dissenting.
I am persuaded that in addition to absolute immunity, the issue of qualified immunity is properly before this court. Determining that the “clearly established” test has not been met, I would find that defendant meets the requirements for qualified immunity and is entitled to judgment. Accordingly, I dissent.
I
In Forsyth v. Kleindienst, 599 F.2d 1203, 1208 (3d Cir.1979) (Forsyth I), we concluded that denial of summary judgment based on the lack of absolute immunity was appealable under the collateral order doctrine, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In the absolute immunity context, as happens when dismissal on double jeopardy grounds is denied, Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the right not to be subjected to trial is irretrievably lost if appellate review must await final adjudication on the merits. The order of the district court here, denying absolute immunity and directing that the matter proceed to trial, is final on that issue and is ripe for appellate review. I agree with the majority’s ruling on this jurisdictional question because it is consistent with the Supreme Court’s treatment of the appeals in Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), and Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
The present appeal raises the defendant’s contention that the district court erred in denying not only absolute, but qualified immunity as well. In the earlier *275appeal, we concluded that the refusal of qualified immunity could not be reviewed on a theory of “tag along” or “pendent” appellate jurisdiction. In Cohen-type appeals only claims that fall within the collateral order exception will be entertained. Abney, 431 U.S. at 663, 97 S.Ct. at 2042. Therefore, an order denying qualified immunity must itself meet the jurisdictional requirements of 28 U.S.C. § 1291 (1976).
At the time Forsyth I was before us, the qualified immunity defense rested on factors not amenable to pre-trial resolution. See Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). We concluded therefore that the denial of summary judgment on that defense was not immediately appealable.
Three years after we decided Forsyth I, the Supreme Court reappraised and substantially revised the test for qualified immunity in Harlow. 457 U.S. at 815-20, 102 S.Ct. at 2737-2740. Recognizing that its previous formulation often did not permit pre-trial termination of insubstantial law suits, the Court acknowledged that “an adjustment of the ‘good faith’ standard” was essential, id. at 815, 102 S.Ct. at 2737, and announced a new test. Under it “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818, 102 S.Ct. at 2739.
This objective standard now permits summary judgment for the official if the law was not “clearly established” at the time the challenged action occurred. But even if the right’s existence had been settled, courts should grant qualified immunity if the defendant “claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard.” Id. at 819, 102 S.Ct. at 2739.
In urging that insubstantial claims be determined before trial and even before discovery, the Court itemized costs borne not only by the defendant officials, but by society as well. “[T]he expenses of litigation, the diversion' of official energy from pressing public issues, ... the deterrence of able citizens from acceptance of public office,” and the inhibition' from “unflinching discharge” of duty were cited as consequences to be avoided. Id. at 814, 816-17, 102 S.Ct. at 2738-39. The Court also recognized the risks imposed on public officials who must defend their actions before a jury, emphasizing that “in times of political passions, dishonest or vindictive motives are readily attributed ... and [are] readily believed.” Id. at 814 n. 23, 102 S.Ct. at 2737 n. 23, quoting Tenney v. Brandhove, 341 U.S. 367, 378, 71 S.Ct. 783, 789, 95 L.Ed. 1019 (1951).
In short, avoiding trial through prompt disposition of insubstantial claims by summary judgment is as compelling an objective in cases properly invoking qualified immunity as in those where absolute immunity is available. The Harlow Court strongly urged early resolution of non-meritorious law suits that “undermine the effectiveness of government.” 457 U.S. at 800-01 n. 35, 102 S.Ct. at 2730-2731 n. 35.
It follows inexorably that withholding appellate correction of erroneous pre-trial denials of qualified immunity frustrates Harlow’s purpose in revising the test. If timely appellate review is not available to redress incorrect preliminary rulings, the right to be relieved of the burdens of trial will, just as in Abney, be irretrievably lost. See also Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). In summarizing Cohen’s rationale, Abney explained that “by permitting immediate appeal under those circumstances, this Court made sure that the benefits of the statute were not ‘cancelled out.’ ” 431 U.S. at 662 n. 7, 97 S.Ct. at 2041 n. 7. The common thread running through Abney, Helstoski, and Harlow is the necessity for early appellate review to prevent subjecting defendants to unnecessary trials.
The Courts of Appeals for the Eighth Circuit and the District of Columbia have *276similarly concluded that preserving that exemption requires immediate appeal from denial of summary judgment based on qualified immunity. Evans v. Dillahunty, 711 F.2d 828 (8th Cir.1983); McSurely v. McClellan, 697 F.2d 309 (D.C.Cir.1982). The Dillahunty court, however, properly cautioned that an order withholding qualified immunity is appealable only when the essential facts are not in dispute and the question is a matter of law.
In an unpublished opinion, the Court of Appeals for the Fourth Circuit in Benford v. American Broadcasting Co., 707 F.2d 504 (4th Cir.1983), cert. denied, Holton v. Benford, — U.S. -, 104 S.Ct. 107, 78 L.Ed.2d 110 (1983), refused to entertain an appeal from a denial of summary judgment. In that case, the district court had concluded that the plaintiffs asserted rights had been clearly established at the time of the challenged conduct. I do not find the Benford opinion persuasive because in remitting the defendant to trial the court said that “there is no right irretrievably lost to them by this decision.” That statement does not adequately heed Harlow, or credit its common denominator with Abney and Helstoski —the right to be free from unnecessary trial.
The Fourth Circuit’s later decision in Bever v. Gilbertson, 724 F.2d 1083 (4th Cir.1984), is readily distinguishable. There, the court declined to take jurisdiction of a qualified immunity appeal because, in addition to damages, the plaintiffs had requested injunctive relief and trial was necessary on that claim whatever the resolution of the immunity question. Without commenting on the merits of that conclusion, I need only note that the Court of Appeals observed that the case was different from one, as here, where the effect of the immunity claim would terminate the litigation. I am persuaded that we focused on the proper standard in Britton v. Howard Savings Bank, 727 F.2d 315 (3d Cir.1984), where we said that “the most significant issue with respect to appealability of collateral orders is their effect on parties pendente lite, rather than the relationship of issues already decided to the ultimate merits.”
I conclude that when no essential facts are in dispute and the question is one of law, the Abney-Cohen line of cases establishes jurisdiction for appeals from denials of qualified immunity. Harlow’s objectives require no less. Unlike the majority I find that the denial of qualified immunity in this case presents us with an appealable order.
II
Having determined that this court has jurisdiction for both the qualified and absolute immunity phases, I turn to the merits. Although the majority finds that our earlier decision on absolute immunity is dispositive, I must confess some doubt on that score.
Harlow’s discussion of the “special functions” test, as it might apply to the Attorney General in cases implicating national security, lends a force to the defendant’s argument here that was lacking in Forsyth I. “For aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy absolute immunity might well be justified to protect the unhesitating performance of functions vital to the national interest.” Harlow v. Fitzgerald, 457 U.S. at 812, 102 S.Ct. at 2735. This “special functions” notion is different from the prosecutorial role we reviewed in Forsyth I. Arguably, it is much more likely that the Attorney General is eligible for special functions consideration than is the Secretary of Agriculture. Cf. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). However, because I believe that qualified immunity is applicable here as a matter of law, I do not dwell on the absolute immunity issue.
The qualified immunity question is sharply drawn: was the requirement that the Attorney General of the United States secure judicial authorization for wiretaps undertaken for national security purposes “clearly established” before January 6, 1971.
*277The various sources to be surveyed in determining the state of the law at the pertinent time have not yet been identified but case law is an obvious beginning point. See Procunier v. Naverette, 434 U.S. 555, 565, 98 S.Ct. 855, 861, 55 L.Ed.2d 24 (1978); Reese v. Nelson, 598 F.2d 822 (3d Cir.1979); Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706 (3d Cir.1978).
A
The wiretap in the case at bar was removed on January 6, 1971. Not until 1972, one year and five months later, was the right to be free from warrantless governmental surveillance in domestic security cases recognized by the Supreme Court. The resolution of the problem was a sensitive issue requiring careful constitutional analysis and balancing. See United States v. United States District Court, 407 U.S. 297, 299, 92 S.Ct. 2125, 2128, 32 L.Ed.2d 752 (1972) (Keith).
Keith observed that electronic surveillance in national security cases had been sanctioned since 1946. Id. at 310, & n. 10, 92 S.Ct. at 2133, & n. 10. “Successive Presidents for more than one-quarter of a century have authorized such surveillance in varying degrees, without guidance from the Congress or a definitive decision of this Court. This case brings the issue here for the first time.” Id. at 299, 92 S.Ct. at 2128.
The inquiry, as the Supreme Court posed it, was “the delicate question of the President’s power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval____ Its resolution is a matter of national concern____” Id. The Court’s opinion could not more clearly define the matter before it for decision.
Plaintiff argues, nevertheless, that the earlier case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), “clearly established” his right to be free of searches conducted without prior judicial approval. In Katz, the defendant was charged with a gambling offense. His conversation in a telephone booth was intercepted by police officers who had attached a listening and recording device to the outside of the booth. The Court held that the police activity constituted a search requiring prior judicial approval.
It is significant that Katz was not a national security case, and the Court did not purport to decide the warrant issue in that context. Indeed, a footnote to the majority opinion disclaimed any such intention. “Whether safeguards other than pri- or authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this ease.” 389 U.S. at 358 n. 23, 88 S.Ct. at 515. In a concurring opinion, Justice White, referring to that disavowal, wrote, “in footnote 23 the Court points out that today's decision does not reach national security cases. Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping.” Id. at 363, 88 S.Ct. at 517. Only Justices Douglas and Brennan took exception to Justice White’s statements. See id. at 359-60, 88 S.Ct. at 515-516. The Court, referring to the question before it in Keith, said: “It addresses a question left open by Katz.” 407 U.S. at 309, 92 S.Ct. at 2132. See also Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). I am convinced that before 1972 the law was not “clearly established” by the Supreme Court.
B
In reviewing other federal court decisions it is interesting that before 1971 the cases had not separated the national security justification for warrantless surveillance into the categories of “domestic” and “foreign” intelligence. As Keith observed, both situations were sometimes referred to as “national security” threats. 407 U.S. at 309, n. 8, 92 S.Ct. at 2133, n. 8. Not until January 8, 1971 — after the wiretaps in this case had been terminated — did a district court suggest that different tests might apply in each situation. United States v. *278Smith, 321 F.Supp. 424 (C.D.Cal.1971). In all the reported decisions antedating the surveillance here — United States v. Clay, 430 F.2d 165 (5th Cir.1970); United States v. Butenko, 318 F.Supp. 66 (D.N.J.1970); United States v. Brown, 317 F.Supp. 531 (E.D.La.1970); United States v. Stone, 305 F.Supp. 75 (D.D.C.1969); United States v. O’Baugh, 304 F.Supp. 767 (D.D.C.1969)— the government advanced foreign intelligence grounds for warrantless electronic surveillance. In each instance, the court found no violation of the Constitution or the Communications Act of 1934, 48 Stat. 1103 (current version at 47 U.S.C. § 605 (1982)).
In two unreported decisions, United States v. O’Neal, No. KC-CR-1204 (D.Kan. September 1, 1970), and United States v. Dellinger, No. 69 CR 180 (N.D.Ill. February 20, 1970), warrantless wiretaps were undertaken by the government on the basis of threats to domestic security. The surveillance was found to be proper in both of those cases. Although these unreported cases do not have the same effect as published opinions, they are relevant.
Thus the Attorney General’s decision to authorize the wiretap here was made in an era when the sparse lower federal court case law unanimously supported the theory that no warrant was required in national security cases. These cases provide no support for the plaintiff’s theory that the law was “clearly established.” If anything, they suggest the opposite — that settled law held no warrant was required.
Only after the taps here were terminated did a district court hold that electronic surveillance in domestic security cases required judicial authorization. United States v. Smith, 321 F.Supp. 424 (C.D.Cal.1971). Two weeks later the rationale of Smith was accepted and followed in United States v. Sinclair, 321 F.Supp. 1074 (E.D.Mich.1971), the case ultimately affirmed by the Supreme Court in Keith.
The first occasion for appellate review of whether the law in this field was “clearly established” arose when some individuals overheard in the Keith surveillance sought damages from the Attorney General and others as a result of the taps which the Supreme Court had found to be illegal. In reviewing the grant of summary judgment in favor of the former Attorney General, the Court of Appeals for the District of Columbia concluded that the defendant had not violated “clearly established, authoritatively declared law.” Sinclair v. Kleindienst, 645 F.2d 1080, 1084 (D.C.Cir.1981). En route to reaching that result, the Court discussed cases I cited earlier.
Post-Harlow, that Court of Appeals again reviewed an Attorney General’s entitlement to qualified immunity. Zweibon v. Mitchell, 720 F.2d 162 (D.C.Cir.1983) (Zweibon IV). At issue were wiretaps authorized in the period from September 1970 through June 1971. After an exhaustive review of the case law, the court found that the illegality of the defendant’s “conduct was not ‘clearly established’ by any reasonable definition of the phrase.” Id. at 169. The court dismissed arguments that the Smith and Sinclair cases, decided by district courts in January 1971, established the state of the law. Id. at 171. Also rejected was plaintiff’s suggestion that the validity of his position was established by memoranda prepared by the Attorney General’s subordinates in 1969 professing some doubt on the constitutionality of national security wiretaps. These memos were characterized as mere predictions of future action by the Supreme Court and discussions of strategic considerations for potential litigation. Id. at 170-71.
The same Court of Appeals performed a similar review to determine the state of the law in 1977 with respect to foreign intelligence electronic surveillance. Chagnon v. Bell, 642 F.2d 1248 (D.C.Cir.1980), cert. denied, 453 U.S. 911, 101 S.Ct. 3142, 69 L.Ed.2d 994 (1981). Observing that Keith had not resolved the issue, the court held that liability could not be imposed on the Attorney General “for failure to anticipate legislative reform.” Id. at 1263. In the circumstances of the times, “the Attorney General was entitled to consider a broad range of options in exercising the wide *279scope of discretion that his post entails; he was also obligated to act swiftly and firmly at the risk that action deferred [would] be futile or constitute virtual abdication of office.” Id. quoting Scheuer v. Rhodes, 416 U.S. at 246, 94 S.Ct. at 1691.
It is also significant that the Court of Appeals for the Ninth Circuit has concluded that the law was not even “clearly foreshadowed” when the Attorney General authorized wiretaps in 1969 and as late as 1972. Weinberg v. Mitchell, 588 F.2d 275 (9th Cir.1978). Cf. Zweibon v. Mitchell, 606 F.2d 1172 (D.C.Cir.1979). As I have observed in the past, the “clearly established” standard requires more definitive explication and certainty than the “foreshadowing” test used in connection with the retroactivity doctrine.1 Marino v. Bowers, 657 F.2d 1363, 1376 n. 5 (3d Cir.1981) (Weis, J., dissenting); accord Zweibon v. Mitchell, 720 F.2d 162 (D.C.Cir.1983) (Zweibon IV). Since “clearly foreshadowed” is a lesser test, Weinberg is additional support for the proposition that the law was not “clearly established.”
C
Contemporaneous statutes do not alter the conclusion that the law was not “clearly established.” Court decisions of the period did not suggest that the Attorney General’s procedure conflicted with extant statutory law.
Keith found that Title III of the Omnibus Crime Control & Safe Streets Act, 18 U.S.C. §§ 2510-2520, authorizing wiretaps under certain conditions, did not resolve the issue in that case. The Court characterized the statute as an “expression of Congressional neutrality” and “not the measure of the executive authority asserted,” 407 U.S. at 308, 92 S.Ct. at 2132. However, the proviso for presidential power, 18 U.S.C. § 2511(3),2 had led several courts to conclude that wiretaps authorized by the Attorney General for national security purposes did not violate the statute. See United States v. Clay, 430 F.2d at 171-72; United States v. Butenko, 318 F.Supp. at 73; United States v. Brown, 317 F.Supp. at 536-37; United States v. Dellinger, No. 69 CR 180, Transcript at 20-21. See also United States v. Stone, 305 F.Supp. at 81-82; United States v. O’Baugh, 304 F.Supp. at 768 (Attorney General’s procedure did not violate § 605 of Communications Act of 1934).3
Since all of these courts also upheld the constitutionality of the warrantless surveillance, it is reasonable to conclude that Title III was at best neutral, if not in fact Congressional recognition of the President’s power to continue to authorize surveillance.
The other statute pertaining to wiretaps, section 605 of the Federal Communications Act of 1934, 48 Stat. 1103, has no relevance here because its scope was limited to prohibiting the use of wiretapped conversations as evidence in court proceedings, a point not presented in the case at hand. Cf., Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314 (1937); United States v. Coplon, 185 F.2d 629 (2d Cir.1950).
*280D
A survey of law review writings on the subject in 1968-70 is interesting. Although most of the commentators advocated the view that was later adopted in Keith, their urging of that approach is in itself a testimonial to the fact that their position was not yet the law.4
Thus a review of Supreme Court and other federal court decisions, the statutory provisions, and scholarly commentary all demonstrate that the law of warrantless electronic surveillance in national security cases was only beginning to develop in 1970-71. Unquestionably, a prohibition against warrantless searches in these circumstances was not “clearly established.”
Ill
The majority declines to consider the merits of the qualified immunity defense fearing that allowing a Abney-Cohen appeal will open the gates to a flood of interlocutory appeals. As one of those affected by the heavy case load in this court, I am not completely unsympathetic to that approach. However, I am not persuaded that it is the proper one because we must take a broader view of the federal judicial system. Sound judicial administration argues against declining a meritorious appeal when the result is to require a district court to hold a useless trial. We cannot ignore the fact that docket pressures exist in the trial as well as in the appellate courts.
The majority position is particularly regrettable in a case such as this where the question at issue is purely one of law and no discretionary element is present. The state of law in 1971 is a matter of history. The opinions are printed in bound volumes and will not change. The text of the statutes as they existed at that time cannot be varied either now or after trial. All of the material needed to decide the issue is before us and will be no different years from now.
But primarily, we should grant complete review to the legal question here because otherwise we fail to meet the obligation imposed upon us by Harlow. The Supreme Court candidly acknowledged that its previous decisions on qualified immunity were incompatible with speedy and inexpensive disposition of non-meritorious cases. To correct that shortcoming, the Court did not hesitate to revise the applicable test. However, that acknowledgment of deficiency and the effort to put it aright will be all for naught if the courts of appeals fail to exercise jurisdiction in appropriate cases.
This court should not relegate to a later date the inevitable correction of an erroneous district court appraisal of past law. This litigation has lasted far too long. It should be terminated now.
Thirteen years ago plaintiff was overheard three times when he spoke with Davidon on the telephone. Plaintiff concedes that he suffered no pecuniary loss and his freedom of expression was not chilled. The district court has awarded one dollar as nominal damages, and the only claim remaining is for punitive damages. Remand for resolution of this issue will require a possibly lengthy trial, see Forsyth v. Kleindienst, 700 F.2d 104, 105-06 (3d Cir.1983), and cause the precise harm Harlow seeks to avoid.
I dissent.
. The retroactivity of Keith is not before us at this time. I therefore have assumed retroactivity arguendo.
. The proviso reads in part:
"Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.”
. Legal commentators appear to have been uncertain about the import of the proviso. Compare Schwartz, "The Legitimation of Electronic Eavesdropping: The Politics of ‘Law and Order,’” 67 MICH.L.REV. 455, 490-94 (1969) (section legitimates president’s power); with Note, "Eavesdropping at the Government’s Discretion — First Amendment Implications of the National Security Eavesdropping Power,” 56 CORNELL L.REV. 161, 162-63 (1970) (does not regulate president’s power); and Note, "Wiretapping and Electronic Surveillance — Title III of the Crime Control Act of 1968,” 23 RUTGERS L.REV. 319, 334-36 (1969) (Congressional attempt to fill vacuum left by Court in Katz; section frees eavesdropping by authority of the President from requirements elsewhere in statute).
. Representative of the many articles written are: Spritzer, "Electronic Surveillance by Leave of the Magistrate: The Case in Opposition,” 118 U.PA.L.REV. 169 (1969); Theoharis & Meyer, "The ‘National Security’ Justification for Electronic Eavesdropping: An Elusive Exception,” 14 WAYNE L.REV. 749 (1968); Note, "Wiretapping and Electronic Surveillance — Title III of the Crime Control Act of 1968,” 23 RUTGERS L.REV. 319 (1969); Comment, "Privacy and Political Freedom: Application of the Fourth Amendment to 'National Security’ Investigations,” 17 U.C.L.A.L.REV. 1205 (1970).