. At the very least, the plaintiffs maintain, the court should
The first of the plaintiffs’ alternative proposals may be disposed of summarily. It is well settled that a trial judge called upon to assess the legitimacy of a state secrets privilege claim should not permit the requester‘s counsel to participate in an in camera examination of putatively privileged material. Halkin I, 598 F.2d at 7; Jabara v. Kelley, 75 F.R.D. at 486-87. The rationale for this rule is that our nation‘s security is too important to be entrusted to the good faith and circumspection of a litigant‘s lawyer (whose sense of obligation to his client is likely to strain his fidelity to his pledge of secrecy) or to the coercive power of a protective order.
The plaintiffs’ second suggestion makes a good deal more sense. To assess it, we look first to the context in which the District Court was called upon to select a procedure for evaluating the government‘s privilege claim. We observe that there was a substantial chance that upholding the claim in its entirety would be fatal to the plaintiffs’ case. Indeed the District Court subsequently so held. Next, we note that the circumstances surrounding the case certainly did not make it obvious that serious harm to national security would be likely to result from disclosure of the material at issue. This was particularly true at the time the court was evaluating the second set of privilege claims.46 By then, over five years had elapsed since the last of the wiretaps. More importantly, an official inquiry in the intervening years had resulted in public disclosure not only of the fact that, during the period covered by the suit, our intelligence agencies engaged in very extensive electronic surveillance of both domestic and foreign communications, but of much of the technology whereby such surveillance was effected.47 Against that background, the harm likely to result from responses to many of the plaintiffs’ interrogatories was far from “self-evident.”
In short, the plaintiffs made a compelling showing of need for the information in question and the surrounding circumstances did not make apparent the likelihood that disclosure would lead to serious injury. As indicated above, under such conditions, a judge is required to examine carefully a claim of privilege to satisfy himself of its legitimacy. The question then becomes: does such judicial scrutiny require the judge to insist that the government make as complete as possible a public defense of its claims?
Unfortunately, this is one of those procedural issues to which the case law provides no clear solution. Only three decided cases bear on the matter. The two that are directly relevant are flatly inconsistent with one another. Compare Kinoy v. Mitchell, 67 F.R.D. at 8 (holding that the person claiming the privilege “must set
In the absence of controlling precedent, we must look for insight to judicial experience in related fields, leavening the doctrine developed in those contexts with an appreciation of the important interests at stake when state secrets are alleged to be threatened. In dealing with other evidentiary privileges, courts have acknowledged the utility of a detailed public explanation of the basis of the claim, as a supplement to in camera submission of the requested materials themselves. In Black v. Sheraton Corp., for example, we suggested that the proper procedure to be used in evaluating the invocation of a “law enforcement evidentiary privilege” would be to request the government to supply “an index correlating indexed items with particular claims of privilege... [along with] an analysis containing descriptions specific enough to identify the basis of the particular claim or claims.” Id. at 545. After the plaintiff had been afforded an opportunity “to see this analysis and take issue with its conclusions,” the court could examine the materials themselves in camera and make its “final determination.” Id.50
The considerations underlying this practice are readily apparent. The more specific the public explanation, the greater the ability of the opposing party to contest it. The ensuing arguments assist the judge in assessing the risk of harm posed by dissemination of the information in question. This kind of focused debate is of particular aid to the judge when fulfilling his duty to disentangle privileged from non-privileged materials—to ensure that no more is shielded than is necessary to avoid the anticipated injuries.51
Returning to the case before us, we observe that considerable time and resources might have been saved by adherence to the principle that in camera proceedings should be preceded by as full as possible a public debate over the basis and scope of a privilege claim. Had they been afforded an opportunity to contest a detailed justification for the government‘s claim, the plaintiffs most likely would have been able to demonstrate, at trial, rather than on appeal, the conceded absence of any basis for the refusal to disclose the names of the Attorneys General who authorized the taps. The net result would have been the avoidance of needless delay in the prosecution of the suit.
The foregoing considerations, however, are partially offset by others. Specifically, two concerns prevent us from adopting a
Balancing these various factors, we conclude that, in situations in which close examination of the government‘s assertions is warranted,53 the trial judge should insist (1) that the formal claim of privilege be made on the public record and (2) that the government either (a) publicly explain in detail the kinds of injury to national security it seeks to avoid and the reason those harms would result from revelation of the requested information or (b) indicate why such an explanation would itself endanger
III. THE PARTIAL DISMISSAL
Having reversed portions of the District Court‘s handling of the privilege claims, we might simply remand the case for further proceedings and specifically for reconsideration of the defendants’ motion in limine for dismissal of those aspects of the suit pertaining to the “foreign intelligence” wiretaps. To reduce the likelihood of yet anoth-
A.
The effect of the government‘s successful invocation of the state secrets privilege, when the government is not itself a party to the suit in question, is well established: “[T]he result is simply that the evidence is unavailable, as though a witness had died, and the case will proceed accordingly, with no consequences sаve those resulting from the loss of the evidence.”56 Likewise, it is now settled that, when the government is a defendant in a civil suit, its invocation of the privilege results in no alteration of pertinent substantive or procedural rules; the effect is the same, in other words, as if the government were not involved in the controversy.57 The rationale for this doctrine is that the United States, while waiving its sovereign immunity for many purposes, has never consented to an increase in its exposure to liability when it is compelled, for reasons of national security, to refuse to release relevant evidence.58
In a somewhat related context, at least one circuit has held that, when one private party brings a civil action against another, and the government asserts a privilege with regard to information in the plaintiff‘s possession, a ruling that the privilege is valid must be accompanied with a dismissal of the suit.59 The asserted reason for this seemingly harsh doctrine is that the plaintiff, tempted by the advantages to be gained by as full as possible a disclosure of what he knows, is likely to tread too close to the line drawn by a protective order and occasionally to overstep it. In an attempt to make out a prima facie case during an actual trial, the plaintiff and its lawyers would have every incentive to probe as close to the core secrets as the trial judge would permit. Such probing in open court would inevitably be revealing.60 Outside of this one special context, however, the uniform rule governing civil suits brought by private parties is that the effect of invocation of a state secrets privilege is simply to remove from the case the material in question.
B.
The instant cаse is a civil action, brought by private parties against various individual defendants and several agencies of the federal government. The information asserted to be privileged is not currently in the plaintiffs’ possession. The general principle described above therefore obtains. Under these conditions, dismissal of the relevant portion of the suit would be proper only if the plaintiffs were manifestly unable to make out a prima facie case without the requested information. Are the plaintiffs thus incapacitated?
With regard to those whom the government has not admitted overhearing, the answer is clearly yes. An essential element of each plaintiff‘s case is proof that he himself has been injured. Membership in a group of people, “one or more” members of which were exposed to surveillance, is insufficient to satisfy that requirement. Dismissal of the claims of those parties was therefore proper.
With regard to the five plaintiffs whom the government has conceded overhearing, the answer is far less obvious. Unlike their colleagues, they can demonstrate injury to themselves. On remand, they will be informed (pursuant to our order today) of the identities of the Attorneys General who authorized the taps during which they were overheard. And the defendants have acknowledged that none of those taps was instituted pursuant to a warrant. Is this complex of facts sufficient to establish a prima facie case of violation of the plaintiffs’ constitutional rights?
The defendants argue that the surveillance at issue might have been constitutional. They point out that all courts that have squarely confronted the issue have concluded that warrantless electronic surveillance of foreign agents does not violate the Fourth Amendmеnt provided its primary purpose is not to gather evidence for a criminal prosecution.61 The defendants concede that the constitutional status of
In sum, the wiretaps at issue might or might not be unconstitutional (and the evidence necessary to resolve the question cannot be publicly disclosed). Whether this uncertainty dooms the plaintiffs’ claims depends on which of the parties bears the burden of persuasion regarding the excusability of the defendants’ failure to obtain a warrant. To resolve that question, we must venture briefly into the tangled body of doctrine out of which the (as yet incomplete) law governing electronic surveillance has grown.66
The general principle that infuses most decisions dealing with the Fourth Amendment is that, in the absence of special circumstances, the approval of a neutral judicial officer must be obtained before any search or seizure is conducted in a place subject to a reasonable expectation of privacy.
[T]he most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek
Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971) (footnotes omitted).67 One of the corollaries of that principle is that “the burden is on those seeking [an] exemption to show the need for it.” United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951).68exemption... that the exigencies of the situation made that course imperative.”
The reasons in favor of the warrant requirement are, by now, familiar:
McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 193-94, 93 L.Ed. 153 (1948).69We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. Wе cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.
As the foregoing passage suggests, judicial insistence upon an affirmative demonstration in each case of the necessity for a relaxation of the warrant requirement has been most marked in the context of physical “searches and seizures that take place on a man‘s property—his home or office.” Coolidge v. New Hampshire, 403 U.S. at 474-75. Yet, strong considerations also support compliance with the warrant requirement in connection with electronic surveillance. The risk that well-meaning but overly zealous law enforcement officials will either conduct such surveillance without adequate justification or will transgress the bounds of “reasonableness” is at least as great as the danger that they will exceed their authority breaking into homes. And the potential for impingement upon citizens’ legitimate expectations of privacy (particularly in view of the fact that, unlike a homeowner, the victim of a wiretap is not even informed of the fact that a “search” is being conducted)70 is at least as serious.71 Sensitivity to these concerns has prompted the Supreme Court, in its two seminal decisions dealing with wiretapping, to extend the warrant requirement first to taps used in the course of routine criminal investigations, Katz v. United States, 389 U.S. 347, 359 (1967), and then to taps on “domestic organizations” designed to protect “national security,” United States v. United States District Court [Keith], 407U.S. 297, 308-09, 323-24 (1972).
It is possible, as several courts have concluded, see note 61 supra, that the importance of preserving the рower of the executive to act swiftly and vigorously to protect national security may override, in the context of taps on foreign agents, the potent considerations underlying the warrant requirement. But those considerations themselves are in no way diminished. Accordingly, even assuming that the warrant requirement may give way in this special context, there is no reason to relieve those who authorize and conduct such taps of the burden of showing that they come within the exemption.
That conclusion is reinforced by analysis of the probable effects of the alternative rule—namely, that, upon allegation by the government that the wiretaps were on foreign agents and therefore did not require judicial approval, the burden shifts to the victims of the taps to disprove the government‘s contention. In many such situations, the government would be able (as it has been here) to refuse to disclose any details of the circumstances surrounding the surveillance by invoking its state secrets privilege. The result would be to deny the plaintiffs access to all of the information they need to dispute the government‘s characterization of the nature and purpose of the surveillance. And the net effect would be to immunize, not only all wiretaps legitimately falling within the hypothesized “foreign agent” exemption, but all other surveillance conducted with equipment or under circumstances sufficiently sensitive to permit assertion of the state secrets privilege. We find such consequences unacceptable.72
In summary, we see no reason in the present context to suspend the general rule that the burden is on those seeking an exemption from the Fourth Amendmеnt warrant requirement to show the need for it. Accordingly, to make out a prima facie case of a constitutional violation, the plaintiffs need not disprove the defendants’ allegation that their actions are excused by the “foreign agent” exemption; rather, the defendants must prove their contention. As the defendants have not yet made such a showing in the instant case, dismissal of the claims of the five plaintiffs whom the defendants have acknowledged overhearing would be improper.73
C.
The foregoing result does give rise to a potential problem: in cases like the present
Fortunately, recent developments in the law governing government officials’ immunity from liability provides a way out of this dilemma. Whether a defendant is entitled to “qualified immunity” is now to be determined solely on the basis of an “objective” test:
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).76 To a much greater extent than previously, determination of a defendant‘s immunity will thus turn upon questions of law. Some factual judgments will still be required, but they will be more circumscribed and manageable. Once an official‘s conduct has been ascertained, the determinative question will be what rules were “clearly established” at the time he acted.[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not viоlate clearly established statutory or constitutional rights of which a reasonable person would have known.
It seems to us that, without serious risk of error, the aforementioned questions could be resolved by the trial judge through use of appropriate in camera procedures.77 In camera exhibits submitted in support of the government‘s privilege claim would, in most instances, make clear the nature of the defendants’ activities. The judge would thus need only to determine whether clearly established doctrine proscribed such conduct at the time it was undertaken. Such a determination would seem to be possible without the aid of arguments of counsel. And the judge‘s decision would, of course, be subject to appellate review.78
Our sense that in camera procedures should be used only when absolutely necessary reinforces our decision not to consider the defendants’ immunity defenses at this juncture, see note 73 supra. It might be argued that, having
In sum, the practicability of in camera resоlution of the immunity issue eliminates the possibility that the defendants—in this case or in future cases—will be trapped by the government‘s assertion of its state secrets privilege. And that result, in turn, alleviates any qualms we might have concerning the result we reach today.
CONCLUSION
For the foregoing reasons, the decision of the District Court is reversed. The case is remanded for proceedings not inconsistent with this opinion.
MacKINNON, Circuit Judge (concurring in part and dissenting in part):
I concur in the court‘s holding that the district court properly acceded, in all important respects,1 to the government‘s claims of state secrets privilege. However, after full consideration of all the arguments and upon close examination of all the in camera classified material, I am unable to agree with my colleagues’ decision to remand the case. Under the Supreme Court‘s recent decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982), defendants, in my opinion, are entitled to qualified immunity as a matter of law with respect to all claims relevant to this appeal.2 Accordingly, I would affirm the district
While the district court has not yet addressed the immunity issues, a reviewing court may rest its affirmance on any ground for which the record is sufficient to permit the necessary findings of fact and law. Dandridge v. Williams, 397 U.S. 471, 475-76 n. 6 (1970); Lew v. Suffridge, 370 F.2d 487, 488 & n. 1 (D.C.Cir.1966). Having carefully perused the in camera exhibits offered by the government in support of its privilege claims, the panel now has before it a record sufficient to permit such findings concerning the purposes of and the circumstances surrounding these wiretaps.
My own examination of the relevant material leaves no room to doubt that these warrantless surveillances fall within the putative “foreign agent exception” to the warrant requirement of the Fourth Amendment. The materials do not suggest that defendants’ foreign intelligence surveillance claims are merely a pretext for politically or prosecutorially motivated surveillance. See Chagnon v. Bell, 642 F.2d 1248, 1260-61 (D.C.Cir.1980), cert. denied, 453 U.S. 911 (1981); Halperin v. Kissinger, 606 F.2d 1192, 1204-05 (D.C.Cir.1979), aff‘d by an equally divided Court, 452 U.S. 713 (1981). Nor were appellants, or any premises in which they had an interest, the targets of the surveillances. Affidavit of Attorney General of the United States ¶ 2, May 8, 1973 (JA 29); see United States v. Lemonakis, 485 F.2d 941, 963 (D.C.Cir.1973), cert. denied, 415 U.S. 989 (1974). And the exhibits establish beyond question that the taps were strictly within the framework of executive authorization of foreign intelligence gathering. See United States v. Lemonakis, 485 F.2d at 963.
Having established that the surveillances do fall within the foreign agent exception to the warrant requirement, the in camera materials compel the conclusion that defendants are immune from liability for their part in conducting the surveillance. Under Harlow, officials are entitled to qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights.” 102 S.Ct. at 2738. Few areas of constitutional law are more conspicuously unsettled than the legality of warrantless wiretaps aimed at the activities of foreign powers or their agents. The existence of the foreign agent exception was expressly left open by the Supreme Court, United States v. United States District Court [Keith], 407 U.S. 297, 321-22 (1972), and several courts of appeals have actually approved such warrantless surveillance. See United States v. Truong Dinh Hung, 629 F.2d 908, 914-15 (4th Cir.1980), cert. denied, 454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871, 875 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973), cert. denied, 415 U.S. 960 (1974). But see Zweibon v. Mitchell, 516 F.2d 594, 615-27 (D.C.Cir.1975) (en banc) (dictum) (plurality opinion), cert. denied, 425 U.S. 944 (1976). And in the immunity context, this court has explicitly held that there is no “clearly established” law on the legality of warrantless foreign intelligence taps. Chagnon v. Bell, supra, 642 F.2d at 1256-63 (Edwards, J.).
Given the celebrated uncertainty of the law in this area, I am mystified by the majority‘s reluctance to resolve the immunity question at this juncture. The majority predicates its declination on the truism that “[e]x parte, in camera resolution of dispositive issues should be avoided whenever possible.”3 Maj. op. at 69-70 n. 78. With that
Such reticence might be understandable had the Supreme Court not felt compelled in Harlow to make an “adjustment” of the standard for qualified immunity in order to permit summary disposition of meritless claims against government officials. 102 S.Ct. at 2737. The Court observed that the subjective element of the qualified immunity defense “frequently has proved incompatible with our admonition in Butz [v. Economou, 438 U.S. 478, 507-08 (1978)], that insubstantial claims should not proceed to trial.” Id. To facilitate the rapid weeding out of such claims, the Court severed the subjective element from the defense: if an official‘s conduct did not violate “clearly established” law, he is entitled to summary judgment. Id. at 2738-39. The Court characterized the defense as a “threshold immunity question” and insisted that discovery should not be allowed before the question has been resolved. Id. at 2739. A remand at this point, merely to resolve a threshold legal question on the basis of documentary evidence already considered by this court in resolving the privilege question, is contrary to the entire thrust of the Harlow decision. The valuable resources of the Executive and Judicial branches are not to be greatly encumbered by lengthy judicial hearings, appeals and remands. Cf. Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 1120, 75 L.Ed.2d 96 (1983) (“[E]ven the processing of a complaint that is dismissed before trial consumes a considerable amount of time and resources.“) (footnote omitted).
Several courts of appeals appear to agree with the above view of a reviewing court‘s role after Harlow, for they have not hesitated to apply Harlow to immunity issues first raised on appeal. For example, in Silverman v. Ballantine, 694 F.2d 1091 (7th Cir.1982), the district court had granted defendants’ motion for summary judgment on the issue whether plaintiff had been unlawfully denied assistance of counsel upon his arrest. On appeal, the court assumed without deciding that disputed issues of fact remained on that question, but the court nonetheless affirmed the judgment because the law was unsettled as to whether an arrest is a “critical stage” at which point the right to counsel attaches. Id. at 1096. Similarly, in Ward v. Johnson, 690 F.2d 1098 (4th Cir.1982) (en banc), a panel of the court had reversed a trial court‘s finding that a prisoner‘s procedural due process rights had not been violated by an evidentiary ruling made by defendant at a disciplinary hearing. After reargument en banc, the court assumed the correctness of the panel‘s conclusion that a violation had occurred, but found that the defendant was entitled to immunity. See also Hall v. United States, 704 F.2d 246, 248-251 (6th Cir.1983) (After the district court had im-
I have no doubt that the parties on remand will once again go through the motions of briefing and arguing the immunity issues, that the district court will once again slog through the in camera materials, and that the court will come to the inescapable conclusion that defendants are entitled to immunity on these claims. Given the Supreme Court‘s simple exhortation that threshold questions be resolved at the threshold, I would be very surprised if the court on remand even attempted to apply the muddled dicta and novel procedures that comprise Parts II and III of the majority opinion.
In the end, the majority‘s disposition squanders judicial, executive and adversarial resources; it also frustrates the Supreme Court‘s attempt, through changes in the immunity standard, to speed resolution of meritless suits against government officials. Having examined precisely the evidence the district court will have to examine in order to resolve the immunity issue, we ought to resolve the question ourselves. The wide-ranging discussion of the majority is thus unnecessary. I respectfully dissent.
PUBLIC SYSTEMS, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent
Cities Service Gas Company, Arkansas Power & Light Company, et al., Electric Utilities, Central Illinois Light Company, Potomac Electric Power Company, Central and South West Corporation, et al., El Paso Natural Gas Company, Edison Electric Institute, East Tennessee Group, Intervenors.
CITIES OF ALTAMONT, et al., Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent
Potomac Electric Power Company, et al., Intervenors.
Nos. 82-1183, 82-1214.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 10, 1983. Decided May 31, 1983.
Notes
But the majority leaps from that modification to the unwarranted conclusion that, having obtained the names of specific defendants, plaintiffs can now make out a prima facie case that their constitutional rights under the Fourth Amendment have been violated. To buttress that conclusion, the majority, like appellants, relies exclusively on criminal cases like Coolidge v. New Hampshire, 403 U.S. 443 (1971), for the proposition that warrantless searches are per se unreasonable absent “a showing by those who seek exemption... that the exigencies of the situation made that course imperative.” Id. at 455 (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).
I have grave doubts that the Attorney General should bear the burden of demonstrating the legality of warrantless foreign intelligence surveillance. In any event, appellants’ reliance on criminal cases is misplaced. First, this is a civil case, where the exclusionary rule plays no part and where fears of imprisoning a defendant on thе basis of illegally obtained evidence have no force. Second, the “exigent circumstances” cases may be entirely inapposite to foreign intelligence surveillance, to which concepts derived from the criminal law—like probable cause, for example—have dubious relevance. See Zweibon v. Mitchell, 516 F.2d 594, 706-07 (D.C.Cir.1975) (en banc) (MacKinnon, J., concurring in part and dissenting in part). Third, whatever the legal contours of a tap conducted under the foreign agent exception, it is not self-evident that its legality would even turn on a showing of exigent circumstances. It is at least as likely that “foreign intelligence surveillance” refers to a whole category of activities exempted from the warrant requirement, rather than to an exception dependent on a specific showing of exigency in each particular case.
The task of assigning evidentiary burdens in such cases necessarily turns on a complex balancing of competing concerns touching on the scope of individual liberties, the security of the nation, and our constitutional structure. I would not suggest a glib solution to such a weighty issue when summary judgment is so manifestly appropriate on the ground of immunity.
- State whether you, your agents or employees, or the agents or employees of the department or agency which you direct, have, since June 19, 1968, authorized, procured, conducted, or received any electronic surveillance or other overhearing of wire or oral communications made by or to any of the following persons: [the plaintiffs (except for Russo and Ellsberg) were listed here].
- If the response to Interrogatory 1 or to any part thereof is in the affirmative, please respond to the following additional interrogatories with respect to each instance of electronic surveillance or other overhearing indicated.
- State the date of such electronic surveillance or other overhearing.
- State the precise location of the electronic devise [sic] by means of which the overhearing was accomplished.
- State the name of the person or the address of the establishment at which the eleсtronic surveillance or other overhearing was directed.
- State whether such electronic surveillance or other overhearing was conducted pursuant to a court order.
- If such electronic surveillance or other overhearing was conducted pursuant to a court order, state the name of the judge who signed the order and the date of its issuance.
- If such electronic surveillance or other overhearing was not conducted pursuant to a court order, state by what other form of authority such surveillance was conducted, and if in written form, state the name of the person who signed the authorization, the date of its issuance, and the name and address of its present custodian.
- State the method by which such electronic surveillance or other overhearing was accomplished.
- State the precise location of the electronic device by means of which the electronic surveillance or other overhearing was accomplished.
- State the names, positions of employment, and present addresses if known, of all persons who participated in each such instance of electronic surveillance or other overhearing.
- State whether logs, memoranda, transcription, or any other form of record relating to such electronic surveillance or other overhearing were prepared, and, if so, state the names and addresses of the custodians of each such record, and the precise whereabouts of each such record.
- State the names of all persons or agencies who have access to each such record.
- State the names, positions of employment, and present addresses of the persons within your department or agency who are responsible for searching the files and records to determine, in response to appropriate inquiry, whether surveillance of a named person or at a specified location has been conducted.
3. The electronic surveillances contained in the sealed Exhibit were authorized by the Attorney General pursuant to the power delegated to him by the President of the United States in the exercise of his authority relating to the Nation‘s foreign affairs as described in
18 U.S.C. § 2511(3) , to obtain counterintelligence as well as foreign intelligence information deemed essential to the security of the United States and/or to protect national security information against foreign intelligence activities. The deсisions to authorize the surveillances were based upon information contained in the requests of the Director of the Federal Bureau of Investigation, which were considered in conjunction with other intelligence information available to the Attorney General of the United States. 4. I certify that it would prejudice the national interest to disclose the particular facts contained in the sealed Exhibit and concerning the surveillances other than to the Court, ex parte, in camera.
Clift v. United States, 597 F.2d 826, 829 (2d Cir.1979) (quoting Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1369 (4th Cir.), cert. denied, 421 U.S. 992 (1975)).It is not to slight judges, lawyers or anyone else to suggest that any such disclosure carries with it serious risk that highly sensitive information may be compromised. In our own chambers, we are ill equipped to provide the kind of security highly sensitive information should have.
Third, the probability that a particular disclosure will have an adverse effect on national security is difficult to assess, particularly for a judge with little expertise in this area. In Halkin I, 598 F.2d at 8-9, we identified the factors that limit judicial competence to evaluate the executive‘s predictions of the harms likely to result from disclosure of particular materials:
See also Halkin II, 690 F.2d at 993 & n. 57.It requires little reflection to understand that the business of foreign intelligence gathering in this age of computer technology is more akin to the construction of a mosaic than it is to the management of a cloak and dagger affair. Thousands of bits and pieces of seemingly innocuous information can be analyzed and fitted into place to reveal with startling clarity how the unseen whole must operate. As the Fourth Circuit Court of Appeals has observed:
The significance of one item of information may frequently depend upon knowledge of many other items of information. What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context. The courts, of course, are ill-equipped to become sufficiently steeped in foreign intelligence matters to serve effectively in the review of secrecy classifications in that area. United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).
When a litigant must lose if the claim is upheld and the government‘s assertions are dubious in view of the nature of the information requested and the circumstances surrounding the case, careful in camera examination of the material is not only appropriate, see Jabara v. Kelley, 75 F.R.D. at 486; Kinoy v. Mitchell, 67 F.R.D. at 9 (dicta), but obligatory, see ACLU v. Brown, 619 F.2d at 1173.
When the litigant requesting the information has made only a trivial showing of need for it and the circumstances of the case point to a significant risk of serious harm if the information is disclosed, the trial judge should evaluate (and uphold) the privilege claim solely on the basis of the government‘s public representations, without an in camera examination of the documents. See United States v. Reynolds, 345 U.S. at 10; Kinoy v. Mitchell, 67 F.R.D. at 9 (dicta); Pan American World Airways v. Aetna Casualty & Surety Co., 368 F.Supp. 1098, 1140-41 (S.D.N.Y.1973), aff‘d on other grounds, 505 F.2d 989 (2d Cir.1974); Republic of China v. National Union Fire Ins. Co., 142 F.Supp. at 557.
By their terms, these two public affidavits expressly pertain only to the “overhears” of plaintiffs Boudin, Hayden, and Scheer, but all parties take for granted the fact that similar acknowledgments are made in the three in camera affidavits submitted by the Secretary of Defense and Director of Central Intelligence, which pertain to the remaining plaintiffs. The acceptability of the government‘s failure to make these admissions on the public record is considered in Part II.C. infra.
It is clear that, in evaluating the propriety of the court‘s decision upholding the government‘s claim, the relevant “circumstances” are those extant when the court rendered its decision, not when either the wiretaps took place or the privilege was first asserted. United States v. Ahmad, 499 F.2d 851, 854-55 (3d Cir.1974); Jabara v. Kelley, 75 F.R.D. at 488. “The passage of time has a profound effect upon such matters, and that which is of utmost sensitivity one day may fadе into nothing more than interesting history within weeks or months.” Ahmad, 499 F.2d at 855.
References to these intervening public disclosures is in no way precluded by our recent decisions in the two Halkin cases. While, as we indicated there, the revelation in one context of a body of information does not prevent the government in another arena from invoking the state secrets privilege to shield a closely related body of information, see Halkin II, 690 F.2d at 994; Halkin I, 598 F.2d at 9, such selective dissemination certainly detracts from the government‘s ability to rely on inferences drawn from the “surrounding circumstances” in justifying its privilege claim.
Though a few comments in Halkin II might appear to have some bearing on the issue before us, upon examination they prove inapposite. The tenor of the court‘s discussion of the applicability of doctrine developed in Freedom of Information Act cases regarding the need for a detailed public justification, 690 F.2d at 995-97, is generally hostile to the position taken by the plaintiffs in the instant case, but when the court directly confronted a challenge comparable to that presented here, it ruled: “Because we find the Director‘s public affidavit adequate to support the district court‘s decision to uphold the claim of privilege we need not consider appellants’ claim that the court should have required a more complete articulation of the Director‘s claim on the public record in order to permit full adversary development of the issue of its adequacy.” Id. at 994-95. Similarly, the apparent pertinence of the comments in Nixon v. Sirica, 487 F.2d 700 (D.C.Cir.1973) (en banc) (per curiam), suggesting that the executive need not submit, in that case, a detailed public explanation for its claim of privilege with regard to materials “relate[d] to national defense or foreign policy,” id. at 721, dissipates when one takes into account the court‘s ruling that the Special Prosecutor was “entitled to inspect the claim and showing and may be heard thereon, in chambers,” id.
App. 97. The brevity of the court‘s explanation and some of the language contained therein raise the possibility that the court did not even consider whether the plaintiffs were capable of making out a prima facie case without the privileged information. As we explain below, it was incumbent on the District Court to do at least that much before dismissing the relevant portions of the suit.[I]t appears to the Court that the plaintiffs’ claims with respect to alleged electronic surveillance of their foreign communications... tenders [sic] to the Court issues for litigation which deal necessarily with matters this Court has already determined to be state secrets privileged from disclosure.
Relying partly on this principle, the Court affirmed dismissal of a suit brought to enforce a secret contract between the plaintiff and President Lincoln, whereby the plaintiff had agreed to conduct espionage in the Confederate states in return for a prescribed salary. The other stated ground for the Court‘s decision was its inference that the contract itself contained an implied term that forbade the parties ever to disclose its contents; the act of bringing the suit thus constituted a breach of the agreement and defeated the action. Id. at 106.It may be stated as a general principle, that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disсlosure of matters which the law itself regards as confidential, and respecting which it will not allow the confidence to be violated.
The defendants also argue vigorously that they are all entitled to “absolute immunity” from liability for conduct of the sort at issue in this case and that, indeed, the scope of that immunity is sufficiently broad to render unnecessary any further inquiry by the District Court into the purposes of and circumstances surrounding the wiretaps. Especially in view of the thinness of the record before us, we decline to consider the defendants’ argument that an ambiguous reference, in dictum, in Harlow v. Fitzgerald, 457 U.S. 800, 812, 102 S.Ct. 2727, 2735 & n. 18, 73 L.Ed.2d 396 (1982), requires repudiation of our holding in Halperin v. Kissinger, 606 F.2d 1192, 1208 (D.C.Cir.1979), aff‘d by an equally divided Court, 452 U.S. 713 (1981), that even an Attorney General authorizing wiretaps to protect the national security is not entitled to absolute immunity from liability in damages.