Brief for the Respondent in Opposition — Heine v. Raus

LIBRARY

SUPREME COURT, U. S.

IN THE

Supreme Court of the United States

OcToBER TERM, 1970

No. 1281

Eerrk Here, Petitioner,

v.

JuRI Ravus, Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Pav. R. CoNNOLLY

Steven M. UmMIn

WILLiaMs & CONNOLLY

1000 Hill Building

Washington, D.C. 20006

E. Barrett PRETTYMAN, JR.

Hogan & Harrson

815 Connecticut Avenue

Washington, D.C. 20006

Counsel for Respondent

Press or Brron S. ApaMs PrrIntTING, Inc., WasHIncton, D. C.

SS,

TABLE OF CONTENTS

Page

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Bo ee POPE rT Peer rere fr gr yt. taree 1

oO ag rer m Tre st Tru as 2

| errr errr rrr es tere 2

I A PN oc oxic cca be acuevne eeeas oie 2

SUG TO Te Ce WS van hk ec eee ees 8

COE 55k 6 ks eee ede baleen 20

TABLE OF AUTHORITIES

CASES:

Barr v. Matteo, 360 U.S. 564 (1959) ..... 5, 10, 11, 12, 14, 17

Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) ...... 10, 13

Howard v. Lyons, 360 U.S. 593 (1959) .......... 10, 11, 18

Spalding v. Vilas, 161 U.S. 483 (1896) ............... 10

Sutton v. Johnstone, 1 T.R. 493 (1786) ........... eee

United States v. Reynolds, 345 U.S. 1 (1953) ..7, 15, 16, 17

STaTUTES AND RULEs:

OO UBC. COMUIG) . 6.5. ok sc sevccsssdcsnivaas 8,9,17

ORG, i ro ai ee 7, 9,17

6 USC. A, MOA). «cee 8

Rule 56(e), Fed. R. Civ. P. ......... 0. ccc ee eee 7, 17, 18, 19

Rule 56(f), Fed. R. Civ. P. ........ccccecccceccccees 7,18

Mais S60), ed. BE Be oso sonics ccaccccicwess 7,17

a Os, Wek B®. ois vicesendeciocaae 17

MISCELLANEOUS AUTHORITIES:

8 Wigmore, Evidence, § 2368 .............ceccccees 14

Oe

vse. nos-sb cecbicerdaek ancl So eae cele ten ek ka ck a kn i ————

IN THE

Supreme Court of the United States

OctToserR TERM, 1970

No. 1281

EErIK Hepes, Petitioner,

v.

Juri Raus, Respondent.

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The citations to the opinions below are presented in

the Petition.

JURISDICTION

The Petition for a Writ of Certiorari was timely

filed on January 28, 1971. By order of February 8,

1971, Mr. Chief Justice Warren E. Burger extended

the time for filing this response to and including

March 30, 1971. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

2

QUESTIONS PRESENTED

1. Does the statutory proviso prohibiting the CIA

from exercising ‘‘internal-security functions,’”’ 50

U.S.C. § 403(d) (3), bar the Agency from protecting

its sources of foreign intelligence located in this coun-

try?

2. Does the governmental immunity from defama-

tion liability recognized in Barr v. Matteo, 360 U.S.

564 (1959) and Howard v. Lyons, 360 U.S. 593 (1959)

extend to a CIA agent carrying out orders of an au-

thorized superior to warn sources of foreign intelli-

gence of the presence of a Soviet agent?

3. Was petitioner denied a fair opportunity to test

whether the agent issuing the warning was in fact a

CIA employee acting under orders?

STATUTES AND RULES INVOLVED

The statutes and rules involved are reprinted in the

Appendix to this Brief. They are:

United States Code

Title 50, §§ 403(d) (3), 403g .. ......----- la, 2a

Title 28, §§ 2674, 2680(h) ..............-- 2a, 3a

Federal Rules of Civil Procedure

Rule 56(e), (£) (1963) .........--eeeeeeee 4a

ob Ee | nee 3a

ee ee | Dear nae 3a, 4a

STATEMENT OF FACTS

Petitioner Eerik Heine, a Canadian citizen of Ks-

tonian background, brought a slander action against

Juri Raus, a United States citizen, also of Estonian

background (J.A. 19). Raus was the national com-

3

mander of an Estonian patriotic organization known

as the ‘‘Legion of Estonian Liberation, Inc.” (J.A.

181).

Heine portrayed himself as a vigorous anti-com-

munist who had suffered much at the hands of the

Russians for his guerrilla exploits in Soviet-occupied

Estonia. He earned part of his livelihood by lecturing

to Estonian emigre groups in the United States and

Canada and exhibiting to them a motion picture al-

legedly based upon his exploits (J.A. 19-20).

Raus, by reason of his position in the Estonian

liberation movement and his acquaintances among Es-

tonian emigre groups, had from time to time been em-

ployed * by the Central Intelligence Agency (herein-

after ‘“‘CIA’’) as a source of intelligence pertaining

to Soviet Estonia and the activities of his compatriots

in other countries (J.A. 181).

Counterintelligence officers of the CLA had received

information through ‘‘confidential intelligence sources’’

from which they concluded that Heine was ‘“‘a dis-

patched Soviet intelligence operative, a KGB agent.”’

(R.J.A. 11).? In accord with his prescribed duties,

one of these officers, in the course of a series of con-

ferences, instructed Raus to warn certain members

of the Estonian emigre community that Heine was a

Soviet intelligence agent (J.A. 225; 285-6; R.J.A. 11,

23).

? Raus’ overt employment was as research engineer in the Bureau

of Public Roads. For his Central Intelligence Agency employ-

ment, he was paid ‘‘directly or indirectly’’ by the Central Intelli-

gence Agency (J.A. 264).

' ?RJ.A. refers to the Joint Appendix in the second appeal, fol-

lowing remand.

BP ARI NR MySte tn 8s

£

Thereafter, Raus, on November 9, 1963, at a meet-

ing in New York of the Board of the Legion of Ks-

tonian Liberation, stated to the Board members that

‘‘Rerik Heine is a KGB agent’’ (J.A. 20, 24, 274-5).

On two other. occasions, he made substantially the

same statement to August Kuklane, an officer of the

Baltimore branch of the Legion (J.A. 24, 130).

When Raus was sued, he filed an answer in which

he stated that when he spoke of Heine ‘‘he was in pos-

session of responsible information received by him

from an official agency of the United States Govern-

ment to the effect that the plaintiff [Heine] 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.’? (J.A. 24)

Subsequently, Raus filed an amended answer in

which he stated:

On those occasions specified in paragraphs 5, 6,

and 7 of the complaint, the defendant was in pos-

session of information furnished to him. by the

Central Intelligence Agency, and when he spoke |

concerning the plaintiff on such occasions he was

acting within the scope and course of his employ-

ment by the Agency on behalf of the United

States. Accordingly, the statements made by him

on such occasions were absolutely privileged.

[J.A. 169] *

Raus then sought to establish that when he acted

on the occasions leading to the charge of slander, he

$The record discloses that the CIA at first would not permit

Raus to disclose his relationship to the Agency (J.A. 3). He

could not do it unilaterally by reason of a Secrecy Agreement he

had signed (J.A. 3). Subsequently, the CIA changed its position

and permitted Raus to disclose his true role (J.A. 4-5; 165-69).

4)

was an employee of the CIA discharging his duties.

Relying upon the absolute privilege accorded federal

employees under Barr v. Matteo, 360 U.S. 564 (1959),

he filed a motion for summary judgment supported

by an affidavit of Richard Helms, then Deputy Director

of Central Intelligence. The affidavit affirmed that

Raus, in speaking of Heine as charged, ‘‘was acting

within the scope and course of his employment by the

Agency on behalf of the United States’’ (J.A. 107-8).

That affidavit, at the behest of the Courts below,‘

was subsequently amplified in five other affidavits

from Mr. Helms to provide additional detail (J.A.

107, 180, 225, 367; R.J.A. 11, 12). The most expansive

of these stated that:

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 Inte"igence,

with the specific responsibility, among ot: ers, for

the conduct of the Agency’s counterintelligence

operations, the purpose of which is to protect in-

telligence activities, sources and methods against

the operations of foreign intelligence services.

4, Prior to November 9, 1963, this Agency

through confidential intelligence sources avail-

able to it received certain information concern-

*The District Court requested greater detail than that contained

in the first affidavit (J.A. 212-3; 224-5; 306-7). The Fourth

Circuit, while affirming in general the District Court’s disposition,

399 F.2d at 788, found a question of whether Raus’ instructions

had emanated from an officer of the Agency having the requisite

authority, 399 F.2d at 791. This resulted in a remand on very

narrow grounds—for a finding either of proper prior authority

or ratification by a proper official. Two further affidavits were

filed in the course of proceedings in the District Court. These

established both prior authority and subsequent ratification.

(R.J.A. 11, 23)

6

ing Eerik Heine which was analyzed and evalu-

ated by counterintelligence officers responsible to

me, who reached the conclusion that Eerik Heine

was a dispatched Soviet intelligence operative, a

KGB agent. In the performance of his assigned

counterintelligence function, the counterintelli-

gence officer responsible for safeguarding sources

of intelligence developed within Estonian emigre

groups, acting in aecordance 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.

5. After initiation of the present suit, the er-

tire 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 coun-

terintelligence operations, I ratified and approved

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. 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 a} ropriate 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 affi-

davits which I have provided the Court in this

matter, in my capacity as the Deputy Director of

Central Intelligence, were intended as ratification

and approval of said instructions. [R.J.A. 11-12]

During the pendency of the motion for summary

judgment, the deposition of Juri Raus was taken

(J.A. 248-91) and numerous written interrogatories

were submitted for answers by the Director of Central

7

Intelligence * (R.J.A. 13-22; 121-27). In respect of

each inquiry, there inhered the possibility that ques-

tioning would expose the identity of the counterin-

telligence officers involved, the chain of intelligence

transmitted, and the methodology employed by the

CIA in the discharge of its national security function.

Consequently, acting under the practice approved in

Umited States v. Reynolds, 345 U.S. 1 (1953) and un-

der pertinent statutory authority, 50 U.S.C. § 403g, a

formal claim of testimonial privilege against the dis-

closure of information relating to intelligence sources

and methods was filed by the Director of Central In-

telligence (J.A. 234-35). The District Court carefully

considered each inquiry in respect of any privilege

claimed, a method which the Circuit Court approved,

399 F.2d at 788, 791. On remand, the District Court

adhered to the same procedure in considering and sus-

taining a partial claim of privilege to three questions,

305 F.Supp. at 818-19.

The method of discovery employed, restricted by the

CIA claim of testimonial privilege, admittedly pre-

vented the plaintiff from engaging in uninhibited in-

quiry into all details of Raus’ employment with the

Agency. However, no critical question was foreclosed,

and no promising avenue of inquiry was blocked.* The

5 Petitioner did nt file any affidavits which contradicted the

fact of employment, but the District Court did permit discovery

regarding matters ‘‘not privileged,’’ Rule 26(b) (1948), in accord

with Rule 56 (e)(f), Fed. R. Civ. P. (1963).

* The claim by petitioner that he was effectively denied his right

of cross examination (Pet. 15) is more hyperbole than fact. An

examination of the record will disclose that the questions to which

the claim of privilege was sanctioned would not have undone

the evidence of employment. They rather sought to expose a

8

evidence at hand disclosed unquestionably that Raus

was pursuing the business of the CIA in speaking as

he did on the occasions for which he was sued for

defamation. If so, he as well as his employer were

immune from suit. The Federal Tort Claims Act, 28

U.S.C. §§ 2674, 2680, excepts defamation from the am-

bit of the liability fixed upon the United States, 28

U.S.C. § 2680(h).

REASONS TO DENY THE WRIT

We respectfully submit that certiorari should

be denied because the law upon which the case was

decided below is already well established by decisions

of this Court and those of other federal courts.

1. At the threshold of this case is Question # 2 of

the Petition challenging the CIA’s involvement as un-

lawful. Petitioner urges that, within the boundaries

of this country, the discrediting of a foreign intelli-

gence agent is beyond the statutory perimeter of CIA

functions. He relies for that view upon a proviso to

the CIA’s statutory powers that denies to the Agency

any ‘‘internal security functions,’’ 50 U.S.C. § 403

(d)(3). Petitioner’s theory of the proviso appears to

be that any discrediting action taken by the CIA in

the United States is an ‘‘internal-security’’ function

whether or not the intelligence gathering protected by

that action is foreign, rather than domestic, in

character.

counterintelligence operation of the CIA, e.g., R.J.A. 121, 123,

124,; J.A. 253, 256-64, 268-70, 281, 287. After much considera-

tion, plaintiff’s counsel, following remand, was unable to conceive

of a question with respect to the employment of Raus by the

CIA which had not been answered (R.J.A. 166), and none was

suggested when the matter was rebriefed for the Circuit Court.

9

The complete answer to that contention is found in

a second statutory proviso that cannot properly be

ignored in interpreting the first one:

And Provided further, That the Director of

Central Intelligence shall be responsible for pro-

tecting intelligence sources and methods from un-

authorized disclosure. [50 U.S.C. § 403(d)(3).]

[See also, 50 U.S.C. § 403g. }

The ‘‘unauthorized disclosure’’ threatened in this case

is not speculative. If a secret Soviet agent succeeds

in infiltrating domestically-based emigre groups that

are conduits of foreign intelligence, the agent is well

on the way toward one of his principal goals—the dis-

closure and extermination of those sources abroad that

furnish foreign intelligence to groups located here.’

Indeed, even if just to protect the ‘‘methods,”’ 50 U.S.C.

§ 403(d) (3), used by the Agency in the gathering of

foreign intelligence from a domestic emigre group,

the exposure of an infiltrating agent is at the hard-core

of the statutory responsibility of the Director of Cen-

tral Intelligence.*®

2. The unambiguous statutory directive to protect

intelligence sources bears directly as well upon another

7 Accordingly, petioner’s argument is baseless that the legitimacy

of the CIA’s action here depends upon ‘‘cropping’’ the words

‘from unauthorized disclosure’’ from the statutory description

of its protective function.

* Petitioner adds only confusion to its presentation on this

issue by suggesting that the CIA relies upon Regulation H.R.

10-20 to elaborate the scope of its statutory function. That regula-

tion (See Pet. 48a-49a) is irrelevant to the question presented

and was cited by the Agency only in support of its power to

resist discovery of state secrets—a wholly separate issue. See

point 3, infra.

10

question presented for review. Petitioner contends

that this ease unduly extends the doctrine of Barr v.

Matteo, 360 U.S. 564 (1959). That case and its com-

panion, Howard v. Lyons, 360 U.S. 593 (1959), did no

more than reaffirm the well-established immunity of

governmental agents in suits for defamation arising

from statements made in the ‘‘line of duty.”’’ Barr

restated the sound policy underlying the immunity by

recognizing that malevolent public officiais will bene-

fit, but that ‘‘in the end [it is] better to leave unre-

dressed the wrongs done by dishonest officers than to

subject those who try to do their duty t» the constant

dread of retaliation... .’’ Gregoire v. Biddle, 177

F.2d 579, 581 (2d Cir. 1949) (L. Hand, C.J.) (quoted

at length in Barr, at 571-72). The facts of this case,

including the Congressional directive, show that it en-

tails no extension of the immunity doctrine at all.

Indeed, this case presents an instance even closer than

Barr to the heart of the purposes that justify the pro-

tection the doctrine affords. —

The Barr defamation suit arose from a press re-

lease Barr had issued as Acting Director of the Office

of Rent Stabilization. The release was designed to an-

swer Congressional criticism of an ORS practice by

identifying the officers responsible for it. Although

the issuance of press releases was a ‘‘standard agency

practice,’ 360 U.S. at 574, Barr lacked statutory au-

thorization for the practice, much less any articulated

Congressional purpose justifying its use to discredit

® Although the roots of our immunity doctrine are embedded in

English jurisprudence, see e.g., Sutton v. Johnstone, 1 T.R. 493

(1786), the landmark American precedents are Spalding v. Vilas,

161 U.S. 483 (1896) and Gregoire v. Biddle, 177 F.2d 579 (2d

Cir. 1949) (L. Hand, C.J.).

11

other agency officials."° This Court nonetheless prop-

erly afforded immunity since the criticism calling for

an answer pertained to official business subject to

Barr’s control, 360 U.S. at 573-75.

It is fair to observe, however, that Barr afforded

immunity in a setting in which it was at least arguable

that the defamation was ‘‘a personally motivated ef-

fort on the petitioner’s part to disassociate himself

from the alleged chicanery with which the agency had

been charged,’’ 360 U.S. at 592 (Stewart, J., dissent-

ing).* No such suspicion of personal motivation

hovers over this case. In view of the clear Congres-

sional directive to protect intelligence sources, the

CIA’s technique of discrediting an infiltrating agent

is plainly adapted to achieve the legislative purpose.

As the Circuit Court noted:

In such circumstances, is the CIA to seek an in-

dictment on charges it cannot prove if the sources

of its information [as to petitioner’s disguise]

are its own secret agents in the Soviet Republic?

Is it to sit idly by, suffering a pollution of its

sources of foreign intelligence and the intimida-

tion, arrest and persecution 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? [399 F.2d at 790]

This case is not different from Barr because injury

to reputation was the intended result. Nor need Barr

10 At best, ‘‘the press release was neither unauthorized nor

plainly beyond the scope of Mr. Barr’s official business. . . .’’

360 U.S. at 577-78 (Black, J., concurring).

11 Mr. Justice Stewart fully agreed with the principles of Barr

and thus joined in applying them to the companion case of Howard

v. Lyons, supra. |

12

be reexamined in the context of this case, as urged

(Pet. 18), by reason of differences in the degree of

intentionality. The question is not the degree of in-

tent to defame but the governmental purpose to be

served. There was as much intent to discredit in Barr

as here. The cases arguably differ, however, in the

speaker’s fidelity to the governmental purpose to be

served. In this case, a discrediting warning was chosen

to implement, directly and efficiently, an identifiable

national security policy. In Barr, by contrast, the pur-

pose to relocate blame lies more nearly in the shadow-

land of the ‘‘public interest.’? Notably as well, con-

sistent with the specificity of its purpose, the effort to

discredit here was limited in publication to the target

emigre community, whereas Barr’s defamation was an-

nounced less discriminately to the public at large.

It thus misconceives the purpose of Barr immunity

to suggest that it ‘‘envision[s] defamation and pos-

sible slander as the occasional failures of fallible

human beings acting as government officers and not as

instruments of government policy.’’ 399 F.2d at 794

(dissenting opinion). It is vital to differentiate in

this regard purposeful defamation from purposeful

falsehood. Neither Barr nor this case enshrines false-

hood as an instrument of government policy. Both

eases do no more than recognize that, in the course of

effectuating governmental policy, agents of the gov-

ernment will make statements that discredit individ-

uals.:The tatements are made inteationally and with

awareness that damage to reputation will be done.

When a claim is filed alleging malicious falsehood,

however, the

justification [for affording immunity] is that it is

impossible to know whether the claim is well

13

founded until the case has been tried, and that to

submit all officials, the innocent 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 irrespon-

sible, in the unflinching discharge of their duties.

[Gregoire v. Biddle, supra, at 581.]

Accordingly, quite to the contrary of petitioner’s con-

tention, in both Barr and this case, judicial inquiry

into the truth content of the statement and the state of

mind of its maker is foreclosed precisely because in

both eases the deliberate making of the statement is a

justifiable ‘‘instrument of government policy.’’ And

it would be most ironic indeed if iinmunity were held

applicable, as in Barr, where the statement ambigu-

ously serves a governmental interest, and inapplicable

where, as here, it is preeminently and narrowly de-

signed to fulfill a statutory mandate.

Finally, it is no ground of distinction that the dis-

crediting comments were uttered, not by the Director

of the CIA, but respondent Raus, a subordinate act-

ing pursuant to orders. Barr recognized that the ‘‘com-

plexities and magnitude of governmental activity have

become so great that there must of necessity be a dele-

gation and a redelegation of authority as to many func- ©

tions....’’ 360 U.S. at 573. We do not suggest here

that every government employee at every level is thus

clothed with Barr immunity. But it would under-

mine the function of the doctrine itself to withhold its

mantle from an employee acting upon orders from a

protected official. In a suit such as this, aimed at the

subordinate, the superior would be compelled to de-

fend his agent at the cost of the same harassment the

doctrine is designed to obviate.

14

Indeed, when the duty to speak is mandatory, the

immunity has consistently been regarded as war-

ranted.” 8 Wigmore on Evidence, § 2368. Common

sense alone teaches that if immunity attaches to the

superior with discretion to speak, the argument is even

more compelling on behalf of the employee who is

given no such choice. Even more importuntly, how-

ever, that conclusion is required by the central pur-

poses of the doctrine. Immunity is ‘‘not a badge or

emolument of exalted office, but an expression of a

policy designed to aid in the effective functioning of

government.’’ 360 U.S. at 572-3. It hardly serves the

effective functioning of government to require, as a con-

dition of litigational immunity, that the Director utter

the discrediting statements himself, instead of select-

ing a delegate whose established reputation in the rele-

vant community makes it even more likely that the

message of warning will be accepted.

3. The Barr immunity thus properly attached to re-

spondent Raus, but only if he was acting in the ‘‘line

of duty.”’ 360 U.S. at 575. A procedural issue per-

taining to the manner of proving that allegation is the

remaining question presented for review. On that

question, petitioner complains of curtailed ‘‘cross

examination’’ and of respondent’s use of ‘‘conclusory

affidavits’? to support summary judgment. (Pet. 12-

15) In essence, petitioner contends that he was denied

an effective opportunity to ascertain whether Raus

was in fact acting as a CIA employee under orders.

12 The application of immunity in Barr to the discretionary acts

of higher officials presumed its applicability in the mandatory

context: ‘‘That petitioner was not required by law or by direc-

tion of his superiors to speak out cannot be controlling... .’’ 360

U.S. at 575 (Emphasis added) :

15

To this day, however, despite repeated opportunities,

he has not pointed to a single line of inquiry which was

foreclosed to him that would suggest the possibility of

a successful attack upon the statements of the Director

of Central Intelligence affirming and ratifying Raus’

employment for the task he performed.

The procedures adopted in the District Court for

testing Raus’ “‘line of duty’’ defense were complicated

by the decision of the Director of Central Intelligence

to invoke his statutory privilege against the disclosure

of information pertaining to the national intelligence

establishment. That factor gives an appearance of

severity to the result reached below. The procedures

adopted by the District Court, however, reflect a care-

ful balancing of competing interests and were con-

ducted with scrupulous attention to tie precepts an-

nounced by this Court in Umied States v. Reynolds,

345 U.S. 1 (1953), and to the particularities of the

Federal Rules of Procedure.

The affidavits submitted by the Director of Central

Intelligence and his responses to petitioner’s written

interrogatories clearly establish from a government

source of the first rank that Raus acted as a govern-

ment employee on official business in pursuit of a pur-

pose ordained by Congress (J.A. 107, 180, 225, 367;

R.J.A. 11, 23; 121-27). At the commencement of peti-

tioner’s discovery, 424 interrogatories were directed

to Raus, but only 13 were relevant to the issue of em-

ployment. Upon Raus’ motion to strike, the District

Court suggested that petitioner either submit a limited

list of interrogatories confined to the employment issue

or take Raus’ deposition (J.A. 150-51; 161-62). Peti-

tioner’s counsel never attempted to refine the inter-

PON A ee ERI AE

16

rogatories (see, e.g., J.A. 336), but Raus’ oral deposi-

tion was taken in open court (J.A. 246-91).

Under a secrecy agreement he had signed with the

Agency (J.A. 189), itself some evidence of Agency

employment, Raus was precluded from answering ques-

tions about his CIA employment without the consent

of the Agency (J.A. 3-4). At the commencement of

his oral deposition, a formal ‘‘Claim of Privilege’’ was

filed over the signature of the Director of Central

Intelligence. Interrogation proceeded under judicial

scrutiny and Raus’ testimony contirmed the statements

of the Director’s affidavits. Claims of privilege were

raised at inquiries for other details. The District

Court, following the precepts of United States v. Reyn-

olds, 345 U.S. 1 (1953), considered each claim with

respect to the particular question put to Raus. Those

questions to which a claim of privilege was sustained

were wide of the mark on the issue of Raus’ CIA em-

ployment (J.A. 253, 255, 256, 268, 273-74, 281, 286-87).

In typically summary fashion, petitioner’s counsel

stated:

. . we would ask then when was the first con-

ference held, how many participants were there,

who initiated the conferences, did they come to

him, did he go to them, what was discussed, what

facts were stated about Eerik Heine, what the

discussion was, was he then given an opportunity

to become an informer for the CIA ov a casual

contact or what his relationship was. [J.A. 286-

87]

Since these questions went well beyond the basic fact

of employment, the wide-ranging inquiry they por-

tended properly called for the invocation of privilege

17

to abort disclosure of the details of intelligence sources

as well as the organization, functions and personnel

of the Agency, 50 U.S.C. 3 403(d)(3) and 408g.

Petitioner did not file any affidavits which contra-

dicted the fact of CIA employment. See Rule 56(e),

Fed. R. ‘Civ. P. The Court afforded him opportunity

for discovery, Rule 56(f), limited inherently to matter

‘‘not privileged,’’ Rule 26(b). Since there was no

genuine dispute concerning Raus’ employment by the

OIA, the Court of Appeals agreed that Barr immunity

was available to Raus and unanimously affirmed that

the District Court had fully complied with the proce-

dures prescribed by Reynolds in sustaining the limited

invocation of privilege (Pet. 15a-16a). The Court

vacated summary judgment only to permit a limited

additional inquiry into whether Raus’ instructions

were issued by an authorized official or ratified by an

official with authority to approve them (Pet. 22a).

Following remand, in support of a renewed motion

for summary judgment, the Director filed an affidavit

showing that: (1) Raus had received his instructions

from a counterintelligence officer authorized to in-

struct him as he did, and (2) that these instructions

were subsequently ratified by him, first as Deputy and

then as Director (R.J.A. 10-12).

The District Court held a conference at which peti-

tioner sought leave to take the Director’s deposition.

Finding that petitioner’s proposed inquiry ranged

beyond the bounds of the remand, the Court ordered

that written questiciis be submitted to the Director be-

fore it would authorize an oral deposition.” (R.J.A.

18 This was clearly within the District Court’s discretion. Rule

30(b), Fed. R. Civ. P. (1938).

18

162) When the questions were submitted, many were

still beyond the scope of remand and the Court sus-

tained objections to them (R.J.A. 163). The Court

found other questions permissible, however, and or-

dered a response from the Director, subject to specific

claims of testimonial privilege. The Director answered

all questions, save for parts of three to which claims

of privilege were made and sustained (R.J.A. 121, 123,

124, 168). The Court described the Director’s an-

swers as ‘‘very full’’ (R.J.A. 132) but nonetheless re-

flected a willingness to allow the Director’s deposition

if petitioner could make some showing that additional

relevant information would be developed. Petitioner’s

counsel, however, were unable to suggest even one

proper factual question (R.J.A. 139, 146-47, 150, 158).

Accordingly, finding that no line of suggested inquiry

warranted an oral deposition of the Director, the Dis-

trict Court reentered summary judgment (See Pet.

lla).

This time, the Court of Appeals unanimously af-

firmed the summary judgment after an oral argument

during which petitioner was still unable to suggest even

one proper factual question remaining to be explored.

This Court has already approved proof of govern-

mental employment upon ‘“‘uncontradicted affidavits”’

such as those submitted in the present case. Howard

v. Lyons, 360 U.S. 593 (1959). Seeking both to distin-

guish Howard and to show that summary judgment

under Rule 56 was inappropriate, petitioner suggests

that there were conflicts within the affidavits. Peti-

tioner points to two claims of inconsistency (Pet. 13-

19

14), neither

analysis.*

bf which, however, will withstand

Simply put, there was no genuine issue for trial on

the only question material to the motion for summary

judgment. Pe j tioner has not been able to articulate

one additional/ avenue of inquiry which would cast

doubt upon the existence of the governmental service

performed by Raus at the behest of the responsible

officer of thé CLA. With due regard to the confiden-

tial natur¢ of the matters under scrutiny, the District

srocedures, adopted to accommodate conflict-

ing inte rests, were eminently suited to the task at hand.

Petitioner has never been able to suggest an alterna-

tive procedure that would likewise accommodate those

conflicting interests. The procedures used did not de-

prive him of a fair opportunity to test respondent’s

14The first pertains, not to a conflict between ‘‘opposing affi-

davits,’’ Rule 56(e), but to an apparent inconsistency between the

affidavits of Raus and the Director (Pet. 13-14). Raus stated

that as of January 15, 1965, he was employed by the Bureau

of Public Roads. Contrary to petitioner’s suggestion, that aver-

ment is fully consistent with the Director’s recital that Raus was

‘ “TA employee at times earlier than January 15, 1965—the times

nen he spoke of petitioner as a Soviet agent.

The second alleged conflict is spurious also. Petitioner con-

tends that Raus denied ‘‘the allegations’’ of the complaint that

he had spoken of petitioner in a defamatory manner to one Kuklane

(Pet. 14.) This is inaccurate. Raus’ answer admitted that he

spoke to Kuklane substantially as set forth in the complaint. He

denied the precise times of speakiug and the innuendos attributed

to him (J.A. 24). Neither issue is material to the question of

Raus’ CIA employment. Moreover, petitioner, in the face of a

motion for summary judgment, ‘‘may not rest upon the mere alle-

gations of his pleading.’’ Rule 56(e), Fed. R. Civ. P.

20

claims. But they did properly bar him from ex-

ploiting the Rules of Civil Procedure to probe, with-

out manifest justification, into the organization and

functions of an important agency of national security.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

Pau. R. CONNOLLY

StEvEN M. UMIN

WiLuiaMsS & CONNOLLY

1000 Hill Building

Washington, D. C. 20006

E. Barrett PRETTYMAN, JR.

Hocan & HARTSON

815 Connecticut Avenue

Washington, D. C. 20006

Counsel for Respondent

Mareh 30, 1971