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SMITH v. NIXON

March 16, 1984

HEDRICK SMITH, et al., Plaintiffs,
v.
RICHARD M. NIXON, et al., Defendants



The opinion of the court was delivered by: SMITH

 Plaintiffs Hedrick and Ann Smith and their children bring this action for monetary and injunctive relief under the First and Fourth Amendments and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. Defendants are Richard M. Nixon, Henry A. Kissinger, John N. Mitchell, H. R. Haldeman, John Ehrlichman, William C. Sullivan, and Cartha DeLoach. *fn1" Currently before the Court are the motions of all defendants for summary judgment on the damages claims, on the basis of official immunity.

 The facts of the case are outlined in the earlier opinions of this Court, Smith v. Nixon, 449 F. Supp. 324 (D.D.C. 1978), and the Court of Appeals, Smith v. Nixon, 196 U.S. App. D.C. 276, 606 F.2d 1183 (D.C.Cir. 1979) cert. denied 453 U.S. 912, 69 L. Ed. 2d 997, 101 S. Ct. 3147 (1981). Limited discovery thereafter further details the events in question. In April 1969, after consulting with then-FBI Director Hoover and defendant Mitchell about the historical and legal basis for such an action, defendant Nixon authorized an electronic surveillance program designed to identify government employees who were disclosing confidential foreign policy information to the press. As the Court of Appeals described:

 
"Administration officials were concerned that continued disclosures might jeopardize national security. Surveillance targets were to be chosen according to three criteria: (1) those who had access to information that had 'leaked'; (2) those with unfavorable entries in their security files; and (3) those otherwise suspected by the FBI of involvement in leaking." Id. at 1186.

 The program eventually resulted in the placing of seventeen wiretaps (Plaintiffs' Exhibit ("PX") 2). At the time Hedrick Smith was employed by The New York Times as a reporter in its Washington bureau.

 On May 28, 1969, the National Security Council issued a "National Security Decision Memorandum," classified top secret, describing the American strategy for negotiations with Japan over the return of Okinawa to Japanese control (Defendants' Exhibits ("DX") D, C). The Memorandum noted that "the President is prepared to consider, at the final stages of negotiations, the withdrawal of [nuclear] weapons . . . if other elements of the Okinawa agreement are satisfactory" (DX C). On June 3, 1969, The New York Times, in a story by Smith attributed to "well-placed informants," reported that "President Nixon has decided to remove American nuclear weapons from Okinawa, once an overall plan for turning the island back to Japanese rule has been agreed upon." The story noted that the decisions "had not yet been communicated formally to the Japanese Government but presumably will be made known in the course of negotiations with Tokyo [later in the year]." (DX B).

 On June 4, 1969, defendant Kissinger and Director Hoover met at FBI headquarters in Washington (PX 3). On that same day, Hoover transmitted a memorandum to defendant Mitchell, stating in part:

 
"On this date Dr. Kissinger has requested that a telephone surveillance be placed on Hedrick L. Smith, who is also known as Rick Smith. He is a correspondent with 'The New York Times' and has been in contact with the individuals on whom telephone surveillances have been placed. He resides at 3409 Patterson Street, N.W., Washington, D.C., and has telephone number 363-7530. The files of this Bureau contain no pertinent information of an internal security nature concerning him.
 
"Upon your approval, a telephone surveilance will be placed on Hedrick L. Smith at his residence." (DX E).

 Defendant Mitchell signed the memorandum as "approved," and a wiretap was placed on plaintiffs' home telephone. No warrant was ever sought or obtained.

 The surveillance generated 107 pages of written logs (PX 1), and the FBI prepared and submitted reports in letter form to defendants Nixon and Kissinger. Reports dated July 31, August 1, and August 13, 1969, indicate that Smith talked with several government officials who expressed apprehension about further contacts with Smith (DX E). The reports also describe Smith's conversations with other Times reporters and individuals outside the government about contemporary political issues (DX E). On August 31, 1969, Hoover informed defendant Mitchell that the Smith surveillance was now "discontinued inasmuch as Smith has moved from the Washington, D.C. area" (DX E-36).

 Plaintiffs filed this suit on May 10, 1976, alleging that the warrantless surveillance "deprived them of their First Amendment rights, constituted an unreasonable search and seizure under the Fourth Amendment, and did not comply with the requirements of Title III. . . ." Smith, supra, 606 F.2d at 1186. On April 6, 1978, this Court granted defendants' motions to dismiss, holding that: 1) plaintiffs' claim was time-barred by the Statute of Limitations; 2) confusion surrounding the meaning of Title III's national security provision, 18 U.S.C. § 2511(3), precluded application of that statute; and 3) the surveillance was not "unreasonable" and therefore not in violation of the Fourth Amendment. Smith, supra, 449 F. Supp. at 326. The Court of Appeals reversed. The Court held that: 1) the action was not time-barred; 2) Title III provided a damage remedy "if the Smiths can demonstrate that there was no reasonable national security rationale supporting the wiretapping," and 3) that the Fourth Amendment "reasonableness" inquiry required fuller factual development and consideration of "Smith's profession" as a "working journalist." Smith, supra, 606 F.2d at 1188-91.

 The Court of Appeals remanded the case on July 12, 1979. Since that date, the Supreme Court and the Court of Appeals have re-examined the law of official immunity and its application in wiretapping litigation. See Nixon v. Fitzgerald, 457 U.S. 731, 73 L. Ed. 2d 349, 102 S. Ct. 2690 (1982) (hereinafter " Nixon "); Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (" Harlow "); Ellsberg v. Mitchell, 228 U.S. App. D.C. 225, 709 F.2d 51 (D.C.Cir. 1983), cert. denied sub nom. Russo v. Mitchell, 465 U.S. 1038, 52 U.S.L.W. 3612, 79 L. Ed. 2d 712, 104 S. Ct. 1316 (1984) (" Ellsberg "); Zweibon v. Mitchell, 231 U.S. App. D.C. 398, 720 F.2d 162 (D.C. Cir. 1983) (" Zweibon IV "). Because defendants' motions are based ...


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