# Petition for a Writ of Certiorari — Heine v. Raus

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1971
- **Citation:** 402 U.S. 914

## Text

INDEX TO BRIEF

Page

CIE IO Ss. hsv 1s Gh dss Seah Soekkabes aes 2
PD Line Fi wexabacs s Peas ab Neb bed ees 2
IN © IONE oi hone eS nc dC Na pean aeeiecabaas 3
emmy eC a ek ae veka nbaas 4
Pas TH Te UD en Cv ois ha bo ka eR RERALS 4

1.The Facts Preceding the Institution of the
Present Action for Money Damages for Slander 4

2. The Initiation of the Present Complaint ..... 5
BR ivickg hse cescedee ica vives 6
1. Proceedings in the District Court ............ 6

2. Proceedings in the United States Court of
Appeals for the Fourth Circuit in No. 11,195 .. 8

3. Proceedings in the District Court After Remand 9
4, Proceedings in the Court of Appeals After

Mematd tm No. P4081 ww... ccc ceccecess : oe
Reasons for Granting the Writ .................... 12
tie Ais Gres PU Ng Se ere eee ey re Se 20

TABLE OF CASES
Banco de Espana v. Federal Reserve Bank of New

York, 114 F. 2d 438 (2nd Cir. 1940) ............ 14
Barr v. Matteo, 360 U.S. 364 (1959) ........ 3, 4, 12, 17, 18
Heine v. Raus, 261 F. Supp. 570 (D. Md. 1966) ...... 2
Heine v. Raus, 399 F. 2d 785 (4th Cir. 1968) ..2, 8,9, 11,19
Heine v. Raus, 305 F. Supp. 816 (D. Md. 1969) Srerr: 2, 11
Stephen v. United States, 133 F. 2d 87 (6th Cir. 1943) 15
United States v. Reynolds, 345 U.S. 1 ............... 11

INDEX TO APPENDIX

IN THE

Supreme Court of the United States

OctToBER TERM, 1970

No.

EeriK Herne, Petitioner
against
Juni Ravs, Respondent

PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THL
FOURTH CIRCUIT

To the Justices of the Supreme Court of the United
States: :

Petitioner, Eerik Heine, respectfully prays that a
Writ of Certiorari issue to review the judgment of
the United States Court of Appeals for the Fourth
Circuit affirming the Orders of the United States Dis-
trict Court for the District of Maryland, granting

2

summary judgment against the petitioner in his
slander action for money damages.

OPINIONS BELOW

This case has been before the Fourth Circuit Court
of Appeals on two occasions. Initially, the District
Court entered summary judgment against the peti-
tioner on his slander action for money damages against
the respondent, and the opinion of the District Court
is reported in Heine v. Raus, 261 F.Supp. 570 (D.Md.
1966). The Court of Appeals, in an unanimous opin-
ion, reversed the summary judgment entered by the
District Court and remanded the case to the District
Court for further factual development of an issue,
with Chief Circuit Judge Haynsworth and Circuit
Judge Boreman joining in an opinion in sharp con-
trast to a concurring opinion by Circuit Judge Craven.
The opinion of the Court of Appeals is recorded in
Heine v. Raus, 399 F.2d 785 (4th Cir. 1968). There-
after, on remand, Chief Judge Thomsen made the
limited inquiry previously directed by the Court of
Appeals and then re-entered summary judgment
against the petitioner. His opinion is reported in
Heine v. Raus, 305 F.Supp. 816 (D.Md. 1969). There-
after, the Court of Appeals reconsidered the case on
the narrow issue on which it had remanded, and af-
firmed the order of the District Court in a per curiam
opinion. The per curiam opinion is not yet reported
and is reprinted herein in Appendix A.

JURISDICTION

The judgment of the Court of Appeals for the
United States Court of Appeals for the Fourth Cir-
cuit was entered on October 30, 1970. The jurisdic-
tion of this Court is invoked under 28 U.S.C. § 1254(1).

3

STATEMENT OF QUESTIONS PRESENTED

1. Whether the judicially developed doctrine of ex-
ecutive immunity 2s enunciated by this Court in Barr
v. Matteo extends to immunize respondent from peti-
tioner’s slander suit for money damages when re-
spondent admittedly called petitioner a KGB agent
and a dispatched Soviet intelligence’ operative, when
said defense was asserted on his behalf by the CIA,
but under circumstances where the CIA also invoked
a Claim of Privilege asserting state secrets so that
petitioner was precluded from making specific inquiry
into respondent’s niche in the federal hierarchy or the
scope of respondent’s employment or outer perimeter
of his duties with the CLA.

2. Whether the judicially developed doctrine of ex-
ecutive immunity as enunciated in Barr v. Matteo
by this Court extends to and immunizes respondent
from suit when the defamation is intentional and made
as an instrument of government policy by the CIA
under color of its statutory authority in 50 U.S.C.A.
§ 403(d) (3) and § 408g, when said statutory authority
relied on contains a specific prohibition against any
internal security functions together with a mandate
to protect the intelligence sources from unauthorized
disclosure from within the intelligence community.

3. Whether summary judgment for the respondent
should have been granted by the District Court in an
action for money damages for slander where the de-
fense of absolute immunity asserted by respondent
could meet neither the testimonial requirements of
Rule 56(e) F.R.C.P. nor the standards set forth by
this Court in Barr v. Matteo, because the CIA filed
a Claim of Privilege asserting secrecy which precluded
any specific inquiry into respondent’s relationship,
duties or employment with the CIA.

ioe.
STATEMENT OF THE CASE

The serious and substantial questions raised in this
appeal arise out of the factual context of slanders
issued to persons in the United States by the respond-
ent under the color of authority by an erroneous con-
struction of the statutory authority of the Central
Intelligence Agency, and purportedly with executive
immunity, under an unwarranted extension of the
judicially developed doctrine of executive immunity
as developed by this Court in Barr v. Matteo, and the
further granting of a summary judgment for the re-
spondent contrary to hule 56 F.R.C.P. in the Rules of
Evidence.

A. STATEMENT OF THE FACTS

1. The Facts Preceding the Institution of the Present Action
for Money Damages for Slander

Petitioner, Eerik Heine, was a resident of Rexdale,
Ontario, and a citizen of Canada. He enjoyed a good
reputation generally and more particularly for his
stand against communists and communism, (J.A. 19)
During 1963 he lectured and exhibited a motion picture
to Estonian groups in Canada and the United States.
(J.A. 20)

He exhibited a motion picture which he had produced
and directed entitled ‘‘Creators of Legend”’’ and lec-
tured on his experiences as a prisoner in Russian
prison camps and on his guerrilla fighter activities
in occupied Estonia. Heine partially earned his liveli-
hood from the lectures and motion picture which were
heard and seen by thousands of people of Estonian
extraction, and others. The lectures and the picture
were well received because Heine, an Estonian by
birth, was well known for his vigorous anti-communist
activities. (J.A. 20)

4)

Respondent, Juri Raus, was a resident of Hyatts-
ville, Maryland, and a citizen of the United States.
At all times herein mentioned, he was a highway re-
search engineer with the Bureau of Public Roads,
Department of Commerce of Washington, D. ©. (J.A.
26) On November 9, 1963, in New York, at a special
board meeting of an Estonian organization, Raus made
a statement that Kerik Heine was a KGB agent, mean-
ing that Heine was a Soviet agent or collaborator.
(J.A. 126) Subsequently, on July 4, 1964, and on
September 4, 1964, at Estonian gatherings in Pasadena,
Maryland, and in Baltimore, Maryland, respectively,
Raus made substantially the same statements about
Heine to one August Kuklaue, an officer in the Balti-
more branch of an Estonian organization. (J.A. 130)

These accusations by Raus, a person of apparent
responsibility and position in the Estonian community,
caused Heine to be brought into general scandal and
disgrace in the United States and in Canada, both in
the Estonian and general communities, and caused
him injury and damagé to his sood name and repu-
tation. (J.A. 22)

Petitioner’s slander action for money damages fol-
lows.

2. The Initiation of the Present Complaint

Petitioner Heine filed a slander suit against Raus
in November, 1964, alleging all the material matters
as above stated, including the allegations that Raus
had maliciously defamed him, as mentioned, on three
separate occasions. Heine claimed general damages
of $10,000 and punitive damages for malice in the
amount of $100,000. (J.A. 23)

6

ASA Ce

Raus filed an answer in January 1965, admitting that
on November 9, 1963, he made a statement in New
York that Heine was a Soviet agent or collaborator,
and he admitted having spoken to one August Kuklane,
in substantially the same terms, but on ®n occasion
earlier than those specified in the complaint. Raus
denied making the statements attributed to him as
specified in the latter two instances in the complaint.
In his answer, Raus set up the defenses of qualified
privilege, free speech, and the defense of limitations
respecting a communication to Kuklane. (J.A. 24)

Respondent also alleged that he was acting as an
appropriate officer of the Estonian liberation move-
ment and that Heine’s suit was contrary to the interest
and public policy of the United States. (J.A. 25)

B. PROCEEDINGS BELOW
1. Proceedings in the District Court

Thereafter, in February of 1965, Raus’ attorneys
took a 924-page deposition of Heine. (J.A. 28-30) In
November, 1965, petitioner served 424 interrogatories
on Raus. (J.A. 31-98) In January, 1966, respondent
filed a motion to strike the interrogatories on the
ground that the number was oppressive and on the
ground that the interrogatories inquired of privileged
matter. (J.A. 98)

Contemporaneously, the respondent filed a motion for
summary judgment founded upon the affirmative de-
fense of absolute privilege, and based upon an affidavit
of the Deputy Director of Central Intelligence which
stated, in substance, that ‘‘on those occasions specified
in paragraphs 5, 6, and 7 ofthe complaint, the de-
fendant, Juri Raus, was in possession of information
furnished to him by the Central Intelligence Agency,

7

and when he spoke concerning the plaintiff on such
occasions he was acting within the scope and course
of his employment by the Agency on behalf of the
United States.’’ (J.A. 107)

Thereafter, on March 11, 1966, the District Court
held a hearing on the respondent’s motion for sum-
inary judgment and ruled that the answer did not set
up the defense of absolute privilege but granted re-
spondent leave to file an amended answer asserting
that defense. (J.A. 168) The District Court also
ruled that the respondent should not be required to
answer the 424 interrugatories propounded, but that
the petitioner might take the deposition of tae re-
spondent. (J.A. 4-5) At the hearing of March 11,
the District Court also stated, after argument by coun-
sel, that a more detailed affidavit should be filed by
the Deputy Director of the Central Intelligence
Agency. The District Court then advised counsel for
the respondent that the Government should be present
to assert any privilege against disclosing secrets. (J.A.
159) Subsequent hearings were had on April 14, 1966,
on April 28, 1966, on May 13, 1966, and finally on
September 28, 1966. During this period of time, and
because petitioner continuously complained of the al-
legedly conclusory nature of the Deputy Director’s
affidavits, three successive affidavits were filed after
the first, each with additional detail, but still objected
to by the petitioner. (J.A.118) Argument was heard
by the District Court on the respondent’s motion for
summary judgment at each of the hearings, except
that on April 28, 1966, the petitioner took the depo-
sition of the respondent in open court. (J.A. 249)
Petitioner’s counsel advised the District Court that
the principal purpose of the deposition was to ascer-

8

tain Raus’ connection with the CIA and to explore
the defense of official immunity. (J.A. 246-7) Present
at the deposition, were three attorneys representing
the United States in addition to petitioner and re-
spondent’s counsel. (J.A. 236) Prior to the taking
of the deposition, a formal Claim of Privilege was
lodged with the District Court on behalf of the Central
Intelligence Agency and over the signature of the ‘Di-
rector. (J.A. 234)

Both sides filed several briefs on the questions in-
volved during the months between the first and final
hearing on the respondent’s summary judgment mo-
tion. At the final hearing, the District Court ruled
on petitioner’s motion to strike the amended answer
which had been pending for several months, and de-
nied the same. (J.A. 354)

The District Court took the rest of the case under
advisement, and issued an opinion granting the re-
spondent’s motion for summary judgment on Decem-
ber 8, 1966. (J.A.1) The first appeal followed.

2. Proceedings in the United States Court of Appeals for the
Fourth Circuit in No. 11,195

The Court of Appeals vacated the summary judg-
ment entered for the respondent by the District Court
and remanded the case on the ground that there was
a permissible inference in the record before it ‘*that
the instructions (to Juri Raus to speak of the peti-
tioner as he did) were given by an unauthorized under-
ling and that his action has never had the approval
of a responsible official of the Agency having au-
thority to issue or approve such instructions.” 399
F.2d 785 (1968).

ce

9

The Fourth Circuit further stated :

‘*... if the plaintiff represents to the District
Court serious reliance upon the inference, further
inquiry may be had and additional findings made.
The inquiry should be directed to the identity of
the official within the Agency who authorized or
approved the instructions to Raus. Disclosure of
the identity of the individual who dealt with Raus
is not required ; the answer to be sought is whether
or not the Director or a Deputy Director or a sub-
ordinate official, having authority to do so, au-
thorized, approved or ratified the instructions.”’

3. Proceedings in the District Court After Remand

After remand, petitioner filed a statement with the
Court representing to the District Court serious re-
liance upon the inference referred to in the Opinion
of the Fourth Circuit, and the petitioner requested
that further inquiry may be had into said inference
and that additional findings be made.

Thereafter, the Court denied petitioner’s request
to depose the Director of the CIA, and alternatively,
directed the petitioner to submit questions on the gen-
eral areas on which petitioner proposed to depose the
Director. Petitioner filed thirty-five (35) general
questions and the Court considered the same seriatum
and heard arguments of counsel thereon. Thereupon,
subject to a further report from the United States
as to whether the Director of the Central Intelligence
Agency would file a claim of privilege against the dis-
closure of state’s secrets with respect to any of the
proposed questions, and reserving the ruling on the
Claim of Privilege as to each of the said proposed
general questions, the Court ruled that thirteen (15)
of the petitioner’s general questions were within ‘he

10

inquiry directed under the remand of the Court of
Appeals; and that two (2) of the questions were to
be re-examined in the light of any response which the
Director might make to the general area of question-
ing in response to one of the allowed questions. Re-
spondent’s objections to the remaining questions were
sustained.

Subsequently, the Court was advised by the Gov-
ernment that the United States strongly opposed the
taking of the deposition of the Director of the Central
Intelligence Agency, but that subject of the Claim of
Privilege, the Director would respond in writing to
the questions which the Court ruled to be relevant.
The Director made partial answers to three of the
allowed questions, and he firmly asserted the privilege
status of further answers to said questions and de-
clined to give further information to the same pur-
suant to the authority vested in him as Director of
Central Intelligence. All other questions were an-
swered without any Claim of Privilege.

During the course of this remand proceeding, the
respondent had renewed his motion for summary judg-
ment buttressed by another supporting affidavit by the
Director of Central Intelligence.

The District Court held a final hearing in which the
petitioner urged the Court to permit the taking of the
Director’s deposition so that the Director could be
cross-examined both on the statements and answers in
which he claimed privilege and also on the questions
where privilege was not claimed. Respondent argued
that the Claims of Privilege made in the answers to the
written interrogatories would have to be sustained on
oral deposition and that the Director had given all of

11

the information which could be obtained, both in his
affidavits and the answers which he had made under
oath.

Thereupon, the Court directed that summary judg-
ment be re-entered in favor of the respondent against
the petitioner and the District Court rendered an
opinion holding that Heims’ Claim of Privilege must
be sustained under the rule announced in United States
v. Reynolds, 345 U.S. 1. The Court held that the Di-
rector’s affidavit supported by his answers to the in-
terrogatories, shows:

‘*(a) that the instructions to Raus were given by
a subordinate official of the Agency, authorized to
do so, and acting in the course of his prescribed
duties and not by an unauthorized underling; and

(b) that Helms, as Deputy Director of the
Agency in December, 1964, was authorized to and
did ratify and approve the action taken by the
counterintelligence officer who instrueted Juri
Raus to warn members of the I’stonian emigre
groups that Eerik Heine was a Soviet intelligence
operative, a KGB agent.’’ Heine v. Raus, 305 F.
Supp. 816 (D. Md. 1969)

The second appeal followed.

4. Proceedings in the Court of Appeals After Remand
in No. 14,281

Upon the conclusion of the remand proceedings, the
District Court re-entered summary judgment against
the petitioner. The Court of Appeals affirmed the ac-
tion of the District Court in a per curiam opinion, hold-
ing that the District Court had fairly resolved the ques-
tion of authority and ratification left open by its prior
decision, Heine v. Raus, 399 F.2d 785 (4th Cir. 1968).

12

REASONS FOR GRANTING THE WRIT

1. The doctrine allowing the Director of the CIA to
assert the claim of state secrecy should be carefully
examined by this Court, not for the purpose of narrow-
ing the area of its use as a shield but to prevent its
use as a sword.

The District Court wrongly granted the respond-
ent’s motion for summary judgment \despite the fact
that the respondent was unable to show the facts per-
tinent to the central issue upon which his motion was
based. It was necessary for the respondent in order to
avail himself of governmental immunity from suit
developed by Barr v. Matteo, 360 U.S. 564 (1959) to
show the fact that he was a employee of CIA and that
he was within the scope of his duties at the time he
called the petitioner a communist and a KGB agent.

The respondent was unable to produce such facts to
substantiate his claim of government immunity.

The. CIA had asserted its Claim of Privilege of
secrecy to withhold the facts of the respondent’s em-
ployment, stating to do so would jeopardize national
security. Therefore, the respondent produced no facts
as required by Rule 56(e) of the Federal Rules of
Civil Procedure, but only submitted conclusory affida-
vits which usurped the province of the Court in assert-
ing that respondent Raus was acting within the scope
of his employment by CIA when he issued his maledic-
tions about the petitioner.

The District Court, in its opinion, wrongly and arbi-
‘trarily decided that as a result of the inability of the
respondent to establish the truth of his allegations of
his own alleged employment and scope of employment
with the CIA, that not the respondent, but, amazingly,

13

the petitioner must suffer. For some arbitrary and in-
explicable reason, the Court chose, erroneously, to con-
fer a special grace upon totally inadmissible evidence
in the affidavits and the deposition by virtue of the
fact that secrecy prevented cross-examination. As was
urged by the petitioner to the District Court in argu-
ment repeatedly, before the entry of the first summary
judgment, the interposition of secrecy is not partisan.
Secrecy falls like an impenetrable curtain neither add-
ing dignity to that which is permissibly discoverable
nor permitting inferences to be drawn from that which
is not discoverable.

Since the respondent had in an earlier affidavit sworn
that he was an employee of the Bureau of Public Roads
and had no other source of income, there is ample rea-
son to conclude that had the CIA not interposed its
claim of secrecy and been forced to reveal the details
surrounding its relationship to respondent Raus, that
he would not have been able to file his motion which re-
quired his being a government employee at the time
of the slander.

As a consequence, the claim of state secrecy has been
used as a sword and not as a shield; or, more appro-
priately, in the case of CLA, not as a cloak but as a
dagger. Such aggressive use is a palpable abuse and
the resultant summary judgment should be reversed
for a full trial on the merits. ‘

2. The District Court erred in granting summary
judgment for the respondent desnite pleadings demon-
strating the existence of genuine issues of fact con-
cerning material matters. Conflicts existed between
the affidavit of the respondent of January 15, 1965 to
the effect that he was a Bureau of Public Roads em-
ployee with no other source of income but his Army

f

14

Reserve pay and the affidavits of Richard Helms which
claimed that respondent was employed by the CIA
and acting within the scope of his employment at the
time of the defamations.

In addition, there was a direct denial by the re-
spondent of the allegations of the petitioner’s com-
‘plaint which had claimed that respondent had spoken
of the petitioner in a defamatory manner to one Kuk-
lane. There were numerous genuine issues of material
fact which were never resolved.

There was a violation of the requirements of Rule
56(e) of the Federal Rules of Civil Procedure in that
the specific offers of evidence hy the respondent were
not only conclusory statements on the ultimate issues
required to show government immunity but also were
not subjected to cross-examination.

The respondent sought, by the revelation of certain
information contained in the affidavits of CIA Direc-
tor Richard Helms, to show that there was no disputed
material fact concerning the respondent’s status as an
employee of the CIA who, supposedly within the scope
of his duties, slandered the petitioner, Kerik Heine.
Such evidence, if admissible and uncontradicted,
would, by virtue of the rule of federal immunity, ter-
minate the lawsuit; however, the respondent’s offer of
proof failed to satisfy Rule 56(e) F.R.C.P. which re-
quires that affidavits, offered in support of a motion
for summary judgment, must present admissible evi-
dence. As was held in Bunco de Espana v. Federal
Reserve Bank of New York (CCA 2d 1940), 114 F.2d
438, at 445:

‘¢A bona fide affidavit to support a summary judg-
ment must necessarily be a statement of facts

pice AL

eee ages

REE RRO EIT ote

15

which the moving party, sic, knows and is able to
substantiate at trial.’’

Further, in Stephan v. United States, 133 F.2d 87 (6th
Cir. 1943), the Court, in restricting the general rule
on an appeal of a conviction for treason, held:

‘‘The general rule is that where the witness after
his examination-in-chief on the stand has refused
’ to submit to cross examination, the opportunity of
thus probing and testing his statements has sub-
stantially failed and his direct testimony should
be struck out.’? Wigmore on Evidence, Section
1391, page 112, and cases cited in the footnotes.

The general rule is that after a witness, having
given his testimony in chief, refuses to submit to cross
examination, the opportunity of probing and testing
his statements has substantially failed and his direct
testimony should be struck out. Summary judgment
cannot achieve more than an actual trial would produce.
In this case, if the affidavits which support the motion
for summary judgment had contained facts and not
merely conclusions, which was not the case, the total
lack of cross-examination rendered the affidavits in-
admissible in support of the motion. In an actual
trial, if the author of the affidavits, Richard Helms,
CIA Director, took the stand and recited all of the
facts in his numerous affidavits and, thereafter, re-
fused to submit to cross-examination, a trial would,
following the basic and rudimentary testimonial re-
quirements, be forced to strike all such testimony in
chief.

Thus, all of the conclusory statements which fore-
closed cross examination should be stricken and sum-
mary judgment reversed.

16

3. The District Court erred in interpreting Title 50
§ 403(d) and CIA Regulation HR 10-20 by construing
said statute and regulation to mean that the CIA was
authorized to protect external intelligence sources, as
such, rather than, as the regulation specifically and
plainly defined the statute, to mean the internal pro-
tection from unauthorized disclosure of intelligence
sourees vithin the CLA and other inte ligence agencies.

In all of the affidavits filed by the CIA in support of
respondent’s motion for summary judgment, the
Agency cites its authority (J.A. 182) under CIA Reg-
ulation HR 10-20 referring to it as an implementing
regulation promulgated under 50 U.S.C.A. § 403 (d)
and 50 U.S.C.A. § 403 g.

If CIA Regulation HR 10-20 is a valid promulga-
tion of the statutory authority of the Agency respect-
ing the protection of intelligence sources and methods
from unauthorized disclosure, then a reading of the
same, employing ordinary rules of logic and legal con-
struction, makes it objectively evident and clear, and
not susceptible of a contrary interpretation and con-
struction, that the ‘‘PRoTEcTED INFORMATION’’ as de-
fined in CIA Regulation HR 10-20(b) is information
which is ‘‘in the offices of the Central Intelligence
Agency”’ and the ‘‘ Poticy”’ as defined in paragraph ¢
of said Regulation is a prohibition ‘‘. . . from dis-
closing or using protected information for any purpose
other than the performance of duties for or on behaif
of the Agency...”’. (J.A. 183) Accordingly, while
the plain meaning of the Regulation can be belabored
by argument it cannot be improved thereby, in its spe-
cific relevance and reference to its plain intention of
protecting existing intelligence sources and methods
within the intelligence community from ‘unauthorized

17

disclosure’. (J.A. 183) However, this Regulation
has been modified in its purport by the cropping of
the words ‘‘unauthorized disclosure’’ repeatedly in the
affidavits of Richard Helms and the arguments of the
respondent and the CIA so that the affidavits and the
arguments constantly refer to the protection of foreign
intelligence sources, omitting the words ‘‘from unau-
thorized disclosure.”’

This cropping of the words ‘“‘from unauthorized
disclosure’’ is employed to change the plain intention
of the statute and the Regulation from an internal
control within the Intelligence Community to an ex-
ternal and universal control thusly, ‘‘so as to protect
the integrity of the Agency’s foreign intelligence
sources.’’ (J.A.181) This contorted construction re-
lied upon by the CIA expands its statutory authority
and, concommittantly, the areas to which the privilege
of its executive or official immunity extend. However,
the cropping of the words cannot erase the strict pro-
hibition contained in 50 U.S.C.A. § 403(d) (3) against
any internal-security functions by the CIA.

On the District Court level, petitioner contended that
defense of executive immunity under Barr v. Matteo
was not available to the respondent because the conduct
and utterances complained of exceeded the statutory
authority of the Agency. Accordingly, it was neces-_
sary for the District Court to construe the statutory
authority of the CIA before it could immunize the
respondent under Barr.

However, in so construing the statutory authority of
the CIA, the District Court fell victim to and adopted
the cropped concept contained in the series of affidavits
and other filings made in the case by the CIA, thereby

18

confusing the entirely dissimilar concepts of ‘‘to pro-
tect its foreign intelligence sources’’ with ‘‘to protect
its foreign intelligence sources from unauthorized dis-
elosure’’. This is patently obvious from reading part
of the Court’s opinion construing the statute:

‘‘Tt is reasonable that emigre groups from behind
the Iron Curtain would be a valuable source of
intelligence information as to what goes on in their
old homeland. The fact that the immediate intelli-
gence source is located in the United States does
not make it an ‘internal security function’, over
which the CIA has no authority. The Court con-
eludes that activities by the CIA to protect its
foreign intelligence sources located in the United
States are within the power granted by Congress
to the CIA.”’ (J.A. 13)

This explanation about the emigre groups was never
advanced by the CIA, never uttered by respondent
Raus, and never claimed in any of the affidavits of
Richard Helms; however, the Court, sua sponte, ar-
rived at this full explanation, nothwithstanding the
strictures of Rule 56 F.R.C.P. requiring that all per-
missible inferences be drawn to favor the party oppos-
ing the motion for summary judgment.

4. There should be a re-examination of the rule of
Barr v. Matteo which was the opinion of a sharply
divided court. A most intense re-examination should
be made of the intentional, calculated, and deliberate
use of defamation for the very purpose of destroying
the influence and effectiveness of an individual. As
Judge Craven stated in his concurring opinion in the
remand to the District Court,

‘Barr was not intended to protect the oppressive
use of governmental power. Nor was the rule in

19

Barr formulated for the protection of the ‘un-
worthy’ officer of government. The protection
afforded such an officer was given to him, not
because he deserved to have it, but because of
fear that if he was denied it, there might result a
deterrent effect upon honest and well intentioned
officers of government that would hamper govern-
ment operation . . . Barr envisioned defamation
and possible slander as the occasional failures of
fallible human beings acting as government officers
and not as instruments of government policy. I
think the immunity conferred in Barr has no ap-
plication to a fact situation where defamation is
chosen by a government agency as deliberate
policy.’’ Heine v. Raus, 399 F.2d 785 (1968).

If the decision stands, a fail-safe system for character
assassination has been perfected. By a judicious use
of the privilege against the disclosure of state secrets
and its amalgamation with the immunity from suit en-
joyed by governmental officers, an individual can be
wttacked and vilified without sanction. But an added
advantage can accrue to the author of the policy pro-
ducing the devious plot: his identity need not be dis-
closed to view. The calculated and synchronous use
of the cloak and dagger may be a way of life in totali-
tarian countries but is completely abhorrent in a free
society.

Our society has remained free because a great prin-
ciple of government has been kept alive throughout
the history of our country which was first stated so
eloquently in Marbury v. Madison, one of the earliest
great decisions of this Court, when it said: ‘‘The
Governinent of the United States has been emphat-
ically termed a government of laws, and not of men.
It will certainly cease to deserve this high appellation

20

if the laws furnish no remedy for the violation of a
vested legal right.”’

In reversing the judgment entered below, this Court
would be giving new expression to this ancient princi-
ple of government.

CONCLUSION
The Petition for the Writ of Certiorari should be
granted, and the judgment below reversed.
Respectfully submitted,

Ernest C. RASKAUSKAS
1200 18th Street, N. W.
Washington, D. C. 20036

Rosert J. STANFORD
1776 K Street, N. W.
Washington, D. C. 20006

Counsel for Petitioner

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14,281

Herik Heine, Appellant,
versus

Juri Raus, Appellee.

Appeal from the United States District Court for the
District of Maryland, at Baltimore. Roszel C. Thomsen,
Chief District Judge.

Argucd October 9, 1970 Decided October 30, 1970

Before Haynswortu, Chief Judge, Winter, and Craven,
Circuit Judges.

Robert J. Stanford and Ernest C. Raskauskas for Appel-
lant, and Paul R. Connolly (J. Alan Galbraith, and
Williams & Connolly; E. Barrett Prettyman, J r., and
Hcegan & Hartson on brief) for Appellee.

Per Curiam:

On remand the district court fairly resolved the ques-
tion of authority and ratification left open by our prior
decision, Heine v. Raus, 399 F. 2d 785 (4th Cir. 1968).
Thereupon he entered summary judgment in accordance
with the law of the case.

Affirmed.

2a

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

Civil No. 15952

Eerik HEINE
Vv.

Juri Ravs
Filed: November 3, 1969

Ernest C. Raskauskas and Robert J. Stanford, of Wash-
ington, D. C., for plaintiff.

Paul R. Connolly, E. Barrett Prettyman, Jr., and Hogan
& Hartson, of Washington, D. C., for defendant.

Lawrence R. Houston, General Counsel, Central Intelli-
gence Agency, and Kevin T. Maroney, Attorney, Depart-
ment of Justice, of Washington, D. C., and Stephen H.
Sachs, United States Attorney, and Barnet D. Skolnik,
Assistant United States Attorney, of Baltimore, Maryland,
for the United States.

THomsEN, Chief Judge

In this action for slander, defendant asserted the defense
of absolute privilege on the ground that when he made
certain defamatory statements he was acting within the
scope and course of his employment by the Central Intelli-
gence Agency on behalf of the United States, and had
been instructed by the CIA to warn members of Estonian
emigre groups that plaintiff was a dispatched Soviet intelli-
gence operative, a KGB agent.

After various proceedings, detailed in the previous opin-
ion of this Court, 261 F. Supp. 570 (1966), and for the
reasons set out therein, this Court granted defendant’s
motion for summary judgment.

3a

On appeal, the Fourth Circuit vacated the judgment and
remanded the case for the narrow purpose set out in its
opinion, 399 F. 2d 785 (1968).

After summarizing the proceedings in this Court, the
Fourth Circuit said: ‘‘It [the District Court] was of the
opinion that the absolute governmental privilege was avail-
able to a government employee such as Raus, who faith-
fully executed his instructions, as to one of higher authority
exercising discretionary functions within the outer perim-
eter of his authority. We agree, previded the instructions
were issued by one having authority to issue them.’’ 399
F’, 2d at 788.

The Fourth Circuit quoted the discussion of the govern-
ment’s priv ilege of silence with respect to ‘‘state secrets’’,
contained in United States v. Reynolds, 345 U.S. 1, 7-8
(1953), and said: ‘‘We affirm the right of the CIA in
this case to invoke the governmental privilege agains’ lis-
closure of state secrets and its allowance, to the extent it
was allowed, by the District Court.’? 399 F.2d at 788.

The Fourth Circuit continued: ‘‘On the question of
executive privilege in defamation suits, we also agree
generally with the District Court, its analysis of Barr v.
Matteo [360 U.S. 546] and its reasoning, though we come
_ to the conclusion that one more detail should have been
supplied before entry of summary judgment.’’

After a full discussion of the reasons which led to its
conclusion, the Fourth Circuit said:

‘We conclude that the absolute privilege is avail-
able to Raus if his instructions were issued with the
approval of the Director or of a subordinate authorized
by the Director, in the subordinate’s discretion, to
issue such instructions, or if the giving of the instruc-
tions was subsequently ratified and approved by such
an official.

ta

‘‘Though the Director’s affidavits state that Raus
acted under instructions of the CIA, which certainly
strongly implies that the instructions were given by,
or with the approval of, a responsible, authorized
official of the Agency and though the Director’s
appearance in the ease carries with it a strong implica-
tion of his personal ratification and approval, it is
said that on the present record there is still a per-
missible inference that the instructions were given by
an unauthorized underling and that his action has
never had the approval of a responsible official of the
Agency having authority to issue or »pprove such
instructions. The inference seems unlikely but we
cannot say it is foreclosed by the present record,

‘‘Since summary judgment was issued, we will
vacate the judgment so that, if the plaintiff represents
to the District Court serious reliance upon the in-
ference, further inquiry may be had and additional
findings made. The inquiry should be directed to the
identity of the official within the Agency who author-
ized or approved the instructions to Raus. Disclosure
of the identity of the individual who dealt with Raus
is not required; the answer to be sought is whether or
not the Director or a Deputy Director or a subordinate
official, having authority to do so, authorized,
approved or ratified the instructions. If such dis-
clesures are reasonably thought by the District Judge
to violate the claimed privilege for state secrets, they
may be made in camera, to that extent. Disclosures
in camera are inconsistent with the normal rights of a
plaintiff of inquiry and cross-examination, of course,
but if the two interests cannot be reconciled, the
interest of the individual litigant must give way to
the government’s privilege against disclosure of its
secrets of state.

‘‘Finally, we may observe that while we generally
approve entry of summary judgment for the defend-

5a

ant, subject only to the limited additional inquiry we
direct, the plaintiff would fare no better if the defend-
ant’s privilege were held to be not absolute, but only
qualified. Heine cannot controvert the claim of Raus,
supported by the CIA, that he acted under instructions
of that Agency. Heine claims no publication exceed-
ing the instructions. He has no basis for a showing
of malice. If summary judgment is appropriate after
the additional, limited inquiry we direct, it will avoid
the necessity of a trial and possible compromise of
state secrets which the government is entitled to
preserve.’’ 399 F.2d at 791.

Following the remand of the case to this Court, plaintiff
stated formally that he ‘‘seriously relies upon the inference
that the actions and statements of Juri Raus, the defendant,
against the plaintiff, were not with the approval of a
responsible official of the Agency having authority to issue
or approve such instructions’’. He requested the Court
to “‘permit plaintiff to make further inquiry into said
inference, and that additional findings be made’’.

The Court then held a preliminary conference, at which
(1) plaintiff requested that he be permitted to take the
deposition of Richard Helms, the Director of the Central
Intelligence Agency, in order to establish the factual basis
for the inference, and (2) defendant filed an affidavit of
the Director, dated February 10, 1969, together with a
motion for summary jucgment. The Court reviewed the
Helms affidavit and suggested that it might be amplified
in order to clarify certain statements therein. The defend-
ant and the government agreed to obtain another affidavit
from the Director to clarify the questions raised by the
Court. At the same hearing the Court directed plaintiff
to submit written questions, so that more careful con-
sideration could be given to them both by the Director and
by the Court.

Ga

On Mareh 19, 1969, plaintiff submitted thirty-five ques-
tions on which he wished to take the deposition of the
Director. Shortly thereafter defendant filed objections
to the proposed questions and an additional affidavit of
the Director, dated April 3, 1969, supplementing his
affidavit of February 10, 1969. The United States filed a
statement on behalf of the Director and the Central
Intelligence Agency, advising the Court that it would
await the ruling of the Court as to whether any of the
proposed questions would be allowed before determining
whether or not it would be necessary for the Director to
make an official claim of privilege on the ground of secrecy
with respect to any of the information sought to be elicited.

On June 6, 1969, a formal hearing was held on defend-
ant’s objections to the questions. After argument, and
subject to a further report from the United States as
to whether the Direetor would file a claim of privilege
against disclosure of state secrets with respect to any of
the proposed questions, and reserving ruling on any such
claim of privilege, the Court ruled: (1) that certain
questions! were within the scope of inquiry directed by
the Court of Appeals; (2) that two questions? would be
reexamined in the light of any response which the Director
might make in response to question No. 4; and (3) that
defendant’s objections to other questions* should be
sustained.

On July 16, 1969, the Court received a letter from
J. Walter Yeagley, Esq., Assistant Attorney General of
the United States, advising the Court that the United
States opposed the suggestion that a deposition upon oral
examination be taken of the Director, and that subject to

'Nos. (3), (4), (5), (9), (12), (15), (16), (17), (18), (19),
(20), (21), (22) and (29).

2Nos. (13) and (14).

$Nos. (1), (2), (6), (7), (8), (10), (11), (23), (24), (25),
(26). (27), (28), (30), (31), (32), (33), (34) and (35).

7a

the claim of privilege the Director would respond in writing
to the questions which the Court had ruled to be relevant,
material and proper under the circumstances. On
September 29, 1969, the Director responded in writing
and under oath to all of the questions allowed by the
Court. The Director made partial answers to questions
(8), (5) and (12), and with respect to each of them stated
that as Director of Central Intelligence, he determined that
‘it would be contrary to the interests of the security of
the foreign intelligence activities of the United States to
give further information’’ on the matters covered by the
questions, and formally asserted the privileged status of
such information. See footnote 4 for those questions and
answers. All other questions were answered without any
claim of privilege.

*““Question 3. You state categorically and conclusively that the
counterintelligence officer referred to in paragraph 4 of your fifth
Affidavit had a certain assigned function and was acting in accord-
ance with his prescribed duties. What was the ‘assigned fune-
tion’’ and what were the ‘‘prescribed duties’’ of the said counter-
intelligence officer with reference to the statements made by Juri
Raus against Eerik Heine?

‘‘Answer. As stated in my Affidavit of February 10, 1969, the
counterintelligence officer’s function and duties, with reference to
the statements made by Juri Raus concerning Eerik Heine, were to
safeguard the Agency’s intelligence sources developed within
Estonian emigre groups.

‘“‘As Director of Central Intelligence, I determine that it would
be contrary to the interests of the security of the foreign intelli-
gence activities of the United States to give further information as
to the assigned counterintelligence functions or the prescribed
duties of the counterintelligence officer referred to in paragraph
4 of my Affidavit of February 10, 1969, and, accordingly, pursuant
to the authority vested in me as Director of Central Intelligence,
[ formally assert the privileged status of such information and
respectfully decline to give further information in answer to
question 3.’’

‘Question 5. In paragraph 5 of your fifth Affidavit, you allege
that the entire matter was reviewed by you in December of 1964,
and then as Deputy Director with responsibility for all Agency
counterintelligence operations, you ratified and approved the action

8a

On October 17, 1969, another formal hearing was held,
at which plaintiff pressed his request to take the oral
deposition of the Director, and defendant argued that the

taken by the counterintelligence officer who instructed Juri Raus
to warn members of the Estonian emigre groups that Eerik Heine
was a Soviet Intelligence Operative, a KGB agent. What prior
authorization, iustruction and legal statutory authority did the
mentioned counterintelligence officer have for taking his stated
action prior to your subsequent ratification ?

‘*Answer. In paragraph 4 of my Affidavit of February 10, 1969,
I stated that the counterintelligence officer responsible for safe-
guarding sources of intelligence developed within Estonian emigre
groups, acting in accordance with his prescribed duties, instructed
Juri Raus to warn members of Estonian emigre groups that Eerik
tfeine was a Soviet intelligence operative, a KGB agent.

‘As Director of Central Intelligence, I determine that it would
be contrary to the interests of the security of the foreign intelli-
gence activities of the United States to give further information
eoneerning the prior authorization or instruction to the counter-
intelligence officer referred to in paragraph 5 of my Affidavit of
February 10, 1969, other than that provided in my answer to
question 3, and, accordingly, pursuant to the authority vested in
me as Director of Central Intelligence, I formally assert the
privileged status of such information and respectfully decline to
vive further information in answer to question 5.’

‘*Question 12. What was the grade and salary of the counter-
intelligence officer referred to in paragraph 4 of your fifth Affidavit
at the time he instructed Juri Raus to warn members of the
Estonian emigre groups that Eerik Heine was a Soviet Intelligence
operative, a KGB agent?

‘‘Answer. As stated in my answer to question 9, the counter-
intelligence officer in question was, at all times complained of, a
full-time staff employee of the Agency. He was paid annual com-
pensation at a rate in accordance with the Classification Act
Amendments of 1962.

‘*As Director of Central Intelligence, I determine that it would
be contrary to the interests of the security of the foreign intelli-
gence activities of the United States to give any information re-
garding the grade and salary of the counterintelligence officer in
question, and, accordingly, pursuant to the authority vested in me
as Director of Central Intelligence, I formally assert the privileged
status of such information and respectfully decline to give further
information in answer to question 12.”’

9a

answers to the written interrogatories gave all the in-
formation which could be obtained by an oral deposition,
because the three claims of privilege would have to be
sustained on oral depositions.

The Court repeatedly asked counsel for plaintiff what
information they wished to obtain in addition to that in-
cluded in the Director’s affidavits, particularly the
affidavits of February 10, 1969 and April 2, 1969, and in
his answers to those interrogatories which the Court
required him to answer. Aside from the matters on which
the Director claimed privilege, counsel for plaintiffs did
not suggest any other questions, but elected to stand on
the record. This Court, therefore, must determine
(1) whether the claims of privilege asserted by the Director
with respect to three questions were properly asserted,
and (2) whether the facts stated in the affidavits and
answers to interrogatories meet the requirements specified
by the Fourth Cireuit for the entry of a summary judg-
ment. See 399 F.2d at 791, quoted above.

The Director’s affidavit of February 10, 1969, read in
pertinent part as follows (the matter in italics in para-
graph 4 was added by the affidavit of April 2, 1969) :

‘¢3. On those occasions specified in paragraphs 5, 6
and 7 of the complaint filed in this action, as a Deputy
Director of the Agency, I was charged by the Director
of Central Intelligence, with the specific responsibility,
among others, for the conduct of the Agency’s
counterintelligence operations, the purpose of which
is to protect intelligence activities, sources and methods
against the operations of foreign intelligence services.

‘‘4. Prior to November 9, 1963, this Agency
through confidential intelligence sources available to
it received certain information concerning Eerik Heine
which was analyzed and evaluated by counter-
intelligence officers responsible to me, who reached
the conclusion that Eerik Heine was a dispatched

10a

Soviet intelligence operative, a KGB agent. In the
performance of his assigned counterintelligence func-
tion, the counterintelligence officer responsible for
safeguarding sources of intelligence developed within
Estonian emigre groups, acting in accordance with
his prescribed duties, instructed Juri Raus to warn
members of the Estonian emigre groups that Herik
Heine was a Soviet intelligence operative, a KGB
agent. The counterintelligence officer referred im the
second sentence of the said paragraph 4 was one of
the counterintelligence officers referred to in the first
sentence of that paragraph.

‘«5. After initiation of the present suit, the entire
matter was reviewed by me personally as a Deputy
Director of the Agency. In December 1964, acting
in my capacity as the said Deputy Director with
responsibility for all Agency counterintelligence opera-
tions, I ratified and approved the action taken by the
counterintelligence officer who instructed Juri Raus
to warn members of the Estonian emigre groups that
Eerik Heine was a Soviet intelligence operative, a
KGB agent. In so ratifying and approving, I acted
pursuant to the authority vested in me by the then
Director of Central Intelligence. In my present
capacity as Director of Central Intelligence, I now
affirm that appropriate authority was vested in the
said Deputy Director by the then Director of Central
Intelligence to authorize, approve, or ratify the
instructions given to Juri Raus. The several affidavits
which I have »rovided the Court in this matter, in my
capacity as the Deputy Director of Central Intelligence,
were intended as ratification and approval of said
instructions.

‘“6, Aside from identifying my participation in the
Agency decisions concerning Eerik Heine, as set forth
herein, I have determined, pursuant to my statutory
responsibilities as Director of Central Intelligence,

lla

that it would be contrary to the best interests of the
United States to disclose the identity of the counter-
intelligence officer who instructed Juri Kaus as
described in paragraph 4 hereof, since such disclosure
could either destroy his utility to the Agency or pose
a serious hazard to his safety.’’

The answers to interrogatories which the Court required
the Director to answer gave in greater detail the informa-
tion contained in the affidavits. The three questions with
respect to which the Director claimed privilege and his
answers to those questions are set out in footnote 4 above.

1. Those claims of privilege must be sustained under the
rule announced in United States v. Reynolds, 345 U.S. 1,
7-8, quoted and followed by the Fourth Circuit in section I
of its opinion in this case, 399 F.2d at 788.

2. The Director’s affidavit, quoted above, supported by
his answers to interrogatories, shows:

(a) that the imstructions to Raus were given by a
subordinate official of the Agency, authorized to do so, and
acting in the course of his prescribed duties and not by an
unauthorized underling; and

(b) that Helms, as Deputy Director of the Agency in
December, 1964, was authorized to and did ratify and
approve the action taken by the counterintelligence officer
who instructed Juri Raus to warn members of the Estonian
emigre groups that Kerik Heine was a Soviet intelligence
operative, a KGB agent.

It is unnecessary to consider whether the reiterated
approval of the instructions by Helms as the present
Director would be sufficient.

Having made the additional, limited inquiry directed by
the Fourth Circuit, this Court concludes that summary
judgment should be entered for the defendant.

Roszze C. THomsen
Chief Judge, U. 8. District Court

12a

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

Civil No. 15952
Kerik HEINE
Vv.

Juri Raus

Judgment

This action came on for further trial (hearing) before the
Court, Honorable Roszet C. THomsen, Chief Judge, United
States District Court, presiding, and the Court having made
the additional, limited inquiry directed by the Fourth
Circuit,

It is Ordered and Adjudged in accordance with the
Opinion of Court, filed on the 3rd day of November, 1969,

that summary judgment be entered in favor of the Defend-
ant, Juri Raus, against the Plaintiff, Herik Heine, for costs.

Dated at Baltimore, Maryland, this 3rd day of November,
1969.

13a
[Filed July 22, 1968]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11,195
Kerik Herne, Appellant,
versus
Juri Raus, Appellee.
Appeal from the United States District Court for

the District of Maryland, at Baltimore.

Roszeu C. Tuomsen, District Judge.

(Argued May 31,1967. Decided July 22, 1968.)

Before Haynswortn, Chief Judge, and BoremMan and
Craven, Circuit Judges.

Rosert J. Stanrorp and Ernest C. Rasxauskas for
Appellant, and

Paut R. Connotty (Williams & Connolly; E. Barrett
Prettyman, Jr., and Hogan & Hartson on brief) for
Appellee.

Haynswortu, Chief Judge:

In this slander action, the plaintiff appeals from an order
of summary judgment entered against him, on the ground
of governmental privilege, after a partial disclosure
limited by invocation by the Central Intelligence Agency
of the governmental privilege against disclosure of state
secrets. The controversy, thus partially surfaced, arose

l4a

out of the Central Intelligence Agency’s intelligence and
counterintelligence activities and its attempt to expose the
plaintiff as a Soviet KGB agent, a defamation which the
plaintiff alleges to be false.

The plaintiff, Kerik Heine, is an Estonian emigré
residing in Canada. With an apparent history as a ‘‘free-
dom fighter’? in Estonia, he was an occasional lecturer
in the United States and an exhibitor of an anti-
communist film. As such, he was known to the leaders
of Estonian emigrés in the United States and apparently
entitled to their confidence.

The defendant, Juri Raus, is also an Estonian emigre.
He resides in the United States and is the National Com-
mander of the Legion of Estonian Liberation. He readily
admits that he told the Board of Directors of the Legion
that he was reliably informed by an official agency of the
United States that Heine was a Soviet agent or col-
laborator and that the Legion should not cooperate with
him. This, the plaintiff charges, made his film and his
lecture no longer salable and brought him into disgrace in
the Estonian communities in the United States and Canada.

In his initial answer, Raus claimed only a qualified
privilege. He claimed that he had spoken, without malice,
only as an officer of the Legion and only on privileged
occasions to privileged persons. There was no indication
of any involvement of the CIA. Later, however, an
amended answer was tendered, supported by a series of
affidavits executed by the Director or Deputy Director of
the CIA, in which the absolute executive privilege was
claimed. In those documents it was alleged that Raus
was an undercover or secret agent of the CIA,’ had
executed special assignments for it in the past and acted
under the instructions of the CIA when he ‘‘warned’’ his

1 His overt employment was ix the Bureau of Public Roads in
Washington.

15a

fellow Legionnaires that Heine was a Soviet agent.
Earlier disclosure of these circ.mstances was said to
have been prevented by a CIA secrecy agreement, to which
Raus had subscribed and which purported to carry with
it punishment for violations under 18 U.S.C.A. §§ 793 and
794, including life imprisonment or death. When the first
answer was filed, counsel for the CIA had refused per-
mission to Raus to disclose his CIA connection.

Thereafter, the plaintiff sought to take Raus’ deposition
in order to obtain additional information about his em-
ployment by the CIA. The Director of the CIA, through
his General Counsel, appeared for the taking of the deposi-
tion,? and, on a question by question basis, in the presence
of the Judge, invoked the government’s privilege against
disclosure of state secrets. Raus was allowed to state that
he had been paid, directly or indirectly, for services he
had rendered the CIA, but the privilege was sustained to
prevent probing of the details of his employment.

Otherwise, it appears from affidavits of the Director of
the CIA that Raus and other Estonian emigrés in the
United States had been sources of foreign intelligence and
that the purpose of the instruction to Raus to discredit
Heine was to protect the integrity of the CIA’s sources
of foreign intelligence within Estonian emigré groups or
developed through them.

In that state of the litigation, the District Court granted
a motion for summary judgment.’ It was of the opinion
that the absolute governmental privilege was available to
a government employee such as Raus, who faithfully
executed his instructions, as to one of higher authority
exercising discretionary functions within the outer perim-

2 Earlier, in an affidavit, the Director, himself, had sought to
invoke the secrecy privilege generally as to any information in
addition to that disclosed in the affidavits.

3 Heine v. Raus, D.C. Md., 261 F. Supp. 570.

16a

eter of his authority.‘ We agree, provided the instructions
were issued by one having authority to issue them.

I

At the outset it is well to put to one side the question
of the CIA’s right to invoke the government’s privilege
of silence with respect to ‘‘state secrets.’’

‘*The privilege belongs to the Government and must be
asserted by it; it can neither be claimed nor waived by
a private party. It is not to be lightly invoked. There
must be a formal claim of privilege, lodged by the head
of the department which has control over the matter, after
actual personal consideration by that officer. The court
itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so with-
out forcing a disclosure of the very thing the privilege
is designed to protect. The latter requirement is the only
one which presents real difficulty.”’ United States v.
Reynolds, 345 U.S. 1, 7-8 (1953).

The District Court was quite correct in its allowance of
the governmental claim of the privilege of secrecy. It was
properly invoked generally by the Director of the CIA.
The Court made sufficient inquiry—some of it in camera—
to assure that it had not been done lightly, without pressing
so far as to reveal the very state secrets the privilege is
intended to protect. When the deposition of Raus was
taken, he ruled upon each question calling for information
arguably within the privilege, requiring Raus to answer
those which the Court thought would not impair the
privilege while foreclosing answers to those questions
which apparently would. In his conduct of the proceed-
ings, we think he balanced, as fairly as possible, the con-
flicting interests and was faithful to the ‘‘formula of com-
promise’’ taught by Reynolds.

* Barr v. Matteo, 360 U.S. 564; Howard v. Lyons, 360 U.S. 593.

17a

We affirm the right of the CIA in this case to invoke
the governmental privilege against disclosure of state
secrets and its allowance, to the extent it was allowed, by
the District Court.®

II

On the question of executive privilege in defamation
suits, we also agree generally with the District Court, its
analysis of Barr v. Matteo and its reasoning, though we
come to the conclusion that one more detail should have
been supplied before entry of summary judgment.

In Barr v. Matteo, it was held that the Acting Director
of the Office of Rent Stabilization was entitled to the
protection of the absolute executive privilege. Respond-
ing to congressional criticism of the agency, Barr issued
a press release aanouncing his intention to suspend two
subordinate officials and placing upon their shoulders
responsibility for the payouts under criticism. Three
justices joined Mr. Justice Harlan in the leading opinion
in which the governmental interest in having officials,
exercising discretionary authority, assured freedom to act
in the interest of the agency without fear of having to
defend actions for defamation was balanced against the
interest of the- individual plaintiffs in seeking judicial
reha’ .ation of their reputations. With reliance upon
the analysis and justification of Judge Learned Hand in
Gregorie v. Biddle, 2 Cir., 177 F.2d 579, 581, quoted also
by the District Court in its opinion in this case, preference
was given to the governmental interest. Mr. Justice
Black, emphasizing the interest of the public in being in-
formed of such matters, concurred. Mr. Justice Stewart
agreed with the analysis of the leading opinion, but dis-

5In addition to requiring Raus to answer some questions, the
District Court rejected the first affidavits of the Director of the
CIA as insufficient to support the claim of absolute governmental
privilege. As a result, additional affidavits containing additional
information were filed.

18a

sented because he thought Barr had acted to save his own
hide by diverting criticism from himself to the plaintiffs,
and not in the interest of the agency. The Chief Justice
and Justices Douglas and Brennan dissented generally on
the ground that the absolute executive privilege should be
limited to the President and cabinet officers * and, possibly,
other appointed officials directly responsible to the
President..

If ‘‘Barr v. Matteo extended the earlier decisions of this
Court to what I and others considered to be the breaking
point,’’ as Mr. Chief Justice Warren observed when dis-
senting from the denial of a writ of certiorari in Becker
v. Philco Corp., 389 U.S. 979, 980, this case is much closer
to the earlier precedents if we assume that the actor was
the Director, himself.

Unlike Mr. Barr, the Director of the CIA is appointed
by the President of the United States with the advice and
consent of the Senate. He is responsible to the President
through the National Security Council. His office is not
of Cabinet rank, but it is a highly sensitive position.
Necessarily, the Director must work in close collaboration
with the President, himself, and with such cabinet officers
as the Secretary of State and the Secretary of Defense.
He is closer by far to the White House than an acting
Director of Rent Stabilization, a subordinate official under
the Director of Eco: omie Stabilization.

In Barr v. Matteo, too, there was room for Mr. Justice
Stewart’s view that Barr acted not so much to protect
the agency from criticism as to divert the criticism from
his shoulders to those of his two subordinates. Here, in
contrast, we have no such possibility. While we cannot
penetrate the cloak of secrecy which surrounds the CIA,
there is no reason to suppose the defamation had any
relation to the Director’s personal career or his reputation

® See Spalding v. Vilas, 161 U.S. 483.

19a

or to those of his subordinates. For all that appears, it
was done entirely out of consideration of the national
interest.

The CIA and its Director are specifically charged with
the duty and responsibility of protecting sources of foreign
intelligence and methods of collecting such intelligence
from unauthorized disclosure.*’ That aliens within this
country are sources of foreign intelligence, as claimed by
the Director, has been recognized by the Congress. If the
Director determines that an alien’s entry for permanent
residence in the United States is in the interest of national
security or essential to the Agency’s intelligence mission,
the entry of the alien and his family is allowed though
they would be otherwise inadmissible.* Unlike Barr, who
acted under no direction or specific authorization to issue
press releases, action here to protect the integrity of
sources of foreign intelligence was explicitly directed by
Congress.

If it be said that the defamation here was deliberate,
and it was, it was no more deliberate than the defamation
in Barr v. Matteo, and its purpose was loftier. While the
veil of secrecy hampers our appraisal of the situation con-
fronting the CLA, enough appears to relate the defamation
to governmental interests.

The Director has sworn in his affidavits that Raus and
other Estonian emigrés in this country had been sources
of foreign intelligence and that other sources of such in-
telligence had been developed through them. Plainly
implicit in the Director’s affidavits and the testimony is
the receipt by the CIA of information, believed reliable,
that Heine was a secret Soviet agent. Such agents do not
wear the guise of their masters and if one could success-
fully infiltrate the Estonian emigré sources in this country

750 U.S.C.A. §§ 403(d) (3), 403 g.
*50 U.S.C.A. § 403 h.

20a

he could expect to discover the foreign sources of
intelligence developed through them. In such cireum-
stances, is the CIA to seek an indictment on charges it
cannot prove if the sources of its information are its own
secret agents in the Soviet Republic? Is it to sit idly by,
suffering a pollution of the reliability of its sources of
foreign intelligence and the intimidativn, arrest and per-
secution of its foreign agents? Or can it protect its sources
of information, as required by the statute, by ‘‘warning’’
its own sources that the infiltrator is, or may be, a Soviet
agent? In a sensitive area, closely touching national
defense, the latter choice seems the one demanded’ by the
national interest, notwithstanding the devastating impact
of the warning upon the one thus accused of espionage.
While the effect of the defamation upon the plaintiff here
may have been greater than the harm suffered by the
plaintiffs in Barr v. Matteo, the relation of the defamation
to the national interest is much closer.

While the claim of secrecy prevents our obtaining a clear
view of the entire scene, the Director’s sworn, but un-
documented, claims are enough to support the claim of
governmental privilege. That ought to be enough when
the statements are those of an official in so responsible an
office and a requirement of further documentation and
elaboration would violate the privilege of state secrets or
greatly burden its exercise.

Thus far, our analysis of the problem is deficient, for
we have assumed that the Director, himself, was the author
of the defamation. The present record does not show that
he was, though it is certainly inferable that the instructions
to Raus were given by one having authority from the
Director to issue them. In appraising this case in com-
parison with Barr v. Matteo, however, it has been useful
to start with the assumption that the Director, himself,
uttered the defamation, for it should follow, as of course,
that the subordinate who acts with the authorization of the

2la

superior is entitled to claim the same privilege as the
superior.

If, in defamation cases, recognition of an absolute
privilege for judges, legislators and highly placed execu-
tive officers of the government, when acting in line of duty,
is to serve its intended purpose, it must extend to
subordinate officials and employees who execute the
official’s orders. There would be little purpose to a cloak
of immunity for Mr. Barr if Mr. Matteo were allowed to
maintain an action for defamation against all of those
subordinates in his office who ‘‘published’’ the defamation
in the course of handling and distributing the press release.
There would be no advantage in protection to a judge
against actions for defamation founded upon statements
made by him in an official opinion written for his court,
if such actions could readily be maintained against his
secretary who, at his direction, typed and transmitted the
opinion, or against the clerk of the court who published
it publicly. If the circumstances impose a compelling moral
obligation upon the superior to defend and indemnify the
subordinates, immunization of the superior alone from
direct defamation actions would be a useless formalism.

Recognition of an absolute privilege of the subordinate
by attribution of the superior thus appears to be a neces-
sary corollary of the superior’s privilege. It is generally
recognized that an agent, acting within the scope of his
authority, does have whatever privilege the principal
- would have enjoyed if he had acted for himself.® The
principle is applicable in defamation actions * and, if an
authorized agent would have been privileged, subsequent
ratification confers the privilege upon an unauthorized
agent.'' Applicability of the principle to this case has

® Restatement (Second), Agency § 345 (1958).
'© Tbid. Illustration 2.
" Tbid. Comment (e).

22a

been suggested in an article generally critical of the District
Court’s decision.’”

We conclude that the absolute privilege is available to
Raus if his instructions were issued with the approval of
the Director or of a subordinate authorized by the Director,
in the subordinate’s discretion, to issue such instructions,
or if the giving of the instructions was subsequently
ratified and approved by such an official.

Though the Director’s affidavits state that Raus acted
under instructions of the CLA, which certainly strongly
implies that the instructions were given by, or with the
approval of, a responsible, authorized official of the Agency
and though the Director’s appearance in the case carries
with it a strong implication of his personal ratification
and approval, it is said that on the present record there
is still a permissible inference that the instructions were
given by an unauthorized underling and that his action
has never had the approval of a responsible official of the
Agency having authority to issue or approve such instruc-
tions. The inference seems unlikely, but we cannot say it
is foreclosed by the present record.

Since summary judgment was issued, we will vacate the
judgment so that, if the plaintiff represents to the District
Court serious reliance upon the inference, further inquiry
may be had and additional findings made. The inquiry
should be directed to the identity of the official within the
Agency who authorized or approved the instructions to
Raus. Disclosure of the identity of the individual who
dealt with Raus is not required; the answer to be sought
is whether or not the Director or a Deputy Director or a
subordinate official, having authority to do so, authorized,
approved or ratified the instructions. If such disclosures
are reasonably thought by the District Judge to violate

12 Spying and Slandering: An Absolute Privilege for the CIA
Agent? 67 Col. L.Rev. 752.

F 23a
the claimed privilege for state secrets, they may be made
in camera, to that extent. Disclosures in camera are in-
consistent with the normal rights of a plaintiff of inquiry
and cross-examination, of course, but if the two interests
cannot be reconciled, the interest of the individual litigant
must give way to the government’s privilege against dis-
closure of its secrets of state.

Finally, we may observe that while we generally approve
entry of summary judgment for the defendant, subject
only to the limited additional inquiry we direct, the plain-
tiff would fare no better if the defendant’s privilege were
held te be not absolute, but only qualified. Heine cannot
controvert the claim of Raus, supported by the CIA, that
he acted under instructions of that Agency.” Heine claims
no publication exceeding the instructions. He has no basis
for a showing of malice. If summary judgment is appro-
priate after the additional, limited inquiry we direct, it will
avoid the necessity of a trial and possible compromise of
state secrets which the government is entitled to preserve.

Vacated and remanded.

18 Here, it would matter not if the instructions were unauthorized
within the Agency as long as Raus believed them to be.

24a

CravEN, Circuit Judge, concurring and dissenting:

I agree with the court that summary judgment was im-
providently entered. In addition to the deficiency pointed
out by Chief Judge Haynsworth in the majority opinion,
I suggest there are others, especially the failure to de-
velop the scope of Raus’ duty. Indeed, it seems to me the
affidavits and meager information elicited from Raus by
deposition are merely conclusory and not at all sufficient.
to support summary judgment. I believe it error to accept
general assertions’ as a basis for summary judgment where
the opposing party is without access to information nor-
mally available to test the affidavits because of the invoca-
_ tion of the state secrets privilege. Cf. Fed. R. Civ. P. 56(f).

The court says that if executive immunity ‘‘is to serve
its intended purpose, it must extend to subordinate officials
and employees who execute the officials’ orders.’’ This
means that millions of federal employees are accorded
absolute immunity from any liability whatsoever for in-
tentional defamation either because such employees fall
within the definition of ‘‘official’’ or ‘‘officer’’ as defined in
Barr v. Matteo, 360 U.S. 564 (1959), or, like Raus, take
orders from those who do. On remand, there is to be no
further inquiry as to Raus’ ‘‘scope of duty.’’ It seems to
me the court is assuming? that the publication of defama-
tion is within his official duties, or it is holding that so
long as he did what he was told to do the privilege extends
even to conduct outside the scope of employment. I cannot

'Rule 56(e) contemplates that a sufficient affidavit shall ‘‘set
forth such facts as would be admissible in evidence.’’

2 It is true that Helms’ affidavit contains the assertion that Raus
was ‘‘acting within the scope and course of his employment”’ and
was instructed to publish the defamatory words. Without factual
averments, 7.€., job description, the statement is simply a legal
conclusion, unless one is willing to say employment is always
co-extensive with instructions of the employer.

25a

believe thai the latter is intended* and, therefore, conclude
the court must be making the assumption. But the burden
of proof is upon Raus to show that he is entitled to execu-
tive immunity, and there is no presumption to aid him.
Prosser, Torts §111 at 823 (3rd ed. 1964). Clearly, it
seems to me, he has failed to sustain his burden. That he
may have failed to do so because of (a) his secrecy agree-
ment with CIA or (b) CIA’s invocation of the executive
privilege to protect state secrets are appealing factors that
furnish no leverage for decision. Raus does not attack the
secrecy agreement if, indeed, he could do so. We are
agreed that we may not invalidate the state secrecy privi-
lege. If the result be that Raus cannot show that he acted
within the scope of his employment and is thus entitled to
a derivative privilege, it does not seem to me that the
court ought to assume what he cannot establish. To do so
is to put upon Heine a burden of proof that is not his and
which he cannot possibly sustain: to show that Raus is
not entitled to executive immunity.

The National Security Act specifically delegates to the
Director, and not to the Agency, the statutory power relied
on by the CIA and the district judge to justify the defama-
tory statements, and the affidavits do not suggest that the
Director personally instructed Raus to defame Heine, nor
is there any showing that the Director approved the defa-

3 If Raus had shot Heine, presumably no court would exonerate
him of tort liability on the ground he was told to do it—not even
for the purpose of shielding the government official who told him.
‘*When 007 plinks an enemy with a well directed projectile from
his trusty Walther PPK .32, aficionados give no thought to his
possibie legal liability; we are all aware that Bond is licensed to
kill. In the real world, however, intelligence agents often strike
not with guns but with words—allegations that destroy reputations,
families, careers. And the question of their responsibility before
the law is not nearly so settled as it is in the Fleming phantas-
magoria.’’ Comment, Spying and Slandering; An Absolute Privi-
lege for the CIA Agent?, 67 Colum. L. Rev. 752 (1967), citing
I. Fleming, Goldfinger 29 (1959).

26a

mation of Heine or properly delegated his responsibility
to protect intelligence sources.* On remand, surely a prob-
ing inquiry into this matter can be accomplished without
compelling disclosure of ‘‘state secrets.’’ I do not view the
omission as one sure to be remedied by the filing of another
conclusory affidavit.

The court today, it seems to me, extends Barr beyund its
breaking point. I would not go so far for several reasons,
one of which is the court’s concession that it is not neces-
sary to do so, and that a qualified privilege would ade-
quately protect the government employee in this case. I
agree that such a result seems likely, and I would be content
if Raus were accorded only that privilege and Heine given
the opportunity to prove, if he can, actual malice.

What distinguishes this case for me from Barr and its
progeny is the deliberate choice by the Central Intelligence
Agency of defamation of character as an instrument of
national policy. Such a factor alone seems to me to ade-
quately distinguish Barr and all other cases with which I
am familiar. I do not believe the Supreme Court in Barr
intended that the immunity there recognized should ex-
tend to intentional defamation as an instrument of govern-
mental policy. But If I am wrong about that, I suggest
that a rule must be fashioned to limit the exercise of inten-
tional defamation to responsible officers and officials. To
immunize millions of government subordinate employees
from liability for intentionally slandering private persons
upon their mere explanation that they were told to do it,
and the assertion that it was within the scope of employ-
ment, destroys, in my opinion, the balance that was struck
in Barr. If the CIA must defame someone in order to
protect national security, it seems to me it could be done
more effectively by the Director himself rather than a
secret underling—and with far less danger to a free
society.

* Helms’ affidavit of April 1, 1966, shows a broad delegation of
powers to the Deputy Director effective April 28, 1965—long after
the defamation of Heine occurred in 1963 and 1964.

initiate 0M eRe Ain te trot

27a

Justifying factors found in recent cases where absolute
executive immunity has been sustained are not present in
this case. See Spying and Slandering: An Absolute Privi-
lege for the CIA Agent? 67 Colum. L. Rev. 752, 766-68
(1967). There is here no comment which’served the inter-
est of discussion and criticism of government activity or
foreign relations. Not involved here are intra-depart-
mental confidential communications necessary to the intelli-
gent functioning of government. Nor is there any possi-
bility here of scrutiny by an alternative remedial proce-
dure in which Heine might vindicate himself or rehabilitate
his reputation.> The privileges sought by one who is not
subject—as are most federal employees—to normal public
scrutiny and sanctions for improper conduct. Since Raus
was instructed to defame Heine, it is scarcely to be sup-
posed he will be reprimanded by CIA for doing so.

Unlike Barr v. Matteo and other typical defamation
cases, there was here deliberate use of defamatory mate-
rial, said even now, after the event, to have been authorized
by an agency of government (not simply done by an ‘‘un-
worthy’’ individual employee) for the very purpose of
destroying the influence and effectiveness of an individual.
Barr was not intended to protect the oppressive use of

_ governmental power. Nor was the rule in Barr formu-

lated for the protection of the ‘‘unworthy’’ officer of
government. ‘lhe protection afforded such an officer was
given to him, not because he deserved to have it, but be-
cause of fear that if he was denied it, there might result
a deterrent effect upon honest and well intentioned officers
of government that would hamper government operation.

5 Indeed, Heine presented himself in Washington for arrest on
the theory that if he were in fact a Communist, he would be guilty
of failing to register under the Federal Foreign Agents Registra-
tion Act. 22 U.S.C.A. §§ 611-21 (1964) as amended (Supp. 1966).
Neither the FBI nor the CIA made any response. N.Y. Times,
April 28, 1966, at 29, col. 1; id., April 29, 1966, at 19, col. 1;
id., May 14, 1966, at 2, col. 3.

28a

The premise of Barr is that because of human foible offi-
cers of government may sometimes unfortunately defame
innocent individuals and that protection of such an officer
is a necessary evil in order to protect worthy officers from
the fear of private civil libel actions. Barr envisioned
defamation and possible slander as the occasional failures
of fallible human beings acting as government officers and
not as instruments of governmental policy. I think the
immunity conferred in Barr has no application to a fact
situation where defamation is chosen by a government
agency as deliberate policy. That CIA may adopt a policy
of defamation for the reason that it thinks such a policy
is in the best interest of the United States is implicit in the
silence of the Federal Tort Claim Act’ and the undoubted
power of the executive to invoke the ‘‘state secrets’’ privi-
lege in a proper case. All that I would hold is that the
individual person who publishes such defamation will not
thereafter be entitled to absolute executive immunity under
the doctrine enunciated in Barr as I understand it.

I would reverse and remand to the district court to con-
sider whether or not Raus by reason of his position in the
Estonian Legion is entitled to assert the qualified privilege
commonly granted to those who have a special interest to
preserve. See Prosser, Torts $110 (3rd ed. 1964). I
would also ask the district court to consider whether Heine
was such a public figure as to afford defendant the privi-
lege allowed under New York Times v. Sullivan, 376 US.
254 (1964), and its progeny. Surely, as the court suggests,
one or the other of these ought to be enough.

8 See Comment, 77 Yale L. J. 367, 387 (1967), where in discussing
legislative immunity under U.S. Const. art. I, §6, it is suggested
that a defamed person ought to have ‘‘redress against conduct that
no rationale for the constitutional privilege purports to justify:
the exercise of public power with intent to inflict injury on private
citizens or with reckless disregard for their interests.’’

798 U.S.C.A. § 2680(h) excludes slander and libel actions.

iN ADE Ad BAO ithe thas te tata ARS nk, hn VON

29a
[Filed December 8, 1966]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

Civil No. 15952

Herrxk Herne
v.

Jurt Ravus

Opinion of the Court

Ernest C. Raskauskas and Robert J. Stanford, of Wash-
ington, D. C., for plaintiff.

Paul R. Connolly, E. Barrett Prettyman, Jr., and Hogan
& Hartson, of Washington, D. C., for defendant.

Lawrence R. Houston, General Counsel, Central Intelli-
gence Agency, of Washington, D. C., and Thomas J. Ken-
ney, United States Attorney, of Baltimore, Maryland, for
the United States.

Thomsen, Chief Judge.

This is an action for slander in which defendant’s motion
for summary judgment asserts the defense of absolute
privilege on the ground that when he made certain defama-
tory statements he was acting within the scope and course
of his employment by the Central Intelligence Agency on
behalf of the United States, and had been instructed by the
CIA to warn members of Estonian emigre groups that
plaintiff was a dispatched Soviet intelligence operative, a
KGB agent.

Defendant’s motion for summary judgment raises a num-
ber of substantive and procedural questions. The matter
is complicated by the fact that the United States has as-
serted its privilege against disclosing state secrets.

30a

F

The complaint, filed in November 1964, alleges that
plaintiff, a citizen of Canada, has never been a Com-
munist ; that he had been active in various Estonian emigre
groups, and had earned part of his livelihood by exhibiting
a motion picture, entitled ‘‘Creators of Legend’’, which
portrays brutalities committed by the Communists in
Occupied Estonia, and by delivering lectures based on his
experiences as a prisoner in Russian prison camps and as
a guerilla fighter; that on three occasions, in November
1963, July 1964 and September 1964, respectively, defendant
defamed plaintiff by stating that ‘‘Errik Heine is a Com-
munist’’ and ‘‘Errick Heine is a KGB Agent’’, the state-
ments being understood as referring to plaintiff as a
‘‘Communist Secret Agent’’; that the statements were
untrue, were known to defendant to be untrue, were
slanderous and defamatory per se, and were made
maliciously. Plaintiff demands general and punitive
damages.

In, the original answer, filed in January 1965, defendant
stated that he was National Commander of the Legion of
Estonian Liberation, Inc. and admitted that on the three
occasions specified in the complaint he had said, in the
presence of others, that he ‘‘was in possession of respon-
sible information received by him from an official agency
of the United States Government to the effect that the
plaintiff was a Soviet agent or collaborator and on that
account should not receive the cooperation of the Legion
and its branches during the plaintiff’s tours of the United
States.’? The answer asserted that the statements were
true, and were made ‘‘only upon privileged occasions to
persons privileged to receive them, and each such state-
ment was made without express or actual malice in
furtherance of the defendant’s legitimate duties, respon-
sibilities and offices’’; that ‘‘the maintenance of the present
action by the plaintiff is contrary to the interest and
public policy of the United States’’; and that ‘‘the defend-
ant was privileged to speak of the plaintiff as he did, since
the defendant was acting as an appropriate officer of the

A Nae em alee betta A ete: a

NO Cn aes ete AR ites «a Pak

Wo 1 tibidetioren ig: Sowd

3la

Estonian Liberation movement’’. In the original answer
defendant did not raise the defense of absolute privilege,
because he was bound by a secrecy agreement’ not to

'The Secrecy Agreement, so headed, was executed in May 1963;
more than five months before the first alleged defamatory state-
ment. It reads as follows:

**1. I recognize that in connection with my confidential
relationship with the Central Intelligence Ageney (CIA) I
will become apprised of information relating to the national
defense and security and particularly information of this
nature relating to intelligence sources, methods and opera-
tions, and specifically operations, sources, methods and op-
erations, and specifically operations, sources, methods, per-
sonnel, fiscal data, or security measures. I realize that in
addition to the actual information that comes into my poses-
sion because of my relationship with CIA it will be possible
for me to deduce implications from suesh information. I un-
derstand that unlawful disclosure of this information or its
implications could seriously jeopardize the national interest
and security of the United States of America.

‘<2. I solemnly swear, without mental reservation or purpose
of evasion, and in the absence of duress, as a citizen of the
United States of America that I will never devulge, publish
or reveal, by writing, word, conduct or other means, any in-
formation or its implications of the character set forth above, .
including the fact or content of my meeting with representa-
tives of CIA, to any person unless I have been specifically au-
thorized, in writing to do so by a representative of CIA. I
understand that the term ‘any person’ includes, among others,
friends, relatives, spouses, employers or representatives of any
State or Federal Agency, excepting only CIA representatives
who have been specifically referred to me by the representa-
tives of that agency whom I have met on the occasion of sign-
ing this secrecy agreement.

‘*3. I understand that this agreement does not impose any
restriction upon me or my employer with regard to informa-
tion acquired by me or my employer in the regular conduct
of business and not as a result of my relationship with CIA.
The mere fact that such information is of interest to CIA
does not subject it to the confidential treatment prescribed by
this secrecy agreement.

‘‘4. I fully realize that intention or negligent violation of
this secrecy agreement may subject me to prosecution under
the Espionage Laws of the United States of America (18 USC
sec. 793 and 794).’’

Ree ra ae

32a

divulge such information unless specifically authorized to
do so by a representative of the CIA, and because his
counsel had been instructed by counsel for the CIA not to
raise that defense.

In February 1965 defendant took plaintiff’s deposition.
In November 1965 plaintiff served on defendant 424 inter-
rogatories, which defendant moved to strike on two
grounds: (1) that their number was oppressive, and (2)
that many of them inquired of privileged matter. See
Rules 26(b) and 33, F. R. Civ. P. At the same time
defendant filed a motion for summary judgment, based
upon an affidavit of Richard Helms, then Deputy Director
of Central Intelligence, that when defendant spoke con-
cerning plaintiff on the occasion referred to in the com-
plaint he was in possession of information furnished him
by the CIA and was acting within the scope and course
of his employment by that agency on behalf of the United
States.

At a hearing on the motion and the exceptions then
pending, the Court ruled: that defondant’s original answer

did not set up the defense of absolute privilege, but that.

leave should be granted him to file un amended answer
asserting that defense;? that defendant should not be

* Plaintiff contends that defendant waived or is estopped to
assert the defense in this case because he did not raise it in his
original answer, and took the deposition of plaintiff on the merits.
Plaintiff therefore moved the Court to strike defendant’s motion
to amend his answer and assert the defense. Plaintiff’s motion was
overruled, and the Court adheres to its ruling, because it is
quite clear from the testimony of defendant’s counsel that de-
fendant was refused permission by the CIA to raise the defense
in his original answers, and that he was bound by his secrecy
agreement, set out in note 1, above. The agency’s reluctance to
identify an employee’s covert actvity is understandable; moreover,
the delay of the CIA in granting permission to assert the defense
should not be charged to defendant. Under the circumstances
shown by the record there was no undue delay, bad faith or
dilatory action chargeable to defendant, and no such prejudice to
plaintiff as would prevent the allowance of the amendment. See
Rule 15, F.R.Civ.P.

33a

required to answer the 424 interrogatories, but that plain-
tiff should be allowed discovery, so far as permitted by
law, on the issue of absolute privilege claimed by defend-
ant; that a more detailed affidavit should be filed by the
Deputy Director of Central Intelligence, or plaintiff should
; be allowed to proceed with reasonable discovery from him;
and that if the Government wished to assert a privilege
against disclosing state secrets, the United States Attorney
should be present and such privilege should be formally
asserted.

Thereafter a much more detailed affidavit by Helms,
dated April 1, 1966, was filed. After stating his authority
and familiarity with the facts the Deputy Director stated:

i ‘‘4. During the periods of time specified in para-
graphs 5, 6, and 7 of the complaint, the defendant,
Juri Raus, was employed as a highway research
engineer. for the Office of Research and Development,
Bureau of Public Roads, United States Department of
Commerce.

‘5. During the same periods of time, the defendant
was the National Commander of the Legion of Estonian
| Liberation, Inc., and was familiar with Estonian emigre
| activities.

‘‘6. For a number of reasons, including his past his-
tory and his position as National Commander of the
Legion of Estonian Liberation, the defendant has been
a source to this Agency of foreign intelligence infor-
mation pertaining inter alia to Soviet Estonia and to

Estonian emigre activities in foreign countries as well
as in the United States.

‘‘7, The Central Intelligence Agency has employed
the defendant from time to time—concurrently with his
duties on behalf of the Bureau of Public Roads—to
carry out specific assignments on behalf of the Agency.
Defendant was so employed on those occasions speci-
fied in paragraphs 5, 6, and 7 of the complaint.

ee ge ae nee. a ene Oe

q

:

.
.
SAENGER IIFML NLA LAIN TEE SIGE OA r 5 a = I Di ea ls =
7” “— ie a e. _ ae 5 al
a a * fl de

34a

‘*8. On the occasions specified in paragraphs 5, 6,
and 7 of the complaint, the defendant was furnished
information concerning the plaintiff by the Central
Intelligence Agency and was instructed to disseminate
such information to members of the Legion so as to
protect the integrity of the Agency’s foreign intelli-
gence sources. Accordingly, when Juri Raus spoke
concerning the plaintiff on the occasions about which
complaint is made, he was acting within the scope and
course of his employment by the Agency on behalf of
the United States.

‘“9. On May 29, 1963, prior to the occasions specified
in paragraphs 5, 6, and 7 of the complaint, the defend-
ant signed a Secrecy Agreement with the Agency, a
copy of which is attached, which Agreement is still in
full force and effect.

‘¢10. After a personal review of the Agency’s activi-
ties pertaining to Eerik Heine, I have reached the judg-
ment on behalf of the Agency that it would be contrary
to the security interests of the United States for any
further information pertaining to the use and employ-
ment of Juri Raus by the Agency in connection with
Eerik Heine to be disclosed, other than the disclosures
already made in the defendant’s answer, in my own
affidavits, and the defendant’s affidavits, which I have
read.

‘611, Acting pursuant to the authority lodged in the
Director of Central Intelligence by virtue of the pro-
visions of Title 50, United States Code, Sections 403d
and 403g, and the implementing Regulations promul-
gated thereunder, I have determined that it would be
contrary to the national interest and would further
compromise the proper protection of intelligence
sources and methods to disclose further information
in regard to those material matters which the plaintiff
has sought to have revealed through !:is pleadings. I

LT eee ee ee Eee

. PPO GEE FLOP PILI ELE DL AOS ER IERIE LLG SEY FLAT OIE

2 TET SN

35a

am herewith directing Juri Raus to make no further
disclosures concerning his employment by the Agency
or relating to this matter without specific authorization
by proper officials of the Central Intelligence Agency.”’ .

ee es vs te

Counsel for plaintiff still objected that the affidavit was
not sufficiently specific and two clarifying affidavits by
Helms were thereafter filed. The second such affidavit
stated :

‘1, In Paragraph 2 of my Affidavit dated April 22,
1966, which I executed as Deputy Director of Central
Intelligence, I stated in part: ‘The defendant was in-
structed to warn members of Estonian emigre groups
that Eerik Heine was a dispatched Soviet intelligence
operative, a KGB agent.’

- 2

‘‘9. The context of that statement means, I intended
by that statement to convey, and I now so state: The
defendant, Juri Raus, was instructed by the Central
Intelligence Agency to warn members of Estonian
emigre groups that Eerik Heine was a dispatched
Soviet intelligence operative, a KGB agent.”’

At a hearing on April 14, the Court had suggested that
plaintiff might take the deposition of defendant or someone
from the CIA or both, at a hearing with the Judge present,
so that the Government’s privilege might be claimed on a
question by question basis, and immediate rulings obtained.

Vibrate no wnOhemneee NO ek eu Kee

Such a hearing was held on April 28. At the beginning
of that hearing a formal claim of privilege on behalf of the
United States, made by Admiral W. F. Raborn, Director of
Central Intelligence, was presented to the Court by Law-
rence R. Houston, General Counsel of the CIA, and by
Thomas J. Kenney, United States Attorney. The deposi-
tion of defendant was taken before the court; many of the
objections asserted by counsel for the Government or by
counsel for defendant on instructions from the General

4
je i. AERO ELE OF EBL LOL ILLES WILLE LLY LOLI PPT PP ee ae — - - — -

36a

Counsel of the CIA were sustained by the Court in view of
the rules stated in United States v. Reynolds, 345 U.S. 1
(1953), but defendant’s multiple employment by the Gov-
ernment was clarified.

Argument on defendant’s motion for summary judgment
was heard on May 13, and again on September 28, after the
record had been supplemented by several letters and docu-
ments and final briefs had been filed by both sides.

I.

Defendant relies upon the defense of absolute privilege—
that he had been instructed by the CIA to warn members
of Estonian emigre groups that Eerik Heine was a dis-
patched Soviet intelligence operative, a KGB agent, and
that when he made the statements alleged to be defamatory
he was acting within the scope of his employment by an
agency of the United States. Such an absolute privilege
was recognized and sustained by the Supreme Court in
Barr v. Matieo, 360 U.S. 564 (1959), and in Howard v.
Lyons, 360 U.S. 593 (1959), following Spalding v. Vilas,
161 U.S. 483 (1896), and Yaselli v. Goff, 2 Cir., 12 F.2d 396
(1926), aff’d per curiam 275 U.S. 503 (1927).* It was rec-
ognized in Garrison v. Louisiana, 379 U.S. 64, 74 (1964),
in a dictum by a justice who had dissented in Barr v. Matteo
and Howard v. Lyons. The privilege has been repeatedly
and recently recognized and sustained by the Courts of Ap-
peals of many circuits. See e.g.; Preble v. Johnson, 10 Cir.,
275 F.2d 275 (1960) ; Sauber v. Gliedman, 7 Cir., 283 F.2d
941 (1960, cert. den. 366 U.S. 906 (1961) ; Ove Gustavsson
Contracting Co. v. Ploete, 2 Cir., 299 F.2d 655 (1962), cert.
den. 374 U.S. 827 (1963); Poss v. Licherman, 2 Cir., 299
F.2d 358, cert. den. 370 U.S. 944 (1962) ; Brownfield v. Lan-

* The validity of the ‘‘claim of absolute privilege is governed by
federal standards, to be formulated by the Courts in the absence of
legislative action by Congress.’’ Howard v. Lyons, 360 U.S. 593,
597 (1959).

37a

don, 113 U.S. App. D.C. 248, 307 F.2d 389, cert. den. 371
U.S. 924 (1962); Wozencraft v. Captiva, 5 Cir., 314 F.2d
288 (1963); Denman v. White, 1 Cir., 316 F.2d 524 (1963) ;
Waymire v. Deneve, 5 Cir., 333 F.2d 149 (1964) ; Chafin v. .
Pratt, 5 Cir., 359 F.2d 349 (1966). See also DeLevay v.
Richmond County School Board, 4 Cir., 284 F.2d 340 (1960) ;
Holmes v. Eddy, 4 Cir., 341 F.2d 477 (1965).

The reasons for the privilege were stated by Mr. Justice
Harlan in Barr v. Matteo, 360 U.S. at 571, 572, as follows:

‘¢ * * * Tt has been thought important that officials
of government should be free to exercise their duties
unembarrassed by the fear of damage suits in respect
of acts done in the course of those duties—suits which
would consume time and energies which would other-
wise be devoted to governmental service and the threat
of which might appreciably inhibit the fearless, vigor-
ous, and effective administration of policies of govern-
ment. The matter has been admirably expressed by
Judge Learned Hand:

‘¢ <Tt does indeed go without saying that an official
who is in fact guilty of using his powers to vent his
spleen upon others, or for any other personal motive
not connected with the public good, should not escape
liability for the injuries he may so cause; and, if it
were possible in practice to confine sych complaints to
the guilty, it would be monstrous to deny recovery.
The justification for doing so is that it is impossible to
know whether the claim is well founded until the case
has been tried, and that to submit all officials, the inno-
cent as well as the guilty, to the burden of a trial and
to the inevitable danger of its outcome, would dampen
the ardor of all but the most resolute, or the most irre-
sponsible, in the unflinching discharge of their duties.
Again and again the public interest calls for action
which may turn out to be founded on a mistake, in the
face of which an official may later find himself hard

38a

put to it to satisfy a jury of his good faith. There
must indeed be means of punishing public officers who
have been truant to their duties; but that is quite an-
other matter from exposing such as have been honestly
mistaken to suit by anyone who has suffered from their
errors. As is so often the case, the answer must be
found in a balance between the evils inevitable in either
alternative. In this instance it has been thought in the
end better to leave unredressed the wrongs done by
dishonest officers than to subject those who try to do
their duty to the constant dread of retaliation. ...

‘¢ «The decisions have, indeed, always imposed as a
limitation upon the immunity that the official’s act
must have been within the scope of his powers’ and
it can be argued that official powers, since they exist
only for the public good, never cover occasions where
the public good is not their aim, and hence that to
exercise a power dishonestly is necessarily to overstep
its bounds. A moment’s reflection shows, however,
that that cannot be the meaning of the limitation with-
out defeating the whole doctrine. What is meant by
saying that the officer must be acting within his power
cannot be more than that the occasion must be such
as would have justified the act, if he had been using
his power for any of the purposes on whose account
it was vested in him... .’ Gregoire v. Biddle, 177
F.2d 579, 581.’’

While recognizing the rule, as stated and applied in

Barr v. Matteo, supra, counsel for plaintiff contend that
defendant cannot assert the privilege for a number of
reasons.

First, plaintiff contends the priviiege does not apply

to employees who exercise no discretion, as distinguished
from officers or officials of the Government. This argu-
ment is not supported by reason or authority. In Way-
mire v. Deneve, 5 Cir., 333 F.2d 149 (1964), the privi-

a a al awe

39a

lege was accorded to an agent of the Customs Bureau of
the United States Treasury Department, and Wigmore on
Evidence (McNaughton Revision, 1961), Vol. 8, § 2368,
states: ‘‘A subordinate or ministerial official—i.e., one
who acts under the orders of a superior official—is abso- —
lutely exempt from liability of the harm done by him is
done solely in implicit obedience to an order lawful upon
its face.’’

In Barr v. Matteo the question was whether the priv-
ilege should be accorded to an official who exercised some
discretion, but was below cabinet rank. Mr. J ustice Harlan
said:

‘‘We do not think that the principle announced in
Vilas [161 U.S. 483] can properly be restricted to exe-
cutive officers of cabinet rank, and in fact it never has
been so restricted by the lower federal courts. The
privilege is not a badge or emolument of exalted office,
but an expression of a policy designed to aid in the
effective functioning of government. The complexities
and magnitude of governmental activity have become
so great that there must of necessity be a delegation
and redelegation of authority as to many functions, and
we cannot say that these functions become less im-
portant simply because they are exercised by officers
of lower rank in the executive hierarchy.’’ 360 U.S.
572, 573.

Later he said:

‘© * * * That petitioner was not required by law
or by direction of his superiors to speak out can-
not be controlling in the case of an official of policy-
making rank, for the same considerations which un-
derlie the recognition of the privilege as to acts done
in connection with a mandatory duty apply with equal
force to discretionary acts at those levels of govern-
ment where the concept of duty encompasses the sound
exercise of discretionary authority.’’ 360 U.S. 575.

40a

These principles apply with even greater force to an em-
ployee who is acting under orders and has a duty to carry
them out.

The test for determining the scope of the privilege, as
stated in Barr v. Matteo, 360 U.S. at 575, is whether the
action taken was within the outer perimeter of the defend-
ant’s line of duty.

Plaintiff contends that the test is not met in this case;
that the statements made by defendant ‘‘were actions be-
yond the statutory power of the CIA’’, because 50 U.S.C.A.
403(d)(3) provides ‘‘that the Agency shall have no * * *
internal security functions’’. He argues that departments
and agencies other than the CIA, such as the Subversive
Activities Controi Board and the Federal Bureau of In-
vestigation, must deal with security matters arising with-
in the borders of the United States. It is clear, however,
that one of the functions entrusted to the Central In-
telligence Agency and its Director is ‘*protecting intelli-
gence sources and methods from unauthorized disclosure’’.
50 U.S.C.A. 403(d)(3). In his affidavit of April 1, 1966,
quoted at length above, Helms stated that Raus was fur-
nished information concerning the plaintiff by the CIA
‘fand was instructed to disseminate such information
to members of the Legion so as to protect the integrity
of the Agency’s foreign intelligence sources’’. In his
final affidavit, also quoted above, Helms stated that de-
fendant ‘‘was instructed by the Central Intelligence Agency
to warn members of Estonian emigre groups that Kerik
Heine was a dispatched Soviet intelligence operative, a
KGB agent’’.

It is reasonable that emigre groups from nations behind
the Iron Curtain would be a valuable source of intelligence
information as to what goes on in their old homeland.
The fact that the immediate intelligence source is located
in the United States does not make it an ‘‘internal se-
curity function’’, over which the CIA has no authority.

Picsicersinsiicsinits eels Rivas Cll a oti ens)

ee een ee oe eee wee eee

a aS iekindncncesielll

4la

The Court concludes that activities by the CIA to protect
its foreign intelligence sources located in the United States
are within the power granted by Congress to the CIA.*

Til.

Plaintiff next argues that the motion for summary judg-
ment should be denied on ihe ground that there is a genuine
issue as to a material fact, namely, whether defendant was
employed by the CIA and, if so, whether the statements
which he made were in accordance with his instructions
or went beyond his instructions. Since the amendment to
Rule 56(e), F.R. Civ. P., effective July 1, 1963, it is now
beyond dispute that ‘‘When a motion for summary judg-
ment is made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations or
denials of his pleading, but his response, by affidavits or

4 At the hearing on May 13 the Court requested the General
Counsel of the CIA to submit a statement as to the legal authority
of the CIA to engage in activities within the United States with
respect to foreign intelligence sources. In response to that request,
the General Counsel prepared an affidavit which incorporates by
reference particular paragraphs of a document which is classified
‘‘seeret’’ and which cannot be declassified for the purposes of this
ease. For that reason, the General Counsel requested the Depart-
ment of Justice to submit to tt: Court under seal, for in camera
inspection, the identification of the document and the two perti-
nent paragraphs, properly certified. The Agency stated that it
did not object to the Court making the classified excerpts available
to the attorneys for plaintiff and defendant respectively for inspec-
tion but not for copying, and stated that any of the attorneys would
be granted access, upon request, to the two pertinent excerpts at the
office of the General Counsel, with the understanding that the attor-
neys would not disclose the excerpts thus made available to them.
The attorneys for plaintiff refused to examine the excerpts under
those conditions, stating that they would not look at anything they
could not communicate to their client. The Court has examined
the papers in camera; they are not inconsistent with the affidavits
of Helms, but the Court has not considered the classified excerpts
in reaching its decision herein.

42a

as otherwise provided in this rule, must set forth specific
facts showing that there is a genuine issue for trial. If
he does not so respond, summary judgment, if appropri-
ate, shall be entered against him.’’ That was always the
rule in the Fourth Circuit. Bond Distributing Co. v. Carl-
ing Brewing Company, D. Md., 32 F.R.D. 409, aff’d. 4 Cir.,
325 F.2d 158 (1963). Upon examination, the viaimed con- '
flicts in the affidavits and depositions do not materially af-
fect the facts upon which the defense of absolute privilege
is based. The most important conflict claimed by plain-
tiff is whether defendant was employed by the Bureau of
Public Roads or by the CIA. However, it appears quite
plainly from paragraphs 4, 6, 7 and 8 of the second affi-
davit of Helms, quoted above, and from the deposition of
defendant, that he was employed both by the Bureau of
Public Roads and by the CIA, for different purposes, and
that he was acting in the course of his employment by the
CIA when he made the statements in question. Plaintiff
does not dispute that defendant was employed by the
United States.®

There is more force in plaintiff’s argument that he has
been prevented from discovering possibly conflicting evi-
dence by the Government’s assertion of its privilege not
to disclose the operations of the CIA. The Court has
been anxious that plaintiff should have the opportunity to
discover whatever facts he is legally entitled to discover
under the rules stated in United States v. Reynolds, 345
U.S. 1 (1953), and has accorded plaintiff that opportunity,

5 Plaintiff contends that some of the statements in Helms’ affi-
davits are conclusions rather than facts. No doubt some of the
statements are conclusions, but the facts contained in the affidavits
support the conclusions, which are further supported by the
deposition of the defendant taken in open court and the exhibits
which have been filed. The conclusions are not contradicted by
any evidence or other material before the Court except the bare
allegations of plaintiff’s complaint, which are not snfficient to
overcome the facts contained in the affidavits and other evidence.
Rule 56(e).

43a

through the deposition of defendant taken in open court,
and by requiring such clarification and amplification of
the original affidavits made by Helms as the Agency deter-
mined were consistent with the security interests com-
mitted to its care. .

Deputy Director Helms, in his affidavit of April 1, 1966,
stated ‘‘that it would be contrary to the security interests
of the United States for any further information pertain-
ing to the use and employment of Juri Raus by the
Agency in connection with Kerik Heine to be disclosed,
other than the disclosures already made in the defendant’s
answer, in my own affidavits, and the defendant’s affi-
ae

It is clear, thereiore, that if Raus makes further dis-
closures without the approval of the Agency, he would
not only violate the secrecy agreement, see note 1, above,
but might also violate the statute prohibiting unlawful
disclosure of confidential information respecting the na-
tional defense. See 18 U.S.C.A. 793, 794, 798 and 1905.

The privilege of the Government which was recognized
and sustained in Reynolds is reenforced in this case by
the provisions of the applicable statutes. 50 U.S.C.A.
403(d)(3) provides, in pertinent part:

‘‘The Director of Central Intelligence shall be re-
sponsible for protecting intelligence sources and meth-
ods from unauthorized disclosure.”’

In conjunction with this provision, 50 U.S.C.A. 403g
provides:

‘Tn the interests of the security of the foreign in-
telligence activities of the United States and in order
further to implement the proviso of section 403(d) (3)
of this title that the Director of Central Intelligence
shall be responsible for protecting intelligence sources
and methods from unauthorized disclosure, the Agency
shall be exempted from the provisions of section 654
of Title 5, and the provisions of any other law which

44a

require the publication or disclosure of the organiza-
tion, functions, names, official titles, salaries, or num-
bers of personnel employed by the Agency * * *”’

See also Executive Order No. 10501, 18 F.R. 7049 (1953),
as amended by Executive Order No. 10816, 24 F.R. 3777
(1959), set out after 50 U.S.C. 401 (Cum. Supp. 1965).

Plaintiff argues that the affidavits and testimony in sup-
port of the motion for summary judgment do not pre-
sent admissible evidence because they were not subject
to cross-examination and were not based on personal know]l-
edge. The deposition of defendant, taken by counsel for
plaintiff in open court, was itself cross-examination, and
was permitted to the full extent authorized by United States
v. Reynolds. Such testimony as he was allowed to give
was based on his personal knowledge.

The affidavits with respect to the instructions given de-
fendant were made by Helms, then Deputy Director of
Central Intelligence, rather than by the person who gave
defendant the instructions. The decision not to disclose
the name of that person was made by the appropriate of-
ficial of the CIA, in the exercise of the authority granted
him by the applicable statutes and executive orders. That
such disclosure might be damaging to the intelligence
sources and methods of the Agency was asserted by Helms
in paragraphs 10 and 11 of his affidavit, and by Admiral
Raborn, then Director of Central Intelligence, in the Claim
of Privilege which he filed on behalf of the United States.

It cannot be denied that the combination of (1) the priv-
ilege against liability for defamation asserted by defend-
ant and (2) the privilege against discovery of the secrets
of the CIA asserted by the Government places plaintiff
in a very difficult position. But the fact that the two priv-
ileges operate in concert in the instant case does not af-
fect their validity.

The provisions of Rule 56(e), F. R. Civ. P., requiring
affidavits to be made on personal knowledge and to set

45a

forth facts which would be admissible in evidence, must
be read in connection With the applicable statutes and ex-
ecutive order, particularly 50 U.S.C.A. 403(d) (3) and 403g
quoted and discussed above in this section of the opinion.
To require that the affidavit be signed by the person who
personally instructed Raus would force the CIA to reveal
the names of one or more of its personnel in contravention
of section 403g, quoted above.

A trial would not resolve the question of the truth or
falsity of the charges, because the Court would still be
required to recognize the privilege asserted by the United
States. There is no reason to believe that the Agency’s
position will be altered by any further attempts at dis-
covery by plaintiff. The dilemma which would be pre-
sented at the trial would be the some dilemma which is
presented now—whether the fact that defendant is pre-
cluded from testifying to facts and from calling witnesses
who might establish the truth of the alleged defamatory
remarks (a) should require defendant to stand weapon-
less before his adversary, or (b) should deny plaintiff the
opportunity to attempt to vindicate himself in court.* No
way to avoid choosing between two evils has been sug-
gested or discovered. The choice is dictated by the pass-
age from Judge Learned Hand s opinion in Gregoire v.
Biddle, 177 P.2d 579, 581, which is set out in full in sec-
tion II of this opinion. The principles so clearly stated by
Judge Hand and applied by the Supreme Court in Barr v.
Matteo and Howard v. Lyons, require that summary judg-
ment be entered for defendant herein.

/s/ Roszel C. Thomsen
Chief Judge, U.S. District Court

Plaintiff has embraced the opportunity to bring his case to the
attention of the public by elaborate statements to the press in this
country and in Canada. The propriety of the way the CIA op-
erates has been canvassed in a series of articles in the New \ ork
Times and other leading newspapers, and has been investigated
by the Congress during the past months.

46a

APPENDIX B
(1) Rule 56(e), F.R.C.P.

‘‘(e) Form of Affidavits; Further Testimony; Defense
Required. Supported and opposing affidavits shall be made
on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated
therein. Sworn or certified copies of all papers or parts
thereof referred to in an affidavit shall be attached thereto
or served therewith. The court may permit affidavits to
be supplemented or opposed by depositions, answers to
interrogatories, or further affidavits. When a motion for
summary judgment is made and supported as provided in
this rule, an adverse party may not rest upon the mere
allegations or denials of his pleading, but his response,
by affidavits or as otherwise provided in this rule, must
set forth specific facts shuwing that there is a genuine
issue for trial. If he does not so respond, summary judg-
ment, if appropriate, shall be entered against him. As
amended Jan. 21, 1963, eff. July 1, 1963.”’

Rule 56(f), F.R.C.P.

‘©(f) When Affidavits are Unavailable. Should it appear
from the affidavits of a party opposing the motion that
he cannot for reasons stated present by affidavit facts
essential to justify his opposition, the court may refuse
the application for judgment or may order a continuance
to permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other order
as is just.’’

(2) 50 U.S.C. § 403(d) (3)

‘‘§ 403. Central Intelligence Agency—(a) Establish-
ment; Director; appointment and compensation

There is established under the National Security Council
a Central Intelligence Agency with a Director of Central

47a

Intelligence, who shall be the head thereof. The Director
shall be appointed by the President, by and with the ad-
vice and consent of the Senate, from among the commis-
sioned officers of the armed services or from among in-
dividuals in civilian life. The Director shall receive basic
compensation at the rate of $16,000 per annum.

Powers and duties

(d) For the purpose of coordinating the intelligence ac-
tivities of the several Government departments and
agencies in the interest of national security, it shall be
the duty of the Agency, under the direction of the Na-
tional Security Council—

. . . (3) to correlate and evaluate intelligence relating
to the national security, and provide for the appropriate
dissemination of suc

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0615%3A1. Public record. Not legal advice.