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The Attorney General is not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions.
An antiwar protester sued a former Attorney General of the United States and others, who had allegedly violated the protester's rights under the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act (18 USCS 2510-2520) by authorizing a warrantless wiretap for purposes of "national security" which intercepted certain conversations between the protester and others. The United States District Court for the Eastern District of Pennsylvania entered summary judgment in favor of the protester on the issue of liability, holding that the wiretap was clearly unconstitutional, under court decisions which were handed down after it had been discontinued; that the Attorney General was not entitled to absolute prosecutorial immunity from suit in connection with the wiretap; and that he was also not entitled to the qualified immunity from suit which applies to government officials whose discretionary actions do not violate "clearly established" individual rights. The United States Court of Appeals for the Third Circuit affirmed, agreeing with the District Court's ruling with regard to absolute immunity and holding that its ruling as to qualified immunity was not a final order subject to immediate appeal.
The Court affirmed the denial of the petitioner Attorney General's claim to absolute immunity in a suit for damages stemming from a warrantless wiretap. The Court held that the Attorney General was not absolutely immune from suit for damages arising out of his allegedly unconstitutional conduct in performing his national security functions on three grounds. According to the Court, no historical or common-law basis for an absolute immunity for officers carrying out tasks essential to national security existed, the performance of national security functions did not subject officers to the same obvious risks of entanglement in litigation, and such officers were not subject to other checks that help to prevent abuses of authority from going unredressed. Anent the second issue, the Court held that the district court’s denial of a claim of qualified immunity, to the extent that it turned on an issue of law, was an appealable final judgment. The Court held that the Attorney General was immune from suit for his authorization of the wiretap in question on a theory of qualified immunity, because the illegality of warrantless domestic security wiretaps had not been "clearly established" prior to court decisions which followed the termination of the wiretap.