Smith v. NixonSmith v. Nixon
This suit for damages and equitable relief against several former and current federal officials arises out of an 89-day illegal wiretap of reporter Hedrick Smith‘s home telephone in 1969. The District Court granted summary judgment to the officials on qualified immunity grounds without resolving appellants’ pending discovery requests. This is the second of three cases we decide today in which resolution of the officials’ qualified immunity defense turns on the validity of their assertions that their actions were prompted and justified by national security concerns. See Halperin v. Kissinger (”Hallperin II “), 807 F.2d 180 (D.C.Cir. 1986); Ellsberg v. Mitchell (”Ellsberg II “), 807 F.2d 204 (D.C.Cir.1986). The principal issue is what showing a plaintiff must make before being permitted to engage in discovery to establish that no reasonable basis for a national security wiretap existed.
I
The challenged wiretap, like the wiretaps at issue in the companion cases, see Halperin II, 807 F.2d at 182-183; Ellsberg II, 807 F.2d at 205-206, was purportedly conducted pursuant to a presidentially approved surveillance program launched in May 1969 to identify government employees who were leaking sensitive national security information. See generally Smith v. Nixon (”Smith I “), 606 F.2d 1183, 1186-87 (D.C.Cir.1979), cert. denied, 453 U.S. 912, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). On June 3, 1969, just as negotiations with the Japanese on the reversion of Okinawa were getting under way, the New York Times published a front-page article by Diplomatic Correspondent Hedrick Smith detailing the Nixon Administration‘s fallback negotiating position. U.S. Said to Plan an Okinawa Deal Barring A-Bombs, N.Y. Times, June 3, 1969, at 1, col. 6. The article, which reflected the contents of a top secret National Security Decision Memorandum imputed the information to “well-placed informants.” Id.
The next day, Federal Bureau of Investigation (“FBI“) Director J. Edgar Hoover sought authorization from former Attorney General John Mitchell to wiretap Smith‘s residential telephone. The authorization memorandum, describing the wiretap program as a “matter of most grave and serious consequence to our national security,” I Joint Appendix (“J.A.“) 105, indicated that then National Security Advisor Henry A. Kissinger requested the Smith wiretap, id; see id. at 109, 110. The memorandum noted that Smith had been in contact with other surveillance targets, but it made no mention of Smith‘s Okinawa article and noted that FBI files “contain[ed] no pertinent information of an internal security nature concerning him.” Id. at 105.
The wiretap, approved and installed the same day, remained in place for 89 days, until the Smiths moved out of Washington, D.C., on August 31, 1969. FBI summary letters were forwarded to President Nixon (through presidential aide John Ehrlichman) and Kissinger. The government concealed the existence of the wiretap until May 11, 1973. Three years later, Smith and his family sued several federal officials (including President Nixon, who was later dismissed by stipulation) for monetary and equitable relief,1 alleging that the wiretap and subsequent disclosures of its fruits violated their first, fourth, and ninth amendment rights and Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
The District Court dismissed the case on the merits and also held the action time-barred. Smith v. Nixon, 449 F.Supp. 324 (D.D.C.1978). We reversed and remanded to the District Court on the basis of our decision in Halperin v. Kissinger (”Halperin I “), 606 F.2d 1192 (D.C.Cir.1979), aff‘d in part by an equally divided Court, cert. dismissed in part, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981), and directed the District Court to determine, inter alia, whether there was a “reasonable national security rationale supporting the wiretapping” for the purpose of determining the availability of a cause of action under Title III. Smith I, 606 F.2d at 1188.
On remand, the District Court, relying on the Supreme Court‘s intervening “objectification” of the qualified immunity defense in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), granted defendants summary judgment on the damage claims. Smith v. Nixon, 582 F.Supp. 709 (D.D.C.1984). The court declined to permit any further probing into the wiretap‘s actual purpose once the documentary evidence already obtained through discovery “establishe[d] a basis for rational national security concerns,” id. at 715, because ” ‘subjective motivation’ and ‘intention’ are of no legal significance after Harlow and may not be the subject of inquiry,” id. at 714 (citation omitted). The District Court also dismissed on the pleadings plaintiffs’ request for the expungement of all government records of the wiretap. Smith v. Nixon, 582 F.Supp. 716 (D.D.C.1984). Instead, the court ordered the FBI summary logs of the wiretap sealed, “except as required to fulfill the statutory records preservation and disposal obligations of the [FBI] and the National Archives and Records Service.” Id. at 717 (citing
II
The primary evil that moved the Harlow Court to abandon the subjective elements of the qualified immunity defense was the prospect of “broad-ranging discovery and the deposing of numerous persons, including an official‘s professional colleagues.” Harlow, 457 U.S. at 815-16, 102 S.Ct. at 2736-37. Such diversions, the Court observed, “can be peculiarly disruptive of effective government,” id. at 817, 102 S.Ct. at 2738 (footnote omitted), and “implicate separation-of-powers concerns,” id. at 817 n. 28, 102 S.Ct. at 2737-38 n. 28. The Court admonished that “[u]ntil this threshold immunity question is resolved, discovery should not be allowed.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; see Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985).
In keeping with Harlow‘s command, we subject damage actions against government officials to a heightened pleading standard. Bare allegations of improper purpose, like the bare allegations of malice rejected in Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2737-38, do not suffice to drag officials into the mire of discovery, Hobson v. Wilson, 737 F.2d 1, 29-31 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985). As we said in Hobson, “in cases involving a claim that defendants acted with an unconstitutional motive, we will require that nonconclusory allegations of evidence of such intent must be present in a complaint for litigants to proceed to discovery on the claim.” Id. at 29. In Halperin II, 807 F.2d at 188, we held that objective reasonableness of national security motivation is all that need be established to sustain that element of the qualified immunity defense consisting of the contention that the acts complained of were validated by a national security purpose--at least where, as here, the defendants purported to be acting for such a purpose at the time (and assuming, of course, that national security motivation would in law justify the actions, or could reasonably have been thought to do so at the time). It follows that once an official who concededly claimed to have been acting for validating national security reasons has alleged facts that furnish a rational national security basis for the challenged conduct, the court must dismiss the suit on the pleadings unless the plaintiff contradicts those facts or alleges other specific and concrete facts that raise a genuine issue as to the objective reasonableness of the national security basis.
III
Applying the heightened pleading requirement to this case, we consider first defendants’ allegations relating to the reasonableness of a national security basis for the wiretap. We then consider, in turn, the concrete factual allegations in plaintiffs’ complaint and those concrete assertions that plaintiffs could make were they now to be permitted to supplement their complaint with facts that they have learned through document discovery.
A
A defendant‘s “bland assurances“--contemporaneous or post hoc--“That a situation did, in fact, represent a national security problem requiring electronic surveillance,” Smith I, 606 F.2d at 1188, do not establish the wiretap‘s objective rationality. Rather, defendants must allege objective facts that place the wiretap in a credible national security context. Here they suggest two: Smith‘s premature disclosure of the Okinawa negotiating strategy in the New York Times, and his contacts with suspected leakers who were already targeted for electronic surveillance in the name of national security.
These allegations, in combination, plainly suffice to establish the reasonableness of national security motivation. See Haig v. Agee, 453 U.S. 280, 308, 101 S.Ct. 2766, 2782-83, 69 L.Ed.2d 640 (1981); Halperin II, 807 F.2d at 189-191. Plaintiffs’ demand that defendants further establish “a causal connection between” the Okinawa article and their wiretapping decision, Reply Brief for Appellants at 17 & n.*, amounts to a demand for proof of subjective motivation, proscribed by Harlow. We conclude that, unless plaintiffs’ complaint alleges concrete facts contradicting these assertions or otherwise casting doubt on the objective reasonableness of the national security justification, dismissal was warranted.2
B
Aside from naked assertion that a national security purpose would have been unreasonable, see Amended Complaint p 35, the allegations in the complaint arguably bearing upon this issue fall into three categories.
The first category tends to prove no more than that defendants’ actual purpose was something other than the protection of national security--for example, allegations that the records of the Smith wiretap were not filed in the “regular national security files of the FBI,” id p 29, and were distributed years later to unusual recipients such as Haldeman and Ehrlichman, id. p p 28-30, coupled with the charge that the object of the wiretap was “to monitor the sources of [Smith‘s] news stories which were personally embarrassing to high government officials,” id. p 34. All of this goes to subjective intent--which, as we have discussed above, is irrelevant.
The second category describes the manner in which plaintiffs used their telephone, and thus the types of conversations that defendants could have expected to (and did) intercept. That plaintiffs “frequently communicated their political and other views ... in telephone conversations,” id. p 25, says nothing of the objective reasonableness of a national security motivation for the wiretap. Even the most devoted KGB agent does not use his phone only for spying. Similarly, that Smith “spoke to numerous persons on his home telephone both in and outside of government [who] would supply [him] with facts and opinions on which he would base his stories,” id. p 26, does not confute (and indeed reinforces) the rationality of a national security motivation.
The third category consists of the allegation that “[a]t no time during the period of the interceptions did the plaintiffs ... act as agents of or in collaboration with a foreign power, its agents or agencies.” Id. That fact (assuming its truth) is likewise inadequate to suggest the irrationality of national security motivation. It was not clearly established at the time of the challenged wiretap that Title III‘s national security exemption turned on the target‘s affiliation with a foreign intelligence operative. Halperin II, 807 F.2d at 184-185. Even that portion of the Title III exemption that referred to the “protec[tion] [of] national security information from foreign intelligence activities,” see
C
The deficiency of the complaint under the heightened pleading standard would be evident even if we were to deem the complaint amended, see
The second new element disclosed, according to plaintiffs, by subsequently introduced evidence, is that FBI logs of the wiretap “reveal an interest in everything but national security leaks” and “only two [logged conversations] are between Smith and a government employee[,] neither of [which] deals with anything resembling a leak.” Brief for Appellants at 33-34 (footnote omitted). The manner in which the wiretap was executed, however, is evidence not of the rationality of a putative national security purpose, but of the wiretap‘s actual purpose (and perhaps of its reasonableness under the fourth amendment, a claim that plaintiffs have abandoned).3 And just as “a search is not to be made legal by what it turns up,” United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 229, 92 L.Ed. 210 (1948) (footnote omitted), the fact that, ex post, a wiretap is seen to have been unsuccessful in developing national security information does not establish that, ex ante, it was not reasonable to conduct it for that purpose.
Since, however, plaintiffs’ claim that the wiretap did not intercept any evidence implicating Smith in a leak bears on the rationality of continuing the wiretap in the name of national security, see Halperin II, 807 F.2d at 191-192, we must go on to note that the claim is in any case not an accurate portrayal of the record facts. The wiretap intercepted conversations that defendants could reasonably have interpreted to implicate Smith in past leaks. See Smith, 582 F.Supp. at 711. A July 31, 1969 summary letter that Hoover forwarded to Nixon and Kissinger recounted Smith‘s story to a fellow reporter that an unidentified State Department employee told Smith that in light of recently publicized leaks, including “[Smith‘s] story on Okinawa[,] ... he couldn‘t come around to see him anymore” because security had “just ‘gotten so tight,’ ” J.A. 137, 139. A second summary letter, dated August 1, identified by name one of Smith‘s government contacts, who “told Smith that everyone is telling [him] not to see Smith,” and that Smith “had been a bad boy for breaking a couple of stories.” Id. at 144, 149. The interceptions through the beginning of August, while not incriminating, certainly did nothing to allay reasonably held national security concerns. The wiretap was discontinued at the end of that month.
We sympathize with plaintiffs’ cri de coeur that dismissal of their case without permitting them discovery “deprives [them] of the right to prove their case or even to have contrary facts considered on defendants’ motion for summary judgment.” Brief for Appellants at 4. But that, alas, is exactly what immunity means: that the ability to obtain monetary damages for a wrong must sometimes yield to the need to protect public officials (and ultimately the public itself). That need is particularly acute in the national security context. See Halperin II, 807 F.2d at 187-188. Thus, there inevitably are circumstances in which the greater public interest in national security “compels the subordination” of an individual‘s interest in receiving damages for what might otherwise be a compensable injury. Halkin v. Helms, 690 F.2d 977, 1001 (D.C.Cir.1982).4
IV
Plaintiffs also appeal that part of the District Court‘s judgment on equitable relief affording the FBI an opportunity to evaluate whether the wiretap summary logs have sufficient “historical” or “research” value, see
As we held before in response to the same line of reasoning, the provisions directing the disposal of government documents “must yield to statutory or constitutional rights elsewhere granted.” Hobson v. Wilson, 737 F.2d 1, 64 (D.C.Cir.1984) (citation omitted), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985). There is no dispute that the challenged wiretap was illegal (albeit not in violation of clearly established law). See United States v. United States District Court, 407 U.S. 297, 321, 92 S.Ct. 2125, 2138-39, 32 L.Ed.2d 752 (1972). The provisions on which the government relies “effect[ ] no repeal of other provisions ... and must bow to them when they are more specific, as of course it must bow to the Constitution.” Hobson, 737 F.2d at 64 (quoting Chastain v. Kelley, 510 F.2d 1232, 1236 n. 4 (D.C.Cir.1975)). Thus, a court may order expungement of records in an action brought under
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We affirm the grant of summary judgment against plaintiffs’ damage action and remand plaintiffs’ equitable relief claim for action consistent with this opinion.
So ordered.