The opinion of the court was delivered by: GRIESA
This is an action brought by a political organization, the Socialist Workers Party ("SWP"), its youth arm, the Young Socialist Alliance ("YSA"), and certain members of the SWP. The action is against the United States of America and certain officials of the United States.
Plaintiffs are followers of the Trotskyist branch of Marxism. They contend that they have been improperly viewed by various Government agencies as threats to national security, and have been subjected to infiltration, disruption and harassment in violation of their legal rights. Plaintiffs seek declaratory and injunctive relief and damages.
The action was commenced on July 18, 1973. The time required for motions and pre-trial discovery was unusually protracted, in part because of the need to organize a selective sample production of the enormous files in the Federal Government relating to the SWP, the YSA and certain of their members. The discovery was complicated by difficult claims of governmental secrecy, requiring two interlocutory appellate proceedings. The following is a list of the prior reported decisions in this case.
To the extent that the substance of these decisions is relevant, they will be discussed in the course of the present opinion.
419 U.S. 1314, 95 S. Ct. 425, 42 L. Ed. 2d 627 (1974) (denial of stay)
The original complaint, filed in July 1973, named as defendants various federal agency and department heads by official title (e.g., Attorney General of the United States) and certain individuals. The United States was not named as a defendant in the original complaint. The original complaint was filed as a class action. A stipulation and order dated September 9, 1974 provided that the action would not be maintained as a class action.
An amended complaint was filed on May 12, 1976. Among other things, it included a claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671 et seq. Plaintiffs filed a second amended complaint on October 8, 1976. As a result of the amendments to the pleadings and various other motions and stipulations, the list of the parties at the time of the trial was as follows:
Attorney General of the United States
Secretary of the Treasury
Director of the Federal Bureau Of Investigation
Director of Central Intelligence
Director of the Secret Service
Director of the Defense Intelligence Agency
Civil Service Commissioners
President of the United States
Commissioner of the Immigration and Naturalization Service
The defendants, other than the United States, are officials named by title. The individual defendants, originally named, were dismissed from the case either on motion or by consent.
The trial was held from April 2 to June 25, 1981 before the court without a jury. Voluminous briefs were thereafter filed. The briefing extended into the spring of 1983.
Issues for Trial and Decision
The following is a summary of the issues which remain for resolution as a result of the trial of this case and the post-trial briefing.
The bulk of the evidence at the trial and the discussion in the briefs related to plaintiffs' allegations of wrongdoing by the FBI and the Department of Justice. Plaintiffs' principal complaints are about four types of FBI activity - disruption, surreptitious entries or burglaries, use of informants, and electronic surveillance (telephone wiretaps and "bugs" in offices and dwellings). Plaintiffs also complain about two programs implemented by the Department of Justice and the FBI, the Security Index/ADEX program and the loyalty-security program for federal employees. In connection with the second program, the SWP was included in the so-called Attorney General's list (now terminated) as a subversive organization.
Damage claims are asserted by the SWP and YSA and also by four of the individual plaintiffs, Evelyn Sell, Morris Starsky, Linda Jenness and Andrew Pulley. For the purpose of discussing the claims, the SWP and YSA will be treated as a unit, and will be referred to as the SWP.
The SWP is seeking damages against the United States under the FTCA with respect to disruption, surreptitious entries, use of informants, and electronic surveillance. The SWP contends that these activities not only violated the Constitution, but also constituted common law torts giving right to recovery under the FTCA. The Government admits that these activities were carried out by the FBI against the SWP, but denies any liability under the FTCA. The Government contends that the SWP's claims are time-barred, that the claims relate to discretionary functions, and that no substantive right to recovery has been shown under the applicable tort law.
The four individual plaintiffs seek damages against the United States under the FTCA. Sell and Starsky claim that FBI activity caused the loss of their jobs. Jenness and Pulley claim that the Secret Service conducted improper surveillance at a YSA convention.
There are no damage claims outstanding in this case other than those described above. However, there are claims for declaratory and injunctive relief by all plaintiffs against all the officials named as defendants. Plaintiffs seek a declaration of illegality and a prohibition against:
(1) Investigation of the SWP.
(2) Disruption of the SWP.
(3) Adverse actions against SWP members who are federal employees or applicants for federal employment.
(4) Adverse actions against SWP members under the immigration and visa laws.
(5) Maintenance of files on the political activities of the SWP. This request is made not only under the general equitable power of the court but also under the Privacy Act, 5 U.S.C. § 552a.
Plaintiffs also seek a declaration that it would be unconstitutional to hold its activities to be in violation of various federal statutes.
The Government objects to all of the requests for declaratory and injunctive relief, principally on the ground that there is no showing of present or threatened future conduct that would warrant such relief. Additional objections are made to the claim under the Privacy Act.
The SWP is entitled to an award of damages under the FTCA against the United States for the FBI's disruption activities, surreptitious entries and use of informants. As to these claims, the SWP complied with the procedural requirements of the FTCA. Also, since these activities were violations of the constitutional rights of the SWP and lacked legislative or regulatory authority, they were not discretionary functions within the meaning of the FTCA exception. Finally, the SWP has a right to recover damages under applicable tort law.
The SWP is awarded damages in the amount of $42,500 relating to disruption activities, $96,500 for the surreptitious entries, and $125,000 for the use of informants, or a total of $264,000.
The SWP's damage claim for electronic surveillance is dismissed for failure to comply with the procedural requirements of the FTCA.
The damage claims of Sell, Starsky, Jenness and Pulley are dismissed.
With one exception, the requests for declaratory and injunctive relief are denied because there is no present or threatened activity which warrants such a remedy. The exception is that the SWP is entitled to an injunction limiting the use of certain records illegally obtained by the Government. This will be granted under the general equitable power of the court and not under the Privacy Act.
The claims under the Privacy Act are dismissed.
The Socialist Workers Party
IV.A. Historical Background
The SWP is dedicated to the doctrines of Karl Marx, V. I. Lenin and Leon Trotsky. A major issue in the present case is whether the FBI and certain other agencies of the Federal Government could reasonably believe that the SWP presented a threat of revolutionary or subversive activity against the governmental structure of the United States so that certain investigative techniques and other measures vis-a-vis these organizations and their members were justified.
In order to shed light on this issue, the parties introduced evidence about certain aspects of the development of Marxism and Trotskyism.
In the early 1860's the First International, also known as the International Workingman's Association, was formed under the leadership of Karl Marx and Friedrich Engels. It drew its membership from various Western European countries. The purpose of the First International was to promote the cooperation of working class political movements in various countries.
After the Paris Commune of 1871, a group within the First International embarked on a terrorist campaign. At the 1874 Congress of the First International this group was expelled and the International disassociated itself from the group's actions and statements. To prevent the terrorist faction from gaining control of the International, the headquarters of the International was moved from Europe to New York. The First International was dissolved in the 1870's.
The Second International, also known as the Labor and Socialist International, was formed in the late 1880's. By this time, trade union and working class political parties had developed in England, France and other countries of Western Europe. The Second International was an attempt to unite these parties. However, the Second International was terminated shortly before World War I.
The next relevant event was the Russian Revolution of 1917. At the trial of this action, both plaintiffs and defendants called historians to testify about this pivotal development.
Lenin, of course, was the key figure in the ultimate seizure of power by the Bolshevik faction. Trotsky worked closely with Lenin and became the foreign minister in the new government. The events of the revolution have a substantial bearing on the meaning of Trotskyism, since they carry us beyond mere theory and show what Trotsky and his mentor, Lenin, actually did in carrying out a revolution and forming a government.
In February 1917 the Czar was overthrown. This led to the formation of a provisional government. At the same time in many parts of the country some degree of political power came to be exercised by assemblies called "Soviets." The two major Soviets were in Moscow and Petrograd. By the fall of 1917 the Bolsheviks, a left-wing Marxist party led by Lenin, made up approximately half the membership of these two Soviets. Trotsky was the leader of the Petrograd Soviet. In terms of the overall picture of Russian political parties, the Bolsheviks were decidedly a minority. Nevertheless, in November the Bolsheviks in the Petrograd Soviet carried out a military takeover in Petrograd. The Bolsheviks stormed the Winter Palace, then the seat of the provisional government, and arrested the leaders of that government.
The Bolsheviks thereupon set themselves up as the purported government for the entire country. Lenin assumed the title of Chairman of the Soviet People's Commissars. Trotsky became foreign minister. Stalin was also given a position of power.
The Bolsheviks' seizure of power was accomplished with the assistance of the left wing of another party, the Socialist Revolutionary Party. The Bolsheviks and their left-wing allies were a minority group in the country.
The provisional government had set in motion the machinery for electing a constituent assembly, which was to form a permanent government. The elections to form the constituent assembly were held in November 1917, although the voting took a very long time and was not completed by the end of that month. The Bolsheviks received only 25% of the vote. The Socialist Revolutionary Party received 52% of the vote. Other parties received the balance. The constituent assembly met for one day in January 1918. During that day the assembly passed resolutions which condemned the activities of the Bolsheviks in taking power by military force and Lenin's plans for a government. The response of the Bolsheviks was simply to disband the constituent assembly by force.
The historical record is clear that following the fall of the Czar machinery was set up to establish a parliamentary government based upon elections and freely competing political parties. The ideology and policy of Lenin, Trotsky and their Bolshevik party, were wholly antithetical to any concept of a free political process and a democratically elected government. They destroyed the organs which had been set up to establish such a government and installed themselves in power by military force. Their government, while using much of the terminology of parliamentary democracy, was in reality a totalitarian dictatorship.
In 1919 the Third International was formed. The purpose of the Third International was to spread Marxism world-wide through revolution, and it specifically repudiated the idea (which had been held by one element of the Second International) that a socialist society could be created through gradual reform of the capitalist system.
Lenin died in 1924. Shortly thereafter Stalin gained complete control over both the government of the Soviet Union and the Third International.
It was in connection with these events that the famous conflict between Stalin and Trotsky became acute. Stalin's announced position was that the struggle to establish socialism world-wide would be subordinated to the interests of strengthening the Soviet Union. Trotsky, on the other hand, advocated the view that socialism could not be promoted in one country alone and that, if the socialist revolution did not occur on an international scale, the forces of capitalism would defeat socialism even in the Soviet Union.
In 1927 Trotsky was expelled from the Communist Party in the Soviet Union. In 1929 he was exiled from the Soviet Union.
This controversy resulted in a split in the international socialist movement. By the time of Trotsky's ouster, Communist parties had grown up in various countries, including the United States, many of which were affiliated with the Third International. In 1928 the followers of Trotsky were expelled from the Communist Party of the United States. The expelled group founded the Communist League of America and began publishing a newspaper called The Militant.
In 1934 the Communist League merged with a group called the American Workers Party, which in 1936 merged with the Socialist Party. However, this merger was not successful. The Socialist Party believed in a "reformist" ideology -- that a socialist society could be attained gradually through the reform of capitalism.
In 1936 the Socialist Party expelled the former Communist League members. In 1938 the Communist League formed the Socialist Workers Party, which has continued to the present day. The leader of the SWP at this time was James Cannon, who was elected the first National Secretary.
The youth arm of the SWP -- the Young Socialist Alliance -- started holding meetings in 1957 and the organization was officially founded in 1960.
IV.B. Fourth International
Cannon was also instrumental in starting the Fourth International, the affiliates of which were Trotskyist parties in various countries. The first congress of the Fourth International was held in Paris in September 1938. The avowed purpose of the Fourth International was to promote the spread of socialist revolution on a world wide scale in accordance with the doctrines of Lenin and Trotsky.
The 1938 congress adopted a program drafted mainly by Trotsky himself, called the "Transitional Program". The congress also elected a 15-member body known as the International Executive Committee ("IEC"), which was to guide the affairs of the International between congresses. Three members of the SWP were elected to the IEC -- James Cannon, Max Schachtman and Karl Skoglund. Trotsky was also elected to the IEC.
The activities of the Fourth International were greatly hampered by World War II. However, a congress was held in New York in 1940, attended by delegates from a number of countries. During the war the headquarters of the Fourth International was in New York.
In 1940 Congress passed the Voorhis Act, 18 U.S.C. § 2386. This statute provides that an organization "subject to foreign control which engages in political activity" must register with the Attorney General and must submit a considerable amount of information, including the names and addresses of members and contributors. According to the statute, an organization is "subject to foreign control" if it is affiliated directly or indirectly with a foreign government or "an international political organization." In order to avoid registration under the Voorhis Act, the SWP withdrew as a formal member of the Fourth International. However, the SWP continued to participate in Fourth International activities as a "consultative member" or "sympathizing section." The evidence shows that this change made almost no practical difference. The SWP remained an important factor and a very active participant in the Fourth International. It should be noted that the United States Government has been fully aware of this, and has taken no steps to enforce the Voorhis Act against the SWP.
In 1946 the headquarters of the Fourth International was moved back to Europe. A new IEC was elected which included three members of the SWP.
World Congresses of the Fourth International are held every three to five years. The World Congress elects the International Executive Committee. This committee meets about once a year. It elects a smaller body called the United Secretariat, which meets every one to two months. Another body, known as the Bureau, meets weekly.
The SWP has, over the years, participated actively in each of the bodies just referred to. The SWP has always had at least one of its leaders stationed, more or less regularly, in Europe. Commencing in 1963 these persons have been:
Joseph Hansen 1963-65
Ray Sparrow 1965-68
Barry Sheppard 1969-70
Jack Barnes and Early 1970's
Mary Alice Waters
Barry Sheppard 1977-80
Doug Jenness 1980 to time of trial.
The history of the Fourth International from 1946 to 1969 is of no particular relevance to the present case, except for one incident. Evidence was presented about a factional dispute which occurred during the years 1953-1963. Plaintiffs argue that what occurred supports the view that the SWP has policies which are to some extent independent of the Fourth International. During this time a majority faction in the Fourth International took the position that World War III would break out in the 1950's, and that at this juncture a reformed Stalinism would assume the leadership of a world-wide Marxist revolutionary movement. This faction advocated the unification of Trotskyist parties with Stalinist Communism. A minority in the Fourth International, including the SWP, and the British and French Trotskyist parties, opposed any reconciliation with the Communist parties. The dispute was resolved in 1963, when the Fourth International officially repudiated the idea of reconciling with Stalinist Communism.
In 1969, another major dispute of considerable relevance to this case arose within the Fourth International. A majority of the delegates of the Ninth World Congress, held that year, supported the position that guerilla warfare was an appropriate tactic to be used by Trotskyist groups against Latin American governments deemed to be dictatorships. This majority faction took the view that guerilla warfare would become the dominant form of struggle against capitalism. This faction became known as the International Majority Tendency ("IMT"). The Ninth World Congress adopted a resolution on Latin America, stating:
[T]he only realistic perspective for Latin America is that of an armed struggle which may last for long years . . . . Even in the case of countries where large mobilizations and class conflicts in the cities may occur first, civil war will take manifold forms of armed struggle, in which the principal axis for a whole period will be rural guerilla warfare
Take advantage of every opportunity not only to increase the number of rural guerilla nuclei but also to promote forms of armed struggle specially adapted to certain zones (for example, the mining zones in Bolivia) and to undertake actions in the big cities aimed both at striking the nerve centers (key points in the economy and transport, etc.) and at punishing the hangmen of the regime as well as achieving propagandistic and psychological successes . . . .
It should be noted that a statement written by seven leaders of the IMT in May, 1972 opposed guerilla warfare in many countries, including Canada, the United States, France and West Germany, given the circumstances as they then existed. The authors of this statement were Alan Kravine and Herbert Kravine of France, Tarig Ali of Great Britain, Livio Maitan of Italy, Pat Jordan of Great Britain, Pierre Frank of France and Ernst Mandel of Belgium. But they did not dissent from the idea that guerilla warfare should be promoted at that time in Latin America, and would ultimately be a revolutionary device everywhere.
A minority faction of the Ninth World Congress opposed the IMT resolution on Latin America. This faction took the position that the class struggle should take place in urban areas through mass organization of workers, not through guerilla warfare or acts of terrorism. The SWP was part of this minority. The minority conceded that guerilla warfare was a subsidiary tactic that had been successfully used in certain circumstances, but argued that pursuing guerilla warfare on a large scale for an extended period would not facilitate the working class movement, but rather would lead to the political downfall of the organizations that attempted it. The minority group became known as the Leninist/Trotskyist Faction.
The minority group did not oppose guerilla warfare in all circumstances. A report written by Joseph Hansen, an SWP leader, in a July 1970 Fourth International publication stated:
To prevent being misunderstood, let me recall the position taken by the minority at the World Congress. The minority did not reject guerilla warfare per se. On the contrary it recognized that under certain circumstances engagement in guerilla warfare can prove advantageous.
The Tenth World Congress of the Fourth International in 1974 reaffirmed support of immediate use of guerilla warfare in Latin America. A minority, including the SWP, remained opposed.
The controversy in the Fourth International about guerilla warfare was reflected in the activities of the SWP in the United States. The majority of the SWP was against the views of the IMT and in favor of the Leninist/Trotskyist Faction. However, approximately 5-7% of SWP members were supportive of the IMT. They formed a faction within the SWP known as the International Tendency ("IT"). The leaders of the IT were John Barzman and Bill Massey. In the summer of 1974 it was discovered that the IT was holding its own meetings, making decisions on various actions without informing the party, and publishing its own internal bulletin. The members of the IT were expelled from the SWP.
A discussion of certain terrorist activities in Latin America, occurring during the time of the espousal of guerilla warfare by the Fourth International, will be found in section IV.E of this opinion.
The pro-guerilla war faction of the Fourth International (the IMT) began to withdraw from its position in 1976. In 1977 the IMT published a repudiation of the position. At the 1979 World Congress there was an agreement to rescind all documents regarding Latin American guerilla warfare passed at the 1969 and 1974 congresses.
At the time of trial of this action the Fourth International considered itself to be a reasonably unified and functioning organization made up of approximately 50 national sections.
IV.C. Organization of the SWP
The headquarters of the SWP is in New York City. It has branches in various cities throughout the country. As of 1981 the SWP had a membership nationwide of 1,250. The annual budget of the SWP is about $1.5 million.
The highest authority of the SWP is the National Convention, consisting of delegates from the branches. A National Committee is elected by the National Convention and meets two to four times per year. A Political Committee is selected by the National Committee and meets at least weekly. The person who acts as a continuing chief executive of the SWP is the National Secretary. From 1938 to 1953 this office was held by James Cannon; from 1953 to 1972 by Farrell Dobbs; and from 1972 to the time of trial by Jack Barnes.
The SWP, through its local branches, its national committees, and its national convention, carries on a continual course of discussion and debate about official ideological positions. All of this is the subject of prolific writings within the party, particularly in the party's weekly newspaper, The Militant, which is available to the public.
The YSA is the youth arm of the SWP. The upper age limit is 29. As of 1981 the YSA had about 500-600 members. About 55% of these were also members of the SWP. The YSA has its headquarters in New York City, and has branches in various other cities.
IV.D. Ideology of the SWP
The SWP subscribes to the political and economic doctrines of Marx and Lenin, as further articulated by Trotsky. The SWP is part of what is known as the Trotskyist movement.
The stated goal of the SWP since its founding has been "the abolition of capitalism through the establishment of a Workers and Farmers Republic." Article II of the SWP Constitution.
The SWP believes that the main feature of history is class conflict -- the conflict between the workers and the capitalists -- and that this conflict will ultimately end with the working class becoming the ruling class.
The SWP believes in the abolition of private ownership of industry, merchandising, finance, and farm production. The SWP would not abolish private ownership of "small" businesses and farms, or of personal property such as homes and automobiles.
The SWP leaders testified at the trial of this action that Trotskyists in general -- and the SWP in particular -- believe that the government and the economy should be administered democratically. The Marxist concept of the "dictatorship of the proletariat" is explained by them as being essentially democratic if properly carried out. The theory is that at the present time countries such as the United States are called democracies, but in reality they are dictatorships in which a small capitalist minority exercises absolute rule over the working masses. In the dictatorship of the proletariat, this situation would be reversed. The working class majority would hold power over the former capitalist minority. Admittedly, as Lenin has written, the capitalists -- the "exploiters" -- would need to be forcibly suppressed. Lenin, Thesis and Report on Bourgeois Democracy and the Dictatorship of the Proletariat, in Vol. 28 Collected Works 464-65. But this suppression would be desirable, according to Marxist theory, since the "masses" would be doing it, and the capitalist class only refers to 1 or 2% of the population.
The SWP leaders testified at length to the effect that, except for suppressing the 1 or 2%, they believe in democratically elected instruments of government. These would be popularly elected local soviets or workers' councils, which would choose the central soviet. According to this testimony, the SWP advocates freedom to form political parties, and basic individual rights and freedoms such as freedom of speech and religion and due process of law.
The SWP and other Trotskyists state that they are sharply at odds with the manner in which Marxism has developed in the Soviet Union. The SWP leaders testified that Trotskyists support the nationalized property forms in that country, but oppose the totalitarian political regime. Trotskyists argue that the undesirable features of Soviet government are largely the fault of Stalin, Trotsky's rival. However, realizing that the establishment of the totalitarian state and the suppression of democracy occurred under Lenin, with the assistance of Trotsky, the Trotskyists contend that the anti-democratic developments were forced upon the regime by the civil war which broke out in 1918. Professor Stephen Cohen of Princeton testified at the trial and advanced this view.
As indicated earlier in this opinion, the issue before the court is not the making of some ultimate historical judgment, but the determination of whether the FBI and other organs of our Government could reasonably believe that the SWP has a revolutionary ideology whose goal is the violent overthrow of our democratic processes and form of government. Addressing this issue, it is safe to say that it would be reasonable for our Government to take the view that Lenin and Trotsky installed a totalitarian government in the Soviet Union not because the civil war of 1918 blighted a budding Leninist/Trotskyist democracy, but because the fundamental beliefs and policies of Lenin and Trotsky denied democracy and advocated totalitarian rule imposed by military force and terror.
The FBI and other organs of our Government need not blind themselves to the historical record of the Trotskyist movement's founder in considering the nature of that movement and its ultimate goals. However, it must also be recognized that the situation of Trotskyist parties in the world today is vastly different from the situation of the Bolsheviks in the Russia of 1917-18. The Bolsheviks, although a minority, had the ability to seize power and form a government. Since that time other communist governments have come to power, and have followed the grim pattern of abrogating freedom and democratic processes (and, it must be said, not for 1 or 2% of the population, but for almost everyone except the governing elite). However, nowhere in the world is there a government established by a Trotskyist party. Nowhere in the world, and certainly not in the United States, is there a Trotskyist party which even approaches having the ability to seize power. Thus the question of what kind of society a Trotskyist party such as the SWP wishes to create is currently one of belief not of practice.
However, even the smallest political parties and groups are capable of posing a threat to an ordered society if they are bent on revolutionary violence or terrorism. At the trial of this action, considerable evidence was presented on the issue of whether the SWP falls into this category.
IV.E. Does the SWP Espouse or Practice Violence?
The evidence at the trial related to both aspects of the above question. Does the SWP espouse violence as part of its ideology? Does the SWP practice violence?
At the trial of this action the SWP took the following position, as elaborated in the testimony of the SWP leaders. The SWP is in favor of revolution, but this simply means a transformation of society such as the Industrial Revolution. The revolution comes about through a historical process, and takes place when the capitalist system has exhausted itself. The revolution cannot be brought about by a putsch or coup, or the action of a minority, but only by the majority -- broad mass action. The SWP believes in using the electoral process in this country to have the workers gain control of the government, and then amending the Constitution to carry out the nationalization of property required by their economic program. A most important part of the doctrinal presentation at the trial was the concept that the SWP would not take the initiative in using violence, but that undoubtedly the capitalist class would use violence to prevent change -- i.e., would not allow the democratic process to run its course. The workers would then resort to armed force to defend themselves.
Aside from the question of whether the SWP advocates violent revolution is the related but somewhat different question of whether the SWP advocates individual acts of terrorism outside of the context of mass revolution.
As to the first point -- the SWP's alleged belief in peaceful revolution of the Industrial Revolution type -- one would be naive indeed to accept this as the doctrine of Marx/Lenin/Trotsky. In the first place, there is no doubt about the fact that Lenin advocated violent revolution.
The replacement of the bourgeois by the proletarian state is impossible without a violent revolution . . . .
Lenin, The State and Revolution, quoted in Handbook of Marxism p. 739.
The proletarian revolution is impossible without a forcible destruction of the bourgeois state machine.
Lenin, Selected Works, Vol. VII, p. 124.
At its founding convention in 1938, the SWP adopted the following resolution, which was reaffirmed at the Third National Convention in 1940.
The Socialist Workers Party is a revolutionary Marxian party, based on a definite program, whose aim is the organization of the working class in the struggle for power and the transformation of the existing social order.
In the summer of 1979 the SWP leadership approved a document entitled "Socialism and Democracy." It stated in part:
The fundamental difference between reformists and centrists of all varieties, and revolutionary Marxists, regarding the need for a socialist revolution, the conquest of state power by the workers, the nature of the proletarian state, and the meaning of the dictatorship of the proletariat consists of:
3. The recognition by revolutionary Marxists that the state apparatus and state institutions of even the most democratic bourgeois state serve to uphold the power and rule of the capitalist class, i.e., represent a social dictatorship of the capitalist class, and therefore cannot be instruments with which to overthrow that rule and transfer power from the capitalist class to the working class.
4. The recognition by revolutionary Marxists that the destruction of the bourgeois state apparatus . . . is a necessary prerequisite for the conquest of state power by the working class.
An SWP leader, James Cannon, wrote in The Militant in 1974:
. . . we exploit the cracks and crevices in the bourgeois-democratic system without paying the slightest respect to it.
The SWP has referred to itself as a "combat Trotskyist party." In a speech in 1970 Farrell Dobbs, an SWP leader, stated:
All this will be possible provided there is a combat party capable of giving revolutionary leadership, and to fulfill that role the party must be politically cohesive and organizationally disciplined.
In a 1970 article entitled "The New Radicalization and The Revolutionary Party," SWP leader Jack Barnes wrote:
The very combat strength of the class enemy and its willingness to engage in combat defines the revolutionary party as a combat party . . . . By combat we do not mean only the insurrection that occurs at the height of the revolution.
Both Dobbs and Barnes were questioned at the trial about what they meant by "combat party." Both denied that they used the term in any sense that related to military or other violent combat. But it is difficult to credit this and other attempts to explain away plain language.
An interesting insight into the SWP's alleged disavowal of violent revolution is presented by the position taken by James Cannon, who was a defendant in the trial of the SWP leaders under the Smith Act in 1941. Cannon testified at that trial to the same effect as did the SWP witnesses in the present case -- that the SWP does not believe in violent revolution; that it believes in using the electoral processes to gain power; and that it would use armed force only if the capitalist classes used such force first. Cannon testified that, if the process were not disrupted by fascist methods on the part of the government, he saw no reason why socialism could not secure a victory by the democratic processes all the way to the final amendment of the Constitution. Cannon's testimony at the Smith Act trial was criticised by a Spanish Trotskyist named Munis for repudiating true Marxist/Leninist revolutionary doctrine. Cannon published a response, and said of his testimony:
That is all any Marxist really needs to say on the question of violence in a capitalist court or at a propaganda meeting for workers at the present time in the United States. It tells the truth, conforms to principle, and protects the legal position of the party. The workers will understand it too. To quote Shakespeare's Mercutio: "'Tis not so deep as a well, nor so wide as a church-door; but 'tis enough, 'twill serve."
It is possible that others may regard our formulation as lacking in aggressiveness and militancy but, being more indulgent than Munis, pass it off as a legal euphemism, justifiable under the circumstances. To be sure, our formulation helped our position from a legal standpoint and we did not hesitate to emphasize it in this respect. Also, in our opinion, the declaration that we, the Trotskyists, prefer a peaceful change of society, is a good propaganda approach to the democratic-minded American workers. These two considerations are very important, but we are quite ready to agree that they would not justify the use of a false or hypocritical statement, or a statement contradicting principle.
With regard to the position that the SWP would use violence only to defend against activities of the capitalist class, Cannon stated:
The most effective mass action of the strikers, as every experienced organizer of mass actions knows, is organized and carried out under defensive slogans.
Matters are no different when the workers' mass action ascends from the elementary field of the economic strike to the top-most peak of the class struggle -- the open fight for political power. Here also the action proceeds under defensive slogans and, to a very large extent, also under cover of legality. . . . That is the way the Great Russian Revolution was organized and carried through to victory.
Naturally, being Bolsheviks, their "defense" had nothing in common with the policy of folded arms. They were prepared for eventualities but they never gave up the advantage of "seeming on the defensive." (emphasis in original.)
Cannon's 1941 trial testimony, the criticism of it, and Cannon's response (including the above passages) are all included in a book called "Socialism on Trial" and a pamphlet called "Defense Policy in the Minneapolis Trial." This book and pamphlet are currently used for educational purposes within the party.
Over the years various SWP leaders have made statements espousing violence. In 1968 an Atlanta radio station recorded a speech given by Paul Boutelle, the SWP candidate for Vice President.
. . . if I go to Vietnam it will only be for the purpose of studying the tactics of the National Liberation Front and then, if necessary, use them against my enemy right here in this country.
And more black youth are being drafted; they say go to Vietnam and fight against the Viet Cong. You know that Malcolm said "if they teach me how to fire a gun, I won't have to go over there to find somebody to shoot." We do not advocate violence but we do not believe in nonviolence, and black people if they got to get violent it should not be in Korea and Vietnam, it should be against the man right here in this country, and if America don't come around, as Rap Brown said, it should be burned down to the damned ground, it should not exist to see 1980. So this is the view of the Socialist Workers Party; we're Revolutionaries, we advocate a Socialist Revolution in America by any means necessary.
SWP leader Andrew Pulley made several statements in 1969 in a speech and at an anti-Vietnam War conference to the effect that
. . . the first thing to be done was to get the GI's to demonstrate peacefully and the ideal thing would be for them to take up their guns and shoot their officers.
On another occasion Pulley stated that
. . . GI's are not ready to take up arms against their officers or to overthrow capitalism although this is the long-term perspective.
In his testimony at the trial Pulley denied making the statements about soldiers shooting officers. The court does not credit this denial.
It is apparent that the SWP has not deserted the theory and example of Lenin and Trotsky favoring ultimate violent revolution. A broad survey of the writings of SWP leaders reveals without question that they look to the violent revolution of the Bolsheviks in Russia as a model, and that they contemplate the "capitalist classes" as an enemy, against which they would revolt, if they had the power. Of course, they do not have the power to carry out such a revolution. This brings us to the question of whether the SWP advocates terrorism as a kind of substitute for actual revolution or as an interim step leading to such a revolution.
At the trial, the SWP leaders testified that terrorism is totally contrary to the doctrine of their party, since it distracts attention and efforts from the development of a mass movement, and also subjects the militants to police action and loss of life. The evidence supports the view that Trotsky was opposed to terrorism and that the SWP accepts and follows this teaching. An article on the subject by Trotsky appears in a pamphlet entitled "Leon Trotsky Against Individual Terrorism," which is distributed by the SWP to its members. The article states in part:
Whether a terrorist attempt, even a "successful" one, throws the ruling class into confusion depends on the concrete political circumstances. In any case the confusion can only be short-lived; the capitalist state does not base itself on government ministers and cannot be eliminated with them. The classes it serves will always find new people; the mechanism remains intact and continues to function.
The anarchist prophets of "the propaganda of the deed" can argue all they want about the elevating and stimulating influence of terrorist acts on the masses. Theoretical considerations and political experience prove otherwise. The more "effective" the terrorist acts, the greater their impact, the more the attention of the masses is focused on them -- the more they reduce the interest of the masses in self-organization and self-education.
In 1972 the SWP criticised the attack on Israeli athletes in Munich by the "Black September" -- a Palestinian group. The SWP, which sympathizes with the Palestinians, issued a statement that such terrorist tactics are "ineffective and in fact harmful to the Palestinian struggle." In 1974 SWP leader Mary Alice Waters wrote a report denouncing the assassination of Spanish Prime Minister Carrero Blanco by terrorists.
Although the SWP has consistently opposed terrorism, it has remained affiliated through the Fourth International with other Trotskyist groups that have both advocated and practiced terrorism. It will be recalled that the 1969 World Congress of the Fourth International approved the concept of guerilla warfare in Latin America. See section IV.B supra. The SWP dissented. Still, the SWP retained its fraternal bond with the International and its member groups. Consequently it is appropriate to set forth some of the deeds of the other sections of the International.
It appears that the French section of the Fourth International, the Parti Communiste Internationaliste (PCI), and a closely allied youth group, Jeunesse Communiste Revolutionnaire, were prominent in the violent student riots in France in 1968. The French government banned both organizations in 1968. As a result, the headquarters of the Fourth International was moved from Paris to Brussels.
In Argentina there was a Trotskyist group known as the Revolutionary Workers Party (PRT). In 1968 the PRT split into two sections, the majority led by Santucho, and the minority led by Moreno. Santucho's group was called the PRT Combatiente. At the 1969 World Congress of the Fourth International, Santucho's group was recognized as a member section, and Moreno's as a sympathizing section. In 1970 Santucho's group formed the Argentine Revolutionary Army of the People (ERP), intended to be a guerilla group.
In 1972 an Argentine industrialist named Sallustro was kidnapped and later murdered by the ERP. Santucho made a statement that actions such as the Sallustro matter fell within the policy endorsed by the Fourth International in 1969.
An expert witness for the Government in this action testified that the following additional acts were committed by the ERP:
- the kidnapping of Stanley Sylvester, a business executive, in May 1971;
- the assassination of General Juan Carlos Sanchez, in April 1972;
- the attack on two Ford Motor Company executives, one of whom died from wounds received, in May 1973;
- the kidnapping of John Thompson, director of Firestone operations in Argentina, in June 1973;
- the assassination of John Albert Swift, director of a Ford subsidiary, in November 1973.
In an article dated March 31, 1971, Livio Maitan, a leader of the Fourth International from Italy, evaluated the activities of the ERP up until that time. The article was written after numerous violent acts had already been committed by the ERP. It states:
The strategic perspective and the line that it is following in carrying out these objectives is the one laid down at the Ninth Congress of the Fourth International.
On March 22, 1971 a declaration on Argentina was issued by the United Secretariat of the Fourth International. It states:
United Secretariat sends its warmest greetings to the PRT Revolutionary Workers Party, Argentine section of the Fourth International, which through the audacious actions of the Revolutionary People's Army, ERP, has established itself in the front ranks of the organizations which support armed struggle and which conduct the struggle within the framework of large mass mobilization.
After the Sallustro kidnapping, the SWP issued statements to the effect that the Fourth International was in solidarity with the courageous militants in Argentina, but that the militants were on a "mistaken course."
The British section of the Fourth International, the International Marxist Group (IMG), endorsed the terrorist activities of the Irish Republican Army in the early 1970's. Indeed the IMG gave its support to a small and exceptionally violent "Marxist commando group," the SAOR Eire, which was headed by Gery Lawless, a member of the IMG. It should be noted that an SWP member, Gerry Foley, wrote an article in 1973 analyzing this situation and condemning the IMG's support for the SAOR Eire.
At the outset of this section of the opinion, the questions were posed:
Does the SWP espouse violence as part of its ideology?
Does the SWP practice violence?
The SWP, in accordance with Leninist/Trotskyist doctrine and historical example, must be considered to embrace violent revolution as an ultimate goal. However, the SWP realizes that it has no power under current circumstances to carry out such a revolution. The SWP will use the available devices, such as elections, to accomplish what it can towards spreading its theories and transforming society. On the other hand, the devotion to ultimate revolution does mean that the SWP has an ideology which is basically antithetical to the political system and democratic processes of this country. This is epitomized by the statement of James Cannon, quoted earlier, that "we exploit the cracks and crevices in the bourgeois-democratic system without paying the slightest respect to it." As to the question of terrorism, as distinct from ultimate revolution, the SWP and its leaders have consistently taken strong positions opposing terrorism, citing Trotsky's condemnation of this type of activity. For a time, as described, a minority in the SWP subscribed to the Fourth International espousal of guerilla warfare in Latin America, but this minority group was expelled from the SWP.
As to whether the SWP practices violence, the evidence in this action compels a finding that it does not. The FBI conducted an intensive investigation of the SWP for over 30 years. There was not one single prosecution of any member of the SWP or YSA for any terrorist or revolutionary act of any kind. No evidence was introduced at the trial that any SWP or YSA member ever carried on any such activities. It is of interest to contrast this record with that of other groups which have committed numerous acts of violence and destruction in recent times in the United States, particularly during the late 1960's and early 1970's. Despite some occasional inflammatory rhetoric, there is no evidence that the SWP, the YSA or their members were involved in any such acts.
The evidence does show in considerable detail the nature of the SWP's actual, lawful activities over the years. One type of activity, which occupied a great amount of time and effort in the various meetings and assemblies of the SWP, was discussion and debate on various aspects of Marxist theory. This included Marxist economic and social theory, the Marxist view of history, particularly as applied to contemporary events, and other theoretical and doctrinal points. The SWP also devoted great time and effort to discussing various causes outside the strict confines of its own party concerns, such as opposition to the Vietnam War, and support for agricultural workers in California and for the civil rights movement. The SWP sought to ally itself with various groups promoting these causes and to participate in related public events. Also, the SWP devoted considerable effort to internal matters such as personnel, organization and fund raising. All of the above are unquestionably lawful political activities, which a group such as the SWP has a clear constitutional right to carry out. See Brown v. Socialist Workers '74 Campaign Committee, 459 U.S. 87, 88 (1982). Further findings to this effect are set forth in section V.D of this opinion.
On the other hand, it should be noted that the full picture of the SWP must include the fact that, through the Fourth International, it is in fraternal association with groups from other countries that have supported and even carried out acts of terrorism and guerilla warfare. The SWP has consistently dissented from this. However, the SWP and particularly certain of its leaders have remained closely connected to and active in the International.
V.A. Original Presidential Authorizations
As far as the evidence in this case is concerned, the history relating to the FBI's investigation of the SWP starts with a series of directives issued by President Roosevelt to J. Edgar Hoover, Director of the FBI. Roosevelt met with Hoover on August 24, 1936, and this meeting was recorded in a memorandum written by Hoover. According to the memorandum, Roosevelt "was desirous of discussing the question of the subversive activities in the United States, particularly fascism and communism." The President wished to have an investigation which would obtain "a broad picture of the general movement and its activities as may affect the economic and political life of the country as a whole."
Due to the then existing system for appropriation of funds, it was arranged to have the President instruct the Secretary of State to have the investigation carried out. The Secretary of State made a request for the investigation to the Attorney General, who gave directions to the Director of the FBI. These steps were completed by September 1, 1936.
On September 6, 1939 President Roosevelt issued a public directive announcing that the FBI was the agency of the Federal Government in charge of investigative work in matters relating to espionage, sabotage, and violations of the neutrality regulations. All law enforcement officials in the country were requested to turn over to the FBI matters relating to these subjects and also matters relating to "subversive activities." A similar directive was issued by President Roosevelt on January 8, 1943.
Succeeding presidents confirmed this investigative authority of the FBI. On July 24, 1950 President Truman issued a directive reaffirming those of President Roosevelt and characterizing the FBI authority as relating to "espionage, sabotage, subversive activities and related matters." President Eisenhower issued a similar directive on December 15, 1953.
President Kennedy changed the structure somewhat. In a directive dated June 9, 1962, the Attorney General was given overall responsibility for the investigation of espionage, sabotage, subversion and other related matters affecting internal security. The FBI was to continue to conduct the investigations but the supervisory power of the Attorney General was expanded.
V.B. Commencement of SWP Investigation -- Dunne Case
Plaintiffs contend that the investigation of the SWP, stemming from the Roosevelt directive to the FBI, commenced in 1940. The FBI files bear this out. In 1941 Director Hoover wrote the New York office of the FBI complaining about the lack of information regarding the SWP and requesting that every effort be made "to obtain from book shops, informants and other sources" whatever written materials existed about the SWP.
In the early 1940's the St. Paul office of the FBI was investigating the SWP activities in the labor movement in that area. The St. Paul office generated a comprehensive report on the SWP dated March 10, 1941, which reflects in many ways the views of the SWP held by the FBI during subsequent years. According to this study, the SWP shared the well-known Marxist goals of overthrow of the capitalist state and the transfer of all or most economic activity to a "workers government." According to the study, the SWP stood for "militant class struggle" and proposed to carry on part of this class struggle within the labor union movement. The specific program of the SWP was said to involve fomenting strikes and other forms of work stoppages as well as the spreading of Marxist philosophy. It was said that, beyond the trade union program, the SWP was committed to taking leadership in all kinds of "progressive struggles," and was further committed to opposing United States involvement in World War II. The study stated that the position of the SWP was that it would not, under any circumstances, support this country's war effort, but would "fight against it."
On April 5, 1941 a second report was generated in the St. Paul office of the FBI, quoting several signed statements of former members of the SWP in Minnesota to the effect that the leaders of the SWP openly advocated the overthrow of the United States Government by armed force.
The St. Paul office reports were given wide circulation within the FBI.
In 1941 eighteen SWP leaders were prosecuted by the Federal Government for violation of the Smith Act, 18 U.S.C. § 2385. The charge was that they advocated the violent overthrow of the Government. They were convicted in December 1941, and the convictions were upheld on appeal. Dunne v. United States, 138 F.2d 137 (8th Cir. 1943), cert. denied, 320 U.S. 790, 88 L. Ed. 476, 64 S. Ct. 205 (1944).
Following the convictions in the Dunne case, the scope of the FBI investigation of the SWP broadened. In December 1942 Director Hoover sent instructions to the various FBI field offices directing that immediate inquiry should be made of confidential informants and confidential sources to determine if the SWP was active in various parts of the country.
V.C. Types of FBI Activities
FBI investigations are classified as either criminal investigations or national security investigations. An FBI witness has stated that criminal investigation of the SWP and its members for violation of certain federal statutes continued into the early 1950's. The statutes involved were the Smith Act and the Foreign Agents Registration Act of 1938, 22 U.S.C. § 611 et seq. However, there is no evidence of any relevant criminal prosecution following the Dunne case. It is safe to characterize the FBI investigation of the SWP from the early 1950's onwards as a national security investigation. The FBI continued its investigation of the SWP until 1976. Attorney General Levi terminated the investigation of the SWP on September 9, 1976.
The FBI engaged in various activities in connection with its thirty-five year investigation of the SWP. To some extent these involved the use of publicly available information. For example, the FBI analyzed publications of the SWP and observed events open to the public. Beyond this, the FBI engaged in the following activities of a more intrusive nature, which were the subject of extensive evidence at the trial and which will be discussed in detail in this opinion.
Surreptitious entries -- "Bag Jobs"
The Department of Justice and the FBI implemented two programs against the SWP, purportedly on the basis of information gained from the FBI's investigation.
V.D. Informants -- Special Master's Report
The evidence shows that the FBI used confidential informants in its investigation of the SWP as early as 1941.
The term "informants" refers to persons, other than FBI agents, who provide information to the FBI, often on a regular basis and for money. Some of the informants used in the SWP investigation were members of the SWP and YSA. By the use of these informants, the FBI "infiltrated" the SWP and YSA. Other informants were not members of the organizations, but were situated in such a way that they could provide information to the FBI -- for example, the janitor of a building where an SWP office was located or an employee of a hospital where SWP members and their families went for treatment.
Although the FBI used informants in connection with the SWP since at least 1941, the evidence in this case about informants relates mainly to the years since 1960. During the period 1960-1976 there were a total of about 300 member informants and about 1,000 non-member informants used by the FBI in the SWP investigation.
In the present litigation, the handling of pretrial discovery regarding the FBI informants was the subject of substantial controversy. In the summer of 1976 the FBI produced its files (in expurgated form) on 7 of the informants, whose identities were already known to plaintiffs. Shortly thereafter plaintiffs moved for the production of additional files. The FBI had answered interrogatories designating each of the 1,300 informants by number and giving certain limited information about them without identifying them. On the basis of these interrogatory answers plaintiffs requested production of 19 files. At some point one of the 19 files was voluntarily produced, but the FBI resisted production of the remaining 18. On May 31, 1977 the court ordered that the 18 files be produced to certain specified attorneys representing plaintiffs (led at that time by Leonard B. Boudin, Esq.) with the direction to these attorneys that they should not reveal the identities of the informants or any information in the files to anyone else without specific authorization from the court.
The Government sought review of the May 31, 1977 ruling by appeal and mandamus petition. The court of appeals dismissed the appeal and denied mandamus, holding that the district court order was a proper exercise of discretion. In re United States, 565 F.2d 19 (2d Cir. 1977), cert. denied, 436 U.S. 962, 98 S. Ct. 3082, 57 L. Ed. 2d 1129 (1978). Thereafter the district court attempted to obtain a settlement of this controversy. The FBI agreed to produce 4 of the 18 files in question. However, this was not satisfactory to plaintiffs. Thus the order of May 13, 1977 remained outstanding as to 14 files and needed to be complied with. At this point, the Attorney General, as the official ultimately in charge of the FBI, assumed responsibility for the matter and on June 13, 1978 filed an affidavit announcing that he would not comply with the court order. plaintiffs moved to hold the Attorney General in contempt. On June 30, 1978 the district court handed down a decision, holding that the Attorney General would be in civil contempt of court if he did not comply with the district court order by a specified time. Socialist Workers Party v. Attorney General, 458 F. Supp. 895 (S.D.N.Y. 1978). The Attorney General did not comply, and was thus held in contempt. Socialist Workers Party v. Attorney General, 458 F. Supp. 923 (S.D.N.Y. 1978).
The Attorney General appealed and sought a writ of mandamus. The court of appeals granted the writ of mandamus, vacated the contempt citation, and directed the district court to work out an alternative sanction with regard to the refusal of the Attorney General to produce the files. The court of appeals recommended that the district court or a special master review the files in camera and come up with a "set of representative findings" which would not compromise the identity of the informants, but would be the basis for developing the relevant facts regarding informants. In re Attorney General, 596 F.2d 58 (2d Cir.), cert. denied, 444 U.S. 903, 100 S. Ct. 217, 62 L. Ed. 2d 141 (1979).
On April 30, 1979 the district court appointed as special master Honorable Charles D. Breitel, former Chief Judge of the New York Court of Appeals.
It is appropriate at this point to state that Judge Breitel and his staff performed a most valuable service to the court, to the litigants and to the public. The materials which they analyzed, while relating to a rather small number of informants, were really of enormous bulk. The Special Master and his assistants were meticulous in their examination and showed great insight into the significance of the minute items of information in the materials. They displayed remarkable ingenuity in developing a summary format which converted this mass of material into something concise and useful for the litigation. So successful was their summarization, and so acceptable was it to the court and to the parties, that it was taken as sufficient, not only as an evidentiary substitute for the files which the Special Master was actually analyzing, but also as a summary typifying the overall total of 1,300 informant files relating to the FBI's investigation of the SWP.
The Final Report of the Special Master was filed on February 4, 1980. Part I of the report contains a number of admissions made by the Government as a result of the Special Master's work with the parties. Part II of the report contains "representative findings" based on information contained in the files examined by the Special Master (the 18 files which were originally the subject of plaintiffs' motion less the 4 voluntarily produced).
The representative findings in Part II of the report were divided into two categories -- general and specific. The general findings summarize certain general characteristics of informant activity and reporting, drawn from thousands of individual reports of meetings and other matters. The specific findings state certain specific items of information reported by particular informants (always referred to as "an informant" or "one informant" without disclosing the identity). The Special Master recommended that the findings in Part II be taken as proved unless rebutted by other information. As it turned out, none of the representative findings in Part II of the report were rebutted or contradicted, and they therefore stand as proven facts in the case.
Part III of the report consists of additional items of information drawn from the informant files. These are items which the Special Master believed might or might not have significance in the case, depending on what additional evidence existed outside of the 14 files.
Part IV of the report is entitled "Conclusive Presumptions." These relate to certain untoward incidents happening to the SWP and its members, reflected in informant reports. Although the nature of these presumptions raised the question of whether they could be the basis of any form of relief to plaintiffs, particularly an award of damages, plaintiffs have not developed any argument to this effect. Prior to completing this opinion the court conferred with the parties to determine whether there is ...