Heine v. Raus

• Citation: 261 F. Supp. 570
• Decision Date: 08 December 1966
• Docket Number: Civ. No. 15952.
• Parties: Eerik HEINE v. Juri RAUS.
• Court: U.S. District Court — District of Maryland

261 F. Supp. 570

Eerik HEINE v. Juri RAUS.

Civ. No. 15952.

United States District Court D. Maryland.

December 8, 1966.

Ernest C. Raskauskas and Robert J. Stanford, Washington, D. C., for plaintiff.

Paul R. Connolly, E. Barrett Prettyman, Jr., and Hogan & Hartson, Washington, D. C., for defendant.

Lawrence R. Houston, Gen. Counsel, C.I.A., Washington, D. C., and Thomas J. Kenney, U. S. Atty., Baltimore, Md., for the United States.

THOMSEN, Chief Judge.

This is an action for slander in which defendant's motion for summary judgment asserts the defense of absolute privilege on the ground that when he made certain defamatory statements he was acting within the scope and course of his employment by the Central Intelligence Agency on behalf of the United States, and had been instructed by the CIA to warn members of Estonian emigré groups that plaintiff was a dispatched Soviet intelligence operative, a KGB agent.

Defendant's motion for summary judgment raises a number of substantive and procedural questions. The matter is complicated by the fact that the United States has asserted its privilege against disclosing state secrets.

I.

The complaint, filed in November 1964, alleges that plaintiff, a citizen of Canada, has never been a Communist; that he had been active in various Estonian emigré groups, and had earned part of his livelihood by exhibiting a motion picture, entitled "Creators of Legend", which portrays brutalities committed by the Communists in Occupied Estonia, and by delivering lectures based on his experiences as a prisoner in Russian prison camps and as a guerilla fighter; that on three occasions, in November 1963, July 1964 and September 1964, respectively, defendant defamed plaintiff by stating that "Eerik Heine is a Communist" and "Eerik Heine is a KGB Agent", the statements being understood as referring to plaintiff as a "Communist Secret Agent"; that the statements were untrue, were known to defendant to be untrue, were slanderous and defamatory per se, and were made maliciously. Plaintiff demands general and punitive damages.

In the original answer, filed in January 1965, defendant stated that he was National Commander of the Legion of Estonian Liberation, Inc. and admitted that on the three occasions specified in the complaint he had said, in the presence of others, that he "was in possession of responsible information received by him from an official agency of the United States Government to the effect that the plaintiff was a Soviet agent or collaborator and on that account should not receive the cooperation of the Legion and its branches during the plaintiff's tours of the United States." The answer asserted that the statements were true, and were made "only upon privileged occasions to persons privileged to receive them, and each such statement was made without express or actual malice in furtherance of the defendant's legitimate duties, responsibilities and offices"; that "the maintenance of the present action by the plaintiff is contrary to the interest and public policy of the United States"; and that "the defendant was privileged to speak of the plaintiff as he did, since the defendant was acting as an appropriate officer of the Estonian liberation movement". In the original answer defendant did not raise the defense of absolute privilege, because he was bound by a secrecy agreement¹ not to divulge such information unless specifically authorized to do so by a representative of the CIA, and because his counsel had been instructed by counsel for the CIA not to raise that defense.

In February 1965 defendant took plaintiff's deposition. In November 1965 plaintiff served on defendant 424 interrogatories, which defendant moved to strike on two grounds: (1) that their number was oppressive, and (2) that many of them inquired of privileged matter. See Rules 26(b) and 33, F.R.Civ.P. At the same time defendant filed a motion for summary judgment, based upon an affidavit of Richard Helms, then Deputy Director of Central Intelligence, that when defendant spoke concerning plaintiff on the occasions referred to in the complaint he was in possession of information furnished him by the CIA and was acting within the scope and course of his employment by that agency on behalf of the United States.

At a hearing on the motion and the exceptions then pending, the Court ruled: that defendant's original answer did not set up the defense of absolute privilege, but that leave should be granted him to file an amended answer asserting that defense;² that defendant should not be required to answer the 424 interrogatories, but that plaintiff should be allowed discovery, so far as permitted by law, on the issue of absolute privilege claimed by defendant; that a more detailed affidavit should be filed by the Deputy Director of Central Intelligence, or plaintiff should be allowed to proceed with reasonable discovery from him; and that if the Government wished to assert a privilege against disclosing state secrets, the United States Attorney should be present and such privilege should be formally asserted.

Thereafter a much more detailed affidavit by Helms, dated April 1, 1966, was filed. After stating his authority and familiarity with the facts the Deputy Director stated:

"4. During the periods of time specified in paragraphs 5, 6, and 7 of the complaint, the defendant, Juri Raus, was employed as a highway research engineer for the Office of Research and Development, Bureau of Public Roads, United States Department of Commerce.

"5. During the same periods of time, the defendant was the National Commander of the Legion of Estonian Liberation, Inc., and was familiar with Estonian emigre activities.

"6. For a number of reasons, including his past history and his position as National Commander of the Legion of Estonian Liberation, the defendant has been a source to this Agency of foreign intelligence information pertaining inter alia to Soviet Estonia and to Estonian emigré activities in foreign countries as well as in the United States.

"7. The Central Intelligence Agency has employed the defendant from time to time — concurrently with his duties on behalf of the Bureau of Public Roads—to carry out specific assignments on behalf of the Agency. Defendant was so employed on those occasions specified in paragraphs 5, 6 and 7 of the complaint.

"8. On those occasions specified in paragraphs 5, 6, and 7 of the complaint, the defendant was furnished information concerning the plaintiff by the Central Intelligence Agency and was instructed to disseminate such information to members of the Legion so as to protect the integrity of the Agency's foreign intelligence sources. Accordingly, when Juri Raus spoke concerning the plaintiff on the occasions about which complaint is made, he was acting within the scope and course of his employment by the Agency on behalf of the United States.

"9. On May 29, 1963, prior to the occasions specified in paragraphs 5, 6 and 7 of the complaint, the defendant signed a Secrecy Agreement with the Agency, a copy of which is attached, which Agreement is still in full force and effect.

"10. After a personal review of the Agency's activities pertaining to Eerik Heine, I have reached the judgment on behalf of the Agency that it would be contrary to the security interests of the United States for any further information pertaining to the use and employment of Juri Raus by the Agency in connection with Eerik Heine to be disclosed, other than the disclosures already made in the defendant's answer, in my own affidavits, and the defendant's affidavits, which I have read.

"11. Acting pursuant to the authority lodged in the Director of Central Intelligence by virtue of the provisions of Title 50, United States Code, Sections 403(d) and 403g, and the implementing Regulations promulgated thereunder, I have determined that it would be contrary to the national interest and would further compromise the proper protection of intelligence sources and methods to disclose further information in regard to those material matters which the plaintiff has sought to have revealed through his pleadings. I am herewith directing Juri Raus to make no further disclosures concerning his employment by the Agency or relating to this matter without specific authorization by proper officials of the Central Intelligence Agency."

Counsel for plaintiff still objected that the affidavit was not sufficiently specific and two clarifying affidavits by Helms were thereafter filed. The second such affidavit stated:

"1. In Paragraph 2 of my Affidavit dated April 22, 1966, which I executed as Deputy Director of Central Intelligence, I stated in part: `The defendant was instructed to warn members of Estonian emigre groups that Eerik Heine was a dispatched Soviet intelligence operative, a KGB agent.'

"2. The context of that statement means, I intended by that statement to convey, and I now so state: The defendant, Juri Raus, was instructed by the Central Intelligence Agency to warn members of Estonian emigre groups that Eerik Heine was a dispatched Soviet intelligence operative, a KGB agent."

At a hearing on April 14, the Court had suggested that plaintiff might take the deposition of defendant or someone from the CIA or both, at a hearing with the Judge present, so that the Government's privilege might be claimed on a question by question basis, and immediate rulings obtained.

Such a hearing was held on April 28. At the beginning of that hearing a formal claim of privilege on behalf of the United States, made by Admiral W. F. Raborn, Director of Central Intelligence, was presented to the Court by Lawrence R. Houston, General Counsel of the CIA, and by Thomas J. Kenney, United States Attorney. The deposition of defendant was taken before the Court; many of the objections asserted by counsel for the Government or by counsel for defendant on instructions from the General Counsel of the CIA were sustained by the Court in view of ...