472 U.S. 511 (1985)
In 1970, the Federal Bureau of Investigation learned that members of the East Coast Conspiracy to Save Lives had planned to blow up heating tunnels linking federal office buildings in Washington, D.C.1
The group had also discussed kidnapping National Security Adviser Henry Kissinger.2
On November 6, 1970, then Attorney General John Mitchell authorized a warrantless wiretap on the telephone of William Davidon, a Haverford College physics professor and group member.3 The stated purpose was gathering intelligence in the interest of national security.4 The FBI installed the tap in late November 1970 and it remained in place until January 6, 1971.5 During that period the Government intercepted three conversations between Davidon and respondent Keith Forsyth.6
Forsyth learned of the wiretap in 1972 while facing unrelated criminal charges.7 He moved under 18 U.S.C. § 3504 for disclosure of any electronic surveillance to which he had been subjected.8 The Government's response revealed that Forsyth had participated in conversations overheard during surveillance expressly authorized by the President acting through the Attorney General.9 An affidavit from then Attorney General Richard Kleindienst stated the surveillance was authorized under the President's national security authority in 18 U.S.C. § 2511(3).10
Shortly after this Court decided United States v. United States District Court, 407 U.S. 297 (1972), Forsyth filed suit against Mitchell and other defendants in the United States District Court for the Eastern District of Pennsylvania.11 He alleged violations of the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act of 1968.12 He sought compensatory, statutory, and punitive damages.13
Discovery and preliminary proceedings continued for five and a half years.14 By early 1978 both parties had filed motions for summary judgment.15 The District Court found no genuine dispute that the FBI had informed Mitchell of the ECCSL plots, that Mitchell had authorized the warrantless tap on Davidon's phone, and that the ostensible purpose was national-security intelligence gathering.16 The court rejected Mitchell's claim to absolute prosecutorial immunity under Imbler v. Pachtman but held that he could assert qualified immunity.17 Neither side had established the absence of a genuine issue of material fact as to his good faith, so the court denied both summary-judgment motions.18
Mitchell appealed the denial of absolute immunity.19 The Third Circuit remanded for further factfinding on whether the authorization was necessary to a decision to initiate a criminal prosecution.20 On remand the District Court held a hearing and concluded that Mitchell's authorization was not intended to facilitate any prosecutorial decision.21 After this Court decided Harlow v. Fitzgerald, 457 U.S. 800 (1982), the District Court reconsidered qualified immunity, denied Mitchell's motion for summary judgment, granted Forsyth's motion on liability, and scheduled proceedings on damages.22 Mitchell again appealed.23 The Third Circuit held that it had jurisdiction over the absolute-immunity denial but that the qualified-immunity denial was not appealable under the collateral-order doctrine, and it remanded for further proceedings.24 Mitchell petitioned for certiorari, which this Court granted.25
Whether the Attorney General is absolutely immune from suit for actions undertaken in the interest of national security?26
The Attorney General is not entitled to absolute immunity for national security functions.27 There is no historical or common-law basis for such immunity.28 The performance of national security tasks does not subject officials to the same risks of vexatious litigation as judicial or quasi-judicial functions.29 There are no built-in restraints on the Attorney General's activities in this area comparable to those for legislators or judges.30
No. The established facts demonstrate that on November 6, 1970, Attorney General Mitchell authorized a warrantless wiretap on Davidon's telephone after the FBI informed him of the ECCSL's plans to bomb federal buildings and kidnap Henry Kissinger.31
The stated purpose was gathering intelligence in the interest of national security rather than to facilitate a prosecutorial decision.32 This investigative function lacks any historical or common-law foundation for absolute immunity, unlike the prosecutorial immunity recognized in Imbler v. Pachtman.33 National security operations occur in secret with little prospect of open conflict or repeated litigation from losers in an adversarial process, reducing the need for absolute protection from suit.34 The absence of electoral accountability or routine appellate oversight for such actions further counsels against absolute immunity, as the label of national security has historically risked abuse against political dissent.35
Qualified immunity under the Harlow standard adequately shields officials who do not violate clearly established rights while preserving a remedy for constitutional violations.36
The Attorney General is not absolutely immune from suit for actions undertaken in the interest of national security.37
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Chief Justice Burger would have recognized absolute immunity for the Attorney General when performing national security functions delegated by the President.38 He reasoned that the Attorney General acts as the President's chief aide in executing the constitutional duty to take care that the laws are faithfully executed.39 The logic of Gravel v. United States granting absolute immunity to congressional aides applies equally to top executive aides in sensitive areas like national security.40
Denying such immunity creates an anomalous disparity between legislative and executive aides performing comparable discretionary functions.41
Joined by The Chief Justice
Justice O'Connor joined Parts I, III, and IV of the majority opinion but declined to reach the absolute immunity question.42 She concluded that the qualified immunity analysis fully resolved the case in Mitchell's favor because his actions did not violate clearly established law in 1970.43 Reaching the absolute immunity issue would therefore constitute unnecessary dicta.44
The conclusion that petitioner is entitled to qualified immunity is sufficient to resolve this case, rendering any discussion of absolute immunity unnecessary for the disposition of the appeal.45
Justice Stevens concluded that the Attorney General is entitled to absolute immunity when exercising the President's discretionary authority in national security matters.46 He emphasized that Title III expressly exempted national security wiretaps authorized by the President.47 Congress had declined to create a civil remedy for such interceptions.48
Political accountability through scrutiny by the public, press, and Congress provides the traditional check on high executive officers.49 Exposing Cabinet officials to personal liability in this domain would deter decisive action in vital areas and invite vexatious litigation.50
Joined by Justice Marshall
Justice Brennan joined Parts I and II of the Court's opinion.51 He agreed that qualified immunity sufficiently protects the legitimate needs of public officials while retaining a remedy for those whose rights have been violated.52 Because denial of absolute immunity is immediately appealable under Nixon v. Fitzgerald, the issue was squarely before the Court and, in his view, rightly decided against absolute immunity for the Attorney General's national security functions.53
He stressed that the functional considerations supporting absolute immunity for judges and prosecutors do not extend to the Attorney General's national security role, which lacks historical roots and built-in restraints against abuse.
Whether the District Court's finding that petitioner is not immune from suit for his actions under the qualified immunity standard of Harlow v. Fitzgerald is appealable?54
A district court's denial of qualified immunity, to the extent that it turns on an issue of law, is an appealable final decision within the meaning of 28 U.S.C. § 1291 under the collateral order doctrine.55 It conclusively determines the disputed question.56 It resolves an issue conceptually distinct from the merits of the underlying action.57 It is effectively unreviewable on appeal from final judgment since the immunity constitutes an entitlement not to stand trial.58
Yes. The District Court's denial of qualified immunity to Mitchell turned on the purely legal question whether warrantless national security wiretaps violated clearly established law in November 1970.59 This determination conclusively resolved Mitchell's claim of immunity from suit.60 The issue is conceptually distinct from the merits of whether the wiretap actually violated the Fourth Amendment because an appellate court need only decide whether the legal norms allegedly violated were clearly established at the time.61
The right would be irretrievably lost if review awaited final judgment, as the central purpose of qualified immunity is to spare officials the burdens of trial, including discovery and distraction from official duties, when their conduct did not violate clearly established rights.62
The District Court's denial of qualified immunity is appealable under the collateral order doctrine.63
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Joined by The Chief Justice
Justice O'Connor agreed that the denial of qualified immunity is immediately appealable under the collateral order doctrine.64 She explained that the entitlement to avoid trial when conduct does not violate clearly established norms is analogous to the right protected by absolute immunity or the Double Jeopardy Clause.65 Where the district court rejects claims that official immunity precludes trial, the special nature of the asserted right justifies immediate review.66
The very purpose of such immunities is to protect the defendant from the burdens of trial, and the right will be irretrievably lost if its denial is not immediately appealable.67
Joined by Justice Marshall
Justice Brennan dissented from the holding that qualified immunity denials are appealable.68 He argued that the immunity question is not completely separate from the merits because both require determining whether the defendant violated clearly established law.69 The two inquiries involve overlapping legal analysis and research.70
He further contended that the right is not effectively unreviewable on final judgment. The final judgment rule protects against piecemeal appeals.71 The Harlow standard already permits early dismissal of insubstantial claims without relaxing the collateral order doctrine.72
Whether the District Court's ruling on qualified immunity was correct?73
Under Harlow v. Fitzgerald, government officials performing discretionary functions are immune from suit for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.74 The legality of warrantless domestic security wiretaps was not clearly established in November 1970 because the practice had been followed by successive administrations since 1940.75 Katz v. United States expressly left the national security question open.76 Lower courts had upheld such surveillance.77
No. The District Court erred in denying Mitchell qualified immunity and granting summary judgment to Forsyth on liability.7879 The established facts show that Mitchell authorized the Davidon wiretap on November 6, 1970, after receiving information about the ECCSL plots.80 This occurred at a time when the Executive Branch had long regarded warrantless national security surveillance as constitutional.81 This Court in Katz had explicitly reserved the question whether safeguards other than a magistrate's prior authorization would satisfy the Fourth Amendment in national security situations.82
Lower courts had accepted the Justice Department's position in cases involving domestic groups.83 The Keith decision resolving the issue against the government did not come until 1972.84 Because the question remained open when Mitchell acted, he did not violate clearly established law and is therefore entitled to summary judgment on qualified immunity grounds.85
The District Court's ruling that Mitchell was not entitled to qualified immunity was incorrect.86
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Joined by Justice Marshall
Justice Brennan would not have reached the qualified immunity merits because he believed the Court of Appeals lacked jurisdiction over the interlocutory appeal.87 He further noted that the record contained a factual dispute over whether the wiretap was truly motivated by national security concerns or was instead an effort to spy on political opponents.88 The District Court had never resolved that dispute, precluding summary judgment in Mitchell's favor.89
He maintained that the Court improperly engaged in de novo factfinding to reach its result.90