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BERLIN DEMOCRATIC CLUB v. RUMSFELD

March 17, 1976

BERLIN DEMOCRATIC CLUB, et al., Plaintiffs
v.
DONALD H. RUMSFELD* et al., Defendants



The opinion of the court was delivered by: JONES

 INTRODUCTION

 This is an action by a number of American citizens and organizations and one Austrian citizen, residing in West Berlin or the Federal Republic of Germany [FRG], who challenge certain of the United States Army's intelligence activities. The plaintiffs are the Berlin Democratic Club [BDC], which among other activities supported Senator McGovern for president in 1972 and the impeachment proceedings against former President Nixon in 1973; the Lawyers Military Defense Committee [LMDC], which operates as a legal aid service for members of the armed forces overseas; present and former members of the BDC; attorneys and consultants to the LMDC; American writers and journalists; an Austrian journalist who has acted as a consultant to the LMDC; and two American ministers formerly residing at Gossner Mission in Mainz, West Germany. The defendants are myriad Department of Defense Army officials and uniformed personnel allegedly responsible for or instrumental in conducting the intelligence program as it has been carried out in West Berlin and in the Federal Republic of Germany.

 Plaintiffs allege numerous acts of warrantless electronic surveillance; covert infiltration of BDC meetings; covert infiltration of the Gossner Mission for the purpose of disrupting the Mission's counseling activities and provoking Mission personnel to commit illegal acts; covert infiltration of English language journals, for which several plaintiffs work, for the purpose of disrupting their journalistic activities and provoking the journalists to commit illegal acts; deliberate disruption of the counseling activities of the Austrian journalist; maintenance of "dissidence identification" files and "blacklists"; dissemination of these files to military and civilian agencies and private citizens, resulting in the dismissal of two plaintiffs from jobs at the United States exhibit at the German Industrial Fair, termination of two jobs held by another plaintiff at the British supply depot in West Berlin and with a private landscaping firm in West Berlin, debarment of another plaintiff from access to all United States military installations in Berlin, institution of deportation proceedings against another plaintiff by the German authorities, the inability of several other plaintiffs to obtain security clearances for jobs they were seeking, damage to the professional reputations of the LMDC, its lawyers, and the American journalists; and illegal opening of plaintiffs' mail either by American authorities or by German authorities at the inducement of defendants. Plaintiffs claim that these activities as alleged violate their first, fourth, fifth, sixth and ninth amendment rights as well as their statutory rights. They seek injunctive, declaratory, and monetary relief for violation of their statutory and constitutional rights.

 PROCEDURAL HISTORY

 Plaintiffs filed their original complaint on February 19, 1974, and shortly thereafter initiated certain discovery requests. On May 24, 1974, defendants obtained a protective order suspending discovery until disposition of their motion to dismiss, which they intended to file shortly.

 They moved for summary judgment, rather than for dismissal, on June 7, 1974, which plaintiffs opposed on August 6, 1974. Plaintiffs also moved to file an amended complaint, and for class action certification on the same date. On October 29, 1974, defendants filed a renewed motion for summary judgment, after it became apparent that certain of the factual representations made by defendants in their initial motion had been inaccurate. The renewed motion also raised a new ground for summary judgment, based upon a new regulation promulgated by the Army in September, 1974, which defendants claim moots the injunctive relief requested by plaintiffs. Plaintiffs opposed this renewed motion on December 10, 1974.

 On February 3, 1975, plaintiffs moved to dissolve the protective order, and in support thereof proffered documents to the Court tending to show that the Army was not, in fact, abiding by its new regulations. Defendants opposed this motion on February 20, 1975. After the resolution of some minor procedural matters dealing with submission and dissemination of certain military documents, which ended in a stipulation approved by the Court on October 2, 1975, the defendants' motion for summary judgment and plaintiffs' motions to file the amended complaint, for class action certification, and to dissolve the protective order are now before the Court. A hearing was held February 23, 1976 on all pending motions.

 Defendants have raised a series of threshold issues: amount in controversy, justiciability, personal jurisdiction over certain defendants, standing to sue of the Austrian journalist, mootness, and whether the first and sixth amendments provide plaintiffs with a cause of action for damages. Also ripe for decision is the purely legal question whether the Army may institute electronic surveillance against American citizens abroad for national security reasons.

 AMOUNT IN CONTROVERSY

 Plaintiffs allege jurisdiction pursuant to 28 U.S.C. § 1331, among other statutes. Of course, each plaintiff must have $10,000 in controversy, and the plaintiffs bear the burden of proof. Gomez v. Wilson, 155 U.S. App. D.C. 242, 477 F.2d 411, 419-20 (1973). That burden is slight, however, since the Court can dismiss the complaint only if it is satisfied to a legal certainty that each plaintiff is not entitled to the $10,000 minimum. St. Paul Indemnity Co. v. Cab Co., 303 U.S. 283, 288-89, 58 S. Ct. 586, 82 L. Ed. 845 (1938).

 Such is not the case here. All the plaintiffs allege their telephones have been wiretapped, their meetings and private associations infiltrated, and their daily activities disrupted by the defendants. They further allege that the Army has disseminated derogatory information about each of them either leading to termination or restriction of employment opportunities, or severely restricting their activities for fear of causing further dissemination. At this stage of the litigation it cannot be said to a legal certainty that compensatory damages of at least $10,000 are impossible, or that punitive damages are inappropriate. Therefore, defendants' argument is without merit at this stage of the litigation and in the absence of discovery.

 JUSTICIABILITY

 Defendants rely heavily upon Laird v. Tatum, 408 U.S. 1, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1973), in arguing that the plaintiffs have not presented a justiciable controversy. In Tatum, a group of civilians complained that the intelligence gathering and dissemination activities of the Army in the United States chilled them in the exercise of their first amendment rights. *fn1" The Court described the surveillance system as follows:

 
The system put into operation as a result of the Army's 1967 experience consisted essentially of the collection of information about public activities that were thought to have at least some potential for civil disorder, the reporting of that information to Army Intelligence headquarters at Fort Holabird, Maryland, the dissemination of these reports from headquarters to major Army posts around the country, and the storage of the reported information in a computer data bank located at Fort Holabird. The information itself was collected by a variety of means, but it is significant that the principal sources of information were the news media and publications in general circulation. Some of the information came from Army Intelligence agents who attended meetings that were open to the public and who wrote field reports describing the meetings, giving such data as the name of the sponsoring organization, the identity of speakers, the approximate number of persons in attendance, and an indication of whether any disorder occurred. And still other information was provided to the Army by civilian law enforcement agencies.

 408 U.S. at 6. It was clear that there was "no evidence of illegal or unlawful surveillance activities"; there was no "clandestine intrusion by a military agent." 408 U.S. at 9; quoting from 444 F.2d at 953. Nothing detrimental had been done to the plaintiffs, nor was anything detrimental contemplated. Id. The only challenged action was the existence of the intelligence gathering and disseminating system. To allege that this chilled first amendment rights, according to the Court, was "not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm." 408 U.S. at 14.

 Tatum is readily distinguishable from the instant case. All of the plaintiffs allege purposeful dissemination of intelligence information resulting in termination or restriction of employment opportunities, unfair military trials, or damaged reputations. Plaintiffs further allege that their phones have been illegally wiretapped and their activities have deliberately and intentionally been disrupted by infiltrators who either provided them false information or entreated them to illegal action. Certain plaintiffs complain that they have been barred from access to U.S. military facilities, have lost their jobs, or have been denied employment because of the dissemination. One plaintiff alleges that the German authorities were induced by American officials to institute deportation proceedings against her. None of these actions were part of the intelligence gathering system challenged in Tatum. Such actions clearly are justiciable.

 Defendants contend that persons subjected to the Army's surveillance activities cannot challenge the surveillance activities after Laird v. Tatum. Instead, they are limited to challenging "other and additional action" arising out of the surveillance activities. Thus, for example, if information gathered by an undercover agent was later used as grounds for dismissal from employment of the person surveilled, the defendants would limit that person's challenge to the use of the information to terminate his employment, foreclosing inquiry into the basis for the original surveillance. There is a certain appeal to defendants' argument, and clearly a basis in Laird v. Tatum for its adoption. The Court stated in strong terms that it is not the office of the judiciary to scrutinize the breadth of the Army's intelligence activities:

 
Stripped to its essentials, what respondents appear to be seeking is a broad-scale investigation, conducted by themselves as private parties armed with the subpoena power of a federal district court and the power of cross-examination, to probe into the Army's intelligence-gathering activities, with the district court determining at the conclusion of that investigation the extent to which those activities may or may not be appropriate to the Army's mission. The following excerpt from the opinion of the Court of Appeals suggests the broad sweep implicit in its holding:
 
"Apparently in the judgment of the civilian head of the Army not everything being done in the operation of this intelligence system was necessary to the performance of the military mission. If the Secretary of the Army can formulate and implement such judgment based on facts within his Departmental knowledge, the United States District Court can hear evidence, ascertain the facts, and decide what, if any, further restrictions on the complained-of activities are called for to confine the military to their legitimate sphere of activity and to protect [respondent's] allegedly infringed constitutional rights." 144 U.S. App. D.C. at 83, 444 F.2d, at 958. (Emphasis added.)
 
Carried to its logical end, this approach would have the federal courts as virtually continuing monitors of the wisdom and soundness of Executive action; such a role is appropriate for the Congress acting through its committees and the "power of the purse"; it is not the role of the judiciary, absent actual present or immediately threatened injury resulting from unlawful governmental action.
 
We, of course, intimate no view with respect to the propriety or desirability, from a policy standpoint, of the challenged activities of the Department of the Army; our conclusion is a narrow one, namely, that on this record the respondents have not presented a case for resolution by the courts.

 408 U.S. at 14-15.

 To limit the inquiry to "other and additional action," however, would be too restrictive, for the surveillance activity itself can be unlawful or illegitimate. A surveillance operation of the sort described in Laird v. Tatum is simply foreclosed from inquiry. See Fifth Avenue Peace Parade Committee v. Gray, 480 F.2d 326, 332-33 (2d Cir. 1973); Socialist Workers Party v. Attorney General, 510 F.2d 253 (2d Cir. 1974). A surveillance operation which utilizes tactics beyond those alleged in Laird v. Tatum and illegitimate or unlawful in themselves, however, is justiciable. For example, in Handschu v. Special Services Division, 349 F. Supp. 766 (S.D. N.Y. 1972), allegations similar in certain respects to those presented here were discussed in light of Laird v. Tatum, and were found justiciable:

 
Plaintiffs' challenge here is not to the use of informers and undercover agents as such, but to conduct of SIS and its agents that allegedly exceeds permissible limits and goes far beyond legitimate surveillance activities with the intent and purpose to invade their constitutional right of free association and communication.

 349 F. Supp. at 770. And in Philadelphia Yearly Meeting of The Religious Society of Friends v. Tate, 519 F.2d 1335 (3d Cir. 1975), the court distinguished between mere photographing, data gathering at public meetings, and sharing of such information with other law enforcement agencies, which could not be challenged, and dissemination of such information to non-police groups or individuals and the press, which could be challenged. The court stated:

 
It is not apparent how making information concerning the lawful activities of plaintiffs available to non-police groups or individuals could be considered government activity, particularly since it is alleged that plaintiffs are subject to surveillance only because their political views deviate from those of the "establishment." We think these allegations, at a minimum, show immediately threatened injury to plaintiffs by way of a chilling of their rights of freedom of speech and associational privacy.

 519 F.2d at 1338. This Court agrees that actions beyond "legitimate surveillance activities" are a proper subject of challenge. Thus, while collection and retention of information, if collected in a legal manner, cannot be challenged, public dissemination of that information in a false or defamatory manner and with no lawful purpose, disruption of legitimate activities, termination of employment, illegal electronic surveillance, and other forms of harassment are subject to challenge as beyond "legitimate surveillance activities." Moreover, even legitimate surveillance activities, if undertaken in conjunction with illegitimate activities in a manner which raises the inference that the motive was intimidation or coercion, would be subject to challenge. Cf. Allee v. Medrano, 416 U.S. 802, 812, 40 L. Ed. 2d 566, 94 S. Ct. 2191 (1974); United States v. McLeod, 385 F.2d 734, 750 (5th Cir. 1967); Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966). Even a cursory reading of the acts alleged in the complaint raises a sufficient inference to render this action justiciable.

 PERSONAL JURISDICTION

 Defendants allege that the Court lacks personal jurisdiction over five of the twenty-four named defendants. All five are sued in their individual capacities. Four of these defendants reside overseas and were served by mail pursuant to the D.C. Long Arm Statute, D.C. Code §§ 13-422, 423; one resides in Virginia and was personally served at his residence.

 Plaintiffs argue that personal jurisdiction exists under the conspiracy theory, recently reiterated in Mandelkorn v. Patrick, 359 F. Supp. 692 (D.D.C. 1973). There, Judge Robinson held that the acts of one co-conspirator, if done within the District, in furtherance of the conspiracy, and resulting in injury in the District, will satisfy personal jurisdiction over non-resident co-conspirators. 359 F. Supp. at 696. It does not matter that plaintiffs allege other injuries as well as those suffered in the District, or that the co-conspirator acting in the District was not a senior partner, as defendants would require.

 Here, plaintiffs allege that the activities of the LMDC, which has an office in the District, were injured by the dissemination of defamatory reports concerning their attitudes as defense counsel. Moreover, plaintiffs allege that telephone conversations between the German and District LMDC offices were curtailed because of electronic surveillance. Thus, injury within the District is alleged. Further, plaintiffs allege that these defendants were acting pursuant to orders from the superiors in Washington, who are defendants in this action and alleged co-conspirators.

 While it would be improper to now hold that personal jurisdiction exists over these defendants, it would be equally improper to hold that there is no personal jurisdiction in the absence of discovery. As plaintiffs' counsel stated at the February 23 hearing, plaintiffs have had no opportunity to establish factually from whence the orders emanated, the contacts between the domestic and overseas defendants, location of the "dissident identification" files and "blacklists," and other data relevant to the question of personal jurisdiction. This question will therefore be reserved pending discovery by plaintiffs and a subsequent motion by defendants if warranted.

 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 ...


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