BERTRAM ZWEIBON, ET AL., PETITIONERS V. JOHN N. MITCHELL

   No. 83-2005

   In The Supreme Court Of The United States

   October Term, 1984

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Brief For The Respondent

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
   Discussion
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-28a) is reported
at 720 F.2d 162 (Zweibon IV).  /1/ The opinion of the district court
(Pet. App. 29a-34a) is unreported.  The original opinion of the
district court ruling that the surveillance challenged in this suit
was constitutionally authorized is reported at 363 F. Supp. 936
(1973).  This judgment was reversed by the court of appeals in an
opinion reported at 516 F.2d 594 (1975), cert. denied, 425 U.S. 944
(1976) (Zweibon I).  On remand, the district court struck the
petitioners' jury demand as untimely, but this was reversed by the
court of appeals on a petition for a writ of mandamus in an opinion
reported at 565 F.2d 742 (1977) (Zweibon II).  In an opinion reported
at 444 F.Supp. 1296 (1978), the district court again granted summary
judgment for the defendants, this time on the ground that the court of
appeals' rulings in Zweibon I should not be applied retroactively for
civil damages purposes.  This was reversed in part and affirmed in
part by the court of appeals in an opinion reported at 606 F.2d 1172
(1979), cert. denied, 453 U.S. 912 (1981) (Zweibon III.)

                             JURISDICTION

   The judgment of the court of appeals was entered on October 21,
1983, and a petition for rehearing was denied on January 9, 1984 (Pet.
App. 35a).  On March 28, 1984, the Chief Justice extended the time to
file a petition for a writ of certiorari until June 7, 1984 (Pet. App.
36a).  The petition was filed on that date.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   1. The Fourth Amendment to the United States Constitution

   provides:

         The right of the people to be secure in their persons,
      houses, papers, and effects, against unreasonable searches and
      seizures, shall not be violated, and no warrants shall issue,
      but upon probable cause, supported by oath or affirmation, and
      particularly describing the place to be searched, and the
      persons or things to be seized.

   2. At the time of the events leading to this litigation, 18 U.S.C.
(1976 ed.) 2511(3) /2/ provided, in pertinent part:

         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.  Not 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 exept as is necessary to implement that power.

   3. 18 U.S.C. 2520 provides:

         Any person whose wire or oral communication is intercepted,
      disclosed, or used in violation of this chapter shall (1) have a
      civil cause of action against any person who intercepts,
      discloses, or uses, or procures any other person to intercept,
      disclose, or use such communications, and (2) be entitled to
      recover from any such person --

         (a) actual damages but not less than liquidated damages
      computed at the rate of $100 a day for each day of violation or
      $1,000, whichever is higher;

         (b) punitive damages;  and

         (c) a reasonable attorney's fee and other litigation costs
      reasonably incurred.

         A good faith reliance on a court order or legislative
      authorization shall constitute a complete defense to any civil
      or criminal action brought under this chapter or under any other
      law.

                          QUESTIONS PRESENTED

   1. Whether respondent violated "clearly established" legal
standards when, as Attorney General, he authorized warrantless
national security wiretaps in 1970 and 1971, prior to this Court's
decision in United States v. United States District Court, 407 U.S.
297 (1972).

   2. Whether warrantless national security wiretaps conducted in 1970
and 1971 violated Title III of the Omnibus Crime Control and Safe
Streets Act of 1968, 18 U.S.C. 2510-2520, and if so, (a) whether a
judicial decision of first impression construing the Act to impose
such liability should be given retroactive effect and (b) whether a
defense of qualified immunity should be allowed.

                               STATEMENT

   1. Petitioners (16 members of the Jewish Defense League) (JDL)
instituted this action on October 7, 1971, in the United States
District Court for the District of Columbia against then Attorney
General John N. Mitchell and nine Special Agents of the Federal Bureau
of Investigation.  The suit followed disclosure by the government that
conversations of certain defendants and counsel had been overheard
during an electronic surveillance of telephones in the JDL offices in
New York City.  The electronic surveillance was conducted from October
1, 1970, through October 31, 1970, and again from January 5, 1971,
through June 30, 1971.  The surveillance had been authorized by
Attorney General Mitchell, acting pursuant to the President's
authority to conduct surveillance for national security purposes.
Petitioners sought money damages, claiming that the surveillance
violated the Fourth Amendment, Title III of the Omnibus Crime Control
and Safe Streets Act of 1968, 18 U.S.C. 2510 et seq., and 42 U.S.C.
1983 and 1985.

   On cross-motions for summary judgment based on affidavits and
exhibits, the district court entered judgment for the defendants (363
F. Supp. at 936).  The court found that respondent had authorized the
surveillance only after determining that "the activities of the JDL
were obviously detrimental to the continued peaceful relations between
the United States and the Soviet Union and threatened the President's
ability and constitutional authority to conduct the foreign relations
of this country" (363 F. Supp. at 942).  The court noted that
respondent, in authorizing the surveillances, had "relied on the total
knowledge received from the Department of State and the National
Security Council and from meetings with the Director of the FBI" (id.
at 939).  Moreover, the court found that numerous factors had
influenced the Attorney General's judgment.  The court concluded that
the surveillance initially had been authorized for a 30-day period
because of a concern that foreign diplomats would be attacked by the
JDL during the 25th anniversary session of the General Assembly of the
United Nations, which was to commence in October 1970 (id. at 938).
For several months prior to this, JDL actions against Soviet personnel
and facilities had prompted strong protests by the Soviet Union, which
had warned that the JDL's activities could adversely affect continued
cooperation between the United States and the Soviet Union in ongoing
diplomatic efforts.  These warnings also contained thinly veiled
threats of possible retaliation against United States diplomats and
embassy personnel in Moscow.  Id. at 939-940.  The reauthorization of
the JDL surveillance in January 1971 occurred after the JDL took
responsibility for an explosion at an Aeroflot-Intourist office, which
immediately prompted additional protests from the Soviet Union (id. at
938-939, 940-941).  These protests, and the consequent deterioration
in United States-Soviet diplomatic relations, continued with
petitioner Meir Kahane's announced intention to have JDL teams harass
Soviet diplomats and with the bombing of an Amtorg office on April 22,
1971 (id. at 941-942).

   In all, the district court found over 20 instances in which these
concerns had been expressed by the State Department, the United States
Mission to the United Nations, and the United States Ambassador to the
Soviet Union.  The district court concluded that the facts "show(ed) a
clear threat to this country's foreign relations";  that "(t)he
electronic surveillances were installed * * * under the constitutional
authority of the President over the conduct of foreign relations and
his inherent power to protect our national security";  and that prior
judicial authorization for the surveillances was thus not required by
the Fourth Amendment (363 F. Supp. at 943-944).  Additionally, the
district court held that petitioners' statutory claim under Title III
must fail because in United States v. United States District Court,
407 U.S. 297, 306 (1972) (hereinafter cited as Keith), this Court had
held that "'the Act * * * simply did not legislate with respect to
national security surveillances'" (363 F. Supp. at 943).

   2. The court of appeals, sitting en banc, reversed.  516 F.2d 594
(1975).  The court held that prior judicial authorization was required
by the Fourth Amendment for foreign security surveillances unless the
target of the surveillance was himself an agent of, or a collaborator
with, a foreign power.  Id. at 614 (plurality opinion);  id. at 689
(Wilkey, J., concurring in part).  A plurality of the court also held
that the Court's opinion in Keith "offers only ambiguous guidance"
with respect to the statutory question (516 F.2d at 660).  Finding
that "strong policy considerations" favored Title III's application,
the court held that Congress intended the statute's reach to be
"contingent upon further judicial pronouncements concerning the
constitutional question reserved in Katz * * *" (id. at 667, 671).
The court concluded, however, that in determining the extent of the
defendants' liability for authorizing and conducting a warrantless
national security surveillance, the qualified immunity defense
enunciated in Wood v. Strickland, 420 U.S. 308 (1975), as well as the
good faith defense provided under Title III itself (18 U.S.C. 2520),
should be considered on remand.  516 F.2d at 670.  /3/

   3. After discovery was completed on remand, the district court
granted respondent's renewed motion for summary judgment.  /4/ Relying
on this Court's decision in Chevron Oil Co. v. Huson, 404 U.S. 97, 104
(1971), the district court held that the court of appeals' conclusion
that a warrant was required by the Fourth Amendment in national
security surveillance constituted a new principle of law that should
not be applied retroactively to create personal damages liability (444
F. Supp. at 1299-1301).  The district court noted that the lawfulness
of warrantless surveillances prompted by foreign security concerns
consistently had been upheld by the lower courts prior to the decision
of the court of appeals in Zweibon I and that the purpose of
furthering the protections of the Fourth Amendment would not be
advanced by retroactive creation of damages liability in these
circumstances (444 F. Supp. at 1299-1300).  The court also observed
that creation of a private damages remedy for actions that were not
recognized to be unlawful when done might constitute an
unconstitutional ex post facto imposition of liability (id. at 1301).
Finally, the court concluded that these same concerns barred
petitioners' claims for relief under Title III (id. at 1301 & n.5).

   4. The court of appeals again reversed the district court's
judgment (606 F.2d at 1172).  The court of appeals held that the
decisions in Keith and Zweibon I should be applied retroactively for
civil damages purposes.  The court held that the decisions did not
announce a new principle of law but "simply applied the constitutional
warrant requirement to national security situations" (606 F.2d at 1179
(footnote omitted)).  /5/ The court also suggested that an Attorney
General who chooses to rely on lower court decisions to guide his
action does so at his own risk (id. at 1178-1179 & n.37).  /6/
Moreover, the court reasoned that, on balance, the equities favor
retroactive application of newly announced Fourth Amendment standards
in damages actions (id. at 1180-181).

   With regard to liability under Title III, however, the court of
appeals recognized that its prior holding in Zweibon I that this
statute applies to warrantless national security surveillances
"represented the sort of sharp break in the law which should be
restricted to prospective effect" (606 F.2d at 1182).  Petitions for
certiorari were denied following this Court's disposition of Kissinger
v. Halperin, 452 U.S. 713 (1981) (affirming by equally divided Court).

   5. On the third remand, respondent initiated interrogatory and
document discovery directed at petitioners.  Depositions also were
noticed, although the court was advised that depositions of all the
petitioners might not be required if adequate responses to the other
discovery were received.  Petitioners subsequently moved to quash the
notices of deposition on grounds of relevance and burdensomeness.
Respondent opposed this on the ground that the petitioners' virtually
identical responses to the interrogatories (which in part contradicted
a published statement attributed to petitioner Meir Kahane) had made
depositions necessary.  The court denied petitioners' motion,
concluding that they had not shown "good cause" to deny respondent his
right to utilize all the discovery tools provided by the Federal Rules
of Civil Procedure.  At the same time, the court ordered petitioners
to propose a satisfactory deposition schedule, since petitioners had
contended that respondent's proposed schedule was too burdensome.
Although they had twice taken respondent's deposition, petitioners
responded by advising the district court that they would refuse to
obey any court order requiring their own depositions and warning that,
unless the court reconsidered, they would "take another appeal to the
Court of Appeals.'" (Pet. App. 29a-31a).

   In light of petitioners' refusal to appear for court-ordered
depositions, respondent moved for sanctions.  The court granted the
motion (Pet. App. 29a-33a).  The court first rejected petitioners'
burdensomeness argument because "(t)he provisions of the * * * Order
(requiring petitioners to propose a schedule) moot (their) argument
that the earlier deposition schedule was too intensive;  and as a
general matter, the Court is not persuaded that a party suffers an
unreasonable burden simply because he is required to appear in his
chosen forum, at least in the absence of a showing of extraordinary
circumstances" (id. at 32a).  Beyond that, the court noted that
"because (petitioners) have made no showing whatever as to the
existence of such a burden, the contention is clearly without merit"
(ibid.).  The court also rejected petitioners' relevancy argument,
concluding that they could not "avoid discovery by unilaterally
framing issues as they would have them, and then contending that the
discovery sought cannot be relevant in the discovery sense to those
issues" (ibid.).  Finally, finding that petitioners' refusal "to
attend depositions and give testimony" was "a deliberate decision on
their part," the court concluded that sanctions were required (id. at
32a-33a).  "In view of the unsuitability of any lesser sanction to
avoid prejudice to (respondent) and with due regard to the important
discovery considerations embodied in Fed. R. Civ. P. 37," the court
imposed the sanction of dismissal as "the only course of action that
is appropriate" for petitioners' deliberate refusal to obey the
court's orders (id. at 33a).

   6. The court of appeals affirmed the judgment below without
reaching the imposition of the sanction of dismissal (Pet. App.
1a-28a).  Instead, the court focused on this Court's intervening
decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982), which modified
the standard for qualified immunity.  Stating that it "would be remiss
in (its) appellate duty were (it) to order yet another remand to
resolve what is a purely legal threshold question," the court of
appeals concluded that respondent was entitled to qualified immunity
because "the illegality of (his) conduct was not 'clearly established'
by any reasonable definition of the phrase" (Pet. App. 11a, 13a).

   In reaching this conclusion, the court noted that its "task after
Harlow * * * (was) to measure (respondent's) conduct by reference to
clearly established law at the time these wiretaps were authorized"
(Pet. App. at 13a).  The court followed its decision in Sinclair v.
Kleindienst, 645 F.2d 1080 (D.C. Cir. 1981), a damages action against
respondent for authorizing the surveillance at issue in Keith.  The
court held that Sinclair "control(led) the disposition of this appeal"
(Pet. App. 14a-15a) because it had found that there were no clearly
established warrant requirements for national security wiretaps prior
to Keith.  The court rejected petitioners' attempt to distinguish
Sinclair.  Petitioners argued that Sinclair, which involved electronic
surveillance of the Black Panther Party, was inapplicable because "the
JDL (was) a domestic group 'which posed no threat to our own
government and did not act in concert with a foreign power'" (Pet.
App. 16a (quoting Appellants' Reply Br. 13)).  Citing its opinion in
Zweibon I, the court pointed out that "'while there is no
collaboration between the JDL and Russia -- quite the reverse -- JDL's
activities did involve Russia in a confrontation with the United
States.  Thus this case does indeed involve the foreign affairs of
this country and therefore falls outside the holding in Keith and into
the area it reserved for future disposition.'" Pet. App. 16a (quoting
Zweibon I, 516 F.2d at 652).  The court of appeals also rejected
petitioners' argument that "contemporaneous internal Department of
Justice memoranda written for (respondent) demonstrate that
(petitioners') distinctions were 'understood by advisors to this
defendant'" (Pet. App. 17a).  Such memoranda were "irrelevant after
Harlow" because they only went to respondent's "subjective good faith,
an element now shorn from the defense of qualified immunity" (Pet.
App. 17a).  The court further concluded that "(its) reading of the
internal memoranda discloses that they make predictions as to further
action by the Supreme Court and discuss strategic considerations for
potential litigation;  the memoranda do not purport to declare what
was then legally permissible conduct with respect to warrantless
national security surveillance" (id. at 17a-18a).  Finally, the court
rejected petitioners' attempt to fault respondent because "two lower
courts had found warrantless wiretaps to be improper when directed at
domestic groups" (id. at 18a).  The court pointed out that "these two
decisions were not the only lower court decisions dealing with the
putative national security exemption from the warrant requirement" and
that respondent "could reasonably have relied on other lower court
decisions in which warrantless national security surveillances were
held permissible" (id. at 19a (emphasis in original)).

   Petitioners also challenged the holding in Sinclair itself, arguing
"that the 'clearly established' test for immunity purposes is
coterminous with the 'clearly foreshadowed' test courts employ to
determine whether a judicial decision ought to be given retroactive
effect" (Pet. App. 20a).  To support their argument, petitioners
"'poll(ed)' the Supreme Court Justices on the scope of the national
security exemption as of 1970(,) * * * com(ing) up with six Justices *
* * who had indicated their agreement with the proposition Keith
eventually would establish" (ibid.).  The court of appeals, however,
concluded that petitioners' "'poll' prove(d) nothing" because "(t)he
test for qualified immunity is 'clearly established,' not 'clearly
foreshadowed'" (id. at 20a-21a).  Noting that Harlow's standard "is
identical to that for establishing the 'objective' element of the old
two-pronged test for qualified immunity," the court reasoned that
"language (in this Court's decisions construing the old standard)
which speaks of 'indisputable law, and 'unquestioned rights' cannot be
reconciled with the 'clearly foreshadowed' test." Id. at 21a-22a
(quoting Wood v. Strickland, 420 U.S. 308, 321, 322 (1975)).
Accordingly, because the distinctions between respondent's "conduct
here and that condemned in Katz (v. United States, 389 U.S. 347
(1967)) or even Keith are real and substantial," the court of appeals
held that respondent had not violated clearly established law in
authorizing the JDL surveillance and, therefore, was "entitled to
summary judgment as a matter of law on the question of qualified
immunity" (Pet. App. 22a-23a).

                              DISCUSSION

   1. Petitioners assert that review is required here because the
court of appeals' decision not only "conflicts with the qualified
immunity rule announced by this Court in Harlow" but, indeed, has
"rendered (that rule) meaningless" (Pet. 14).  They argue (ibid.) that
respondent must be denied qualified immunity because he violated a
"warrant requirement (that) had been established by this Court" and
did not accept the views of his subordinates within the Department of
Justice as to the scope of the President's national security powers.
The difficulty with this argument, as the court of appeals correctly
found, is that it ignores the state of electronic surveillance law in
1970-1971 and misconstrues Harlow.

   Petitioners' error is apparent from their statement that "(t)he
warrant requirement had been established by this Court (in Katz) and
no court had excepted from that requirement wiretaps on domestic
organizations that were not attempting to overthrow the government"
(Pet. 14).  In Katz, this Court expressly did not decide whether a
warrant was required "in a situation involving the national security"
(389 U.S. at 358 n.23).  Nor did the Court limit this reservation to
some types of national security surveillances but not others.  /7/ Not
until Keith, decided more than a year after the JDL surveillance
terminated, did this Court distinguish between types of national
security surveillances and hold that those prompted by purely domestic
threats required warrants.  Moreover, "(e)ven in Keith, (this) Court
declined to elaborate on the incidents of 'foreign' versus 'domestic'
surveillances" (Pet. App. 16a) and, instead, limited its holding to
instances where "(t)here was no evidence of any involvement, directly
or indirectly, of a foreign power" (407 U.S. at 309 (footnote
omitted)).  As the court of appeals correctly noted in Zweibon I and
reiterated in its most recent opinion, because the "JDL's activities
did involve Russia in a confrontation with the United States() * * *
this case does indeed involve the foreign affairs of this country and
therefore falls outside the holding in Keith and into the area it
reserved for future disposition." Pet. App. 16a (quoting Zweibon I,
516 F.2d at 652).  Accordingly, petitioners' argument that respondent
violated a warrant requirement that was clearly established by
1970-1971 is totally unfounded.  That requirement was not established
until the court of appeals' decision four years later in this very
case reversed the district court's initial ruling that the
surveillance was constitutional.  /8/

   Petitioners' contention that an Attorney General's disagreement
with "the advice of his experienced subordinates" is evidence that he
has "consciously ignore(d) the commands of the Constitution" (Pet. 15)
similarly lacks merit.  The Attorney General is not bound to accept
the views of subordinates.  Rather, as the President's chief legal
advisor and head of the Department of Justice, the Attorney General
has the ultimate responsibility within the Department for evaluating
the scope of the President's constitutional authority.  In performing
this function, the Attorney General must be free to reject, as well as
to accept, the views of his subordinates.

   Petitioners' argument was properly rejected for additional sound
reasons.  Aside from the fact that the memoranda on which petitioners
rely simply "(did) not purport to declare what was then legally
permissible conduct" but rather only "(made) predictions as to future
action by (this) Court and discuss(ed) strategic considerations for
potential litigation," the court of appeals correctly concluded that
the memoranda were "irrelevant after Harlow." Pet. App. 18a, 17a.  /9/
Under Harlow (457 U.S. at 818 (footnote omitted)), an official's
immunity is not forfeited because of the advice he received but is
"measured by reference to clearly established law." In 1970-1971, that
law did not require a warrant for surveillances that were authorized
in response to either a domestic or foreign threat to the national
security.  This is sufficient under Harlow to protect the respondent
from liability, for "(n)o other 'circumstances' are relevant to the
issue of qualified immunity." Davis v. Scherer, No. 83-490 (June 28,
1984), slip op. 7.

   2. Petitioners also urge that review is appropriate because "(t)
here is a conflict in the Circuits over the extent of Attorney General
Mitchell's civil liability for warrantless wiretaps authorized by him
in the period prior to the Keith decision" (Pet. 16).  For this
"conflict," petitioners cite the district court's decision in Forsyth
v. Kleindienst, 551 F. Supp. 1247 (E.D. Pa. 1982), aff'd in part and
appeal dismissed in part, 729 F.2d 267 (3d Cir. 1984).  In Forsyth,
the district court held that the illegality of domestic national
security wiretaps was clearly established in late 1970 and early 1971,
approximately a year and one-half before this Court decided Keith (551
F. Supp. at 1255-1257).  The court of appeals concluded that it lacked
jurisdiction to consider the appeal from the denial of respondent's
claim of qualified immunity (729 F.2d at 273-274).  A strong dissent
was registered, which pointed out that "a review of Supreme Court and
other federal court decisions, the statutory provisions, and scholarly
commentary all demonstrate that the law of warrantless electronic
surveillance in national security cases was only beginning to develop
in 1970-71" (id. at 280).  /10/ See also Burkhart v. Saxbe, Civ.
Action No. 74-826 (E.D. Pa. Aug. 23, 1984) (illegality of warrantless
domestic security wiretaps not clearly established until Keith).

   Respondent has filed a petition for a writ of certiorari in Forsyth
(No. 84-335).  /11/ Among other things, we are requesting that this
Court review the question whether the illegality of domestic national
security wiretaps was clearly established prior to Keith.  Because
this question is closely related to one of the questions presented in
this case, the Court may wish to hold this petition pending
disposition of Forsyth.  However, granting review in the present case
does not now appear necessary or appropriate.  If this Court does
decide Mr. Mitchell's entitlement to qualified immunity in Forsyth,
that decision will very likely control the present case.  If this
Court does not grant review in Forsyth or does not reach the question
of Mr. Mitchell's entitlement to qualified immunity due to
jurisdictional obstacles, the Court may then wish to consider the
merits of the qualified immunity issue in this case.

   3. Petitioners ask this Court to consider two additional issues:
whether the court of appeals correctly held in Zweibon III (606 F.2d
at 1181-1182) that there is no retroactive liability under Title III;
and whether the court of appeals correctly held in Zweibon I (516 F.2d
at 671-673) that the same qualified immunity available as a defense to
Fourth Amendment claims would also serve as a defense to Title III
claims in the unique situation presented by national security
surveillances.

   a. The court of appeals in Zweibon III correctly recognized that
its holding in Zweibon I -- that Title III applies to warrantless
national security surveillance -- constituted "the sort of sharp break
in the law which should be restricted to prospective effect" (606 F.2d
at 1182).  In Chevron Oil Co. v. Huson, 404 U.S. at 106-107, this
Court held that retroactive application of substantive rules announced
in judicial decisions is inappropriate (1) if the decision established
a new rule of law by deciding an issue of first impression in a way
not "clearly foreshadowed" by earlier decision, (2) if retroactive
application of the rule would not further its purpose, or (3) if
retroactive application would impose hardship or produce inequitable
results.  The court of appeals properly concluded that the factors
identified in Chevron Oil counsel against retroactive application of
the Title III ruling in Zweibon I to the facts of this case.  Similar
equitable considerations justified the court's holding in Zweibon I
that qualified immunity could be asserted as defense to statutory
liability (516 F.2d at 670-673), a holding that this Court has
previously declined to review in this case (see note 4, supra).

   b. In any event, these issues need not be addressed because the
court of appeals erred in Zweibon I when it held that petitioners had
stated claims under Title III.  In Keith, this Court concluded, after
an exhaustive review of the legislative history of Title III, that the
statute "does not attempt to define or delineate the powers of the
President to meet domestic threats to the national security" (407 U.S.
at 322).  The Court held that, in enacting Title III, Congress "simply
did not legislate with respect to national security surveillances"
(id. at 306 (footnote omitted)).  As the dissenting judges noted in
Zweibon I, the court of appeals' holding that Title III creates a
damages remedy for warrantless national security surveillances is
directly at odds with this Court's conclusions in Keith.  See 516 F.2d
at 693-699 (Wilkey, J., dissenting);  id. at 706-707 (MacKinnon, J.,
dissenting).  /12/ Accordingly, we suggest, as an alternative ground
to support the court of appeals' judgment, that Title III is wholly
inapplicable to the national security surveillances at issue here.

                              CONCLUSION

   The petition for a writ of certiorari should be disposed of as
appropriate in light of Mitchell v. Forsyth (No. 84-335).

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   BARBARA L. HERWIG

   LARRY L. GREGG

      Attorneys

   SEPTEMBER 1984

   /1/ Petitioners' reproduction of the court of appeals' opinion does
not reflect the court's November 30, 1983 sua sponte amendment (App.,
infra, 1a-2a).

   /2/ 18 U.S.C. (1976 ed.) 2511(3) was repealed by Section 201(c) of
the Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511,
92 Stat. 1797.  This statute, which establishes procedures for the
conduct of electronic surveillance for national security purposes, was
enacted seven years after the events that gave rise to this
litigation.

   /3/ Petitioners petitioned for a writ of certiorari to obtain
review of the holding in Zweibon I that the defendants could raise a
good-faith, qualified immunity defense under Title III.  Respondent
then filed a conditional cross-petition challenging the portions of
Zweibon I adverse to him.  The Court denied the petitions.  425 U.S.
944 (1976).

   /4/ Petitioners agreed on remand to dismiss their claims against
the nine FBI agents.  Respondent Mitchell is thus the only remaining
defendant in this action.

   /5/ There is a division within the circuits on this question.  See
Weinberg v. Mitchell, 588 F.2d 275 (9th Cir. 1978) (holding that Keith
was not clearly foreshadowed and therefore should not be applied
retroactively for damages purposes).

   /6/ Although the court of appeals reasoned that "(c)ontradictory
lower court rulings might not establish that a decision was not
clearly foreshadowed" for retroactivity purposes, the court noted that
"such a split of decisions might provide reasonable grounds for taking
actions based on one or the other position for official immunity
purposes" (606 F.2d at 1181 n.49).

   /7/ Historically, national security electronic surveillances most
frequently were directed at agents of foreign powers and domestic
groups that appeared to threaten the existence and structure of our
government.  (See cases cited at Pet. App. 19a.) National security
concerns do not arise only in these situations, however.  For example,
leaks of classified military and foreign policy information were found
to justify electronic surveillance during both President Kennedy's and
President Nixon's administrations.  See S. Rep. 94-755, 94th Cong., 2d
Sess. Bk. III, at 321-327 (1976).  Significantly, petitioners do not
argue that the JDL's actions against Soviet personnel and facilities
presented no national security concerns.  Instead, their argument is a
more limited one, i.e., that only certain types of national security
surveillances were left undecided by Katz and that the JDL
surveillance was not among them.

   /8/ Although the court of appeals cited several pre-Keith lower
court decisions on which respondent "could reasonably have relied"
(Pet. App. 19a), petitioners acknowledge only two and attempt to
distinguish them as cases involving pre-Katz surveillances (Pet. 16
n.3).  Such early decisions cannot be ignored, however.  Even though
pre-Katz surveillances were not governed by a warrant requirement,
courts still had to address the scope of the President's power in
light of the statutory prohibition on interception and divulgence in
47 U.S.C. (1964 ed.) 605.  See, e.g., United States v. Stone, 305 F.
Supp. 75, 80-82 (D.D.C. 1969).

   /9/ None of the memoranda petitioners cite actually addressed the
type of foreign security threat that the JDL's actions posed.
Moreover, other internal Department of Justice memoranda (including
memoranda to respondent and to his predecessors in office) also
addressed the electronic surveillance issue (see Appellee's Br. 66
n.55).

   /10/ When the surveillance at issue in Forsyth occurred, only two
federal courts had considered the constitutionality of warrantless
domestic national security surveillances.  Both courts found them
within the President's Article II power, prompting the dissenting
judge on the court of appeals to comment:  "If anything, (these
decisions) suggest * * * that settled law held no warrant was
required" (729 F.2d at 278).  As a general proposition, it could be
said with some force that if federal judges today can disagree on what
the law in 1970-1971 required, then the law was not so clearly
established as to deny respondent immunity under Harlow.

   /11/ We are serving petitioners in this case with a copy of that
petition.

   /12/ The legislative history of Title III supports this
construction.  The Senate Report recognized that there would be
occasions where "foreign affairs and internal security" concerns might
"overlap" with "domestic criminal" concerns and noted that where such
overlapping occurred the surveillance would fall "outside the scope of
(Title III)." S. Rep. 1097, 90th Cong., 2d Sess. 94 (1968).  This
Court acknowledged this fact in commenting that Congress might
properly consider different standards for national security
surveillances than "those already prescribed for specified crimes in
Title III." Keith, 407 U.S. at 322.  The Court noted that "the
emphasis of domestic intelligence gathering is on the prevention of
unlawful activity or the enhancement of the Government's preparedness
for some possible future crisis or emergency" (ibid.).

   APPENDIX