EERIK HEINE V. JURI RAUS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00770R000100070001-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 20, 2016
• Sequence Number: 1
• Content Type: COURT FILINGS

Approved For Release 2006/04/17: CIA-RDP75-00770R01~1`C'` 001-6
C 3
EERIK HEINE
V.
JURI RAUS
Filed: December 8, 1966.
Ernest C. Raskauskas and Robert J. Stanford, of Washington,
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 Intelligence Agency,
of Washington, D. C. , and Thomas J. Kenney, United States Attorney,
of Baltimore, Maryland, for the United States.
Thorns en, 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 defamatory
statements he was acting within the scope and course of his em-
ployment 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 number
of substantive and procedural questions. The matter is compli-
cated by the fact that the United States has asserted its privi-
lege against disclosing state secrets.
 I Approved For Release 2006/04/17: CIA-RDP75-00770R000100070001-6
1.
The complaint, filed in November 1964, alleges that
plaintiff, a citizen of Canada, has never been a Communist;
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 de-
famed plaintiff by stating that "Eerik Heine is a Communist" and
"Eerick Heine is a KGB Agent", the statements 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 speci-
fied in the complaint he had said, in the presence of others,
that he "was in possession of responsible 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 statement was made without express
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
or actual malice in furtherance of the defendant's legitimate
duties, responsibilities 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 defendant
was privileged to speak of the plaintiff as he did, since the
defendant was acting as an appropriate officer of the 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 divulge such information unless
1/ The Secrecy Agreement, so headed, was executed in May 1963,
more than five months before the first alleged defamatory statement.
It reads as follows:
"1. I recognize that in connection with my confiden-
tial relationship with the Central Intelligence Agency (CIA)
I will become apprised of information relating to the na-
tional defense and security and particularly information
of this nature relating to intelligence sources, methods,
and operations, and specifically operations, sources, methods,
personnel, fiscal data, or security measures. I realize that
in addition to the actual information that comes into my
possession because of my relationship with CIA it will be
possible for me to deduce implications from such information.
I understand that unlawful disclosure of this information
or its implications could seriously jeopardize the national
interests 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 citi-
zen of the United States of America that I will never divulge,
publish or reveal, by writing, word, conduct or other means,
any information or its implications of the character set
forth above, including the fact or content of my meeting with
representatives of CIA, to any person unless I have been
specifically authorized, in writing, to do so by a representa-
tive of CIA. I understand that the term 'any person' includes,
among others, friends, relatives, spouses, employers or repre-
sentatives of any State or Federal Agency, excepting only
CIA representatives who have been specifically referred to
me by the representatives of that Agency whom I have met on
the occasion of signing this secrecy agreement.
"3. I understand that this agreement does not impose
-3-
Annrnvarl Fnr Ralaaca 9fif R/(14/17 ? f1.IA-Rr1P7r,-ft(177f1R(1(1(1i(1(1(17(1(1(1l-F;
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
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 interrogatories,
which defendant moved to strike on two grounds: (1) that their
number was oppressive, and (2) that many of them inquired of privi-
leged 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 concerning plaintiff on
the occasions referred to in the complaint 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 defendant's original answer did not set up
the defense of absolute privilege, but that leave should be granted
1/ (continued)
any restriction upon me or my employer with regard
to information 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 negli-
gent 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). "
 ii
Approved For Release 2006/04/17: CIA-RDP75-00770R000100070001-6
him to file an amended answer asserting that defense; 2 that de-
fendant should not be required to answer the 424 interrogatories,
but that plaintiff should be allowed discovery, so far as per-
mitted by law, on the issue of absolute privilege claimed by
defendant; 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:
"4. During the periods of time specified in
paragraphs 5, 6, and 7 of the complaint, the de-
fendant, Juri Raus, was employed as a highway re-
search engineer for the Office of Research and De-
velopment, Bureau of Public Roads, United States
Department of Commerce.
2/ 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
defendant 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 activity 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.
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
"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 history and his position as National Commander
of the Legion of Estonian Liberation, the defendant
has been a source to this Agency of foreign intelli-
gence information 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 em-
ployed 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 specified in paragraphs 5, 6 and 7 of the
complaint.
"8. On those occasions specified in paragraphs
5, 6, and 7 of the complaint, the defendant was fur-
nished 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 intelligence 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 defendant 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
activities pertaining to Eerik Heine, I have reached
the judgment 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 employment of Juri Raus by the Agency
in connection with Eerik Heine to be disclosed, other
than the disclosures already made in the defendant's
answeZ, in my own affidavits, and the defendant's
affidavits, which I have read.
"11. Acting pursuant to the authority lodged
in the Director of Central Intelligence by virtue
of the.provisions of Title 50, United States Code,
Sections 403d and 403g, and the implementing Regulations
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
promulgated 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 re-
vealed through his pleadings. I am herewith di-
recting 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. "
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 Direc-
tor of Central Intelligence, I stated in part:
'The defendant was instructed to warn members of
Estonian emigre groups that Eerik Heine was a dis-
patched Soviet intelligence operative, a KGB agent.
"2. 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.
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 Lawrence R. Houston,
General Counsel of the CIA, and by Thomas J. Kenney, United States
Attorney. The deposition of defendant was taken before the Court;
 i Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
many of the objections asserted by counsel for the Government
or by counsel for defendant on instructions from the General
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 Government 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 documents and final
briefs had been filed-by both sides.
II.
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 dispatched 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. Matteo, 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). 3 It was recognized 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
3/ The validity of the "claim of absolute privilege is governed
by federal standards, to be formulated by the Courts in the ab-
sence of legislative action by Congress. " Howard v. Lyons, 360
U. S. 593, 597 (1959).
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
repeatedly and recently recognized and sustained by the Courts
of Appeals 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 Con-
tracting Co. v. Floete, 2 Cir. , 299 F. 2d 655 (1962), cert. den.
374 U. S. 827 (1963); Poss v. Lieberman, 2 Cir. , 299 F. 2d 358,
cert. den. 370 U. S. 944 (1962); Brownfield v. Landon, 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. , 358 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:
It 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 otherwise be devoted to governmental ser-
vice and the threat of which might appreciably in-
hibit the fearless, vigorous, and effective adminis-
tration of policies of government. The matter has
been admirably expressed by Judge Learned Hand:
"'It 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 such 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 innocent
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
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 reso-
lute, or the most irresponsible, in the unflinch-
ing 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 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 another 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 be-
tween 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 retalia-
tion. . . .
"' 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 without 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. lylatteo, supra, counsel for plaintiff contend that defen-
dant cannot assert the privilege for a number of reasons.
First, plaintiff contends the privilege does not apply
to employees who exercise no discretion, as distinguished from
officers or officials of the Government. This argument is not
supported by reason or authority. In Waymire v. Deneve, 5 Cir..
-10-
1 Anr-% n , d P r Pal,=act= 9nnR/na/17 - flan-RnP7c-nn77nRnnnlnnn7nnn1-R
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
333 F. Zd 149 (1964), the privilege was accorded to an agent
of the Customs Bureau of the United States Treasury Department,
and Wigmore on Evidence (McNaughton Revision 1961), Vol. 8,
92368, states: "A subordinate or ministerial official -- i. e.
one who acts under the orders of a superior official -- is ab-
solutely exempt from liability if 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 privilege
should be accorded to an official who exercised some discretion,
but was below cabinet rank. Mr. Justice Harlan said:
"We do not think that the principle announced
in Vilas (161 U. S. 483) can properly be restricted
to executive 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 redele-
gation of authority as to many functions, and we
cannot say that these functions become less important
simply because they are exercised by officers of lower
rank in the executive hierarchy. " 360 U. S. 572, 573.
That petitioner was not required by law
or by direction of his superiors to speak out cannot
be controlling in the case of an official of policy-
making rank, for the same considerations which under-
lie 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.
These principles apply with even greater force to an employee 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
 I Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
by the CIA to protect its foreign intelligence sources located
in the United States are within the power granted by Congress to
the CIA. 4
III.
Plaintiff next argues that the motion for summary judg-
ment should be denied on the 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
judgment is made and supported as provided in this rule, an ad-
verse 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 showing
that there is a genuine issue for trial. If he does not so re-
spond, summary judgment, if appropriate, shall be entered against
him. " That was always the rule in the Fourth Circuit. Bond
4/ At the hearing on May 13 the Court requested the General Coun-
sel 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 re-
quest, the General Counsel prepared an affidavit which incorporates
by reference particular paragraphs of a document which is classi-
fied "secret" and which cannot be declassified for the purposes of
this case. For that reason, the General Counsel requested the De-
partment of Justice to submit to the Court under seal, for in
camera inspection, the identification of the document and the two
pertinent 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 inspection but not for copying, and stated that any of the
attorneys would be granted access, upon request, to the two perti-
nent excerpts at the office of the General Counsel, with the under-
standing that the attorneys would not disclose the excerpts thus
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
action taken was within the outer perimeter of the defendant's
line of duty.
Plaintiff contends that the test is not met in this case;
that the statements made by defendant "were actions beyond the
statutory power of the CIA", because 50 U. S. C. A. 403(d) (3) pro-
vides "that the Agency shall have no internal security
functions". He argues that departments and agencies other than
the CIA, such as the Subversive Activities Control Board and
the Federal Bureau of Investigation, must deal with security
matters arising within the borders of the United States. It is
clear, however, that one of the functions entrusted to the Central
Intelligence Agency and its Director is "protecting intelligence
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 furnished information concern-
ing the plaintiff by the CIA "and 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 defendant
"was instructed by the Central Intelligence Agency to warn members
of Estonian emigre groups th2.t Eerik 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 security function", over
which the CIA has no authority. The Court concludes that activities
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
Distributing Co. v. Carling Brewing Company, D. Md. , 32 F. R. D.
409, aff'd 4 Cir.. , 325 F. 2d 158 (1963). Upon examination, the
claimed conflicts in the affidavits and depositions do not ma-
terially affect the facts upon which the defense of absolute
privilege is based. The most important conflict claimed by
plaintiff 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 affidavit 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. 5
There is more force in plaintiff's argument that he has
been prevented from discovering possibly conflicting evidence
by the Government's assertion of its privilege not to disclose
4/ (continued)
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.
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 deposi-
tion 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 plain-
tiff's complaint, which are not sufficient to overcome the facts
contained in. the affidavits and other evidence. Rule 56(e).
 i
ii Approved For Release 2006/04/17: CIA-RDP75-00770R000100070001-6
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, through the deposition of defendant
taken in open court, and. by requiring such clarification and am-
plification of the original affidavits made by Helms as the
Agency determined were consistent with the security interests
committed 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 pertaining to the
use and employment 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 "
It is clear, therefore, 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 national 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 pro-
visions of the applicable statutes. 50 U. S. C. A. 403(d) (3) provides,
in pertinent part:
"The Director of Central Intelligence shall
be responsible for protecting intelligence sources
and methods from unauthorized disclosure, "
 Approved For Release 2006/04/17: CIA-RDP75-00770R000100070001-6
In conjunction with this provision, 50 U. S. C. A. 403g
provides:
"In the interests of the security of the
foreign intelligence 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 re-
sponsible 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 require the publication or disclosure
of the organization, functions, names, official
titles, salaries, or numbers 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
support of the motion for summary judgment do not present ad-
missible evidence because they were not subject to cross-examination
and were not based on personal knowledge. The deposition of de-
fendant, 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
defendant were made by Helms, then Deputy Director of Central In-
telligence, rather than by the person who gave defendant the
instructions. The decision not to disclose the name of that per-
son was made by the appropriate official of the CIA, in the exercise
of the authority granted hi-n-) 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 paragraphsl0 and 11 of his affidavit, and by Admiral
 Approved For Release 2006/04/17: CIA-RDPT5-00770R000100070001-6
should require defendant to stand weaponless before his adversary,
or (b) should deny plaintiff the opportunity to attempt to vindi-
6
cate himself in court. No way to avoid choosing between two
evils has been suggested or discovered. The choice is dictated
by the passage from Judge Learned Hand's opinion in Gregoire v,
Biddle, 177 F. Zd 579, 581, which is set out in full in section 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 judgment be entered for defendant herein,
(Signed) Roszel C. Thomsen
Chief Judge, U, S, District Court
6/ 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
operates has been canvassed in a series of articles in the New York
Times and other leading newspapers, and has been investigated by
the Congress during the past months.
 Approved For Release 2006/04/17: CIA-RDP75-0077OR000100070001-6
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 (I) the
privilege against liability for defamation asserted by defendant
and (2) the privilege against discovery of the secrets of the
CIA asserted by the Government, places plaintiff in a very diffi-
cult position. But the fact that the two privileges operate in
concert in the instant case does not affect their validity.
The provisions of Rule 56(e), F. R. Civ, P., requiring
affidavits to be made on personal knowledge and to set forth
facts which would be admissible in evidence, must be read in
connection with the applicable statutes and executive 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 affi-
davit 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 discovery by plaintiff. The dilemma
which would be presented at the trial would be the same 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)