UNITED S TATE S COURT OF APPEALS FOR THE FOURTH CIRCUIT EERIK HEINE, APELLANT, VS. JURI RAUS, APPELLEE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00770R000100080001-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 70
• Document Creation Date: December 16, 2016
• Document Release Date: January 24, 2005
• Sequence Number: 1
• Publication Date: October 9, 1970
• Content Type: COURTFILE

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1. Appeal from the United States District Court for the District of Maryland,
Brief for Appellant.
2. Brief for Appellee, Statement of Issues Presented for Review
3. Decision - United States Court of Appeals for the Fourth Circuit
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-7 UNITED STATES COURT OF APPEALS
No. 14.281
Eerik Heine,
Appellant,
Juri Raus,
Appellee.
Appeal from the United States District Court for the
District of Maryland, at Baltimore. Roszel C. Thomsen,
Chief District Judge.
Argued October 9, 1970
Decided October 30, 197
Before HAYNSWORTH, Chief Judge, WINTER, and CRAVEN, Circuit
Judges.
Robert J. Stanford and Ernest C. Raskauskas for Appellant,
and Paul R. Connolly (J. Alan Galbraith, and Williams &
Connolly; E. Barrett Prettyman, Jr., and Hogan & Hartson
on brief) for Appellee.
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Il'p1 Fir. 4
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1,bf'a-k /(2 AS/t;s
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FOR THE FOURTH CIRCUIT
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PER CURIAJ4:
On remand the district court fairly resolved the
question of authority and ratification left open by our
prior decision, Heine v. Rsus, 399 F.2d 785 (4th Cir.
1968). Thereupon he entered summary Judgnent in accord-
ance with the law of the case.
Affirmed.
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IN THE
UNITED STATES COURT OF APPEALS
For the Fourth Circuit
No. 14,241
EERIK ~iEINE, Appellant,
V.
JURI RAUS, Appellee.
LAW OFFICES
WILLIAMS 8 CONNOLLY
1000 HILL BUILDING
WASHINGTON. D. C. 20005
AREA CODE 202
030.656$
Williams & Connolly
1000 Hill Building
Washington, D. C. 20006
Hogan & Hartson
815 Connecticut Avenue
Washington, D. C. 20006
Paul R. Connolly
J. Alan Galbraith
1000 Hill Building
Washington., D. C.
20006
E. Barrett Prettyman,
815 Conn,:~cti cut Ave.
W a sh i n q ton , D. C.
2000
Attorneys for Appellee!
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0 S
Page
Issues Presented for Review ............................ 1
Statement of the Case ................................ 2
Statement of Facts ...................................... 4
Argument ............................................... 9
The District Court properly determined that the
instructions given Raus were both authorized and
thereafter ratified by responsible CIA officials
a. Under the circumstances Heine was not
entitled to take the deposition of
Richard Helms ................................. 10
b. The findings of fact entered by the
District Court are fully supported in
the record .................................... 11
c. The District Court properly accepted the
claims of privilege asserted by the
Government .................................... 13
Conclusion ................................4............. 15
LAW OFFICES
WILLIAMS & CONNOLLY
1000 HILL DUtLDING
WASHINGTON. 0. C. 20005
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630.6580
Barr v. Matteo, 360 U.S. 564 (1959) .................... 9
Frost v. Stern, 298 F.Supp. 778 (D.S.C. 1969) 12
Heine v. Raus, 399 F.2d 785 (4th Cir. 1968) ............ 2, 3,
12, 13,
14
Heine v. Raus, 305 F.Supp. 816 (D.Md. 1969) ............ 4, 6,
7, 8,
10, 13
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LACI OFFICES
WILLIAMS & CONNOLLY
1000 SILL BUILDING
WASHINGTON. D. C. 20006
AREA CODE 202
b30.0565
Houtenville v. Dunahoo, 286 F.Supp 5 (N.D. Miss. 1968) 12
Howard v. Lyons, 36Q U.S. 593 (1959) ...................... 12
Scherer v. Brennan, 379 F.2d 609 (7th Cir. 1967) .......... 12
Scherer v. Morrow, 401 F.2d 204 (7th Cir. 196.8) 9
United States v. Reynolds, 345 U.S. 1 (1953) .............. 13
Rule 56(c) & (e), Fed.R.Civ.P . ............................ 12
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IN THE
UNITED STATES COURT OF APPEALS
For the Fourth Circuit
No. 14,241
EERIK HEINE, Appellant,
V.
JURI RAUS, Appellee.
STATEMENT OF ISSUES
PRESENTED FOR REVIEW
LAW OFFICES
W LLIAMS & CONNOLLY
1000 HILL BUILDING
WASHINGTON. D. C. 20006
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02B?6565
Whether the remand hearings, which resulted in
factual findings by the District Court that responsible CIA
officials both authorized and approved the instructions given
defendant Raus,complied with the directions of this Court.
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STATEMENT OF THE CASE
Upon the first appeal this Court concluded that
defendant Raus could appropriately assert the absolute privilege
accorded a_governmental officer or agent acting -within the
scope and course of his duties as a bar to plaintiff Heine's
slander action, provided Raus could establish that the instruction
he received were either authorized by or approved by responsible
CIA officials.
We conclude that the absolute
privilege is available to Raus
if his instructions were issued
with the approval of the Director
or of a subordinate authorized by
the D':irec}Or~. i r the subordinate' s
_ ~ .~:.. ~A.
discretion, to issue such instruc-
tions, or if the giving of the
instructions was subsequently
ratified and approved by such an
official. [Heine v. Raus, 399
F.2d 785, 791.11
LAW OFFICES
WILLIAMS & CONNOLLY
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WASHINGTON. D. C. 20006
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638-6505
On the record before it, this Court was unwilling to
say, as a matter of law, that the CIA had either authorized
or approved the instructions, although this Court found in the
record a "strong" implication that Raus had acted under/proper
authority or that his instructions had been ratified. This
Court thus vacated the summary judgment awarded in favor of Raus.
It directed the District Court to hold a further hearing if Heine
1/ Heine v. Raus, 399 F.2d 785, 791.
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represented to the Court that he was placing "serious reliance"
on a possible inference, not yet completely foreclosed by the
record, that the instructions were not given by, or with the
approval of, an authorized officer and that they were not later
ratified. This Court strictly circumscribed the bounds of a
remand hearing:
The inquiry should be directed
to the identity of the official
within the Agency who authorized
or approved the instructions to
Raus. Disclosure 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 subordinate official,having
authority to do so, authorized,
approved or ratified the instruc-
tions. [Heine v. Raus, 399 F.2d at
791.]
LAW OFFICES
WILLIAMS & CONNOLLY
1000 HILL BUILDING
WASHINGTON. D. C. 20006
AREA CODE 202
698.6565
Following vacation of the judgment, Heine represented
to the District Court that "he seriously relies upon the inference
that the actions and statements of Juri Raus, the defendant,
against the plaintiff, were not with the approval of a responsible
official of the Agency having authority to issue or approve such
instructions." (J.A. ) The District Court reopened the pro-
ceeding to make the limited inquiry sanctioned by this Court.
At the conclusion of the proceedings hereinafter described, the
District Court found that the instructions given Raus had been
issued by an authorized CIA officer and, subsequently, that the
instructions had also been approved or ratified. Accordingly, the
District Court awarded summary judgment in favor of Raus for the
second time. This appeal followed.
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STATEMENT OF FACTS
LAW OFFICES
WILLIAMS P3 CONNOLLY
1000 HILL BUILDING
WASHINGTON. 0. C. 20006
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The course of the remand proceedings is fully set forth
in the District Court's second opinion. See Heine v. Raus, 305
F.Supp. 81,6, 819-821 (D.Md. 1969). Because Heine challenges in
this Court the fairness of the hearing he received, we sketch the
highlights of those proceedings.
At the request of the parties the District Court held a
conference on February 10, 1969, to determine the procedure to
govern the remand hearing. (J.A. ) At that time Raus tendered
the affidavit of Richard Helms, Director of Central Intelligence,
stating in substance that (1) Raus had received his instructions
IP 2/
from an authorized counterintelligence officer, (2) in Decemhe,
2/ In the first remand affidavit, dated February 10, 1969, Hers
explained that counterintelligence officers responsible to
him received from intelligence sources information which
brought them to the conclusion that Heine was a KGB agent.
Helms further explained that "the counterintelligence officer
responsible for safeguarding sources of intelligence develope
in Estonian emigre groups, acting in accordance with his
prescribed duties, instructed Juri Raus to warn members of
the Estonian emigre groups that Eerik Heine was a Soviet in
telligence operative, a KGB agent." The Court asked the
Government to clarify whether the counterintelligence off:icEr
who instructed Raus was one of the officers who evaluated
the information received from intelligence sources. In a
supplemental affidavit, filed April 2, 1969, Helms stated
that the same officer was involved, thereby clarifying the
fact that this officer was responsible to Helms as a Deputy
Director.
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of 1964, after this litigation had been brought, he (Helms.) as a
Deputy Director had approved and ratified the counterintelligence
officer's instructions, and '(3) as Director, he could affirm that,
as a Deputy Director, he had authority to approve the instructions
given Raus. Upon the basis of this new affidavit Raus again moved
for summary judgment.
At this conference Heine requested leave to take the oral
deposition of the Director. The Court stated that, before ruling
on Heine's, motion, it wanted Heine to submit questions he proposed
to ask the Director in order that the Court might understand what
areas he desired to explore. (J.A. ) On March 19, 1969,
Heine served 35 questions on Raus to be answered by the Director.
(J.A. ) Raus objected to them all. (J.A. ) On behalf of
the Director, the United States informed the Court that it would
defer any consideration of the secrecy privilege until the Court
had ruled on the propriety of the questions submitted by Heine.
(J.A.
At the second hearing, held June 6, 1969, the Court
ruled, question by question, on the objections interposed by Raus.
(J.A. ) The Court found fourteen questions to be within
the scope of the remand hearing, disallowed nineteen questions,
and reserved ruling on two. (J.A. ) Thereafter, the United
States informed the Court by letter that it opposed the taking of
Mr. Helms' deposition but, subject to the claim of governmental
privilege, would answer the questions permitted by the Court.
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limited the amount of disclosure through assertion of the secrecy
responded to all questions; with respect to three questions,
These responses were filed on September 29, 1969. The Director
3/
privilege. (J.A.
At the third hearing, held October 17, 1969, Heine
renewed his request to take the oral deposition of Mr. Helms.
(J.A. ) The Court agreed that, as a general proposition,
discovery through oral. depositions is usually more satisfactory
than discovery through written interrogatories; while commenting
that the Director's answers seemed "very full" (J.A. ), the
Court demonstrated a willingness to allow the Director's deposi-
tion, if Heine could make some showing that further substantive
4/
matters would be developed. Accordingly, the Court pressed
counsel for Heine for "an example of a couple of the questions you
3/ In these questions (3, 5 and 12) Heine sought to develop
additional information about the counterintelligence office
who instructed Raus. Beyond stating that he was a full-tim
staff employee and referring to the disclosures in the remand
affidavits, Helms invoked a claim of privilege and declinedf
to divulge other information. These questions and answers
are set forth in footnote 4 of the District Court's opinion
305 F.Supp. at 819.
4/
On
behalf of the Director
the United States opposed the tak
.n-
of
Mr. Helms' deposition.
Its position was well expressed i
n
a
letter of July 16, 1969,
to the Court from Mr. Yeagley,
LAW OFFICES
WILLIAMS & CONNOLLY
1000 HILL BUILDING
WASHINGTON. D. C. 20006
AREA CODE 202
638-0585
Assistant Attorney General. Because relevant questions migt t
have sought information that could not be disclosed, Mr.
Yeagley emphasized the burdens inevitably accompanying a
decision to invoke the privilege against disclosure of stat
secrets -- review of voluminous files containing sensitive
material, consultation within the Agency, and, a considered
determination by the Director himself. An oral examination
did not, in the Government's view, offer sufficient oppor-
tunity for reflection nor did it provide a satisfactory for M
for the performance of these tasks. Nevertheless, the
District Court was, initially, willing to accommodate the
Director only to the extent of holding the deposition in
Virginia under the auspices of the Court. (J.A.
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want to ask [Mr. Helms]. You must have some idea." (J.A.
Counsel for Heine first brought into question the power of
Mr. Helms, as a Deputy Director in 1964, to ratify Raus' action.
(J.A. ) In view of the affidavits and answers then of
record, the Court correctly noted that the issue remaining was
legal, as opposed to factual. (J.A. ) The Court again
asked counsel for a proper question. (J.A. ) Counsel for
Heine stated he would like to inquire about the specific form of
the instructions given Raus (J.A. ) and about the information
available to Mr. Helms when he reviewed Raus' action. (J.A.
But in these areas further inquiry would have been pointless
because, as
had already
Thus, after
the District Court stated in its opinion, the Director
made known his intent to invoke the secrecy privilege.
fully indulging counsel for Heine, the Court could
see no line of inquiry warranting an oral deposition of the
5/
Director.
Subsequently, in a formal opinion, the Court found:
The Director's affidavit . . . supported by
his answers to interrogatories, shows:
(a) that the instructions to Raus were given
by a subordinate official of the agency,
authorized to do so, and acting in the
course of his prescribed duties and not by
an unauthorized underling; and
LAW OFFICES
WILLIAMS & CONNOLLY
1000 HILL BUILDING
WASHINGTON. D. C. 20006
AREA CODE 202
838.6565
(b) that Helms, as Deputy Director of the Agency
in December, 1964, was authorized to and did
5/ Heine v. Raus, 305 F.Supp. at 820.
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-itify and approve the action taken by the
counterintelligence officer who instructed
Juri Raus to warn members of the Estonian
emigre groups that Eerik Heine was a Soviet
intelligence operative, a KGB agent. [Heine v.
Raus, 305 F.Supp. at 821.]
LAW OFFICES
WILLIAMS & CONNOLLY
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ARGUM ENT
The District Court proper determined that the instructions given
Razes were both authorized and thereafter ratified by responsible
CIA officials.
As previously noted, this Court in its former opinion
accepted and applied the now well-recognized principle that an
employee of the United States acting-within the scope of his
authority is immune from liability for defamation on account of
6/
his utterances. Barr v. Matteo, 360 U.S. 564 (1959).
This Court likewise approved the method which the
District Court had employed during its former hearings to deal
with the problem of governmental secrecy.
It found, however, upon the record presented to it a
possible -- if unlikely -- inference which would prevent the entry
summary judgment. The remand to the District Court was for a
LAW OFFICES
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narrow purpose -- to make inquiry as to the existence of one or
another condition: (a) whether an authorized CIA official
instructed Raus, or (b) whether an authorized official ratified
the actions of the official who provided the instructions.
The District Court found both proper authorization and
7/
proper ratification.
6/ No case subsequent to this Court's application of the prin-
ciple has reflected adversely upon Barr or upon this Court's!
decision. The principle was applied in an analogous case
decided soon after Heine v. Raus. Scherer v. Morrow, 401
F.2d 204 (7th Cir. 1968).
7/ Heine's brief is larded with invective and vituperation;
e.g., "The defendant and the CIA have cleverly avoided the
out-right lie of calling Raus an employee . . ." (p. 16)
" . . . in light of the history of this case and the bald-
faced lies issued by the defendant, the CIA and Richard
Helms . . ." (p. 17). Since the decisional process is not
aided thereby, we resist the temptation to reply, while re-
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In the District Court Heine constantly sought to enlarge
the opening provided him by this Court so as to relitigate many
of the issues which were foreclosed to him by this Court's previouq
opinion. He complains in this Court that he did not receive a
fair hearing; we explain below why his attack upon the judgment is
without merit.
a. Under the circumstances Heine was not entitled
to take the deposition of Richard Helms.
The record of the October 17, 1969, hearing shows that
the District Court was disposed to permit the deposition of
Richard Helms, despite the practical objections raised by the
ited States, provided that counsel for Heine could suggest a
LAW OFFICES
WILLIAMS & CONNOLLY
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I specific question which met these criteria. In 1 L. D Up-1-111""11 41i_ I
secrecy privilege. Counsel for Heine could not suggest any
this responses to Heine's interrogatories, dad asserted a claim of the
the remand, and (b) was not in an area to which the Director, in
single question, based in fact, which (a) was within the scope of
kCourt accurately summarizes what occurred:
The Court repeatedly asked counsel for
plaintiff what information they wished
to obtain in addition to that included
in the Director's affidavits, particularly
the affidavits of February 10, 1969, and
April 2, 1969, and in his answers to those
interrogatories which the Court required
him to answer. Aside from matters on which
the Director claimed privilege, counsel for
plaintiff did not suggest any other ques-
tions, but elected to stand on the record.
[Heine v. Raus, 305 F.Supp. at 820.1
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LAW OFFICES
WILLIAMS S CONNOLLY
1000 HILL BUILDING
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Counsel for Heine expected too much if, at the time of the remand
hearing, -they could not suggest to the Court a single, meaningful
question which would have justified the taking of a deposition.
The Court prodded counsel for Heine to spell out, if only in small
degree, what they sought to accomplish by an oral deposition. The
patience of the Court, we think, is amply demonstrated by the
record. In these circumstances counsel for Heine should not now r
complain that the denial of the request for an oral deposition of;
the Director of Central Intelligence deprived their client of a
fair hearing.
b. The findings of fact entered by the District
Court are fully supported in the record.
We do not understand how Heine can question the District
Court's factual rulings in this Court. Admittedly, they were
entered on the strength of affidavits and sworn answers to inter-
rogatories but, as already pointed out, counsel for Heine made no
showing whatsoever how the limited inquiry ordered by this Court
would be advanced through oral deposition.
Furthermore, on the first appeal this Court explicitly
approved the use of affidavits. In discussing whether the claim
of governmental privilege had been properly invoked, this Court
I said:
While the claim of secrecy prevents our
obtaining a clear view of the entire scene,
the Director's sworn, but undocumented,
claims are enough to support the claim of
governmental privilege. That ought to be
enough when the statements are those of
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an official in so responsible an
office and a requirement of further
documentation and elaboration would
violate the privilege of state
secrets or greatly burden its exercise.
[Heine v. Raus, 399 F.2d at 790.]
LAW OFFICES
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In other cases involving the doctrine of immunity for official
acts, courts have regularly relied upon affidavits setting forth
the duties of the government officer against whom suit has been
brought. See, e.g., Howard v. Lyons, 360 U.S 593, 595-596 (1959);
Scherer v. Brennan, 379 F.2d 609, 610-611 (7th Cir. 1967); Frost v
Stern, 298 F.Supp. 778, 780 (D.S.C. 1969); Houtenville v. Dunahoo,
286 F.Supp. 5, 7 (N.D. Miss. 1968). When such affidavits are not
controverted by other sworn testimony, they afford an ample basis
for summary judgment. In this case the District Court's careful
opinion underscores its faithful observance of the requirements
of Rule 56(c) & (e), Fed. R. Civ. P.
But Heine contends that the District Court should have
rejected the affidavits submitted upon remand because they assert
conclusions rather than state facts. In this case the questions
of authorization and approval, however, are straightforward
matters of fact. The official instructing Raus was responsible tol
Helms. As a Deputy Director, Helms knew whether this official acted
within the scope of his duties. Helms swears that he did. As a
Deputy Director, Helms either approved the official's actions or
he did not. Helms swears that he did. These are plain statement
senior intelligence officer of the United States,
f fact by the
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an individual directly responsible to the President. They fully
8/
warrant the award of summary judgment in favor of Raus.
c. The District Court properly accepted the
claims of privilege asserted by the Government.
This Court's opinion on the-first appeal states with
unmistakeable clarity that disclosure of the identity of the
counterintelligence officer instructing Raus was not required.
See Heine v. Raus, 399 F.2d at 791. Three of Heine's interroga-
tories sought to elicit detailed information concerning the job
description of the counterintelligence officer. To these
questions the Director claimed the privilege against disclosure of
9/
state secrets and the District Court sustained him. Heine v.
-~ 10 r ,..-
Rau s, , 3 u :J 1 rI. C+.~l,tl'7.. a ` u ..s. .
In this Court Heine contends that the District. Court's
acceptance of the claims of privilege did not comport with the
standards enunciated in United States v. R&ynolds, 345 U.S. 1
(1953). In its answers to the interrogatories, however, the
F'/ In light of the factual representations contained in the
remand affidavits, an in camera hearing was unnecessary.
Nor did Heine request such a hearing. There is nothing
in this Court's opinion on the first appeal which compelledi
an in camera hearing, and Heine's present contention in this
Court that the District Court was so obligated is frivolous!
Except as to the fact that the officer was a full-time staf_:
employee of the Agency covered by the Civil Service
Retirement Act.
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Government had already invoked the privilege, and the Government
asserted the privilege in an area already closed to Heine by the
prior opinion _of this Court. In these circumstances _the District
Court had no Reynolds duty to conduct another hearing to test
the sincerity of the invocation of the privilege. Furthermore,
because the District Court had once conducted a Reynolds hearing
in this litigation, and had done so in a manner approved by this
Court (see this Court's opinion, 399 F.2d at 788), the District
Court was not obligated to conduct yet another such hearing.
LAW OFFICES
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Appellee Raus requests that this Court affirm the judgment
Respe-ctfully submitted,
/5/
Paul R. Connolly
/5/
J. Alan Galbraith
1000 Hill Building
Washington, D. C. 20006
E. Barrett Prettyman, Jr.
815 Connecticut Avenue
Washington, D. C. 20006
d
Attorneys for Appellee
LAW OFFICES
WILLIAMS & CONNOLLY
1000 HILL SWLDING
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Williams & Connolly
1000 Hill Building
Washington, D. C. 20006
Hogan & Hartson
815 Connecticut Avenue
Washington, D. C. 20006
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United States Court a! Appeals
No. 14,241
EERIK HEINE, Appellant,
V.
JuRI RAns, Appellee.
BRIEF FOR APPELLEE
Of Counsel:
WILLIAMS & CONNOLLY
1000 Hill Building
Washington, D. C. 20006
HOGAN & HARTSON
815 Connecticut Avenue
Washington, D. C. 20006
PAUL R. CONNOLLY
J. ALAN GALBRAITH
1000 Hill Building
Washington, D. CC. 20006
E. BARRETT PRETTYMAN, JR.
815 Connecticut Ave.
Washington, D. C. 20006
Attorneys for Appellee
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Page
Issues Presented for Review ........................ 1
Statement of the Case ............................. 1
Statement of Facts ................................ 3
Argument ........................................ 6
THE DISTRICT COURT PROPERLY DETERMINED THAT THE
INSTRUCTIONS GIVEN RAUS WERE BOTH AUTHORIZED
AND THEREAFTER RATIFIED BY RESPONSIBLE CIA
OFFICIALS ....................................... 6
a. Under the Circumstances Heine Was Not En-
titled To Take the Deposition of Richard Helms 7
b. The Findings of Fact Entered by the District
Court Are Fully Supported in the Record .... 8
c. The District Court Properly Accepted the
Claims of Privilege Asserted by the Government 10
Conclusion ........................................ 11
CASES AND MATERIALS
Barr v. Matteo, 360 U.S. 564 (1959) .................. 6
Frost v. Stern, 298 F. Supp. 778 (D.S.C. 1969) ........ 9
Heine v. Razes, 399 F. 2d 785 (4th Cir. 1968) ........2, 9,10
Heine v. Rans, 305 F. Supp. 816 (D.Md. 1969) ..3, 4, 6, 8, 10
Houtenville v. Dunahoo, 286 F. Supp. 5 (N.D. Miss.
1968) 9
Howard v. Lyons, 360 U.S. 593 (1959) ............... 9
Scherer v. Brennan, 379 F. 2d 609 (7th Cir. 1967) ..... 9
Scherer v. Morrow, 401 F. 2d 204 (7th Cir. 1968) .... 6
United States v. Reynolds, 345 U.S. 1 (1953) ........ 10
Rule 56(c) and (e), Fed. R. Civ. P ................... 9
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United States Court of Appeals
FOR THE FOURTH CIRCUIT
No. 14,241
EERIK HEINE, Appellant,
V
JuRI Rnus, Appellee.
BRIEF FOR APPELLEE
STATEMENT OF ISSUES PRESENTED FOR REVIEW
Whether the remand hearings, which resulted in factual
findings by the District Court that responsible CIA of-
ficials both authorized and approved the instructions given
defendant Raus, complied with the directions of this Court.
STATEMENT OF THE CASE
Upon the first appeal this Court concluded that defend-
ant Raus could appropriately assert the absolute privilege
accorded a governmental officer or agent acting within
the scope and course of his duties as a bar to plaintiff
Heine's slander action, provided Raus could establish
that the instructions he received were either authorized by
or approved by responsible 'CIA officials.
We conclude that the absolute privilege is available
to Raus if his instructions were issued with the ap-
proval of the Director or of a subordinate authorized
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by the Director, in the subordinate's discretion, to
issue such instructions, or if the giving of the instruc-
tions was subsequently ratified sand approved by such
an official. [Heine v. Raus, 399 F.2d 785, 791.]
On the record before it, this Court was unwilling to
say, as a matter of law, that the CIA had either authorized
or approved the instructions, although this Court found
in the record a "strong" implication that Raus had acted
under proper authority or that his instructions had been
ratified.' This Court thus vacated the summary judgment
awarded in favor of Raus. It directed the District Court
to hold a further hearing if Heine represented to the
Court that he was placing "serious reliance " on a pos-
sible inference, not yet completely foreclosed by the record,
that the instructions were not given by, or with the ap-
proval of, an authorized officer and that they were not
later ratified. This Court strictly circumscribed the bounds
of a remand hearing :
The inquiry should be directed to the identity of the
official within the Agency who authorized or approved
the instructions to Raus. Disclosure of the identity
of the individual who dealt with Raus is not required;
the answer to be sought is whether or not the Di-
rector or a Deputy Director or a subordinate official,
having authority to do so, authorized, approved or
ratified the instructions. [Heine v. Raus, 399 F.2d at
791.1
Following vacation of the judgment, Heine represented
to the District Court that "he seriously relies upon the
inference that the actions and -statements of Juri Raus, the
defendant,. against the plaintiff, were not with the approval
of a responsible official of the Agency having authority to
issue or approve such instructions." (J.A. 3) The Dis-
trict Court reopened the proceeding to make the limited
inquiry sanctioned by this Court. At the conclusion of
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the proceedings hereinafter described, the District Court
found that the instructions given Raus had been issued
by an authorized CIA officer and, subsequently, that the
instructions had also been approved or ratified. Accord-
ingly, the District Court awarded summary judgment in
favor of Raus for the second time. (J.A. 170) This appeal
followed.
STATEMENT OF FACTS
The course of the remand proceedings is fully set forth
in the District Court's second opinion. See Heine v. Raus,
305 F. Supp. 816, 819-821 (D.Md. 1969) (J.A. 159-169).
Because Heine challenges in this Court the fairness of
the hearing he received, we sketch the highlights of those
proceedings.
At the request of the parties the District Court held
a conference on February 10, 1969, to determine the pro-
cedure to govern the remand hearing. (J.A. 162) At
that time Raus tendered the affidavit of Richard Helms,
Director of 'Central Intelligence, stating in substance that
(1) Raus had received his instructions from an authorized
counterintelligence officer,2 (2) in December of 1964, after
this litigation had been brought, he (Helms) as a Deputy
Director had approved and ratified the counterintelligence
officer's instructions, and (3) as Director, he could affirm
that, as a Deputy Director, he had authority to approve
2 In the first remand affidavit, dated February 10, 1969, Helms explained
that counterintelligence officers responsible to him received from intelligence
sources information which brought them to the conclusion that Heine was a
KGB agent. Helms further explained that "the counterintelligence officer
responsible for safeguarding sources of intelligence developed in Estonian
emigre groups, acting in accordance with his prescribed duties, instructed
Juri Raus to warn members of the Estonian emigre groups that Eerik Heine
was a soviet intelligence operative, a KGB agent (italics added)." The
Court asked the Government to clarify whether the counterintelligence officer
who instructed Raus was one of the officers who evaluated the informa-
tion received from the intelligence sources. In a supplemental affidavit, filed
April 2, 1969, Helms stated that the same officer was involved, thereby clari-
fying the fact that this officer was responsible to Helms as a Deputy Director.
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the instructions given Raus. (J.A. 10-12) Upon the basis
of this new affidavit Raus again moved for summary
judgment. (J.A.8)
At this conference Heine requested leave to take the
oral deposition of the Director. The Court stated that,
before ruling on Heine 's motion, it wanted Heine to submit
questions he proposed to ask the Director in order that
the ;Court might understand what areas he desired to
explore. (J.A. 162) On March 19, 1969, Heine served
35 questions on Raus to be answered by the Director. (J.A.
13-22) Raus objected to them all. (J.A. 24-41) On
behalf of the Director, the United States informed the
Court that it would defer any consideration of the secrecy
privilege until the Court had ruled on the propriety of the
questions submitted by Heine. (J.A. 44-45)
At the second hearing, held June 6, 1969, the Court
ruled, question by question, on the objections interposed
by Raus. (J.A. 47-117) The Court found fourteen ques-
tions to be within the scope of the remand hearing, dis-
allowed nineteen questions, and reserved ruling on two.
(J.A. 163) Thereafter, the United States informed the
Court by letter that it opposed the taking of Mr. Helms'
deposition but, subject to the claim of governmental priv-
ilege, would answer the questions permitted by the Court.
(J.A. 44-45) These responses were filed on September
29, 1969. (J.A. 121-127) The Director responded to all
questions ; with respect to three questions, he limited the
amount of disclosure through assertion of the secrecy
privilege.3
3 In these questions (3, 5 and 12) Heine sought to develop additional in-
formation about the counterintelligence officer who instructed Raus. Beyond
stating that he was a full-time staff employee and referring to the disclosures
in the remand affidavits, Helms invoked a claim of privilege and declined to
divulge other information. These questions and answers are set forth in
footnote 4 of the District Court's opinion, 305 F. Supp. at 819. (J.A.
164-166)
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At the third hearing, held October 17, 1969, Heine re-
newed his request to take the oral deposition of Mr.
Helms. (J.A. 132) The Court agreed, that, as a general
proposition, discovery through oral depositions is usually
more satisfactory than discovery through written inter-
rogatories (J.A. 139) ; while commenting that the Director's
answers seemed "very full" (J.A. 132), the Court demon-
strated a willingness to allow the Director's deposition,
if Heine could make some showing that further substan-
tive matters would be developed.4 Accordingly, the Court
pressed counsel for Heine for "an example of a couple
of the questions you want to ask [Mr. Helms]. You
must have some idea." (J.A. 142) Counsel for Heine
first brought into question the power of Mr. Helms, as a
Deputy Director in 1964, to ratify Raus' action. (J.A.
142-146) In view of the affidavits and answers then of
record, the Court correctly noted that the issue remaining
was legal, as opposed to factual. (J.A. 143, 147) The
Court again asked counsel for a proper question. (J.A.
146) Counsel for Heine stated he would like to inquire
about the specific form of the instructions given Raus
(J.A. 150) and about the information available to Mr.
Helms when he reviewed Raus' action. (J.A. 158) But
in these areas further inquiry would have been pointless
because, as the District Court stated in its opinion, the
Director had already made known his intent to invoke
4 On behalf of the Director the United States opposed the taking of Mr.
Helms' deposition. Its position was well expressed in a letter of July 16,
1969, to the Court from Mr. Yeagley, Assistant Attorney General. (J.A.
118-119) Because relevant questions might have sought information that
could not be disclosed, Mr. Yeagley emphasized the burdens inevitably accom-
panying a decision to invoke the privilege against disclosure of state secrets-
review of voluminous files containing sensitive material, consultation within
the Agency, and a considered determination by the Director himself. An oral
examination did not, in the Government's view, offer sufficient opportunity
for reflection nor did it provide a satisfactory forum for the performance
of these tasks. Nevertheless, the District Court was, initially, willing to
accommodate the Director only to the extent of holding the deposition in
Virginia under the auspices of the Court. (J.A. 139-140)
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the secrecy privilege. Thus, after fully lnctulging counsel
for Heine, the Court could see no line of inquiry war-
ranting an oral deposition of the Director.'
Subsequently, in a formal opinion, the Court found:
The Directors affidavit . . . supported by his answers
to interrogatories, shows :
(a) that the instructions to Bans were given by a
subordinate official of the agency, authorized to
do so, and acting in the course of his prescribed
duties and not by an unauthorized underling; and
(b) that Helms, as Deputy Director of the Agency
in December, 1964, was authorized to and did
ratify and approve the action taken by the coun-
terintelligence officer who instructed Juri Bans
to warn members of the Estonian emigre groups
that Eerik Heine was a Soviet intelligence op-
erative, a KGB agent. [Heine v. Razes, 305 F.
Supp. at 821 (J.A. 169).]
THE DISTRICT COURT PROPERLY DETERMINED THAT THE
INSTRUCTIONS GIVEN RAUS WERE BOTH AUTHORIZED
AND THEREAFTER RATIFIED BY RESPONSIBLE CIA
OFFICIALS
As previously noted, this Court in its former opinion
accepted and applied the now well-recognized principle that
an employee of the United States acting within the scope
of his authority is immune from liability for defamation
on account of his utterances. Barr v. Matteo, 360 U.S.
564 (1969).6
This Court likewise approved the method which the
District Court had employed during its former hearings
to deal with the problem of governmental secrecy.
5 Heine v. Razes, 305 F. Supp. at 820. (J.A. 166)
6 No case subsequent to this Court's application of the principle has re-
flected adversely upon Barr or upon this Court's decision. The principle was
applied in an analogous case decided soon after Heine v. Raus. Scherer v.
Morrow, 401 F. 2d 204 (7th Cir. 1968).
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It found, however, upon the record presented to it a
possible--if unlikely-inference which would prevent the
entry of summary judgment. The remand to the District
,Court was for a narrow purpose--to make inquiry as
to the existence of one or another condition: (a) whether
an authorized CIA official instructed Raus, or (b) whether
an authorized official ratified the actions of the official
who provided the instructions.
The District 'Court found both proper authorization and
proper ratification.?
In the District Court Heine constantly sought to enlarge
the opening provided him by this Court so as to relitigate
many of the issues which were foreclosed to him by this
Court'is previous opinion. He complains in this Court that
he did not receive a fair hearing; we explain below why
his attack upon the judgment is without merit.
a. Under the Circumstances Heine Was Not Entitled To Take
the Deposition of Richard Helms
The record of the October 17, 1969, hearing shows that
the District Court was disposed to permit the deposition
of Richard Helms, despite the practical objections raised
by the United States, provided that counsel for Heine
could suggest a single question, based in fact, which (a)
was within the scope of the remand, and (b) was not in
an area to which the Director, in his responses to Heine's
interrogatories, had assented a claim of the secrecy priv-
ilege. Counsel for Heine could not suggest any specific
question which met these criteria. In its opinion the
Court accurately summarizes what occurred :
The Court repeatedly asked counsel for plaintiff what
information they wished to obtain in addition to that
7 Heine's brief is larded with invective and vituperation; e.g., "The de-
fendant and the CIA have cleverly avoided the out-right lie of calling Raus
an employee . . . ." ". . . in light of the history of this case and the
bald-faced lies issued by the defendant, the CIA and Richard Helms . . . ."
Since the decisional process is not aided thereby, we resist the temptation to
reply, while resenting the excess of advocacy which prompted its use.
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included in the Director's affidavits, particularly the
affidavits of February 10, 1969, and April 2, 1969, and
in his answers to those interrogatories which the
Court required him to answer. Aside from matters
on which the Director claimed privilege, counsel for
plaintiff did not suggest any other questions, but
elected to stand on the record. [Heine v. Raus, 305
F. Supp. at 820 (J.A. 166).]
Counsel for Heine expected too much if, at the time
of the remand hearing, they could not suggest to the
Court a single, meaningful question which would have
justified the taking of a deposition. The Court prodded
counsel for Heine to spell out, if only in small degree,
what they sought to accomplish by an oral deposition.
The patience 'of the Court, we think, is amply demonstrated
by the record. In these circumstances counsel for Heine
should not now complain that the denial of the request
for an oral deposition of the Director of Central Intel-
ligence deprived their client of a fair hearing.
b. The Findings of Fact Entered by the District Court Are
Fully Supported in the Record
We do not understand how Heine can question the
District Court 's factual rulings in this Court. Admit-
tedly, they were entered on the strength of affidavits and
sworn answers to interrogatories but, as already pointed
out, counsel for Heine made no showing whatsoever how
the limited inquiry ordered by this Court would be ad-
vanced through oral deposition.
Furthermore, on the first appeal this Court explicitly
approved the use of affidavits. In discussing whether
the claim of governmental privilege had been properly
invoked, this Court said:
While the claim of secrecy prevents our obtaining a
clear view of the entire scene, the Director'is sworn,
but undocumented, claims are enough to support the
claim of governmental privilege. That ought to be
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enough when the statements are those of an official
in so responsible an office and a requirement of fur-
ther documentation and elaboration would violate the
privilege of state secrets or greatly burden its ex-
?ercise. [Heine v. Raus, 399 F.2d at 790.1
In other cases involving the doctrine of immunity for
official acts, courts have regularly relied upon affidavits
setting forth the duties of the government officer against
whom suit has been brought. See, e.g., Howard v. Lyons,
360 U.S. 593, 595-596 (19,59); Scherer v. Brennan, 379
F.2d 609, 610-611 (7th Cir. 1967) ; Frost v. Stern, 298 F.
Supp. 778, 780 (D.S.C. 1969) ; Houtenville v Dunahoo,
286 F. Supp. 5, 7 (N.D. Miss. 1968). When such affidavits
are not controverted by other sworn testimony, they
afford an ample basis for summary judgment. In this
case the District Court's careful opinion underscores its
faithful observance of the requirements of Rule 56(c) &
(e), Fed. R. Civ. P.
But Heine contends that the District Coi in should have
rejected the. affidavits submitted upon remand because
they assert conclusions rather than state facts. In this
case the questions of authorization and approval, however,
are straightforward matters of fact. The official instruct-
ing Raus was responsible to Helms. As a Deputy Di-.
rector, Helms knew whether this official acted within the
scope of his duties. Helmis swears that he did. As a
Deputy Director, Helms either approved the official's
actions or he did not. Helms swears that he did. These
are plain statements of fact by the senior intelligence
officer of the United States, an individual directly respon-
sible to the President. They fully warrant the award
of summary judgment in favor of Raus.8
8 In light of the factual representations contained in the remand affidavits,
an in camera hearing was unnecessary. Nor did Heine request such a hearing.
There is nothing in this Court's opinion on the first appeal which compelled
an in camera hearing, and Heine's present contention in this Court that the
District Court was so obligated is frivolous.
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c. The District Court Properly Accepted the Claims of
Privilege Asserted by the Government
This :Court's opinion on the first appeal states with un-
mistakable clarity that disclosure of the identity of the
counterintelligence officer instructing Rams was not re-
quired. See Heine v. Raus, 399 F.2d at 791. Three of
Heine's interrogatories sought to elicit detailed informa-
tion concerning the job description of the counterintelli-
gence officer. To these questions the Director claimed
the privilege against disclosure of state secrets and the
District Court sustained him.' Heine v. Raus, 30'5 F.
Supp. at 821 (J.A. 164).
In this Court Heine contends that the District Court's
acceptance of the claims of privilege did not comport with
the standards enunciated in United States v. Reynolds, 345
U.S. 1 (1953). In its answers to the interrogatories, how-
ever, the Government had already invoked the privilege,
and the Government asserted the privilege in an area al-
ready closed to Heine by the prior opinion of this Court.
In 'these circumstances the District (Court had no Reynolds
duty to conduct another hearing to test the sincerity of
the invocation of the privilege. Furthermore, because the
District Court had once condudted a Reynolds hearing
in this litigation, and had done so in a manner approved
by this Court (see this Court's opinion, 399 F.2d at 788),
the District Court was not obligated to conduct yet an-
other such hearing.
9 Except as to the fact that the officer was a full-time staff employee of the
Agency covered by the Civil Service Retirement Act.
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CONCLUSION
Appellee Rains requests that this Court affirm the judg-
ment entered below.
Respectfully submitted,
Of Counsel:
WILLIAMS & CONNOLLY
1000 Hill Building
Washington, D. C. 20006
HOGAN & HARTSON
815 Connecticut Avenue
Washington, D. C. 20006
PAUL R. CONNOLLY
J. ALAN GALBRAITH
1000 Hill Building
Washington, D. C. 20006
E. BARRETT PRETTYMAN, JR.
815 Connecticut Ave.
Washington, D. C. 20006
Attorneys for Appellee
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UNITED STATES COURT OF APPEALS
No. 14,281
EERIK HEINE,
Appellant,
JURI RAUS,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Ernest C. Raskauskas
1200 18th Street, N.W.
Suite 607
Washington, D.C. 20036
Robert J. Stanford
1776 K Street, N.W.
Washington, D.C. 20006
Attorneys for Appellant
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(i)
TABLE OF CONTENTS
Page
JURISDICTIONAL STATEMENT ..................... 1
STATEMENT OF THE CASE ....................... 2
STATEMENT OF QUESTIONS INVOLVED ............. 3
STATEMENT OF THE FACTS:
A. Proceedings in the United States Court of
Appeals for the Fourth Circuit in No. 11,195 ....... 4
B. Proceedings in the District Court after Remand ..... 4
SUMMARY OF ARGUMENT ....................... 8
ARGUMENT:
1. The Court Erred in Granting a Summary Judgment
Judgment For Defendant When The Affidavits
In Support Thereof Did Not Meet The Testi-
monial Requirements of Rule 56(e) ............. 9
II. The Court Erred In Not Permitting The
Plaintiff To Take The Deposition Of Mr. Helms
When The Record On Which The Court Entered
The Final Summary Judgment Contained Six
Affidavits Which Had Been Made By Mr. Helms
Together With Answers To 14 Questions Under
Oath By Him, None Of Which Were Subjected
To Any Testing By Cross-Examination ........... 13
III. The Court Erred In Allowing The Government
To Decline To Answer Questions On The
Ground Of Secrecy, Without First Making
An Appropriate Inquiry (As Required By
The Standards Set Forth In United States v.
Reynolds) Into The Possibility Of Executive
Caprice ................................. 17
N. The Court Erred In Failing To Follow The
Mandate Of The Court Of Appeals And
Consider The Answers To Any Questions
In Which Privilege Had Been Claimed, In
Camera, As Directed By The Court of
Appeals ................................. 21
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V. The Court Erred In Granting Summary
Judgment For The Defendant By Resolving
And Ignoring Factual Issues, Including Credi-
bility, And By Failing To Consider The
Record As A Whole In The Light Most
Favorable To Plaintiff As Required By
Rule 56 ................................. 22
VI. The District Court Erred In Not Determining
The Nature And Source Of the Prior Author-
ization Of The Unknown Person Who Directed
Defendant Raus To Make The Slanderous
Statements And The Court Erroneously Found
That The Conduct Complained Of Was Author-
ized By the Subsequent Ratification After The
Suit Had Been Instituted By The Deputy
Director Of The CIA ....................... 26
CONCLUSION ................................. 30
Cases:
Barr v. Matteo, 360 U.S. 564 (1959) ............... 10, 10,25
Clews v. Jemison, 182 U.S. 461, 215 S. Ct. 845 ........... 27
Heine v. Raus, 399 F.2d 785 (1968) ............... 10, 25, 28
United States v. Reynolds, 345 U.S. 1, 735, CT 528 (1953) ... 8, 9,
17, 18, 19
United States v. Lester, (2d Cir. 1957) 248 F.2d 239 ....... 12
V.O. Machinoimport v. Clark Equipment Co., (S.D.N.Y.
1951), 11 F.R.D. 55, 58 ......................... 13
Rules:
Rule 56(e), Federal Rules of Civil Procedure ....... 8, 9, 10, 29
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14,281
EERIK HEINE,
Appellant,
JURI RAUS,
Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BRIEF FOR APPELLANT
JURISDICTIONAL STATEMENT
The jurisdiction of the United States District Court for
the District of Maryland is vested in said Court by Title 28,
United States Code, Section 1332(a)(2). The jurisdiction
of the United States Court of Appeals for the Fourth Cir-
cuit to review the Order of the United States District Court
for the District of Maryland entering a final summary judg-
ment for the defendant is vested in Title 28, United States
Code, Section 1291.
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2
STATEMENT OF THE CASE
This appeal follows a remand by this Court to the United
States District Court for the District of Maryland in appeal
no. 11,195 in which this Court vacated the summary judg-
ment entered by the District Court in favor of the defend-
ant in plaintiff's slander action and remanded the case for
possible further proceedings. Prior to the previous appeal,
the District Court had entered a summary judgment on be-
half of the defendant in the plaintiff's slander action on the
ground that the utterances complained of by the plaintiff
and made by the defendant were protected under the doc-
trine of immunity from civil suit accorded to government
officials making allegedly defamatory statements within the
course and scope of their government employment. The
District Court had found that the statements complained of
had been made on behalf of and at the direction of the Cen-
tral Intelligence Agency. This Court found that on the rec-
ord presented to it in the previous appeal, there was still a
permissible inference that the instructions to the defendant
might have been given by an unauthorized underling and
that this action had never had the approval of a responsible
official of the Central Intelligence Agency having authority
to issue or approve such instructions. This Court held that
if the plaintiff represented to the District Court serious re-
liance upon the inference, further inquiry might be had and
additional findings made. This Court stated that the inquiry
should be directed to the identity of the official within the
Agency who authorized or approved the instructions to the
defendant. Disclosure of the identity of the individual who
dealt with the defendant is not required; the answer to be
set is whether or not the Director or a Deputy Director or
a subordinate 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.
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3
STATEMENT OF QUESTIONS INVOLVED
1. Whether the trial court was justified in re-entering the
summary judgment after remand by this Court, when the
identity of the person directing the defendant to make the
slanderous statements was neither established in accordance
with the testimonial requirements of Rule 56(e) F.R.C.P.,
nor was the statutory or immediate authority of such un-
known person established in any greater depth than in the
previous record upon which this Court remanded the case
for further inquiry.
2. Whether the trial court was justified in re-entering the
summary judgment after remand by this Court, in reliance
upon the purported ratification by Mr. Helms of the slan-
derous statements by the defendant Raus, either by Helms
as the Deputy Director or as the Director of the CIA, when
said supposed ratification came only after institution of the
plaintiff's slander suit and with knowledge by Mr. Helms of
the pendency of said slander suit.
3. Whether the trial court was justified in re-entering the
summary judgment after remand by this Court, when the
inquiry directed by this Court on remand respecting the per-
missible inference that the instructions to the defendant Raus
might have been made by an unauthorized underling, neces-
sitated the trial court in resolving genuine factual issues, in-
cluding credibility, and making findings of fact on which to
make a re-entry of the latest summary judgment.
4. Whether the Court, which had required plaintiff, who
sought to take the deposition of the Director of the Central
Intelligence Agency, to outline in question form the general
areas of inquiry of the deposition, erred in not allowing the
deposition following the submission of answers in written
form by the CIA Director and thereafter, upon the Court's
termination of plaintiff's discovery, re-entering summary
judgment in favor of defendant.
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4
STATEMENT OF FACTS
The facts proceeding the institution of the present action
for general and punitive damages for slander as well as the
initiation of the present complaint and the proceedings be-
low in the District Court prior to the first appeal in this
action appear in the Statement of Facts in the Appellant's
Brief filed in this court in Appeal No. 11,195.
A. PROCEEDINGS IN THE UNITED STATES COURT OF
APPEALS FOR FOURTH CIRCUIT IN NO. 11,195
This court vacated the summary judgment entered for
the defendant by the District Court and remanded this case
on the ground that there was a permissible inference in the
record before it "that the instructions (to Juri Raus to speak
of the plaintiff as he did) were given by an unauthorized un-
derling and that his action has never had the approval of a
responsible official of the Agency having authority to issue
or approve such instructions". 399 F.2d 785 (1968).
The Fourth Circuit further stated:
... if the plaintiff represents to the District Court
serious reliance upon the inference, further inquiry
may be had and additional findings made. The inquiry
should be directed to the identity of the official with-
in the Agency who authorized or approved the instruc-
tions to Raus. Disclosure of the identity of the indivi-
dual who dealt with Raus is not required; the answer
to be sought is whether or not the Director or a Deputy
Director or a subordinate official, having authority to
do so, authorized, approved or ratified the instructions.
On January 11, 1969, plaintiff filed a statement with the
Court representing to the District Court serious reliance up-
on the inference referred to in the Opinion of the Fourth
Circuit, and the plaintiff requested that further inquiry may
be had into said inference and that additional findings be
made.
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Therupon, a preliminary informal conference held by the
District Court on February 10, 1969 with counsel for the
parties and for the government. Plaintiff requested that he
be permitted to take the deposition of the Director of the
Central Intelligence Agency under the supervision of this
Court in order to establish the factual basis for the infer-
ence. Counsel for the defendant exhibited an affidavit of
Richard Helms, dated February 10, 1969, at the conference
together with a proposed Motion for Summary Judgment.
The Court reviewed the Helms affidavit to qualify questions
raised by certain statements therein.' Counsel for the de-
fendant and for the government agreed to request the Di-
rector of the Central Intelligence Agency for a further affi-
davit to clarify the questions raised by the Court. It was
agreed that the plaintiff would not be required to file a
responsive pleading to defendant's Motion for Summary
Judgment until such time as the inquiry directed by the
Court of Appeals was concluded. Upon discussion as to the
nature of the questions sought to be put to Richard Helms
on deposition by the plaintiff, the Court directed that the
plaintiff reduce the general areas of his questions to writing
so that more careful consideration could be given to them
by the proposed deponent and by the Court.
'The Court suggested that answers to the following questions in a
further affidavit by Mr. Helms would clarify the statements made by
him in his affidavit of February 10, 1969:
Q.1. Was the counterintelligence officer referred to in the second
sentence of Paragraph 4 one of the counterintelligence officers referred
to in the first sentence of Paragraph 4?
Q.2. If the answer to Question 1 is No, did the counterintelligence
officer referred to in the second sentence of Paragraph 4 act on-
(a) the conclusion reached by the officers referred to in the
first sentence, or
(b) information supplied by the officers referred to in the
first sentence, and his own conclusion thereon; or
(c) other information which he possessed; or
(d) combination of two or more of (a), (b), and (c)?
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Thereafter, on February 15, 1969 the defendant filed a
Motion for Summary Judgment, together with points and
authorities and a supporting affidavit by Richard Helms
dated February 10, 1969. On March 19, 1969, plaintiff
submitted for consideration thirty-five (35) questions in
writing covering the general areas on which he proposed to
depose Richard Helms. On April 3, 1969, defendant filed
objections to each and every one of the proposed questions,
and on the same day, an additional affidavit from Richard
Helms was filed, dated April 3, 1969, supplementing his pre-
vious affidavit of February 10, 1969. The United States
filed a Statement on behalf of the Director and the Central
Intelligence Agency concerning the questions proposed by
the plaintiff to Richard Helms, advising the Court that the
United States would await the ruling of the Court as to
whether any of the proposed questions would be allowed,
and if so, that a later determination be made as to whether
or not it would be necessary for the Director of the Central
Intelligence Agency to make an official claim of privilege on
the ground of secrecy with respect to any of the information
sought to be elicited through said questions.
On June 6, 1969, this cause came on to be heard at a
formal hearing upon objections of the defendant to certain
general questions which the plaintiff proposed to develop at
a deposition of Richard Helms before this Court. The Court
considered the plaintiff's questions seriatum and heard argu-
ments of counsel thereon. Thereupon, subject to a further
report from the United States as to whether the Director of
the Central Intelligence Agency would file a claim of privi-
lege against the disclosure of state secrets with respect to
any of the proposed questions, and reserving ruling on the
claim of privilege as to each of said proposed general ques-
tions. 2
2The Court ruled that some of the plaintiff's general questions,(3),
(4), (5), (9), (12), (15), (16), (17), (18), (19), (20), (21), (22), and
(29)] were within the inquiry directed under the remand of the Court
of Appeals. The Court stated that two Questions [(13) and (14)]
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Thereafter, on July 16, 1969, the Court received a letter
from J. Walter Yeagley, Esquire, Assistant Attorney General
of the United States, advising the Court that the United
States strongly opposed the suggestion that a deposition up-
on oral examination be taken of the Director of the Central
Intelligence Agency, and further advising the Court that sub-
ject to the claim of privilege, the Director would respond in
writing to the questions which the Court ruled to be relevant.
On September 29, 1969, Director Richard Helms responded
in writing and under oath to all of the questions allowed by
the Court. To three questions Mr. Helms made partial an-
swers to questions (3), (5), and (12), and he formally assert-
ed the privileged status of further answer to said questions
and declined to give further information to the same pur-
suant to the authority vested in him as Director of Central
Intelligence. All other questions were answered without any
claim of privilege.
The District Court held the final hearing on October 17,
1969 in which the plaintiff urged the Court to permit the
taking of Mr. Helms' deposition so that the Director could
be cross-examined both on the statements and answers in
which he claimed privilege and also on the questions where
privilege was not claimed. Plaintiff specifically requested
an opportunity to cross-examine Mr. Helms and to develop
further information on the statements made by Mr. Helms
in his most recent affidavits as well as his answers to inter-
rogatories on the matters of his (Helms) ratification of the
defendant's conduct in December of 1964, the prior author-
ization and authority under which Raus was given the in-
struction to slander the plaintiff, the precise nature of the
instruction which was given to the defendant Raus and fur-
ther clarification on this identity and authority of the per-
were to be re-examined in the light of any response which the Director
might make to the general area of questioning in response to general
question number (4). Defendant's objections to the remaining ques-
tions [(1), (2), (6), (7), (8), (10), (11), (22), (23), (24), (25), (26),
(27), (28), (30), (31), (32), (33), (34), and (35)] were sustained.
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son instructing the defendant Raus. The defendant argued
that the claims of privilege made in the answers to the writ-
ten interrogatories would have to be sustained on oral
deposition and that the Director had given all of the infor-
mation which could be obtained in his affidavits and answers
under oath.
Subsequently on November 3, 1969, the Court directed
that summary judgment be re-entered in favor of the defend-
ant against the plaintiff and the District Court rendered an
opinion holding that Helms' claim of privilege must be sus-
tained under the rule announced in United States v. Reynolds,
345 U.S. 1. The Court held that the Director's affidavit
supported by his answers to the interrogatories, shows:
(a) that the instructions to Raus were given by a
subordinate official of the Agency, authorized to do
so, and acting in the course of his prescribed duties
and not by an unauthorized underling; and
(b) that Helms, as Deputy Director of the Agency
in December, 1964, was authorized to and did ratify
and approve the action taken by the counterintelli-
gence officer who instructed Juri Raus to warn mem-
bers of the Estonian emigre groups that Eerik Heine
was a Soviet intelligence operative, a KGB agent.
This appeal followed.
SUMMARY OF ARGUMENT
1. The Court erred in granting a summary judgment for
defendant when the affidavits in support thereof did not
meet the testimonial requirements of Rule 56(e).
II. The Court erred in not permitting the plaintiff to take
the deposition of Mr. Helms when the record on which the
Court entered the final summary judgment contained six
affidavits which had been made by Mr. Helms together with
answers to 14 questions under oath by him, none of which
were subjected to any testing by cross-examination.
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III. The Court erred in allowing the government to decline
to answer questions on the ground of secrecy, without first
making an appropriate inquiry (as required by the standards
set forth in United States v. Reynolds) into the possibility
of executive caprice.
IV. The Court erred in failing to follow the mandate of
the Court of Appeals and consider the answers to any ques-
tions in which privilege had been claimed, in camera, as di-
rected by the Court of Appeals.
V. The Court erred in granting summary judgment for
the defendant when the record indicates the existence of
genuine issues of fact concerning material matters, and the
Court erred in resolving general factual issues, including
credibility, and the Court failed to consider the inferences
drawn from the underlying facts contained in the record in
the light most favorable to the plaintiff who is opposing the
motion.
VI. The District Court erred in not determining the nature
and source of the prior authorization of the unknown person
who directed defendant Raus to make the slanderous state-
ments and the Court erroneously found that the conduct
complained of was authorized by the subsequent ratification
after the suit had been instituted by the Deputy Director of
the CIA.
1. THE COURT ERRED IN GRANTING A SUMMARY
JUDGMENT FOR THE DEFENDANT UPON AFFIDA-
VITS WHICH DID NOT MEET THE TESTIMONIAL
REQUIREMENTS OF RULE 56(e) OF F.R.C.P.
Plaintiff had most strongly urged this Court in case 11,195
that the granting of summary judgment upon affidavits of
Helms and fragmentary testimony of defendant Raus had
been violative of Rule 56(e) of the FRCP which requires
that affidavits shall set forth facts as should be admissible in
evidence.
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The District Court held that the affidavits satisfied the
Court that defendant Raus was a government employee
working within the scope of his employment and thus when
he slandered the plaintiff was immune from suit under the
doctrine of Barr v. Matteo, 360 US 564 (1959)3 which had
extended absolute immunity, recognized to reside in federal
officers of cabinet rank, to "officers of lower rank in the
executive hierarchy".
The affidavits in support of the motion for summary judg-
ment in addition to the affidavits heretofore filed, did not
meet the testimonial requirements of Rule 56(e), FRCP.' The
remand from this Courts to the District Court for a specific
inquiry did not in any way limit the discovery procedures,
but, in fact, specifically stated that there must be a finding
by the District Court that the person who authorized and
instructed defendant, Juri Raus, to make the slanderous state-
ments of the plaintiff, possessed the requisite authority in
his position as an officer of the Central Intelligence Agency
to issue or approve such instruction. In light of this Court's
concern for a specific finding in this area, it was incumbent
upon the defendant to set forth with specificity, facts to
require omission.6
After remand to the District Court, but prior to discovery
proceedings being instituted by the plaintiff solely in the
form of a requested deposition of the CIA Director, Richard
Helms, the defendant filed affidavits of a conclusory nature
purporting to foreclose further discovery by supplying the
information required by the remand. The affidavits filed
herein of February 10, 1969 and April 2, 1969, were a re-
prise of those heretofore filed and, like the prior affidavits,
were wholly inadmissible as evidence in that they were nar-
3 360 US at 573.
4Rule 56(e) line 41-line 46 to the period.
5Decision of this case reported as Heine v. Raus, 399 F.2d 785.
6399 F.2d at 791.
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rawly drawn and unrevealing as to material facts required
to be presented on the remand from this Court. In para-
graph 4 of the affidavit of February 10, 1969, Director
Helms cavalierly decided in conclusory fashion, without pro-
ducing a single material fact, the ultimate question of the
remand. He stated:
"In the performance of his assigned counter-intelli-
gence functions, the counter-intelligence officer
responsible for safeguarding sources of intelligence
developed within the Estonian emigre groups, acting
in accordance with his prescribed duties, instructed
Juri Raus to warn members of the Estonian emigre
group that Eerik Heine was a Soviet intelligence
officer, a KGB agent."
No new fact is contained in this affidavit. We do not
know whether the counter-intelligence officer who sup-
posedly instructed Raus had ever previously or subsequently
instructed anyone to do what supposedly was the instruc-
tion of Juri Raus, to slander the plaintiff in this case. Nor
are we informed as to whether there was a CIA procedure
established whereby authority or permission would be ob-
tained from other officers in order to permit a highly pub-
licized defamation, so anomalous to the intelligence-gathering
agencies defined statutory function.
None of the facts which should be available to the plain-
tiff in determining the truth are contained in these affidavits
and the defendant attempted and succeeded in achieving by
affidavit what obviously would be stricken from the record
in an actual trial.
Even if the affidavits did contain facts and not conclu-
sions, raw material and not a statement of the ultimate
matter to be determined, the lack of cross-examination
renders them totally inadmissible in support of the motion
for summary judgment. In an actual trial, if the author of
the affidavits, Richard Helms, CIA Director, took the stand
and recited all of the facts in his numerous affidavits and
thereafter refused to submit to cross-examination, a trial
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judge, following the basic and rudimentary testimonial re-
quirements, would be forced to strike all of such testimony
in chief.
"The general rule is that where the witness after his
examination-in-chief on the stand has refused to sub-
mit to cross examination, the opportunity of thus
probing and testing his statements has substantially
failed and his direct testimony should be struck out."
Wigmore on Evidence, Section 1391, page 112, and
cases cited in the footnotes. 133 F.2d at 97.
It would not have been permitted if in conclusory form in
direct examination, since conclusions are the province of a
jury and not of a witness except in the rendering of an ex-
pert opinion.
The affidavits and the affidavit form of the 14 responses
to the proposed areas of inquiry for the deposition requested
by the plaintiff were, without cross-examination, all of the
same defective character and subject to being struck.
"United States v. Lester, 2d Cir. 1957, 248 F.2d 239.
... if the witness by invoking the privilege precludes
inquiry into the details of his direct testimony there
may be substantial danger of prejudice because the
defense is deprived of the right to test the truth of
his direct testimony and, therefore, that witness'
testimony should be stricken in whole or in part."
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II. THE COURT ERRED IN NOT PERMITTING THE PLAIN-
TIFF TO TAKE THE DEPOSITION OF THE DIRECTOR
OF CIA WHOSE AFFIDAVITS AND ANSWERS TO
FOURTEEN QUESTIONS, NONE OF WHICH WERE
SUBJECTED TO CROSS-EXAMINATION, HAD BEEN.
THE SUPPORT OF DEFENDANT'S MOTION FOR SUM-
MARY JUDGMENT.
The refusal of the Court to permit the deposition of the
CIA Director, Richard Helms, was contrary to Federal Rules
of Civil Procedure, and sharply discriminatory to the plain-
tiff-who, himself, early in the litigation, for reasons of eco-
nomic necessity, had sought to avoid the cost of travel and
lodging when the defendant scheduled his deposition away
from the plaintiff's home in Canada. At that time, in the
defendant's January 10, 1965 memorandum in opposition
to the plaintiff's motion that the deposition be taken on
written interrogatories, defendant Raus' attorneys stated:
"It is at once apparent from the breadth and scope
of the activities involved that written interrogatories
are an inadequate substitute for an oral deposition."
As was further stated by the defendant in his opposition:
"Even in the ordinary action, it is generally held that
oral interrogation is much to be preferred over writ-
ten interrogatories."
In V.O. Machinoimport v. Clark Equipment Co., 1 1 F.R.D.
55, 58 (S.D.N.Y. 1951), the Court said:
"Under ordinary circumstances, the advantages of oral
examination over the rigidity of written interrogatories
are readily acknowledged. Cross-examination of a
witness who may be evasive, recalcitrant or nonre-
sponsive to questions is an essential in ferreting out
facts, particularly of an adverse party or witness."
The proposed deposition of Richard Helms was, in effect,
the deposition of an adverse party since the summary judg-
ment originally entered and now re-entered is based almost
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entirely upon the affidavits of Helms. The final paragraph
of the January, 1965 memorandum in opposition to the
plaintiff's motion to restrict inquiry to written opposition
stated that,
"The hardship or burden upon the plaintiff must be
weighed against the defendant's need adequately to
prepare his defense and to avail himself of the dis-
covery prerogatives which the Federal Rules of Civil
Procedure accord to him."
Apparently, the Federal Rules of Civil Procedure apply only
to the federal establishment and that of its minions, but not
to the individual litigant. The Court's rulings in permitting
the government to take a 924 page deposition of the plain-
tiff Heine but in forbidding the deposition of the Director
of CIA has been graphically discriminatory. Defendant Raus
and the real party in interest, the Central Intelligence Agency,
have had their cake and eaten it too. The plaintiff has re-
ceived only testimonially inadequate crumbs provided by
the affidavits.'
The Court had volunteered on numerous occasions to
conduct the deposition in open court in Baltimore or even
to accommodate the Central Intelligence Agency and its
Director by travelling to its headquarters in Langley, Vir-
ginia. The Central Intelligence Agency and its secrets could
have been protected by the Court during the taking of the
deposition of the Director, who, among all others, would
best be in a position to determine whether divulging an an-
swer to a question would be proper or violative of national
security. As each question was asked, there could be a pause
7 Plaintiff never has acknowledged that defendant was, at any time, an
actual employee of CIA. The defendant and the CIA have cleverly
avoided the out-right lie of calling Raus an employee by saying he
was employed (used) and by stating that Raus was instructed to state
that plaintiff Heine was a Soviet spy rather than saying he was ordered
as one would expect a superior to do in effecting such a supposedly
urgent life or death assignment.
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to permit the deponent, his attorneys and his staff to
demonstrate to the Court sufficient reason why the question
should be disallowed. Thus, the plaintiff would not be ar-
bitrarily denied information which might very well lead to
information to prove the allegations of his complaint or
deny the affidavit of Helms and the facts comprising the
defense of Raus.
In all discovery procedures, the deposition tests the credi-
bility of the deponent and in light of the history of this case
and the bald-faced lies issued by the defendant, the CIA and
Richard Helms, specifically, there was a crying need for a
truth-testing deposition. The early memorandum of Janu-
ary, 1965 and the accompanying affidavit avering the abso-
lute necessity for the defendant to take the deposition of
the plaintiff stated that the defendant had no financial re-
sources other than his job with the Bureau of Public Roads.
Thereafter, at the time of defendant's open court deposition,
the CIA submitted information that the defendant had been
paid beyond his Public Roads salary directly or indirectly
by the Central Intelligence Agency. These two statements,
placed in juxtaposition, clearly demonstrate a calculated per-
jury of Raus and the Central Intelligence Agency. Despite
the easy rationalization of the defendant and the CIA of
such deception as a pragmatic white lies in the pursuit of
national survival, a court must thereafter look with a jaun-
diced eye at every utterance of such prevaricators purport-
ing to be truth under oath.
Early in the District Court maneuvers of the defendant
and the CIA, we witnessed an almost comical demonstration
of the unreliability of the affidavits of Richard Helms and
the memorandum in conjunction with the defendant's first
motion for summary judgment. It was stated that a disclo-
sure of further information beyond the original affidavit
would jeopardize national security; yet, when the first affi-
davit proved to be inadequate to sustain a summary judgment,
the CIA and Richard Helms provided additional information.
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This occurred a second time (J.A. 225-226). Thus, by fur-
ther disclosure, the CIA either jeopardized national security
or belied the truth of their original averment.
In the proceeding before the District Court subsequent
to remand from this Court, the plaintiff was required, prior
to taking the deposition of Richard Helms, to submit the
proposed areas of inquiry of Director Helms. The plaintiff,
despite his chagrin at being deprived of the due process of
the FRCP all other litigants operate under, in compliance
propounded 35 questions, all of which were objected to.
Thereafter, the court ruled that 14 were proper subjects of
inquiry as the initial questions in a deposition of Richard
Helms. Prior to the establishment of any date for the
Helms deposition, the government, through the Justice De-
partment, opposed the taking of the deposition and
contemporaneously filed "answers" to those initial areas of
inquiry as if they were interrogatories propounded by the
plaintiff, which, of course, the plaintiff had never intended.
Helms responded to what he had contorted into 14 inter-
rogatories with answers and, in 11 of those answers, did not
state that there would be no further information beyond
the stated answer.
There would appear to be no reason why there could
not have been a further inquiry by deposition along those
lines. The Court thereafter stated:
"but of course cross-examination by interrogatories
is generally an unsatisfactory procedure. It tends
to become interminable because an answer to one
question leads to another."
The Court at this point again said that:
LC
". . . I am perfectly willing to go to Washington, to
Virginia or any other reasonable place where the
records are-I mean any reasonable distance to the
court where the records are-"
The Court thereafter sought the further areas of inquiry
from the plaintiff, beyond the proposed starting question
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of deposition. The plaintiff gave several areas of further
discovery but the Court never permitted the deposition,
took the matter under advisement and without further
memorandum or argument on the issue of summary judg-
ment, re-entered summary judgment on behalf of the de-
fendant. The plaintiff was left deprived of cross-examination
not only of the Director of CIA subsequent to his original
answers, but of the original questions. Of course the plain-
tiff was deprived of responses to 21 question areas for rea-
sons set forth by the Court or denied without reason. A
lack of the deposition crippled plaintiff from seeking truth
in a determination of the case.
III
THE COURT ERRED IN ALLOWING THE GOVERNMENT
TO DECLINE TO ANSWER QUESTIONS ON THE GROUND
OF SECRECY, WITHOUT FIRST MAKING AN APPROPRIATE
INQUIRY (AS REQUIRED BY THE STANDARDS SET FORTH
IN UNITED STATES v. REYNOLDS) INTO THE POSSIBI-
LITY OF EXECUTIVE CAPRICE.
After this Court vacated the summary judgment entered
by the District Court and remanded this case for possible
further proceedings, the plaintiff filed a statement advising
the District Court that he placed serious reliance upon a
permissible inference that on the present record the instruc-
tions, under which the defendant slandered the plaintiff,
were given to the defendant by an unauthorized underling
in the CIA and that this action never had the approval of a
responsible official of the Agency having authority to issue
or approve such instructions.
Defendant's first pleading on remand was a Motion for
Summary Judgment fortified by an affidavit of Richard
Helms in which he echoed with slight elaboration all of the
conclusory statements he had made in his four previous affi-
davits prior to the first appeal. He also lodged a formal
claim of privilege in this affidavit supporting the Motion for
Summary Judgment, in which he advised the court that it
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would be contrary to the best interest of the United States
to disclose the identity of the counter-intelligence officer
who instructed Juri Raus to issue the slanders against the
plaintiff. Subsequently, in the proceedings, as a condition
precedent to the taking of Mr. Helms' deposition, the Court
directed the plaintiff to submit questions in writing cover-
ing the general areas upon which the plaintiff wished to
depose the Director. Defendant filed written objections to
answering any of the 35 questions (understandably so, inas-
much as at that point in the proceedings, the District Judge
was inclined to allow Mr. Helms be deposed on any of the
questions where secrecy was not claimed) and upon review-
ing the questions, the Court affirmed the government's
objections as to 21 of the questions and sustained the pro-
priety of the remaining 14 questions. Before a deposition of
Mr. Helms was scheduled, the Director proffered written
answers under oath to 14 of the questions as an alterna-
tive to the taking of his deposition, and in 2 of the an-
swers, he again lodged a formal claim of secrecy.
The District Court held that the claims of privilege must
be sustained under the rule announced in United States v.
Reynolds, 345 U.S. 1, 7-8, quoted and followed by the
Fourth Circuit in Section I of its opinion in this case, 399
F.2d at 788.
The reliance of the District Court on the authority of
the Reynolds case to sustain its action in allowing the
claims of privilege is ironic, inasmuch as none of the stand-
ards set forth in the Reynolds case were observed by the
District Judge in the conduct of his proceedings. In each
instance in which a bald assertion of the claim of privilege
was made by the Director, the Court accepted the same
without question. Reynolds held that:
"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. . . ." 345 US 1, at 11.
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In the instant case, it was objectively evident that there
was a strong showing of necessity because proof of all of
the contested facts in support of the defendant's affirmative
defense of immunity were in the exclusive reach of the de-
fendant and the Central Intelligence Agency. Moreover,
Reynolds strongly dictates that "judicial control over the
evidence in a case cannot be abdicated to the caprice of
executive officers." U.S. v. Reynolds, supra, at 9-10.
A review of the Central Intelligence Agency's interven-
tion in this case from the outset, raises serious questions
both as to credibility and executive caprice. The District
Court's willingness to accept as credible and uncapricious
the repetitive, flat assertions of secrecy by the Agency,
without any inquiry or testing by the District Court is a
denial of the standards enunciated in Reynolds. When the
secrecy claims are weighed against the sworn offerings and
pleadings made by the defendant and the Agency from the
very beginning of this case, a pattern of expeditious and
fortuitous use of the secrecy claim emerges as a tactical tool
of the government to say just enough, as needed, and always
in furtherance and to the advantage of the defendant's and
government's position.
At the beginning of the case, when the plaintiff requested
that his own deposition be taken either on written interrog-
atories or that defendant pay his travel expenses (J.A. 27-
28) defendant Juri Raus filed an affidavit citing his impe-
cunious circumstances and even itemizing his mortgage and
car payments (J.A. 26-27) and thereafter, in less than forty-
five days, the defendant suddenly had the resources for his
attorneys to take a 924 page deposition of the plaintiff (J.
A. 28-29). Another example, the defendant stated in the
Seventh Defense of his Answer (J.A. 25) that he was privi-
leged to speak of the plaintiff as he did, since the defendant
was acting as an appropriate officer of the Estonian Libera-
tion Movement. However, more than a year later, when the
CIA, through its private detectives, one of whom character-
ized himself as an associate counsel in this case (J.A. 294)
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were unable to establish any causal connection between the
plaintiff, Mr. Heine, and the communist conspiracy, then
suddenly it became expeditious to defend this action on
the affirmative defense of official immunity rather than on
the merits. Then the defendant filed a Motion for Summary
Judgment supported by the affidavit of Richard Helms (J.A.
107-108) wherein Mr. Helms stated that the slanders com-
plained of were made by Raus within the scope and course
of his employment by the Agency on behalf of the United
States. In this same affidavit, Mr. Helms concluded that
neither the Agency nor the defendant should make any
further disclosures whatsoever regarding the defendant's
activities for the Agency in connection with Eerik Heine
because it would be contrary to the security interest of the
United States.
This claim of secrecy by Mr. Helms was buttressed by a
more august claim of secrecy filed by the then Director of
the CIA, Admiral Raborn, and denoted a "Claim of Privi-
lege by the CIA" (J.A. 234-235) which claim was filed with
the imminence of the deposition of Juri Raus. The deposi-
tion of Juri Raus was frequently and repeatedly stilted and
truncated with the intervention of the claim of secrecy to
specific questions, all of which were upheld by the Court
(J.A. 248-288). In a highly unusual proceeding, one of de-
fense counsel placed the other on the stand and defense
counsel stated on cross-examination (J.A. 167-168) that
the CIA had forbidden defendant to use the defense of im-
munity but that after receiving the lengthy list of interroga-
tories from the plaintiff, the defendant was allowed to file
the defense of official immunity, but that the reason for
this change of position by the CIA was unknown to the
defense counsel.
As the case progressed toward the first appeal, the credi-
bility-caprice gap widened with rushing speed. Although
both Mr. Helms and Admiral Raborn had lodged the most
formal claims of secrecy and self-imposed prohibitions
against the disclosure of any further information whatsoever,
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nevertheless, as the needs of the case required, Mr. Helms
was able to ignore his self-imposed prohibition and offer a
further affidavit on October 7, 1966 (J.A. 367).
In an absolutely incredible move, Thomas J. Kenney, the
United States Attorney for the District of Maryland, offered
an affidavit by Mr. Lawrence Houston, general counsel of
the Central Intelligence Agency, which incorporated by re-
ference to pertinent paragraphs in a document classified
"Secret", and which could not be de-classified for the pur-
pose of this case, but which Mr. Houston requested the De-
partment of Justice to submit to the Court under seal for
in camera inspection and which counsel now of record for
the plaintiff and defendant could see but could not copy
(J.A. 366-367). This offering was made in the face of the
subsisting, unrevoked claim of secrecy by Admiral Raborn.
In addition, Mr. Houston filed a memorandum concerning
the legal authority of the CIA (J.A. 301-306). The offer to
view the purportedly secret documents was declined by
counsel for the alleged KGB agent (J.A. 368-369).
It is from this background in the case that upon remand,
the District Court accepted without question both the con-
clusory statements of the CIA and the claim of secrecy so
that any meaningful inquiry by the plaintiff within the
scope of the remand was foreclosed.
IV
THE COURT ERRED IN FAILING TO FOLLOW THE
MANDATE OF THE COURT OF APPEALS AND CON-
SIDER THE ANSWERS TO ANY QUESTIONS IN WHICH
PRIVILEGE HAD BEEN CLAIMED, IN CAMERA., AS
DIRECTED BY THE COURT OF APPEALS.
Implicit in the Opinion of this Court, is that in the event
the CIA made a formal claim of secrecy in the course of the
proceedings on remand, the District Judge would ascertain
whether the claim of secrecy was well taken, and if so,
would thereafter conclude the inquiry directed by this Court,
in camera. This Court directed that:
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"... the answer to be sought is whether or not the
Director or a Deputy Director or a subordinate offi-
cial, 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."
In Mr. Helms' affidavit of February 10, 1969, and in his
answers under oath to questions Nos. 3, 5 and 12, after
making partial conclusory statements and answers, he con-
cluded with a claim of secrecy which foreclosed any addi-
tional inquiry on the matters about which he made answer
and affidavit. The matters about which he claimed secrecy
were precisely the matters to which this Court directed the
inquiry on remand. Not only did the District Judge unques-
tionably accept the claim of secrecy, but he did not make an
in camera exploration of the answers sought as anticipated
and directed by this Court. This error requires summary
reversal as a failure to make an inquiry consistent with the
direction of this Court on remand.
THE COURT ERRED IN GRANTING SUMMARY JUDGMENT
FOR THE DEFENDANT BY RESOLVING AND IGNORING
FACTUAL ISSUES, INCLUDING CREDIBILITY, AND BY
FAILING TO CONSIDER THE RECORD AS A WHOLE IN THE
LIGHT MOST FAVORABLE TO PLAINTIFF AS REQUIRED
BY RULE 56
Viewing the Helms affidavits of February 10 and April 7,
1969 together with his gratuitous written answers to what
plaintiff had filed as notice to Helms of areas of inquiry
for deposition, in a light most favorable to the plaintiff as
required by Rule 56, there is a failure by the defendant to
show that there exists no issues of fact as to material mat-
ters which are in dispute.
The remand to the District Court sought, among other
facts, a determination of the authority of the person who
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instructed Raus. The present record of this unidentified
person's authority is limited to the currently filed conclu-
sory statements of Helms. These conclusory offerings in
no way factually enrich the previous record on which this
Court reversed the summary judgment. No specificity is
given as to identity of the "instructor to defame", the
scope of his duties or his statutory authority.
The sheer proliferation of affidavits by Helms together
with the gratuitous and sundry offerings of the C.I.A.
(sworn answers under oath, a filing as to the statutory au-
thority of the C.I.A., secret papers to be seen by counsel
but not the parties), all filed with concurrent protestation
of secrecy which foreclose cross examination, not only vio-
late the purpose of Rule 56, but must surely test the credu-
lity of the Court, and therefore, make credibility itself, an
issue.
A review of the "answers" of September 29, 1969, by
Richard Helms, illustrates the gaping holes in the body of
proof relied upon to support the Motion for Summary
Judgment. The Director's response to question No. 3,
seeking the assigned function and prescribed duties of the
counterintelligence officer who supposedly instructed Juri
Raus to make statements against Eerik Heine, states only
that the officer's function and duties were to safeguard the
Agency's intelligence sources developed within the Estonian
emigre groups, a general answer which nowhere within it
contains the specific power or authority of the said counter-
intelligence officer to instruct anyone to make statements
of a slanderous nature about the plaintiff.
The authority of this counterintelligence officer or any
intelligence officer to initiate action to have public state-
ments made against the plaintiff was the subject of inquiry
of question No. 5, particularly with regard to the statutory
authority, the public laws of the United States, which pro-
vided the authority for such action by a CIA officer. The
answer again makes a conclusory statement that the officer
who instructed Juri Raus had the responsibility of safe-
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guarding sources of intelligence but at no time states that
there is any statutory authority for this officer or any other
officer of the Central Intelligence Agency to direct defama-
tion. In a Motion for Summary Judgment, we must con-
clude therefore that there was an absence of statutory
authority permitting the Central Intelligence Agency, an
intelligence-gathering entity, to make public pronounce-
ments in the United States.
The response to question No. 12 provides the informa-
tion that the counterintelligence officer in question was a
full-time staff employee of the Agency and was covered by
the provisions of the Civil Service Retirement Act. This
fact in and of itself does not confer upon the said officer
any authority whatsoever. However, it is interesting to
note that it is in stark contrast, as simple expository descrip-
tion, to the contorted characterizations throughout the
entire proceedings of this case, of the defendant Raus, him-
self, who has never been called an employee of the Agency
and about whom no information has been received with
regard to salary, pension, disability, or retirement.
By the relevation of these fragmentary facts about the
counterintelligence officer, a Court, in a summary judgment
proceeding, must look with grave suspicion upon the status
of defendant Raus himself, vis-a-vis the counterintelligence
officer and the Central Intelligence Agency. Raus has been
characterized as the most subordinate level of government
(not CIA) employee whose cover has been blown by this
case, whose future utility by the Central Intelligence Agency
has been materially if not totally diminished. Yet, he has
never been called an employee, full-time or part-time, and
we know nothing about the method of payment or whether
he receives or if he is under any retirement program of the
Agency. Yet the unknown, unnamed, still-operative counter-
intelligence officer who supposedly instructed Raus is re-
vealed as a full-time employee under Civil Service retire-
ment.
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If Raus was not an employee and not under disability or
retirement of the Civil Service or the General Central Intelli-
gence Agency retirement and disability system, despite
whatever statutory power existed in the Agency to issue
public statements of slander, (although we have had no
statutory authority stated) and whatever authority was in
the hands of the individual counterintelligence officer,
(which power is ill-defined and at no point specific) we
have nothing to inform us that Raus was a person who
could be ordered as the last link in the chain to the organi-
zation, to make defamatory statements and therefore, we
must conclude that he is not a person who is capable of
obtaining derivitive immunity.
The opinion of this Court in Heine v. Raus, 399 F.2d
785 cites several examples of derivitive immunity, but in
all of them the final link in the chain, the most subordinate
employee, was acting under directions and orders of a duly-
authorized superior, whom lie e could disreiard__or disobey
without jeopardy to his position or threat to his employ-
ment status.
From the beginning of the proceedings in this lawsuit,
the defendant and the CIA have had to chart a course be-
tween the Scylla of revealing too much and the Charibdis
of not saying enough.
They have made a tortuous journey that avoids the out-
right lie of saying that Raus was an employee of the CIA
who was ordered or directed to defame Heine. But, at the
same time they put forth claims that Raus was employed
and instructed in order to cloak Raus, the volunteer, with
the immunity from suit conferred upon government offi-
cials acting in the scope of their employment. Barr v. Mat-
teo, supra.
With a favorable Court decision, the defendant Raus and
the CIA have completed a safe and successful voyage. But
only because its Helmsman was improperly permitted to
leak a few advantagemixs'liits of information while holding
back the flood gales of truth under something of an unsub-
stantiated claim of national security requirements.
r
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It might be added that the pre-emptory claim of the re-
quirements of national security are not admitted by the
plaintiff but have been unquestioned by the Court either
in the lens of the public forum or of the in camera inspec-
tion.
Everyone knows that contrary to what our founding
fathers are so often quoted as saying, all men are not cre-
ated equal. However, the judicial system of our country
has achieved its greatness by treating men as if they were.
To permit inequality of treatment to the anti communist
freedom fighter, Heine, on the one hand and Raus and the
CIA establishment on the other would tarnish the majesty
of the American judicial system.
VI.
THE DISTRICT COURT ERRED IN NOT DETERMINING THE
NATURE AND SOURCE OF THE PRIOR AUTHORIZATION
OF THE UNKNOWN PERSON WHO DIRECTED DEFENDANT
RAUS TO MAKE THE SLANDEROUS STATEMENTS AND
THE COURT ERRONEOUSLY FOUND THAT THE CON-
DUCT COMPLAINED OF WAS AUTHORIZED BY THE SUB-
SEQUENT RATIFICATION AFTER THE SUIT HAD BEEN
INSTITUTED BY THE DEPUTY DIRECTOR OF THE CIA
Ratification
The District Court held on the last page of its Order
granting summary judgment under 2(b):
"(b) That Helms as Deputy Director of the Agency
in December, 1964, was authorized to and did ratify
and approve the action taken by the counterintelli-
gence officer who instructed Juri Raus to warn mem-
bers of the Estonian emigre groups that Eerik Heine
was a Soviet intelligence operative, a KGB agent."
A striking first thought which the claim of ratification
invokes, is why was it necessary to ratify action which sup-
posedly had been authorized at the time of the supposed
instruction to defendant Juri Raus. Such averments by
Director Helms may be analogized to taking out fire insur-
ance on an absolutely fireproof building.
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First of all we must determine what ratification is
and whether the later averments or approval, applause or
me-too-ism of CIA Director Helms in December, 1964, con-
stituted legal ratification. As the Supreme Court said in
Clews v. Jemison, 182 U.S. 461, 45 Ed. 1183, 21 S. Ct. 845,
in order that ratification shall be effective not only must
the transaction originally had been entered into on behalf
of the person who subsequently ratified it, but the supposed
agent must profess at the time to be acting as such. We
have nothing to indicate that the unnamed counterintelli-
gence agent was acting on behalf of the Director or that he
so stated to Raus and, what is more important so far as the
plaintiff is concerned, there has never been any allegation
that Raus ever indicated that he was acting on behalf of
the CIA when he spoke or that he had the power to speak
for the CIA. In addition, the affidavits of Kuklane (J.A.
130) and Allikas Q.A. 126) would block summary judg-
ment along this line since they specifically state no such
representations by Raus at the time he uttered his defama-
tory words about Heine.
Since the defendant in this case never claimed he was
acting on behalf of the CIA or Helms, or the unnamed CIA
counterintelligence agent, no act of his is capable of ratifi-
cation.
In fact there can be no ratification whatsoever of the
actions of Raus since as stated in Williston on Contracts
(Jaeger), Sec. 278 at page 267, "the anomalous doctrines
of undisclosed principal are not extended to the law of
ratification." Since there was no disclosure of the princi-
pal and no allegation of authority, ratification cannot be
considered at all. But even assuming, arguendo, which of
course, is directly contrary to the facts of both the plaintiff
and the defendant, that Raus had made a statement on be-
half of the CIA and stated that he was an agent of the CIA
and even if he was an actual employee of the CIA, (signifi-
cantly a statement never made at any time in the proceed-
ing), the defendant is faced with the fact that the CIA's
affirmance or approval of the action of the unnamed
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counterintelligence agent, and presumably of Raus' state-
ments did not occur until after Heine had suffered the
catastrophic consequences of the widely publicized defama-
tion for over a period of one year during which time he
had sought retraction, retained attorneys, filed suit in the
United States District Court and became actively engaged
oppressively expensive litigation. Only then did the CIA
acting by opportunistic reflex, nurtured in a philosophy of
pragmatism, issue, through Richard Helms what he charac-
terized, in typically unmitigated presumption, a ratification.
It was too late. It had no effect upon this case. The re-
statement of Agency (Second) quoted by this Court in
Heine v. Raus, 399 F.2d 785, at 790, held in Section 89,
that if the affirmance of a transaction occurs at time when
a situation has so materially changed that it would be in-
equitable to subject the other party to a liability thereon,
the other party has the election of avoid liability and
further at section 101, ratification is not effective in dimin-
ishing the rights or other interests of persons not parties
to the transaction which were acquired in the subject mat-
ter before affirmance. In light of the law, there appears to
be, unequivocably, absolutely no ratification in the legal
sense which would be binding upon the plaintiff in this
case. The total absence of legal ratification which was re-
lied upon by the defendant and accepted by the Court as
a reenforcement for an acknowledgedly weak showing with
regard to authorization, now focuses the light upon the
sole ground for which summary judgment was granted. As
has been urged above all of the factors overwhelmingly re-
quire a reversal of the judgment of the United States Dis-
trict Court and a remand of this case for a full trial on the
merits.
Authority of the unnamed counterintelligence agent
We are informed by the Court itself the basis for grant-
ing summary judgment on the final page of the Order of
the Court:
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2. The Director's affidavit quoted above supported
by his answers to interrogatories, shows:
a. That the instructions to Raus were given by
a subordinate official of the Agency, authorized
to do so, and acting in the course of his prescribed
duties and not by an unauthorized underling;
We have no information as to how the subordinate official
was authorized to instruct anyone; whether this authoriza-
tion was by oral or written directive, his own interpretation
of his duties, hearsay, guess, speculation or whim. We know
nothing as to the subordinate's prescribed duties either by
job description, past activities, or work thereafter or
whether he had previously or did thereafter instruct anyone
to slander or make public announcements about other per-
sons besides plaintiff Heine.
The affidavits of February 10, 1969 and April 2, 1969
and the responses to the deposition opening questions
lacked the data to demonstrate that inherent potential power
resides in this unnamed counterintelligence agent permitting
him to order any single subordinate employee of the CIA
to defame the plaintiff. Further, the limited information
supplied by the defendant reveals nothing with regard to
the unnamed counterintelligence agent's relationship with
Juri Raus, which conferred the power to require defendant
Raus to obey him or the consequences of the failure to
obey the "instructions".
In summary, the plaintiff contends that the Court erred
in granting the defendant's motion for summary judgment
on several substantial grounds; the acceptance of the affi-
davits which failed to meet the testimonial requirements of
56(e) of the F.R.C.P.; the prohibition of the discovery pro-
cedure accorded other litigants, specifically the refusal of
the Court to allow the plaintiff to take the deposition of
the CIA Director Helms who as a witness would be revealed
as a vital source of information or as one whose testimony,
untested by cross examination and thus subject to being
struck, would be valueless in either deposition or affidavit
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form as support for the defendant's motion for summary
judgment; and by the Court's acceptance of the limited
fragmentary data of the Helms' affidavits all of which must
be judged on the issues of authorization and ratification,
in the best possible light for the plaintiff, as sufficient to
deprive the plaintiff of his day in Court and foreclose the
opening of a forum for truth. Finally, the Court erred in
interpreting late affirmance as legally effective ratification.
CONCLUSION
The summary judgment entered for the defendant should
be reversed and the cause remanded to the trial court with
directions for a full trial on the merits.
Respectfully submitted,
ERNEST C. RASKAUSKAS
Suite 607
1200 Eighteenth Street, N.W.
Washington, D.C. 20036
223-2730
ROBERT J. STANFORD
1776 K Street, N. W.
Washington, D. C. 20006
Attorneys for Appellant
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