The opinion of the court was delivered by: GRIESA
This is an action brought by two related political organizations, the Socialist Workers Party ("SWP") and the Young Socialist Alliance ("YSA"), and members of these organizations, claiming that various agencies and officials of the federal government have violated plaintiffs' constitutional and other legal rights.
Plaintiffs have moved under Fed.R.Civ.P. 37(b)(2)(D) to adjudge the Attorney General of the United States in contempt for failure to obey an order of this Court of May 31, 1977. The latter order directed defendant Federal Bureau of Investigation to produce to plaintiffs' counsel the files of eighteen FBI informants, with the express direction that plaintiffs' counsel were prohibited from revealing the identities of the informants or any other information contained in the files to anyone other than the attorneys specified in the order.
The Second Circuit Court of Appeals, in an opinion dated October 11, 1977, held that the May 31, 1977 order was issued within the District Court's lawful discretion. In re United States, 565 F.2d 19 (2d Cir. 1977). A petition for rehearing to the Court of Appeals, with a suggestion for rehearing En banc, was denied on March 9, 1978, no active judge, or judge who was a member of the panel, voting for rehearing. On June 12, 1978 the Supreme Court denied the Government's certiorari petition, Chief Justice Burger and Justices White and Powell announcing they would grant the petition.
Although the order was directed to the FBI, the Attorney General has now assumed the personal responsibility for deciding whether or not the order is to be complied with. The Attorney General asserts that this assumption of responsibility is required by 28 C.F.R. §§ 16.23 and 16.24(b).
In an affidavit dated June 13, 1978, confirmed by subsequent submissions made to the Court by the United States Attorney for the Southern District of New York, the Attorney General has stated that he will not comply with the order of May 31, 1977, and that neither the Department of Justice nor the FBI will produce the informant files specified in that order.
The Attorney General makes the following arguments in opposition to a finding of contempt:
(a) That it would be a grave and almost unprecedented step to hold a cabinet officer in contempt of court, particularly for failure to comply with a discovery order;
(b) That his refusal to obey the order stems from a desire to protect an important public interest I. e., the need to ensure the confidentiality of informants so that informants will not be deterred from assisting in the detection of crime;
(c) That his refusal to obey the order has the further purpose of preserving the Government's right to obtain "full appellate review" of the May 31, 1977 order, which he declares is thus far "unreviewed."
(d) That the Court should refrain from enforcing the May 31, 1977 order, and should impose sanctions other than contempt I. e., adopt methods of dealing with the informant issues that do not involve production of the actual informant files to plaintiffs' counsel.
This Court cannot accept the Attorney General's position. No one can deny that it is a grave step to enforce a court order to the extent of holding the Attorney General of the United States in contempt. However, the issues in this case are grave in the extreme, involving charges of abuse of political power of the most serious nature. Plaintiffs allege, among other things, that the FBI used its very considerable power to conduct a systematic covert campaign to manipulate and disrupt the plaintiff organizations and interfere with their lawful activities. Plaintiffs allege that a prime device used in this campaign was to infiltrate the plaintiff organizations with paid, undercover informants, who were instructed to take various actions designed to harm the organizations, and to furnish the FBI information so that the FBI could take additional steps to harass and hamper the organizations and their members. Plaintiffs also allege that, aside from this campaign to manipulate and disrupt, there was a serious invasion of constitutional rights in the very fact of the pervasive intrusion and surveillance carried out by the undercover informants with respect to the peaceful political activities of the organizations and the personal lives of members, accompanied by the use of these informants to obtain all manner of confidential documents, including membership lists and financial records.
Plaintiffs urge that the activities of the FBI informants were of a radically different character than legitimate use of informants for valid law enforcement purposes. Plaintiffs contend that there was no valid law enforcement or crime-detection purpose involved in the FBI surveillance and the other activities carried out by the FBI against the SWP, the YSA and their members. In this connection, it should be noted that in September 1976, some three years after this action had been commenced, and after a Senate committee
had severely criticized the FBI with respect to its activities against the SWP and the YSA, Attorney General Levi terminated the investigation of the SWP.
It is not only in plaintiffs' interest, but in the broad public interest, that plaintiffs be afforded a fair opportunity to obtain and present the essential evidence about this alleged wrongdoing. The issues in this case relate to the most fundamental constitutional rights, which lie at the very foundation of our system of government the right to engage in political organization and to speak freely on political subjects, without interference and harassment from governmental organs. Since the allegations relate to the highest levels of government,
it is entirely appropriate for a court to enter an order against a cabinet officer, if necessary, for the production of the essential evidence, and to adjudge that cabinet officer in contempt if he refuses to obey the order.
For reasons to be explained hereafter, this Court concludes that the FBI informant files constitute a unique and essential body of evidence regarding the allegations of wrongdoing in this case. The Court further concludes that, although it is neither necessary nor practical to have all such files (numbering over 1300) produced or used as evidence, it must be established as a principle in the conduct of this case that plaintiffs' counsel are entitled to production of a representative selection of these informant files, without deletions or expurgations such production to be decided upon By the Court, and not to depend upon the unilateral terms and conditions set by the FBI or the Attorney General. In this regard, the following discussion in Rosee v. Board of Trade, 35 F.R.D. 512, 515 (N.D.Ill.1964) is instructive:
"Unless the privilege is conferred by statute, the legitimacy of the privilege claimed must be determined by the Court. "Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers.' United States v. Reynolds, 345 U.S. 1, 9, 73 S. Ct. 528, 97 L. Ed. 727 (1953).
"Without statutory authority, an executive officer may not erect a privilege which will bar judicial scrutiny. To allow such action, particularly where government agents are numbered among the defendants, would enable such an officer (here, the Secretary of Agriculture) to draw a cloak of secrecy around the acts of subordinates and thereby preclude ultimate determination of the propriety of their official conduct."
Plaintiffs' request for eighteen informant files is unquestionably a good faith effort to arrive at a representative selection of the files. In view of the total number of such files in existence, it is a most modest request indeed. Although the Court has granted the request for production, it has imposed certain important conditions over plaintiffs' objections. The Court has ordered that the information in the files is only available to plaintiffs' attorneys, and cannot be revealed even to the clients except to the extent expressly authorized by the Court in further proceedings.
The Attorney General's assertion that the public interest requires ensuring the confidentiality of informants is a reiteration of the position taken by the FBI throughout these proceedings. This Court has consistently recognized the need to give the matter of the confidentiality of informants the most careful consideration. It has been the purpose of the Court, often expressed, to handle the case in such a way as to keep any public exposure of the identities of FBI informants to an absolute minimum.
However, the informant privilege is not absolute. Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). The Government's interest must be weighed against other factors. One factor here is that there is no ongoing investigation of the SWP or the YSA which will be compromised by the production of informant files. Thus, the Government is asserting a "generalized interest in confidentiality" (See United States v. Nixon, 418 U.S. 683, 713, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974)) that is, the concern that informants in other situations may be deterred if confidentiality is not maintained in the present case. Of greater significance is the fact that this is Not the normal situation where the problem is the disclosure of information relating to informants who have unquestionably been used in legitimate efforts to detect crime. The present case involves the serious allegation that the FBI informants were used for Unlawful purposes that is, to monitor and interfere with legitimate political and private activities. Thus the questions about production of informant files in the present case cannot be resolved by looking solely at the interest in informant confidentiality, as the Government would have us do. There are countervailing considerations which deeply affect the public good. These considerations relate to the interest of the citizens of this country in being protected against the illegal and unconstitutional use of informants to interfere with the exercise of basic political rights and to invade the privacy of persons and organizations. One obvious way to protect against such abuses is to allow private plaintiffs fair opportunity to recover for such abuses to the extent legally allowed, with the attendant exposure of any misuse of Government power to public view. These considerations reinforce the conclusion that there is ample justification for the enforcement of an order against the Attorney General which is designed to provide essential evidence in this case to plaintiffs' attorneys.
The discussion in United States v. Hemphill, 369 F.2d 539, 542 (4th Cir. 1966) is instructive. There the Government was a plaintiff, and the Court of Appeals granted a writ of mandamus against a district court order compelling disclosure of certain Government informant files. However, the Court of Appeals emphasized that in certain instances the informant privilege would need to give way to other interests relating to the administration of justice. The discussion of the Court, while relating to the Government as a plaintiff, has application to the Government as a litigant in any capacity.
"(T)he policy favoring anonymity of informants must give way when it conflicts with the countervailing policy favoring fair and orderly trials and pretrial procedures.
"This was the concern of the District Judge. We share his conviction that when the United States, a cabinet official, or an agency of the United States comes into the Court as a plaintiff, they are subject to the same rules as private litigants, and the open disclosure which is now demanded of litigants in the federal courts, because of its fairness and its contribution to accuracy in the fact-finding process, is equally demanded of such plaintiffs."
A principal justification asserted by the Attorney General for his refusing compliance with the May 31, 1977 order is that such refusal is necessary in order to preserve the right to "full appellate review." The Attorney General contends that the Government has been unable to obtain "review on the merits with respect to the Court's order" in the appellate proceedings which have taken place.
The theory that full appellate review has thus far been denied, and that there is some other procedure which will provide an additional quantum of review is repeated over and over again in the Attorney General's affidavit and in the brief filed on his behalf. However, this proposition is simply invalid.
At no point in the Attorney General's affidavit or in his brief is there any attempt to articulate or explain what additional measure of review would be available through some other appellate proceeding. Not one judicial authority is cited to illustrate or define what further appellate review would add or accomplish.
As will be described more fully hereafter, the Court of Appeals dismissed the appeal, But entertained and ruled upon the mandamus petition. This ruling expressly resolved each relevant question of law that is, that the informant privilege applies; that it is a qualified privilege, which can be overcome by a showing that the need for disclosure outweighs the claim of privilege; and that a district judge, in the exercise of his discretion, may permit opposing counsel to participate in and assist him in the conduct of In camera proceedings under a pledge of secrecy. Finally, the Court of Appeals held that the May 31, 1977 order was a valid exercise of discretion under these rules. In re United States, 565 F.2d 19, 22-23.
This review responded precisely to the "Question Presented" in the Government's brief relating to the mandamus petition and appeal to the Second Circuit, which was phrased:
"Whether the District Court abused its discretion in directing release to plaintiffs' counsel of eighteen confidential informants' identities and files in a civil action against the Government."
The Government regarded this same question as the proper question both for mandamus petition and appeal.
The problem, from the Government's standpoint was not that the Court of Appeals failed to rule on the issues, but that the Court ruled adversely to the Government.
The authorities are absolutely clear that, in connection with a discovery problem such as the one involved in the present case, the issue on appellate review, regardless of the form such review takes, is the question of whether the district court abused its discretion. Thus, no additional measure of review would be available to the Government in this case in any further proceedings in the appellate courts. Baker v. F & F Investment, 470 F.2d 778, 781 (2d Cir. 1972), Cert. denied, 411 U.S. 966, 93 S. Ct. 2147, 36 L. Ed. 2d 686 (1973); Carr v. Monroe Manufacturing Co., 431 F.2d 384, 389 (5th Cir. 1970), Cert. denied, 400 U.S. 1000, 91 S. Ct. 456, 27 L. Ed. 2d 451 (1971); Swanner v. United States, 406 F.2d 716, 718-19 (5th Cir. 1969). The Government was asked at oral argument to provide decisions illustrating its theory that there would be a broader review of the Court's discovery ruling on appeal than was afforded on mandamus. The Government then provided the Court with a group of cases. These cases are either off point, or illustrate the opposite of the Government's theory. See Duplan Corp. v. Deering Milliken, Inc., 540 F.2d 1215 (4th Cir. 1976); Carey v. Hume, 160 U.S.App.D.C. 365, 492 F.2d 631, Cert. dismissed, 417 U.S. 938, 94 S. Ct. 2654, 41 L. Ed. 2d 661 (1974); Hyde Construction Co. v. Koehring Co., 455 F.2d 337 (5th Cir. 1972); Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970), Cert. denied, 401 U.S. 974, 91 S. Ct. 1191, 28 L. Ed. 2d 323 (1971); Radiant Burners, Inc. v. American Gas Association, 320 F.2d 314 (7th Cir.), Cert. denied, 375 U.S. 929, 84 S. Ct. 330, 11 L. Ed. 2d 262 (1963); Hyam v. American Export Lines, Inc., 213 F.2d 221 (2d Cir. 1954).
The Attorney General goes so far as to contend that he would be justified in disobeying the May 31, 1977 order even if it meant his being held in civil contempt, because this would be a legitimate device for obtaining "full appellate review." The argument about the availability of fuller review has been dealt with. Moreover, it is the settled rule that a party to a civil case does not have a right of appeal from a civil contempt citation until final judgment. Fox v. Capital Co., 299 U.S. 105, 107-08, 57 S. Ct. 57, 81 L. Ed. 67 (1936); International Business Machines Corp. v. United States, 493 F.2d 112, 117-19 (2d Cir. 1973), Cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974); Hodgson v. Mahoney, 460 F.2d 326, 328 (1st Cir.), Cert. denied, 409 U.S. 1039, 93 S. Ct. 519, 34 L. Ed. 2d 488 (1972).
The Attorney General argues that he has a kind of option to accept sanctions under Rule 37 short of compliance with the order. The sanctions suggested by the Attorney General, which will be analyzed hereafter, are nothing but attempts to avoid or drastically reduce the effect of the May 31, 1977 order. In other words, the Government seeks to use the weapon of defiance of the order to dictate its own terms as to what it will or will not do in connection with providing evidence in this case.
This position cannot be justified. The Attorney General has no "right" to defy a court order for discovery, and accept sanctions of his selection. United States v. Costello, 222 F.2d 656, 662 (2d Cir. 1955), Rev'd on other grounds sub nom. Matles v. United States, 356 U.S. 256, 78 S. Ct. 712, 2 L. Ed. 2d 741 (1958); Edgar v. Slaughter, 548 F.2d 770, 772 (8th Cir. 1977). On the contrary, his duty is to obey the order. The Court possesses, and must possess under our system of law, the authority to enforce an order for the production of evidence, with a view to the interests of all parties in a litigation, and with a balanced view of the public interests involved. The Court must not fashion its orders and remedies solely at the behest of any one party, even if he is the Attorney General of the United States.
Rule 37(b)(2)(D) of the Federal Rules of Civil Procedure expressly provides for contempt of court as a sanction which may be imposed in lieu of, or in addition to, other sanctions.
In Bank Line v. United States, 163 F.2d 133, 138 (2d Cir. 1947), Judge Augustus Hand, writing for Judges Learned Hand and Clark, stated:
"It has been the policy of the American as well as of the English courts to treat the government when appearing as a litigant like any private individual. Any other practice would strike at the personal responsibility of governmental agencies which is at the base of our institutions."
The Government asserts that the Attorney General's refusal to comply with the May 31, 1977 order is made in the utmost good faith. While this Court does not doubt for a minute the Attorney General's sincere interest in protecting legitimate informant confidentiality, the effect of the Government's position at this juncture in the present proceedings is to create unjustified delay and obstruction to the production of evidence in a case involving serious charges of illegal use of informants. In any event, the good faith motive of a party does not justify disobedience of a court order. McComb v. Jacksonville Paper Co., 336 U.S. 187, 191, 69 S. Ct. 497, 93 L. Ed. 599 (1949); Land v. Dollar, 89 U.S.App.D.C. 38, 48, 190 F.2d 623, 633 (1951), Vacated as moot, 344 U.S. 806, 73 S. Ct. 7, 97 L. Ed. 628 (1952). For instance, in a case recently tried by this Court, the Department of Justice obtained a civil contempt citation and then a conviction for criminal contempt of a young woman who refused to give testimony when ordered to do so by the court, despite the fact that the refusal resulted from the woman's honest and reasonable belief that she would be killed if she testified. United States v. Alpert, 76 Cr. 497 (S.D.N.Y. Oct. 6, 1977).
It is time for the May 31, 1977 order to be complied with. It is a modest order, which recognizes the legitimate interests of both plaintiffs and the Government, and it takes into account both the public interest in informant confidentiality and the public interest in exposing illegal uses of informants and abuses of governmental police power. Compliance with this order is an essential prerequisite to the further conduct of this litigation. The order is far short of anything approaching "wholesale" revelation of informant files or identities. To repeat, it requires disclosure of eighteen (out of 1300) informant files to plaintiffs' counsel on a confidential basis. Although the Court of Appeals expressed concern about possible excessive disclosure which might occur in the future (which concern the District Court will unquestionably heed), the opinion contained no reservation whatever about the propriety of the present order. The order has been the subject of a year of appellate review. It must now be enforced.
The Supreme Court has emphatically affirmed the power and the duty of the Judiciary to declare the law in connection with claims of governmental privilege asserted by the highest officials in the country. The Supreme Court has affirmed the power of the Judiciary to enter an order for the production of evidence even against the President of the United States. United States v. Nixon, 418 U.S. 683, 704-05, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974). Surely these rules apply to a cabinet officer.
The power to enter an order against an official necessarily implies the power to enforce that order by appropriate means, including holding the official in contempt of court. Land v. Dollar, 89 U.S.App.D.C. 38, 190 F.2d 623 (1951), Vacated as moot, 344 U.S. 806, 73 S. Ct. 7, 97 L. Ed. 628 (1952). There the Secretary of Commerce, the acting Attorney General, and other high officials were held in civil contempt for failure to obey a court order and for counseling disobedience of the order. This order was made at the conclusion of litigation. However, the principle regarding the applicability of civil contempt in cases of disobedience of court orders by cabinet officers applies with equal force in the present case.
In the Sawyer case, the Court held the officials in civil contempt, granted a short time during which they could purge themselves of contempt and avoid imprisonment, and ordered that they should surrender themselves for imprisonment if they did not purge themselves of contempt within the specified period. The officials complied, and imprisonment was unnecessary.
In view of the factual record, and in light of the applicable authorities, the Court rules:
(a) The order of May 31, 1977 remains in force, and the Attorney General and the FBI are hereby given notice that they are to comply with that order, and to produce the files as directed, forthwith. In order for the Attorney General and his advisors to have an opportunity to review this opinion, it will be deemed to be compliance with the order if the files are produced to plaintiffs' counsel by 5:00 p.m. July 7, 1978. If such production is made at or before that time, the Attorney General will not be in contempt.
(b) If the production of the files is not made at or before the time specified, the Attorney General will be in civil contempt of court thereafter, until he purges himself of contempt by directing the production of the files.
At this time the Court declines plaintiffs' request for an order of imprisonment. The authorities hold that, in connection with civil contempt, the minimum sanction necessary to obtain compliance is to be imposed. Shillitani v. United States, 384 U.S. 364, 371, 86 S. Ct. 1531, 16 L. Ed. 2d 622 (1966); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450-51, 31 S. Ct. 492, 55 L. Ed. 797 (1911). The announcement by the Attorney General that he will not comply with the court order justifies, and indeed necessitates, specific notice to the Attorney General that he will be in civil contempt of court if he continues in this non-compliance. It is obvious that the status of civil contempt would, in and of itself, be a severe sanction against the highest law enforcement officer in the United States. The Court earnestly hopes that the Attorney General will now carry out the order, and that contempt will be entirely avoided. If this does not occur, and if the Attorney General is in civil contempt and makes no effort to purge himself, the Court will entertain a motion for more drastic sanctions.
This action was commenced in July 1973. The plaintiffs consisted of the Socialist Workers Party, the Young Socialist Alliance, and certain named members of these organizations. Although originally brought as a class action, subsequent pleadings have dropped the class allegations. The original complaint named as defendants, by title, the Attorney General of the United States, the Director of the Federal Bureau of Investigation, and other governmental officials.
Certain persons were named as defendants individually, including former Attorney General John Mitchell. The list of defendants included "Unknown Agents of the United States Government." No official or employee of the FBI was individually named as a defendant.
The original complaint alleged, with varying degrees of specificity, wrongs committed by members of the federal government designed to interfere with the rights of plaintiffs under the federal Constitution and certain federal statutes. Injunctive relief was requested. In addition, claims for damages were asserted against the specifically named individual defendants and the "Unknown Agents."
The United States of America was not named as a defendant in the original complaint.
All the individual defendants named in the original complaint were dismissed from the action for lack of personal jurisdiction, except Richard M. Nixon, John Mitchell and John W. Dean, III. A motion for dismissal has been made on behalf of defendant Nixon but decision has been deferred. The various defendants who have not moved for dismissal have denied liability.
The basic issues in the case revolve around the following positions, which are summarized here very briefly. Plaintiffs contend that they are peaceful political organizations devoted to socialism, and also devoted to various lawful causes such as civil rights, women's liberation, and the anti-Vietnam War movement. Plaintiffs' socialist philosophy appears to have its genesis in the teachings of Leon Trotsky. Plaintiffs contend that, despite this Marxist philosophical connection, they have a long record of peaceful pursuits, totally inconsistent with violence or crime. Defendants basically take the position that many, if perhaps not all, of the investigations or other activities carried out vis-a-vis the SWP and the YSA were justified by the need to guard against Marxist revolutionary tactics, including violence and crime.
As noted earlier, in September 1976, Attorney General Levi directed the FBI to terminate its "investigation" of the SWP (presumably including the YSA). The Attorney General's memorandum of September 9, 1976 to the Director of the FBI stated in part:
"The information presented by the FBI and CIA does not constitute specific and articulable facts giving reason to believe the Socialist Workers Party will engage in violence in the foreseeable future; thus the standard set by the domestic security guidelines has not been met. There is no evidence of conduct that would justify an investigation under the foreign counterintelligence guidelines. . . . This type of information should be carefully watched to see whether in the future a reconsideration of this case is required. Similarly, if new facts or circumstances emerge which change the character of the group's domestic conduct in such a way as to justify investigation, a reconsideration would be in order."
The discovery process in this case has been unusually complex for a variety of reasons. The Government has admitted that it possesses about 8,000,000 documents relating to the SWP, the YSA, and their members. All parties have endeavored to be as selective as possible regarding document discovery, so as to avoid involving millions of documents in discovery and evidence at trial. So far about 65,000 pages of documents have been produced by the Government less than one percent of the total.
In general, the various Government agencies have been cooperative, and appear to have been candid, in responding to discovery requests. The United States Attorney's staff is entitled to special commendation for their efforts in connection with the discovery in this case.
However, certain instances of misrepresentations by the FBI in connection with discovery have occurred. These unfortunate instances furnish some plausibility for plaintiffs' assertion, in connection with their request for informant files, that they need at least a representative sample of actual, complete files, and that they should not be relegated to summary information or expurgated documents prepared for them by the Government.
One critical instance where the FBI was less than candid occurred in connection with plaintiffs' first set of interrogatories directed to the FBI. These interrogatories were served in December 1973. By the time of these interrogatories plaintiffs had obtained, among other things, a copy of a memorandum dated April 28, 1971 from the Director of the FBI announcing the discontinuance of certain "counterintelligence programs" including programs entitled "COINTELPRO New Left" and "Socialist Workers Party Disruption Program."
The FBI furnished sworn answers to the interrogatories February 5, 1974. These answers stated, among other things, that COINTELPRO New Left was not applicable to either the SWP or the YSA; and that the purpose of the Socialist Workers Party Disruption Program "was to alert the public to the nature and activities of the Socialist Workers Party and thus to neutralize the Socialist Workers Party." The answers further described the tactics employed in the Socialist Workers Party Disruption Program as consisting of the furnishing of information to law enforcement agencies regarding violations of the law by SWP and YSA members; furnishing the news media pertinent information regarding the objectives and activities of these organizations, and furnishing "information concerning the nature and activities of SWP and YSA to organizations and individuals associated with SWP, YSA or their members."
In March 1975 the FBI produced documents which showed that COINTELPRO New Left was in part directed to the SWP and YSA. The documents showed FBI plans and activities of both COINTELPRO New Left and Socialist Workers Party Disruption Program which were far different from the bland descriptions in the answers to interrogatories. The documents indicate that the purpose of the FBI in these programs was to destroy or cripple the SWP and YSA by a host of covert means to isolate the SWP and YSA from sympathetic organizations, to turn members against one another, and to impose burdens and barriers to the functioning of the SWP, the YSA and their members. These are activities which are not countenanced in the prosecution and punishment of actual criminals, under our system of government.
The documents show FBI plans to place informants within the SWP and YSA to split the organization structure and foment dissent. According to the documents, the FBI interfered with travel reservations of members, took steps to cause speaker hall rentals to be canceled, and circulated false information about the times and places of meetings. The documents show that the FBI caused local law enforcement officers to make arrests and break up functions, not for the purpose of assisting in the enforcement of local laws, but for the purpose of disrupting the SWP and YSA. In one instance, the FBI arranged for a raid of a SWP summer camp for alleged state law violations, and considered it a success when the SWP was forced to sell the camp property. According to the documents, the FBI attempted to secure the eviction of the Philadelphia SWP office from a public building. The documents show that the FBI sent fraudulent letters, purporting to be from "distraught parents," to school administrators, in order to induce these administrators to discharge SWP or YSA members from teaching positions. According to the documents, the FBI sent and circulated a wide variety of communications and leaflets, purporting to be in the name of various individuals and organizations, and designed to create hostility and dissension within the SWP and YSA, and isolate these organizations from other allied organizations. It appears that in some cases informants directly participated in the carrying out of the disruption activities. In other instances the informants furnished the FBI with information which enabled regular agents of the FBI to conduct the disruption activities. The observations of the informants assisted the FBI in assessing the success or failure of disruption activities.
In the fall of 1974 plaintiffs made a motion for a preliminary injunction to prevent FBI informants from attending the national convention of the YSA to be held December 28, 1974. The District Court granted the injunction. Socialist Workers Party v. Attorney General, 387 F. Supp. 747 (S.D.N.Y.1974). The Court of Appeals reversed. 510 F.2d 253 (2d Cir. 1974). With regard to the issue of whether the use of FBI informants violated plaintiffs' rights the Court of Appeals noted:
"Such an issue deserves treatment On a full record and with ample time for reflection, initially by the district court, later by this Court, and perhaps ultimately by higher authority."
510 F.2d at 256 (emphasis added).
In May 1976 lengthy conferences were held to attempt to organize the remaining discovery problems, which were complex. A list of eleven alleged illegal activities was arrived at which were agreed to constitute the basic types of illegal activities claimed by plaintiffs to have been engaged in by defendants. The list was as follows (Minutes May 14, 1976, pp. 75, 84-85):
1. Break-ins and unauthorized seizure or retention of property.
2. Electronic surveillance.
3. Consensual monitoring by recording devices.
5. Physical surveillance.