that the law was unsettled with respect to national security wiretaps at the time of the Smith surveillance. See Zweibon IV, supra, 720 F.2d at 170. See also Sinclair v. Kleindienst, 207 U.S. App. D.C. 155, 645 F.2d 1080, 1082-85 (D.C.Cir. 1981). Because the "rules [regarding such surveillances] were [not] 'clearly established' at the time they acted," Ellsberg, supra, 709 F.2d at 69, defendants contend that they are entitled to summary judgment. See Zweibon IV, supra, 720 F.2d at 168-70; Halperin v. Kissinger, supra, 578 F. Supp. 231, 234.
Plaintiffs urge that summary judgment is inappropriate because there exists a genuine issue of fact as to the purpose of the tap. According to plaintiffs, defendants have "failed to prove the factual predicate for their position, i.e., that the Smith wiretap was actually a national security wiretap." Plaintiffs correctly observe that the substantive rules of electronic surveillance -- i.e., whether the Constitution or Title III requires a warrant -- turn on whether the tap is characterized as a "national security tap" or a "non-national security tap." See United States v. United States District Court, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972); Ellsberg, supra, 709 F.2d at 65-68; Halperin v. Kissinger, supra, 606 F.2d at 1201-02. Courts have long inquired into the "reasons" for or "purposes" of a challenged surveillance, and the Court of Appeals has warned that "courts must be alert to the possible pretextuality " of a "national security" claim. Chagnon v. Bell, 206 U.S. App. D.C. 280, 642 F.2d 1248, 1260 (D.C.Cir. 1980), Cert. denied, 453 U.S. 911, 69 L. Ed. 2d 994, 101 S. Ct. 3142 (1981) (emphasis supplied). See also Sinclair v. Kleindienst, supra, 645 F.2d at 1083-84; Halperin v. Kissinger, supra, 606 F.2d at 1202. Indeed, the Court of Appeals directed this court on remand to carefully examine the "national security rationale for this surveillance," and to reject any "bland assurances" by defendants that the "situation represented a national security problem requiring electronic surveillance." Smith, supra, 606 F.2d at 1188.
Plaintiffs contend that discovery on the purpose issue, including depositions of defendants, is necessary, and, at minimum, discovery is necessary under Fed.R.Civ.P. 56(f) for plaintiffs to fairly oppose defendants' summary judgment motions. By contrast, defendants argue that the "objective record" establishes the national security rationale for the surveillance, and that, in any event, Harlow proscribes discovery until the "threshold" immunity question is resolved on summary judgment.
Although the Supreme Court in Harlow "consciously sought to facilitate summary disposition" in suits against government officials, McSurely v. McClellan, supra, 697 F.2d at 316, the precise interaction between Harlow and the strict requirements of Rule 56 is not entirely clear. Two decisions by the Court of Appeals are illustrative. In McSurely v. McClellan, the Court noted that " Harlow does not purport to change the operation of Rule 56 in immunity cases." Id. at 321 n.20. In National Black Police Ass'n v. Velde, supra, the Court observed that " Harlow substantially altered the standards governing motions for summary judgment in cases involving claims of qualified immunity." 712 F.2d at 573. Rule 56, of course, requires that the moving party demonstrate, by affidavits, "pleadings, depositions, answers to interrogatories, and admissions on file," that there is no genuine issue as to any material fact, yet Harlow expressly bars discovery until the immunity issue is decided, on the grounds that the immunity doctrine is in part designed to protect officials from the "burdens of broad-reaching discovery." Harlow, supra, 457 U.S. at 818. Cf. Zweibon IV, supra, 720 F.2d at 171. At the very least it can be said that Harlow renders certain facts no longer "material" within the meaning of Rule 56: "subjective motivation" and "intention" are of no legal significance after Harlow and may not be the subject of inquiry. See Harlow, supra, 457 U.S. at 816-17. That conclusion, unfortunately, does not answer the question of whether "purpose" is classified as a matter of (immaterial) "motivation" or (material) "conduct," a question made harder by the doctrinal necessity of determining whether the tap was based on a valid "national security rationale."
The two post- Harlow Court of Appeals decisions involving electronic surveillance do not resolve the problem. In Ellsberg, supra, the Court declined to rule upon defendants' qualified immunity claims, stating that "a decision on this matter will require some factual findings concerning the purposes of and circumstances surrounding the tap. Determinations of that order should be made in the first instance by the District Court." 709 F.2d at 68 n.73 (emphasis supplied). In Zweibon IV, supra, the Court considered plaintiff's argument that a warrantless surveillance "undertaken primarily for prosecutorial [rather than national security] purposes violated 'clearly established' law." 720 F.2d at 173 n.18 (quoting Brief for Appellants at 56). The Court rejected that position:
"We dismissed this argument in Chagnon v. Bell, concluding that there exist no clear standards for defining or evaluating the "purpose" of a warrantless national security wiretap. Consequently, allegations of prosecutorial purpose raise no genuine issues relevant to the defense of qualified immunity. 642 F.2d at 1062 n.25." Id.
The Court's sweeping statement that allegations regarding the true "purpose" of a warrantless national security wiretap are irrelevant should be viewed in context. Chagnon v. Bell involved the "foreign agent" exception to the warrant requirement, and the Chagnon court specifically distinguished "political pretext" cases, including this one. See Chagnon v. Bell, supra, 642 F.2d at 1260 & n.25; Cf. Ellsberg, supra, 709 F.2d at 71 (MacKinnon, J., concurring in part and dissenting in part).
This Court on two occasions has addressed the "improper purpose" problem in wiretap cases. On remand in Ellsberg, (and before Zweibon IV was announced), plaintiff argued that summary judgment on qualified immunity grounds was inappropriate because he had no opportunity to conduct discovery related to defendant's "motives" and "reasons" for ordering a surveillance. Judge Pratt rejected this argument: "the Supreme Court's purpose in formulating a new qualified immunity test [in Harlow ] was to prevent the sort of investigation into motives which plaintiff seeks to undertake." Ellsberg v. Mitchell, CA No. 1979-72 (D.D.C. July 22, 1983), slip op. at 3. Judge Pratt concluded that the "objective record . . . establishes a valid rationale for the surveillance. Harlow precludes us from continuing further and asking if national security was the actual or only reason for defendant's conduct." Id. at 4 (emphasis supplied). Similarly, this Court in Halperin v. Kissinger, supra, rejected a "political purpose" argument and found that the "objective record . . . reflects a rational national security concern." Slip op. at 7.
The district court decisions in Ellsberg and Halperin reflect a workable, if not entirely elegant, solution to the problems presented in "improper purpose" wiretap cases after Harlow. It is obvious that some documentation of the challenged wiretap must be produced; it is equally obvious that deposition questions regarding "purpose" or "rationale" are not segregable from improper inquiries into "motive." These considerations tug in opposite directions, but it appears that Harlow's insistence on "objective" criteria and the "social costs" of immunity litigation mandate the approach taken in Ellsberg and Halperin. If the documentary record of the surveillance establishes a basis for rational national security concerns on the part of the defendant officials, then the tap may be characterized as a "national security tap" and the inquiry as to conduct is completed. The next step is the "purely legal" determination of whether the rules regarding such surveillances were "clearly established" at the time of the tap.
In this case, as the Court of Appeals observed, the challenged surveillance was part of a presidentially-approved program designed to identify government officials who were leaking confidential foreign policy information to the press. Smith, supra, 606 F.2d at 1186 ("Administration officials were concerned that continued disclosures might jeopardize national security.") Cf. Haig v. Agee, supra, 453 U.S. at 307 ("Protection of the foreign policy of the United States is a governmental interest of great importance, since foreign policy and national security considerations cannot neatly be compartmentalized.") The authorization memorandum from the FBI Director to the Attorney General (defendant Mitchell) notes that Smith had been in contact with other subjects of surveillance. Smith's June 4, 1969, article directly reflects the contents of a secret National Security Council memorandum setting forth American strategy in upcoming negotiations with a foreign government. The record thus reveals a basis for "rational national security concerns" on the part of the officials involved in the surveillance. In view of the fact that in 1969 there were no "clearly established" warrant and reasonableness requirements regarding such surveillances, the Court concludes that defendants are entitled to summary judgment on the grounds of qualified immunity. See Zweibon IV, supra, 720 F.2d at 170, 173. In view of the foregoing,
the Court need not reach the absolute immunity or statute of limitations issues raised by defendants.
Accordingly, the motions of Henry A. Kissinger, John N. Mitchell, H. R. Haldeman, John Ehrlichman, William C. Sullivan and Cartha DeLoach for summary judgment are granted.
An appropriate order follows.
Upon consideration of defendants' (except Nixon) motion for partial summary judgment, plaintiffs' opposition, oral argument, and the entire record, it is by the Court this 16th day of March, 1984
ORDERED that defendants' motion is granted and, accordingly, plaintiffs' damages claims against defendants Mitchell, Kissinger, Haldeman, Ehrlichman, DeLoach and Sullivan are hereby dismissed with prejudice.