606 F.2d 1192 (D.C. Cir. 1979), 77-2014, Halperin v. Kissinger

Docket Nº:77-2014, 77-2015.
Citation:606 F.2d 1192
Party Name:Morton HALPERIN et al., Appellants, v. Henry KISSINGER et al. Morton HALPERIN et al. v. Henry KISSINGER et al., Richard M. Nixon, John N. Mitchell, and H. R. Haldeman, Appellants.
Case Date:July 12, 1979
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1192

606 F.2d 1192 (D.C. Cir. 1979)

Morton HALPERIN et al., Appellants,

v.

Henry KISSINGER et al.

Morton HALPERIN et al.

v.

Henry KISSINGER et al., Richard M. Nixon, John N. Mitchell,

and H. R. Haldeman, Appellants.

Nos. 77-2014, 77-2015.

United States Court of Appeals, District of Columbia Circuit

July 12, 1979

Argued Feb. 9, 1979.

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[Copyrighted Material Omitted]

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Mark H. Lynch, Washington, D.C., with whom John H. F. Shattuck, Washington, D. C., and Jack D. Novik, New York City, were on brief, for appellants in No. 77-2014.

Larry L. Gregg, Atty., Dept. of Justice, Washington, D. C., for appellees in No. 77-2014 and cross-appellants in No. 77-2015. John C. Keeney, Acting Asst. Atty. Gen., Robert L. Keuch, Deputy Asst. Atty. Gen., and George W. Calhoun and Lubomyr M. Jachnycky, Attys., Dept. of Justice, Washington, D. C., were on brief for appellees in No. 77-2014 and cross-appellants in No. 77-2015. Benjamin C. Flannagan, D. Jeffrey Hirschberg, and Philip B. Heyman, Attys., Dept. of Justice, Washington, D. C., also entered appearances for appellees in No. 77-2014 and cross-appellants in No. 77-2015.

Joseph E. Casey, Washington, D. C., entered on appearance for appellee William Sullivan in Nos. 77-2014 and 77-2015.

James J. Bierbower, Washington, D. C., for appellee Jeb Stuart Magruder in No. 77-2015.

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Before WRIGHT, Chief Judge, ROBINSON, Circuit Judge, and GESELL, [*] District Judge.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Concurring opinion filed by District Judge GESELL.

J. SKELLY WRIGHT, Chief Judge:

Morton Halperin, a former member of the National Security Council (NSC) staff, and his family sued ten federal officials for money damages following revelations that their home telephone had been tapped by the Government from May 1969 until February 1971. 1 The Halperins alleged that the wiretap, which was installed during an investigation into public disclosures of confidential information, 2 was prohibited by both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 3 On cross-motions for summary judgment in December 1976 the District Court ruled in favor of all defendants except former President Richard M. Nixon, former Attorney General John N. Mitchell, and former presidential aide H. R. Haldeman. 4 The court concluded that Nixon, Mitchell, and Haldeman had violated the Halperins' Fourth Amendment rights, but not the terms of Title III. The Halperins were awarded $1 in nominal damages in August 1977. 5

Plaintiffs and defendants Nixon, Mitchell, and Haldeman appeal the decision. 6 The Halperins insist that the District Court erred in not applying Title III, in awarding only nominal damages, and in granting summary judgment in favor of former National Security Adviser Henry Kissinger. The defendants claim absolute immunity from this action and dispute the District Court's refusal to bar the suit on qualified immunity grounds. We affirm the District Court's conclusions on the immunity question, but reverse on the applicability of Title III, the proper measures of damages, and defendant Kissinger's motion for summary judgment. In addition, we believe that the District Court should have applied the warrant requirement for national security wiretaps as articulated in United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), and Zweibon v. Mitchell (Zweibon I), 170 U.S.App.D.C. 1, 516 F.2d 594 (1975) (En banc ), Cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976).

I. THE WIRETAP

Shortly after taking office in 1969 President Nixon and his top advisers grew concerned over press disclosures of classified

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information. 7 In their view such "leaks" limited the Administration's flexibility in developing foreign policy and could have eroded the candor of foreign governments in dealings with this country. On April 25, 1969 the President met in his office with Kissinger, Mitchell, and J. Edgar Hoover, the late Director of the Federal Bureau of Investigation (FBI), to discuss methods for controlling leaks. Mitchell, Hoover, and Nixon continued the discussion over dinner at Camp David that evening and developed a program, including wiretaps on private telephones, for investigation of suspected "leakers." 8 Both Mitchell and Hoover assured Nixon that the President could order such wiretapping without first obtaining a court order. 9 Three criteria were established at the meeting for identifying individuals to be investigated: (1) access to sensitive data that was being revealed publicly; (2) information in security files that "raised questions" about an individual; and (3) other incriminating information in FBI files. 10

Over the next two weeks the appearance of several newspaper stories seemingly based on classified reports heightened the Administration's alarm over leaks. 11 The surveillance program was finally triggered by a New York Times article on May 9 revealing massive American bombing of targets in Cambodia. 12 Nixon told Kissinger to ask the FBI to investigate the source for the story. 13 Although Halperin had no access to the information in the Times article, 14 FBI Director Hoover informed Kissinger that Halperin was the "prime suspect." 15 Hoover and Kissinger conferred by telephone four times that day, 16 and the wiretap on the Halperin home telephone was in place by evening. 17 Earlier that day, however, Kissinger had informed Halperin that he was considered a potential leaker, and the two men agreed that Halperin's access to classified information should be curtailed in order to allay suspicions. 18

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Three other private telephones were wiretapped in the attempt to find the source of the May 9 article. 19

The following day FBI officials and Colonel Alexander Haig, Kissinger's assistant, worked out procedures to conduct the surveillance "with no record maintained" in normal FBI files. 20 The Bureau then formally requested wiretap authorization from the Attorney General. With respect to Halperin, the FBI memorandum stated only:

Halperin, aged 30, was detailed from the Department of Defense to the National Security Council as a senior staff member on January 21, 1969. He was the subject of an applicant-type investigation by the Bureau. While admittedly he has had contact with Soviet nationals the investigation did not disclose at that time any pertinent derogatory information. ( 21

Attorney General Mitchell approved the wiretap. 22

The FBI agents conducting the surveillance compiled summaries of the overheard conversations, but neither preserved the tapes of the conversations nor attempted to minimize overhearing of personal discussions. 23 Despite observations by the FBI in May and June of 1969 that the Halperin tap was not producing evidence of a leak, 24 Kissinger requested that the taps be continued. 25 On July 8, 1969 the FBI recommended ending some of the electronic surveillance of suspected leakers, including Halperin. 26 On September 15 Kissinger requested termination of all wiretaps except Halperin's and one other. 27 Four days later Halperin resigned from the NSC staff, although at Kissinger's request he continued as a consultant to the Council. 28

Halperin retained his consultant position until May 1970, but had no access to classified information during that period, and worked only one day for the NSC. 29 The wiretap remained in place. Nor was there any reduction in surveillance when he resigned from his consultant position in protest over the American invasion of Cambodia in May 1970. After that resignation, however, the FBI reports on the wiretap were no longer sent to the National Security Adviser, but went to Haldeman, the President's chief administrative aide. 30 In July 1970 the FBI agent in charge of the wiretap suggested to his superior that the

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surveillance be lifted, 31 but it continued until February 10, 1971. 32

Plaintiffs cite FBI logs showing that agents overheard more than 600 calls on the Halperin telephone, of which only 28 percent were between Halperin and people outside the family. 33 The summary letters from the FBI contain much political information, covering such topics as planned publications criticizing the nation's Vietnam policy, 34 congressional lobbying on war-related legislation, 35 and political campaign plans, including potential opposition to President Nixon in 1972. 36 There is some evidence that the political information was valued at the White House. Disclosure in one of the Halperin summary letters that a former cabinet officer planned a magazine article opposing the Nixon Administration's foreign policy served as the basis for a planned "counter-attack" to the anticipated article. 37 The FBI summaries revealed no evidence suggesting that Halperin was leaking classified data. 38

The records of the Halperin wiretap were minimal. At first the FBI logs were kept at the Bureau in special files, where Kissinger

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and Haig reviewed them. 39 Subsequently summary letters were sent to Kissinger, Nixon (through presidential counsel John Ehrlichman), and occasionally Mitchell. 40 As noted above, after May 1970 only Haldeman received the letters. When the surveillance was terminated the records were stored in a White House safe. The wiretap program first came to public attention in the 1973 espionage trial of Dr. Daniel Ellsberg, when the Government admitted that Ellsberg had been overheard by the FBI on Halperin's home telephone. 41 This suit was filed in June 1973, within a month of that disclosure.

II. INDIVIDUAL RIGHTS AND NATIONAL SECURITY

This case presents the conflict between the Government's need to act decisively to...

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