Halperin v. Kissinger

• Citation: 257 U.S.App.D.C. 35,807 F.2d 180
• Decision Date: 05 December 1986
• Docket Number: No. 84-5095,84-5095
• Parties: , 55 USLW 2339 Morton H. HALPERIN, et al., Appellants, v. Henry A. KISSINGER, et al.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 180

807 F.2d 180

257 U.S.App.D.C. 35, 55 USLW 2339

Morton H. HALPERIN, et al., Appellants, v. Henry A. KISSINGER, et al.

No. 84-5095.

United States Court of Appeals, District of Columbia Circuit.

Argued May 1, 1985.

Decided Dec. 5, 1986.

As Amended Dec. 5, 1986.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 1187-73).

Mark H. Lynch, with whom Susan W. Shaffer, Alan B. Morrison and John Cary Sims, Washington, D.C., were on the brief, for appellants.

Larry L. Gregg, Atty., U.S. Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Barbara L. Herwig, Atty., Dept. of Justice, William D. Rogers and Bruce M. Chadwick, Washington, D.C., were on the brief, for appellees.

Before ROBINSON and MIKVA, Circuit Judges, and SCALIA, ^* Circuit Justice.

Opinion for the Court filed by Circuit Justice SCALIA.

Circuit Judge MIKVA filed a concurring opinion in which Circuit Judge ROBINSON joins.

SCALIA, Circuit Justice:

This is the first of three companion cases we decide today addressing application of the qualified immunity standard of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), to situations in which the challenged official claims to have been motivated by national security concerns. See also Smith v. Nixon, 807 F.2d 197 ("Smith II ") (D.C.Cir.1986); Ellsberg v. Mitchell, 807 F.2d 204 (D.C.Cir.1986). Plaintiffs-appellants brought this damages action against federal executive officials for allegedly violating their constitutional and statutory rights in initiating and continuing for twenty-one months a warrantless wiretap of their private telephones. The District Court granted summary judgment to defendants on qualified immunity grounds, reasoning that the wiretap did not violate clearly established law since it had a rational nexus to national security. The central issue is what standard Harlow, which stripped the qualified immunity defense of its subjective element, prescribes on summary judgment where an asserted national security purpose is challenged as pretextual.

I

A detailed factual background of this case is set out in this court's earlier opinion. See Halperin v. Kissinger ("Halperin I "), 606 F.2d 1192, 1195-99 (D.C.Cir.1979), aff'd in part by an equally divided Court, cert. dismissed in part, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981). The challenged wiretap was purportedly part of a program designed by President Richard M. Nixon and several high level executive officials to stem what they perceived to be an alarming deluge of classified-information leaks to the press. The proximate impetus for the Halperin wiretap was a May 9, 1969 New York Times article reporting classified American bombing raids on Cambodia. Raids in Cambodia by U.S. Go Unprotested, N.Y. Times, May 9, 1969, at 1, col. 3. At Nixon's request, Henry A. Kissinger, then National Security Advisor, dispatched the Federal Bureau of Investigation ("FBI") to trace the source of the leak. FBI Director J. Edgar Hoover identified Morton H. Halperin, a National Security Council ("NSC") staff member, as the "prime suspect." To allay suspicions, Dr. Halperin acceded to Kissinger's suggestion that they curtail his access to sensitive information. In the meantime, Kissinger and Hoover had wiretaps installed (which then Attorney General John Mitchell approved shortly thereafter) on four private telephones, including the Halperin family's home telephone.

Kissinger ordered that the electronic surveillance continue in the face of FBI observations in May and June of 1969 that it was fruitless, and a July 8 FBI recommendation that it be terminated. It remained in place also despite Dr. Halperin's September 1969 resignation from the NSC staff, whereupon he continued only as a consultant with no access to classified information. Through most of the wiretap's first year, the FBI relayed written summaries of plaintiffs' telephone conversations to Nixon (through presidential aide John Ehrlichman) and Kissinger, and occasionally to Mitchell. In May 1970, Dr. Halperin resigned his consultant position. The wiretap continued--with the FBI summaries reported to H.R. Haldeman, Nixon's chief administrative aide--until February 10, 1971. While the FBI summaries reported much information of political significance to the Nixon Administration, at no point during its twenty-one month duration did any intercepted conversation implicate Dr. Halperin in any leak.

When the already-terminated Halperin wiretap came to light in connection with an unrelated criminal prosecution, United States v. Russo & Ellsberg, Crim. No. 9373 (WNB) (C.D.Cal. dismissed May 11, 1973), Dr. Halperin and his family brought an action for damages in the United States District Court for the District of Columbia against Nixon and nine federal officials. Plaintiffs alleged that the wiretap violated their rights under the fourth amendment's warrant and reasonableness requirements and Title III of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 211 (current version as amended by Title II of the Foreign Intelligence Surveillance Act of 1978, Pub.L. No. 95-511, 92 Stat. 1783, 1796, codified at 18 U.S.C. Secs. 2510-2520 (1982)).

The District Court initially held Nixon, Mitchell, and Haldeman jointly liable for violating the fourth amendment's reasonableness requirement and granted summary judgment to the remaining defendants, Halperin v. Kissinger, 424 F.Supp. 838 (D.C.C.1976), but awarded only nominal damages, Halperin v. Kissinger, 434 F.Supp. 1193 (D.D.C.1977).

This court reversed, holding that the wiretap violated (1) Title III's procedural requirements for any period--to be determined by the District Court on remand--during which the wiretap's "primary purpose" was not the protection of national security, Halperin I, 606 F.2d at 1205, (2) the fourth amendment's reasonableness requirement for any period--also to be determined by the District Court--during which the wiretap's scope or duration was unreasonable, even though its primary purpose was the protection of national security, id. at 1206-07, and (3) the fourth amendment's warrant requirement, id. at 1206. On defendants' qualified immunity defense, we found "no basis for disturbing" the District Court's ruling that defendants were unshielded for any violation of the fourth amendment's clearly established reasonableness requirement, id. at 1210, but remanded to the District Court to decide whether defendants were shielded for violations of the fourth amendment's warrant requirement or Title III, id. at 1210 & n. 126. Finally, we reversed the grant of summary judgment to Kissinger. Id. at 1214. ¹

An equally divided Supreme Court affirmed without opinion as to all defendants except Haldeman, whose writ of certiorari was dismissed as improvidently granted. Kissinger v. Halperin, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981) .

While this case was on remand, the Supreme Court decided Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), which altered the qualified immunity defense to an objective inquiry. The District Court granted summary judgment in favor of all defendants, reasoning that since the wiretap had a "rational national security" basis, defendants were immune under Harlow. Halperin v. Kissinger, 578 F.Supp. 231, 234 (D.D.C.1984). Plaintiffs appeal, contending that defendants are not entitled to immunity because the putative national security justification is pretextual.

II

The qualified immunity doctrine is an attempt to reconcile two important but conflicting concerns. On the one hand, "[i]n situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees." Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982) (citing Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2910, 57 L.Ed.2d 895 (1978), and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 410, 91 S.Ct. 1999, 2011, 29 L.Ed.2d 619 (1971)); see Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 3020, 82 L.Ed.2d 139 (1984). On the other hand, such suits "frequently run against the innocent," burdening officials and chilling the conscientious execution of their duties. Harlow, 457 U.S. at 814, 102 S.Ct. at 2736; see Gray v. Bell, 712 F.2d 490, 496-97 (D.C.Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); cf. Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896).

As originally formulated, the qualified immunity defense had both objective and subjective elements. Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975); see Butz v. Economou 438 U.S. at 507-08, 98 S.Ct. at 2911. The public official would be immune unless he "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury...." Wood v. Strickland, 420 U.S. at 322, 95 S.Ct. at 1000. In Harlow, the Supreme Court observed that the subjective elements of the defense--the requirements that the defendant not actually have known of the unconstitutionality of his action, and not have acted with malicious intention--"ha[d] proved [to be] incompatible with" the goal of prompt termination of vexatious litigation, Harlow, 457 U.S. at 815-16, 102 S.Ct. at 2736-37. It accordingly announced the elimination of those elements through adoption of a new objective test, whereby government officials performing discretionary functions were to be "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person...