Kinoy v. Mitchell Dellinger v. Mitchell – Government Misconduct – CCR Docket 1976-1977

When the government’s program of warrantless electronic surveillance was a strong but unproven suspicion, CCR filed two of the first civil actions seeking an injunction agai11st this program and damages for its victims. Kinoy v. Mitchell was filed on behalf of Arthur Kinoy. movement lawyer, Jaw pro­fessor and a founder of CCR, and his daughter Joanne, both of whom were two of the earliest victims of grand jury abuse. (Arthur Kinoy was also responsible for the crucial victory in United States v. United States District Court in which the Supreme Court unanimously declared warrantless electronic surveillance   for   domestic   security   purposes   unconstitu­tional). The Kinoy case won an early decision establishing the right to bring- a civil action without having proof of wire­ tapping. Deninger v. Mitchell was filed on behalf of the Black

Panther Party, the Chicago 8 defendants, and a number of anti-war groups. In Kinoy, the government originally denied wiretapping, and in both cases refused to disclose them. Un­der pressure of discovery the government has been gradually forced to turn over to plaintiffs significant portions of the records of so-called “national  security”  surveillance.

In Dellinger, we obtained and analyzed thousands of pages of surveillance materials, which revealed for the first time the massiveness of the government’s wiretapping program for “domestic security” purposes. These records, which we shared with.the Senate Select Committee 011 In­telligence Activities (Church Committee) document the spuriousness of any domestic security rationale as well as the government’s deliberate deception of the courts as to the nature and purposes of its domestic wiretap program.

Kinoy v. Mitchell involves both domestic and so-called foreign security wiretapping, and addresses the question left open by the Supreme Court in United States v. United States District Court, i.e. the legality of warrantless foreig11 security surveillance. lt involves a significant battle against the government’s, claims of privilege, which are intended to pre­ vent our having discovery of the taps and the extent of wrong­ doing.

In a landmark decision in 1975, the district court denied the government’s   motion  for  summary   judgment   which claimed the foreign taps were legal.  The court  also rejected the government’s claim that the court’s decision should be based on secret (ex parte in camera) submissions by the government and rejected former Attorney General Richard ­ son’s claim of “state secrets” privilege as being insufficient The court ordered Attorney General Levi to reconsider the privilege claim , but he did nol repudiate the Nixon Admini­stration’s cover-up posture and reasserted the privilege on all the taps, even though some are over 2.5 years old. More recently, under pressure from the district court, Attorney General Bell has reconsidered the privilege claims. He too has adhered to the cover-up posture, claiming privilege on all taps but the one that had already been disclosed by the Senate Com­mittee’s investigation.

If the government succeeds in submitting secret exhibits to the courts and if its claims that the surveillances are pri­vileged from disclosure prevail, it will have achieved effective immunity on two levels. The illegality of warrantless foreign security surveillance will not be adjudicated and its actions will not be punished through injunctions or damage awards. In Kinoy. we have been urging the court to rule that a claim of privilege does not bar disclosure to plaintiffs and their coun­sel unless they can be shown to be inherently unreliable. Such disclosure would allow us to contest the government’s secrecy claim . The court is presently considering  this question. A ruling in our favor would be a significant breakthrough for all national security litigation.

Rhonda Cope/on, with Michael Ratner and Jeremiah Gutman