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HALPERIN v. KISSINGER

December 16, 1976

MORTON H. HALPERIN, et al., Plaintiffs
v.
HENRY A. KISSINGER, et al., Defendants



The opinion of the court was delivered by: SMITH

This action under the First, Fourth, Fifth, and Ninth Amendments to the Constitution and under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (Title III), seeks declaratory and injunctive relief and money damages for defendants' allegedly illegal wiretapping of plaintiffs' home telephone. Plaintiffs are Morton H. Halperin, a former Chief of the National Security Council Planning Group, his wife Ina, and their three minor children. Defendants are Henry A. Kissinger, Richard M. Nixon, John N. Mitchell, H. R. Haldeman, Alexander M. Haig, William C. Sullivan, Robert C. Mardian, Clarence Kelley and Jeb Stuart Magruder (hereinafter cited as federal defendants) John Ehrlichman, and the Chesapeake and Potomac Telephone Company (C&P). The matter is before the Court on plaintiffs' Motion for Summary Judgment against the federal defendants and Motion for Partial Summary Judgment against defendant C&P, federal defendants' Motion for Summary Judgment, defendant Ehrlichman's Motion for Summary Judgment, defendant C&P's Motion for Summary Judgment, and defendant Nixon's Motion to Dismiss.

 I

 Many of the central facts in this case are undisputed and can be recounted briefly. Between February and April of 1969, Nixon Administration officials grew increasingly concerned about leaks to the press of certain foreign policy documents and classified information. The leaks related to United States policies in Vietnam, China, the Soviet Union, Europe, and the Mideast. In late April 1969, President Nixon, Attorney General Mitchell, National Security Affairs Advisor Kissinger, and FBI Director Hoover met to discuss the problems of leaks and to formulate a plan for stopping unauthorized disclosures. After receiving the Attorney General's legal opinion on the matter and assurances from the FBI Director about previous Executive practice, President Nixon authorized a program of electronic surveillance of individuals suspected of leaking information detrimental to the national defense and foreign policy of the United States. Those to be wiretapped would be selected on the basis of access to information leaked, material in security files, and evidence developed as the surveillance proceeded.

 On May 9, 1969, following the appearance of an article in the New York Times concerning United States B-52 bombing raids in Cambodia, wiretaps were requested upon four individuals, including plaintiff Halperin. The names were provided by Dr. Kissinger and were transmitted by Colonel Haig to the Assistant Director of the FBI's Domestic Intelligence Division, William Sullivan. Three days later, Attorney General Mitchell gave his authorization for the wiretap of the Halperin home telephone. *fn1" This wiretap remained in effect approximately twenty-one months.

 During this period FBI agents monitored telephone communications and prepared logs of many of the conversations. Letters summarizing some of the discussions were prepared and forwarded to FBI Director Hoover for transmittal to the President (through Presidential Counsel Ehrlichman) and to Dr. Kissinger (through Colonel Haig). On occasion, summaries of interceptions were also sent to Attorney General Mitchell. After May 1970, the FBI's summary letters were sent only to Presidential Assistant Haldeman, who was to screen the letters for relevant information. On February 10, 1971, the Halperin wiretap was removed.

 Subsequently, after discussions involving Mr. Sullivan, Assistant Attorney General Mardian, President Nixon, and Mr. Ehrlichman concerning disposition of the wiretap documents, the records were taken from the FBI's custody and placed in a safe in Ehrlichman's White House office. Failure to produce the documents resulted in the dismissal of a criminal case involving the Pentagon Papers, United States v. Russo and Ellsburg, No. 9373 (C.D.Cal., Order of May 11, 1973). On May 12, 1973, the Halperin wiretap records were recovered from Ehrlichman's safe and returned to the FBI. Plaintiffs filed this action on June 14, 1973.

 II

 A

 A threshold question confronting the Court is the applicability to this action of Title III's procedures and remedies for electronic surveillance. Although this statutory scheme was in effect during 1969-1971 when defendants' wiretapping activities occurred, the legality of warrantless national security wiretaps has been considered only in subsequent judicial decisions. United States v. United States District Court (Keith), 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972); Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594 (1975); cert. denied, 425 U.S. 944, 96 S. Ct. 1684, 48 L. Ed. 2d 187 (1976). *fn2" The Keith case held that, "[Nothing] in 18 U.S.C. § 2511(3) *fn3" was intended to expand or to contract or to define whatever presidential surveillance powers existed in matters affecting the national security." 407 U.S. at 308. (Emphasis in original.) The Supreme Court in Keith proceeded to hold the challenged wiretaps invalid under the Fourth Amendment but did not resolve their legality under Title III. Compare id. at 335-44 (White, J., concurring in judgment).

 Having reviewed the entire record in this case, including the extensive depositions and answers to interrogatories, the Court holds as a matter of law that defendants have made out a sufficient good faith defense against the retroactive application of Keith and Zweibon. Without engaging in an exhaustive analysis of legislative history or of pre- Keith decisions, the Court notes the indisputable difficulties and ambiguities presented by § 2511(3). Interpretation of this statute and of the President's domestic power thereunder troubled legislators, law enforcement personnel, and courts until the Keith decision, when the Supreme Court ruled that the statute was merely a disclaimer of intent to limit constitutionally proper Executive actions. Thus, at least until 1972, and perhaps until the 1975 Zweibon decision, see Keith, supra, 407 U.S. at 309 n.8, the meaning and the limits of § 2511(3) were open issues.

 Defendants should not be held to have acted at their peril in this vacuum. In view of the confused state of the law and the 30-year history of similar Executive actions, see Keith, supra, 407 U.S. at 310-11; Zweibon, supra, 516 F.2d at 616-19, the Court finds that defendants' determination that Title III was inapplicable to the Halperin wiretap was reasonable during the period of surveillance. The Court further finds no genuine issue of fact in the record controverting this good faith belief on defendants' part. See Scheuer v. Rhodes, 416 U.S. 232, 242-50, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Apton v. Kuhn, 165 U.S. App. D.C. 22, 506 F.2d 83, 91-94 (1974); see also Chevron Oil Co. v. Huson, 404 U.S. 97, 105-07, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971) (standards for non-retroactivity); Morales v. Hamilton, 391 F. Supp. 85, 89-91 (D.Ariz. 1975). Accordingly, plaintiffs have no cause of action under Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

 B

 The compatibility of the wiretap with the Fourth Amendment is a different matter. *fn5" Assuming arguendo the inapplicability of the warrant provision, cf. Keith, supra; Katz v. United States, 389 U.S. 347, 358 n.23, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), there can be no serious contention that the Fourth Amendment's independent requirement of reasonableness is suspended in the area of national security searches and seizures. In other words, even if § 2511(3) and prior presidential practice could be invoked to authorize warrantless wiretaps, national security surveillance still must be "exercised in a manner compatible with the Fourth Amendment." Keith, supra, 407 U.S. at 320; cf. United States v. Robel, 389 U.S. 258, 264, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967). To resolve the wiretap's reasonableness under the Fourth Amendment, the Court must examine and balance the varying interests presented ...


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