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HALPERIN v. KISSINGER

October 25, 1989

MORTON HALPERIN, et al., Plaintiffs,
v.
HENRY A. KISSINGER, et al., Defendants



The opinion of the court was delivered by: PRATT

 JOHN H. PRATT, UNITED STATES DISTRICT JUDGE

 Background

 This case was filed in 1973 and, therefore, has its origins in the dim past. During the intervening period of more than sixteen years, it has been the subject of three decisions by the District Court *fn1" and two by the United States Court of Appeals for the District of Columbia Circuit. *fn2" Plaintiffs are Morton Halperin, formerly the Chief of the National Security Council (NSC) Policy Planning Group during the formative months of the Nixon administration, Ina Halperin and their children. Since the case's inception, a number of the original defendants, including former President Nixon, have been dropped and there now remain only Henry A. Kissinger and H.R. Haldeman. *fn3"

 The plaintiffs' claim is predicated upon defendants' alleged institution of a wiretap of plaintiffs' home on May 9, 1969, which was continued until February 10, 1971, a period of twenty-one (21) months. Plaintiffs assert that this wiretap violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20, and also the Fourth Amendment of the Constitution, which prohibits unreasonable searches and seizures. In October 1987, following the remand of the court of appeals in Halperin II in 1986, defendants filed a motion for partial summary judgment. While plaintiffs do not dispute many of the facts upon which defendants rely, they argue that unresolved factual disputes preclude summary judgment. The matter has been extensively briefed. On March 1, 1988, the District Court (Judge John Lewis Smith) heard argument. Thereafter the case was transferred to this Court. Subsequently, both parties submitted proposed findings of fact and conclusions of law.

 The Remaining Issues

 By virtue of the remand in Halperin II, the issues pending have now been sharply narrowed. *fn4" More specifically, the appellate court ruled the defendants were entitled to summary judgment for the initiation of the Halperin wiretap. Halperin II at 190-191. Addressing the defendants' entitlement to qualified immunity for initiation of the wiretap, it directed this Court to determine:

 
the period (beginning with the wiretap's initiation and ending no later than May 1970) during which no reasonable jury could find the wiretap's putative national security purpose objectively unreasonable. As to that period, summary judgment against plaintiffs will lie on the Title III claim . . . .

 and:

 
the portion of that period [May 9, 1969-May 1970] for which defendants are entitled to summary judgment on the fourth amendment reasonableness claim because no reasonable jury could find that the wiretap violated what the Halperin I court found to have been the clearly established reasonableness standards. *fn5"

 807 F.2d at 194.

 The balance of the entire period running from May 1970 to February 10, 1971, was held in Halperin II not capable of summary judgment on either the Title III claim or the fourth amendment reasonableness claim. Id.

 Both this Court and the court of appeals have recognized that the purpose of the Halperin wiretap is paramount in determining defendants' entitlement to qualified immunity. As previously indicated, this determination has been complicated by the Supreme Court's reformulation of the qualified immunity doctrine since this case began. Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). While the actor's subjective intent has been the traditional focus, the Supreme Court in Harlow "rejected inquiry into state of mind in favor of a wholly objective standard." Davis v. Scherer, 468 U.S. 183, 191, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984). In national security cases, "a purely objective inquiry into the pretextuality of the [claimed national security] purpose is appropriate." Halperin II, 807 F.2d at 188. Defendants' actual purpose, which looks to subjective intent, is irrelevant. See Smith v. Nixon (" Smith II "), 257 U.S. App. D.C. 52, 807 F.2d 197, 201 n. 2 (1986). The "objective reasonableness of [the] national security motivation is all that need be established . . . ." Id. at 200, citing Halperin II, 807 F.2d at 188.

 FINDINGS OF FACT

 The Wiretap's National Security Predicate :

 1. In late April 1969, President Nixon met with his Attorney General, his Assistant for National Security Affairs and the FBI Director to discuss what could be done about leaks which Nixon believed were endangering the conduct of foreign policy. Based on FBI Director Hoover's statement that wiretaps had been used in prior administrations to investigate leaks and Attorney General Mitchell's assessment that the wiretaps would be lawful, Nixon authorized the FBI to initiate an investigation, which would include the use of wiretaps, when the next major leak occurred.

 2. On May 9, 1969, a wiretap was initiated on the residence telephone of Morton Halperin, who at that time was the Chief of the Planning Group for the NSC staff. Earlier that day, the New York Times had reported that the United States was bombing Vietnamese sanctuaries inside the Cambodian border. Halperin was aware of the divergent views among military and intelligence officials regarding the importance of the sanctuaries, had access to option papers discussing the possibility of a Cambodia bombing operation, knew about the bombing and was believed to be a potential source of the Cambodia bombing story. Halperin also had been singled out by FBI sources in the news media as one of the individuals who might have provided information to the story's author, Halperin's former college roommate William Beecher. The court of appeals affirmed the grant of summary judgment as to the initiation of the wiretap. Halperin II at 194.

 3. On May 28, 1969, the FBI reported that Halperin had agreed to help a reporter track down an internal Department of Defense cable on Vietnam. The FBI also reported that in another conversation, with a former colleague who was then out of government, Halperin had been overheard discussing an arms control report which was scheduled for NSC consideration, confirming a contingency plan for the use of force against the Soviet Union in the event of an invasion of an Eastern European country, and describing in detail internal disputes over military and foreign policy.

 4. Halperin's conversations prompted immediate concern. In his May 28 letter and May 29 follow-up letter to President Nixon and Dr. Kissinger, FBI Director Hoover advised that the reporter may have been working under the guidance of a foreign intelligence service. (In light of the information contained in the classified portions of those letters, Hoover's concerns were not unreasonable.) On June 2, a few days after Hoover sent his letters, Nixon's chief administrative assistant, H.R. Haldeman, noted a conversation in which the President expressed his concerns: "Big problem re leaks in Ks operation. Gave me a couple of reports -- very hard to know how to handle. Fear a couple may be conscious or unconscious agents. Wants me to talk [with] K." Two days later, on June 4, Alexander Haig noted in a "Talking Points" memo for Kissinger that although Halperin had not been "firmly linked with a security breach," he had been "involved in indiscretions." Haig recommended that the wiretap of Halperin be continued "for at least another two weeks so that a pattern of innocence can be firmly established."

 5. During the Spring and Summer months of 1969, leaks of foreign policy and military matters continued to concern the President and his national security officials. These included leaks about strategic arms and troop withdrawal plans and initiatives, areas in which Halperin had worked.

 6. Halperin was a potential source of these leaks. Although his access to some of the most sensitive projects had been limited after the Cambodia bombing article appeared, he continued to have access to sensitive information on a wide variety of subjects. Materials Halperin later deposited with the National Archives, for example, reveal that he possessed the May 28, 1969, TOP SECRET National Security Decision Memorandum (NSDM) on Okinawa, which was leaked and reported in Hedrick Smith's June 3, 1969, article in the New York Times. Halperin's access to classified documents included such matters as the relaxation of economic controls against the People's Republic of China (June 26, 1969, NSDM 17), strategic and tactical nuclear policy in Asia (July 7, 1969, Memorandum for Kissinger) and current materials on troop withdrawal. The latter included Dr. Kissinger's briefing memorandum to the President for his meeting with Secretaries Rogers and Laird, Generals Wheeler and Cushman (CIA Deputy Director) and Attorney General Mitchell, where the whole issue of Vietnamization and troop withdrawal figures would be discussed.

 7. By July 8, 1969, FBI Assistant Director Sullivan, who had been placed in charge of the wiretap operation, was reporting to Hoover that "we know that Halperin cannot be trusted. We have learned enough already from the early coverage of him to conclude this." In his letter to Hoover, Sullivan opined that Halperin knew about the wiretap because he was saying much less on the phone. A few weeks later, on August 22, 1969, the FBI learned that Halperin had told a former colleague about a message from General Wheeler, the Chairman of the Joint Chiefs of Staff, to General Abrams, Commander of United States forces in Vietnam. Halperin revealed that Wheeler had instructed Abrams that something had to be done to permit the United States government to say that it had made deescalatory moves.

 8. In mid-September 1969, Halperin left his full time position with the NSC staff. Leaks on foreign policy matters continued and remained a concern for administration foreign policy makers through May 1970. These included leaks on strategic arms, troop withdrawal, long range China policy and other matters which were being planned and considered while Halperin was on the staff and in which he was involved as the Chief of Policy Planning. Of particular concern to the President were leaks that might jeopardize the SALT negotiations, and specific directives about leaks were issued by him and Kissinger in October 1969 and May 1970. Halperin was not implicated in any of these leaks.

 9. Although Halperin had left the NSC staff, he remained a potential source of leaks. He was a consultant with the NSC (through May 1970) and retained a TOP SECRET security clearance. Although Halperin points out that he only was used as a consultant on one occasion and the FBI knew that he had declined a briefing during a visit to Japan, the FBI could have concluded that Halperin's former NSC colleagues might have been confiding in him regarding matters he worked on while he was with the staff. The FBI also knew from the wiretap that Halperin had taken his personal file of classified documents when he left the NSC, depositing them first with the Rand Corporation and later with the National Archives. These documents, which reveal the breadth of Halperin's ...


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