Ellsberg v. Mitchell, 82-1085

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation709 F.2d 51,228 U.S.App.D.C. 225
Docket NumberNo. 82-1085,82-1085
Parties, 12 Fed. R. Evid. Serv. 1836 Daniel ELLSBERG, et al., Appellants v John N. MITCHELL, et al.
Decision Date07 June 1983

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709 F.2d 51
228 U.S.App.D.C. 225, 12 Fed. R. Evid. Serv. 1836
Daniel ELLSBERG, et al., Appellants
John N. MITCHELL, et al.
No. 82-1085.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 22, 1982.
Decided May 10, 1983.
As Amended June 7, 1983.

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Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 72-1879).

Gordon J. Johnson, New York City, and Lawrence Teeter, Los Angeles, Cal., with whom Leonard B. Boudin, New York City, was on the brief, for appellants.

R. Joseph Sher, Atty., Dept. of Justice, Washington, D.C., with whom Stanley S. Harris, U.S. Atty., and Barbara L. Herwig, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees.

Before MacKINNON and EDWARDS, Circuit Judges, and SWYGERT, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Separate opinion, concurring in part and dissenting in part, filed by Circuit Judge MacKINNON.

HARRY T. EDWARDS, Circuit Judge:

At issue in this appeal is the validity of the District Court's treatment of one aspect of a constitutional tort action, in which the plaintiffs seek compensation for injuries sustained through their exposure to warrantless electronic surveillance. Two questions are presented: Did the District Court err in upholding a formal claim of "state secrets" privilege entered by the United States in opposition to the plaintiffs' motions to compel discovery? Was it proper for the District Court to dismiss those aspects of the suit affected by the government's claim of privilege, on the theory that the plaintiffs would be unable to make out a prima facie case?

We conclude that, while the District Court's accession to the government's state secrets privilege claim was proper for the most part, the court erred in one important respect: it improperly upheld the government's refusal to disclose the identities of the Attorneys General who authorized the wiretaps, despite the absence of any explanation of how the revelation of such information might affect national security. This error was highlighted during the oral argument before this court, when government counsel frankly conceded that there is nothing in the documents or other submissions received by the trial court or this court justifying a refusal by the government to disclose the identities of the responsible Attorneys General. When the District Court's ruling is modified to require disclosure of the names of the officials who ordered the surveillance, it becomes evident that the dismissal of the relevant portions of the suit cannot stand. We thus reverse the judgment and remand the case for further proceedings.


The plaintiffs in this case were the defendants and their attorneys and advisors in the "Pentagon Papers" criminal prosecution. 1 In the course of that proceeding,

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they learned that one or more of them had been the subject of warrantless electronic surveillance by the federal government. They subsequently brought this damage action against all persons and agencies they thought might be responsible. 2

After filing their complaint, the plaintiffs submitted interrogatories to each individual defendant, asking for detailed information regarding the wiretaps. 3 The defendants' responses to the plaintiffs' allegations (and specifically to their request for information) occurred in two phases, separated by approximately four years. In the first phase, the defendants admitted to two wiretaps--one on "one of plaintiffs' attorneys or consultants" 4 and one by the FBI on the telephone

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at the residence of Morton Halperin, in the course of which "conversations of plaintiff Daniel Ellsberg were incidentally overheard." 5 The defendants refused to respond to any of the plaintiffs' remaining allegations or questions on the ground that all other relevant information was "privileged." 6 Their refusal was buttressed by a formal claim of privilege made on behalf of the United States by then Attorney General (and defendant) Richard Kleindienst. The principal support for Kleindienst's claim was contained in a sealed exhibit, submitted to the District Court for in camera inspection, which contained "records of the intercepted conversations and the identity and location of the premises which were the subjects of the surveillances." 7 That submission--and the inferences to which it assertedly gave rise--were described in a brief public affidavit, the relevant portions of which are reprinted in the margin. 8

On August 2, 1973, relying on Kleindienst's exhibit and affidavit, the District Court denied the plaintiffs' motion for an order compelling the defendants to answer their interrogatories. Surprisingly, however, the court rested its ruling not on a finding that the government's claim of privilege was proper, but on its conclusions that the two "overhearings" admitted by the defendants were "legal and not violative of any provision of the Constitution of the United States ... or of any Federal statute" and that the plaintiffs had failed specifically to allege any other injuries sufficient to give them "standing." 9 For purposes relevant to this appeal, that order effectively halted litigation. 10

The second phase of this suit began on March 29, 1977. On that date, the plaintiffs moved for reconsideration of the District Court's 1973 order, supporting their motion with a memorandum challenging the legal basis of the court's conclusion that they lacked "standing," and submitted a "Request for Production of Documents" relating to the alleged wiretaps. The District

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Court responded by approving a "stipulation" by the parties, whereby the defendants agreed to recheck their files and make "Fresh Responses" to the plaintiffs' interrogatories. The responses subsequently submitted by the Attorney General, the FBI, the Internal Revenue Service, the Secret Service, the Secretary of State, the Director of Central Intelligence, and the Secretary of Defense went significantly further than the defendants' first set of answers. They admitted that the plaintiffs had been overheard during a number of "domestic intelligence" wiretaps. 11 More importantly for present purposes, they acknowledged "overhears" of five of the plaintiffs--Daniel Ellsberg, Robert Scheer, Leonard B. Boudin, Stanley K. Sheinbaum, and Richard Falk--on "foreign intelligence" taps. 12 In addition, the defendants conceded "foreign intelligence" surveillance of "one or more of the plaintiffs," thus leaving open the possibility that others in the plaintiff class had been overheard. 13 Beyond that, however, the defendants insisted that all other information would be "the subject of a claim of privilege by the head of the appropriate Department or agency." 14

Four formal claims of privilege were entered in order to explain and justify the defendants' position concerning the "foreign intelligence" surveillance. On August 12, 1977, Attorney General Griffin Bell submitted an in camera exhibit containing information relevant to "the overhearings of plaintiffs Leonard B. Boudin, Thomas Hayden, and Robert Scheer," along with a brief supportive public affidavit. 15 Like the Kleindienst affidavit, on which it appears to have been modeled, the Bell affidavit acknowledged that the taps were "authorized by the Attorney General" but did not indicate which Attorney General was responsible. 16 Subsequently, the Director of Central Intelligence and the Secretary of Defense submitted a total of three in camera affidavits with accompanying exhibits in support of their privilege claims; these latter claims were not, however, accompanied with any public explanation of the nature

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of the materials or arguments presented to the court. 17

The plaintiffs then sought an order compelling fuller responses by the defendants. After reviewing in camera the various affidavits and exhibits submitted by representatives of the government and considering the plaintiffs' objections thereto, 18 the District Court concluded that disclosure of the information requested "would reveal sensitive governmental matters related to the national defense and the international relations of the United States" and accordingly denied the motion. 19 On September 2, 1981, the defendants filed a motion in limine, requesting dismissal of those of the plaintiffs' claims that pertain to surveillance of their foreign communications. After hearing argument, the District Court granted the motion and subsequently certified its decision as a partial final judgment subject to review by this court. 20 This appeal followed.



It is now well established that the United States, by invoking its state secrets privilege, may block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security. Prior to World War Two, the government rarely had occasion to exercise this prerogative, and, consequently, the scope of the privilege remained somewhat in doubt. 21 In recent years, however, the state secrets privilege has been asserted in a growing number of cases, and the resultant bevy of judicial decisions assessing the legitimacy of its invocation has brought its lineaments into reasonably sharp focus. The following principles may be distilled from the case law.

The privilege may be asserted only by the government itself; neither a private party nor an individual official may seek its aid. 22 Furthermore, in order to invoke it, "[t]here must be a formal claim of

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privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." 23 Possibly because the state secrets doctrine pertains generally to national security concerns, the privilege has been viewed as both expansive and malleable. 24 The various harms, against which protection is...

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