information but also the distinct possibility existed that he was continuing to receive sensitive information on foreign policy matters, either officially or in informal discussions with his former NSC associates. Moreover, defendants have pointed to documents among the Halperin NSC materials which establish that his NSC tenure during the formative months of Nixon foreign policy making had given him knowledge of long range policies and plans on specific matters such as strategic arms negotiations, troop withdrawal, China policy and other matters -- knowledge that made him a potential source of the leaks on these subjects long after he left government. This is precisely the type of particularized showing which Halperin II recognized would have a "bearing on the objective reasonableness of the national security purpose." 807 F.2d at 190. The FBI also knew that Halperin had taken classified documents with him and found increasing evidence of a potential motive to leak as a result of, in Halperin's own terms, his becoming a "radical" on the Vietnam issue.
9. The Court's conclusion is not altered by plaintiffs' argument that many of the conversations reported by the FBI involved matters of political interest. Plaintiffs, for example, condemn the FBI for reporting Halperin's revelation of General Wheeler's instructions to General Abrams on de-escalation because this information "was personal and political in nature." "Political" and "national security," of course, are not mutually exclusive terms. While the possibility of de-escalation in Vietnam had obvious political overtones, the premature disclosure of the government's intentions would have had equally obvious military and foreign policy consequences. In another context, the court of appeals has followed recent Supreme Court pronouncements on standards for awarding summary judgment and concluded that the substantive law can limit "the range of inferences a trial court may draw" in considering whether genuine issues of material fact warrant the denial of a defendant's claim to qualified immunity. Martin v. D.C. Metropolitan Police Department, 259 U.S. App. D.C. 31, 812 F.2d 1425, 1435 (D.C. Cir. 1987). In light of the executive's broad discretion and greater experience with national security matters (see, e.g., CIA v. Sims, 471 U.S. 159, 85 L. Ed. 2d 173, 105 S. Ct. 1881 (1985); Halperin v. CIA, 203 U.S. App. D.C. 110, 629 F.2d 144 (D.C. Cir. 1980)), the Court concludes that this rule is equally apropos in suits which question actions that purportedly were taken in the interest of national security. Where a report potentially implicated national security then, plaintiffs do not create a genuine issue of material fact by suggesting without more that some other interpretation also was possible. This type of showing may be relevant to the actual purpose in continuing the Halperin wiretap, but Halperin II makes that immaterial to the qualified immunity issue that is before this Court.
10. The Court accordingly concludes that defendants cannot be held liable for the continuation of the wiretap through May 1970. As with the decision to initiate the wiretap, "a reasonable jury might disagree" with the continuation of the wiretap, "but no reasonable jury could fail to find that there were reasonable national security grounds" for doing so. Halperin II, 807 F.2d at 191. Given Halperin's early indiscretions, his increasing motivation to leak, his insider knowledge that made him a potential source of the leaks that continued to plague foreign policymaking and the fact that the wiretap did produce information relative to leaks -- indeed, as late as December 1970 the wiretap produced solid leads to potential leaks by others -- this Court must conclude that continuing the wiretap out of a concern with leaks would not have fallen "outside the range of the professional competence expected of" a government official charged with investigating leaks in 1969-1970. Malley v. Briggs, 475 U.S. 335, 346 n. 9, 89 L. Ed. 2d 271, 106 S. Ct. 1092 (1986).
The reasonableness issue
11. The court of appeals also requires this Court to reconsider whether the Halperin wiretap violated established reasonableness requirements for the purpose of determining defendants' liability under the Fourth Amendment. In other cases the Court of Appeals has held that national security wiretaps conducted contemporaneously with this one were not governed by clearly established constitutional standards. See e.g., Zweibon IV, 720 F.2d at 170 (see supra note 5). When this case last was before this Court, Judge Smith had relied on the court of appeals' pronouncements in these cases to conclude that claims of unreasonableness were insufficient to defeat defendants' entitlement to qualified immunity. Halperin v. Kissinger, 578 F. Supp. 231, 234 (D.D.C. 1984). This was reversed after the panel majority concluded that the court of appeals' earlier decision on this point constituted the law of the case. Halperin II, 807 F.2d at 194-97 (concurring op.). In Halperin I, the court had affirmed without discussion (606 F.2d at 1205-06) Judge Smith's initial ruling that the Halperin wiretap was governed by "the 'particular, precise, and discriminate' procedures required by the Supreme Court in numerous Fourth Amendment cases" (424 F. Supp. at 843), such as Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). This is the law of the case which must be applied in considering defendants' motion for summary judgment.
12. Although Halperin II holds that the Halperin wiretap must be judged by the established standards of 1969-1971, the court of appeals provided no additional guidance as to what those standards were. Assuming that reasonableness standards developed for criminal investigative wiretaps must be applied here, this Court finds it appropriate to look to the Supreme Court's opinion in Scott v. United States, 436 U.S. 128, 56 L. Ed. 2d 168, 98 S. Ct. 1717 (1978), which expands on what was said in Berger. The Court in Scott stressed that "because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law which will decide every case." 436 U.S. at 139. This is relevant in considering the requirement of minimization. "Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case." Id. at 140. Accordingly, "blind reliance on the percentage of nonpertinent calls intercepted" should be avoided. Id.
Many of the nonpertinent calls may have been very short. Others may have been one-time only calls. Still other calls may have been ambiguous in nature or apparently involved guarded or coded language. In all these circumstances agents can hardly be expected to know that the calls are not pertinent prior to their termination.