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ELLSBERG v. MITCHELL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


June 20, 1984

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

The opinion of the court was delivered by: PRATT

MEMORANDUM OPINION

 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"

  II. Claims remanded by the Court of Appeals

 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 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 complete." Id., at 14.

 We have, for a second time, examined all the exhibits submitted to us for in camera inspection, and conclude that in addition to giving support to the privilege of state secrets they manifestly evince rational national security considerations. These submissions do not suggest that the taps generally, or with respect to plaintiffs individually, served as a pretext for politically or prosecutorially motivated surveillance. See Chagnon at 1260-61; Halperin v. Kissinger, 196 U.S. App. D.C. 285, 606 F.2d 1192, 1204-05 (D.C.Cir 1979). Moreover, while some of the taps at issue implicated "domestic" targets like the plaintiffs, *fn8" there is little doubt, following the holding in Zweibon IV, 720 F.2d at 169-70, that the documentation here of activities involving the foreign affairs of the United States brings these warrantless taps within the "foreign agent exception" to the warrant requirement of the Fourth Amendment. Admittedly this is an area clouded with uncertainty. Nevertheless, since no clearly established warrant or reasonableness requirements existed at the time of the surveillances under consideration here, Zweibon IV at 170, defendant Mitchell is shielded from liability by qualified immunity as set forth in Harlow and refined in Zweibon IV. We accordingly enter final judgment for defendant Mitchell. *fn9"

 An order consistent with the foregoing has been entered this day.

 ORDER

 Upon consideration of defendant Mitchell's motion for summary judgment, plaintiffs' opposition, defendant's reply, relevant in camera material and the entire record herein, it is by the court this 20th day of June, 1984,

  ORDERED that defendant Mitchell's motion for summary judgment be and the same hereby is granted, and it is

 ORDERED that judgment is entered for defendant Mitchell as to the claim of plaintiff Ellsberg concerning overhears on the surveillance of Morton Halperin, and it is

 ORDERED that judgment is entered for defendant Mitchell as to the formal claims of state secrets privilege by the Attorney General, the Director of Central Intelligence, and the Secretary of Defense, and it is FURTHER ORDERED that this action is dismissed.


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