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the interests ascribed to the Government and the trial court by the majority opinion fall far short of the level of prejudice necessary to cut off the appellants' right to a trial.

The Context of the Appellants' Belief

It is impossible fully to appreciate how the appellants could have believed in January 1973 that their silence was required without understanding their back

46

setting aside a guilty plea. In Townes, the defendant's constitutional claim was based on a generalized fear that the judicial system was biased against him. Again, this claim was not raised until long after sentencing; and the defendant alleged no facts with which to support his belief. The court held that under these circumstances, a federal writ would not issue.

The instant case does not involve a post-sentence claim requiring application of the "manifest injustice" rule. Nor is this court called upon to overturn a state court judgment on constitutional grounds. Rather, we are presented with a presentence motion, entered in a federal court, governed by the "fair and just" standard. Under these circumstances, the stringent test of "objective reasonableness" is wholly inapposite.

Under my position stated above, it remains to show, first, that it was reasonable for the appellants, with their particular experience and background, to believe national security considerations required their silence and, second, that this belief rendered their guilty pleas involuntary. If the appellants' error was indeed "reasonable," and basic to their pleas, it requires governmental and judicial interests of truly compelling force to justify denying their withdrawal motion under the "fair and just" standard. I have already made clear my belief that

44. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

ment operations. All were, and are, bitter opponents of the Castro regime in Cuba. They blame the Communists for the loss of their homes and livelihood. They exhibit a single-minded dedication to the cause of eradicating Communism in Cuba and preventing the spread of Communism to this country. They were willing in 1972 to give their full cooperation to any government operation which they believed was directed against traitors to this country or aiders and abettors of the Castro regime. This was their patriotic duty, and they performed it unquestioningly.

All but Gonzalez had taken part in the Bay of Pigs affair. Barker and Martinez were in the employment of the CIA even before that operation, and continued working for the agency thereafter. (Indeed, Martinez was still working for the CIA and receiving a monthly salary up until the night of his arrest in connection with the break-in.) They have known each other for over thirty years. Gonzalez is a long-time friend of Martinez's and was familiar with the CIA connections of his colleagues. He and Sturgis both had worked clandestinely against the Castro regime since its inception. They form a closeknit group, bound by ties of personal friendship and common interest. Above all, they are loyal-loyal to each other, and to the

45. United States ex rel. Bullock v. Warden, Westfield State Farm, 408 F.2d 1326 (2d Cir. 1969), cert. denied, 396 U.S. 1043, 90 S.Ct. 688, 24 L.Ed.2d 686 (1970).

46. 455 F.2d at 303 (Feinberg, J., concurring).

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cause of fighting Communism, in this country as well as in their native land.

E. Howard Hunt is a figure of no little renown in Miami's Cuban-American community. Only Barker knew him personally before 1971, but as "Eduardo" apparently many, including the other appellants, knew of his efforts as a CIA official to help liberate Cuba. Hunt was the supervising agent for the CIA in connection with the Bay of Pigs invasion and Barker's immediate supervisor. His credentials as a government agent with top-security clearance were impeccable.

Hunt renewed his contact with Barker in April of 1971 and told him he now held a high position in the White House. Barker confirmed that fact in the summer of 1971 in Washington, when he visited Hunt at the Executive Office Building, where his office was located. Barker knew Hunt was supposedly "retired" from the CIA, but in Barker's mind this fact carried little significance. Thus, in August of 1971, when Hunt solicited Barker's aid to help him in a matter of "national security," "involving a traitor to this country who had been giving information to the Russian Embassy," Barker readily agreed. Before the nowfamous Fielding-Ellsberg break-in, Hunt informed Barker that "he was part of a national security intelligence agency that had greater jurisdiction than both the FBI and the CIA." Hunt discussed the possibility that this intelligence agency might serve as a nucleus for renewed efforts to liberate Cuba.

Barker and Martinez (who was among those solicited to effect the Ellsberg break-in) were given no details of the operation. This was consistent with their belief that it was a highly sensitive national security operation. As mere operatives, it was unnecessary, indeed foolhardy, for them to know more. Their belief in the authorized nature of the affair was reinforced by Hunt's confirmation that the equipment, disguises, and fake identification papers used in the operation had been provided by the CIA.

C

The Watergate operation itself enjoyed similar authorization in the minds of the appellants. They were told only that Hunt had information that Cuban Communist money was going into the Democratic campaign and that they were to photograph documents which would be analyzed to obtain evidence of this fact. Again, fake identification papers were provided by the CIA. The appellants had no reason to doubt Hunt's authority. Not only was he a wellknown CIA official and personal friend of Barker's, but he had advance know]edge of events to which Barker believed only a high-ranking intelligence officer would have access: viz., the resignation of Mr. Helms as Director of the CIA, and the mining of Haiphong Harbor.

After their arrest, as was noted earlier in this opinion, the appellants received treatment entirely consistent with their belief that they had been engaged in a government intelligence operation. Rather than acknowledge responsibility. for the operation, the Executive denied any involvement. Surreptitious assistance was provided the appellants in the form of expenses, attorneys, and financial help for their families.

The government's apparent desire to keep its role in the break-in secret indicated to the appellants that as little as possible of what they regarded as the true nature of the operation was to be revealed. When Hunt told Barker he had decided to plead guilty and that they did not have any defense, their belief that this was the government's position was confirmed:

This represented to me a final decision that there would be no disclosure at trial as to the true nature of the oper-* ation we had engaged in and that the plan which was to be followed was for us to plead guilty.

47

Given the appellants' past experience with clandestine operations, and their complete reliance on Hunt's instructions throughout their relationship with him, that they should have felt compelled to

stifle their defenses and plead guilty is certainly understandable. They knew they had a good defense. Their lawyer, Rothblatt, believed so strongly that a defense based on a lack of criminal intent would succeed that he refused to plead them guilty. Yet Hunt had told them they had no defense. In their minds, the signal was clear: the government wanted the national security aspects of the operation, and the activities of the topsecret intelligence agency of which Hunt was an official, kept under wraps. their leader was prepared to go to jail to protect that information, certainly they were loyal and dedicated enough to follow his lead.

If

The majority argues that the defendants belief was "patently unreasonable" in several respects. I have observed already that it is improper in this case to judge the appellants' belief by a test of "objective reasonableness." To the extent that "patently unreasonable" means unreasonable from the standpoint of a detached "reasonable man," the majority's argument has been answered. the extent, however, that it means wholly irrational, or subjectively unreasonable, a response is necessary..

To

The majority points first to the fact that the guilty pleas were entered only after the prosecution had outlined a strong case against Hunt and Liddy-to the effect that they had planned the break-in for purely partisan purposes-in its opening argument. "After hearing all this, it was patently unreasonable for appellants to continue believing that they had been part of a legitimate national security enterprise requiring their silence at trial." 48 As far as the appellants were concerned, however, the prosecution had simply outlined the facts as they would have appeared to anyone who did not know the "true" reasons for the break-in. If the case against them, based on a theory of pure political intrigue appeared "virtually watertight,” it was just as well-because no one would suspect that their mission in fact related

261

to highly sensitive national security information. The appellants had no way of knowing at this time (two months after the 1972 election) that the Executive's desire was not to protect the integrity of sensitive foreign intelligence information, but rather to cover up the involvement in the affair of high White House officials. This situation became clear, as was discussed earlier, only after the Senate Hearings had exposed the of the truly "unbelievable" genesis Watergate affair.

Second, the majority asserts that it was unreasonable for the appellants not to seek out "responsible Government officials" "in the CIA, or the State Department, or the Defense Department, or the White House" to ascertain whether, in fact, the "national security" was stake. This suggestion displays a grave misunderstanding on the part of the mathe defendant's situation.. jority of

at

Hunt had told them he worked for an agency with "greater jurisdiction than both the FBI and the CIA." Obviously, a limited number of officials would be privy even to the existence of such an agency, let alone its clandestine operations. Through long experience with the CIA, Barker and Martinez knew that even within an intelligence agency the -number of individuals who were informed of an operation often was strictly, and understandably, limited. If they directed an inquiry to the wrong person, they might breach the security, and thereby destroy the efficacy, of related operations. As Martinez explained with regard to the Ellsberg break-in:

[D]ue to compartmentalization which exists in intelligence units and in particular, in the CIA, I was not sure whether my CIA supervising agent was supposed to know about my participation in these national security inAs a telligence operations. result, I broached the name of Mr. Hunt with my supervising agent sometime around the time of the Fielding office entry. The subsequent response

49. Id. 168 U.S.App.D.C. at

225.

.

514 F.2d at

262

I received from my supervising agent indicated to me that he had not been informed by his superiors and accordingly, that I was not supposed to disclose any information about these operations to him.50

Barker and Martinez were trained agents. Sturgis and Gonzalez had long worked in clandestine intelligence operations. They knew the value of secrecy and the danger of leaks. They were accustomed to depend entirely on the representations and authority of those delegated to lead them. They were disciplined. It misconstrues their background and character entirely to argue that they not only should have questioned Hunt's decision, but also carried any doubt they had to a variety of federal agencies for discussion.

The same misconception lies at the heart of the majority's third, and most important, contention-viz., that the appellants should have informed Judge Sirica of their "national security" concerns. According to the majority:

It would be utterly destructive of the judicial system if a defendant were to be permitted, without any predicate in reasonableness, to minimize the significance of a misrepresentation to the court by an assertion of his belief in some value perceived as higher than the court's. [A]ppellants

themselves met in camera with the judge during the plea-taking procedure and had ample opportunity to seek out his advice.51

First, it bears repeating that, in the only sense which I consider compatible with the "fair and just" standard, the defend

ant's belief had ample "predicate in reasonableness." Second, I find a disturb ing self-righteousness in the majority's implication that no citizen ought to contemplate values higher than those of a federal court. Certainly the Supreme Court does not feel it would be "utterly destructive of the judicial system” not to entrust federal judges with secret "national security" material. In EPA v. Mink 52 the Court interpreted the Freedom of Information Act 53 not to allow judicial review of government security classifications, or even the in camera inspection of classified documents in order to separate secret and nonsecret matter. Congress has since revised the statute to give federal judges this power; 55 but the point is that it is certainly not surprising that a defendant could believe a judge was not among those with authority to know the most closely guarded security information.

Particularly in this case, where Judge Sirica's questioning revealed to the ap pellants that the government had not even informed him Barker and Martinez worked for the CIA-let alone that they had taken part in the Ellsberg breakin-it was perfectly understandable that the appellants would not have entrusted him with their knowledge. It appeared to them the government did not think it desirable that the judge should know even rudimentary facts about their intelligence operations. Moreover, Judge Sirica, during voir dire, made quite clear his desire to bring to light all the facts surrounding the break-in.56 This was precisely what the appellants considered was their duty to prevent.

In sum, in light of their background in intelligence work and their relationship with Hunt, the appellants, belief that the government did not want the "national security" aspects of the Watergate operation disclosed was reasonable, and their failure to make their belief known to Judge Sirica or other "responsible of ficials" was justified under the circumstances as they then believed them to be.

2. The Voluntariness of the Appellants'

Plea

The question of the degree to which the appellants' belief affected the voluntariness of their plea is readily answered. Their belief effectively dictated their plea. Not only did the government's apparent desire deprive them of their only valid defense, but Hunt had made clear that a guilty plea was mandated under the circumstances. The appellants obviously did not want to go to prison, but they felt they had no choice. Theirs was the paradigm of an involuntary plea. That it was entered with the advice of competent counsel, and after extensive questioning by Judge Sirica, does not

57. Judge Bazelon's concurrence in the majority opinion places great weight on this factor: The District Court and the defendants' attorney both very carefully sought to disabuse the defendants of any notion that they were required to plead guilty and also sought to uncover their motive in pleading guilty. These efforts were unsuccessful. In light of the diligent efforts of their attorney and the careful interrogation by the District Judge, one must conclude that the defendants' pleas were voluntary. They made a bargain with the government and were under no apprehensions as to what that bargain meant. Under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), we must -enforce that bargain.

Concurrence of Judge Bazelon, 168 U.S.App. D.C. at n. 1, 514 F.2d at 227 n. 1 (emphasis added).

In the Alford case, the Supreme Court held it is not constitutional error for a trial judge to accept a guilty plea from a defendant who disclaims his guilt, so long as "the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." 400 U.S. at 31, 91 S.Ct. at 164 (emphasis added). Without this freedom of choice, there can be no "bargain." Judge Bazelon appears to argue that because the appellants were advised they could plead innocent

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change its involuntary nature.57 The appellants did not make a reasoned decision based on the chances of success at trial of their "national security" defense. They simply accepted that a guilty plea was required of them because the assertion of that defense was incompatible with the necessity for silence. It was not until eight months later, when the actual genesis of the Watergate operation had been revealed in full, that the appellants could make a reasoned decision. Then they moved the District Court to allow them a trial.

Given the involuntary nature of the appellants' guilty plea, and the relative weakness of the governmental and judicial interests opposing its withdrawal, I would hold that the District Court abused its discretion under the "fair and just" standard when it denied the appellants' motion.

II. THE LEGAL MERIT OF APPEL

LANTS' PROFFERED DEFENSE The majority held that the appellants' defenses were waived regardless of their merit.58 As I dissent from this view, and

SO.

and instead "chose" to plead guilty, their plea was perforce voluntary. The appellants, however, believed they had a directive from their immediate superior to plead guilty. Only in the most mechanical sense can it be said that "footsoldiers" who obey the order of a superior officer have made a voluntary choice to do Concomitantly, if the appellants were counseled to take a course of action which, in their minds, would have required disobedience to their leader and disloyalty to their country, that alternative was never truly "open" to them. The Alford case, then, affords little support to Judge Bazelon's position. In every sense which has meaning in the context of withdrawal motions, the appellants' pleas did not represent a voluntary choice to waive assertion of their innocence.

58. Although eschewing a decision on the merits of the appellants' proffered defenses, the majority in a footnote makes the gratuitous observation that "the national security defense that appellants would assert if they were granted a trial has been rejected as a matter of law by the only court that has considered it. United States v. Ehrlichman, D.D.C., 376 F.Supp. 29 (1974)." Majority Opinion, 168 U.S.App.D.C. at 514 F.2d

at 226 227 n. 17.