Berlin Democratic Club v. Rumsfeld

• Decision Date: 17 March 1976
• Docket Number: Civ. A. No. 310-74.
• Citation: 410 F. Supp. 144
• Parties: BERLIN DEMOCRATIC CLUB et al., Plaintiffs, v. Donald H. RUMSFELD et al., Defendants.
• Court: U.S. District Court — District of Columbia

410 F. Supp. 144

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

Civ. A. No. 310-74.

United States District Court, District of Columbia.

March 17, 1976.

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COPYRIGHT MATERIAL OMITTED

John H. F. Shattuck, Melvin L. Wulf, American Civil Liberties Union, New York City, David F. Addlestone, Lawyers Military Defense Committee, Washington, D. C., for plaintiffs.

Earl J. Silbert, U. S. Atty., Royce C. Lamberth, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM AND ORDER

WILLIAM B. JONES, Chief Judge.

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, 590, 82 L.Ed. 845, 848 (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, 92 S.Ct. 2318, 33 L.Ed.2d 154 (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.¹ 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, 92 S.Ct. at 2322, 33 L.Ed.2d at 159. 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, 92 S.Ct. at 2323, 33 L.Ed.2d at 161; quoting from 144 U.S.App.D.C. 72, at 78, 444 F.2d 947, 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, 92 S.Ct. at 2326, 33 L.Ed.2d at 164.

Tatum is readily distinguishable from the instant case. All of the plaintiffs alleged 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...