SOCIALIST WKRS. PARTY v. Attorney General of US

• Decision Date: 30 June 1978
• Docket Number: No. 73 Civ. 3160.,73 Civ. 3160.
• Citation: 458 F. Supp. 895
• Parties: SOCIALIST WORKERS PARTY et al., Plaintiffs, v. ATTORNEY GENERAL OF the UNITED STATES et al., Defendants.
• Court: U.S. District Court — Southern District of New York

458 F. Supp. 895

SOCIALIST WORKERS PARTY et al., Plaintiffs, v. ATTORNEY GENERAL OF the UNITED STATES et al., Defendants.

No. 73 Civ. 3160.

United States District Court, S. D. New York.

June 30, 1978.

Leonard B. Boudin, Rabinowitz, Boudin & Standard, New York City, Margaret Winter, Mary B. Pike, New York City, for plaintiffs.

Robert B. Fiske, Jr., U. S. Atty. for the Southern District of New York, New York City, Thomas E. Moseley, Stuart I. Parker, Frank H. Wohl, Asst. U. S. Attys., New York City, for defendants Attorney General of the United States, Director of the Federal Bureau of Investigation, et al.

OPINION

GRIESA, District Judge.

This is an action brought by two related political organizations, the Socialist Workers Party ("SWP") and the Young Socialist Alliance ("YSA"), and members of these organizations, claiming that various agencies and officials of the federal government have violated plaintiffs' constitutional and other legal rights.

Plaintiffs have moved under Fed.R.Civ.P. 37(b)(2)(D) to adjudge the Attorney General of the United States in contempt for failure to obey an order of this Court of May 31, 1977. The latter order directed defendant Federal Bureau of Investigation to produce to plaintiffs' counsel the files of eighteen FBI informants, with the express direction that plaintiffs' counsel were prohibited from revealing the identities of the informants or any other information contained in the files to anyone other than the attorneys specified in the order.

The Second Circuit Court of Appeals, in an opinion dated October 11, 1977, held that the May 31, 1977 order was issued within the District Court's lawful discretion. In re United States, 565 F.2d 19 (2d Cir. 1977). A petition for rehearing to the Court of Appeals, with a suggestion for rehearing en banc, was denied on March 9, 1978, no active judge, or judge who was a member of the panel, voting for rehearing. On June 12, 1978 the Supreme Court denied the Government's certiorari petition, Chief Justice Burger and Justices White and Powell announcing they would grant the petition.

Although the order was directed to the FBI, the Attorney General has now assumed the personal responsibility for deciding whether or not the order is to be complied with. The Attorney General asserts that this assumption of responsibility is required by 28 C.F.R. §§ 16.23 and 16.24(b).

In an affidavit dated June 13, 1978, confirmed by subsequent submissions made to the Court by the United States Attorney for the Southern District of New York, the Attorney General has stated that he will not comply with the order of May 31, 1977, and that neither the Department of Justice nor the FBI will produce the informant files specified in that order.¹

The Attorney General makes the following arguments in opposition to a finding of contempt:

(a) That it would be a grave and almost unprecedented step to hold a cabinet officer in contempt of court, particularly for failure to comply with a discovery order;

(b) That his refusal to obey the order stems from a desire to protect an important public interest — i. e., the need to ensure the confidentiality of informants so that informants will not be deterred from assisting in the detection of crime;

(c) That his refusal to obey the order has the further purpose of preserving the Government's right to obtain "full appellate review" of the May 31, 1977 order, which he declares is thus far "unreviewed."

(d) That the Court should refrain from enforcing the May 31, 1977 order, and should impose sanctions other than contempt—i. e., adopt methods of dealing with the informant issues that do not involve production of the actual informant files to plaintiffs' counsel.

This Court cannot accept the Attorney General's position. No one can deny that it is a grave step to enforce a court order to the extent of holding the Attorney General of the United States in contempt. However, the issues in this case are grave in the extreme, involving charges of abuse of political power of the most serious nature. Plaintiffs allege, among other things, that the FBI used its very considerable power to conduct a systematic covert campaign to manipulate and disrupt the plaintiff organizations and interfere with their lawful activities. Plaintiffs allege that a prime device used in this campaign was to infiltrate the plaintiff organizations with paid, undercover informants, who were instructed to take various actions designed to harm the organizations, and to furnish the FBI information so that the FBI could take additional steps to harass and hamper the organizations and their members. Plaintiffs also allege that, aside from this campaign to manipulate and disrupt, there was a serious invasion of constitutional rights in the very fact of the pervasive intrusion and surveillance carried out by the undercover informants with respect to the peaceful political activities of the organizations and the personal lives of members, accompanied by the use of these informants to obtain all manner of confidential documents, including membership lists and financial records.

Plaintiffs urge that the activities of the FBI informants were of a radically different character than legitimate use of informants for valid law enforcement purposes. Plaintiffs contend that there was no valid law enforcement or crime-detection purpose involved in the FBI surveillance and the other activities carried out by the FBI against the SWP, the YSA and their members. In this connection, it should be noted that in September 1976, some three years after this action had been commenced, and after a Senate committee² had severely criticized the FBI with respect to its activities against the SWP and the YSA, Attorney General Levi terminated the investigation of the SWP.

It is not only in plaintiffs' interest, but in the broad public interest, that plaintiffs be afforded a fair opportunity to obtain and present the essential evidence about this alleged wrongdoing. The issues in this case relate to the most fundamental constitutional rights, which lie at the very foundation of our system of government — the right to engage in political organization and to speak freely on political subjects, without interference and harassment from governmental organs. Since the allegations relate to the highest levels of government,³ it is entirely appropriate for a court to enter an order against a cabinet officer, if necessary, for the production of the essential evidence, and to adjudge that cabinet officer in contempt if he refuses to obey the order.

For reasons to be explained hereafter, this Court concludes that the FBI informant files constitute a unique and essential body of evidence regarding the allegations of wrongdoing in this case. The Court further concludes that, although it is neither necessary nor practical to have all such files (numbering over 1300) produced or used as evidence, it must be established as a principle in the conduct of this case that plaintiffs' counsel are entitled to production of a representative selection of these informant files, without deletions or expurgations — such production to be decided upon by the Court, and not to depend upon the unilateral terms and conditions set by the FBI or the Attorney General. In this regard, the following discussion in Rosee v. Board of Trade, 35 F.R.D. 512, 515 (N.D.Ill.1964) is instructive:

"Unless the privilege is conferred by statute, the legitimacy of the privilege claimed must be determined by the Court. `Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.' United States v. Reynolds, 345 U.S. 1, 9, 73 S.Ct. 528, 97 L.Ed. 727 (1953).

* * *

"Without statutory authority, an executive officer may not erect a privilege which will bar judicial scrutiny. To allow such action, particularly where government agents are numbered among the defendants, would enable such an officer (here, the Secretary of Agriculture) to draw a cloak of secrecy around the acts of subordinates and thereby preclude ultimate determination of the propriety of their official conduct."

Plaintiffs' request for eighteen informant files is unquestionably a good faith effort to arrive at a representative selection of the files. In view of the total number of such files in existence, it is a most modest request indeed. Although the Court has granted the request for production, it has imposed certain important conditions over plaintiffs' objections. The Court has ordered that the information in the files is only available to plaintiffs' attorneys, and cannot be revealed even to the clients except to the extent expressly authorized by the Court in further proceedings.

The Attorney General's assertion that the public interest requires ensuring the confidentiality of informants is a reiteration of the position taken by the FBI throughout these proceedings. This Court has consistently recognized the need to give the matter of the confidentiality of informants the most careful consideration. It has been the purpose of the Court, often expressed, to handle the case in such a way as to keep any public exposure of the identities of FBI informants to an absolute minimum.⁴ However, the informant privilege is not absolute. Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). The Government's interest must be weighed against other factors. One factor here is that there is no ongoing investigation of the SWP or the YSA which will be compromised by the production of informant files. Thus, the Government is asserting a "generalized interest in confidentiality" (see United States v. Nixon, 418 U.S. 683, 713, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)) — that is, the concern that informants in other situations may be deterred if confidentiality is not maintained in the present case. Of greater significance is the fact that this is not the normal situation where the problem is the disclosure of...