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ELLSBERG v. MITCHELL

June 20, 1984

Daniel Ellsberg, et al., Plaintiffs,
v.
John N. Mitchell, Defendant



The opinion of the court was delivered by: PRATT

 John H. Pratt, United States District Judge

 This protracted litigation, which began nearly 12 years ago with nineteen plaintiffs and ten named defendants, has by now dwindled considerably in size and scope. Much of the case was resolved when all plaintiffs except Russo, Young, and Ellsberg dropped certain claims against the defendants through a stipulation entered into on November 23, 1982. Moreover, the granting of successive motions for partial summary judgment eventually left John Mitchell as the sole defendant. The first motion, granted on May 28, 1982, dismissed all claims against defendants Walters, Ingersoll, Acree, Kleindienst and Gray. The second, which we granted on December 22, 1982, dismissed all claims against defendants Rowley, Rogers, Laird, and Helms. Later, on December 23, 1982 and July 27, 1983 respectively, we granted summary judgment for defendant Mitchell against plaintiffs Russo and Young.

 The only claims unaffected by the foregoing events, and before us at this time, are Ellsberg's claim for being overheard on a wiretap of Morton Halperin, and the claims of five plaintiffs resulting from overhearings on foreign security surveillances of others. The latter claims were recently remanded to us from the Court of Appeals, where they had been appealed following their adjudication pursuant to Fed.R.Civ.P. 54(b). *fn1" Defendant Mitchell has now moved for summary judgment as to the Ellsberg claim and the claims remanded by the Court of Appeals. Having reviewed defendant's motion, plaintiffs' opposition, defendant's reply, relevant materials in camera, and the entire record herein, we enter final judgment for defendant as to all remaining claims.

 DISCUSSION

 I. Ellsberg's Claim

 Plaintiff Ellsberg has sought damages from defendant Mitchell for overhears resulting from wiretapping connected with national security electronic surveillance of Morton Halperin. On January 31, 1983, we stayed proceedings in the portion of this case dealing with plaintiff Ellsberg, on plaintiff's representation that he would agree

 
to be bound by the determination made in the Halperin litigation regarding Mitchell's liability. If the court there finds Mitchell immune or facts which otherwise result in absence of liability when applied to the Ellsberg overhears, plaintiff will accept the result.

 Plaintiff's Memo. re: Motion for Reconsideration, December 30, 1982 at 3. In accordance with this acknowledgement that the case of Morton Halperin, et al. v. Henry A. Kissinger, et al., Civ. Action No. 1187-73 (D.D.C.), "will control the determination of Ellsberg's claims," Plaintiff's Memo. at 3, plaintiff promised to file a stipulation agreeing to be bound by the result in Halperin. Id. Although plaintiff never filed that stipulation, plaintiff's promise was and is binding in light of the court's reliance on it in granting plaintiff's motion to reconsider the court's earlier denial of a stay of proceedings. Consequently, the court's granting of summary judgment for defendant on January 13, 1984 in Halperin v. Kissinger, 578 F. Supp. 231 (D.D.C. 1984) *fn2" is dispositive of plaintiff Ellsberg's claims and we enter final judgment for defendant Mitchell. *fn3"

 The other claims before us have been remanded by the Court of Appeals following its decision on May 10, 1983 in Ellsberg v. Mitchell, 228 U.S. App. D.C. 225, 709 F.2d 51 (D.C.Cir. 1983). These claims relate to foreign intelligence surveillance conducted by the Federal Bureau of Investigation, as well as other foreign intelligence surveillance contained in records of the Central Intelligence Agency and the Department of Defense. We found defendants' invocation of the state secrets privilege as to those claims justified, and certified our decision as final pursuant to Fed.R.Civ.P. 54(b). The Court of Appeals upheld our determination that the state secrets privilege was properly invoked, 709 F.2d at 59, but remanded the case to permit plaintiffs to make out a prima facie case of Fourth Amendment violation, subject to a qualified immunity defense. *fn4" Id., at 69-70.

 The foreign intelligence surveillance claims -- those of plaintiffs Robert Scheer, Leonard Boudin, Daniel Ellsberg, Stanley Sheinbaum and Richard Falk *fn5" -- must be governed by a determination of whether defendants are entitled to qualified immunity as a matter of law. While the Court of Appeals remanded the case to afford plaintiffs the opportunity to make out a prima facie case, it also recognized that defendant could defend, as a matter of law, on immunity grounds. 709 F.2d at 69-70. Since the qualified immunity issue necessarily impinges on privileged state secrets, the Court of Appeals observed that the limited factual questions involved "could be resolved by the trial judge through use of appropriate in camera procedures." *fn6"

 Application of the qualified immunity doctrine to warrantless national security surveillance actions has become much clearer as a result of recent decisions by this Circuit which have elaborated on the Supreme Court's new qualified immunity test enunciated in Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). Harlow disposed of the "subjective" aspect of qualified immunity and held that courts should examine only the "objective reasonableness of an official's conduct, as measured by reference to 'clearly established' law." Id., at 818. As the Court of Appeals in the instant case interpreted this analysis, "once an official's conduct has been ascertained, the determinative question will be what rules were clearly established at the time he acted." 709 F.2d at 69. The court in Zweibon v. Mitchell, 231 U.S. App. D.C. 398, 720 F.2d 162 (D.C.Cir. 1983) (Zweibon IV) stated even more starkly that under Harlow, "if the law was not clearly established at the time the contested conduct occurred, the inquiry ceases. At that point the official is entitled to summary judgment as a matter of law . . . . Id., at 168.

 It is plain from the holding in Zweibon IV that no clearly established warrant or reasonableness requirements existed at the time of the surveillance at issue in this case. *fn7" Id., at 170. See also Chagnon v. Bell, 206 U.S. App. D.C. 280, 642 F.2d 1248, 1256-63 (D.C.Cir. 1980); Sinclair v. Kleindienst, 207 U.S. App. D.C. 155, 645 F.2d 1080, 1084-85 (D.C.Cir. 1981). It is equally plain, after the holding in Zweibon IV, that defendant can invoke the doctrine of qualified immunity regardless of whether the privileged surveillances were "foreign" or "domestic," so long as those taps bear some rational relationship to the area of foreign affairs. 720 F.2d at 169-70. Finally, with regard both to the objective "conduct" referred to in the Harlow test, and to the possibility of "improper purposes" having animated the surveillances, we concur with the court in Smith v. Nixon, 582 F. Supp. 709 (D.D.C. 1984) (Smith, J.), that "if the ...


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