HEINE V. RAUS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00530R000300560012-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 9
• Document Creation Date: December 27, 2016
• Document Release Date: January 9, 2013
• Sequence Number: 12
• Publication Date: August 8, 1968
• Content Type: MISC

1111.1111111011151MlaWg
Declassified in Part - Sanitized Copy Approved for Release 2013/01/09 0IA-RDP90-00530R000300560012-0
STAT
786
dlEDERAL?REPORTER, 2d SERIES
on ground that he was absolutely privi-
leged when he made defamatory state-
ments in question, and plaintiff appealed.
The Court of Appeals, Haynsworth, Chief
Judge, held, inter alia, that summary
judgment entered in favor of defendant
Central Intelligence Agency employee on
ground of executive privilege would be
vacated and case remanded for determi-
nation of whether defendant's instruc-
tion to warn members of Estonian emigre
groups that plaintiff was a dispatched
Soviet Intelligence Agent was issued with
approval of the Central Intelligence
Agency Director or of a subordinate au-
thorized by the Director, or whether the
giving of said instruction was subse-
quently ratified and approved by such an
official.
Vacated and remanded.
Craven, Circuit Judge, dissented in
part.
1. Federal Civil Procedure C=1332
As governmental claim of privilege
of secrecy was, in slander suit brought
against employee of Central Intelligence
Agency, properly invoked generally by
Director of the agency, and as district
court made sufficient inquiry to assure
that the privilege had not been lightly
invoked, without pressing so far as to
reveal the very state secrets the privilege
is intended to protect, district court prop-
erly balanced conflicting interests and
properly allowed invocation of the privi-
lege against taking employee's deposition.
2. Libel and Slander C>38(1), 39
If, in defamation cases, recognition
of absolute privilege for judges, legis-
lators and highly placed executive offi-
cers of the government, when acting in
line of duty, is to serve its intended pur-
pose, it must extend to subordinate of-
ficials and employees who execute the
official's orders.
3. Libel and Slander C=,34
Principle that an agent, acting with-
in scope of his authority, has whatever
privilege principal would have enjoyed
if he had acted for himself is applicable
to defamation action and, if an authorized
agent would have been privileged, subse-
quent ratification confers privilege upon
an unauthorized agent.
4. Libel and Slander C=:.39
Absolute executive privilege was
available to defendant, a Central Intelli-
gence Agency employee against whom
slander action was brought, if the in-
struction given defendant to warn mem-
bers of Estonian emigre groups that
plaintiff was a Soviet Intelligence Agent
was issued with approval of Central
Intelligence Agency Director or of a
subordinate authorized by the Director,
or if the giving of the instruction was
subsequently ratified and proved by such
an official.
5. Courts 44216.9(9)
Summary judgment entered in favor
of defendant Central Intelligence Agency
employee, against whom slander action
was brought, on ground of executive
privilege would be vacated and case re-
manded for determination of whether
defendant's instruction to warn members
of Estonian emigre groups that plaintiff
was a dispatched Soviet Intelligence
Agent was issued with approval of the
Central Intelligence Agency Director or
of a subordinate authorized by the Ditec-
tor, or whether the giving of said in-
struction was subsequently ratified and
approved by such an official.
6. Federal Civil Procedure C=1634
Although disclosures in camera are
inconsistent with normal rights of a
plaintiff of inquiry and cross-examina-
tion, if the two interests cannot be recon-
ciled, interest of individual litigant must
give way to government's privilege
against disclosure of its secrets of state.
Robert J. Stanford, and Ernest C.
Raskauskas, Washington, D. C., for ap-
pellant.
Paul R. Connolly, Washington, D. C.
(Williams & Connolly, E. Barrett Pretty-
man, Jr., and Hogan & Hartson, Wash-
ington, D. C., on brief), for appellee.
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in authorized
leged, subse-
rivilege upon
ivilege was
itral Intelli-
ainst whom
? if the in-
warn mem-
rroups that
:?ence Agent
of Central
r or of a
e Director,
uction was
by such
2(-1in favor
ice Agency
der action
executive
case re-
whether
members
t plaintiff
itelligence
?.al of the
rector or
he Direc-
said in-?
ified and
lIcra are
Is of a
?xamina-
recon-
nit must
)rivilege
if state.
nest C.
for ap..
? D. C.
Pretty-
Wash-
HEINE v. RAUS 787
Cite as 399 F.2d 785 (1968)
Before HAYNSWORTH, Chief Judge, leged occasions to privileged persons.
and BOREMAN and CRAVEN, Circuit There was no indication of any involve-
Judges. ment of the CIA. Later, however, an
amended answer was tendered, supported
HAYNSWORTH, Chief Judge: by a series of affidavits executed by the
In this slander action, the plaintiff ap- Director or Deputy Director of the CIA,
peals from an order of summary judg- in which the absolute executive privilege
ment entered against him, on the ground was claimed. In those documents it was
of governmental privilege, after a partial alleged that Raus was an undercover or
the secret agent of the CIA,' had executed
d
disclosure limited by invocation bY
Central Intelligence Agency of the gov-
ernmental privilege against disclosure of
state secrets. "The .corit, thus par-
tially surfaced, carMilbritiirolath-e?GZTit-rdl>
Iritelbiren-ceimA-gencyrintelliger?ie-1-e
counterintelliyenteiractiviti-estandlifsiall
stsi_n_ptitae7c-posestheiptaintiffe-EsTrafiST5Viet
tIcGBIIESPKtiVa defamation which the
plaintiff alleges to be false.
Olrellfgratrit-ifflgrE-e-rtkariteir-Te-xi-srarrirE-,-57-
inTiiar?iRrnifre Wth
i
arcligparentyiasta-gif reettomiftghtlEr
te-ratAkEstoniawheawrisman_irocca-si-orral).
shqurergivittelLiffiredtStat- FaTfdtanieex-s?.
a iact
nt-i_v_ornmantstgf
suchmbewwa-sliknownetolith-e_gileatl-es2-ILof.
fEStuni-arrigem-i-grts-mrinl?t-h-emlinttalsSt-ates
tie n _re?
special assignments for it n the p
acted under the instructions of the CIA
when he "warned" his fellow Legion-
naires that Heine was a Soviet agent.
Earlier disclosure Of these circumstances
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 IS U.S.C.A. ?? 793 and 794, in-
cluding life imprisonment or death.
When the first answer was filed, counsel
for the CIA had refused permission to
Raus to dis:2lose his CIA connection.
Til-Te_adef-endantirku-Raii-T17.141Un
jr 1.1-c_tycj,iLir esijir ith-ell*qt-
e_thiSMtrfsland is the National Commander
of the Legion of Estonian Liberation.
tHeirelRr til-TEdy frTinTitlatwh-eito-1-clithertBoari
6111157Fr torstofilitITaleceafgrl=whicalETC-Ss
,r_elintlyai-nformedwbviramEoff-icinim-a-grorcy
cTliithiAtti!-nite-d?SrattliTEtvalitiroiwzrsita
Sovii-eito-genttaricollaboratoritatrdith-atathr-e?
I:prinniVliotrldum-otiico-operateimithifffrirn.
This, the plaintiff charges, made his film
and his lecture no longer salable and
brought him into disgrace in the Estoni-
an communities in the United States and
Canada.
In his initial an'swer, Raus claimed only
a qualified privilege. He claimed that
he had spoken, without malice, only as an
officer of the Legion and only on privi-
I. 1 IIS "Vert .11110.1y111,11I in OW BIII".?:
of Itonils in \Vashington.
2. Enrlior, in fin affidavit. the 1 lircct
himself. had sought to invoke the secrecy
Thereafter, the plaintiff sought to take
Raus' deposition in order to obtain addi-
tional information about his employment
by it,. CIA. The Director of the CIA.
through his General Counsel, appeared
for tal-:ing of the deposition,2 and, on
.a question by question basis, in the pres-
ence of the Judge, invoked the govern-
ment's privilege against disclosure of
state secrets. Raus was allowed to state
that he had been paid. directly or indi-
rectly, for services he had rendered the
CIA. but the privilege was sustained to
prevent probing of the details of his em-
ployment.
Otherwise. it appears from affidavits
of the Director of the CIA that Raus
and other Estonian emigres in the United
States had been sources of foreign intelli-
gence and that the purpose of the instruc-
tion to Raus to discredit Heine was to
protect the integrity of the CIA's sources
of foreign intelligence within Estonian
genorally ns to :my information
in addition to that disclosed in the affi-
davits.
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788 399 FEDERAL REPORTER, 2d SERIES
emigre groups or developed through
them.
In that state of the litigation, the
District Court granted a motion for sum-
mary judgment.3 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 perimeter of his authority.*
We agree, provided the instructions were
isued by one having authority to issue
them.
[1] At the outset it j.? 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 Govern-
ment and must be asserted by it; it can
neither be claimed nor waived by a pri-
vate party. It is not to be lightly in-
voked. There must be a formal claim of
privilege, lodged by the head of the de-
partment which has control over the mat-
ter, after actual personal consideration by
that officer. The court itself must deter-
mine whether the circumstances are ap-
propriate for the claim of privilege, and
yet do so without forcing a disclosure of
the very thing the privilege is designed
to protect. The latter requirement is the
only one which presents real difficulty."
ligifireASIMMOVI'WOUN345 U.S. 1, 7-
8, 73 S.Ct. 528, 532,97 L.Ed. 727 (1953).
TAVit rPrii4MOTITIMIAMitt"MOTT-11.ect
irsiplloyyanzeimflitteiggoverimm
plmittre1111451WilbTeiroidUe7crec-yeplittlW5-g
. sproper,Igliii7o7a geilrieiTalITLy byilitheall)i-
Itt1-Yrio:fathei&I,At The Court made suffi-
cient 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 intend-
ed to protect. When the deposition of
3. Heine v. Bans, D.C.Md., 261 F.Supp. 570.
4. Barr v. Matter), 360 .U.S. 564, 79 S.Ct.
1335, 3 L.F.d.2d 1434: Howard 'y. Lyons,
360 U.S. 593, 79 S.Ct. 1331, 3 LE41.2d
1454.
Raus was taken, he ruled upon each ques-
tion calling for information arguably
within the privilege, requiring Raus to
answer those which the Court thought
would not impair the privilege while fore-
closing answers to those questions which
apparently would. In his conduct of the
proceedings, we think he balanced, as
fairly as possible, the conflicting inter-
ests and was faithful to the "formula of
compromise" taught by Reynolds.
Weiaai rmirth-ecighttofirtlieaMvi nitlyfaip
ircasoitoliiTarrce tIWVIernnilF&
raga instidi ofir?ratersecrerga-n-ditsr.
tallowancextoothertextenteitswasirallowed-i-
ibyAtlielei
II
On the question of executive privilege
in defamation suits, we also agree gen-
erally 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. Matte?, it. was held that the
Acting Director of the Office of Rent
Stabilization was entitled to the protec-
tion of the absolute executive privilege.
Responding to congressional criticism of
the agency, Barr issued a press release
announcing his intention to suspend two
subordinate officials and placing upon
their shoulders responsibility for the pay-
outs under criticism. Three justices
joined Mr. Justice Harlan in the lead-
ing opinion in which the governmental
interest in having officials, exercising
discretionary authority, assured freedom
to act in the interest of the agency with-
out fear of having to defend actions for
defamation was balanced against the in-
terest of the individual plaintiffs in seek-
ing judicial rehabilitation of their repu-
tations. With reliance upon the analysis
and justification of Judge Learned Hand
5. In addition to requiring Haus to answer
some questions, the 1)1striet Court reject-
ed the first affidavits of the Director of
the C 1 A as insufficient to support the
claim of absolute governmental privilege.
As a result. additional affidavits contain-
ing additional information were filed.
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in Greg
579, 581
Court in
ence waf
est. MI
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of such
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leading
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KEINE v. RADS
Cite as 399 F2d 785(7868)
in Gregorie v. Biddle, 2 Cir., 177 F.2d
579, 581, quoted also by the District
Court in its opinion in this case, prefer-
ence was given to the governmental inter-
est. Mr. Justice Black, emphasizing the
interest of the public in being informed
of such matters, concurred. Mr. Justice
Stewart agreed with the analysis of the
leading opinion, but dissented 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 Jus-
tice and Justices Douglas and Brennan
dissented generally on the ground that
the absolute executive privilege should
be limited to the President and cabinet
officers 6 and, possibly, other appointed
officials directly responsible to the Presi-
dent.
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 ob-
served when dissenting from the denial
of a writ of certiorari in Becker v. Philco
Corp., 389 U.S. 979, 980, 88 S.Ct. 408,
409, 19 L.Ed.2d 473, this case is much
closer to the earlier precedents if we as-
sume that the actor was the Director,
himself.
Unlike Mr. Barr, cth7C-Diirclor_
CCI-A-is-appiointed_byTt-he_Protdent-af-th-ei
U-ni ted-S-ta tes-w th-the-adv ice-and-con-7
Cgent-of-the-Serrare. (H-e-i-s7responsible-ttr,
(the--Pre-sizlerti Tthrough-ftlw-N-ational-Se-
turityl-Council.
(poattion. Necessarily, the Director must
work in close collaboration with the Pres-
ident, 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 subordi-
nate official under the Director of Eco-
nomic Stabilization.
In Barr v. Mattco, too, there was room
for Mr. Justice Stewart's view that Barr
6. See Spalding v. Vitas, 161 U.S. 483. 16
S.Ct. 631, 40 L.Ed. 780.
789
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 sur-
rounds the CIA, there is no reason to
suppose the defamation had any relation
to the Director's personal career or his
reputation or to those of his subordinates.
For all that appears, it was done entirely
out of consideration of the national inter-
est.
The CIA _and_ its Directorili=
ea-11Tc harged7With-fliaiity
and l'e-s-P-6n-s1---
(h1hty_ of_ protee tirg -sou rces-of----foreign-
such---i n t ell ige nce-from-u nau thorizeTiAis-
(-closure at-aliens within this counfry
are-sothrcesTof--foreign--intelligencev--as
claTined-by-the-Director---,---Ims-been-recog,
nized-by-theTCongress. di-the-Director
deter-mines --th-at7-an -alien's --entr?y=--fom
rmanent-zesidence-imt-he-Un itedfStates
is,in,the,inte-rest-of?nationaLsecurity_To,r
essentiaRoittre7Agency's7intelligerice7mis-
csion,-the-entry7of,theialien -and,h4 s-fami ly
4s4ilowe d---the ugh-they-we uld,:be=o the r-
se---i-iaadirnissible.8 Unlike Barr, who
acted under no direction or specific au-
thorization to issue press releases, action
here to protect the integrity of sources of
foreign intelligence was explicitly direct-
ed 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.
Matte?, and its purpose was loftier.
While the veil of secrecy hampers our
appraisal of the situation confronting the
CIA, enough appears to relate the def-
amation to governmental interests.
The Director has sworn in his affida-
vits that !taus and other Estonian
emigres in this country had been sources
of foreign intelligence and that other
sources of such intelligence had been de-
veloped through them. Plainly implicit
in the Director's affidavits and the testi-
7- 50 U.S.C.A. ?? 403(11) (3). 403g. ?
8. 50 U.S.C.A. ? 403h.
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790 399 FEDERAL REPORTER, 24 STS
mony is thecreceipttly"--th-e-----CIA7M1ffor-
cmation,-believ_edrreliable4hat7H-eine:was
...alsc_j___?et-Soyiet7agent. 4uc-h-agents-do-no_t
wear the g-uise-of-their-masters\ and=if
cinez.-caul?1-successfiilly--irifiltf-are--1117--Es-
ctafiinmemigreTsourcesrirmthis7country7h-e
coirld?expect?to?discover=tlie=ftireign
Sburcof---intelligeneeldevelo-fienliTOTilh
therrt,?I-n-such-eircumItances,-is:theIC-IA
to-seek-an-indictment--on-chargeslittan;
cnot,provelif-rthe-so_urcesTotlits:Inf orm-atIot
arezits---own=secret-_-agentsi-Inzther.So-viet
Republic?
,,a7.politition:of-AtsTsources-loi7foreign-lritelz
urposer-it7m11-Stctirld'-'16----"itibb-r-diffate
ligencerandrthriritimidation,-aTrestzand
persecntioir=of=its=foreign-ragents?-0-ta ficials_and_employees-iwho ex-ecu te---the
offistars7.-ortlers--7) There would be little
ean7it7protectzitszsottrces:of-information, (--
purpose to a cloak of immunity for Mr.
as-require-dzby=th-emstatute-,---t-yltwarningli
Itsow_n--sources-fth-arrfhe-i-Flfiltir s,
appraising this case in comparison with
Barr v. Matteo, however, it has been use-
ful to start with the assumption that the
Director, himself, uttered the defamation,
for t:thou (51101-,vc-as-of co urse,_th-R
the-subordinath?Who
borization of-thei-supeTior_is_entitleira
slainrth-e same priiiilege-as-the-superii7k.
[2] ti1in=defamation-cases7recogni-
tfon-of--an7absoluter_privilege-_-.forz-judges-;
legislato-rs:rand=tighl
dificers:ofrthergov_ernnient,--when-acting
orzrnar._-be;=a7.-Soviet--agent?
-rg_latiaaaLd- e-
ife-nser-the-latter-vhoice-seems:th--e-one--de-
manded=by=the-_-_-_national--ii-iterest?not-
wlt-hstandin-g-_-.th
cthe-warni-n-gxpo-n-th-E.6rieltlivis-a-ccuselL4f1
cesnionage3 While the effect of the def-
amation upon the plaintiff here may
have been greater than the harm suffered
by the plaintiffs in Barr v. Matter), 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,
t he-:-Dtre-cto-r:s-sworn-,-bu tairrdo-co men ted7
(govern me n lege. ___LnatIou g rit7to
(be-enough_when_the.statements-are-inS-0
CoTta n-o ff po n sible -a n-o ffice
enri
(and-a rennt?oi-f7--fnetTeFrdoct?if?nents-
ct ion---a-n-d- e I abo ra tion _wo uld_vrdlate -the,
Thus far, 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 cer- cpal-would-hav_eien-joyed-irliFica-dra-cted=f or>
tainly inferable that the instructions to (himselft'
Raus were given by one having authority dn-defamation-actions-)? and, if an au-
from the Director to issue them. In thorized agent would have been privi-
Barr if Mr. Matteo were allowed to main-
tain 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 writ-
ten for his court, if such actions could
readily be maintained against his secre-
tary who, at his direction, typed and
transmitted the opinion, or against the
clerk of the court who published it. 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 use-
less formalism.
[3] Recognition-ofm-anm-absoltiterpriv-
f-tfre:subordi n at el-by2att-ributionrof
the-superi-orzt-husnppearsrtozbez-a-zneces-
sar-y-corollary:_-df=the-super-i-oes7privilege.
It-isTR-enerally-recogirizerlItha-trarrjagent;
idoes-have--whatever=privilege-:thezprinci=
9. Restatement (Second), Agency ? 345 10. Ibid. Illustration 2.
(195S)?
leged,
privil
Appli
has b
critic
[4
privi
stru4
of t
thor
oatc
tion
was
by
sta
of
p1 i
or
au
th
ca
of
it
is
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? With
1 use-
d the
ition,
that
?. au-
ed to
3rior.
ogni-
lges,
utive
:ting
nded
nate
the
ittle
Mr.
lain-
:inst
who
urse
ress
:age
ions
?rits
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?re-
and
the
If
ing
to
:es,
om
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ty,
or
lie
u-
?i-
HEINE v. HAUS
Cite as 399 9`.2d 785(1008)
leged, subsequent ratification confers the
privilege upon an unauthorized agentil
Applicability of the principle to this case
has been suggested in an article generally
critical of the District Court's decision.12
[4] Wiewconclutlemthati?themabsolute-
privilegesis,,available_tqwRauswilwhisinn--A.
st-tuctionssw_ereitissued.w,,i-th.theepp_roval,
ofetkeirDireetorikgriaca.msuborclimtelPari-w
id-hmizedirloyathe.DitectorAin_atheisabordi,
toitiLskiessuchsiii?tri?Temo
tionsmosaifiltheirgivingioffithelinstructions
wasesubsequentlyoratifie_diandfapproyedl.
bytsuchlantofficial.
[5] Though the Director's affidavits
state that Raus acted under instructions
of the CIA, which certainly strongly im-
plies 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 unauthor-
ized underling and that his action has
never had the approval of a responsible
official of the Agency having authority
to issue or approve such instructions-
The inference seems unlikely, but we
cannot say it is foreclosed by the present
record.
791
so, authorized, approved or ratified the
instructions. If such disclosures are rea-
sonably thought by the District Judge
to violate the claimed privilege for state
secrets, they may be made in camera, to
that extent. DisclostIrgslifnicantermare
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Finally, we may observe that while we
generally approve entry of summary
judgment for the defendant, subject only
to the limited additional inquiry we di-
rect, the plaintiff would fare no better if
the defendant's privilege were held to be
not absolute, but only qualified. Heine
cannot controvert the claim of Raus, sup-
ported by the CIA, that he acted under
instructions of that Agency.13 Heine
claims no publication exceeding the in-
structions. He has no basis for a show-
ing of malice. If summary judgment is
appropriate after the additional, limited
inquiry we direct, it will avoid the neces-
sity of a trial and possible compromise of
state secrets which the government is en-
titled to preserve.
[6] Since summary judgment was is-
sued, 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 addition-
al findings made. The inquiry should be
directed to the identity of the official
within the Agency who authorized or ap-
proved the inFtructions to Raus. Dis-
closure 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
I I. Ibid. Coninint (e).
12. Spying and Slandering: An Absolute'
Privilege for the CIA Agent? 67 CAL.
Rev. 752.
Vacated and remanded.
CRAVEN, Circuit Judge (concurring
and dissenting):
I agree with the court that summary
judgment was improvidently entered. In
addition to the deficiency pointed out by
Chief Judge Haynsworth in the majority
opinion, I suggest there are others, es-
pecially the failure to develop 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 suffi-
cient to support summary judgment. I
believe it error to accept general asser-
13. Here, it would iinwer tint if the in-
structions were unmithorized within the
Agency as long as Rnus believed them to
be.
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TBRIMENNEEffmmffm`
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792 399 FEDERAL REPORTER, 2d SERIES
tions 1 as a basis for summary judgment
where the opposing party is without ac-
cess to information normally 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 im-
munity "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 intentional defamation either because
such employees fall within the definition
of "official" or "officer" as defined in
Barr v. Matteo, 360 U.S. 564, 79 S.Ct.
1335, 3 L.Ed. 1434 (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 publi-
cation of defamation 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 cruph'yint..",. I cannot believe
that the latter is intended 3 and, there-
fore, conclude the court must be making
the assumption. But the burden of proof
is upon Raus to show that he is entitled
to executive immunity, and there is no
presumption to aid him. Prosser, Torts
I. Rule 51l(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 Bans was "acting with-
in the scope and course of his employ-
ment" and was instructed to publish the
defamatory words. Without factual aver-
ments, i. e.. job description, the statement
is simply a legal conclusion, unless one
is willing to say employment is always
co-extensive with instructions of the em-
ployer.
3. If flans had shot Heine. presumably no
court would ex,merate !silo of tort liabil-
ity on the ground he was told to do it
?not even for the purpose of shielding
the go verom en t official W 11 o tout him.
"When 007 plinks an enemy with a well
directed projectile from his trusty ?Val-
? 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 agreement
with CIA or (b) CIA's invocation of the
executive privilege to protect state se-
crets 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 priv-
ilege. 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 execu-
tive 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 defamatory statements, and the affi-
davits do not suggest that the Director
Personally instructed Raus to defame
Heine, nor is there any showing that the
Director approved the defamation of
Heine or properly delegated his responsi-
bility to protect intelligence sources.4 On
ther PPK .32. aficionados give no
thought to his possible 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 phantasmagoria." Comment. Spy-
ing and Slandering: An Absokele Privilege
for the CIA Agent? 67 Colum.L.Rev. 752
(1967), citing I. Fleming, Coldfinger 29
(1959). .
4. Helms' affidavit of April I. 1900. shows
a broad delegation of powers to the Dep-
uty Director effective April 2.S. 1965?
long after the defamation of Heine oc-
curred in 1963 and 1964.
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HEINE v. RA1JS 793
Cite as 399 F2d 785 (1968)
remand, surely a probing 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 con-
clusory affidavit.?
The court today, it seems to me, ex-
tends Barr beyond its breaking point. I
would not go so far for several reasons,
one of which is the court's concession that
it is not necessary to do so, and that a
qualified privilege would adequately pro-
tect 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 deliber-
ate choice by the Central Intelligence
Agency of defamation of character as
an instrument of national policy. Such
a factor alone seems to me to adequately
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 extend
to intentional defamation as an instru-
ment of governmental policy. But if I
am wrong about that, I suggest that a
rule must be fashioned to limit the exer-
cise of intentional defamation to respon-
sible officers and officials. To immunize
millions of government subordinate em-
ployees 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 employment, 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 effec-
5. Indeed, Heine presented himself in
Washington for arrest on the theory that
if lie were in fact a Communist, he would
he guilty of failing to register under the
Federal Foreign Agents Registration Act.
22 U.S.C.A. $1 611-621 (1964) as amend-
399 F.2d-501/2
tively by the Director himself rather than
a secret underling?and with far less
danger to a free society.
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 Privilege for the CIA Agent?
67 Colum.L.Rev. 752, 766-768 (1967).
There is here no comment which served
the interest of discussion and criticism
of government activity or foreign rela-
tions. Not involved here are intra-de-
partmental confidential communications
necessary to the intelligent functioning
of government. Nor is there any possi-
bility here of scrutiny by an alternative
remedial procedure in which Heine might
vindicate himself or rehabilitate his rep-
utation.5 The privilege is 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 supposed he will be repri-
manded by CIA for doing so.
Unlike Barr v. Matteo and other typical
defamation cases, there was here deliber-
ate use of defamatory material, said even
now, after the event, to have been au-
thorized by an agency of government (not
simply done by an "unworthy" individual
employee) for the very purpose of de-
stroying the influence and effectiveness
of an individual. Barr was not intended
to protect the oppressive use of govern-
mental power. Nor was the rule in 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
ed (Supp.1966). Neither the FBI nor
the CIA made any response. N.Y.
Times, April 23, 1966, at 29, col. 1; id.,
April 29, 1966, at 19, col. 1; id., May 14,
1966, at 2, col. 3.
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794
399 FEDERAL REPORTER, 2d SERIES
officers of government that would ham-
per government operation. The premise
of Barr is that because of human foible
officers of government may sometimes
unfortunately defame innocent individ-
uals and that protection of such an offi-
cer- is a necessary evil in order to protect
worthy officers from the fear of private
civil libel actions. Barr envisioned def-
amation and possible slander as the oc-
casional 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 tgovern-
ment agency as deliberate polici.6 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 7 and the undoubted pow-
er of the executive to invoke the "state
secrets" privilege 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 dis-
trict court to consider 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 pre-
serve. 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
privilege allowed under New York Times
Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710,
11 L.Ed.2d 686 (1964), and its progeny.
Surely, as the court suggests, one or the
other of these ought to be enough.
6. See Comment. 77 Yale L.J. 367. 37
(1967), where in discussing legislative im-
munity. under U.S.Const. art. I, ? 6, it is
suggested that a defamed person ought to
have "redress against conduct that no ra-
tionale for the constitutional privilege pur-
ports to justify: the exercise of public
ARIVIEMENT DEPPE, S. A., et aL,
Appellants,
V.
UNITED STATES of America,
Appellee.
No. 24427.
United States Court of Appeals
Fifth Circuit.
Aug. 8, 1968.
United States brought action against
nine foreign common carrier steamship
lines to recover penalties for violations of
Shipping Act. The defendants moved to
dismiss for lack of jurisdiction over sub-
ject matter. The United States District
Court for the Eastern District of Louisi-
ana, Herbert W. Christenberry, J., denied
the motion to dismiss, and defendants
took an interlocutory appeal. The Court
of Appeals, Ainsworth, Circuit Judge,
held that Congress had authority to re-
strict practice of dual-rate contracts used
in shippiag even when contracts were by
foreign-owned shipping lines and were
executed in foreign countries with for-
eign nationals so long as contracts were
to be used, employed, and carried out in
American foreign commerce in delivery
of goods to American ports.
Affirmed.
L Admiralty C=1.
When a foreign-flag shipping line
chooses to engage in foreign commerce
and use American ports, it is amenable
to jurisdiction of United States and sub-
ject to laws thereof.
2. Shipping C=103
Congress had authority to restrict
practice of dual-rate contracts used in
shipping even when contracts were by
power with intent to inflict injury on pri-
vate citizens or with reckless disregard
for their interests."
7. 28 U.S.C.A. 2680(11) excludes slander
and libel actions.
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