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Daniel Ellsberg, v John N. Mitchell , 709 F.2d 51 ( 1983 )


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  • MacKINNON, Circuit Judge

    (concurring in part and dissenting in part):

    I concur in the court’s holding that the district court properly acceded, in all important respects,1 to the government’s claims of state secrets privilege. However, after full consideration of all the arguments and upon close examination of all the in camera classified material, I am unable to agree with my colleagues’ decision to remand the case. Under the Supreme Court’s recent decision in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), defendants, in my opinion, are entitled to qualified immunity as a matter of law with respect to all claims relevant to this appeal.2 Accordingly, I would affirm the district *71court s decision granting summary judgment to defendants.

    While the district court has not yet addressed the immunity issues, a reviewing court may rest its affirmance on any ground for which the record is sufficient to permit the necessary findings of fact and law. Dandridge v. Williams, 397 U.S. 471, 475-76 n. 6, 90 S.Ct. 1153, 1156-57 n. 6, 25 L.Ed.2d 491 (1970); Lew v. Suffridge, 370 F.2d 487, 488 & n. 1 (D.C.Cir.1966). Having carefully perused the in camera exhibits offered by the government in support of its privilege claims, the panel now has before it a record sufficient to permit such findings concerning the purposes of and the circumstances surrounding these wiretaps.

    My own examination of the relevant material leaves no room to doubt that these warrantless surveillances fall within the putative “foreign agent exception” to the warrant requirement of the Fourth Amendment. The materials do not suggest that defendants’ foreign intelligence surveillance claims are merely a pretext for politically or prosecutorially motivated surveillance. See Chagnon v. Bell, 642 F.2d 1248, 1260-61 (D.C.Cir.1980), cert. denied, 453 U.S. 911, 101 S.Ct. 3142, 69 L.Ed.2d 994 (1981); Halperin v. Kissinger, 606 F.2d 1192, 1204-05 (D.C.Cir.1979), aff’d by an equally divided Court, 452 U.S. 713, 101 S.Ct. 3132, 69 L.Ed.2d 367 (1981). Nor were appellants, or any premises in which they had an interest, the targets of the surveillances. Affidavit of Attorney General of the United States ¶ 2, May 8,1973 (JA 29); see United States v. Lemonakis, 485 F.2d 941, 963 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974). And the exhibits establish beyond question that the taps were strictly within the framework of executive authorization of foreign intelligence gathering. See United States v. Lemonakis, supra, 485 F.2d at 963.

    Having established that the surveillances do fall within the foreign agent exception to the warrant requirement, the in camera materials compel the conclusion that defendants are immune from liability for their part in conducting the surveillance. Under Harlow, officials are entitled to qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights.” 102 S.Ct. at 2738. Few areas of constitutional law are more conspicuously unsettled than the legality of warrantless wiretaps aimed at the activities of foreign powers or their agents. The existence of the foreign agent exception was expressly left open by the Supreme Court, United States v. United States District Court, 407 U.S. 297, 321-22, 92 S.Ct. 2125, 2138-39, 32 L.Ed.2d 752 (1972), and several courts of appeals have actually approved such warrantless surveillance. See United States v. Truong Dinh Hung, 629 F.2d 908, 914-15 (4th Cir.1980), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982); United States v. Buck, 548 F.2d 871, 875 (9th Cir.), cert. denied, 434 U.S. 890, 98 S.Ct. 263, 54 L.Ed.2d 175 (1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.) (en banc), cert. denied, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974). But see Zweibon v. Mitchell, 516 F.2d 594, 615-27 (D.C.Cir.1975) (en banc) (dictum) (plurality opinion), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 187 (1976). And in the immunity context, this court has explicitly held that there is no “clearly established” law on the legality of warrantless foreign intelligence taps. Chagnon v. Bell, supra, 642 F.2d at 1256-63 (Edwards, J.).

    Given the celebrated uncertainty of the law in this area, I am mystified by the majority’s reluctance to resolve the immunity question at this juncture. The majority predicates its declination on the truism that “[e]x parte, in camera resolution of disposi-tive issues should be avoided whenever possible.” 3 Maj. op. at 69-70 n. 78. With that *72salutary proposition I have no quarrel. Yet because the claims of state secrets privilege have been sustained, I can envision no scenario whatsoever in which the district court could resolve on the public record the factual question whether these taps fall within the foreign agent exception. All facts critical to the question are now subject to the privilege.4 That being the case, the majority can justify its refusal to rule on the issue by adverting to nothing more convincing than the stale observation that “[determinations of that order should be made in the first instance by the District Court.” Id. at 68 n. 73.

    Such reticence might be understandable had the Supreme Court not felt compelled in Harlow to make an “adjustment” of the standard for qualified immunity in order to permit summary disposition of meritless claims against government officials. 102 S.Ct. at 2737. The Court observed that the subjective element of the qualified immunity defense “frequently has proved incompatible with our admonition in Butz [v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911-12, 57 L.Ed.2d 895 (1978),] that insubstantial claims should not proceed to trial.” Id. To facilitate the rapid weeding out of such claims, the Court severed the subjective element from the defense: if an official’s conduct did not violate “clearly established” law, he is entitled to summary judgment. Id. 102 S.Ct. at 2738-39. The Court characterized the defense as a “threshold immunity question” and insisted that discovery should not be allowed before the question has been resolved. Id. at 2739. A remand at this point, merely to resolve a threshold legal question on the basis of documentary evidence already considered by this court in resolving the privilege question, is contrary to the entire thrust of the Harlow decision. The valuable resources of the Executive and Judicial branches are not to be greatly encumbered by lengthy judicial hearings, appeals and remands. Cf. Briscoe v. Lahue, - U.S. -, 103 S.Ct. 1108, 1120, 75 L.Ed.2d 96 (1983) (“[E]ven the processing of a complaint that is dismissed before trial consumes a considerable amount of time and resources.”) (footnote omitted).

    Several courts of appeals appear to agree with the above view of a reviewing court’s role after Harlow, for they have not hesitated to apply Harlow to immunity issues first raised on appeal. For example, in Silverman v. Ballantine, 694 F.2d 1091 (7th Cir.1982), the district court had granted defendants’ motion for summary judgment on the issue whether plaintiff had been unlawfully denied assistance of counsel upon his arrest. On appeal, the court assumed without deciding that disputed issues of fact remained on that question, but the court nonetheless affirmed the judgment because the law was unsettled as to whether an arrest is a “critical stage” at which point the right to counsel attaches. Id. at 1096. Similarly, in Ward v. Johnson, 690 F.2d 1098 (4th Cir.1982) (en banc), a panel of the court had reversed a trial court’s finding that a prisoner’s procedural due process rights had not been violated by an eviden-tiary ruling made by defendant at a disciplinary hearing. After reargument en banc, the court assumed the correctness of the panel’s conclusion that a violation had occurred, but found that the defendant was entitled to immunity. See also Hall v. United States, 704 S.Ct. 246, 248-251 (6th Cir.1983) (After the district court had im*73properly held that defendant was entitled to absolute immunity, the court of appeals affirmed the grant of summary judgment because defendant was entitled to qualified immunity under Harlow.); Sampson v. King, 693 F.2d 566, 569-70 (5th Cir.1982) (summary calendar) (alternative holding) (Where a magistrate had failed to consider the immunity issue in holding appellants liable, the appellate court reversed and dismissed the damage claims.); Wolfel v. Sanborn, 691 F.2d 270, 272 (6th Cir.1982) (per curiam) (Weick, J., dissenting) (Dissenting from the panel’s decision to remand for reconsideration in light of Harlow, Judge Weick noted that defendants were entitled to immunity and opined that “[i]t is time that this prolonged litigation be brought to a close as it has no merit.”), cert. denied, - U.S. -, 103 S.Ct. 751, 74 L.Ed.2d 969 (1983).

    I have no doubt that the parties on remand will once again go through the motions of briefing and arguing the immunity issues, that the district court will once again slog through the in camera materials, and that the court will come to the inescapable conclusion that defendants are entitled to immunity on these claims. Given the Supreme Court’s simple exhortation that threshold questions be resolved at the threshold, I would be very surprised if the court on remand even attempted to apply the muddled dicta and novel procedures that comprise Parts II and III of the majority opinion.

    In the end, the majority’s disposition squanders judicial, executive and adversarial resources; it also frustrates the Supreme Court’s attempt, through changes in the immunity standard, to speed resolution of meritless suits against government officials. Having examined precisely the evidence the district court will have to examine in order to resolve the immunity issue, we ought to resolve the question ourselves. The wide-ranging discussion of the majority is thus unnecessary. I respectfully dissent.

    . The court’s decision modifies the district court’s ruling on the privilege claims only by requiring disclosure of the identities of the Attorneys General who authorized the electronic surveillance here at issue. I would note, however, that the majority has mischaracterized defense counsel’s concession at oral argument regarding those identities: counsel did concede that the in camera exhibits contain no explanation for withholding the names, but counsel did not concede the absence of any basis for doing so. See maj. op. at 52, 63. Nonetheless, I concur in the modification.

    But the majority leaps from that modification to the unwarranted conclusion that, having obtained the names of specific defendants, plaintiffs can now make out a prima facie case that their constitutional rights under the Fourth Amendment have been violated. To buttress that conclusion, the majority, like appellants, relies exclusively on criminal cases like Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), for the proposition that warrantless searches are per se unreasonable absent “ ‘a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.’ ” Id. at 455, 91 S.Ct. at 2032 (footnote omitted) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967)).

    I have grave doubts that the Attorney General should bear the burden of demonstrating the legality of warrantless foreign intelligence surveillance. In any event, appellants’ reliance on criminal cases is misplaced. First, this is a civil case, where the exclusionary rule plays no part and where fears of imprisoning a defendant on the basis of illegally obtained evidence have no force. Second, the “exigent circumstances” cases may be entirely inapposite to foreign intelligence surveillance, to which concepts derived from the criminal law — like probable cause, for example — have dubious relevance. See Zweibon v. Mitchell, 516 F.2d 594, 706-07 (D.C.Cir.1975) (en banc) (MacKinnon, J., concurring in part and dissenting in part). Third, whatever the legal contours of a tap conducted under the foreign agent exception, it is not self-evident that its legality would even turn on a showing of exigent circumstances. It is at least as likely that “foreign intelligence surveillance” refers to a whole category of activities exempted from the warrant requirement, rather than to an exception dependent on a specific showing of exigency in each particular case.

    The task of assigning evidentiary burdens in such cases necessarily turns on a complex balancing of competing concerns touching on the scope of individual liberties, the security of the nation, and our constitutional structure. I would not suggest a glib solution to such a weighty issue when summary judgment is so manifestly appropriate on the ground of immunity.

    . Still before the district court are claims based on warrantless “domestic intelligence” surveillance of plaintiffs; as to these claims, the government has not asserted the state secrets privilege.

    . The majority concedes that resolution of immunity issues could be resolved by the trial court upon an examination of the in camera materials. Maj. op. at 69. Indeed, the majority views the legitimacy of such procedures as “beyond dispute.” Id. at 69 n. 77. Since *72the majority also concedes that such a determination might be made without the aid of arguments by counsel, id. at 69, there exists no good reason why this court cannot make the identical findings and draw the same conclusions from the in camera materials. As the immunity issues have been briefed and argued, this panel is as qualified as the trial judge to decide them.

    . The majority also adverts to an ambiguous concession made by counsel for defendants at oral argument that defendants on remand might be able to submit on the public record materials sufficient to demonstrate that their behavior violated no clearly established law. Id. at 69-70 n. 78. Defendants are, quite simply, wrong, and the majority advances its argument not at all by accepting without analyzing such a “possibility.” Only by impermis-sibly disclosing highly classified materials could such a finding be made on the public record.

Document Info

Docket Number: 82-1085

Citation Numbers: 709 F.2d 51, 228 U.S. App. D.C. 225

Judges: MacKinnon, Edwards, Swygert, Seventh

Filed Date: 6/7/1983

Precedential Status: Precedential

Modified Date: 11/4/2024