Kinoy v. Mitchell – Government Misconduct – CCR Docket 1974

This is a civil action by CCR attorney Arthur Kinoy and his daughter, Joanne Kinoy, for damages and injunctive relief for electronic surveillance conducted in violation of the Fourth Amendment and 18 U.S.C. Section 2520.

Unlike what occurs in a criminal proceeding, the government did not affirm or deny wiretapping. Rather they moved to dismiss the action, which motion was denied by the District Court in July 1971. Subsequently, the government, in answering the complaint, denied “illegal and unconstitutional surveil­lance” of Arthur Kinoy, thus initially refusing under a claim of executive privilege to disclose the existence of surveillance.

Finally, on May 25, 1973, spurred by plaintiffs’ discovery efforts, the government, on the basis of a partial search of agencies and indices, repudiated its answer and admitted that Arthur Kinoy had indeed been overheard by electronic means 23 times on alleged national and foreign security  surveillances conducted without a court order, and dating back to 1951.

After this admission, plaintiffs sought discovery with respect to the authorizations, logs and other evidence derived from the surveillance, as well as with respect to the scope of the government’s search in determining the extent of the surveillance (the 23 admitted surveillances are but the tip of the iceberg of actual surveillance of Kinoy).

The government has successfully held up discovery for  more  than  a year by filing a motion  for  sum­mary  judgment  which urges, among other filings.  that  the  Court  hold  that  warrantless  electronic surveil­lance  for so-called foreign security  purposes  is  leg al, and that  based  on selected information  that it sub­ mitted secretly to  the  court, the surveillances in this  case  are  of  that  variety.  The  government  also  insists on the  completely untenable position  that United States v. United States  District Court   (in  which   attorney Kinoy  won an 8-0 decision from  the  Supreme  Court  that warrantless national security violates not only  the wiretap statute but also the 1st  and 4th  Amendments)  should not  be  applied  to  surveillance  situations before its decision·- a position that would  elevate the Watergate  bugging, among  others, to the realm of legality.

CCR attorneys have filed extensive papers in opposition to the government’s  positions-papers which argue strenuously  for the right of full discovery and for the inapplicability of the Executive’s claimed privilege from having to disclose the nature and contents of its surveillance activities. In support of these arguments, information derived from discovery in the Dellinger v. Mitchell ease and received under pro­tective order, was recently filed with the court by way of exposing the misrepresentations and fallacies in­herent in the government’s position .

Rhonda Copelon, Arthur Kinoy, with Jeremiah Gutman and Michael Ratner