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BURKHART v. SAXBE

March 21, 1978

KATHERINE W. BURKHART, et al.
v.
WILLIAM B. SAXBE, et al.



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 Presently before the court are plaintiffs' motion for partial summary judgment and defendants' cross motion for complete summary judgment. Many factual contentions are not disputed, but others will require a fact finder's determination. The procedural posture of the case, however, permits clarification of some of the prevalent legal issues at this stage of the litigation thereby establishing an appropriate foundation for the ultimate disposition of the controversy. Rule 56(d), Federal Rules of Civil Procedure.

  I.

 A. Factual Background

 This case arises indirectly from a series of criminal and civil cases which were generated by the social turbulence of the late sixties and early seventies. *fn1" During the course of the discovery proceedings in Philadelphia Resistance v. John Mitchell, C.A. 71-1738 (E.D. Pa.), the parties ascertained that certain of the plaintiffs' telephone conversations were overheard by agents of the Federal Bureau of Investigation (FBI) who were at the time monitoring certain wiretaps *fn2" placed pursuant to authorization by the then Attorney General of the United States, John Mitchell. *fn3" No prior court authorization for the wiretaps was obtained.

 The plaintiffs, Burkhart, Chomsky, Gold, Portnoy and Putter were overheard during the course of the electronic surveillance of the telephone registered to one William Davidon (the Davidon tap) who was suspected of being an active member of an organization known as the East Coast Conspiracy to Save Lives (ECCSL). The plaintiffs, Gold, Portnoy and Markel *fn4" were overheard during the course of the electronic surveillance of the telephone registered to the Philadelphia chapter of the Black Panther Party (the Black Panther tap).

 Pursuant to information compiled through the investigative processes of the FBI and furnished to the United States Department of Justice, Attorney General Mitchell authorized the FBI to initiate and conduct, without a warrant or prior judicial approval, the two wiretaps at issue in this case. The Black Panther tap was originally authorized on June 1, 1970 and reauthorized on June 25, 1970, August 15, 1970, September 22, 1970, November 11, 1970 and finally terminated on February 10, 1971. *fn5" The Davidon tap was authorized on November 6, 1970, reauthorized on December 7, 1970 and terminated on January 6, 1971. *fn6"

 The plaintiffs were admittedly not the targets of these investigations and a review of the logs of these taps containing plaintiffs' conversations suggest that the information contained therein was not relevant to the claimed purpose of the surveillance.

 The plaintiffs claim that these warrantless wiretaps violated their fourth amendment right to be secure against unreasonable searches and seizures as well as the provisions of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2520. The defendants respond, inter alia, on the grounds that the wiretaps were authorized by the Attorney General for national security purposes and therefore were exempt from the provisions of Title III, and did not require prior judicial approval. Defendants further assert they are clothed with official immunity.

 B. Legal Background

 A determination of whether the defendants' conduct was unlawful, and, even if unlawful, whether they are nonetheless immune from liability by reason of a good faith, reasonable belief that such action was not unlawful, requires an historical analysis of the state of the law during the period in question.

 In 1967, the Supreme Court decided two major cases that established the limitations imposed by the fourth amendment upon the use of electronic and other technologically sophisticated listening devices by law enforcement officers in conducting investigations. The first case was Berger v. New York, 388 U.S. 41, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967); the second, Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). In Berger, the petitioner was convicted of a conspiracy to bribe state officials. Agents of the district attorney's office had obtained a court authorization to plant an electronic listening device (a "bug") in the offices of two suspected co-conspirators. The authorization was based on a New York statute, § 813-a of the New York Code of Criminal Procedure. The overheard conversations were received in evidence at trial, over objection. In holding the New York statute invalid because of its overbreadth, the court ruled that authorization to conduct an unconsented entry upon another's property in order to gather evidence through a surreptitiously placed listening device, may be granted only under the "most precise and discriminate circumstances." Berger, supra at 56-57. The court set forth general guidelines. There must be a satisfactory showing of a particularized need for such surveillance, and of the specific type of information sought. Id. The authorization should describe with particularity the type of conversations to be overheard so as to allow the officers conducting the surveillance to ascertain when the objective has been satisfied. The authorization must be limited in time and scope, in order to protect against unlimited interference with the suspects' rights of privacy. When the objective is obtained, the surveillance must be promptly terminated. Upon completion of the surveillance, a return should be made to the authorizing official detailing the carrying out of the authorization and specifying the conversations overheard or otherwise seized. A state may not authorize an intrusive surveillance "until it has reason to believe that a specific crime has been or is being committed." Id. at 59.

 Katz v. United States, supra, held that the fourth amendment protected against warrantless nontrespassory wiretaps as violative of a person's right of privacy. Katz involved a wiretap placed upon a public telephone. The Supreme Court ruled that the exclusionary rule precluded use of the overheard conversations at trial. Katz thus overruled the long standing rule of Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 944, 48 S. Ct. 564 (1928), that nontrespassory wiretapping did not violate the fourth amendment.

 Critically relevant to the present case is footnote 23 to the Katz opinion, supra 389 U.S. at 358-359, which states:

 
Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving national security is a question not presented by this case.

 See also the discussion as to "national security" and "executive branch" wiretaps in the concurring opinions of Justices Douglas and Brennan, id. 389 U.S. at 359, and the separate concurring opinion of Justice White, id. at 362.

 Pervasive as this statute is in the area of electronic surveillance, Congress nonetheless included the following proviso regarding the President's constitutional power to utilize these investigative tools for the purposes of protecting the national security and conducting the nation's affairs, 18 U.S.C. § 2511(3):

 
Nothing contained in this chapter . .. shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial, hearing, or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power.

 In the years following the Berger and Katz decisions and the enactment of Title III, the President, through his delegate, the Attorney General, continued the earlier prevalent practice of authorizing warrantless electronic surveillance where he deemed such necessary or appropriate to secure the nation against internal or external threats. *fn8" During this period the warrantless wiretaps at the center of this litigation were authorized by the Attorney General and conducted by the defendants ostensibly for "national security."

 The issue expressly left unanswered in the Katz decision, and further complicated by Congress's enactment of the proviso embodied in 18 U.S.C. § 2511(3) upon which defendant Mitchell relied in continuing the practice established by his predecessors, *fn9" finally reached the Supreme Court in United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972) (hereinafter Keith). The case involved a criminal prosecution in which one of the defendants, charged with conspiracy to destroy government property, namely, the offices of the Central Intelligence Agency, had been the subject of electronic surveillance. The government filed an affidavit which stated, essentially, that the wiretap had been conducted without prior judicial approval, to gather information necessary to protect the nation from certain domestic security threats. The district court, *fn10" reviewing the logs of the interceptions, in camera, determined that the wiretaps violated the fourth amendment and ordered the government to fully disclose the contents of those logs to the defendant as required by Alderman v. United States, 394 U.S. 165, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1969). *fn11" The Court of Appeals for the Sixth Circuit *fn12" refused to issue a writ of mandamus and upheld the district court's order requiring full disclosure of the overheard conversations.

 The government's position was essentially that the wiretaps in question were authorized by the Attorney General pursuant to the President's constitutional power to protect the national security from threats by domestic organizations and did not require prior judicial approval. The government relied upon the President's constitutional duty to protect the nation, U.S. Const., Art. II, § 1, contending that warrantless wiretaps were historically recognized by prior administrations and expressly recognized by Congress in adopting 18 U.S.C. § 2511(3).

 Confronted with the issue left open in Katz, the Supreme Court rejected the government's claim that electronic surveillance for domestic national security purposes was outside the protective umbrella of the fourth amendment. In so doing, the Court interpreted the language of § 2511(3) as an expression of Congress's neutral position with regard to whether the President is constitutionally endowed with the power to eavesdrop, without prior judicial approval, on persons who are deemed by the President to constitute a threat to the nation's security. Having determined that Title III constituted neither a recognition nor limitation on whatever constitutional power the President may enjoy to authorize and conduct such surveillance, the remaining question was to determine the appropriate boundaries, if any, of such power.

 Reciting the depth and characteristics of the fourth amendment as construed over the course of almost two centuries, the Court, applying a balancing test, held that the potential danger posed to the individual's right to be free from unwarranted and unreasonable searches and seizures, outweighed the government's need to conduct warrantless electronic surveillances in protecting domestic security. Considering that domestic national security cases often involve first as well as fourth amendment values, the Court determined that prior judicial approval in the form of a warrant issued upon a proper showing by the government does not place an undue burden upon the government's duty to protect the nation's security from domestic subversion. The Court also rejected the government's contentions that a judicial officer would be unable to assimilate and comprehend the numerous complex and subtle factors necessary to determine whether a national security threat exists and that disclosure of such confidential information would substantially increase the danger to the national security and the lives of those individuals involved in its protection. The Court expressly limited the decision to domestic security surveillance leaving unanswered the scope of the President's power to conduct electronic surveillance where the threat to national security emanates from a foreign source. *fn13" Keith, 407 U.S. at 308. This question, however, has been confronted by both the Court of Appeals for the Third Circuit and the District of Columbia.

 In United States v. Butenko, 494 F.2d 593 (3d Cir.) (en banc), cert. denied, 419 U.S. 881, 42 L. Ed. 2d 121, 95 S. Ct. 147 (1974), the court was compelled to decide the legality of a warrantless surveillance in the context of an Alderman proceeding. *fn14" The defendant was prosecuted for communicating information relating to the national defense to a foreign government and the electronic surveillance was considered necessary to protect against a foreign threat. The court held that prior judicial approval was unnecessary to comport with the fourth amendment requirements, where the purpose of the wiretap is solely to protect against threats to our national security emanating from foreign sources. Id. at 605.

 The Court of Appeals for the District of Columbia Circuit, in a civil suit for damages, *fn15" held that even where the wiretap was installed to gather information necessary to protect this country's relations with a foreign government, the tap, nonetheless, constituted surveillance of a domestic organization and, therefore, came within the controlling doctrine of the Keith decision requiring the government to first obtain a judicial warrant before proceeding with the surveillance. Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594 (1975), cert. denied, 425 U.S. 944, 48 L. Ed. 2d 187, 96 S. Ct. 1684 (1976). *fn16"

 II.

 A. National Security.

 Was the electronic surveillance conducted in this case for the purpose of investigating perceived threats to this nation's security? If, as the plaintiffs' urge, these wiretaps were solely for the purpose of gathering evidence to support a criminal prosecution and/or for the purpose of political harassment and intimidation, then the defendants' conduct in authorizing and conducting this surveillance, without full compliance with the provisions of 18 U.S.C. § 2518 would be actionable under 18 U.S.C. § 2520 as well as the fourth amendment. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). On the other hand, if the purpose of the surveillance was to protect against a perceived threat to national security, it becomes necessary to reach the question of whether the defendants' actions were violative of either Title III or the fourth amendment. Finally, even if violative of Title III or the fourth amendment, are defendants nonetheless immune from liability?

 Both parties have propounded extended arguments on the standard this court should apply in evaluating the Attorney General's assertion that the surveillance was necessary for national security purposes. The threshold question on a motion for summary judgment is whether this issue presents a disputed factual question material to the litigation. It seems clear that the question of whether the surveillance was conducted for national security purposes is factual and is material to the ultimate resolution of the litigation. *fn17" But cf. Rosenthal v. Rizzo, 555 F.2d 390 (3d Cir.) (Aldisert, J. dissenting), cert. denied, 434 U.S. 892, 98 S. Ct. 268, 54 L. Ed. 2d 178, 46 U.S.L.W. 3242 (1977). I need not reiterate the proper analysis to be employed by the court in considering a motion for summary judgment. See Ettinger v. Johnson, 556 F.2d 692, 696-697 (3d Cir. 1977). In this case there is a genuine dispute as to the existence of a national security predicate for the authorization of these particular wiretaps.

 The deposition of John Mitchell (dated October 23, 1975), supported by the exhibits attached to defendants' answers to plaintiffs' interrogatories, establishes that the FBI had developed information pertaining to certain activities of the ECCSL and that this information formed the basis for Mitchell's conclusion that the nation's security was being threatened and that electronic surveillance would be helpful in minimizing that danger.

 The information was developed during the course of investigating the burglary of certain draft board and FBI field offices in 1970. Through the use of an informant, the FBI uncovered what appeared to be a plot by suspected members of the ECCSL to kidnap Henry Kissinger, then National Security Advisor to the President, and simultaneously destroy the heating systems of certain federal buildings located in Washington, D.C. *fn18" In addition, the FBI furnished Mitchell with background information concerning the activities of William Davidon and the basis for its conclusion that he was an active member and central figure in the ECCSL. Based on this information, Mitchell approved the FBI's request to place a wiretap on Davidon's residence telephone.

 The plaintiffs argue that the primary purpose of this tap was to gather evidence to support a criminal prosecution against members of the ECCSL in order to suppress their criticism of the government's Vietnam policy. They urge that because the primary purpose was for a criminal investigation, the defendants' claim of national security should be rejected.

 It may well be that one of the purposes and certainly one of the possible results of this investigation was ultimately to prosecute those individuals involved in the alleged conspiracy; nonetheless, that alone would not alter the fact that there may have been a bona fide threat to the national security. No doubt one of the most effective means of halting subversive activity aimed at the violent disruption of the government is to criminally prosecute those involved in such unlawful activity. However, simply because the perceived threat to the nation may result in the prosecution of those from whom the threat emanates does not require that the government's national security claim be rejected.

 In this instance, the intended victim of the kidnap plot was the President's senior national security advisor, who was engaged at that time in high level, extremely sensitive negotiations with North Vietnam, a hostile foreign government. It would be ludicrous to suggest that because the plot to kidnap that official constituted a violation of federal law, the national security purpose for ...


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