RI CHARD A. HORN, 

Plaintiff, 

v. 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

Civil Action No. 94-1756 (HHG) 

FRANKLIN HUDDLE, JR. et al., 

Defendants. FILED UNDER SEAL FILED 

FEB 1 0 1997 

OPINION 

NANCY MAYER-WHITTINGTON. CLERK U.s. DISTRICT COURT 

The issue before the Court is whether the plaintiff, an 

American official, may pursue an action for surreptitious 

wiretapping by employee~ of the Central Intelligence Agency and 

the State Department. Defendants have filed a motion to dismiss 

or, alternatively, for summary judgment. 

I 

Factual Background 

This case arises out of events that took place at the United 

States Embassy in Rangoon, Burma between June 1992 and September 
1993,1 The following is a summary of the facts.2 

Richard Horn, a Special Agent with the Drug Enforcement 

Administration (DEA)', served as the DEA country attache to Burma. 

The defendants are Franklin Huddle, Jr., a State Department 

employee and Chief of Mission of the Embassy, and Arthur Brown', a 

Central Intelligence Agency employee who was the First Secretary 

and then the Counselor of Embassy for Regional Affairs. Horn 

asserts that the DEA mission of working with the government of 

Burma to combat the flow of heroin and opium from Burma was being 

undermined by actions of personnel from the State Department and 

the CIA, who were unwilling to credit the government of Burma 

with success in its anti-drug efforts. Horn was removed from his 

post in Rangoon in September 1993, allegedly in retaliation for 

speaking out against CIA and State Department policy. 

The central disputed fact is whether Huddle, Brown, or any 

other United States officials conducted an electronic 

surveillance of the plaintiff. Horn alleges that defendants 

wiretapped his communications without his permission, and 

1 'Burma has been called Myanmar since 1989; however, the 

parties have used the name Burma and the Court will do likewise. 

2 As this is defendants' motion, the facts are viewed in the 

light most favorable to the plaintiff. 

2 
di.sclosed the contents of these communications to State 

Department and CIA officials in Burma and in Washington, D.C. 

Horn believes that this wiretapping was accomplished by the CIA 

through an eavesdropping device placed in his coffee table. 

Horn/s coffee table had been replaced in November 1992 without 

his authorization I a fact that did not seem significant to him 

until he learned from 

one 'Marlow Strand, tha,t the CIA_ 

Defendants Huddle Brown, in addition to Hugh 

Price I Deputy Director of Operations for the CIA'I deny that such 

electronic surveillance occurred. 

One particular instance of alleged wiretapping! on August 

12, 1993 t was of a conversation between Horn and Special Agent 

David B. Sikorra, about Hornls forced removal from Rangoon. At 

the time of the conversation, Horn and Sikorra were each at home 

in their government leased quarters in Rangoon. Partial contents 

of this conversation t held late one night, were disclosed the 

very next day in a cable from defendant Huddle to other State 

Department officials in Washington, D.C. As discovery has been 

stayed in this case pending resolution of the summary judgment 

motion, Horn has been precluded from deposing the government 

3 
officials with information supporting his allegations, and Horn 

does not have a copy of this cable. However, defendants 

voluntarily submitted the cable to the Court, the Court has 

examined it .in camer:a, and verified that indeed, it is a verbat,im 

reproduction of parts of Horn's conversation with Sikorratusing 

quotation marks and ellipses, and a paraphrasing of other parts--

evidence that Horn's conversation had been wiretapped. 

In his complaint, plaintiff asserts a Biyens claim against 

Huddle and Brown for violating his Fourth Amendment rights, 

Bivens v.Six Unknown Named Agents of the Feder:al Bureau,of 

Narcotica, 403 U.S. 388 (1971), and he also claims a violation of 

the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. § 

1810, and of Title III of the Omnibus Crime Control and Safe 

Streets Act, 18 U.S.C. § 2510. In their motion, defendants argue 

that plaintiff has not stated a claim under the Constitution, the 

FISA or Title III. They also argue that they are entitled to 

qualified immunity. 

II 

Statutory Claims 

Summary judgment may be granted only if there is no genuine 

issue of material fact and the moving party is. enti.tled to 

judgment as a matter of law. Fed.R.Civ.i? 56(c) i Celotex Corp. 

4 
'. 

V. Catrett, 477 U.S. 317, 321-23 (1986). Defendants argue that 

they are entitled to summary judgment both on plaintiff's 

statutory claims and on the Bivens claim on the basis that none 

of the claims may be advanced for acts occurring outside the 

United States. The Court concludes that defendants' arguments on 

the statutory claims are well taken, but that the Biyens claim 

should be allowed to go forward. 

It is pres'!lmed that a statute applies' only within the United 

States unless there is strong evidence to the contrary. Smith v. 

United States, 507 U.S. 197, 204 (1993) i EEOC V. Arabian American 

Oil Co. (Aramco), 499 U.S. 244, 248 (1993) (\\ [w]e assume that 

Congress l.egislates against the backdrop of the presumption 

against extraterritoriality"). Plaintiff attempts to diminish 

the force· of Smith and Aramco on the theory that these de·cisions 

do not'specifically address FISA or Title III. The Court rejects 

this argument. In each of these cases, the Supreme Court's 

analysis begins with the general proposition against 

extraterritorial application and then focuses on the particular 

statute at issue'- - the Federal Tort Claims Act in Smith and Title 

VII of the Civil Rights Act of 1964 in Aramco. 

Plaintiff argues, without citing to any cases that directly 

support this propositiQn, that American embassies and government5 
leased housing abroad are areas "under the territorial 

sovereignty of the United States" to which FISA is applicable.) 

50 U.S.C. § 1801(j). This argument also lacks merit. In order 

for FISA to be construed to apply extraterritorially to United 

States embassies abroad/Congress must have expressed its 

intention to that effect clearly. But there is no evidence in 

the language of the statute or its legislative history that this' 

statute should apply abroad,. 

Th~ text of FISA indicates that the Act was not intended to 

apply outside the Unit'ed States. The Act defines "electronic 

surveillancell as "the acquisition . . . of any wire or radio 

communication sent by ... a ... person who is in the United 

States" or "if such acquisition occurs in the United States." 50 

U.S.C. § 1801(f}. The legislative history of the statute 

confirms that Congress did not intend the Act to apply 

extraterritorially. Indeed the Senate Report expressly states 

that the Act "does not deal with . electronic surveillance 

conducted outside the United States." S.Rep. No. 701/ 95th Cong., 

3 Although a United States embassy abroad is inviolable, it 

is nevertheless considered under American law to be situated in 

foreign, not United States territory. Fatemi y, United States, 

192 A.2d 525, 527 (D.C. 1963}i J.L. Brierly, The Law of Nations, 

260 61 (6th ed. 1963). 

6 
2d Sess. 7 n.2. The Senate Report goes on to state that the Act 

specifically excludes "U.S. Embassies, military bases, and other 

installations abroad." S. Rep. No. 701, 95th Cong., 2d SeSs. 47 

(1978) . 

Similarly, every court which has addressed the issue has 

concluded that Title III of the Omnibus Crime Control and Safe 

Streets Act is inapplicable to electronic surveillance abroad. 

~, ~, United States y. Barona, 56 F.3d 1087 (9th Cir.1995), 

cert. denied, 116 S.Ct. 813 (1996); Stowe y. Deyoy, 588 F.2d 336, 

341 (2d Cir. 1978), cert. denied, 442 U.S. 931 (1979) i Berlin 

Democratic Club y, Rumsfeld, 410 F. Supp. 144, 157 n.6 (D.D.C. 

1976). In United States y. Cont'roni, 527 F.2d 708, 711 (2d Cir. 

1975), cert. denied, 426 U.S. 906 (1976), the Court of Appeals 

for the Second Circuit rejected the argument that disclosure in 

the United States of communications intercepted abroad triggered 

its provisions: \\ [I] t is not the route followed by fo.reign 

communications which determines the application of Title III; it 

is where the interception took place.". The Second Circuit also 

noted that Title III "significantly makes no provision for 

obtaining authorization for a wiretap in a foreign country." 

United States y. Toscanino, 500 F.2d 267 1 279-80 (2d Cir. 1974). 

Plaintiff argues that his case is distinguishable from all 

7 
of those cited above because the alleged eavesdropping occurred 

within an American embassy and government leased housing abroad--

which, argue.s plaintiff, are "possessions" of the United States, 

to which Title III is applicable. 18 U.S.C. § 2511. But in a 

similar case of alleged wiretapping of an American citizen by 

American government officials at an American government. facility 

abroad--a United States Air Force base in England--Title III was 

held inapplicable by the Court of Military Appeals. United 

States v. Parrillo, 34 M.J. 112, 118 (C.M.A. 1992). Furthermore, 

as noted above, a United States embassy is considered under 

United States law to be in fo~eign, not United States territory. 

In view of the lack of evidence that Congress.intended 

either the FISA or Title III to apply extraterritorially--indeed 

of evidence that strongly supports the opposite conclusion--the 

Court concludes that neither statute is applicable to this case. 

Accordingly, Counts Two and Three of the complaint are dismissed 

for failure to state a claim upon which relief can be granted. 

III 

Biyens Claim 

In regard to the Biyens claim, defendants have raised the 

defense of qualified immunity. As the Supreme Court has held, 

the basic framework of qualified immunity is that "government 

8 
officials performing discretionary functions, generally are 

shielded· from liability f()r civil damages insofar as their 

conduct does not violate clearly established statutory or 

constitutional rights of whicli a reasonable person would have 

known. /I Harlow y. Fitzgerald, 457 U. S. 800, 818 (1982). The 

Harlow decision rested on a balancing of two conflicting values 

inherent in the resolution of any immunity question: vindicating 

constitutional rights at the same time as minimizing the costs--

to the defendant officials and so~iety as a whole--of 

insubstantial claims; "(t]hese social costs include the expenses 

of litigation, the diversion of official energy from pressing 

public issues, and the deterrence of able citizens from 

acceptance of public office. 1I .I..d...- at 814. 

In order to carry out the Supreme Court's mandate that "bare 

allegations of malice should not suffice to subject government 

officials either to the costs of trial or to the burdens of 

broad-reaching discovery," iJ;L.. at 817-18, a "heightened pleading" 

requirement has evolved. 

The most recent standard in the Court of Appeals for this 

Circuit was announced in Crawford-El y. Britton, 93 F.3d 813, 825 

(D.C. Cir. 1996) (en banc), which rejects the "heightened 

pleading" requirement i;n favor of a heightened standard of proof. 

9 
Leonard Rollon Crawford-EI, a prisoner in the District of 

Columbia's correctional system, filed a 42 U.S.C. § 1983 suit 

against a·D.C. corrections official for allegedly misdelivering 

boxes belonging to him of legal papers, clothes, and other 

personal items, thereby violating his constitutional right of 

access to the courts. The District Court denied defendant's 

motion for summary judgment resting on the defense of qualified 

immunity. The original panel of the.Court of Appeals reviewed 

Crawford-EI's allegations under a "heightened pleading" 

requirement that the plaintiff advance "nonconclusory allegations 

that are suffic~ently precise to put defendants on notice of the 

nature of the claim and enable them to prepare a response." 

Crawford-HI y. Britton, 951 F.2d 1314, 1317 (D.C. Cir. 1991). 

The panel-found that plaintiff had not met this·standard, but 

remanded the case to the District Court to permit repleading 

. because of changes in the heightened pleading doctrine since his 

original pleading. On remand, the District Court again dismissed 

plaintiff's claims, ruling that the complaint did not allege 

"direct" evidence of unconstitutional motive, as distinguished 

from circumstantial evidence. Crawford-EI y. Britton, 844 

F.Supp. 795, 802 (D.D.C. 1994) (citing Siegert v. Gilley, 895 

F.2d 797, 800-02 (D.C. Cir. 1990)); ~ alaQ Kimberlin v. 

10 
Quinlan, 774 F.Supp. 1 (D.D.C. 1991), rey'd, 6 F.3d. 789 (D.C. 

Cir~ 1993), rey'd on other grounds, 115 S.Ct. 2552 (1995).· 

Upon rehearing en banc, the Court of Appeals explicitly 

overruled the Siegert line of cases which distinguished between 

direct and circumstantial evidence of unconstitutional motive .. 

In its place, the en banc court established "the straightforward 

rule that· plaintiff cannot defeat a summary judgment motion 

unless, prior to discovery, he offers specific, non-conclusory 

assertions of evidence l in affidavits or other materials suitable 

for summary judgment, from which a fact finder could infer the 

forbidden motive. n Crawford-EI, 93 F.3d at 819 (citing Siegert, 

500 U.S. at 236 (Kennedy, J.) (concurring opinion)). Further to 

protect defendant officials, the court adopted a heightened 

sta~dard of proof--clear and convincing evidence--to apply both 

at summary judgment and at trial. Li.... at 823. 4 

Following Craw~ord-El's dictates on applying Harlow, this 

Court first turns to the question of whether Hornls allegations 

4 The Court of Appeals offered the following guidance as to 

how a case would proceed in District Court: "Qnce the plaintiff 

has come forward with evidence that a jury could regard as clear 

and convincing proof of the defendant's unconstitutional motive, 

his access to discovery on all issues (including motive) would 

be, in the view of the judges in the plurality, a matter for the 

district court to determine as in ordinary civil litigation. n ~ 

at 823 n.8. 

11 
could const,itute a violation of clearly established law. 5 .I.d... at 

825. Plaintiff argues that Executive Order No. 12,333, reprinted 

in 50 U.S.C. § 401 (1992), is clearly established law violated by 

defendants. This Executive Order, which explicitly applies to 

surveillance of "United States persons abroad," i.d....., requires 

federal officials to obtain approval from the Attorney General 

before conducting electronic surveillance. However, Executive 

Orders generally do not confer a private right of action to 

enforce obligations imposed on Executive Branch officials by such 

orders. In re Surface Mining Regulation Litigation, 627 F.2d 

1346, 1357 (D.C. Cir. 1980) . Moreover, Executive Order No. 

12,333 expressly provides that it is ndt intended "to confer any 

substantive or procedural right or privilege." Exec. Order N. 

12,333 § 3.5, reprinted in 50 U.S.C. § 401. 

In the absence of rights stemming from the Executive Order, 

the crucial question here is whether the Constitution itself is 

violated by American officials who wiretap American citizens on 

foreign soil, and whether the right not to be subjected to such 

5 As noted above, because no court has held that either FISA 

or Title III applies extraterritorially to an American embassy or 

government leased housing, the plaintiff cannot demonstrate that, 

the law was clearly established that those statutes would apply , 

to the immediate fact situation. 

12 
wiretaps is clearly established law. 

More than forty years ago, the Supreme Court Ureject[ed] the 

idea that when the United States acts against citizens abroad it 

can do so free of the Bill of the Rights." Reid v. Coyert, 354 

U.S. I, 5 (1956) (plurality op.). Reid held that the Fifth and 

Sixth Amendments apply extraterritorially to protect the wives of 

American servicemen' tried by military tribunals and United States 

citizens accompanying the armed forces in foreign countries. ~ 

alaQ Kinsella v.United States ex reI. Singleton, 36~ u.s. 234 

~i' 

(1960); McElroy y. United States ex reI. Guagliardo I 361 U.S. 281 

(1960). The Court grounded its decision in the principle that: 

The United States . . . can only act in accordance with all 

the limitations imposed by the Constitution. When the 

government [acts against] . . . a citizen abroad, the shield 

which the Bill of Rights and other parts of the Constitution 

provide to protect his life and liberty should not be 

stripped away just because he happens to be in another land. 

Reid, 354 U.S. at 5-6. 

In United States y. Verdugo-Urquidez, 494 U.S. 259 (1990), 

the Supreme Court further clarified the Reid holding. After· 

arresting Rene Martin Verdugo-Urquidez, a citizen of Mexico, on 

narcotics-trafficking charges, United States Drug Enforcement 

Agents. executed searches of Verdugo-Urquidezts residences in 

Mexico with the authorization of the Mexican authorities, but 

13 
\ 

, 

, 

without having obtained an American search warrant. VerdugoUrquidez then moved to suppress evidence seized during the 

searches on the ground that the DEA agents violated his Fourth 

Amendment rights in failing to justify the search of his premises 

without a warrant. 

Verdugo~Urquidez argued that the Court should interpret Reid 

"to mean that federal officials are constrained by. the Fourth 

Amendment wherever and against whomever· they act. II .I.d..... at 270. 

The. Supreme Court rejected this argument stating that "the 

holding of Re.id. stands for no such sweeping proposition: i.t 

decided that United States citizens stationed abroad could invoke 

the protection of the Fifth and Sixth Amendments." .I.d..... (emphasis 

added). The sole question presented in VerduQo-Urquidez was 

"whether the Fourth Amendment applies to the search and seizure 

by United States agents of property that is .owned by a 

nonresident alien and located in a foreign country./I .I.d..... at 261. 6 

6 The Supreme Court based its distinction between the rights 

of citizens and non-citizens on the text of the Constitution and 

historical evidence. The Constitution itself differentiates 

between "the people" and 'Ithe accused. 1/ The Fourth Amendment, 

along with the First, Second, Ninth, and Tenth, refers to rights 

of "the people," suggesting that those amendments protect "a 

class of persons who are part of a national community or who have 

otherwise developed sufficient connection. with this country to be 

considered part of that community." .w..... at 265. Furthermore, 

historical evidence shows that "the purpose of the Fourth 

14 
e " 

The Court ruled that it does not apply.' 

Several lower courts have held that the Fourth Amendment 

applies to protect United States, citizens from unreasonable 

conduct of United States government agents abroad. saa,~, 

Unit~d States v, Behety, 32 F.3d 503, 510-11 (11th Cir. 1994). 

This Amendment does not apply to a foreign search of American 

citizens only when the United States is not involved in the 

search, Stonehill v. United States, 405 F.2d 738, 753 (9th Cir. 

1968), cert. denied, 395 U.S. 960 (1969); it most certainly 

applies to suppress evidence obtained through a foreign search of 

an American citizen by United States officials. United States y. 

Mount, 757 F.2d 1315, 1317-18 (D.C. Cir. 1985). And in a 

Amendment was to p~otect the people of the United States against 

arbitrary action by their own Government." .I.d... at 266. 

7 Justices Brennan and Marshall dissented on the ground that 

the Constitution applies to acts of the government toward both 

citizens and non-cit.izens abroad, but noted that "nothing in the 

Court's opinion questions the validity of the, rule, accepted by 

every Court of Appeals to have considered the question, that the 

Fourth Amendment applies to searches conducted by the United 

States Government against United States citizens abroad." .I.d... at 

283 n.7 (dissenting op.) (citing United States y. Conroy, 589 

F.2d 1258, 1264 (5th Cir.), cert. denied, 444 U.S. 831 (19~9) 

(Fourth Amendment applies to Coast Guard search of an American 

vessel in Haitian waters); United States V. Rose, 570 F.2d 1358, 

1362 (9th Cir. 1978) (Fourth Amendment applies to search of 

Ame~ican citizen by United States customs officers in foreign 

airport) ) . 

15 
directly factually analogous precedent, this Court has ruled that 

the Fourth Amendment applies to, and requires jUdicial approval 

of, a foreign wiretap of non-military United States citizens 

instituted by the United States Army in Germany. Berlin 

Democratic Club y, Rumsfeld, 410 F.Supp. 144, 156-57 (D.D.C. 

1976) . 

In short, the CIA and the Department of State are not free 

to ,operate outside of the limits of the Constitution, including 

the Fourth Amendment, against a fellow American citizen. Thirty 

yearsag~, the Supreme Court determineq that the Fourth Amendment 

governs wiretap surveillance and implemented a warrant 

requirement to protect against unreasonable searches: the 

government must show a particularized purpose relating to a 

specific criminal offense in order to obtain authorization from a 

magistrate. Berger y. New York" 388 U.S. 41, 50-53, (1967) i Ka.t.z. 

v. United States, 38~ U.S. 347" 352-53 (1967). 

In 'light of these precedents, the Court holds that the 

Fourth Amendment's extraterritorial application to conduct of 

American officials toward American citizens abroad is not merely 

"clearly foreshadowed" by prior caselaw, Zweibon y. Mitchell, 720 

F.2d 162, 172 (D.C. Cir. 1983), but i~ "settled, indisputable 

law." Wood y, Strickland, 42,0 U.S. 308, ·321 (1975). 

16 
The law is considered "settled" where "[t]he·contours of the 

right [are] sufficiently clear that a reasonable official would 

understand that what he is doing violates that right." .Anderson 

y. Creightpn, 483 U.S. 635, 640 (1987). The purpose of the 

"clearly established law" requirement is a simple one: to protect 

federal officials from liability for actions they did not "know" 

to be prohibited by the law. In this case, the defendants cannot 

fairly claim that they did not "know" that the Fourth Amendment 

applied to electronic surveillance of an American citizen abroad;· 

so to conclude would not only ignore the numerous precedents 

outlined ·above, but one would also have to assume, contrary to 

common sense, that agents of the CIA do not know that the tapping 

of the telephone of an employee of another American governmental 

agency stationed in the same capital abroad is not permitted. 

For the reasons stated, the Court finds no basis for: the 

assertion that it.is not clearly established law that a search or 

wiretap of an American citizen by American officials abroad must 

meet the Fourth Amendment requirement of a warrant or probable 

cause. 

Upon concluding that Horn's allegations could constitute a 

violation of a clearly established constitutional right, the 

Court next turns to the question of whether a jury could 

17 
\ , 

reasonably find clear and convincing evidence of defendants' 

unconstitutional motive. Crawford-EI y. Britton, 93 F.3d at 823. 

The complaint alleges· a specific violation of plaintiff's Fourth 

Amendment rights by defendants'warrantless electronic· 

surveillance, and this claim is clearly supported by the State 

Department cable's verbatim transcription of Horn's telephone 

conversation on August 12, 1993 with his subordinate, DEA Special 

Agent Sikorra. Although plaintiff has evidence of only one 

particular interception, it is unlikely that Brown and Huddle 

would·intercept one phone call from plaintiff's residence and not 

any of plaintiff's other conversations. s 

One purpose of the heightened pleading standard in Bivens 

suits is to prevent the scenario in which "[u]nsupported factual 

allegatioris . fail to specify in detail the 'factual basis 

necessary to enable [defendants] to intelligently prepare their 

defense." Martin y. Malhoyt, 830 F.2d 237, 258 (D.C.Cir. 1987) . 

. The. allegations iri Horn's complaint detail when, where, how, and 

by whom the alleged wire-tapping occurred, and they readily 

S Plaintiff has not yet had the benefit of discovery, which 

was stayed pending the resolution of the motion for summary 

judgment. ~ Crawford-El, 93 F.3d at 819. As stated above, the 

cable of August 12, 1993, was inspected by the Court, in camera, 

pursuant to an offer by the defendants to produce this document 

for the Court's inspection. 

18 
provide the defendants with the means to counter the allegations. 

Therefore, defendants' motion to dismiss or for summary 

judgment on the Biyens claim will be denied, and the motion on 

the statutory claims will be granted. 

HAROLD H. GREENE 

United States District Judge 

19