the vagueness and flexibility of present laws, legislation may be the only answer. One frequently proposed legislative approach is to prohibit covert human or mechanical surveillance unless it is authorized for a limited period of time by a judicial warrant or subpoena based on probable cause.

The statement by Egil Krogh, at his time of sentencing for perjury in relation to the Fielding break-in, suggests that clear constitutional procedure might inhibit individuals from using "national security" or other vaguely defined justifications for conducting political surveillance:

"I see now that the key is the effect that the term 'national security' had on my judgment. The very words served to block critical analysis. It seemed at least presumptuous if not unpatriotic to inquire into just what the significance of national security was. The discrediting of Dr. Ellsberg, which today strikes me as a repulsive and inconceivable national security goal, at the time would have appeared a means to diminish any influence he might have had in mobilizing opposition to ending the war. . . Freedom of the President to pursue his planned course was the ultimate national security objective."

This statement reflects the belief by surveillance strategists that their operations are in the national interest, as well as their fear that their operations will be exposed and censured. While their existence may be an inevitable part of the body politic, they must be exposed and treated with great intensity if they are not to eat away the healthy cells of a free society.

William B. Saxbe, being duly sworn, deposes and says:

1. I am the Attorney General of the United States and head of the United States Department of Justice, an Executive Department of the United States. I am also, by reason of the provisions of Rule 25 (d) (1) of the Federal Rules of Civil Procedure, an official defendant in the above-captioned civil action. By reason of my office, I have official custody and control of the files and records of the United States Department of Justice. The matters stated herein are based upon my knowledge; upon information available to me in my official capacity; upon advice and recommendations made to me by the Director of the Federal Bureau of Investigation, Clarence M. Kelley; and upon conclusions reached in accordance therewith.

2. The above-captioned civil action was instituted on June 26, 1969 against the then Attorney General of the United States, John N. Mitchell, and the then Director of the Federal Bureau of Investigation, the late J. Edgar Hoover, seeking declaratory and injunctive relief and money damages. In this action the plaintiffs allege a violation of their rights under 18 U.S.C. §§ 2510-2520, 47 U.S.C. § 605 and the First, Fourth and Ninth Amendments to the Constitution, in essence on the grounds that the defendants have subjected each of the plaintiffs to actionably unlawful electronic surveillance and threaten to continue to do so in the future.

3. The plaintiffs in this action served upon former Attorney General Mitchell certain Interrogatories and a Request for Admission of Facts Under Rule 36, which have since been modified by the plaintiffs. As the Attorney General of the United States and a successor in office to former Attorney General Mitchell, I am in receipt of the said modified interrogatories and request, which relate to certain national security electronic surveillance conducted by the Department of Justice, as well as the Court's Order of January 10, 1974 entered with respect thereto. The defendants have moved the Court for partial relief from

its Order of January 10, 1974 requesting that the defendants be relieved of answering Interrogatories 1.c., 2.c. (i), 2.c.(ii), 2.i., 7.k., 11 and 12 and that their answer to Interrogatories 2.d. (ii), 2.d. (iii), 2.e., 2.f. and 4 be stayed pending further order of the Court following determination by the Court of whether the electronic surveillances in issue are legally actionable.

4. I am advised that my subordinates have carefully searched the files of the Department of Justice and the Federal Bureau of Investigation and have removed therefrom and delivered to me all documents relevant to the assertions hereinafter made in this Affidavit and Claim of Privilege in response to the remainder of the modified interrogatories and request for admission of facts. 5. As the Attorney General of the United States I have examined such documents and find that certain of them and/or the information contained therein may be revealed to the plaintiffs without prejudice to the public interest so long as the rights of third parties are fully protected. To this end I have designated Edward S. Christenbury, an Attorney in the Criminal Division of the Department of Justice, to answer the request for admission of facts and certain of the modified interrogatories and make certain of such documents pertaining thereto available to the plaintiffs, but, where appropriate, to seek a Protective Order of the Court with respect thereto to protect the rights of third persons not parties to this civil action. I also find, for the reasons more fully set forth below, that certain other such documents and/or the information contained therein cannot, in the public interest, be disclosed to the plaintiffs.

6. The documents and/or information which cannot in the public interest be disclosed to the plaintiffs relate to three national security electronic surveillances authorized by the then Attorneys General of the United States, acting for the President, to obtain information deemed necessary to protect the United States against the overthrow of the Government by force or other unlawful means. The decisions to authorize these surveillances were based upon information contained in the requests of the then Director of the Federal Bureau of Investigation, which were considered in conjunction with the entire range of intelligence information available to the Attorney General at that time. For the purposes of designating and describing the documents, I here group them into three sets, to correspond to the three electronic surveillances referred to in this paragraph.

a. The first set consists of ten documents:

(1) A two-page Memorandum for the Attorney General (Francis Biddle) dated October 24, 1942 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified Personal and Confidential bearing the hand-written notation "authorized FB 10/26/42";

(2) A one-page Memorandum for the Attorney General (Nicholas deB Katzenbach) dated June 17, 1965 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the handwritten initials "NdeBK";

(3) A one-page Memorandum for the Attorney General (Nicholas deB Katzenbach) dated December 20, 1965 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the handwritten notation "NdeBK";

(4) A one-page Memorandum for the Attorney General (Nicholes deB Katzenbach) dated June 14, 1966 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the initials "NdeBK"; and

(5) Six internal Bureau messages from the Director, FBI to the cognizant Bureau field office dated October 27, 1942, February 10, 1949, December 20, 1949, December 21, 1949, October 2, 1950 and February 9, 1967 relative to the installation, continuation and discontinuation of the above electronic surveillance.

The four documents identified in paragraph 6.a.(1)–(4) constitute the authorization and all reauthorizations with respect to this electronic surveillance on this organization, which electronic surveillance was initiated on November 1, 1942 and discontinued on February 10, 1967.

b. The second set consists of eleven documents:

(1) A three-page Memorandum for the Attorney General (John N. Mitchell) dated June 26, 1970 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the signature of approval of John N. Mitchell with the handwritten date “6/29/70";

(2) A two-page Memorandum for the Attorney General (John N. Mitchell) dated July 29, 1970 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the signature of approval of John N. Mitchell with the handwritten date “7/29/70":

(3) A two-page Memorandum for the Attorney General (John N. Mitchell) dated August 31, 1970 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the signature of approval of John N. Mitchell with the handwritten date "9/2/70";

(4) A two-page Memorandum for the Attorney General (John N. Mitchell) dated September 30, 1970 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the signature of approval of John N. Mitchell with the handwritten date "10/1/70"; and

(5) Seven internal Bureau messages from the Director, FBI to the cognizant Bureau field office dated June 3, 1970, June 30, 1970, July 13, 1970, July 15, 1970, July 24, 1970, August 3, 1970 and November 2, 1970 relative to the installation, continuation and discontinuation of the above electronic surveillance.

The four documents identified in paragraph 6.b. (1)-(4) constitute the authorization and all reauthorizations with respect to this electronic surveillance on this individual, which electronic surveillance was initiated on July 14, 1970 and discontinued on November 2, 1970.

c. The third set consists of six documents:

(1) A five-page Memorandum for the Attorney General (John N. Mitchell) dated March 30, 1971 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the signature of approval of John N. Mitchell with the handwritten date "3/30/71";

(2) A two-page Memorandum for the Attorney General (John N. Mitchell) dated April 29, 1971 from the Director of the Federal Bureau of Investigation and signed by him (J. Edgar Hoover) classified SECRET bearing the signature of approval of John N. Mitchell with the handwritten date "4/29/71"; and

(3) Four internal Bureau messages from the Director, FBI to the cognizant Bureau field office dated April 1, 1971, April 13, 1971, May 3, 1971 and May 12, 1971 relative to the installation, continuation and discontinuation of the above electronic surveillance.

The two documents identified in paragraph 6.c.(1)-(2) constitute the authorization and all reauthorizations with respect to this electronic surveillance on these locations, which electronic surveillance was initiated on April 1, 1971 and discontinued on May 13, 1971.

7. The first of the aforesaid electronic surveillances was conducted to gather, on a long-range basis, national security information to meet a potential threat to the nation's security resulting from the activities within the United States of an organization composed of citizens of the United States which is dominated by a foreign power and which acts on behalf of that foreign power to advance its objectives within the United States. The subject of this surveillance was an organization whose activities were controlled by the aforesaid organization. To disclose the subject and purpose of this surveillance would, to that extent, reveal the depth, scope and degree of the Government's knowledge of the extent of the foreign-dominated organization's activities in connection therewith and alert that organization as to that phase of the Government's current activity with respect to it. The Director of the FBI has advised and I have concluded that to disclose any such information, other than that set forth in paragraph 6a, of this affidavit and in the answers to the interrogatories to be filed by Mr. Christenbury, would be prejudicial to the public interest and the national security of the United States. Accordingly, pursuant to the authority vested in me as Attorney General of the United States. I assert a formal claim of executive privilege against the disclosure of such information.

8. The second of the aforesaid electronic surveillances was conducted to gather security information to meet a potential threat to the national security resulting from the activities within the United States of an individual who is believed to have a significant connection with a foreign power and to operate on behalf of that foreign power to advance its objectives within the United States. This individual is a former member of the foreign-dominated organization referred to in paragraph 7 above. Although the electronic surveillance of this individual has been discontinued, the FBI is currently conducting an investigation into the activities of one of the organizations in which this individual was a principal influence, and which the foreign-dominated organization referred to in paragraph 7 above is systematically seeking to infiltrate and control. To disclose the subject and purpose of this electronic surveillance would reveal the Government's investigative interest in and knowledge of such organization as an organization which has been influenced by such individual and is sought to be infiltrated and controlled by the domestic foreign-dominated organization aforesaid and alert the foreign-dominated organization as to that phase of the Government's

current activity with respect to it. The Director of the FBI has advised and I have concluded that to disclose any such information, other than that set forth in paragraph 6.a. of this affidavit and in the answers to the interrogatories to be filed by Mr. Christenbury, would be prejudicial to the public interest and the national security of the United States. Accordingly, pursuant to the authority vested in me as Attorney General of the United States, I assert a formal claim of executive privilege against the disclosure of such information.

9. The third of the aforesaid electronic surveillances was conducted, primarily, to gather security information relating to the activities of a group of individuals and an organization who were at that time planning the imminent use of force and violence against the Government of the United States, including bombings, guerrilla tactics, and the disruption of essential government functions. The organization is infiltrated by members of the foreign-dominated organization referred to in paragraph 7 of this affidavit. To disclose the subjects and locations of this surveillance would not only prejudice the Government's current activity with respect to them but would also, to that extent, reveal the depth, scope and degree of the Government's knowledge of the extent of the foreign-dominated organizaion's activities in connection therewith and alert such organization as to that phase of the Government's current activity with respect to it. The Director of the FBI has advised and I have concluded that to disclose any such information, other than that set forth in paragraph 6.c. of this affidavit and in the answers to the interrogatories to be filed by Mr. Christenbury, would be prejudicial to the public interest and the national security of the United States. Accordingly, pursuant to the authority vested in me as Attorney General of the United States, I assert a formal claim of executive privilege against the disclosure of such information.

WILLIAM B. SAXBE, Attorney General of the United States.

Subscribed and sworn to before me this 18th day of March, 1974.

My Commission expires March 14, 1975.

CERTIFICATE OF SERVICE

Notary Public.

I hereby certify that on this date I served a copy of the foregoing NOTICE OF AFFIDAVIT AND CLAIM OF PRIVILEGE with attached Affidavit and Claim of Privilege dated March 11, 1974 upon the plaintiffs by serving a copy thereof by mail, postage prepaid, upon :

WILLIAM J. BENDER, Esq.,

c/o Constitutional Litigation Clinic, Rutgers Law School. BENJAMIN C. FLANNAGAN, Attorney, Department of Justice.

March 18, 1974.

EXHIBIT 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CIVIL ACTION NO. 1187-73; SECOND AMENDED COMPLAINT

MORTON H. HALPERIN and INA HALPERIN, 8215 Stone Trial Drive, Bethesda, Maryland, suing individually and on behalf of their minor children, DAVID HALPERIN, MARK HALPERIN and GRAY HALPERIN, PLAINTIFFS

v.

HENRY A. KISSINGER, 2527 Waterside Drive, NW, Washington, D.C.; RICHARD M. NIXON, Presidential Compound, San Clemente, California; JOHN N. MITCHELL, 1030 Fifth Avenue, New York, New York; H. R. HALDEMAN, 2402 R Street, NW, Washington, D.C.; JOHN EHRLICHMAN, 330 Chesapeake Drive, Great Falls, Virginia; ALEXANDER HAIG, Fort McNair, Washington, D.C.; WILLIAM C. SULLIVAN, 2810 64th Avenue, Cheverly, Maryland; ROBERT C. MARDIAN, 2323 North Central Avenue, Phoenix, Arizona; CLARENCE KELLEY, Director of the FBI, 10th and Pennsylvania Avenue, Washington, D.C.; JEB STUART MAGRUDER, Federal Penitentiary, Allenwood, Pennsylvania; JOHN DOE, RICHARD ROE, and other unknown agents of the FBI; and JAMES POE, RICHARD DOE, and

other unknown employees of the Executive Department and other agencies of government; and CHESAPEAKE & POTOMAC TELPHONE Co., 725 13th Street, NW, Washington, D.C., DEFENDANTS

JURISDICTION

1. This action arises under Title 18, United States Code, § 2520 and under the First, Fourth and Ninth Amendments to the United States Constitution. The jurisdiction of this Court is based upon Title 28, United States Code, § 1331(a) and 1343 (4), Title 18, United States Code, § 2520, and the First, Fourth and Ninth Amendments to the Constitution. The matter in controversy, exclusive of interests and costs, exceeds $10,000.*

PARTIES

2. Plaintiff Morton H. Halperin is a citizen of the United States and a resident of the State of Maryland. He is a Senior Fellow at the Brookings Institution, Washington, D.C. From January 21, 1969 through September 19, 1969, he was Assistant to the defendant Kissinger; and from August 1967 through January 1969 he was Deputy Assistant Secretary of Defense for Policy Planning and Arms Control.

3. Plaintiff Ina Halperin is a citizen of the United States and a resident of the State of Maryland. She resides with her husband, plaintiff Morton Halperin. 4. Plaintiffs David, Mark and Gary Halperin are minors and citizens of the United States, residing with their parents, plaintiffs Morton and Ina Halperin. 5. Defendant Henry A. Kissinger is Secretary of State and at the time this action was initiated was Assistant to the President of the United States for National Security Affairs, residing at 2527 Waterside Drive, NW, Washington, D.C., and working at the White House, 1600 Pennsylvania Avenue, Washington, D.C. He is sued in his individual and official capacities.

6. Defendant Richard M. Nixon is former President of the United States, presently residing at "Casa Pacifica", San Clemente, California. He is sued in his individual capacity.

7. Defendant John N. Mitchell is former Attorney General of the United States who at the time this action was initiated resided at 1030 Fifth Avenue, New York, New York. He is sued in his individual and former official capacities. 8. Defendant H. R. Haldeman is former Assistant to the President of the United States, residing at the time this action was initiated at 2402 R Street, NW, Washington, D.C. He is sued in his individual and former official capacities. 9. Defendant John Ehrlichman is former Counsel to the President and former Assistant to the President of the United States for Domestic Affairs, residing at the time this action was initiated a 330 Chesapeake Drive, Great Falls, Virginia. He is sued in his individual and former official capacities.

10. Defendant Alexander Haig is Assistant to the President of the United States, formerly Deputy Assistant to the President of the United States for National Security Affairs, and formerly Military Assistant to the defendant KISSINGER, residing at the time this action was initiated at Fort McNair, Washington, D.C. He is sued in his individual and official capacities.

11. William C. Sullivan is former Director of the Office of National Narcotics Intelligence, Justice Department, and formerly assistant to the late Director of the Federal Bureau of Investigation, J. Edgar Hoover. At the time this action was initiated, he resided at 2810-64th Avenue, Cheverly, Maryland. He is sued in his individual and former official capacities.

12. Defendant Robert C. Mardian is a former Assistant Attorney General of the United States and a former official of the Committee to Re-elect the President, residing at 2323 North Central Avenue, Phoenix, Arizona. He is sued in his individual and former official capacities.

13. Clarence M. Kelley is Director of the Federal Bureau of Investigation. He is sued in his official capacity as custodian of certain records hereinafter described. 14. Defendant Jeb Stuart Magruder, is a former Special Assistant to the President and is currently serving a prison term in the Federal Penitentiary at Allenwood, Pennsylvania. He is sued in his individual and former official capacities.

15. Defendants John Doe and Richard Roe are unknown agents of the Federal Bureau of Investigation. They are sued in their individual and official capacities. 16. Defendants James Poe and Richard Doe are unknown agents of the Executive Department or of other governmental agencies. They are sued in their individual and official capacities.