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