Number 27, this headquarters, dated 10 July 1974 as amended by Court-Martial Convening Order Number 49, this headquarters, dated 20 August 1974 as amended by Court-Martial Convening Order Number 50, this headquarters, dated 20 August 1974 was arraigned and tried: Specialist Four Louis M. Stokes, 550-82-2294, U.S. Army, HHD, Area Maintenance and Supply Facility, APO 09086. Charge I: Violation of the Uniform Code of Military Justice, Article 91. Specification.-In that Specialist Four Louis M. Stokes, United States Army, Headquarters and Headquarters Detachment, United States Army Communications Command-Europe. Area Maintenance and Supply Facility, having received a lawful order from Master Sergeant James R. Lamar, his superior noncommissioned officer, to get a haircut, did, at Mannheim, Germany, on or about 0800 hours, 17 April 1974, willfully disobey the same. Charge II. Violation of the Uniform Code of Military Justice, Article 90. Specification.-In that Specialist Four Louis M. Stokes, United States Army, Headquarters and Headquarters Detachment, United States Army Communications Command-Europe, Area Maintenance and Supply Facility, having received a lawful command from Captain William J. Schuck, his superior commissioned officer, to report to his office at 0800 hours, Monday 22 April 1974, with a haircut did, at Mannheim, Germany, on or about 0800 hours, 22 April 1974, willfully disobey the same. PLEAS To the Specifications and Charges : Not Guilty. FINDINGS Of the Specification of Charge I and Charge I: Guilty. SENTENCE To be reduced to the grade of E-1; to forfeit $217.00 per month for four (4) months; to be confined at hard labor for four (4) months. (No previous convictions considered.) The sentence was adjudged on 18 September 1974. ACTION DEPARTMENT OF THE ARMY, HEADQUARTERS, USA COMBAT EQUIPMENT GROUP, EUROPE, APO New York 09166, November 23, 1974. In the foregoing case of Specialist Four (E-4) Louis M. Stokes, 550-82-2294, U.S. Army, Headquarters and Headquarters Detachment, Area Maintenance and Supply Facility, APO New York 09086, the sentence is disapproved and the charges are dismissed. As the accused has served a portion of the sentence to confinement at hard labor and is presently in the United States, a rehearing will not be ordered. By order of Colonel Davaz. CARL G. DAVAZ, Colonel, Ord C, Commanding. B. L. CHANDLER, Captain, AGC, Adjutant. Official. EXHIBIT C CERTIFICATE " I certify that I, Thomas W. Bowen, Brigadier General, US Army, am the Deputy Chief of Staff for Intelligence, USAREUR and 7th Army. That in such capacity, I have direct major staff cognizance of all Army telephone and electronic monitoring in USAREUR which might be conducted by or on behalf of US Army, Europe, for intelligence purposes. The only division of my element responsible in any way for telephone or electronic monitoring in USAREUR is the Counterintelligence Division. That after an exhaustive search and inquiry of Counterintelligence records, I have determined that no such telephone or electronic moni toring has been conducted against Louis M. Stokes, William H. Schaap, Robert S. Rivkin, Ellen Ray, Tomi Schwaetzer on telephones (06221): 29582, 14149 at 6900 Heidelberg 1, Marzgasse 7 or (06221) 28249 which I am informed is Mr. Schaap's home phone or (06223) 3316 which I am informed is the phone of one Mary Jo Van Ingen Liebowitz but is used by Tomi Schwaetzer or (030) 781-5668 which I am informed is the telephone number of Forward in Berlin, FRG, or on the premises of those persons or concerning in any manner whatever, Louis M. Stokes or the case of United States v. Louis M. Stokes from 19 April 1974 to the date this certificate. I further certify that any electronic or telephone monitoring inside of the continental United States is outside of US Army, Europe, authority. Therefore, neither I nor my element have knowledge of any information resulting from, or any acts of, electronic or telephone monitoring of telephone numbers (202) 659–1138 and 1139 which I am informed are at the Washington, DC, office of the Lawyers Military Defense Committee at 1346 Connecticut Avenue, NW, concerning in any manner whatever, Louis M. Stokes or the case of United States v. Louis M. Stokes from 19 April 1974 to the date of this certificate. THOMAS W. BOWEN, Sworn to and subscribed before me this 5th day of August 1974. WILLARD E. NYMAN III, A commissioned officer on active duty with the United States Army, presently serving as a member of the Judge Advocate General's Corps with powers of a notary public pursuant to 10 USC 936. EXHIBIT D I certify that I, Thomas W. Bowen, Brigadier General, US Army, am the Deputy Chief of Staff for Intelligence, USAREUR and 7th Army. In reference to my certificate in the case of United States v. Louis M. Stokes, dated 5 August 1974, I used the wording "telephone or electronic monitoring." This wording means to me, all telephonic and electronic surveillance to include the acts of intercepting or listening to or recording or transcribing any telephonic or other conversation by use of any electronic, mechanical, or other device. THOMAS W. BOWEN, Sworn to and subscribed before me this 7th day of August 1974. WILLARD E. NYMAN III, A commissioned officer on active duty with the United States Army, presently serving as a member of the Judge Advocate General's Corps with powers of a notary public pursuant to 10 USC 936. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CIVIL ACTION NO. 310-74 BERLIN DEMOCRATIC CLUB, ET AL., PLAINTIFFS v. JAMES R. SCHLESINGER, ET AL., DEFENDANTS AFFIDAVIT OF MARK E. SCHREIBER Mark E. Schreiber, being duly sworn, hereby deposes and says: 1. I am a graduate of the Harvard Law School, member of the Bar of the Commonwealth of Massachusetts, and the Federal District Court of Massachusetts. Since Mid-July, 1974 I have been employed as a staff attorney for Lawyers Military Defense Committee (hereafter LMDC), Heidelberg, West Germany. 2. In this capacity I have represented members of the American Armed Forces located in West Germany in courts-martial, administrative boards, and nonjudicial punishment (Article 15) proceedings, as well as advising soldiers as to methods of filing complaints and other administrative remedies provided by regulation. 3. In the course of this employment, and by studying the various documents, appendices and affidavits in the above captioned case, I have been made aware of some of the means whereby the Army Military Intelligence, the * * * Group, and its subordinates have undertaken overt and covert surveillance of the LMDC. 4. The existence of wiretap surveillance by or on behalf of the Army in West Germany has caused me to file wiretap discovery motions pursuant to 18 U.S.C. Sec. 3504 in recent courts-martial cases. The drafting, filing, and arguing such motions have occupied numerous hours, and inordinate amounts of time. 5. Mail routinely arrives at the office with the impression that it has been opened. Letters from soldiers located in West Germany within a few hours drive, who, for instance, inquire as to conscientious objector hearings or Chapter 13 boards, have often taken exceedingly long periods from the date of postmark to arrive. On the other hand, mail from non-clients, i.e. lawyers, etc., from the east coast of the United States usually arrives much sooner, with certain exceptions. 6. There are frequently strange hums, whistles, buzzes on the office telephone line. On numeorus occasions telephone conversations with soldier clients have been inexplicably cut off. 7. The possiblity that client confidences may not be assured by using mail or telephones drastically limits the means of attorney client communications. Numerous soldiers have voiced to me severe reservations in speaking about their cases over the phone. Soldier clients must often take trains of several hours duration to reach this office so that I may meet with them personally on matters which might otherwise be handled on the phone or through the mail. For some clients whose station is not within a short train ride, such as recent cases in Nuremberg and Schweinfurt, useful communication in preparing a defense is minimized. 8. It has recently been brought to my attention that while one of the lawyers of LMDC was in Italy conducting a defense, that ". . . the Heidelberg office was left in charge of a paid U.S. Army source. ..." 9. The spectre presents itself of military intelligence having had access to innumberable case files and client confidences. Lawyers for LMDC have been in Naples, Italy on several occasions and for extended periods within the last year representing U.S. sailors in a complicated set of courts-martial. One of the attorneys, Willam H. Schaap, has been in Naples since the third week in September, 1974, involved in these cases, and has just returned to Heidelberg, 10. It is now necessary for me to attempt to determine 1) which lawyers for LMDC were in Naples, Italy, at any time within the last year since those cases began, 2) which other lawyers were then present in Heidelberg, 3) at what point and for what periods was that lawyer(s) not present in Heidelberg, including myself, 4) at what point and for what period did anyone other than staff lawyers have access to the LMDC office, 5) what appellate action, requests for remand, reversal or vacation, or other judicial remedies on which LMDC cases should now be undertaken. This inquiry has now commenced and will necessarily involve a great deal of time and expense. City of Heidelberg, Federal Republic of Germany, MARK E. SCHREIBER. Signed and sworn to before me this 5th day of December 1974 at Heidelberg, Germany. JAMES C. SAVAGE III, Captain, JAGC, Assistant SJA. A commissioned officer on active duty with the United States Army, presently serving as a member of the Judge Advocate General's Corps, with powers of a notary public pursuant to 10 USC 936. EXHIBIT 5 UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION CIVIL ACTION NO. 39065 ABDEEN M. JABARA, PLAINTIFF v. CLARENCE KELLEY, ET AL, DEFENDANTS MEMORANDUM OPINION This matter is before the court on the plaintiff's motion for leave to file a first amended complaint. Attached to the motion is a copy of the proposed amended complaint. The facts of this case can be found in this court's opinion in Jabara v. Kelley, 62 F.R.D. 424 (E.D. Mich. 1974). Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to file an amended pleading "shall be freely given when justice so requires." The major differences between the original complaint and the proposed complaint are (1) a new claim for wiretap damages under 18 USC § 2520; and (2) factual allegations which “flesh out” the contentions contained in the original complaint. The defendants oppose this motion, principally contending that the proposed amendment fails to state a legally sufficient claim and that the amendment is not timely. The court is of the opinion that the proposed amendment is timely. This case has been proceeding slowly, due to the complexities of the issues, and the case is still in a stage wherein the filing of an amended complaint will not prejudice the defendant. The basis for much of the material contained in the amendment were only recently revealed to the plaintiff by the defendants. Moreover, as the plaintiff points out, the basic nature of the complaint will not be charged by the amendment. Nor is the court convinced by the defendants' argument that the proposed complaint is simply a basis for more discovery and that they will thereby be prejudiced by the granting of this motion. As the court has noted, the proposed amendment does not materially change the nature of the plaintiff's complaints. The court does not ascribe "discovery" as a motive for the plaintiff's amendment, but, rather, believes that the amendment is offered in order to conform the complaint to facts now in the plaintiff's possession. Moreover, the court has been compelled to oversee the plaintiff's discovery in this case to a greater extent than in most cases. The court believes that it can adequately protect the defendants from impermissible discovery. If anything, the proposed amendment would aid the court in understanding the nature and extent of the plaintiff's claims and would thereby facilitate this court's discovery determinations. The defendants also contend that the actions alleged in the amendment were lawful and thus, the plaintiff has failed to state a legally sufficient claim. The defendants argue that the wiretaps were lawful "national security electronic surveillances," and thus not subject to the damages provision of § 2520 or for damages under the First, Fourth, Fifth and Ninth amendments to the Constitution. In oral argument on this motion, the defendants contended that the surveillance involved in this case was "foreign", and thus lawful. They clarified their position on this motion by stating that they wanted the court, in ruling on this motion, to decide whether foreign intelligence surveillance is lawful. Even were the court disposed to make a ruling on this issue at this time, the court would first have to determine whether the surveillance was, in fact, authorized "national security electronic surveillance." The court does not believe that the record before it is adequate to make either the factual or legal determination necessary to support the defendants' position. (In deciding this motion the court did not examine or utilize the in camera exhibits submitted by the Government on December 16, 1974.) Moreover, such determinations would go to the very core of this case and the court does not believe that such important issues should be resolved at this stage of the proceedings. The defendants believe that an early resolution of these issues would simplify the case. Be that as it may, the court is not inclined to make an early determination in order to simplify the case, at the possible expense of the plaintiff's rights. In a case of this nature, it is especially essential for the court to have all of the facts before ruling on such important issues. While the defendants claim that there is no need to "flesh out" the allegations in the original complaint, the court sees no harm in allowing the plaintiff to do so. The plaintiff's motion for leave to file a first amended complaint is granted. An appropriate order shall be submitted. [Excerpts From Hearings Before the Subcommittee on Administrative Practice and Procedure of the Committee on the Judiciary, U.S. Senate, 92d Congress, 2d session on Warrantless Wiretapping, June 29, 1972] Mr. MARONEY. No, I do not think it has little standing. I think it is axiomatic that the more distribution you give to secrets, the less secrecy you have. It is certainly more desirable if you have sensitive information if you are able to restrict it in the closest possible way. The Court recognizes that it may be difficult to distinguish between domestic and foreign unlawful activities directed against the Government of the United States where there is collaboration in varying degrees between domestic groups and organizations and agents or agencies of a foreign power. The committee has asked that we address ourselves to the question of what level of foreign dominance and control of a domestic group would be considered sufficient to bring the group into the area of foreign activities which the Court has not yet ruled upon. The Keith decision has suggested a standard of significant connection with a foreign power, its agents or agencies. We do not interpret this as meaning casual, unrelated contacts and communications with foreign governments or agencies thereof. We would not try to apply this standard without the presence of such factors as substantial financing, control by or active collaboration with a foreign government and agencies thereof in unlawful activities directed against the Government of the United States. Obviously, such factors will be present in a very minimum number of situations. I wish to assure the committee on behalf of the Attorney General, that the Department of Justice accepts both the letter and the spirit of the Court's ruling in the Keith case. Senator KENNEDY. What do you think the spirit of the Court's ruling in the Keith case is? Mr. MARONEY. Well, I think the spirit of the case is that where you are dealing with wholly domestic organizations that may bring into play first amendment considerations, the first amendment considerations outweigh the governmental necessity in securing warrantless electronic surveillance and require that the Government follow the provisions of title III in the Court-authorized warrant. |