Mail Openings and Border Searches

On November 9, 1978, the United States Court of Appeals for the Second Circuit, by a 2 to 1 decision, affirmed, and modified, in Birnbaum v. United States, 588 F.2d 319 (2d Cir. 1978), a judgment of the United States District Court for the Eastern District of New York, which had held the United States liable under the Federal Tort Claims Act to each of three plaintiffs, individually, for damages in the amount of $1,000, arising out of Central Intelligence Agency interception of their correspondence with individuals in the Soviet Union. The Court held that the Agency's activities in having opened and copied letters (which one plaintiff had received from the Soviet Union in 1968 and the other two had sent to the Soviet Union in 1970 and 1973) had constituted an intrusion upon their privacy, recognizable as a tort under New York law.

The Court denied the Government's claims to exception from liability under the provisions of 28 U.S.C. 2680 (focussing upon the statutory exceptions for claims for certain specified intentional torts, claims arising out of loss, miscarriage, or negligent transmission of mail, and claims based upon performance or failure to perform a discretionary function). The Court stated, as to the last named, that the Central Intelligence Agency had exceeded its statutory authority when it had engaged in internal security investigations to satisfy Federal Bureau of Investigation requirements for counterespionage information and data. It found, therefore, that the CIA "was acting so far beyond its [statutory] authority that it could not have been exercising a function which could in any proper sense be called 'discretionary.'"

In reviewing the district court's award of $1,000 in compensatory damages, Circuit Judge Murray I. Gurfein noted that there had been no finding of physical injury, no loss of employment, and no mental injury in the sense of "permanent symptoms of anxiety." He stated, in regard to the issue of mental anguish :

(footnotes omitted)

The question whether a finding of mental anguish is sustainable is further complicated by two unusual features of these cases, First, the plaintiffs deliberately sought to find out under the Freedom of Information Act whether their mail had been tampered with. In direct response to their curiosity, they received the information which resulted in the purported injury. Thus, in a strict sense, “but for" the plaintiffs' acts in uncovering the openings, they might never have been made to suffer anguish over the Government's wrongs. Second, the letters interfered with were being transported to or from the Soviet Union, a closed society in which, as most people are aware, mail may be opened by secret police without "constitutional" restraint. Only the naive would be emotionally unprepared

for the possibility that a letter might be opened in the Soviet Union. Under those circumstances, it is somewhat difficult to credit the proposition that a reasonable person would be shocked by the mere fact that a letter going to or coming from the U.S.S.R. had been opened at some point.

More troublesome is the fact that plaintiffs should have been aware that their mail might be opened by the Soviet officials (particularly in the case of Ms. MacMillen, who was writing to a wellknown dissident). That could have convinced the trier of fact that there was no compensable damage. Indeed, the testimony of the plaintiffs with regard to their subjective feelings was both weak and meager. The nub of their testimony was that each felt "disappointment" that their own government could do such a thing. Such anguish is political rather than emotional, much as a member of a Senate investigating committee might feel toward the same revelation. The "injury" was principally to "their wounded faith in our democratic institutions," 436 F.Supp. at 989, a loss of faith probably shared by many Americans who do not expect compensation for such intellectual injuries.

The issue comes down to whether each plaintiff suffered any mental injury whatever from the knowledge that a single letter had been opened. As the District Judge properly charged the advisory jury (and we assume charged himself), the plaintiffs could not recover money damages as a vindication of the rights of the American people. Nor do we think that they may recover simply to deter future action, for this particular statute prohibits punitive damagesthe traditional "smart money" remedy used to discourage repetitive conduct.

588 F.2d 319, 834.

The Court of Appeals reversed the district court's order for the Government to send a letter of apology to each plaintiff, on the grounds that the Federal Tort Claims Act provided only for money damages. It noted, in a footnote, that the statute of limitations had by then run on all unfiled claims arising for mail opening, the last of which had occurred in 1973, according to the report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Final Report, Book III (1976), pp. 603–604), and that no such program had since existed. The Court added that the matter had been exposed to public knowledge "long before" publication in 1975 of the report to the President of the Commission on Central Intelligence Agency Activities Within the United States (the Rockefeller Report).

In regard to the Soviet Government's "systematic nondelivery" of international mail addressed to dissidents or "refuseniks" (unsuccessful applicants for permission to emigrate from the Soviet Union), see, further, Mail between the Soviet Union and the United States, Hearings on H. Con. Res. 579, before the Subcommittee on Postal Operations and Services of the House Committee on Post Office and Civil Service, House of Representatives, 95th Cong., 2d sess. (1978).

In Church of Scientology of California et al. v. Simon, 460 F. Supp. 56 (1978), the United States District Court for the Central District

of California on October 13, 1978, denied the plaintiffs' suit to enjoin enforcement of 19 U.S.C. 1305, which prohibits importation into the United States of several categories of immoral documents and articles, including any writing or document that contains matter "advocating or urging treason or insurrection against the United States, or forcible resistance to any law of the United States, or containing any threat to take the life [of] or inflict bodily harm upon any person in the United States . .

The case involved four cartons of papers and documents shipped from England via international air cargo, which the Customs Inspector at Los Angeles International Airport had opened, scanned, and expressing uncertainty ("real suspicion") as to importability of the contents, detained for further review. Following review by special customs agents, the District Director of Customs had concluded that the contents were importable, and the cartons of documents had been released to the plaintiffs within ten days of the original arrival. A temporary restraining order issued in the case had enjoined the Customs Service from copying or disseminating copies of any of the documents, except that it was permitted to disclose the materials to the United States Attorney, who was permitted to make one copy of documents he found appropriate for criminal evidentiary purposes or for defense of any damage claims that the plaintiffs might assert.

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Dismissing the suit (which had also included an action for damages), District Judge William P. Gray upheld the constitutionality of the statute against challenges that it was overbroad, constituted a prior restraint upon speech, and was void for vagueness. As to the claim of overbroadness, Judge Gray read into section 1305 the standards enunciated by the United States Supreme Court in Brandenberg v. Ohio, 395 U.S. 444 (1969), holding that a State could not proscribe advocacy of the use of force, . . except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Following United States v. Ramsey, 431 U.S. 606 (1977), the Court found that in this case the search had been reasonable and had "complied with the more stringent border search test promulgated by the ninth circuit, in United States v. Wilmot, 563 F.2d 1298 (9th Cir. 1977," since the "customs officer's real suspicion concerning the importability of the documents fulfilled the [Wilmot] additional cause requirement, and provided the basis for the more intrusive search that subsequently took place. Thus, the actions of the customs officers were proper and the effectuation of the border search was valid."

460 F. Supp. 56, 58–60.

See, further, for a discussion of United States v. Ramsey, the 1977 Digest, pp. 240-242.

Chapter 4

STATE REPRESENTATION

Diplomatic Missions and Embassy Property

Appointment, Accreditation, and Notification

Evidence of Status

By a circular note to the Chiefs of Mission at Washington, October 2, 1978, the Secretary of State issued a comprehensive restatement of the requirements and procedures for notifying the Department of State of officers and employees of foreign governments on duty in the United States, and also of private servants in the household of such officers and employees. The restatement was prompted, in part, by the coming into effect of new legal authorities for requiring the data requested and by variations observed in the degree to which the individual missions apparently understood and were complying with previously prescribed reporting requirements. The substantive paragraphs of the note read:

REGISTRATION OF MEMBERS OF DIPLOMATIC MISSIONS

On the matter of legal authority for calling for submission of notification forms concerning members of the mission, the Department of State invites attention to article 10 of the Vienna Convention on Diplomatic Relations. That article provides that the Ministry for Foreign Affairs of the receiving state shall be notified of the appointment, arrival, and final departure or termination of official functions of members of the mission; of the presence of members of their families in the receiving state and of all changes in the family status initially reported; of the arrival and final departure or termination of employment of private servants in the household of members of the mission; and of the engagement and discharge of persons resident in the receiving state as members of the mission entitled to privileges and immunities. Since the enjoyment of rights, privileges, and immunities to which members of missions in the United States may be entitled by virtue of the Vienna Convention or domestic law and practice depends upon the Department's timely receipt of complete and accurate information needed for its records system, the advantages to the missions, as well as to their personnel, of supplying this information will of course be obvious.

The new appointment of a diplomat is to be notified to the Department's Office of Protocol by submission of all but the last copy of a completed Form DS-1497, "Notification of Appointment of Foreign Diplomatic Officer." Although the form is largely self-explanatory, certain points need to be stressed. (1) The Secretary of State's circular note of June 17, 1977, restating in expanded form the Department's criteria for accreditation of diplomats and registration of nondiplomatic staff of the missions remains in effect. (2) While A-1 is the proper visa category for foreign diplomats, if that visa status has not been granted by the time the Form DS-1497 is filed, the existing visa status is to be entered in the relevant block, and the Department should be notified promptly by diplomatic note that the needed adjustment has been requested. (3) Biographic data need cover only the last five years. (4) Missions should promptly report to the Department by diplomatic note any change in the status of a diplomatic officer's dependents as initially reported on Form DS-1497, such as change in marital status, the birth of a child in this country, che arrival of a spouse, parent, or child from abroad, or the departure of any family member from the United States prior to termination of the officer's diplomatic assignment.

Upon termination of a diplomatic officer's duties, missions are required without delay to submit Form DS-1497A, "Notice of Final Departure of Foreign Diplomatic Officer," in duplicate to the Office of Protocol. All credentials, such as diplomatic identification documents, tax exemption cards, and automobile license tags, should be returned at that time.

All members of the staff of a diplomatic mission other than diplomats, including American citizens, foreign nationals admitted into the United States for permanent residence, and third-country nationals in nonimmigrant visa status, plus all private servants [in the household] of diplomats and employees of the mission, must within 30 days of the commencement of their employment be individually registered with the Office of Protocol by the filing of Form DS-394, "Notification of Foreign Government-Related Employment Status," in duplicate. These forms do not require transmittal by diplomatic note. Missions are reminded that, under the procedure at present prescribed by the Visa Office of the Department, Forms DS-394 on persons whose visa status requires adjustment are to be submitted to that Office and not to Protocol.

Terminations of the services of all nondiplomatic members of the staff of the mission, as well as of private servants in the household of either diplomats or employees, must be notified to the Department without delay through the filing of Form DS-394A in duplicate. All credentials, such as tax exemption cards and D.C. automobile license tags in the "WN" series, should be returned at that time.

Attention is called to the fact that Form DS-394 has been thoroughly revised, and all missions should now use only the new version, which bears the date indication "5-78" in the lower left-hand corner of the form. On the reverse side of the new form the various legal authorities for requiring the information requested are cited for convenient reference. The Office of Protocol