Scalia Appellate Rulings OK Some Illegal Bugs

High-ranking Administration officials may illegally wiretap reporters and government employees if they do so for national security reasons, the U.S. Court of Appeals said Friday.

Decisions in three separate cases were written by Supreme Court Justice Antonin Scalia, who has been elevated to the Supreme Court since the cases were considered.

Scalia, writing for a three-member panel, said government officials may not be held liable for damages for the initiation of warrantless wiretaps installed for national security reasons.

In the first of the three cases, Scalia wrote that Richard M. Nixon Administration officials, including Atty. Gen. John N. Mitchell, were protected by “qualified immunity” when the home of Morton H. Halperin, a National Security Council staff member, was illegally wiretapped in an attempt to stem what was perceived as a deluge of leaks of classified information to reporters.

The wiretaps remained in place despite Halperin’s September, 1969, resignation from the NSC and continued until February, 1971.

Scalia, in a 28-page decision, said that “no reasonable jury could fail to find that there were reasonable national security grounds for such a wiretap.”

The appeals court, at the insistance of Judges Spottswood W. Robinson III and Abner J. Mikva, returned the case to the trial judge to determine whether the officials are liable for the wiretap for the period after Halperin left the NSC staff. Scalia said he disagreed with the majority on that point.

In a second case, Hedrick Smith, a New York Times reporter, sought damages for an 89-day illegal wiretap on his home in 1969 after he had written a story detailing the U.S. fallback position in negotiations with the Japanese on the status of Okinawa.

The third case involved the trial of Daniel Ellsberg for the release of the so-called Pentagon Papers. Government officials acknowledged that federal investigators had overheard one or more members of the defense team through illegal wiretaps.