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ALLIANCE TO END REPRESSION v. CITY OF CHICAGO

March 30, 1982

ALLIANCE TO END REPRESSION, ET AL., PLAINTIFFS,
v.
CITY OF CHICAGO, ET AL., DEFENDANTS. AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS, V. CITY OF CHICAGO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Getzendanner, District Judge.

       FINDINGS OF FACT AND CONCLUSIONS OF LAW CONCERNING
     SETTLEMENT AGREEMENTS WITH THE CITY OF CHICAGO AND THE
                      SECRETARY OF DEFENSE

These proposed findings of fact and conclusions of law are submitted jointly on behalf of the plaintiff proponents of two settlement agreements entered into between all named plaintiffs in the ACLU case, certain named plaintiffs in the Alliance case (hereinafter "the participating Alliance plaintiffs"), and certain defendants in both cases. One settlement agreement is with the City of Chicago and certain of its employees (hereinafter "the City of Chicago defendants") identified in Appendix C to the Agreed Order, Judgment and Decree embodying that settlement which was filed with the Court on June 12, 1981 and a copy of which is attached hereto as Appendix I (hereinafter the "City of Chicago Settlement").*fn* The other settlement agreement is with defendants the Secretary of Defense, Richard Norusis, Thomas Filkins, and Gerald Borman (hereinafter "the Department of Defense defendants"). The proposed settlement with the Department of Defense defendants is embodied in a Joint Motion and Stipulation which was filed with the Court on July 2, 1981, and a copy of which is attached hereto as Appendix II (hereinafter the "Department of Defense Settlement").*fn* The identity of the Alliance plaintiffs who join in the proposed settlements is shown on Appendix A to the City of Chicago Settlement and on Exhibit A to the Department of Defense Settlement. The City of Chicago defendants and the Department of Defense defendants are sometimes hereinafter referred to collectively as "the settling defendants."

I. FINDINGS OF FACT

A. The Cases

B. Parties

2. The 32 Alliance named plaintiffs, 14 of which are organizations and 18 of whom are individuals, include churches, political groups, civil liberties organizations, and individual political, community, and religious activists.

3. Initial Alliance defendants included officials and employees of the City of Chicago and the Chicago Police Department. The City of Chicago was added as an Alliance defendant on November 19, 1979.

4. On July 8, 1977, Alliance plaintiffs added as defendants, in their official capacities only, certain federal officials, including the Attorney General, the Director of the Federal Bureau of Investigation ("FBI"), the Director of the Central Intelligence Agency ("CIA"), and the Secretary of Defense. On January 28, 1980, Alliance plaintiffs added as defendants the United States Department of Justice, the FBI, and the CIA.

5. The 24 ACLU named plaintiffs, 10 of which are organizations and 14 of whom are individuals, include community groups, religious groups, civil rights and civil liberties groups, and individual community and political activists, lawyers, journalists and public officials.

6. Initial ACLU defendants included the City of Chicago and various city officials, the Attorney General of the United States and various FBI officials, and the Department of Defense defendants.

7. On December 27, 1979, ACLU plaintiffs added as defendants the United States Department of Justice and the FBI.

8. On August 11, 1981, this Court 91 F.R.D. 182 approved a settlement of all claims against the federal defendants in both cases except claims against the Department of Defense defendants.

C. Jurisdiction

9. Jurisdiction in these cases is asserted on the basis of 28 U.S.C. § 1331 and 1343, 18 U.S.C. § 2520, and 5 U.S.C. § 552a; and declaratory relief is sought pursuant to 28 U.S.C. § 2201 and 2202.

D. Claims

10. Plaintiffs in both cases claim that the settling defendants have conducted surveillance of, and compiled dossiers on, plaintiffs' lawful political and other lawful activities; gathered information about plaintiffs by unlawful means, including warrantless wiretaps and break-ins, unlawful use of infiltrators and informers, and by other unlawful means; disrupted and harassed plaintiffs' lawful activities; and that defendants have committed these alleged wrongs against members of the plaintiff classes, all as part of a continuing course and pattern of alleged illegal conduct.

11. Plaintiffs claim that this alleged conduct violates their rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, 18 U.S.C. § 2510-20, and 5 U.S.C. § 552a.

12. The relief asked for on behalf of the named plaintiffs and plaintiff classes in both cases includes a declaration by the court that the conduct complained of is unconstitutional, and an injunction prohibiting the continuation of such conduct.

13. No damages are sought on behalf of the plaintiff classes in either case. The named plaintiffs ask for monetary damages against certain of the defendants.

14. In both lawsuits the settling defendants denied all allegations of unlawful government intrusions. Except as noted in the following paragraph, no findings of fact have been made by the Court relating to the allegations made against any of the defendants.

15. In connection with motions for sanctions to compel discovery in the Alliance case, the Court held that the plaintiffs had made a prima facie showing as to certain material allegations in the complaint against the City of Chicago defendants, and that these defendants had the burden of showing that they had not engaged in the activities described therein.

E. History of Litigation

16. Both cases have been actively litigated and sharply contested throughout the years since they were filed.

17. The City of Chicago defendants' motion to strike and dismiss the complaint in the Alliance case was denied May 16, 1975. 407 F. Supp. 115 (N.D.Ill.). The motion of defendants Mayor of Chicago and Chicago Police Board to dismiss the Alliance plaintiffs' First Amended Complaint was denied on September 12, 1975. The motion of defendants Rochford, Ware and Murphy to strike certain paragraphs of Alliance plaintiffs' First Amended Complaint was denied on September 12, 1975. The City of Chicago defendants' motion to strike paragraph 84 of Alliance plaintiffs' First Amended Complaint was denied on March 31, 1976. The motion to strike and dismiss the Alliance plaintiffs' First Amended Complaint as to 70 named Chicago Police defendants was denied on November 10, 1976. Defendant City of Chicago's motion to dismiss Alliance plaintiffs' Second Amended Complaint was denied on October 15, 1980.

18. A motion to dismiss by the City of Chicago defendants in the ACLU case was denied on May 26, 1976. 431 F. Supp. 25 (N.D.Ill. 1976). A motion by the City of Chicago to reconsider that denial was denied on October 1, 1976.

19. A motion by the Department of Defense defendants to dismiss the complaint in the Alliance case was denied November 15, 1977.

20. A motion to dismiss by the Department of Defense defendants in the ACLU case was denied May 26, 1976.

21. On March 25, 1976, the Court certified the following two plaintiff cases in the Alliance case:

(a) The plaintiff individuals.

The class represented by plaintiff individuals consists of all residents of the City of Chicago, and all other persons who are physically present within the City of Chicago for regular or irregular periods of time, who engage or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been within the last five years, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic, electronic, or physical surveillance, summary punishment, harassment, or dossier collection, maintenance, and dissemination by defendants or their agents.

(b) The plaintiff organizations.

The class represented by plaintiff organizations consists of all organizations located or operating in the City of Chicago who engage or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been within the last five years, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or verbal coercion, photographic, electronic, or physical surveillance, summary punishment, harassment, or dossier collection, maintenance, and dissemination by defendants or their agents.

22. On May 24, 1976, the Court certified the following two plaintiff classes in the ACLU case:

(a) The plaintiff individuals.

The class represented by plaintiff individuals consists of all residents of the City of Chicago, and all other persons who are physically present within the City of Chicago for regular or irregular periods of time, who engage or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been, are now, or hereafter may be, subjected to or threatened by alleged infiltration, physical or verbal coercion, surveillance, or dossier collection, maintenance, and dissemination by defendants or their agents.

(b) Plaintiff organizations.

23. On appeal by the Department of Defense defendants and defendant City of Chicago, the class certifications in both cases were affirmed by the Court of Appeals for the Seventh Circuit on November 22, 1977, and petitions for rehearing and rehearing en banc by the Department of Defense defendants were denied February 13, 1978. 565 F.2d 975 (7th Cir. 1978).

24. The Alliance and ACLU cases were consolidated for discovery purposes on July 2, 1976, and both cases were consolidated for discovery purposes on December 8, 1976 with Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. City of Chicago, et al., No. 76 C 1982, which is not a class action, and which does not involve the federal defendants or the proposed settlements.*fn1

25. On November 10, 1976, the Alliance plaintiffs obtained a preliminary injunction against the City of Chicago defendants' surveillance of plaintiffs' legal team. 75 F.R.D. 435 (N.D.Ill. 1976), 558 F.2d 1031 (7th Cir. 1977), cert. denied, 434 U.S. 828, 98 S.Ct. 108, 54 L.Ed.2d 87 (1977).

F. Discovery Against City of Chicago Defendants

26. Many of plaintiffs' early discovery requests were vigorously resisted by the City of Chicago defendants on several grounds, principally relevance, opposition to classwide discovery, burden of the discovery, the informer's privilege, and "governmental privilege." On November 10, 1976, the Alliance plaintiffs obtained the previously described prima facie findings of fact as discovery sanctions.

27. Plaintiffs' discovery requests ultimately resulted in production of massive discovery concerning intelligence activities by the City of Chicago. On July 1, 1976, plaintiffs obtained a court order, further expanded on October 14, 1976, allowing them to copy all index cards of the Chicago Police Department Intelligence Division other than those concerning organized crime, and allowing them to release documents to the named subjects thereof. On May 4, 1977, plaintiffs obtained a court order establishing a depository for their access to approximately 500,000 pages of undeleted pre-1976 files and index systems of the Chicago Police Department Intelligence Division Subversive Unit (commonly known as the Red Squad) and the Gang Intelligence Unit. Plaintiffs have analyzed tens of thousands of these documents. Since September, 1977, plaintiffs have also engaged in periodic review of all current Intelligence Division administrative and "Terrorist Squad" documents, and have obtained copies of many of those which do not concern ongoing criminal investigations. All of the files reviewed and received by the plaintiffs were undeleted.

28. Plaintiffs have also obtained numerous interrogatory answers and taken approximately 100 depositions of Chicago Police Department intelligence agents and officers, as well as other police officials and relevant witnesses. They have further reviewed documents other than those generated by the Intelligence Division such as the files of other Chicago Police Department sections, including the Neighborhood Relations Division, the Beat Representative Program, and the Special Operations Group; the City of Chicago Department of Investigations; the audits and papers of a Mayor's "blue ribbon" commission to investigate police intelligence practices (the Policy Review Commission); the Chicago Police Department Liaison File of the Federal Bureau of Investigation; and the index/identification cards of the Law Enforcement Intelligence Unit. Under a protective order dated October 14, 1976, plaintiffs have released thousands of Chicago Police Department Subversive Unit documents to the subjects thereof.

           G. Discovery Against Department of Defense
                           Defendants

29. As part of pretrial discovery, plaintiffs received hundreds of pages of Department of Defense documents, including the following:

    (a) Department of Defense domestic intelligence
  reports in the files of the Chicago Police
  Department Intelligence Division Subversive Unit;
    (b) Department of Defense domestic intelligence
  reports in the files of the Federal Bureau of
  Investigation; and
    (c) Department of Defense domestic intelligence
  reports regarding four of the named plaintiffs
  obtained directly from the Department of Defense.
  Reports concerning one named plaintiff consisting
  of a background investigation pursuant to that
  named plaintiff's induction into the United
  States Army. The Department of Defense defendants
  state that reports concerning the three other
  named plaintiffs are currently being maintained
  only for purposes of continuing litigation and
  will be destroyed at the conclusion of the
  litigation.

30. In response to plaintiffs' interrogatories and document requests, representatives of the Secretary of Defense have stated that except for documents currently being maintained solely for purposes of pending litigation, all Department of Defense domestic intelligence files relating to persons not affiliated with the Department of Defense have been destroyed. During pre-trial discovery, plaintiffs did not receive any Department of Defense domestic intelligence files or records which originated after the year 1971.

31. With respect to class discovery, the Department of Defense defendants vigorously resisted plaintiffs' efforts to conduct discovery on behalf of the certified plaintiff classes. The Department of Defense defendants relied in part on the informer's privilege, which was litigated extensively in connection with discovery requests directed to other federal defendants (Memorandum Opinion and Order of August 11, 1981 at pp. 8-9); and in part on the state secrets privilege. Objections based on the state secrets privilege were overruled by this Court (Memorandum Opinion and Order of March 28, 1978, at pp. 3-4), were initially sustained by the Court of Appeals for the Seventh Circuit, American Civil Liberties Union v. Brown, 609 F.2d 277 (7th Cir. 1979), and, after rehearing en banc by the Court of Appeals, were remanded in part for further determinations by this Court, American Civil Liberties Union v. Brown, 619 F.2d 1170 (7th Cir. 1980).

H. Other Information

32. In evaluating the desirability of the proposed settlement with the Department of Defense defendants, plaintiffs had access to a large number of Executive Branch, Department of Defense, and military service regulations and directives issued since 1970 purporting to restrict or prohibit domestic intelligence activities by Department of Defense agencies, and purporting to prohibit or restrict acquisition, storage and dissemination of information by such agencies about non-Department of Defense personnel. These Executive Orders, Department of Defense directives, and military service regulations and policy letters purport to establish a comprehensive set of prohibitions and restrictions on the acquisition, storage or dissemination of intelligence information concerning persons not affiliated with the Department of Defense, and purport to establish enforcement responsibilities and procedures both within and without the Department of Defense to enforce these prohibitions and restrictions. Representatives of the Secretary of Defense assert that these restrictions and prohibitions are currently being enforced within the Department of Defense.

I. The City of Chicago Settlement

34. The City of Chicago Settlement contains specific agreements with respect to future activities of the City of Chicago which would for the first time specifically prohibit political spying and harassment by the City. Because of the importance of these specific agreements, the Court has attached to this Memorandum Opinion and Order, as Appendix I, a copy of the City of Chicago Settlement.

35. The City of Chicago Settlement would terminate all injunctive claims that plaintiffs have asserted in these actions against the City of Chicago defendants.

36. The proposed City of Chicago Settlement is the result of a negotiating process described at the fairness hearing by counsel for both sides as arduous and adversary, and lasting over two years, in which counsel for all plaintiffs and for all City of Chicago defendants participated.

37. Counsel for all parties agree that nearly every line and paragraph of the City of Chicago Settlement, and in many cases individual words, are the product of vigorous negotiations, and that the agreements reflect concessions by all parties.

38. There is no evidence that the negotiations were other than adverse. On the contrary, the whole history of these lawsuits is one of vigorous, hotly-contested litigation. Extensive discovery and trial preparation continued throughout the period of negotiations. At two points in the last year of negotiations, impasses between counsel were reached and negotiations broke off for significant periods of time.

39. The City of Chicago Settlement was entered into after sufficient facts were developed, through discovery and investigation, fairly to apprise all parties of the facts likely to be adduced at trial and to enable them fairly to assess the likely outcome of trial. Massive pretrial discovery was substantially complete, and pursuant to court order plaintiffs and defendants had completed and filed separate draft final pretrial materials.

40. Counsel for the participating parties state that the City of Chicago Settlement negotiated by them in their considered opinion, is fair, reasonable and adequate.

41. The City of Chicago Settlement was approved by all ACLU named plaintiffs, and by all Alliance named plaintiffs except two organizations and three individuals. These five objected to the settlement and are hereafter referred to as the non-participating Alliance plaintiffs.

42. The City of Chicago Settlement has also been approved by the City of Chicago and the Corporation Counsel of the City of Chicago, and has been consented to by the other City of Chicago defendants through their counsel.

43. It is likely that further litigation, absent the proposed settlement, would be extremely complex, lengthy and expensive.

J. The Department of Defense Settlement

44. The Department of Defense Settlement contains specific agreements with respect to future domestic intelligence activities by Department of Defense intelligence units and agencies in the City of Chicago. Because of the importance of the Department of Defense Settlement, the Court has attached it to this Memorandum Opinion and Order as Appendix II.

45. Settlement discussions between the plaintiffs and Department of Defense defendants began in August of 1979 and continued until June of 1981, when final approval of all participating parties was obtained. During that nearly two year period, counsel for the parties engaged in extended, adversarial negotiations on virtually every term of the proposed settlement. In addition to the internal Executive Branch regulations which had already been issued relating to domestic intelligence activities by the military, plaintiffs' attorneys considered the difficult legal precedents which would have to be distinguished in order to achieve success at a trial on the merits. Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972); American Civil Liberties Union v. Laird, 463 F.2d 499 (7th Cir. 1972). Plaintiffs' counsel also considered the results of Congressional investigations of military domestic intelligence activities, which indicated that little evidence of post-1971 military intelligence activities directed against civilians was likely to be found in Department of Defense files and records.

46. Counsel for the Department of Defense defendants, for the ACLU plaintiffs, and for the participating Alliance plaintiffs have informed the Court that in their judgments the Department of Defense Settlement is a fair, reasonable and adequate resolution of the claims of the named plaintiffs and the plaintiff classes. That settlement has been approved by all ACLU named plaintiffs and by all Alliance named plaintiffs except the non-participating Alliance plaintiffs. The settlement has also been approved at all appropriate levels of the Department of Defense and the Department of Justice, a process which required many months to complete.

47. It is likely that further litigation of the plaintiffs' claims against the Department of Defense defendants would be extremely complex, lengthy and expensive.

        K. The Preliminary Hearing Concerning The City of
                       Chicago Settlement

48. In June, 1981, the plaintiff proponents of the City of Chicago Settlement moved to have the Court establish procedures for approval of that settlement. On June 12 and 15, 1981, the Court held a preliminary hearing on the proposed City of Chicago Settlement, and found in its Order of June 15 that the proposed settlement was within the range of possible approval and that there was probable cause to notify members of the plaintiff classes of the proposed settlements pursuant to Rule 23(e), Federal Rules of Civil Procedure, and to hold a fairness hearing.

49. At the preliminary hearing, the Court heard from counsel for the proponents of the settlement. The Court also heard from counsel for three of the nonparticipating Alliance plaintiffs. The Court found that the form of notice to class members, which also included statements from the non-participating plaintiffs, was fair, reasonable and adequate, directed that notice be given in a prescribed manner, and scheduled a fairness hearing for October 9, 1981. The form of notice to class members of both the City of Chicago and the Department of Defense Settlements which was approved by the Court is attached to this Memorandum Opinion and Order as Appendix III.[fn**]

            L. Preliminary Hearing Concerning the DOD
                           Settlement

50. On July 2, 1981 proponents of the Department of Defense settlement jointly moved the Court to establish procedures for consideration of the fairness, reasonableness and adequacy of the settlement with the Department of Defense defendants. On July 6, 1981 the Court held a preliminary hearing on the proposed Department of Defense Settlement and found in its Order of July 6, 1981 that the proposed settlement was within the range of possible approval, and that there was probable cause to notify members of the plaintiff classes of the proposed settlements pursuant to Rule 23(e), Federal Rules of Civil Procedure, and to hold a hearing to determine the fairness, reasonableness and adequacy of the proposed settlement.

51. Prior to the July 6 preliminary hearing, the court reviewed the proposed Department of Defense Settlement and the proposed form of notice to class members, which included the statement of the nonparticipating Alliance named plaintiffs in opposition to the proposed Department of Defense Settlement.

52. At the preliminary hearing the Court heard from counsel for the proponents of the Department of Defense Settlement. The Court found that the form of notice to class members was fair and adequate, directed that notice by mail and by publication be given to members of the plaintiff classes in a prescribed manner, and scheduled a hearing for October 9, 1981 on the fairness, reasonableness and adequacy of the proposed settlement (see Appendix III to this Memorandum Opinion and Order).

M. Notice to Class Members

53. On July 6, 1981 the Court ordered that individual notice of the City of Chicago and Department of Defense Settlements be given by first class mail not later than August 10, 1981 to all members of the plaintiff classes who could be identified and located through reasonable effort. Specifically, the Court required the following:

    (a) Individual notice by first class mail to
  each organization and person in the City of
  Chicago on which or whom the defendants maintain
  or had maintained intelligence files which had
  been produced during discovery in these actions,
  and whose current addresses were known to the
  plaintiffs;
    (b) Individual notice to members of
  organizations described in (a) above, to be
  accomplished by requesting the officers or other
  responsible persons in the organization to notify
  the organization's members of the terms of the
  Settlements;
    (c) Individual notice by first class mail to
  all other members of the plaintiff classes whose
  names and current addresses were known to the
  named plaintiffs or their attorneys; and
    (d) Reasonable additional efforts to identify,
  locate and individually notify by first class
  mail members of the plaintiff classes not
  notified, nor reasonably likely to be notified,
  by the efforts made pursuant to (a), (b) and (c)
  above.

54. The Court found that notice by publication was the most reasonable form of notice to those class members who were not notified by the efforts described above, and ordered that such notice by publication be given, not later than August 10, 1981, on three consecutive weekdays in two daily newspapers of general circulation in the Chicago metropolitan area. Such published notice was to include one advertisement in the general news section of each of the newspapers on the first day, occupying 1/8 of a tabloid or 1/16 of a broadsheet page, directing readers to the legal notice appearing the same day in the legal notice section of the newspaper.

55. The Court ordered that the mail and published notices should advise that "[a]ny person who believes that he or she is a member of any of the plaintiff classes, and any organization which believes itself to be a member of any of the plaintiff classes, may appear at the hearing in person or through an attorney and present his, her or its views on the proposed settlement," if they complied with certain minimal procedural requirements.

56. The steps prescribed in the Court's July 6, 1981 order concerning notice to members of the plaintiff classes were complied with (Affidavit of Richard M. Gutman dated August 28, 1981, filed August 31, 1981; Affidavit of Matthew J. Piers dated October 7, 1981, filed October 9, 1981). In addition to the first class mail and published notice required by the Court, the proposed settlements with City of Chicago and the Department of Defense received extensive coverage in the news media (Gutman Affidavit at pp. 2-3 and attachments thereto; Piers Affidavit at pp. 2-3 and attachments thereto).

58. As of the date of these findings, no members of the plaintiff classes have notified the Court that notice of the proposed City of Chicago and Department of Defense Settlements was received too late to permit that class member to present his, her or its views on the proposed settlements to the Court.

N. The Fairness Hearing

59. On October 9, 1981, and continuing on October 16, 1981, the Court conducted a hearing on whether the proposed City of Chicago and Department of Defense Settlements are fair, reasonable and adequate, and should be approved by the Court. More than 100 persons attended during the two days of hearing.

60. In addition to attorneys for proponents of the City of Chicago and Department of Defense Settlements, 38 individuals who were putative class members, or representatives of organizations which were putative class members, filed notices of intention to appear and address the Court concerning one or both of the proposed settlements.

61. The Court received 17 written statements of views by persons and organizations who did not appear at the hearing, most expressing support for the proposed City of Chicago Settlement, and written notices by 16 additional persons stating their intention to appear at the fairness hearing, but who did not in fact appear. Also, the five non-participating Alliance plaintiffs and others prepared a form objection presenting a choice of objections to the City of Chicago Settlement: "for the reasons stated by [the non-participating Alliance plaintiffs]," or "because I/we feel that any negotiated settlement with these agencies without public trial in which they are held accountable for their crimes is an unjust compromise of this lawsuit." The non-participating Alliance plaintiffs distributed these forms, and 20 persons or organizations filed them, checking one or more of the multiple-choice reasons. In addition, one of these purported class members filed a form, writing in her objection that "a promise by these agencies . . . is not a sufficient guarantee that they will not engage in such illegal activity in the future." Written objections to the Department of Defense Settlement were filed by the same five non-participating Alliance plaintiffs, by one individual plaintiff class member, and by one organizational plaintiff class member.

62. At the hearing held on October 9 and October 16, 1981, the Court heard presentations concerning the City of Chicago and Department of Defense Settlements by attorneys for the proponents who spoke in support of the proposed settlements. In addition, the Court heard oral presentations by five representatives of the Alliance and ACLU named plaintiffs speaking in favor of the proposed City of Chicago Settlement, and from 22 persons who were not named plaintiffs, some of whom were counsel for others, and more than half of whom supported the proposed City of Chicago Settlement. Of the 26 putative class members who appeared to make oral presentations on October 9 and 16, 1981 (out of 38 who had originally filed notices of intention to appear), only six spoke in opposition to the Department of Defense Settlement. All persons and organizations that had filed requests to speak prior to that hearing, whether or not they had done so in a timely manner or otherwise satisfied the minimal procedural requirements specified in the notice to class members, and who were present on either day of the hearing, were provided an opportunity to address the Court with respect to the proposed settlements. All class members who requested to be heard concerning the proposed Settlements were given a reasonable and fair opportunity to present their views to the Court.

63. At the conclusion of the hearing on October 16, 1981, the Court took under advisement the fairness, reasonableness and adequacy of the proposed settlements, and directed attorneys of record for the settling parties in these actions to submit proposed findings of fact and conclusions of law.

II. Conclusions of Law

1. This Court has jurisdiction of the subject matter of these cases, and of all parties. 28 U.S.C. § 1331 and 1343; 18 U.S.C. § 2520; 5 U.S.C. § 552a.

2. Rule 23(e) of the Federal Rules of Civil Procedure provides:

  "(e) Dismissal or Compromise. A class action
  shall not be dismissed or compromised without the
  approval of the court, and notice of the proposed
  dismissal or compromise shall be given to all
  members of the class in such manner as the court
  directs."

Rule 23(e) notice must sufficiently convey the required information and afford reasonable time for interested persons to make their appearance with due regard for the practicalities and peculiarities of the case. Air Line Stewards, et al. v. American Airlines, Inc., 455 F.2d 101, 108 (7th Cir. 1972).

3. Having reviewed the affidavits of plaintiffs' counsel regarding the manner and extent of notice, and taking into account the further information presented at the fairness hearing, the Court finds that notice was provided in a fair and adequate manner. Notice was consistent with the Court's orders of June 15 and July 6, 1981 directing notice, with Rule 23(e), and with due process. Notice was also timely, having been given two months prior to the fairness hearing. In contrast, notice in Armstrong v. Board of School Directors of the City of Milwaukee, 616 F.2d 305 (7th Cir. 1980), a leading case in this Circuit on settlements of civil rights class actions, was mailed only 12 days before the fairness hearing. 616 F.2d at 310; 471 F. Supp. at 805. See also, Airline Stewards, supra, 455 F.2d at 108 (three weeks' notice held timely).

4. There is an "overriding public interest in favor of settlement," especially in class actions. Armstrong, supra, 616 F.2d at 312-13. By definition, a fair settlement need not satisfy every concern of the plaintiff class, but may fall anywhere within a broad range of upper and lower limits. "The essence of settlement is compromise . . . a solution somewhere between the two extremes." Id. at 315.

5. The Court has a limited role in reviewing the settlement.

  Because settlement of a class action, like
  settlement of any litigation, is basically a
  bargained exchange between the litigants, the
  judiciary's role is properly limited to the
  minimum necessary to protect the interests of the
  class and the public. Judges should not
  substitute their own judgment as to optimal
  settlement terms for the judgment of the
  litigants and their counsel. Id.

Moreover, the Court cannot "modify the terms of a settlement proposal; it can only accept or reject the proposal as presented to it." Armstrong v. Board of School Directors, 471 F. Supp. 800, 804 (E.D.Wis. 1979). This principle is especially important where, as here, virtually every line and paragraph of the settlement documents, and in many instances individual words, are the end products of intense, adversary, and prolonged negotiations.

6. Because a class action settlement affects the rights of absent class members, and often, as here, the larger public interest, the Court may not uncritically accept it. Armstrong, 616 F.2d at 313. The settlement may be approved only if the Court finds it to be "fair, reasonable and adequate." Id. The burden of persuasion on the issue of fairness, reasonableness and adequacy is on the proponents of the settlement. The Court must "clearly set forth in the record its reasons for approving the settlement," stating its reasoning "with particular clarity." Armstrong, 616 F.2d at 315, 319.

7. Although the decision whether to approve the settlement is within the discretion of the District Court, and the decision is necessarily made on a case-by-case basis, certain factors have been consistently identified as relevant to the fairness determination. Among them are:

    (a) The strength of the case for plaintiffs on
  the merits, balanced against the amount offered
  in settlement.

(b) The defendant's ability to pay.

    (c) The complexity, length and expense of
  further litigation.

(d) The amount of opposition to the settlement.

    (e) Presence of collusion in reaching a
  settlement.
    (f) The reaction of members of the class to the
  settlement.

(g) The opinion of competent counsel.

    (h) The stage of the proceedings and the amount
  of discovery completed.
    (i) Whether the settlement initiates or
  authorizes an illegal conduct. Id.

Each of these factors will be discussed.

        Factor 1: Strength of Plaintiffs' Case vs. Amount
                      Offered in Settlement

8. The first factor, which is generally regarded as the most important, is the strength of the plaintiffs' case balanced against what is offered in settlement by the defendants. While it requires some consideration of the merits, the Court must refrain from reaching conclusions on issues which have not been fully litigated.

9. The gravamen of plaintiffs' complaints against the settling defendants is a constitutional challenge to an alleged class-wide course and pattern of conduct consisting of three basic types of alleged domestic intelligence practices: (a) investigations of persons and groups based on their lawful exercise of First Amendment rights, (b) disruption and harassment of persons and groups engaged in the lawful exercise of First Amendment rights, and (c) the use against such persons and groups of investigative means which are overly intrusive, in violation of First and Fourth Amendment rights, or which are otherwise illegal.

10. The relief sought on behalf of the plaintiff classes is essentially twofold: a declaration that such investigations, disruption, and investigative means are unconstitutional, and an injunction prohibiting their continuation.

11. The City of Chicago Settlement provides the plaintiffs with the injunctive relief they sought in this litigation. Its contents include the following key points:

    (a) The settlement is in the form of a
  permanent injunction, enforceable by the Court,
  entitled "Agreed Order, Judgment and Decree", and
  is attached hereto as Appendix I.
    (b) The key definitions that establish the
  scope of the injunction are broad. For example,
  in the City of Chicago Settlement, Appendix I to
  this Memorandum Opinion and Order, the definition
  of First Amendment conduct (Section 1.5), which
  is the core concept of the injunction, includes
  not only political and religious speech and
  assembly, but is stated broadly to include "the
  right to hold ideas or beliefs concerning public
  or social policy, or political, educational,
  cultural, economic, philosophical or religious
  matters," the right to assemble privately
  concerning such ideas or beliefs, the right to
  advocate alternative systems of government, and
  the right to associate in connection with legal
  advice and litigation.

12. The City of Chicago Settlement includes a set of prohibitions against improper activities which apply to any agent or agency of the City of Chicago. They include the proscription of any investigation undertaken because of a person's First Amendment conduct; of any disruption of or interference with a person because of such conduct; and of any collection of First Amendment information by illegal methods.

13. Extensive regulatory provisions were written into the injunction, concerning areas of police activity that are proper but have the potential to interfere with First Amendment activities. While there are many such provisions in Part 3 of the injunction, the highlights of this section are as follows:

    (a) Investigative activity directed toward
  First Amendment conduct is entirely prohibited
  except in four specific types of investigations:
  criminal, dignatory protection, public gathering,
  and regulatory investigations (Section 3).
    (b) For each type of investigation, a
  commencement standard is articulated. Most
  important of these is the requirement that a
  criminal investigation directed toward First
  Amendment conduct cannot be commenced unless
  there is "reasonable suspicion based on specific
  and articulable facts that the subject has
  committed, is committing, or is about to commit a
  crime." The reasonable suspicion standard is
  taken from the Supreme Court's decision in
  Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20
  L.Ed.2d 889] (1968), which is a Fourth Amendment
  decision establishing the factual prerequisite for
  a stop-and-frisk. By this injunction, that standard
  is borrowed from the Fourth Amendment and
  incorporated as a protection against investigation
  of First Amendment conduct. Similar commencement
  standards are stated for the other types of
  investigations.
    (c) Any investigation directed toward First
  Amendment conduct requires a written executive
  authorization specifically stating the grounds
  for the investigation (Section 3.1.4).
    (d) Another basic requirement applicable to all
  investigations directed toward First Amendment
  conduct is that First Amendment information must
  be entirely left out of the investigative
  process, "unless it is so necessary to and
  inseparable from the purpose of the investigation
  that its gathering and retention cannot be
  avoided" (Section 3.1.1).
    (e) Where investigative activity cannot
  entirely avoid First Amendment conduct, the
  impact upon First Amendment conduct must be
  consciously minimized (Section 3.1.2). This
  means, for example, that the least intrusive
  methods of investigative activity must be used in
  connection with First Amendment conduct.
    (f) All investigations directed toward First
  Amendment conduct have a limited time period, and
  must be terminated when that time period expires
  or when the initial reason for the investigation
  no longer exists. If the investigation is to be
  continued beyond its original term, a new written
  authorization must be obtained (Section 3.1.5).
    (g) There are strict limitations on
  dissemination by the police of First Amendment
  information (Section 3.1.6). In substance, such
  information may be disseminated only to a person
  conducting a criminal investigation based on
  reasonable suspicion of crime, or for a court
  proceeding.
    (h) The injunction also contains limitations on
  the use of intrusive methods (Section 3.6). To
  note only some of the most important provisions
  in this part of the injunction, the use of any
  intrusive method must be specifically authorized
  by a police executive in writing; a judicial
  warrant must be obtained for any nonconsensual
  seizure of First Amendment information; and any
  infiltration must be personally approved in
  writing by the Superintendent of Police and no
  references except incidental references to any
  First Amendment information may be gathered by an
  infiltration (Section 3.6.3.3).

14. All of city government is subject to the same restrictions as Part 3 of the City of Chicago Settlement imposes upon the Police Department.

15. In addition to provisions for internal implementation and monitoring of the City of Chicago Settlement by city government, there is also a provision for an independent audit by a national independent public accounting firm. Such audits are to be conducted in 1982, 1984 and thereafter at intervals of not more than five years, with the audit report to be made public. The auditors are to have access to all relevant data in the possession of the City of Chicago. In addition, there is provision that any violation of the judgment is to be discussed in the audit reports. Any substantial violation of the injunction must be investigated by the City of Chicago, with a report concerning the investigation to be presented to the Police Board.

17. No judicial decision or legislative enactment regarding intelligence activities by any governmental entity has been cited to the Court, and the Court is aware of none, which is as protective of citizens' First Amendment rights as is the proposed City of Chicago Settlement.

18. The legal protections conferred upon the plaintiff classes by the proposed City of Chicago Settlement not only correspond well with the relief sought in the complaints, they also go far beyond the legal relief plaintiffs would likely have obtained if the cases had gone to trial. Counsel for the plaintiffs and counsel for the City of Chicago defendants all recognized that the Court would not likely have entered such a detailed and restrictive injunction following trial, assuming plaintiffs prevailed. Indeed, the Court is aware of no permanent judicial declaration or injunction ever entered against City of Chicago intelligence activities, even on behalf of a single litigant, much less in a class action.

19. The law with respect to government spying and intelligence activities is largely unsettled. See generally, Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). Indeed, as recently as December 1980, the City of Chicago asserted before this Court the legal position that the Constitution and the case law do not prohibit governmental surveillance of any First Amendment activity as distinguished from preventing or interfering with such activity.

20. Absent the proposed settlement, plaintiffs' proof of their case at trial would have encountered a number of difficulties, some of which, in other litigation involving similar issues, have seriously hampered or proved fatal to proof of the plaintiffs' case. These include the risk that the claim for declaratory and injunctive relief would have been denied as moot.

21. Also, there was the risk that even if the plaintiffs prevailed on the merits, and their claims for injunctive relief were held not moot, the Court might nonetheless decline to issue an injunction, or might issue an injunction less protective of their rights than the provisions of the proposed settlement. The City of Chicago defendants have made plain their intention to contend at trial that the Chicago Police Department should not be run by injunction. See, Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976).

22. In sum, with respect to the first factor as it applies to the City of Chicago Settlement, the amount offered in the City of Chicago Settlement is fair, reasonable and adequate when balanced against the strength of plaintiffs' case on the merits against the City of Chicago defendants.

23. The Department of Defense Settlement agreement provides the plaintiffs with a portion of relief they sought in this litigation. (Paragraph references that follow are to the Department of Defense Settlement, Appendix II to this Memorandum Opinion and Order.) Paragraph 3.3 of the Department of Defense Settlement incorporates provisions of certain statutes, executive orders and internal Department of Defense regulations. Although some of these provisions may be modified by future legislative action or Presidential Executive Orders, and others may be modified by written Department of Defense regulations, guidelines and procedures, the settlement incorporates "the principle that no information shall be acquired about a person or organization solely because of that person's or organization's lawful exercise of First Amendment rights" (¶ 3.4(c)).

25. In short, the principle of paragraph 3.4(c), together with the enforcement provisions of paragraphs 5.1 and 5.2 of the Department of Defense Settlement, addresses one of the purposes of these class actions against the Department of Defense defendants, in that it articulates a legally enforceable prohibition on Department of Defense utilization of investigative techniques directed solely against lawful First Amendment activities.

26. Although less fundamental than this principle, the Department of Defense settlement places the following additional limitations on Department of Defense utilization of investigative techniques directed against United States persons not employed by the Department of Defense:

    (a) Electronic surveillance in the City of
  Chicago must comply with the Constitution and
  applicable federal statutes. (¶ 3.3(a); 18 U.S.C. § 2510-20;
  50 U.S.C. § 1801-1811). These
  statutes, of course, can be amended only by
  legislative action.
    (b) Unlawful unconsented physical searches,
  unlawful entries, and unlawful disruption or
  harassment of lawful activities of United States
  persons for intelligence purposes in Chicago are
  prohibited (¶ 3.3(b)). This prohibition cannot be
  lifted by the Department of Defense (¶ 3.4(c)). It
  can be lifted only by a statute or by a
  Presidential Executive Order "specifically
  authorizing or directing the Secretary of Defense,
  the Secretary of a military service, or their
  subordinates to utilize any investigative
  techniques described in Paragraph 3.3" (¶ 3.4(a)
  and (b)).
    (c) The provisions of statutes, Presidential
  Executive Orders and Department of Defense and
  military service regulations apply to the
  following types of intelligence conduct in the
  City of Chicago by Department of Defense agents:
  physical or photographic surveillance of United
  States persons not employed by the Department of
  Defense; covert participation in any
  organization; acquisition, dissemination or
  storage of information about United States
  persons not employed by the Department of
  Defense; and the provision of services,
  equipment, personnel or facilities to the Chicago
  Police Department, except for emergency
  assistance as part of disaster relief (¶ 3.3(c)).

27. The legal protections conferred upon the plaintiff classes by the Department of Defense Settlement compare well with the legal relief plaintiffs would likely have obtained if the cases had gone to trial. Counsel for the plaintiffs candidly stated that by the Department of Defense Settlement they did not obtain all that they desired to obtain. Counsel for the plaintiffs and counsel for the Department of Defense defendants all recognized that the plaintiffs' cases against the Department of Defense defendants contained evidentiary and legal weaknesses. Those infirmities have been considered by the Court in determining the fairness, reasonableness, and adequacy of the Department of Defense Settlement. After evaluating the strengths and weaknesses of the plaintiffs' case, and what the plaintiffs did receive and did not receive in the settlement agreement, the Court concludes that what was obtained in the Department of Defense Settlement agreement fairly reflects the potential strengths and weaknesses of the plaintiffs' case on the merits against the Department of Defense defendants.

28. Absent the proposed Department of Defense Settlement, plaintiffs' proof of their case against the Department of Defense defendants at trial would have been difficult, as plaintiffs' counsel candidly concede. There was a risk that important evidence would have been impossible to find because of internal Defense Department purges of domestic intelligence information from its files, or because of evidentiary privileges such as the "state secrets" privilege, which Department of Defense defendants have already successfully asserted in this litigation. American Civil Liberties Union v. Brown, 609 F.2d 277 (7th Cir. 1979), after rehrng. en banc, 619 F.2d 1170 (1980).

29. Also, there was the risk that the claims for declaratory and injunctive relief against the Department of Defense defendants would have been denied as moot. See Halkin v. Helms, No. 75-1773 (D.D.C. 1980), affirmed, Halkin v. Helms, 690 F.2d 977 (D.C. Cir. 1982). The Department of Defense defendants have already made plain their intention to assert this defense, and there is at least some evidence to support it (¶¶ 2.1 and 2.2). It is noteworthy that despite extensive pretrial discovery, plaintiffs did not receive any Department of Defense domestic intelligence files or records which originated after 1971, several years prior to the filing of plaintiffs' claims against the Department of Defense defendants.

30. In sum, with respect to the first factor as applied to the Department of Defense Settlement, the amount offered in the Department of Defense Settlement is fair, reasonable and adequate when balanced against the strength of plaintiffs' case on the merits against the Department of Defense defendants.

Factor 2: Defendants' Ability to Pay

31. Since the claims of plaintiff classes are only for declaratory and injunctive relief, this factor is not relevant here. Cf. Armstrong, supra, 471 F. Supp. at 805.

       Factor 3: Complexity, Length and Expense of Further
                           Litigation

32. The Court has already found that it is very likely that further litigation, absent the proposed settlements, would be extremely complex, lengthy and expensive. The reasons for this conclusion — the factual breadth of these cases, the number and difficulty of legal issues they pose, and the sharply adversary relation of the parties and history of the litigation — need no further elaboration.

Factor 4: Amount of Opposition to the Settlement

33. The Court may approve a fair settlement over objections by some or many class members, and even despite criticism by some named plaintiffs. Armstrong, 471 F. Supp. at 804; 616 F.2d at 326.

34. The number of objectors here is not large under any standard, but particularly given the many thousands of plaintiff class members who received notice, the unsettled nature of some of the relevant law, and the depth of antagonism between many of the plaintiff class members and the settling defendants. Indeed, the amount of opposition by class members here is much less than that in Armstrong, where 45 persons testified at the fairness hearing and numerous others sent in written statements, "most to express their dissatisfaction with the settlement," which was nonetheless approved as fair. 616 F.2d at 326; 471 F. Supp. at 805.

35. Moreover, most of the objections here, as in Armstrong, although "thoughtful and informative," are also "somewhat misinformed," both in their understanding of the proposed settlements and as to the state of the relevant law. 616 F.2d at 326, quoting 417 F. Supp. at 812. Based upon the written comments received by the Court and upon hearing the presentations of the attorneys and individuals who spoke at the hearing, it was readily apparent to the Court that many of those individuals who spoke were not familiar with the details of the proposed settlements. Some comments appeared to be based more on opposition to any agreement with the government, than on a specific assessment of these proposed settlements. Also, while certain of the objectors were clearly well informed and forceful in their objections, they were persons, or counsel for persons, who were litigating in other unresolved cases concerning either similar issues, the same defendants, or both.

          Factor 5: Presence of Collusion in Reaching a
                           Settlement

36. No suggestion of collusion has been made, nor, on this record, would any such suggestion be credible.

        Factor 6: Reaction of Members of the Class to the
                           Settlement

37. The law in this Circuit as implied in Armstrong is that the Court must consider all objections, but need not state individualized findings with respect to each of them. 616 F.2d at 326, 471 F. Supp. at 812-13. However, the Court's reasoning must be stated "with particular clarity." 616 F.2d at 319. In light of this last admonition, and the case law elsewhere requiring a reasoned response on the record to all objections of substance and some explicit statement concerning all objections, Mandujano v. Basic Vegetable Products, Inc., 541 F.2d 832, 836 (9th Cir. 1976), the Court will discuss all objections of substance. Objections which were made to both the City of Chicago and Department of Defense Settlements are discussed first; then objections made to the City of Chicago Settlement only; and finally objections made to the Department of Defense Settlement only.

38. Findings and Admissions. Some objectors argue that both the City of Chicago and the Department of Defense Settlements make no findings and contain no admissions of wrongdoing by the City of Chicago, the Department of Defense, or their agents. But the essential purpose of a settlement is to avoid adjudication of the lawfulness or propriety of conduct which is the subject of allegations of the complaint. It would defeat an important purpose of settlement, and therefore render settlements less attractive to the parties, if the settlement agreement were required to include admissions of wrongdoing by the defendants, or if the Court itself made such findings in connection with a proposed settlement. Such a procedure would constitute an unwarranted interference by the Court in the efforts of the parties to resolve their differences short of adjudication of the allegations of the complaint.

39. Alleged Continuing Abuses. Allegations have been made that both the Chicago Police Department and the Department of Defense continue to engage in some of the practices alleged in the complaints. The Court, of course, expresses no opinion on the substance of these allegations. However, if true, such facts would argue for approving the settlements, not disapproving them. If such alleged practices continue after the settlements are approved, any person affected can present his or her claim to the Court for a ruling on whether the activities in question are improper under the Settlements. If they are, the complainant may obtain an appropriate order, including enforcement of the terms of the settlements.

40. Vagueness. It is objected that the provisions of the City of Chicago Settlement are so vague as to render it a sham. The Court does not agree. The City of Chicago Settlement is, in fact, remarkably detailed and specific. The ambiguities which do exist in the potential applications of these provisions arise from the fact that they are, for good reasons, worded in general terms. Plaintiffs' central claims are constitutional in nature. Like any legal restrictions grounded in constitutional values, it is appropriate that the remedial provisions of the settlement be generally framed to some extent. They are meant to govern a great variety of specific situations, many of which cannot now be foreseen, over an extended period of time. Moreover, the proposed City of Chicago Settlement resolves class actions, the comprehensive scope of which embraces a great variety of City of Chicago practices. Generally worded restrictions are probably indispensable to the settlement of such lawsuits. The alternative — attempting to agree in advance on a wide variety of specific questions in hypothetical settings — is neither practical nor necessarily wise.

41. The presentations of the parties at the fairness hearing demonstrate that they would not necessarily agree on all possible applications of the language of the provisions in the abstract or in hypothetical cases. However, both sides have agreed to submit to enforcement by the Court, if and when specific disagreements arise in concrete cases in the future. Having examined the language of the City of Chicago Settlement, as well as the various questions raised and views expressed concerning the possible interpretations, the Court is confident that in the context of concrete cases, it will be able to perform the judicial function of reasonably interpreting the language to accomplish the purpose of the document as a whole. As the Court made clear at the October 16 hearing, the parties' various interpretations of the principles are not binding. All that is binding now is the language of the document; the only binding interpretations will be made later, by the Court, in the context of real disputes.

42. Mislabeling of Political Investigations. Some objectors argue that the Chicago police can evade the terms of the City of Chicago injunction by simply labeling a political intelligence investigation as a criminal, dignitary protection, public gathering or regulatory investigation. They are wrong. The injunction does not turn on labels. For example, in order to carry out a criminal, dignitary protection, or regulatory investigation that is directed to First Amendment conduct, the police must satisfy appropriate objective standards regarding the investigation's origins and purposes (see Sections 3.2.1, 3.2.2, 3.3.1, 3.5.1). In a case of disputed investigation, the Court, not the police, will determine whether the investigation complies with the injunction.

43. Overbroad Criminal Investigations. Some objectors maintain that the City of Chicago injunction permits unlimited spying and disruption against anyone who has ever engaged in civil disobedience or other unlawful political activity. The Court finds that the injunction does provide fair, reasonable, and appropriate protection to such individuals from overbroad criminal investigations. See Sections 3.1.1 and 3.1.2 of the injunction.

44. Disruption. Some objectors argue that the City of Chicago Settlement does not prohibit all unlawful disruption activities, such as the type alleged to have occurred in the FBI's COINTELPRO (Counterintelligence Program). The Court does not agree. Section 2.2 of the Settlement states that "No agency or agent of the City of Chicago shall disrupt, interfere with or harass any person because of the person's First Amendment conduct." Section 3.1.2.1 requires the City of Chicago "to take every reasonable precaution to avoid gathering information about, or interfering with, First Amendment conduct, and when it cannot be avoided to follow a conscious course of conduct that reduces, as much as possible, the impact on First Amendment conduct."

45. Authorization of Illegal Activity. Some objectors assert that the City of Chicago Settlement authorizes or legitimizes future police misconduct of the type alleged in these lawsuits. Such concerns are based on a misreading of the Settlement. The purpose and effect of the City of Chicago Settlement is to forbid political spying and harassment, not to support it. The Settlement does not declare the lawfulness of any investigative or intelligence procedure. Because something is not restricted or prevented by the injunction does not mean that it is lawful — only that it is not dealt with in this decree.

46. Furthermore, all persons affected retain their full rights to challenge any future misconduct by the City or its agents either under this agreed injunction or in a separate lawsuit or other appropriate proceeding.

47. "United States Persons." With respect to the Department of Defense Settlement, it is objected that certain provisions of that Settlement protect only "United States persons," defined to include United States citizens, aliens lawfully admitted for permanent residence, unincorporated associations organized in the United States or substantially composed of United States citizens or aliens lawfully admitted for permanent residence, and corporations incorporated in the United States (¶ 6.3). Objectors express concern that because of this definition, some portion of the plaintiff classes is left without protection.

49. Moreover, non-"United States persons," even when not acting through groups which are themselves "United States persons," are nonetheless protected by several provisions of the Department of Defense Settlement. Electronic surveillance of them must be "in accordance with the Constitution and applicable federal statutes, 18 U.S.C. § 2510-20 (1976) and 5 U.S.C. § 1801-1811 (Supp. II 1978)" (¶ 3.3(a)). They are protected by the ban on "unlawful uncontested physical searches" (¶ 3.3(b)); the ban on "any `unlawful entries' that constitutes searches under the Fourth Amendment" (Id.); the requirement that Defense Department infiltration of organizations comply with applicable laws, regulations and guidelines (¶ 3.3(c)(2)); the ban on intelligence assistance by the Department of Defense to the Chicago Police Department (¶ 3.3(c)(4)); and the requirement that investigative techniques comply with the Constitution (¶ 3.4(c)). All of these requirements may be enforced by any non-United States person who is "a member of the plaintiff classes" (¶ 5.1).

50. Disruption and Harassment. Some objectors argue that the Department of Defense Settlement does not declare that Department of Defense disruption and "neutralization" activities are unconstitutional, and does not unequivocally ban such activities. In fact, however, the Settlement does provide that the Secretary of Defense and his agents "shall not conduct in the City of Chicago for intelligence purposes . . . any unlawful disruption or harassment of lawful activities of any United States person" (¶ 3.3(b)). Since the Secretary of Defense has refused, as is common in settlement agreements, to admit that he or his agents have engaged in any of the conduct alleged in the complaint (¶ 1.1), it would be wholly inappropriate for the Court to make findings or conclusions concerning the constitutionality of such alleged activity. Moreover, since the Department of Defense Settlement prohibits "any unlawful disruption or harassment of the lawful activities of any United States person," it is left for the Court to determine, in the context of a future enforcement action, what disruption or harassment is "unlawful."

51. Future Modifications of the Joint Stipulation. Some objectors argue that all of the protections of the Department of Defense Settlement may be superseded by unilateral Department of Defense action. This is incorrect. Statutory protections can be changed only by Congress and Executive Orders can be changed only by the President. Furthermore, any changes in departmental, service or agency regulation, guideline or other procedure, as permitted by paragraph 3.4(c) of the Department of Defense Settlement, must be in accordance with "the principle that no information shall be acquired about a person or organization solely because of that person's or organization's lawful exercise of First Amendment rights and shall not be contrary to any applicable federal statutes or the United States Constitution." (¶ 3.4(c)). Plaintiffs, of course, remain free to challenge any such future modifications on the grounds that they are not consistent with the Constitution, applicable federal statutes, or the restriction of the Department of Defense Settlement just quoted. At the fairness hearing, plaintiffs' attorneys expressed their willingness to mount such challenges in appropriate cases. They also conceded to the Court that while the modification provisions of the Department of Defense Settlement were not as favorable to plaintiffs as those in the settlements with the FBI and the CIA, this difference was accounted for by plaintiffs' weaker case against the Department of Defense defendants.

52. Enforcement. The enforcement standards and procedures (¶¶ 5.1, 5.2) are said to place an unreasonable burden on members of the plaintiff class. In fact, under the Department of Defense Settlement enforcement is triggered by a threshold finding of "reasonable grounds to believe that a violation of the terms of the Stipulation has occurred or is occurring" (¶ 5.1). The purpose of this "reasonable grounds" standard is to prevent frivolous or harassing enforcement petitions; both the purpose and the language chosen to accomplish it are fair, adequate and reasonable. If, after hearing, the Court finds "a pattern of substantial non-compliance or a serious intentional non-compliance" it may make "such order as it deems just and necessary to ensure future compliance with the Joint Stipulation" (¶ 5.2). This language, too, reflects a fair, adequate and reasonable compromise, which permits civil enforcement of the Department of Defense Settlement without subjecting the Department of Defense to court orders based on minor or technical violations.

53. Geographic Scope. The objectors criticize the Department of Defense Settlement because its geographic scope is restricted to the corporate limits of the City of Chicago. However, the definition of the plaintiff classes was limited to persons located at various times in the City of Chicago. Therefore, it was not unreasonable for the Department of Defense to decline to agree to a settlement which imposed restrictions on Defense Department conduct beyond the geographic scope covered by the allegations of the complaint and the class definition approved by this Court.

54. Inadequate Restrictions. One objector objected that the Department of Defense Settlement does not impose a total ban on Department of Defense domestic intelligence activities, similar to the Central Intelligence Agency settlement approved earlier by this Court. Any greater restriction on domestic intelligence activities by the Central Intelligence Agency is merely a reflection of the fact that while the National Security Act of 1947, 50 U.S.C. § 403, specifically bars the Central Intelligence Agency from exercising any law enforcement or internal security functions, no comparable statutory ban exists in the case of the Department of Defense.

55. Superseding Regulations Unavailable. One opponent of the Department of Defense Settlement objected at the fairness hearing that some of the Department of Defense directives which, under paragraph 3.4 of the Settlement, might supersede restrictions on Department of Defense domestic intelligence activities might be classified, and that persons seeking to enforce the Department of Defense Settlement would thus never learn of the existence of such directives. This argument apparently refers to paragraph 3.5 of the Settlement which entitles any class member upon request to be provided a copy "of the unclassified portions of any then existing procedures" which would modify the protections in paragraph 3.3. This objection is not a grounds for disapproval of the Department of Defense Settlement for two reasons. First, the prohibitions on Department of Defense domestic intelligence activities contained in paragraph 3.3 of the Settlement are public, and would be enforced by the Court unless and until the Court became convinced that those provisions had been modified by some written Department of Defense directive or other authority described in paragraph 3.4 of that Settlement. Thus, the burden would be on the Department of Defense to justify to the Court, as authorized by written Defense Department directive of the type described in paragraph 3.4, any course of conduct in conflict with the prohibitions in paragraph 3.3. Second, even if classified documents allegedly modifying terms of the Department of Defense Settlement are not produced pursuant to a paragraph 3.5 request, they can be reviewed by the Court in camera to determine if they do, in fact, supersede the Settlement as claimed.

56. Court Supervision Intermittent. It was objected at the fairness hearing that judicial supervision of Department of Defense domestic intelligence activities in Chicago would be only "intermittent and cursory." This Court is not a super-Defense Department, and the Department of Defense Settlement is not intended to make it so. The Court's function under the Settlement is limited to adjudicating charges of violations of the Settlement. The Court is not responsible for permanent and continuing supervision of all aspects of Defense Department intelligence ...


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