Halkin v. Helms, s. 77-1922

• Citation: 598 F.2d 1
• Decision Date: 16 January 1979
• Docket Number: 77-1923,Nos. 77-1922,s. 77-1922
• Parties: , 11 Fed. R. Evid. Serv. 1381, 4 Fed. R. Evid. Serv. 593 Adele HALKIN et al., Appellants, v. Richard HELMS, Department of State, et al. Adele HALKIN et al. v. Richard HELMS, Department of State, et al., Harold Brown, Secretary, Department of Defense in his official capacity, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1

598 F.2d 1

194 U.S.App.D.C. 82, 11 Fed. R. Evid. Serv. 1381,

4 Fed. R. Evid. Serv. 593

Adele HALKIN et al., Appellants, v. Richard HELMS, Department of State, et al.

Adele HALKIN et al. v. Richard HELMS, Department of State, et al., Harold Brown, Secretary, Department of Defense in his

official capacity, Appellant.

Nos. 77-1922, 77-1923.

United States Court of Appeals,

District of Columbia Circuit.

Argued May 2, 1978.

Decided June 16, 1978.

As Amended Dec. 5, 1978.

Rehearing En Banc Denied Jan. 16, 1979.

Appeals from the United States District Court for the District of Columbia (D.C.Civil 75-1773).

Mark H. Lynch, Washington, D. C., with whom, John H. F. Shattuck, Washington, D. C., was on the brief for the appellants in case No. 77-1922, and cross appellees in case No. 77-1923.

Daniel B. Silver, Washington, D. C., Gen. Counsel, National Security Agency, argued for the appellees in case No. 77-1922 and the cross appellant in case No. 77-1923.

Barbara Allen Babcock, Asst. Atty. Gen., Earl J. Silbert, U. S. Atty., Deanne C. Siemer, Gen. Counsel, Dept. of Defense and Roy Banner, Gen. Counsel, National Security Agency, Robert E. Kopp, David J. Anderson, Larry L. Gregg and R. John Seibert, Attys., Dept. of Justice, Washington, D. C., were on the brief for appellees.

Charles R. Donnenfeld, Rodney F. Page and Cameron M. Blake, Washington, D. C., also entered appearances for appellee Helms.

H. Richard Schumacher, Miles M. Tepper, Taylor R. Briggs and Alvin K. Hellerstein, New York City, were on the brief for defendants appellees RCA Global Communications, Inc., ITT World Communications, Inc., and Western Union International, Inc.

Milton Eisenberg, John T. Boese and Catherine R. Mack, Washington, D. C., were on the brief for amicus curiae Cord Meyer, Jr., urging affirmances insofar as the District Court properly dismissed those portions of the case which infringed upon and required publication of national security secrets.

Before ROBB and WILKEY, Circuit Judges, and RONALD N. DAVIES, ^* U.S. Senior District Judge for the District of North Dakota.

Opinion for the Court filed by ROBB, Circuit Judge.

ROBB, Circuit Judge:

These cross-appeals concern the state secrets privilege and its effect upon a lawsuit filed by the plaintiffs, 27 individuals and organizations formerly active in opposing participation by the United States in the war in Vietnam. The defendants are present and former officials of the National Security Agency (NSA), the Central Intelligence Agency (CIA), the Defense Intelligence Agency (DIA), the Federal Bureau of Investigation (FBI), and the Secret Service. Also joined as defendants are three communications corporations, Western Union International, RCA Global Communications, and ITT World Communications. The plaintiffs allege that the coordinated actions of the defendants violated their rights under the Constitution ¹ and statutes ² of the United States. Specifically, plaintiffs allege that the NSA conducted warrantless interceptions of their international wire, cable and telephone communications at the request of the other federal defendants and with the cooperation of the corporate defendants. Plaintiffs seek declaratory and injunctive relief as well as damages.

The issue before us is: should the NSA be ordered to disclose whether international communications of the plaintiffs have been acquired by the NSA and disseminated to other federal agencies? The Secretary of Defense avers that admitting or denying A brief description of NSA and its functions is appropriate. NSA itself has no need for intelligence information; rather, it is a service organization which produces intelligence in response to the requirements of the Director of Central Intelligence. Intelligence Activities: Hearings Before the Select Comm. to Study Governmental Operations with Respect to Intelligence Activities of the U.S. Senate, 94th Cong., 1st Sess. Vol. V at 9 (1975) (Hearings). The mission of the NSA is to obtain intelligence from foreign electrical communications. Signals are acquired by many techniques. The process sweeps up enormous numbers of communications, not all of which can be reviewed by intelligence analysts. Using "watchlists" lists of words and phrases designed to identify communications of intelligence interest ³ NSA computers scan the mass of acquired communications to select those which may be of specific foreign intelligence interest. Only those likely to be of interest are printed out for further analysis, the remainder being discarded without reading or review. Intelligence analysts review each of the communications selected. The foreign intelligence derived from these signals is reported to the various agencies that have requested it (Hearings at 6). Only foreign communications are acquired, that is, communications having at least one foreign terminal (Hearings at 9).

the acquisitions would reveal important military and state secrets respecting the capabilities of the NSA for the collection and analysis of foreign intelligence.

Two separate NSA operations are in issue here. From 1967 to 1973 the NSA conducted operation MINARET as a part of its regular signals intelligence activity in which foreign electronic signals were monitored. The second operation, SHAMROCK, employed different methods. It involved the processing of all telegraphic traffic leaving or entering the United States. NSA obtained these telegrams with the cooperation of the corporate defendants, and the telegrams were delivered to NSA in the form of paper tapes microfilm copies, or magnetic tapes.

All material acquired through MINARET and SHAMROCK was processed in the same manner. NSA included on the watchlists the names of United States citizens which were supplied by the FBI, the Secret Service, the CIA, the Bureau of Narcotics and Dangerous Drugs, and the military intelligence services. These agencies sought information in connection with their responsibilities to investigate such areas as international narcotics trafficking, executive protection, terrorism, and possible foreign influence over domestic organizations. The names of approximately 1200 Americans were included on the watchlists at one time or another and NSA disseminated about 2000 reports to the requesting agencies. The reports were edited or summarized versions of the messages acquired. This procedure was followed with all acquisitions, both MINARET and SHAMROCK, to conceal their source.

The federal defendants responded to the plaintiffs' allegations concerning both NSA programs by filing a motion to dismiss based upon a formal claim of the state secrets privilege by the Secretary of Defense. In an open affidavit asserting the claim, the Secretary stated that:

Civil discovery or a responsive pleading which would (1) confirm the identity of individuals or organizations whose foreign communications were acquired by NSA, (2) disclose the dates and contents of such communications, or (3) divulge the methods and techniques by which the (J.A. 39) Along with the open record affidavit, the Secretary submitted a classified affidavit for In camera examination by the court. After some procedural maneuvering in which the plaintiffs attempted to postpone the In camera inspection by the court and succeeded in obtaining a limited amount of discovery, the District Court upheld the claim of privilege with respect to operation MINARET. The court dismissed the claims which were predicated upon the privileged acquisitions because the ultimate issue, the fact of acquisition, could neither be admitted nor denied.

communications were acquired by NSA, would severely jeopardize the intelligence collection mission of NSA by identifying present communications collection and analysis capabilities.

Regarding the activities pertaining to wire or telegraphic communications alleged to have been sent by certain of the plaintiffs within the United States and to have been acquired by NSA through the SHAMROCK source, the court found

in view of matters which have to date been made public about the SHAMROCK source, the claim of privilege cannot be extended to preclude the federal defendants from admitting or denying the fact Vel non of acquisition of a plaintiff's communication originated in the United States for transmission abroad, where it conclusively can be determined from records and materials now retained by NSA that such communication was obtained through the SHAMROCK source.

(J.A. 112-13) Accordingly, the court ordered the defendants to respond to the allegations in the complaint concerning SHAMROCK materials.

The District Court entered a partial final judgment with respect to the dismissal, See Fed.R.Civ.P. 54(b), and certified the question of the rejection of the state secrets privilege to this court under 28 U.S.C. § 1292(b). The plaintiffs and the federal defendants each appeal from that part of the ruling adverse to them.

The plaintiffs attack the District Court's ruling on three fronts. They argue first that the procedure followed by the District Court to resolve the state secrets privilege question unfairly denied them an opportunity to litigate their constitutional claims. On the merits, they challenge the substantive conclusion that the mere admission or denial of acquisition is a state secret. Alternatively, plaintiffs contend that assuming the state secrets question was properly resolved, dismissal is inappropriate because they could go forward with their claims based upon confirmation of the existence of any of their names on the watchlists. The federal defendants support the court's ruling with respect to MINARET, but contend that the court incorrectly denied the claim of privilege with respect to the SHAMROCK source.

We conclude that the decision of the District Court was procedurally sound, that the court correctly determined the state secrets question regarding MINARET and that the mere existence of any of the plaintiffs' names on a watchlist is...