Professional Documents
Culture Documents
United States v. Eqbal Ahmad Appeal of Elizabeth McAlister William Davidon, Intervenor, 499 F.2d 851, 3rd Cir. (1974)
United States v. Eqbal Ahmad Appeal of Elizabeth McAlister William Davidon, Intervenor, 499 F.2d 851, 3rd Cir. (1974)
2d 851
protective order to which the parties agreed. The stipulation and order read:
3
'It is stipulated by and between counsel for the parties that the contents of or
information contained in any tapes or transcripts thereof relating to any
overhearing of conversations by means of electronic surveillance, shall not be
disclosed to persons other than defense counsel of record or defendants Philip
Berrigan and Elizabeth McAlister. (signature of counsel) IT IS SO ORDERED.
On October 10, 1972, a suit was filed in the Eastern District of Pennsylvania by
McAlister and one William Davidon against Richard D. Kleindienst, then
Attorney General of the United States, L. Patrick Gray, then Acting Director of
the FBI, John N. Mitchell, former Attorney General, and several named and
unnamed agents of the FBI. The complaint alleged in essence that Mrs.
Berrigan and Davidon were the subjects of illegal wiretaps and that they
claimed damages in accordance with, inter alia, the provisions of 18 U.S.C.
2520,3 which permits recovery of civil damages and counsel fees in such
situations.
The civil case was assigned to Judge E. Mac Troutman for disposition. The
defendants then asserted that they were unable to answer all of the allegations
of the complaint because they were bound by the protective order and the
stipulation filed in the criminal case in the Middle District. To resolve the
impasse, Mrs. Berrigan and Davidon jointly filed a petition with Judge Herman
in the Middle District seeking to vacate the protective order. After
consideration of briefs filed by the parties, Judge Herman on October 24, 1973
refused to lift the protective order. Mrs. Berrigan filed a notice of appeal in the
district court on November 15, 1973, after having been granted an extension of
time by Judge Herman.4
Davidon did not file a notice of appeal but on January 18, 1974, requested leave
to intervene as an appellant in this court. The motion was granted, and Davidon
adopted the brief filed by Mrs. Berrigan.
Since Davidon did not appeal the order as it applied to him, we consider the
merits of this case only as applied to Mrs. Berrigan. In the peculiar
circumstances here, Davidon's intervention is necessarily limited. He cannot
circumvent the requirements for taking an appeal in his own right by a later
petition for intervention in an effort to present contentions applicable only to
him.5
Mrs. Berrigan asserts that the practical effect of Judge Herman's order is that
the plaintiffs in the civil suit will be unable to proceed because it is unlikely
that Judge Troutman will order the defendants in his court to file an answer
which would be in violation of the protective order previously filed in the
Middle District.6
10
However, at oral argument on this appeal, counsel for the defendants conceded
that they could answer the complaint of Mrs. Berrigan to admit that she was
overheard as a result of a surveillance conducted without the authority of court
order. Since Judge Herman found there were two such conversations
intercepted in the period from November 24, 1970 to January 6, 19717 and that
they were illegal, there is nothing to prevent such admissions by the defendants.
These facts were reported in the written opinion of the district court after the
taint hearing had been concluded, and thus, there is no disclosure problem.
11
At this stage of the litigation, therefore, there has been no need shown to have
the protective order lifted as to Mrs. Berrigan.8 The concession of the
defendants in this court that they can, and therefore must, file an answer, will
enable her to present a prima facie case of an illegal overhearing on two
separate occasions. Thus, Judge Herman's order will be affirmed on the basis
that no need exists at this point to vacate the protective order. 9
12
13
The district court took judicial notice of an affidavit filed by then Attorney
General Mitchell on May 13, 1971 which asserted that the surveillance was 'one
deemed necessary to protect against a clear and present danger to the structure
or existence of the Government of the United States' and that '. . . it would
prejudice the national interest to disclose the particular facts contained in the
sealed exhibit.'10 The court took no position on the justification for the
government's desire for secrecy but accepted the Attorney General's affidavit at
face value.
14
The difficulty with this position is that what may have been justified in May of
1971 (on the record of this case we are unable to pass any judgment on that
point) is not necessarily so today. The passage of time has a profound effect
upon such matters, and that which is of utmost sensitivity one day may fade
into nothing more than interesting history within weeks or months. Any
16
17
'The court itself must determine whether the circumstances are appropriate for
the claim of privilege, and yet do so without forcing the disclosure of the very
thing the privilege is designed to protect.'
18
19
20
'In each case, the showing of necessity which is made will determine how far
the court should probe in satisfying itself that the occasion for invoking the
privilege is appropriate. Where there is a strong showing of necessity, the claim
of privilege should not be lightly accepted, but even the most compelling
necessity cannot overcome the claim of privilege if the court is ultimately
satisfied that military secrets are at stake. A fortiori, where necessity is
dubious, a formal claim of privilege . . . will have to prevail.'
21
It may well be that the defendants in the civil case will be those who next seek
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to have the order lifted because of the possibility that the Eastern District will
exercise the broad default powers conferred by Fed.R.Civ.P. 8(d) and 37(b)(2).
See the procedures followed in United States v. Reynolds, 10 F.R.D. 468
(E.D.Pa.1950), aff'd. 192 F.2d 987 (3d Cir. 1951).12 Indeed, we feel it should
have been the defendants who presented the petition to the Middle District in
the first instance. The plaintiffs' proper posture was to insist upon a default
being entered in the Eastern District, thereby shifting the burden to the
defendants to secure a relaxation of the Middle District protective order.
22
See United States v. Ahmad, 347 F.Supp. 912 (M.D.Pa.1972), modified sub
nom., United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); United States v.
Ahmad, 335 F.Supp. 1198 (M.D.Pa.1971); and United States v. Ahmad, 329
F.Supp. 292 (M.D.Pa.1971)
petition was filed under the criminal case caption, the order really applied to a
civil, collateral matter. See Olympic Refining Co. v. Carter, 332 F.2d 260 (9th
Cir. 1964); Fed.R.App.P. 4
5
Nor did Davidon utilize a petition for mandamus, the procedure followed in Ex
parte Uppercu, 239 U.S. 435, 36 S.Ct. 140, 60 L.Ed. 368 (1915) and in
Olympic Refining Co. v. Carter, supra
On September 12, 1973, Judge Troutman signed an order granting the motion
of the plaintiff to compel the defendants to answer within 30 days. By
agreement of counsel at a later date, that order was stayed pending the
determination of this appeal
See discussion infra on the balancing of a litigant's need for information against
the government's desire to protect it. As the Supreme Court noted in United
States v. Reynolds, 345 U.S. 1, 11, 73 S.Ct. 528, 534, 97 L.Ed. 727 (1953), '. . .
where necessity is dubious, a formal claim of privilege . . . will have to prevail.'
If in the future any need should arise for a modification of the stipulation,
another application can be presented to Judge Herman
10
11
For discussion of the privilege, see Wright & Miller, 8 Federal Practice and
Procedure: Civil 2019
12
The case was reversed on its merits, not on the procedures employed, by the
Supreme Court in 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953)
See note 6, supra.