Defendants argue that plaintiff Tomi Schwaetzer, an Austrian citizen alleging illegal wiretapping and intentional disruption of his activities by the Army, is without standing to sue. Defendants rely on the general rule that non-resident aliens have no standing to sue in United States courts. See Johnson v. Eisentrager, 339 U.S. 763, 776, 94 L. Ed. 1255, 70 S. Ct. 936 (1950); Reyes v. Secretary of Health, Education and Welfare, 155 U.S. App. D.C. 154, 476 F.2d 910, 915 n.8 (1973); Kukatush Mining Corp. v. SEC, 114 U.S. App. D.C. 27, 309 F.2d 647, 649-50 (1962); cf. Kleindienst v. Mandel, 408 U.S. 753, 771, 33 L. Ed. 2d 683, 92 S. Ct. 2576 (1972) (Douglas, J., dissenting). The exceptions to this rule, which permit a non-resident alien to sue where the res is in the United States or where a specific statutory scheme permits suits by non-resident aliens for injuries suffered under the statute,
are inapplicable here. See Constructores Civiles de Centroamerica, S.A. v. Hannah, 148 U.S. App. D.C. 159, 459 F.2d 1183, 1190 (1972).
Plaintiffs rely heavily on a "trend" in the federal courts permitting non-resident aliens to sue for actions directed at them by United States officials which are violative of the Constitution. The "trend" is embodied in one case, United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), which held that non-resident aliens have standing to challenge unconstitutional action abroad, "at least where the government seeks to exploit the fruits of its unlawful conduct in a criminal proceeding against the alien in the United States." 500 F.2d at 280. While Toscanino definitely signals a trend toward liberalizing the general rule, the court's caveat makes clear that it is simply another exception to that. Thus, after Toscanino, a non-resident alien who is seized abroad in order to secure his presence for a domestic prosecution, may challenge the constitutionality of his seizure.
The question before the Court, therefore, is whether still another exception to the general rule should be carved for the instant situation. In the instant case, it should be noted that a fact common to all other recognized exceptions is not present here. Where the res at issue is within a domestic court's jurisdiction, or when a non-resident alien makes application for relief under a United States statute which permits granting the requested relief to non-resident aliens, or when a non-resident alien is brought from abroad to appear for and be the subject of a domestic criminal prosecution, there are different expectations of treatment than when a non-resident alien is simply affected by United States officials abroad. In the former instances, the United States has the power to, or has in fact imposed the framework of its government process on the non-resident alien. The United States is the only entity with power over the res, it is the entity requiring an applicant to follow a prescribed statutory process, or it is the entity attempting to render justice regarding the non-resident alien in a domestic court. In each of these cases, the non-resident alien should be entitled to the advantages of the legal process with which he is forced to deal. When the non-resident alien does not make application under a statute to the United States for certain action, or is not subjected to its courts, but is harmed in his own country, he cannot and should not expect entitlement to the advantages of a United States court. As noted in Johnson v. Eisentrager, supra, the rationale for permitting a resident alien access to United States courts is "an implied assurance of safe conduct" in this country. 339 U.S. at 770. See also Balzac v. Puerto Rico, 258 U.S. 298, 312, 66 L. Ed. 627, 42 S. Ct. 343 (1921) (the Constitution is in force where the sovereign power of the United States is asserted). No similar assurance is or need be given to a citizen of a foreign country, who is not subjected to the laws of this country and who can utilize the laws of his own country to protect himself.
Schwaetzer has no contact with the United States other than his meetings abroad with private United States citizens and his alleged electronic surveillance by United States Army personnel. He has not been thrust into American courts, or denied application for a benefit which a United States statute provides him. His lack of contact with the American legal system minimizes any expectation or hope that he could utilize that legal system for his protection. He must be dismissed as a plaintiff for lack of standing.
Defendants also argue that AR 381-17 and AR 380-13, promulgated in September 1974, have mooted any claim plaintiffs might otherwise have for injunctive relief. Neither regulation, however, can provide a basis for denial of injunctive relief.
First, AR 381-17, as will be discussed in the next section, does not and never has provided for prior judicial authorization of wiretaps, which plaintiffs contend the fourth amendment requires. Thus, plaintiffs' fourth amendment claims for injunctive relief are not mooted.
Nor does AR 380-13 as amended moot the remainder of plaintiffs' claims for injunctive relief. As noted earlier, the allegations of abusive dissemination of information, illegal disruption of activities, etc., not permitted by AR 380-13, present a justiciable controversy under the first amendment. Defendants contend they "are confident" that abusive surveillance techniques and dissemination of information as alleged by plaintiffs will not be repeated. Def. Supp. Mem. at 5, 8-9. Moreover, they assert by affidavit that no investigations of non-DOD-affiliated citizens are presently being conducted. Def. Exhibit 36-F. Plaintiffs should be granted discovery to contravene these assertions, which are clearly contrary to the allegations in plaintiffs' complaint, factually suspect in light of the earlier admitted misrepresentations to the Court, and in fact questioned by at least one Army action undertaken since promulgation of revised AR 380-13. See Pl's Exhibit CC. Moreover, the pattern of action alleged in the complaint alone is sufficient to reject defendants' mootness argument. As the Court of Appeals noted in Watkins v. Washington, 153 U.S. App. D.C. 298, 472 F.2d 1373 (1972), when faced with a comparable argument in a racial discrimination case:
Where pervasive racial discrimination is demonstrated, the court has not only the power, but also the duty, to render a decree eliminating the effects of past discrimination and ensuring equal opportunity in the future. Louisiana v. United States, 380 U.S. 145, 154, 85 S. Ct. 817, 13 L. Ed. 2d 709 (1965). That there is a new Director of the Housing Division who has taken steps to ensure equal employment opportunity does not justify denying affirmative equitable relief. The period of nondiscrimination since 1968 is very brief compared to the long record of discrimination demonstrated in this case, and even if the new supervisors are entirely in good faith the task of eliminating ingrained discriminatory practices is a difficult one deserving of active judicial support. [cites omitted]
472 F.2d at 1376. Defendants' argument must therefore be rejected.
Plaintiffs allege that the defendants' activities, as described in the complaint, violate their rights under the fourth amendment to be free of unreasonable searches and seizures. The only activity of defendants which could support a fourth amendment violation is electronic surveillance, since it is well settled that mere penetration of plaintiffs' organizations, whether covert or overt, does not violate fourth amendment rights. See Hoffa v. United States, 385 U.S. 293, 311, 17 L. Ed. 2d 374, 87 S. Ct. 408 (1966); United States v. White, 401 U.S. 745, 749, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971). Plaintiffs claim that the surveillance contravened the fourth amendment in that it was not pursuant to prior judicial authorization. Plaintiffs also ask the Court to enjoin future electronic surveillance unless prior judicial approval is obtained.
Defendants argue that for several reasons plaintiffs' complaint fails to state a claim upon which relief can be granted under the fourth amendment. In their first Motion to Dismiss, defendants urge (1) that the fourth amendment is inapplicable to electronic surveillance in the FRG because United States officials do not participate in the actual surveillance; (2) that even if applicable, the fourth amendment does not require prior judicial approval of wiretap suggestions,
proffering several considerations which according to defendants render the present procedure "reasonable"; and (3) that the unique situation in West Berlin negates the necessity or advisability for prior judicial authorization of electronic surveillance carried out by United States officials there. The first argument requires treatment before reaching the question of prior judicial authorization.
(1) Procedure for Electronic Surveillance in the FRG
Defendants correctly state that acts of a foreign government within its own territory against United States citizens are not subject to the limitations of the fourth amendment. See Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1968). The fourth amendment does apply to actions by foreign officials if United States officials participated in those actions "so as to convert them into joint ventures between the United States and the foreign officials." 405 F.2d at 743; see Powell v. Zuckert, 125 U.S. App. D.C. 55, 366 F.2d 634, 640 (1966); Birdsell v. United States, 346 F.2d 775, 782 (5th Cir. 1965).
Defendants contend that the G-10 Law of the FRG precludes the type of substantial participation which must be shown before the fourth amendment becomes applicable. The problem with defendants' argument is that it simply misses the point of plaintiffs' complaint. To be sure, this Court is without authority to control the actions of FRG officials in discharge of their duties under the G-10 law. See Holmes v. Laird, 148 U.S. App. D.C. 187, 459 F.2d 1211, 1218 (1972).
If the actions of the FRG officials, in carrying out "suggested" wiretaps on behalf of the United States Army, are such that a "suggestion" can effectively be equated with institution of a wiretap, then the plaintiffs' constitutional rights are in effect being violated by United States officials. In such circumstances, a warrant requirement should be imposed. See discussion infra. That such might be the case is revealed by the defendants' own description of the operation of the G-10 Law and the NATO SOFA:
Article 10 of the Basic Law of West Germany, appended as Appendix C, provides that the right to secrecy of mail, post and telecommunications shall be inviolable and may only be restricted pursuant to law. The G-10 Law authorizes carefully circumscribed restrictions on that right. One of the principal purposes of these restrictions noted in the G-10 Law is the need to avert dangers that threaten the security of the foreign North Atlantic Treaty Organization (NATO) forces in the Federal Republic. G-10 Law, art. 1, § 1, para. (1). Furthermore, one of the explicit grounds for authorizing an intercept is "if there are factual clues to support a suspicion that a person plans, commits, or has committed . . . offenses against the security of the forces of the non-German Contracting States of [NATO] stationed in the [FRG] . . . ." Id., art. 1, § 2, para. (1)5. Article 7 of the Fourth Amending Law to the German Criminal Code makes it criminal to engage in acts of subversion against NATO forces stationed in the Federal Republic. See Defendants' Exhibit 12.