Tatum v. Laird 444 F.2d 947

WILKEY, Circuit Judge:

On 17 February 1970, appellants, on behalf of themselves and others similarly situated, filed suit challenging the legality of what appellants term “surveillance of lawful civilian political activity by the U.S. Army,” which appellees describe as “gathering by lawful means, * * * maintaining and using in their intelligence activities, any information relating to potential or actual civil disturbances [or] street demonstrations.” Appellants sought a declaratory judgment that the Army’s present conduct is unconstitutional or otherwise illegal, concomitantly an injunction forbidding future similar activity, and the destruction of all such data hitherto illegally obtained. The United States District Court *949denied the requested relief and granted appellees’ motion to dismiss on the basis of pleadings, affidavits, and oral argument, without testimony of witnesses.

Appellants claim that the Army’s intelligence work involves undercover operations by military agents within the civilian community and organizations, maintenance of records at over a dozen regional and national record centers, and distribution to military units and to criminal investigative agencies of lists describing individuals and organizations who have publicly objected to governmental policies. Appellants claim that these domestic activities of the Army go far beyond any legitimate military need, exceed the Army’s statutory authority, inhibit political participation and debate, and deprive appellants and others similarly situated of the constitutional rights guaranteed by the First, Fourth, Fifth and Ninth Amendments, i. e., the right to free speech and association, and the right to petition the government for redress of grievances, and the right of privacy.

Appellees assert the constitutional and statutory authority and duty of the President to use such of the Armed Forces as he deems necessary to suppress any insurrection or domestic violence, and point to Defense Department directives regarding the planning for and employment of military resources in the event of civil disturbances, under which one of the responsibilities of the Army is to provide “essential planning, operational and intelligence data to the national military command center and to military service command centers on a timely basis to insure that the national command authorities and appropriate military service command authorities are adequately informed.”

For reasons stated hereafter, we find that this court and the District Court have jurisdiction, that there is a justiciable controversy, and that appellants have stated a claim in relation thereto. We therefore remand the case to the District Court for ascertaining essential relevant facts and the determination thereupon of whether any rights of the appellants have been infringed by any actions of the appellees which may be proved.

I. JURISDICTION

Appellants’ complaint in the District Court alleged jurisdiction to be based upon the existence of a federal question as contemplated by 28 U.S.C. § 1331 and the requisite $10,000 in controversy. On this appeal1 the Government contests the allegation of jurisdictional amount, contending that:

There is no evidence in the record that any of the plaintiffs have a claim in fact for any amount of money, much less a claim for an amount in excess of $10,000.

In response to this argument, appellants in essence admit that their claim is not capable of valuation in monetary terms, but argue essentially that where a challenge to a claimed deprivation of fundamental constitutional rights of intangible value is involved, the purposes for the jurisdictional amount requirement 23 are inapplicable and that such requirement should therefore not be applied to defeat federal jurisdiction. While there have been mounting expres*950sions of judicial concern over this seeming gap, caused by the jurisdictional amount requirement, in the power of the federal courts to entertain federal question cases of this nature, we find it unnecessary to reach this question in the instant case.3

As we recently held in Peoples v. United States Department of Agriculture: 4

The District Court for the District of Columbia has an independent source of jurisdiction in the legislation, passed by Congress, and codified in the

District of Columbia Code, 11 D.C. Code § 521, which" gives that court general equity jurisdiction, and venue where either party is a resident or found within the District of Columbia. This permits actions for declaratory judgment as well as injunction to be maintained against those whose office in the Federal Government establishes their official residence in the District. Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733 (1944); Nestor v. Hershey [138 U.S.App.D.C. 73], 425 F.2d 504, at 521-523 (1969).5

*951Furthermore, we note that since the Government did not contest the existence of the alleged jurisdictional amount in the District Court, appellants had no opportunity to attempt to sustain their allegation that $10,000 was in controversy, an endeavor at which they might well be successful under the doctrine that, particularly where purely injunctive relief is sought, the amount in controversy may be measured by either “the value of the right sought to be gained by the plaintiff * * * [or] the cost [of enforcing that right] to the defendant. -* * * ” 6 jn the instant case, it seems likely that if all the relief sought by appellants were granted, including enjoining the operation of the Army’s civilian intelligence system and the production and destruction of all records pertaining thereto “maintained by any and all military agencies within the United States and overseas,” the cost to the Army of complying with such a decree might well exceed $10,000.

Thus even apart from the applicability of 11 D.C.Code § 521, since we have found as detailed subsequently that appellants have otherwise stated an adequate and justiciable claim for relief, we would be constrained to permit appellants on remand the opportunity to meet their burden of satisfying the District Court that the requisite amount is in controversy.7

For the foregoing reasons we reject the Government’s claim that the dismissal should be affirmed for lack of subject matter jurisdiction.8

*952II. JUSTICIABLE CONTROVERSY

In recent years the Army and the National Guard have been called upon to act to preserve domestic peace against violent protests leading to civil disorders, a role for the military which was not unforeseen in our Constitution.9 Many violent protest's were aimed directly at military functions and installations themselves, as in ransacking Selective Service offices, barring troop and supply trains by prostrate bodies on the tracks, unlawful attempts to enter military bases or demonstrations thereon, and harassment of defense-oriented businesses. In executing other missions the Army confronted riotous mobs protesting matters unrelated to military operations, for example, the tragic riots in Detroit, Newark, and other of our large cities. During the period 1967-68 the National Guard was called upon eighty-three times and the Army four times to quell cases of civil disorder.

While these statistics relate to the period of civil disorders during which the Army operated the intelligence system which appellants complain violated their rights, we also note that in the period beginning with the use of the Army paratroops at Little Rock in 1957 the Army has been called upon under related constitutional and statutory provisions to preserve civil peace in order that certain groups might exercise their constitutional rights. The moral of this is that no matter who the persons or groups are giving voice to their protests against the established order, civil disturbance of one kind or another is likely to ensue; and, irrespective of the content or cause of the protest, the military need certain intelligence information to perform their mission “to enforce the laws of the United States” or “suppress * * * insurrection.”10

In performing this type function the Army is essentially a police force or the back-up of a local police force. To quell disturbances or to prevent further disturbances the Army needs the same tools and, most importantly, the same information to which local police forces have access. Since the Army is sent into territory almost invariably unfamiliar to most soldiers and their commanders, their need for information is likely to be greater than that of the hometown policeman.

No logical argument can be made for compelling the military to use blind force. When force is employed it should be intelligently directed, and this depends upon having reliable information —in time. As Chief Justice John Mar*953shall said of Washington, “A general must be governed by his intelligence and must regulate his measures by his information. It is his duty to obtain correct information; * * 11 So we take it as undeniable that the military, i. e., the Army, need a certain amount of information in order to perform their constitutional and statutory missions.12 The questions are what type of information the military need, how they should go about obtaining it, when they need it, and whether what the Army has done here has infringed any of appellants’ rights.

So much for the military’s mission and intelligence necessity. As for appellants’ contention that their rights, constitutional or otherwise, have been infringed, they have some difficulty in establishing visible injury, at least on this incomplete record. Appellants freely admit that they complain of no specific action of the Army against them, only the existence and operation of the intelligence gathering and distributing system, which is confined to the Army and related civilian investigative agencies. There is no evidence of illegal or unlawful surveillance activities. We are not cited to any clandestine intrusion by a military agent. So far as is yet shown, the information gathered is nothing more than a good newspaper reporter would be able to gather by attendance at public meetings and the clipping of articles from publications available on any newsstand.

Thus the instant case, at this juncture, involves no concrete, identifiable sanctions, no compelled self-identification (except to the extent that the Army may attend meetings thought to be for a faithful few), and no threat of publication. Turning to the authorities claimed to be relevant here, virtually all of the First Amendment cases cited where government activity was enjoined or struck down fall into one of three categories:

(1) Cases where some legal or criminal sanction was imposed or threatened to be imposed on persons who exercised their First Amendment rights.13

(2) Cases involving some element of government compulsion, either to testify regarding one’s political ideas or beliefs, or to identify oneself in order to exercise First Amendment rights.14

(3) Situations where the Government threatens to publicize the names of allegedly politically controversial persons for the purpose of inhibiting *954the exercise of their First Amendment rights.15

In view of the distinctions in this case from prior decisions, appellees argue that no justiciable controversy exists, i. e., that nothing has been done, that nothing is contemplated to be done, and even if some action by the Army against appellants were possibly foreseeable, such would not present a presently justiciable controversy.

This position of the appellees does not accord full measure to the rather unique argument advanced by appellants. While appellants do indeed argue that in the future it is possible that information relating to matters far beyond the responsibilities of the military may be misused by the military to the detriment of these civilian appellants, yet appellants do not attempt to establish this as a definitely foreseeable event, or to base their complaint on this ground. Rather, appellants contend that the present existence of this system of gathering and distributing information, allegedly far beyond the mission requirements of the Army, constitutes an impermissible burden on appellants and other persons similarly situated which exercises a present inhibiting effect on their full expression and utilization of their First Amendment rights of free speech, etc. The baleful effect, if there is one, is thus a present inhibition of lawful behavior and of First Amendment rights.16

Under this view of appellants’ allegations, under justiciability standards 17 it is the operation of the system *955itself which is the breach of the Army’s duty toward appellants and other civilians.18 The case is therefore ripe for adjudication. Because the evil alleged in *956the Army intelligence system is that of overbreadth, i. e., the collection of information not reasonably relevant to the Army’s mission to suppress civil disorder,19 and because there is no indication that a better opportunity will later arise to test the constitutionality of the Army’s action, the issue can be considered justiciable at this time.

Only recently this court decided Davis v. Ichord, in which an attack was made on the maintenance and potential use of files on political dissenters by the House Internal Security Committee. This court there held that no case or controversy was presented because the appellants had failed to establish standing to attack the present use of the files and did not show any concrete indication that the Committee’s files would be used against anyone in the future. Nevertheless, this court in Davis did indicate that “among the considerations pertinent to determining the existence of a chilling effect upon the exercise of First Amendment rights which give rise to a case or controversy are the source of the chill, the extent to which it focuses upon the conduct of those who allege it, and the likelihood that it will affect that conduct.” The court in Davis was concerned with the “source of the chill” in order to determine whether the threat of future in-

jury was sufficiently substantial to provide the necessary ripeness to the controversy.

Nevertheless, in view of this country’s long-established tradition against military involvement in civilian politics, we think it significant that here the “source of the chill” is the Army, as opposed to the situation in Davis where the House Committee could point to a legal basis for the collection of such files pursuant to its designated function to investigate propaganda. We think the Army has a legal basis for the collection of intelligence information relevant to its constitutional and statutory mission, but on the record before us we cannot say that the intelligence system as designed and operated does not go beyond that which would be justified by the Army’s mission. The Army system here is apparently of a much broader scope than the files involved in Davis, and we held in National Student Association v. Hershey20 that “the severity and scope of the alleged chilling effect on First Amendment freedoms” is a factor to be considered in determining justiciability. It is arguable that the existence of a system with the broad scope as alleged by appellants would affect the conduct of persons in the class that appellants claim to represent.21

*957Referring to our holding in Davis that the “source of the chill” is important in determining whether there is any inhibiting effect on the exercise of First Amendment rights, we think that there is a significant difference between investigative actions taken by a military agency in reference to civilians and similar investigative actions taken by a regular investigative agency of a civilian branch of the Government.22

One of the functions of a civilian investigative agency, such as the Federal Bureau of Investigation, is to compile information on law violators, agitators of violence, and possible subversives. It has always been recognized that this is a delicate function, and it is exercised under the direction of the Attorney General. Investigation is performed by men a majority of whom are lawyers or who have had considerable legal training, under the direction of lawyers in the Justice Department, and the information compiled is only usable and effective through court action. The FBI is powerless to imprison anyone or to affect his liberty in any way except through the action of the courts.

The Army or other military, in contrast, are not concerned with law violations. And, in sharp distinction to the FBI and other investigative agencies, they definitely command their own force to exercise at the will of their own commanders. The military are not accustomed to effecting their will through courts and legal processes. Indeed, the employment of military personnel in civil disorders itself implies at least a partial breakdown of law and order, a breakdown of normal processes of law through courts.

The compilation of data by a civilian investigative agency is thus not the threat to civil liberties or the deterrent on the exercise of the constitutional right of free speech that such action by the military is, because a civil investigative agency has no inherent power to act against an individual, that power always being subject to the well-defined restrictions of law and the approval of the courts. The military have no such re*958strictions; they have their own force (of incomparable power), they have their own commanders trained as soldiers not lawyers, the military’s vast size may make civilian control of individual or small unit actions more theoretical than actual, and the military is not accustomed to operating within the restrictions of law and the processes of courts.23

It is highly important for the safety of the country that to the extent consonant with the performance of the military’s mission a separation of sensitive information and military power be maintained, as a separation of match and powder. In an emergency or anticipation of an emergency the military power can be supplied the necessary information from civilian investigative agencies; these two ingredients, potentially dangerous when combined, can be put together by a responsible President and his Cabinet officers as the emergency demands. But to permit the military to exercise a totally unrestricted investigative function in regard to civilians, divorced from the normal restrictions of legal process and the courts, and necessarily coupling sensitive information with military power, could create a dangerous situation in the Republic.

The appellants have not had an opportunity to establish (and may never establish) their far-sweeping claims as to the character of the information gathered and the operation of the system established by the Army. We were informed by appellees’ counsel on oral argument that on 6 March 1970 the Secretary of the Army by directive to the Chief of Staff limited the intelligence activities here complained of and directed the personnel responsible to concentrate on the more important and likely sources and locales of violence. 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 appellants’ allegedly infringed constitutional rights. Appellants have, therefore, stated a claim upon which relief can be granted.

III. REMAND

Having found that this court and the District Court have jurisdiction, that a justiciable controversy exists, and that appellants have stated a claim upon which relief could be granted, we think the record now before us is much too incomplete for a court to determine the ultimate questions of whether the Army has infringed any rights of the appellants and whether appellants are entitled to any injunctive relief. We therefore remand the case to the District Court for the determination of the following principal (and any related) points:

1. The nature of the Army domestic intelligence system made the subject of appellants’ complaint, specifically the extent of the system, the methods of gathering the information, its content and substance, the methods of retention and distribution, and the recipients of the information.

*9592. What part, if any, of the Army domestic intelligence gathering system is unrelated to or not reasonably necessary to the performance of the mission as defined by the Constitution, statutes, military regulations, and as interpreted by actions under those written definitions of the mission.24

3. Whether the existence of any over-broad aspects of the intelligence gathering system, as determined above, has or might have an inhibiting effect on appellants or others similarly situated.

4. Such relief as called for in accordance with the above established law and facts.

Reversed and remanded.

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

While I concur in many of the pronouncements in the majority opinion I respectfully dissent from the result. My opinion is based on the facts of the ease which emerge from the pleadings, affidavits and the admissions made to the trial court. In the hearing before the trial judge, counsel admitted that in the facts upon which they based their complaint the named plaintiffs were not aggrieved by the acts of the appellees:

Our Plaintiffs this morning, for example, are not people, obviously, who are cowed and chilled; they’ve come into Court, but they have to represent millions of Americans not nearly as forward, as courageous, as willing as them to open themselves up to public investigation and public scrutiny. We’re not — you know, every citizen is not a Tom Payne; they’re few and far between.

Tr. 17 (emphasis added).

This admission that the governmental activities they attack did not cause any substantial infringement of their constitutional rights constitutes a basic denial of practically their whole case. There still remains the allegation that the existence of the files and information operates to deny them their constitutional right of association with others who are chilled, but the chill to this amorphous group in turn is grounded in the unrealistic and speculative fear that the Government will improperly use the information against them.1 The critical *960information relates to reports of public activities of individuals who publicly participate in gatherings and demonstrations which tend to civil disorders and in related activities.2 Appellees gathered this information from public sources and open meetings in much the same manner that newspapers cull information. However, there is one difference, 1. e., the newspapers publish much of the information they obtain, whereas the Army merely retains it for possible use by it in the future and this may not necessarily include any publication of the information. Such information is intended to be used to help suppress civil disorders in the event the military are called out in conformance with statute 3 for that purpose. Other obvious proper uses by the Army for such information may be judicially noticed from public incidents of the period and would include helping prevent and solve crimes involving destruction, threat of destruction, or *961theft of military draft records, military supplies, military research and other Government property and facilities at draft centers, armories, military bases, forts, arsenals, military training centers and military suppliers and research centers operating under military contract.

In the instant complaint there are no allegations or claims that any of the information gathered by the Army has been used in a manner that has injured plaintiffs or imposed on them any penalty attributable to their exercise of their First Amendment rights. In fact, appellants acknowledge in their brief that the uses to which the collected information might be put by the Army are unknown:

In the case at bar there is something more subtle at stake than the threat of prosecution and criminal sanctions present in Dombrowski, supra. There is a threat of unknown surveillance, unknown purpose, and unknown future use of the information gathered and recorded in connection with the defendants’ civilian intelligence network. This creates a substantial chilling effect upon the free and uninhibited exercise of First Amendment rights.

(Emphasis added) (App. br. p. 40).

£>iich indefinite and abstract assertions of amorphous fears do not present a case involving facts of a concrete nature. Appellants’ admission, supra, that the “threat” of which they complain is “unknown,” as the latter word is used by appellants, means that the threat is

“Not knowable * * * cannot be comprehended * * * beyond the limits of human experience, or of human powers of apprehension or understanding.” Webster’s International Dictionary (2d ed.)

Such indefinite claims of highly visionary apprehensions that are admittedly based in abstractions which cannot be comprehended, or are beyond human experience or understanding, do not present a case involving facts of sufficient realism and definiteness to confer jurisdiction on the court to make a sweeping constitutional decision affecting important activities of the federal Government. There is nothing more here than a highly abstract claim based on an imaginary fear that governmental power to collect information for a valid purpose will be misused for an improper purpose. Similar fears might exist with respect to any governmental power. All power is susceptible of misuse, but that truism when coupled with unfounded fear alone is not sufficient to make out a case for judicial jurisdiction. What is necessary before a court is authorized to assume jurisdiction is some allegation from which it can be concluded that the apprehension of the misuse of governmental power is a realistic possibility. Because of the absence of any such allegation here it is my view that a proper case or controversy does not exist. Davis v. Ichord, 143 U.S.App.D.C. -, 442 F.2d 1207 (1970); Golden v. Zwickler, 394 U.S. 103, 108, 110, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969).

Since the claim of the named plaintiffs does not present a case or controversy, nothing is added by the fact that it has been framed as a class action. Davis v. Ichord, supra, at 1215 n. 19. See generally 2 Barron & Holtzoff, Federal Practice and Procedure § 567 at 308 (Wright rev. 1961); 3 J. Moore, Federal Practice ,jf24.04 (1969). As Judge Johnsen remarked in Kansas City, Mo. v. Williams, 205 F.2d 47, 51 (8th Cir.), cert. denied, 346 U.S. 826, 74 S.Ct. 45, 98 L.Ed. 351 (1953):

It is of course necessary generally • that a plaintiff be able to show injury to himself in order to entitle him to seek judicial relief. He cannot.be a mere volunteer and ask judicial intervention simply “because someone else may be hurt”, but he “must present facts sufficient to show that his individual need requires the remedy for which he asks.” McCabe v. Atchison, T. & S. F. Ry. Co., 235 U.S. 151, 162, 164, 35 S.Ct. 69, 71, 59 L.Ed. 169.

Moreover, even if I were to agree with the majority that appellants’ claim was ripe, I would seriously question whether *962the action was an appropriate class action. When one considers the great number of people that the named plaintiffs seek to represent, their highly varied backgrounds and activities, and that it is the constitutional right of the individual that is sought to be protected, it is obvious that a great many highly individualized questions would be presented. The record of each protestor, and each protest activity, might have to be considered separately and might necessarily result in different determinations as to whether the Army was justified in making a record of his public activities for possible future reference. Under such circumstances there is a serious question whether the complaint presents “questions of law or fact common to the class.” Fed.R.Civ.P. 23(a) (2) 4 See generally Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. denied, Troster, Singer & Co. v. Green, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). The importance of this requirement is heightened by recognition of the vast numbers of people appellants seek to have rise or fall on the strength of the showing they make in this suit. See Fed.R.Civ.P. 23 (c) (3).

It should also be noted that it is Congress that is empowered by the Constitution “to make rules for the Government and regulation of the land and Naval forces” (U.S.Const. Art. I, § 8, cl. 14) and judicial notice may be taken that Congress is presently conducting public hearings upon the policy questions involved in this very area where the named plaintiffs here seek judicial intrusion.5

Finally, the trial court here concluded:

The Court holds that what in effect the plaintiffs are complaining of here is that the Army is keeping the type of information that is available to all news media in this country, covered by all news media in this country, and which is in the morgues of the newspapers in this country and magazines,6 and the Court holds that they state no *963cause of action; they show no unconstitutional action on the part of the Army; they show no threats to their rights. And I will sustain the motion to dismiss and I will deny the preliminary injunction. * * *

It is my view that we should affirm the action of the trial court and wait until a case appears involving some person who alleges a more tangible basis for the claimed threat to his rights. Certainly since these investigative activities began in 1965, if they were the great peril to the populace that appellants argue, there must be one individual who can be found to complain of an injury caused by a concrete threat of the actual misuse of such information. To the extent indicated above, I respectfully dissent.