690 F.2d 977 (D.C. Cir. 1982), 80-2214, Halkin v. Helms

Docket Nº:80-2214.
Citation:690 F.2d 977
Party Name:Adele HALKIN, et al., Appellants, v. Richard HELMS, Department of State, et al.
Case Date:September 21, 1982
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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690 F.2d 977 (D.C. Cir. 1982)

Adele HALKIN, et al., Appellants,

v.

Richard HELMS, Department of State, et al.

No. 80-2214.

United States Court of Appeals, District of Columbia Circuit

September 21, 1982

Argued Feb. 12, 1982.

As Amended .

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Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 75-01773).

Mark H. Lynch, Washington, D. C., with whom Charles S. Sims, New York City, was on the brief, for appellants.

Alfred Mollin, Attorney, Dept. of Justice, Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed and Leonard Schaitman, Attorney, Dept. of Justice, Washington, D. C., was on the brief, for Federal appellees. Barbara Herwig, Attorney, Dept. of Justice, Washington, D. C., also entered an appearance for Federal appellees.

Walter H. Fleischer, Washington, D. C., with whom James A. Bensfield, Alfred F. Belcuore and Daniel S. Goodman, Washington, D. C., were on the brief, for appellee, Ober.

John T. Boese and Joyce A. Rechtschaffen, Washington, D. C., were on the brief, for appellee, Meyer, Jr.

Eugene L. Chrzanowski, Richard W. Galiher, William H. Clarke, Frank J. Martell and William J. Donnelly, Washington, D. C., were on the brief, for appellee, Osborn.

Jon T. Brown and Stephen E. Roady, Washington, D. C., were on the brief, for appellee, Angleton.

Stephen N. Shulman and Charles R. Donnenfeld, Washington, D. C., were on the statement in lieu of brief for appellees, Helms, and Colby, et al.

Before ROBINSON, Chief Judge; MacKINNON, Circuit Judge and NORTHROP, [*] Senior Judge, United States District Court for the District of Maryland.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Plaintiffs appeal several orders of the district court which resulted in the dismissal

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of their complaint for legal and equitable relief on claims arising out of certain activities of the Central Intelligence Agency (CIA) in the period from 1967 to 1974. The complaint alleged violations of plaintiffs' first, fourth, fifth and ninth amendments rights, 1 and of section 102(d)(3) of the National Security Act of 1947, 50 U.S.C. § 403(d)(3). 2 For the reasons set forth below, the judgment of the district court is affirmed.

I. Background

Appellants are 21 individuals and 5 organizations 3 who in the late 1960's and early 1970's were involved in various activities seeking to protest and secure an end to the involvement of the United States in the Vietnam War. The individual appellees are seven named persons and an unspecified number of John Does who at the time plaintiffs' claims arose were officials of the CIA or were otherwise agents or employees of the United States government. The seven appellees referred to hereinafter as the "individual appellees" 4 were sued for damages in their individual capacities. The appellees also include the heads of the CIA, FBI, Department of Defense and Secret Service, who were sued in their official capacities and with respect to whom plaintiffs sought injunctive and declaratory relief only.

Plaintiffs 5 filed suit in October 1975, after disclosures by the press and by the President's Commission on CIA Activities Within the United States 6 (the Rockefeller Commission) revealed that government agencies, including the FBI and the CIA, had conducted intelligence operations that resulted in surveillance of United States citizens who opposed the war in Vietnam. These operations included intelligence gathering activities both within and without the United States. Two such intelligence gathering programs are the focus of the present litigation. 7

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A. Operation CHAOS

The first program, designated by the CIA as Operation CHAOS, was an intelligence-gathering activity conducted by the CIA originally at the request of President Johnson which sought to determine the extent to which foreign governments or political organizations 8 exerted influence on or provided support to domestic critics of the government's Vietnam policies. 9 CHAOS was begun in 1967 by appellee Helms, who at the time was Director of Central Intelligence. 10 Appellee Angleton, Chief of Counterintelligence for the CIA, selected appellee Ober to head what became known as the "Special Operations Group" of the CIA's Counterintelligence staff. The Special Operations Group was responsible for the conduct of Operation CHAOS.

Over the course of several years, Operation CHAOS produced six reports for the White House and some thirty-four reports for cabinet-level officials, dealing with the subject of foreign influence on the domestic antiwar movement. In the normal course of its operations, CHAOS also produced a steady stream of reports to the FBI and other agencies detailing the results of its various intelligence activities with respect to the antiwar movement. 11

Discovery conducted by plaintiffs in the district court revealed that among the several thousand computerized files it maintained on Americans involved in various aspects of the antiwar movement, 12 Operation CHAOS ultimately developed files on 15 of the individual appellants and the five appellant organizations. 13 The gravamen of plaintiffs' claims with respect to Operation CHAOS concerned the several known methods whereby the CIA compiled information on plaintiffs' activities.

First, CHAOS from the outset called upon CIA stations located abroad to report on the antiwar activities of U. S. citizens travelling in their areas. This reporting comprised both the routine provision of information thought by the local stations to be relevant to CHAOS requirements, and the gathering of particular intelligence at the specific request of the CHAOS office. Surveillance of Americans while abroad was conducted both through direct observation ("physical surveillance") and with the aid of electronic eavesdropping equipment. 14 CIA agents abroad also requested the assistance of friendly local intelligence agencies, or "liaison services," in maintaining electronic and physical surveillance of American subjects. The use of local liaison services facilitated both the conduct of normal surveillance

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and "most important, (the) development of informants or ... agent penetrations within suspect groups" operating on foreign soil with whom Americans may have had contact. 15

Second, beginning in late 1969, the CHAOS office developed its own network of informants for the purposes of infiltrating various foreign antiwar groups located in foreign countries that might have had ties to domestic antiwar activity. Although the principal focus of such infiltration was foreign groups, it is now known that informants destined for such assignments were directed to infiltrate antiwar circles within the United States for the purpose of gaining knowledge of their operations and credibility as antiwar activists. In the course of these preliminary associations, CHAOS agents apparently supplied information on the activities of domestic antiwar groups, and this information was placed in the general CHAOS data base. 16

Third, Operation CHAOS made use of the facilities of other ongoing CIA surveillance programs. These included: (1) the CIA letter-opening program, which was directed at letters passing between the United States and the Soviet Union, and involved the examination of correspondence to and from individuals or organizations placed on a "watchlist;" 17 (2) the Domestic Contact Service, a CIA office which solicits foreign intelligence information overtly from willing sources within the United States; 18 (3) the CIA's "Project 2," which was directed at the infiltration of foreign intelligence targets by agents posing as dissident sympathizers and which, like CHAOS, had placed agents within domestic radical organizations for the purposes of training and establishment of dissident credentials; 19 (4) the CIA's Project MERRIMAC, operated by the Office of Security, which was designed to infiltrate domestic antiwar and radical organizations thought to pose a threat to the security of CIA property and personnel; 20 and (5) Project RESISTANCE, also a creature of the Office of Security, which gathered information on domestic groups without any actual infiltration. 21

From its inception, CHAOS also regularly received information from the FBI on that agency's investigations of the domestic antiwar movement. 22

B. International Electronic Communications

In addition to the surveillance activities carried out under the aegis of Operation CHAOS, plaintiffs complained of the CIA's practice of obtaining the contents of international communications (telephone, telegraph and radio transmissions) by submitting subjects' names on "watchlists" to the National Security Agency (NSA). NSA possesses the technology to scan the mass of signals transmitted through various communications systems and then to select out by computer those messages in which certain words or phrases occur. It is thereby possible for that agency to acquire all communications over a monitored system in which, for example, a person's name is mentioned. 23 Between 1967 and 1973, the FBI,

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the Secret Service, and military intelligence agencies, as well as the CIA, submitted the names of domestic individuals and organizations on watchlists to NSA, and ultimately acquired through NSA the international communications of over a thousand American citizens. 24

On a prior appeal, Halkin v. Helms (Halkin I ), 598 F.2d 1 (D.C.Cir.1978), 25 this court upheld a claim of the state secrets privilege by the Secretary of Defense and held that NSA was not required to disclose in discovery whether it had intercepted any of plaintiffs' communications. As a result of that ruling, plaintiffs' claims against the NSA and several individual officials connected...

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