BIRNBAUM v. UNITED STATES

Nos. 935, 976, 977, Dockets 77-6175, 77-6181, 77-6183.

588 F.2d 319 (1978)

Norman BIRNBAUM, B. Leonard Avery and Mary Rule MacMillen, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

United States Court of Appeals, Second Circuit.

Decided November 9, 1978.


Attorney(s) appearing for the Case

John M. Rogers, Atty., Dept. of Justice, Washington, D. C. (Barbara Allen Babcock, Asst. Atty. Gen., Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., and David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., of counsel), for defendant-appellant.

Michael Krinsky, New York City (Herbert Jordan, Bill of Rights Foundation, Rabinowitz, Boudin & Standard, and K. Randlett Walster, New York City, on the brief), for plaintiff-appellee Birnbaum.

Melvin L. Wulf, New York City (Clark, Wulf & Levine, New York City, Burt Neuborne, NYU School of Law, New York City, Richard W. Zacks, Providence, R. I., and Joel M. Gora, American Civil Liberties Union Foundation, New York City, of counsel), for plaintiffs-appellees Avery and MacMillen.

Before MOORE, OAKES and GURFEIN, Circuit Judges.


GURFEIN, Circuit Judge:

For twenty years (from approximately 1953 to 1973), the Central Intelligence Agency ("CIA") covertly opened first class mail which American citizens sent to, or received from, the Soviet Union. Letters destined for the U.S.S.R., or originating there, were selected by agents in New York, photocopied, and then returned to postal authorities for ultimate delivery. Selection criteria were employed, but some letters were chosen at random. During...

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