Dellums v. Smith

• Decision Date: 03 November 1983
• Docket Number: No. C-83-3228 SAW.,C-83-3228 SAW.
• Citation: 573 F. Supp. 1489
• Parties: Ronald V. DELLUMS; Eleanor Ginsberg; Myrna Cunningham; Plaintiffs, v. William French SMITH, individually and in his official capacity as Attorney General of the United States; D. Lowell Jensen, individually and in his official capacity as Assistant Attorney General, Criminal Division of The United States Department of Justice; Defendants.
• Court: U.S. District Court — Northern District of California

573 F. Supp. 1489

Ronald V. DELLUMS; Eleanor Ginsberg; Myrna Cunningham; Plaintiffs, v. William French SMITH, individually and in his official capacity as Attorney General of the United States; D. Lowell Jensen, individually and in his official capacity as Assistant Attorney General, Criminal Division of The United States Department of Justice; Defendants.

No. C-83-3228 SAW.

United States District Court, N.D. California.

November 3, 1983.

COPYRIGHT MATERIAL OMITTED

Jules Lobel, University of Pittsburgh Law School, Pittsburgh, Pa., Ellen Yaroshefsky, Michael D. Ratner, Margaret L. Ratner, Sarah Wunsch, Peter Weiss, Center for Constitutional Rights, New York City, Marc Van Der Hout, National Lawyers Guild, San Francisco, Cal., for plaintiffs.

J. Paul McGrath, Asst. Atty. Gen., Vincent M. Garvey, David H. White, Attys., Dept. of Justice, Washington, D.C., Joseph P. Russoniello, U.S. Atty., John Barg, Asst. U.S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM FOR JUDGMENT

WEIGEL, Senior District Judge.

SUMMARY OF DECISION

The plaintiffs in this case are three individuals more fully identified below. The defendants are William French Smith, Attorney General of the United States and D. Lowell Jensen, Assistant Attorney General. The plaintiffs sue in this Court because one of them, Ronald V. Dellums, alleges residence within the venue of the United States District Court for the Northern District of California. Jurisdiction to decide the case vests with this Court because plaintiffs' claims are based on federal law. 28 U.S.C. § 1331. Defendants raise no question as to jurisdiction and venue.

Plaintiffs ask for an order requiring the Attorney General to conduct a preliminary investigation as to whether the President, the Secretary of State, the Secretary of Defense and other federal executive officers have violated the Neutrality Act, a federal criminal law, by supporting paramilitary operations against Nicaragua.

Plaintiff Ronald V. Dellums claims to be injured by the refusal of the Attorney General to make a preliminary investigation because it has deprived him of his constitutional right as a member of Congress to vote on the question as to whether the United States should make war on Nicaragua. Plaintiff Eleanor Ginsberg claims that the alleged paramilitary training near her home in Florida constitutes a nuisance and disrupts her enjoyment of her property. Plaintiff Myrna Cunningham complains that while serving as a doctor in Nicaragua, she was kidnapped and raped by members of paramilitary forces supported by the United States.

Plaintiffs rely upon the Ethics in Government Act, (28 U.S.C. §§ 591 et seq.) which declares that the Attorney General "shall conduct an investigation whenever he receives information sufficient to constitute grounds to investigate" that any designated federal officer has committed a violation of federal criminal law.

The plaintiffs allege that they have presented sufficient information to the Attorney General to require him to investigate whether there have been criminal violations of any or all of three Acts of Congress: the Neutrality Act (18 U.S.C. § 960) which makes it a crime to organize or launch a paramilitary expedition against a country with which the United States is not at war; an Act of Congress prohibiting conspiracy to injure property of a foreign government (18 U.S.C. § 956), and another Act of Congress prohibiting unlicensed shipment of firearms (18 U.S.C. § 922).

Plaintiffs focus on alleged violations of the Neutrality Act, 18 U.S.C. § 960, which declares that:

Whoever, within the United States, knowingly begins or sets on foot or provides or prepares a means for or furnishes the money for, or takes part in, any military or naval expedition or enterprise to be carried on from thence against the territory or dominion of any foreign prince or state, or of any colony, district, or people with whom the United States is at peace, shall be fined not more than $3,000 or imprisoned not more than three years, or both.

The Attorney General does not deny that on January 27, 1983, he received from plaintiffs in writing the following information:

That in November 1981, at the request of President Reagan and other persons in his administration, the CIA presented a plan covertly to aid, fund and participate in a military expedition and enterprise utilizing Nicaraguan exiles for the purpose of attacking and overthrowing the government of Nicaragua;

That the plan was reviewed and approved in November 1981 by various members of the National Security Council, including, but not limited to Ronald Reagan, William Casey, Alexander Haig, Jr., Thomas Enders Assistant Secretary of State, Caspar Weinberger and Nestor Sanchez Assistant Secretary of Defense;

That the plan was and is being implemented and includes:

(1) providing at least $19 million to finance covert paramilitary operations against the people and property of Nicaragua;

(2) financing the training of invasionary forces in the United States and Honduras, including former Somoza National Guardsmen, various terrorist groups and others;

(3) conducting intelligence activities by the CIA to determine the specific targets for such anti-Nicaraguan terrorist forces;

(4) using Honduras as a base for invasionary forces;

(5) supporting organizations of Nicaraguan and Cuban exiles based in the United States which, in turn, train and support invasionary forces on United States soil; and

(6) sending hundreds of CIA officers and agents and other U.S. government agents to Honduras and Costa Rica to participate and assist in covert military operations against the people and government of Nicaragua;

Plaintiffs claim that the Attorney General's receipt of the foregoing information triggered his duty, under the Ethics in Government Act, to conduct a preliminary investigation. The Attorney General refused to conduct any investigation, stating that the material provided "does not constitute specific information of a federal offense `sufficient to constitute grounds to investigate.'" Plaintiffs then brought this action to compel the Attorney General to perform his statutory duty and have filed a motion for summary judgment. Defendants have filed a cross-motion to dismiss the complaint.

In several previous cases, courts have declined to allow private persons to bring a direct challenge to the legality of Administration actions in Latin America under the Neutrality Act. They refrained from deciding these cases on two principal grounds, namely, (1) that it is extremely difficult or impossible for a court to discover exactly what is happening in foreign countries such as Nicaragua and (2) that the precise extent to which the Neutrality Act limits the power of the President to conduct foreign policy is best determined through political avenues available to Congress and the President.

This case is different.

Plaintiffs do not ask the Court to declare illegal any action by the President or his subordinates. They ask only that the Attorney General be required to make an investigation called for by the Ethics in Government Act. That statute unambiguously directs the Attorney General to conduct a preliminary investigation for a period not to exceed ninety days upon receiving specific information from a credible source that a federal criminal law has been violated by designated federal executives. The Ethics in Government Act goes on to provide that the Attorney General must call for appointment of independent counsel if the Attorney General finds reasonable grounds to believe that further investigation or prosecution is warranted or if ninety days elapse from receipt of the information without his determination that there are no reasonable grounds to believe that further investigation or prosecution is warranted.

The Attorney General does not seriously dispute that the information submitted by plaintiffs on January 27, 1983 is sufficiently specific, nor does he present any reason to suggest plaintiffs are not credible sources.

The Attorney General argues that the Court should not hear the case because plaintiffs as private persons have no right to sue to enforce the Ethics in Government Act. The Court, after careful consideration, concludes otherwise. The Attorney General's other principal argument is that this case calls for decision on a political question and is therefore not justiciable. The argument is invalid. The beginning and end of plaintiffs' demand is to require no more than that the Attorney General carry out the mandate of Congress to investigate when presented with specific information from credible sources that named federal government officials have violated criminal law.

If, as the Attorney General suggests, a court cannot order him to conduct an investigation upon the request of a credible person or persons supplying specific information, then the Ethics in Government Act is rendered meaningless and its salutary purposes are defeated. Those purposes are manifest from the clear provisions of the statute itself, as well as from the relevant legislative history and Congressional Record.

One such purpose is to deny the Attorney General the power to refuse to make at least a preliminary investigation upon receipt of reasonably specific information from credible sources of violation of federal criminal law by members of the same branch of the government he serves. Another of the statute's purposes is to provide, in proper cases, for prosecution by independent counsel free from conflict of interest by virtue of ties to the executive. Yet another purpose is to ensure that no one, however high or important a position he holds in the executive branch, is insulated from the investigation called for by the provisions of the Ethics in Government Act. Finally, the underlying purpose — perhaps the most salient of all — is to help ensure that neither Congress nor the public shall be denied the facts when substantial claims of...