Wiretap case before Supreme Court clouds Haig's Cabinet confirmation

One of the most controversial issues surrounding Alexander M. Haig Jr., the man designated to be the next United States secretary of state, is awaiting a ruling by the US Supreme Court.

The high court is considering the case against Mr. Haig's former bosses, Henry A. Kissinger and Richard M. Nixon, who ordered wiretaps to find out who was "leaking" information to the news media. It harks back to the Vietnam war era, when President Nixon and National Security Adviser Kissinger read a disclosure in the May 9, 1969, New York Times that the United States was secretly bombing targets in Cambodia. Hoping to detect the "leaker," they decided to tap the phone of National Security Council member Mortin Halperin.

For the next 21 months the Nixon administration listened in on the telephone conversations of the Halperin household but found no proof that he had given classified information to the news media. In 1973 Mr. Halperin learned of the wiretaps. He filed suit against Mr. Nixon, Mr. Kissinger, and their aides. General Haig, Kissinger's assistant, was also one of the defendants, but his name was dropped by a federal district court.

As deputy to Kissinger, Colonel Haig acted as relay man, taking orders for the wiretaps to the Federal Bureau of Investigation and even going to the FBI offices to read the transcripts of the Halperin phone conversations. An FBI memo reported that Haig told the FBI not to keep records of the wiretaps made by authorization of the President's program.

During two years, the warrantless wiretapping project expanded to 17 targets, including other members of the National Security Council staff, a reporter for the London Sunday Times, a White House speech writer, a television reporter, and a New York Times reporter. Some of these people also have sued the former officials, and the outcome of their litigation hangs on how the Supreme Court deals with the Halperin case.

Legal precedent for wiretapping goes back only a few years. In 1967, the Supreme Court ruled that listening to a person's phone conversation is virtually the same as searching his home or seizing his possessions. In such cases, the government would have to follow the rules for obtaining warrants. But the court added that the constitutional protection might be applied differently "in a situation involving the national security."

Lawyers for Halperin thus far have argued successfully that in his case the wiretaps went far beyond a national security purpose. In fact, they have shown, some months after the wiretap was installed Haig recommended that it be discontinued since it showed no evidence of wrongdoing.

But the Nixon administration continued to listen in, even though Halperin had resigned from the government.

While kissinger no longer received reports of the conversations, FBI summaries went to H. R. Haldeman, Nixon's political and administrative adviser.

Halperin's lawyers show that the former president even used the information to map out political strategy. When a tapped phone conversation revealed that Halperin was planning to start an antiwar group, administration officials made plans to offset it.

The Federal Court of Appeals for the District of Columbia has ruled that the Nixon administration went outside the law by keeping the phone tap long after national security interests were satisfied. Even further, the appeals court found that the former officials are liable for paying damages to the family, if they can show "loss due to emotional distress and mental anguish."

Government lawyers, who are defending the former president, are not defending the Halperin wiretap itself. They are charging that allowing a citizen to sue the president for damages would seriously sabotage the presicency.

For the "first time in the history of the nation" the court is being asked to decide whether a president and his closest aides can be required to pay damages to citizens as a result of performing official duties, said Wade H. McCree, US solicitor general, in his argument before the Supreme Court earlier this month.

"The risk of personal liability would inhibit the fearless and decisive exercise of presidential authority," Mr. McCree told the high court.

The government argues that a president and his closest assistants must have "absolute immunity" from civil prosecution resulting from their official acts.

Further, the government points out that Nixon and Kissinger were following the lead of past presidents, including Franklin Roosevelt, Harry Truman, and Lyndon Johnson, when they ordered the wiretaps.

Said Mr. McCree in his oral argument: "We submit that in 1969 when these taps were established, it was far from being clear and established what the requirement was, either for warrants or reasonableness in national security wiretaps."

The Supreme Court is expected to rule on the Halperin case between now and the end of its term in July.