Zweibon v. Mitchell, Civ. A. No. 2025-71.

• Citation: 363 F. Supp. 936
• Decision Date: 20 July 1973
• Docket Number: Civ. A. No. 2025-71.
• Parties: Bertram ZWEIBON et al., Plaintiffs, v. John N. MITCHELL et al., Defendants.
• Court: U.S. District Court — District of Columbia

363 F. Supp. 936

Bertram ZWEIBON et al., Plaintiffs, v. John N. MITCHELL et al., Defendants.

Civ. A. No. 2025-71.

United States District Court, District of Columbia.

July 20, 1973.

Nathan Lewin, Washington, D. C., for plaintiffs.

Earl Kaplan, Edward S. Christenbury, Kevin T. Maroney, Benjamin C. Flannagan, Dept. of Justice, for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

JOHN H. PRATT, District Judge.

Upon consideration of plaintiffs' motion for partial summary judgment and the cross-motion by the defendants for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, the affidavits and exhibits of record, and the Court being fully advised, finds the facts and states the conclusions of law as follows:

Findings of Fact

1. The sixteen plaintiffs during the period of time covered by this action were members of or associated with the Jewish Defense League (JDL), an organization with headquarters in New York City.

2. The defendant John N. Mitchell served as the Attorney General of the United States during the years 1969-1972, which encompasses the period of the acts complained of. The defendants Malcolm J. Barrett, Alfred E. Camire, H. F. Doherty, Anthony T. Drabik, A. M. Gansky, Gerald C. Holland, R. W. Patterson, Eddie A. Sodolak and W. R. Sweeney are special agents or special employees of the Federal Bureau of Investigation (FBI).

3. This action is brought under Title 18 U.S.Code §§ 2510-2520 for damages imposed by that statute resulting from alleged unlawful electronic surveillance overhearings of plaintiffs' telephone conversations during the month of October, 1970 and from January 5, 1971 through June 30, 1971.

4. The defendant special agents and employees of the FBI, acting under the direction of the Attorney General, summarized the overhearings of the plaintiffs' conversations during the period the telephone at the JDL headquarters was surveilled. The summaries or logs of plaintiffs' conversations have been made available to the plaintiffs by the defendants.

5. This action grows out of the admission by the Government, in open court in the consolidated cases of United States v. Bieber et al., 71 CR 479 (E.D. N.Y.) and United States v. Joffe et al., 71 CR 480 (E.D.N.Y.) on July 6, 1971, that conversations of certain defendants in the foregoing cases, all members of the JDL, had been overheard during the course of a national security electronic surveillance.

6. In a memorandum for the Attorney General dated September 14, 1970, the Director of the FBI requested that a surveillance of the telephone of the JDL headquarters be authorized during the month of October, 1970 on the occasion of the 25th session of the General Assembly of the United Nations. In the memorandum the Director advised the Attorney General that the JDL has demonstrated a proclivity for demonstrations and violence in the form of attacks on Soviet and Arab diplomatic installations in this country, as well as by participation in demonstrations in New York City, which resulted in injury to private citizens and law enforcement officers. The Director pointed out the concern of the White House that utmost security be afforded to foreign dignitaries visiting New York City and that a surveillance of the telephone of JDL headquarters could provide advance knowledge of any activities of JDL causing international embarrassment to this country. This first authorization was approved by the Attorney General, defendant John N. Mitchell, on September 15, 1970.

7. On January 4, 1971 the Director of the FBI advised the Attorney General that activities by members of the JDL have taken the form of demonstrations targeted against Soviet diplomatic installations, protesting the treatment by the Soviet Government of the Jewish population in Russia; that the demonstrations have been the subject of numerous official protests by the Soviet Government alleging harassment of Soviet personnel and failure on the part of the United States Government to provide adequate protection and security for members of the Soviet diplomatic community in this country; that the renewed tensions in the Middle East and recent decisions by Soviet Courts directed against Soviet Jews have resulted in increased demonstrations against Soviet diplomatic installations throughout the world; and that a surveillance of the telephone of JDL headquarters could be expected to provide advance knowledge of activities of the group directed against diplomatic establishments, which could cause international embarrassment to the United States. This second authorization to conduct a surveillance was approved by the Attorney General on January 4, 1971.

8. On March 31, 1971 the Attorney General approved the continuation of the previously authorized electronic surveillance of the telephone of the headquarters of the JDL for a three-month period effective April 4, 1971 upon the representation of the Director of the FBI that:

During the past three months, the authorized surveillance has continued to reveal details of plans by the Jewish Defense League (JDL) to continue its program of harassment of Soviet and Arab bloc diplomats in New York City and Washington, D. C. In each instance the installation furnished otherwise unobtainable information well in advance of public statements by the JDL, thereby allowing for adequate counter-measures to be taken by appropriate police and security forces.

9. Prior to his first authorization on September 15, 1970 for the electronic surveillance of the telephone at JDL headquarters, the Attorney General had conversations with the Director of the FBI was well as a number of other people in the National Security Council and the Department of State concerning the impact of JDL activities on the foreign policy of this country based on JDL actions in 1969 and 1970. The Attorney General was aware of the representations made by the Soviet Government to this country that the United States had failed to provide adequate protection to the diplomatic installations of the Soviet Government in this country and that there was a possibility of retaliation against American diplomats in Moscow as a result of the activities of the JDL.

10. In authorizing the electronic surveillance, the Attorney General relied on the total knowledge received from the Department of State and the National Security Council and from meetings with the Director of the FBI prior to the first authorization of electronic surveillance on September 15, 1970, and these conversations with officials of the above-named agencies continued off and on until approximately March, 1971.

11. Further evidence of the impact which the activities of the members of the JDL had on the foreign relations between this country and the Soviet Union is documented by the following telegrams and memoranda, copies of which were attached as exhibits to defendants' motion for summary judgment:

(a) December 30, 1969, United States Mission to the United Nations (USUN) advises Secretary of State of protest by Ambassador Malik of demonstrations against the Soviet Mission and other incidents and alleged complicity by the United States Government and JDL to sabotage four-power talks. Exhibit B-3(1).

(b) December 30, 1969, Secretary of State advises American Embassy, Moscow concerning protest by Ambassador Dobrynin of property damage to Aeroflot and Tass offices. Dobrynin "alluded to possible adverse repercussions on United States-Soviet relations." The incidents of damage were described by Soviets as part of a series organized by JDL. In the telegram the State Department concluded that "fact of high-level protest increases possibility of retaliation." Exhibit B-4(1).

(c) December 31, 1969, American Embassy, Moscow, forwards to Secretary of State translation of Soviet protest of JDL activities. Included in the translation is the following statement: "The above-mentioned hostile actions against Soviet Mission to the United Nations and other Soviet diplomatic institutions in New York can have serious consequences and responsibility of which rest fully on the United States Government." Exhibits B-5(1) and B-2(1).

(d) June 4, 1970, American Embassy, Moscow, relates to Secretary of State oral protest by Soviets of May 20 involving incident at Soviet Mission to the United Nations (SMUN) and hinting at retaliation in Moscow as harassment by Zionist organizations continues in New York. Exhibit B-3(3).

(e) June 23, 1970, Secretary of State advises American Embassy, Moscow, of protest by Ambassador Dobrynin to Assistant Secretary Hillenbrand regarding the June 23 break-in by JDL at Amtorg offices in New York. The telegram states: "in closing Dobrynin noted previous Soviet protest on June 4 regarding anti-Soviet activities of Jewish militants in New York. Went on to say that, as Department aware, Soviet Government had kept these incidents from knowledge of Soviet people. Dobrynin added, however, he was not sure security could be maintained and that he felt `unpredictable consequences' if Soviet public opinion became aware of fact and aroused by anti-Soviet actions of Jewish militants in U.S." Exhibit B-4(3).

(f) On June 30, 1970 the Department of State in a memorandum to the Federal Bureau of Investigation referred to a recent raid by the JDL and requested the assistance of the Federal Bureau of Investigation in taking appropriate action. Attached to the memorandum is an internal State Department memorandum from the Soviet desk advising that "Jewish Defense League activity is beginning to have a negative effect on the conduct of our relations with the USSR * * *. In addition, the JDL's resort to physical violence during its raid on the Amtorg office raises the possibility of Soviet retaliation against United States Embassy personnel in Moscow." Exhibits B-1(1) (2).

(g) July 21, 1970, Secretary of State advises American Embassy, Moscow, of strong protests from SMUN concerning JDL incident at Soviet...