UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT NO. 11, 195 EERIK HEINE, VERSUS JURI RAUS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00770R000100030023-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 16, 2016
• Document Release Date: January 13, 2005
• Sequence Number: 23
• Publication Date: July 22, 1968
• Content Type: COURTFILE

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/UNITED STATES COURT OF APPEALS
. 7
Eerik Heine,
Juni Raus,
FOR THE FOURTH CIRCUIT
No. 11,195
5911' 2d 761-17/q1)
- --versus
Appellant,
I E D,
JUL, 22 1968
SAMUEL W. PHILLIPS
r!LERIC
Appellee.
Appeal from the United States District Court for the
? District of Maryland, at paltimpre.
Roszel C. Thomsen, District Judge.
(/oeO Y1 3111V-1.
TUL / Y.)
? Before Haynsworth, Chief Judge, and Boreman and Craven,
Circuit Judges.
Robert J. Stanford and Ernest C. Raskauskas for Appellant,
and-Paul R..' Connolly Williams & Connolly; E. Barrett
.Prettyman.? Jr., and Hogan & Hartson on brief) for Appellee.
?."
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HAYNSWORTH, Chief Judge:
In this slander action, the plaintiff appeals from
an order of summary judgment entered against him, on the
ground of governmental privilege, after a partial disclosure
limited by invocation by the Central Intelligence Agency of .
the governmental privilege against disclosure of state
secrets. The controversy, thus partially surfaced, arose
out of the Central Intelligence Agency's intelligence and
counterintelligence activities and its attempt to expose
the plaintiff as a Soviet KGB agent, a.defamation which the
plaintiff alleges to be false.
The plaintiff, Eerik Heine, is an Estonian emigre
residing in Canada. With an apparent history as a "freedom
fighter" in Estonia, he was an occasional lecturer in the
United States and an exhibitor of an anti-communist film.
As such, he was known to the leaders of Estonian emigr?s
in the United States and apparently entitled to their
confidence.
The defendant, Juri Raus, is also an Estonian
?
emigr. He resides in the United States and is the
National Commander of the Legion of Estonian Liberation.
He readily admits that he told the Board of Directors of
the Legion that he was reliably informed by an official
agency of the United States that Heine was a Soviet agent
or collaborator and that the Legion should not cooperate
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? with him. This, the plaintiff charges, made his film and
his lecture no longer salable and brought him into disgrace
in the Estonian communities in the United States and
Canada.
- In his initial_ax, Raus claimed only a quali-
fied privilege. He claimed that he had spoken, without
malice, only as an officer of the Legion and only on privi-
leged occasions to privileged persons. There was no indication
of any involvement of the CIA. Later, however, an amended
answer was tendered, supported by a series of affidavits
executed by the Director or Deputy Director of the CIA, in
which the absolute executive privilege was claimed. In
4.
those documents it was alleged th.at Raus was an undercover
1
or secret agent of the CIA, had executed special assign-
ments for it in the past and acted under the instructions
of the CIA when he "warned" his fellow Legionnaires that
Heine was a Soviet agent. Earlier disclosure of these cir-
cumstances was said to have been prevented by a CIA secrecy
agreement, to which Raus had subscribed and which purported
to carry with it punishment for violations under 18 U.S.C.A.
?? 793 and 794, including life imprisonment or death. When
the first answer was filed, counsel for the CIA had refused
? 1. His overt employment was in the Bureau of Public Roads
in Washington.
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a government employee such as Raus,
?his instructions, as to one of higher authority exercising
discretionary functions within the cuter perimeter of his
4
authority. Waaasag_zazELWL101-LiaELEaFtions were issued
by one having tem
At the outset it is well to put to one side the
question of the CIA's right to invoke the government's privi-
lege of silence with respect to "state secrets."
"The privilege belongs to the Government and must
be asserted by it; it can neither be claimed nor waived by
a private party'. It is not to be lightly invoked. There
must be a formal claim of Privilege, lodged by the head of
the department which has control over the matter, after
actual personal consideration by that officer. The court
itself must determine whether the circumstances are appropri-
ate 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 pre-
sents real difficulty." United States V. Reynolds, 345 U.S.
1: 7-8 (1953).
The District Court was quite correct in its allow-
ance of the governmental claim of the privilege of secrecy.
It was properly invoked generally by the Director of the CIA.
,
?
4. Barr v. Mato, 360 U.S. 564; Howard v. Lyons, 360 U.S.
593.
5
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permission to Raus to disclose his CIA connection.
Thereafter, the plaintiff sought to take Raus'
deposition in order to obtain additional information about
his employment by the CIA. The Director of the CIA, through
his General Counsel, appeared for the taking of the deposi-
2
tion, and, on a question by question basis, in the presence
.of the Judge, invoked the government's privilege against dis-
closure of state secrets. Raus was allowed to state that he
had been paid, directly or indirectly, for services he had
rendered the CIA, but the privilege was sustained to prevent
probing of the details of his employment.
Otherwise, it appears from affidavits of the
Director of the CIA that Raus and other Estonian emigr?s in
the United States had been sources of foreign intelligence
and that the purpose of the instruction to Raus to discredit
Heine was to protect the integrity of the CIA's sources of 411711
foreign intelligence within Estonianlemigrg groups or P/61 rol
developed through them.
In that state of the litigation, the District Court
3
:granted a motion for summary judgment. It was of the opin-
ion that the absolute governmental privilege was available to
. Earlier, In an affidavit, the Director, himself, had
sought to' invoke the secrecy privilege generally as to
any information in addition to that disclosed in the
affidavits. 7e/Q-,e,Rok/ / 7 /*We ei /ce
3. Heii-16 v. Raus, D.C.Md., 261 F. Supp. 570.
4
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The Court made sufficient inquiry - some of it in sall2E.4 -
to assure that it had not been done lightly, without
pressing so far as to reveal the very state secrets the
privilege is intended to protect. When the deposition of
Raus was taken, he ruled upon each question calling for
information arguably within the privilege, requiring Raus
to answer those which the Court thought would not impair the
privilege while foreclosing answers to those questions which
apparently would. In his conduct of the proceedings, we think
he balanced, as fairly as possible, the conflicting interests
and was faithful to the "formula of compromise" taught by
jleynolds.
We affirm the right of the CIA in this case t
invoke the governmental privilege_against_disclosure Qf
state secrets and its allowance, to the extent it was
5
allowed, by the District Court.
II
On the question of executive privilege in defama-
tion suits, we also agree generally with the District Court,
its analysis of Barr v. Matteo and its reasoning, though we
come to the conclusion that one more detail should have been
supplied before entry of summary judgment.
5. In addition to requiring Raus to answer some questions,
the District .Court rejected the first ,affidavits of the
Director-of the CIA as insufficient to support the claim
of absolute governmental privilege. As a result, addi-
tional affidavits containing additionalinformation were
filed.
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In. Barr v. Matteo, it was held that the Acting
Director of the Office of Rent Stabilization was entitled
to the protection of the absolute executive privilege.
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 payouts under criticism. Three
justices joined Mr. Justice Harlan in the leading opinion
in which the governmental interest in having officials,
exercising discretionary authority, assured freedom to act
in the interest of the agency without fear of having to
defend actions for defamation was balanced against the inter-
est of the individual plaintiffs in seeking judicial rehabili-
. TrIv4
tation of their reputations. With reliance upon the analysis/444
lee
and justification of Judge Learned Hand,in Gregorie V. /Nor If?
2 Cir., 177 F.2d 579,581, quoted also by the Dis-
trict Court in its opinion in this case, preference was given
to the governmental interest. Mr. Justice Black, emphasiz-
ing 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 Justice and Justices
,
Douglas and Brennan dissented generally on the ground that
the absolute executive privilege should be limited to the
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of secrecy, hampers our appraisal of the situation confront-
ing the\CIA, enough appears to relate the defamation .to
governmental interests.
he Director has sworn in his affidavits that Raus
and .other Estonian emigres in this country had been sources
:e2 .
of foreign intelligence and that other sources of such
i4 76'n
gence had been developed through them. Plainly implieit in4r2
the Director s affidavits and the test
ony is the receipt
1 f
by the CIA of information: believed reliable, that Heine was
the
a secret Soviet agent. Such agents do not wear/guise of
their masters and if one could successfully infiltrate the
Estonian emigr? sources in this country he could expect to
discover the foreign sources of intelligence developed
through them. In such circumstances, is the CIA to seek an
indictment on charges it cannot prove if the sources of its
information are its own secret agents in the Soviet Republic?
Is it to it idly by, suffering a pollution of the reliability
f its sources of foreign intelligence and the intimidation,
arrest and persecution of its foreign agents? Or can it
protect its sources of information, as required by the
statute,by:llwarning" its own sources that the infiltrator
t'
is, cli'r may ,be, a Soviet agent? In a sensitive area, closely
.touching national defense, the latter choice seems the one
demanded, by the national interest.notwithstanding-the devastat-
ing impact of the warning upon the one thus accused of
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president and cabinet officers and, possibly, other
appointed officials directly responsible to the president.
\If "Barr v. Matteo extended the earlier decisions
of this Court to what I, and others considered to be the
breaking point," as Mr. Chief Justice Warren observed when
dissenting from the denial of a writ of certiorari in
Becker v Philco Coro., U.S. 9',8f,his case is much
closer to the earlier precedents if we assume that the
actor was the Director, himself.
Unlike Mr. Barr, the Director of the CIA Is
appointed by the President of the United States with the
advice and consent of the Senate._ He is responsible to the
President through the National Security Council. His office
is not of Cabinet rank, but it is a highly sensitive position.
Necessarily, the Director must work in close collaboration
with the President, himself, and with such cabinet officers
as the Secretary of State and the Secretary of Defense. He
is closer by far to the White House than an acting Director
of Rent Stabilization, a subordinate official under the
Director of Economic Stabilization.
In Barr v. Matteo, too, there was room for Mr.
Justice Stewart's view that Barr acted not so much to pro-
tect the agency from criticism as to divert the criticism
from his shoulders to those of his two subordinateS. Here,
. See Spalding v. Vilas, 161 U.S. 483.
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8
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in contrast, we have no such possibility. While we cannot
penetrate the ,cloak of secrecy which surrounds the CIA, there
is no reason to suppose the defamation had any relation to
the Director's personal career or his reputation or to those
of his subordinates. For all that appears, it was done
entirely out of consideration of the national interest.
1?The CIA and its Director are specifically charged
with the duty and responsibility Of protecting sources of
foreign intelligence and methods of collecting such intelli-
7
gence from unauthorized disclosure. That aliens within
this country are sources of foreign intelligence, as claimed
by. the Director, has been recognized by.the'Congress. If
the Director determines that an alien's entry for permanent
residence in the United States is in the interest of national
security or essential,to the Agency's intelligence mission, the
entry of the alien and his family is allowed though they
. 8
. would be otherwise inadmissible. Unlike Barr, who acted
.under no direction or specific authorization to issue press
releases, action here to protect the integrity of sources of
foreign intelligence was exPlicitlY directed by Congress. 7
If it .be said that the defamation here was deliberate,
and it was, it was no more deliberate than the defamation in
j.3.2E.L.y.ma-teo and its purpose was loftier. While the veil
. 50 U.S.C.A. ?? 403(d) (3),403 g.
8. 50 U.S.C.A. ? 403 h.
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of the principle to this case has been suggested in an
12
article generally critical of the District Court's decision.
/to Rau s
We conclude that the absolute privilege is available
his instructions were issued with the approval of
the Director of a subordinate authorized by the Director,
in the subordinate's discretion, to issue such instructions,
the giving of the instructions was subsequently ratifie
and approved by such an official.
Though the Director's affidavits state that Raus
acted under instructions of the CIA, which certainly strongly
implies that the instructions were given by, or with the
approval of, a responsible, authorized official. of the Any
and though the Director's appearance in the case carries with
it a strong implication of his personal ratification and
417Zrf approval, it is said that on the present record there is
71?V0/90'
still a permissibleinference that the instructions were Ijiveni
.by an unauthorized underling(an 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;
? Since summary judgment, was issued, we will.vacate
the judgment so that, if the plaintiff represents to the
District Court serious reliance upon the inference,' further
12. Spying and Slandering: An Absolute Privilege for the
CIA Agent? 67 Col. L.Rev. 752.
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espionage. While the effect of the defamation upon the
plaintiff here may have been greater than the harm suffered
by the plaintiffs in Barr v. Matteo, the relation of the
defamation to the national interest is much closer.
While the claim of seorecy prevents our obtaining
a clear view of the entire scene, the Director's sworn, but
undocumented, claims are enough to support the claim of
privilege
governmental iffilgun-ity. That ought to be enough when the
statements are those of an official in so responsible an
office and a requirement of further documentation and elabora-
tion would violate the privilege of state secrets or greatly
burden its exercise.
Thus far, our analysis of the problem is deficient,
for we have assumed that the Director, himself, was the author
of the defamation. The present record does not show that he
was, though it is certainly inferable that the instructions
to Raus were given by one having authority, from the Director
to issue them. In appraising this case in comparison with
Barr v. Matte,o however, it has been useful to start with
the assumption that the Director, himself, uttered the defama-
tion, for it should follow, as of course, that the subordinate
who acts. with.the authorization of.the superior is entitled
privilege -
to claim, the same 4alm-u-r- as the superior.
?
If, in defamation cases, recognition of an absolute
privilege for judges, legislators and highly placed executive
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officers of the government, when acting in line of duty, is
to serve its intended purpose, it must extend to subordinate
officials and employees who execute the official's orders.
There would be little purpose to a cloak of immunity for Mr.
Barr if Mr. Matteo were allowed to maintain an action for
defamation against all of those subordinates in his office
who "published" the defamation in the course of handling and
distributing the press release. There would be no advantage
in protection to a judge against actions-for defamation founded
upon statements made by him in an official opinion written for
his court, if such actions could readily be maintained against
his secretary who, at his direction, typed and transmitted the
opinion, or against the clerk of the court who published it
publicly. If the circumstances impose a compelling moral obli-
gation upon the superior to defend and indemnify the subordi-
nates, immunization of the superior alone from direct defama-
tion actions would be a useless formalism.
Recognition of an absolute privilege of the subor-
dinate by attribution of the superior thus appears to be a
necessary corollary of the superior's privilege. It is
generally recognized that an agent, acting within the scope
of his authority, does have whatever privilege the principal
9
would have enjoyed if he had acted for himself. The princi- X'AA
PW64
10
pie is applicable in defamation actions and, if an author- /f?
ized agent,would have been privikged, 747
11
confers the privilege upon an unauthorized agent. Applicability
9. Restatement (Second) Agency ? 345 (1958).
10. Ibid. Illustration 2.
11. Ibid. Comment (e).
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inquiry may be had and additional findings made. The
inquiry should be directed to the identit of the official
within the Agency who authorize
approved the instructions
to Raus. Disclosure of the identity of the individual who
dealt with Raus is
required; the answer to be sought is
Whether or not the Director or d Deputy Director or a subor7
dinate official, having authority to do so, authorized,
approved or ratified the instructions. If such disclosures
are reasonably thought by the District Judge to violate the
claimed privilege for state secrets, they may be made in
camera, ?to that extent. Disclosures in camera are inconsis-
tent with the normal rights of a plaintiff of inquiry and
? cross-examination, of cours., but if the two interests cannot
be reconciled, the interest of the individual litigant must
give way to the government's privilege against disclosure
of its secrets of state.
Finally, we may observe that while we generally
approve entry of summary judgment for the defendant, subject
only to the limited additional inquiry we direct, the plain-
tiff would fare no better if the defendant's privilege were held
to be not absolute, but only qualified. Heine cannot contro-
vert the claim of Raus, supported by the CIA, that he acted
13
under InstrUctions of that Agency.
Heine claims no publi-
13. Here, 'it Would matter not if the instructions were
- .
unauthdrized within the Agency as long as. Raus believed
them to be.
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cation exceeding the instructions. He has no basis for
a showing of malice. If summary judgment is appropriate
after the additional, limited inquiry we direct, it will
avoid the necessity of a trial and possible compromise of
state secrets which the government is entitled to preserve-.
014441g.
Vacated and remanded. POPI
2q/
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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,
especially 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 sufficient
8
to support summary judgment. I believe it error to accept general
assertions1 as a basis 'for summary judgment where the opposing
party is without access to information normally available to test
the affidavits because of the invocation of the state secrets
privilege. Of. Fed. R. Civ. P. 56(f).
The court says that if executive immunity "is to serve its
intended purpose, it must extend to subordinate officials and
employees who execute the officials' orders." Thi S means that
millions of federal employees axe 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 (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
assuming2 that the publication 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
employment. I cannot believe that the latter is intended3 and,
1.
2.
3.
Rule 56(e) contemplates that a sufficient affidavit shall "set
forth such facts as would be admissible in evidence."
It is true that Helms' affidavit contains the assertion that Raus
was 'acting within the scope and course of his employment" and
was instructed to publish the defamatory- words.:. Without factual
averments, 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 employer.
If Raus had shot Heine, presumably no court would exonerate him
of tort liability on the ground he was told to do it - not even
for the purpose of shielding the government Official who told him.
"When 007 plinks an enemy with a well directed projectile from
his trusty Walther PPK .32, aficionados give no thought to his
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 te Fiemin phantasmagoria." Comment, Spying and Slandering:
An Absolute Pif:ivilee for the CIA Agent?, 67-0=m. 7-)2
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therefore, 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 ? 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 his secrecy agreement with CIA or CIA's invoca-
tion of the executive privilege to !protect'state secrets are,ap-
pealing 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 privilege.
If the result be that Raus cannot show that he acted within the
scope of his employment and is thus entitled to a derivative
privilege, it dOes not seem to me that the court ought to assume
what he cannot establish. To do so is to put upon Heine a burden
of proof that is not his and which he cannot possibly sustain: to
show that Raus is not entitled.to executiVe immunity.
Te National Security Act specifically delegates to the
Director, and not to the Agency, the statutory power relied on by .
tie CIA and the district judge to justify the defamatory statements,
p,nd the affidavits do not suggest that the Director personally in-
structed Raus to defame Heine, nor is there any showing that the
Director approved the defamation of Heine or properly delegated
(his responsibility to protect intelligence sources.4 On remand,
surely a probing inquiry into this matter can be accomplished with-
out 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, extends 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 protect the govern-
ment employee in this case. I agree that:such a result seems like-
ly, and I would be content if Raus were accorded Only that privileg
4nd Heine given the opportunity to prove, he can, actual malice.
Helms' affidavit of April 1, 1966, shows a broad delegation of
powers to the Deputy Director effective April 28, 1965 - long
after the defamation of Heine occurred in 1963 and 1964.
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Wha [9istinguishes this case for me from Barr and its progeny
is the deliberate choice by the Central Intelligence Agency of
defamation of character as an instrument of national policy. Such
a factor alone seems to me to 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 instrument of governmental
? ----policy. But if I am wrong about-that, I suggest that a rule must
be fashioned to limit the exercise of intentional defamation to
responsible officers and officials. To immunize millions of
government subordinate employees from liability for intentionally
slandering private persons upon their mere explanation that they
were told to do it, and the assertion that it was within the scope
of employment, destroys, in my opinion,. the balance that was struck
in Barr. If the CIA must defame someone in order to protect
.a,,,tional security, it seems to,me it could be done more effective-
ly 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 ex-
ecutive 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, 766-68 (1967). There is here no comment
which served the interest of discussion and criticism of government
activity or foreign relations, Not involved here are intra-depart-
mental confidential communications necessary to the intelligent
functioning- of government. Nor is there any possibility here of
scrutiny .by an,alternative remedial procedure in which Heine might
vindicate himself or rehabilitate his reputation.5 The privilege
is sought by one who is not subject 7 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 reprimanded by CIA for doing so.
5.
Indeed, Heine presented himself in Washington for arrest on the
theory that if he were in fact a Communist, he would be guilty
of failing to register under the Federal Foreign Agents Regis-
tration Act. 22 U.S.C.A. ?? 611-21 (196)4) as amended (Supp.
1966). Neither the FBI nor the CIA made any response. N.Y.
Times, April 28, 1966, at 29, col. 1; id., April 29, 1966, at
19, col. 1; id., May 14, 1966, at 2, col. 3.
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Unlike Barr v. Matteo and other typical defamation cases, there
was here deliberate use of defamatory material, said even now, after
the event, to have been authorized by an agency of government (not
simply done by an "unworthy" individual employee) for the very pur-
pose of destroying the influence and effectiveness of an individual.
Barr was not intended to protect the oppressive use of governmental
power. Nor Was the rule in Barr formulated for the protection of
the "unworthy" officer of government. The protection afforded such
an officer was given to him, not because he deserved to have it,
but because of fear that if he was denied it, there might result a
deterrent effect upon honest and well intentioned officers of
government that would hamper government operation. The premise
of Barr is that because of ?human foible officers of government may
sometimes unfortunately defame innocent individuals and that pro-
tection of such an officer is a necessary evil in order to protect
worthy officers from the fear of private civil libel actions.
Barr, envisioned defamation and possible slander as the occasional
failures of fallible human beings aCting as government officers and
not as instruments of governmental policy. I think the immunity
conferred in Barr has no application to a fact situation where
defamation is chosen by a government agency as deliberate policy,
That CIA may adopt a policy of defamation for the reason that it
thinks such a policy is in the best interest of the United States
is implicit in the silence ol.lthe Federal Tort Claim Act,7 and the
undoubted power 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 district court to consider
wether or not Raus by reason of his position in the Estonian
O.
See Comment, 77 Yale L. J. 367, 387 (1967), wherein discussing
legislative immunity under U.S. Const. art. I, ? 6, it is sug-
gested that a defamed person ought to have "redress against
conduct that no rationale for the constitutional privilege
purDOrts to justify: the exercise of public power with intent
to inflict injury on private citizens or with reckless disregard
for their interests."
28 U.S.C.A. ? 2680(h) excludes slander and libel actions.
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Legion is enttled to assert the qualified privilege commonly granted
to those Who have a special interest to preserve. See Prosser.,
Torts ? 110 (3-d ed. 196)4). 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 v. Sullivan,
376 U.S. 254 (l964), and its progeny. Surely, as the court sug-
gests, one or the other of these ought to'be enough.
-5.-
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