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the military still does not believe that its surveillance of civilians is beyond the law. A. Section 2
1. The Prohibition.—The first part of Section 2 prohibits any civil military officer of the United States from employing any part of the armed forces or a state militia "to conduct investigations into, maintain surveillance over, or record information regarding the beliefs, associations, or political activities of any person not a member of the Armed Forces * * *.” When read in conjunction with the statutory definition of "surveillance” [Sec. 2(c) (4)]“monitoring conducted by means which include but are not limited to wiretapping, electronic eavesdropping, overt and covert observation, and civilian informants"—the prohibition is both broad and clear.
Three general points need to be made with respect to this prohibition. First, it is essentially jurisdictional and does not prohibit surveillance of civilians except by the military. Although we believe that surveillance and intelligence gathering by other agencies of government suffer from many of the same constitutional infirmities described above and must be brought under legislative control,13 the fact that S. 2318 deals only with military surveillance makes its broad prohibition both reasonable and precise. The Constitution itself provides that the military has no jurisdiction over civil matters except as granted by Congress. This does not mean, however, that civilian investigative agencies, such as the F.B.I., cannot investigate persons suspected of engaging in criminal activity affecting the military; it only means that the military has no authority to conduct such investigations. Similarly, the prohibition does not mean that the military cannot investigate military personnel suspected of violating military law, since this is an area in which the military has a clear jurisdictional basis for its actions.
The second general point to be made is that the prohibition is absolute except where Congress specifically provides that it does not apply. This means that there is no grant of a discretionary authority to the Secretary of Defense or any military personnel to determine the circumstances under which surveillance should be permitted on a case-by-case basis. One of the principal features of the administrative prohibition of military surveillance currently in effect (DOD Directive 5200.27) is that the prohibition applies unless surveillance is “specifically authorized by the Secretary of Defense or his designee.” This discretionary approach is entirely inconsistent with the military's lack of jurisdiction over civilians.
The third general point is that the prohibition by its terms is not limited to domestic surveillance but extends to Army intelligence gathering about “the beliefs, associations, or political activities” of American civilians abroad. The recent widespread and intrusive surveillance by the Army of Americans in Germany-using techniques such as wiretapping and mail opening which apparently were not used by the Army even at the height of its domestic surveillance operations—demonstrates what can happen if the prohibition does not apply world-wide.15 This view is consistent with the principle that citizens do not lose their constitutional rights, at least with respect to actions by the United States government, when they travel abroad. See, e.g., Reid v. Covert, 354 U.S. 1 (1956); Kent v. Dulles, 357 U.S. 116 (1957). Furthermore, there is even less statutory basis for the military to conduct surveillance abroad than there is for it to do so domestically, since the “insurrection statutes" (10 U.S.C., $$ 331-34) are limited by their terms to domestic disorders.
2. The Exceptions.—Section 2(b) specifies four exceptions to the general prohibition against military surveillance.
The first permits surveillance operations to commence after the President has “actually and publicly” assigned troops to repel an invasion or suppress a rebellion, insurrection or condition of domestic violence, pursuant to the Constitution or the "insurrection statutes.” While this exception is probably necessary, it must not be read to authorize wholesale suspension of constitutional rights within an entire region or state as a result of a presidential troop call-up in one locality under 10 U.S.C. $8 331-34. It has long been settled that while civil government is still functioning the Constitution forbids the military from acquiring jurisdiction over civilians. The Supreme Court held more than a century ago that military necessity does not justify a suspension of constitutional rights unless "[t]he necessity [is] actual and present, * * * such as effectively closes the courts and deposes the civil administration." Bu Parte Milligan, 71 U.S. (4 Wall.) 2, 127 (1866) (emphasis supplied). For this reason the military should be required to use the least drastic means available, consistent with the constitutional rights of civilians, to collect the intelligence it requires to perform its statutory function after being publicly assigned by the President to repel an invasion or suppress a rebellion.
13 See, e.g., Statement of Aryeh Neier and John H. F. Shattuck on behalf of the American Civil Liberties Union. On S. 2963 and S. 2964 Relating to Criminal Justice Information Systems, before the Subcommittee on Constitutional Rights, Senate Judiciary Committee, 93rd Cong. 2nd Sess. (March 7, 1974), at pp. 11-13.
14 This is not to suggest, however, that the military can investigate in a manner which violates the constitutional rights of soldiers or other military personnel. See e.g., Committee for GI Rights v. Schlesinger, 42 L.W. 2365 (D.D.C. January 11, 1974).
15 DOD Directive 5200.27 (March 1, 1971) does not apply to military units overseas.
The second exception allows the military to investigate two separate types of criminal activity: (1) "criminal conduct committed on a military installation” and (2) "criminal conduct ... involving the destruction, damage, theft, unlawful seizure or trespass of the property of the United States.” Crimes committed on military installations fall under military jurisdiction and are properly excepted from the prohibition of S. 2318. There is no particular reason why crimes against "the property of the United States,” however, should be regarded as coming within military jurisdiction. The Federal Criminal Code specifies many crimes against federal property which are routinely investigated by civilian law enforcement agencies and prosecuted by the Justice Department. There would appear to be no compelling reason to grant the military a concurrent jurisdiction to investigate such crimes, particularly if they do not necessarily involve military property. Crimes against military property, moreover, would fall within the exception for criminal conduct committed on a military installation. The broad federal property crimes exception, therefore, is an unnecessary expansion of military jurisdiction.
The third and fourth exceptions are, at least for the purpose of this bill, narrowly drawn and generally acceptable. The third exception-military and defense facility employment screening-requires a clear statement in the legislative history that the military cannot collect information about “the beliefs, associations or political activities” of civilians simply in order to evaluate their suitability for employment in case they should ever apply. The exception should be construed to permit only those security investigations which are reasonably necessary preconditions to particular kinds of employment in the military, and which are conducted only after a civilian has in fact applied for such employment. The fourth exception excludes from the general prohibition state militia called up by state governors. If this exception were to encourage states to use their militia for political surveillance, it would raise serious constitutional questions. For this reason it would be wise to indicate in the legislative history that the exception is not intended to authorize state militia to engage in surveillance activities otherwise prohibited by federal law. B. Section 3
Section 3 contains two separate forms of civil remedy for violations of the broad prohibition set forth in Section 2. Both are essential to the enforcement of the prohibition, although each in its present form requires some amendment.
1. Individual actions for damages and equitable relief.—The bill provides that “[w]henever any person is aggrieved as a result of any act which is prohibited" by Section 2(a), such a person may bring a civil suit for damages regardless of the amount of pecuniary injury. Similarly, “[w]henever any person is threatened with injury as a result of any act which is prohibited" by Section 2(a), such a person may sue for an injunction against the prohibited act.
Neither of these provisions is satisfactory because the use of the terms, "aggrieved” and “threatened with injury”, begs the question posed by Laird v. Tatum : what protected interest is invaded by military surveillance of civilians? The answer should be that whenever the "beliefs, associations or political activities of any person not a member of the Armed Forces" are the subject of military surveillance, that person's freedom of speech and association and right to privacy are abridged, regardless of whether he suffers any additional
form of injury as a result of the surveillance, such as the loss of a job or the inhibition of his political behavior.
Section 3(a), therefore, should be amended to provide as follows: "82691 Civil Actions Generally; Illegal Surveillance
“(a) Whenever any person is the subject of any investigation, surveillance or data-keeping prohibited by Section 1386 of Title 18, United States Code, such a person may bring a civil action for damages and/or equitable relief irrespective of the actuality or amount of pecuniary injury suffered.”
2. Class actions for injunctive relief.-Section 3 also creates a form of abstract standing for “any person who has reason to believe that a violation of Section 1386 * * * has occurred or is about to occur” to bring a class action “to enjoin the planning or implementation of any activity in violation of that section." While this sweeping grant of civil enforcement authority to citizens to act as "private attorneys general” is certainly in the interest of the American Civil Liberties Union, it is worth pointing out that this provision may be too broad to pass constitutional muster.
The minimal constitutional standing requirement is that a party have a “personal stake” in the outcome of the litigation. Baker v. Carr, 396 U.S. 186, 204 (1962). This stake need not be more than a “logical nexus" between the status of the party and the infringement alleged, as, for example, a taxpayer's interest in the non-expenditure of public funds for constitutionally impermissible purposes. Flast v. Cohen, 392 U.S. 83, 101 (1968). With respect to military surveillance, therefore, a party could establish constitutional standing to challenge a prohibited investigation either as a subject or prospective subject of the surveillance, or as a taxpayer.
On the other hand, apart from this constitutional question, there is nothing objectionable about the broad standing that would be conferred by Section 3(a) of S. 2318.
The class action provision is itself a safeguard against floods of litigation, since a certified class action would necessarily involve the consolidation of claims. Furthermore, it should be noted that at least one federal statute, the Freedom of Information Act [5 U.S.C. § 552], confers an even broader standing upon “any person” than does S. 2318.
S. 2318 is an important piece of legislation. Its enactment would go far toward curing what Justice Douglas called “a cancer on our body politic” in his dissent in Laird v. Tatum. Because the use of the military in the civilian arena is so abhorrent to our constitutional form of government, we urge the Congress to adopt the broadest possible prohibition against military surveillance, declaring civilian politics jurisdictionally off-limits for the armed forces.
Thank you for the opportunity to appear before the Subcommittee today.
Senator Ervix. Thank you, Mr. Shattuck, for a very enlightening statement.
The committee will stand in recess until tomorrow morning when we meet at the same place
(Whereupon, at 1:10 p.m., the committee recessed to reconvene at 10 a.m. on April 10, 1974.]
WEDNESDAY, APRIL 10, 1974
Washington, D.C. The subcommittee met, pursuant to recess, at 10:05 a.m., in room 2228, Dirksen Senate Office Building, Senator Sam J. Ervin, Jr. (chairman) presiding.
Present: Senator Ervin.
Also present: Lawrence M. Baskir, chief counsel; and Britt Snider, counsel.
Senator Ervin. The Subcommittee will come to order.
Mr. BASKIR. Mr. Chairman, our first witnesses are Mr. David O. Cooke, Chairman, Defense Investigative Review Council, Department of Defense; Mr. Robert Andrews, Office of the General Counsel, Department of Defense; and Mr. Rowland Morrow, who is Executive Secretary, Defense Investigative Review Council.
Senator Ervin. I want to welcome you to the subcommittee and express our appreciation to you for coming to give us the benefit of your views in respect to this legislation.
You may proceed in your own way.
TESTIMONY OF DAVID 0. COOKE, CHAIRMAN, DEFENSE INVESTI
GATIVE REVIEW COUNCIL, DEPARTMENT OF DEFENSE; ACCOMPANIED BY ROBERT T. ANDREWS, OFFICE OF THE GENERAL COUNSEL, DEPARTMENT OF DEFENSE, AND ROWLAND A. MORROW, EXECUTIVE SECRETARY, DEFENSE INVESTIGATIVE REVIEW COUNCIL
Mr. COOKE. Thank you, Mr. Chairman.
Mr. Chairman, the Department of Defense welcomes this opportunity to respond to the subcommittee's request for our views on Senate bill S. 2318. Inasmuch that this proposed legislation is aimed directly at members of the Armed Forces, personnel of the Defense Department and our national military establishment, it seems appropriate that we should be consulted and that our views be heard on such a vital subject. It is our sincere desire to be helpful to this subcommittee in approaching legislation so fundamental to the role which the military establishment has been asked to fulfill in our society at different times in history.