Smith v. Nixon, 84-5240

• Decision Date: 05 December 1986
• Docket Number: No. 84-5240,84-5240
• Citation: 807 F.2d 197,257 U.S.App.D.C. 52
• Parties: Hedrick SMITH and Ann B. Smith, Suing Individually and on Behalf of Their Minor Children, Laurel Ann Smith, Jennifer Laurence Smith and Sterling Scott Smith, Appellants, v. Richard M. NIXON, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 197

807 F.2d 197

257 U.S.App.D.C. 52

Hedrick SMITH and Ann B. Smith, Suing Individually and on Behalf of Their Minor Children, Laurel Ann Smith Jennifer Laurence Smith and Sterling Scott Smith, Appellants, v. Richard M. NIXON, et al.

No. 84-5240.

United States Court of Appeals District of Columbia Circuit.

Argued May 1, 1985.

Decided Dec. 5, 1986.

Appeal from the United States District Court for the District of Columbia, (Civil Action No. 76-00798).

Leon Friedman, with whom Ralph C. Ferrara, Washington, D.C., was on the brief, for appellants. Robert J. Geniesse, Washington, D.C., entered an appearance for appellants.

Larry L. Gregg, Atty., U.S. Dept. of Justice, with whom Richard K. Willard, Acting Asst. Atty. Gen., U.S. Dept. of Justice, Joseph E. diGenova, U.S. Atty., Barbara L. Herwig, Atty., U.S. Dept. of Justice, William D. Rogers and Bruce M. Chadwick, Washington, D.C., of counsel for appellee Kissinger 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.

SCALIA, Circuit Justice:

This suit for damages and equitable relief against several former and current federal officials arises out of an 89-day illegal wiretap of reporter Hedrick Smith's home telephone in 1969. The District Court granted summary judgment to the officials on qualified immunity grounds without resolving appellants' pending discovery requests. This is the second of three cases we decide today in which resolution of the officials' qualified immunity defense turns on the validity of their assertions that their actions were prompted and justified by national security concerns. See Halperin v. Kissinger ("Hallperin II "), 807 F.2d 180, (D.C.Cir. 1986); Ellsberg v. Mitchell ("Ellsberg II "), 807 F.2d 204, (D.C.Cir.1986). The principal issue is what showing a plaintiff must make before being permitted to engage in discovery to establish that no reasonable basis for a national security wiretap existed.

I

The challenged wiretap, like the wiretaps at issue in the companion cases, see Halperin II, 807 F.2d at 182-183; Ellsberg II, 807 F.2d at 205-206, was purportedly conducted pursuant to a presidentially approved surveillance program launched in May 1969 to identify government employees who were leaking sensitive national security information. See generally Smith v. Nixon ("Smith I "), 606 F.2d 1183, 1186-87 (D.C.Cir.1979), cert. denied, 453 U.S. 912, 101 S.Ct. 3147, 69 L.Ed.2d 997 (1981). On June 3, 1969, just as negotiations with the Japanese on the reversion of Okinawa were getting under way, the New York Times published a front-page article by Diplomatic Correspondent Hedrick Smith detailing the Nixon Administration's fallback negotiating position. U.S. Said to Plan an Okinawa Deal Barring A-Bombs, N.Y. Times, June 3, 1969, at 1, col. 6. The article, which reflected the contents of a top secret National Security Decision Memorandum imputed the information to "well-placed informants." Id.

The next day, Federal Bureau of Investigation ("FBI") Director J. Edgar Hoover sought authorization from former Attorney General John Mitchell to wiretap Smith's residential telephone. The authorization memorandum, describing the wiretap program as a "matter of most grave and serious consequence to our national security," I Joint Appendix ("J.A.") 105, indicated that then National Security Advisor Henry A. Kissinger requested the Smith wiretap, id; see id. at 109, 110. The memorandum noted that Smith had been in contact with other surveillance targets, but it made no mention of Smith's Okinawa article and noted that FBI files "contain[ed] no pertinent information of an internal security nature concerning him." Id. at 105.

The wiretap, approved and installed the same day, remained in place for 89 days, until the Smiths moved out of Washington, D.C., on August 31, 1969. FBI summary letters were forwarded to President Nixon (through presidential aide John Ehrlichman) and Kissinger. The government concealed the existence of the wiretap until May 11, 1973. Three years later, Smith and his family sued several federal officials (including President Nixon, who was later dismissed by stipulation) for monetary and equitable relief, ¹ alleging that the wiretap and subsequent disclosures of its fruits violated their first, fourth, and ninth amendment rights 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 dismissed the case on the merits and also held the action time-barred. Smith v. Nixon, 449 F.Supp. 324 (D.D.C.1978). We reversed and remanded to the District Court on the basis of our decision in Halperin v. Kissinger ("Halperin I "), 606 F.2d 1192 (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), and directed the District Court to determine, inter alia, whether there was a "reasonable national security rationale supporting the wiretapping" for the purpose of determining the availability of a cause of action under Title III. Smith I, 606 F.2d at 1188.

On remand, the District Court, relying on the Supreme Court's intervening "objectification" of the qualified immunity defense in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), granted defendants summary judgment on the damage claims. Smith v. Nixon, 582 F.Supp. 709 (D.D.C.1984). The court declined to permit any further probing into the wiretap's actual purpose once the documentary evidence already obtained through discovery "establishe[d] a basis for rational national security concerns," id. at 715, because " 'subjective motivation' and 'intention' are of no legal significance after Harlow and may not be the subject of inquiry," id. at 714 (citation omitted). The District Court also dismissed on the pleadings plaintiffs' request for the expungement of all government records of the wiretap. Smith v. Nixon, 582 F.Supp. 716 (D.D.C.1984). Instead, the court ordered the FBI summary logs of the wiretap sealed, "except as required to fulfill the statutory records preservation and disposal obligations of the [FBI] and the National Archives and Records Service." Id. at 717 (citing 44 U.S.C. Secs. 2103, 3303). Plaintiffs appeal both judgments.

II

The primary evil that moved the Harlow Court to abandon the subjective elements of the qualified immunity defense was the prospect of "broad-ranging discovery and the deposing of numerous persons, including an official's professional colleagues." Harlow, 457 U.S. at 815-16, 102 S.Ct. at 2736-37. Such diversions, the Court observed, "can be peculiarly disruptive of effective government," id. at 817, 102 S.Ct. at 2738 (footnote omitted), and "implicate separation-of-powers concerns," id. at 817 n. 28, 102 S.Ct. at 2737-38 n. 28. The Court admonished that "[u]ntil this threshold immunity question is resolved, discovery should not be allowed." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738; see Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985).

In keeping with Harlow's command, we subject damage actions against government officials to a heightened pleading standard. Bare allegations of improper purpose, like the bare allegations of malice rejected in Harlow, 457 U.S. at 817-18, 102 S.Ct. at 2737-38, do not suffice to drag officials into the mire of discovery, Hobson v. Wilson, 737 F.2d 1, 29-31 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985). As we said in Hobson, "in cases involving a claim that defendants acted with an unconstitutional motive, we will require that nonconclusory allegations of evidence of such intent must be present in a complaint for litigants to proceed to discovery on the claim." Id. at 29. In Halperin II, 807 F.2d at 188, we held that objective reasonableness of national security motivation is all that need be established to sustain that element of the qualified immunity defense consisting of the contention that the acts complained of were validated by a national security purpose--at least where, as here, the defendants purported to be acting for such a purpose at the time (and assuming, of course, that national security motivation would in law justify the actions, or could reasonably have been thought to do so at the time). It follows that once an official who concededly claimed to have been acting for validating national security reasons has alleged facts that furnish a rational national security basis for the challenged conduct, the court must dismiss the suit on the pleadings unless the plaintiff contradicts those facts or alleges other specific and concrete facts that raise a genuine issue as to the objective reasonableness of the national security basis.

III

Applying the heightened pleading requirement to this case, we consider first defendants' allegations relating to the reasonableness of a national security basis for the wiretap. We then consider, in turn, the concrete factual allegations in plaintiffs' complaint and those concrete assertions that plaintiffs could make were they now to be permitted to supplement their complaint with facts that they have learned through document discovery.

A

A defendant's "bland assurances"--contemporaneous or post hoc--"That a situation did, in fact, represent a national security problem requiring electronic surveillance," Smith I, 606 F.2d at 1188, do not establish the wiretap's objective rationality. Rather, defendants must allege objective facts that place the wiretap in a credible national security context. Here they suggest two: Smith's premature disclosure of the Okinawa negotiating strategy in the New York Times, and his contacts with suspected leakers who...