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The proposed legislation would make it a criminal act for any official or other members of the military establishment to acquire or maintain information relating to the "beliefs, associations, or political activities” of any person or organization not affiliated with the Armed Forces. While we understand and appreciate the history which led to drafting this legislation, and agree that there should be clear limitations and boundaries on the jurisdiction of the military to investigate persons outside of the Armed Forces, we have concluded that legislation which would provide for criminal penalties, injunctive relief and civil damages is not only illadvised, but would provide a number of unintended results.
It may be useful to review for the benefit of the subcommittee the steps the Department of Defense and the three military departments have taken to restructure our investigative activities. We have over the past 3 year's been in communication with the chairman of this subcommittee, furnishing him with updates and status reports, and have also responded to several searching inquiries of the subcommittee since their investigative hearings were concluded. The purpose of this correspondence was to provide information by which the Congress could be assured that the military investigator is now being utilized solely in activities directly related to the protection of military functions, personnel, and property. We are convinced our own inspection and close monitoring activities have brought our investigative activities under close civilian control and that the problems which arose in 1968 and 1969 are now part of history.
Among the actions the Department of Defense has taken to bring all investigative actions within the Department under control of the civilian leadership are:
In February and March of 1971, we created for the first time a Department-wide defense investigative program, which places responsibility for the direction, management, and review of all
program activities under a civilian Assistant Secretary of Defense, and assigned to the secretaries or under secretaries of the military departments responsibilities for the investigative activities of 'their components.
We created a Defense Investigative Review Council (DIRC) composed of top leadership from the Department of Defense, the military departments and the Defense Intelligence Agency for policy overview, monitoring and inspection of investigative activities across the board in all military departments and defense agencies. The Defense Investigative Service is also subject to their policy overview and inspection.
We initiated an on-going program of unannounced inspections of all component investigative and related security organizations to assure strict compliance with policies on the acquisition of information relating to persons not affiliated with the Department of Defense.
We adopted stringent and carefully worked out retention criteria governing the acquisition and retention of information relating to civilian organizations or persons not affiliated with the Department of Defense.
We fashioned inspection techniques, announced uniform terminology throughout the investigative world in defense, established policies on the screening and disposition of information received gratuitously from walk-in's or via liaison with other agencies; developed standards governing the inclusion and disposal of information in counterintelligence publications; standards for recruitment and training of investigative personnel; criteria and standards for seeking and processing requests for special operations, and for bilateral counter-espionage operations. The list goes on with over a dozen additional actions by the DIRC, addressing a wide spectrum of problems as they arose. These problems were thoroughly staffed by a DIRC working group, with final action by the Council acting in joint session. The DIRC continues to meet regularly though not as frequently as we did during 1971 and 1972.
Significantly, the DIRC principals have conducted 14 separate unannounced inspections throughout the country, in which the DIRC principal member-either the Chairman, one of the service Under Secretaries, General Counsel, or Director of the Defense Intelligence Agency-personally participated. These inspections have been in addition to internal inspection of investigative activities required by departmental directives which the service Secretaries are required to report on annually. This inspection program continues.
We developed a carefully regulated system for receiving any information relating to potential civil disturbances from the Department of Justice, having it reviewed and evaluated only at departmental level, making no dissemination of permanent record of such information unless and until specifically authorized by the Under Secretary of the Army.
It was against this experience of civilian authority, direction, and control that I wrote you on March 19, 1974, and addressed what I considered the central concern of your subcommittee-whether the efforts by responsible officials in the Department of Defense have been effective in assuring that military investigative activities are limited to their proper and intended sphere. In that letter I stated :
It is our belief that the excesses of the past have in fact ended; that investigation components have been thoroughly imbued with the restrictions placed on them; and that, with only negligible exceptions such restrictions have been complied with, in spirit as well as letter.
I offer these assurances not as a matter of what we hope to see, but as an expression of the progress that has been achieved, backed by the personal participation of the top civilian leadership. It is to demonstrate this point that we have gone to the length of providing you with our internal reports of unannounced inspections. Without attempting to minimize the few discrepancies that have been disclosed, primarily involving the retention of old files, these reports are compelling confirmation of the degree of current compliance, which approaches 100%.
We have demonstrated that by limiting our investigative activities solely to those matters directly related to the protection of our own property, functions and personnel, we have been able to function adequately. We have built in, as I am sure this subcommittee is aware, some flexibility for the approval at top Defense level for what we call special operations, which involve obtaining information relating to organizations not affiliated with the Department of Defense which we perceive as presenting a direct and immediate threat to our functions and personnel. This extraordinary authority for approval of special operations has been exercised on extremely few occasions and only in cases where we felt there was a direct threat to the safety or continued efficient functioning of our units.
Although we also have provided by our directives for the Under Secretary of the military department personally to authorize attendance at demonstrations or meetings in the civilian community, this authority has never been invoked since the regulation was promulgated in early 1971.
All computer data banks on nonaffiliated civilians have long since been destroyed and no new ones have been created, although our directives do have a proviso that the Chairman of the DIRC might authorize the creation of such a data bank. No one has even applied for such permission, and we see no likelihood in the foreseeable future for the creation of such data banks.
We have been systematically purging files previously accumulated in the field of any information relating to persons not affiliated with the Department of Defense. Field inspections confirm that these files are entirely purged. However, there remain a large number of files in dead storage in central repositories which may or may not contain information on nonaffiliated persons. To handle these and prevent the unauthorized use or dissemination of such information we have well-established screening programs which require that any file being requested from record repositories is first examined to determine whether it contains information relating to a nonaffiliated person. If, upon retrieval from storage and examination we find it pertains to a nonaffiliated person, it is destroyed on the spot and the requester gets a “no-record” response.
We think it unavoidable for some years to come that we will, from time to time, come upon files in our major record repositories, which contain--for example, FBI reports on persons not affiliated with the Department of Defense. Full scale screening and purging of all such files would cost us many millions of dollars. We believe our existing screening and purging systems are fully adequate to prevent the utilization of any information we may unwittingly have on nonaffiliated persons.
The DIRC has addressed the issue of whether the DIRC should apply its restrictions overseas. In November 1971, after considering all the pros and cons of establishing investigative and recordretention constraints worldwide, the DIRC decided that this would be inappropriate. Differences in relationships with foreign governments, treaties, status of force agreements, and some unstated or unwritten accords all serve to make application of the policies abroad enormously complicated and create more problems than it would solve. Moreover, the extension of the investigative constraints on the military investigator abroad does not appear to be necessary from a public policy standpoint as it is in this country, where the
FBI has primary internal security responsibilities. Also, in overseas areas, the idea of investigative activity is intimately connected with and commingled with foreign intelligence operations and missions, whereas in the United States these two functions are easily separable. To extend investigative policies abroad would tend to blur the distinctions we have drawn between intelligence gathering on the one hand and investigations of personnel on the other. For these reasons, the Defense Investigative Review Council voted unanimously not to extend the investigative policies of DOD Directive 5200.27 beyond the geographical boundaries of the 50 States, the District of Columbia, Commonwealth of Puerto Rico, and U.S. territories and possessions.
I would now like to turn to a consideration of S. 2318 as introduced by you, Mr. Chairman and your cosponsors:
The Department of Defense is in full accord with the proposition that unrestricted investigation of the political activities of persons and organizations in the civilian community should not be permitted. At the same time, the Department of Defense has a well recognized need to conduct investigation of civilians where such activity is related to a legitimate Government interest. Because S. 2318 fails to draw a clearly defined line between impermissible investigation and that which is necessary and important in carrying out the mission, the Department of Defense is opposed to the enactment of any criminal statute. Moreover, after considering legislative changes to accommodate to the legitimate needs of the military departments, the Department concluded that, even in its revised form, the criminal legislation would not materially add to the administrative restraints and controls already promulgated by the Secretary of Defense and the service Secretaries.
Among representative problems that would arise if S. 2318 were enacted in its present form would be the following:
Military members could be charged with a crime if they are found in possession of the Congressional Directory. The latter document, one must admit, serves very well as a “dossier" on the “beliefs, associations, or political activities”—to use the bill's language-of members of this subcommittee as well as the entire Congress. A similar criminal penalty would flow from possession of such other innocuous or irrelevant publications as "Who's Who", Martindale Hubbell's Legal Directory or Washington's "Green Book".
The bill makes no exception for the possession of published literature such as the Congressional Record, publications of other subcommittees of the Senate Judiciary Committee such as its Internal Security Subcommittee. Its indiscriminate lumping together of all kinds of innocent information or literature within the prohibited ambit of "maintaining and recording" information on beliefs, associations or political activities is a serious flaw, and itself a possible infringement upon first amendment rights.
Possession of the Attorney General's list of subversive organizations would become a clear criminal act under this bill.
The bill prohibits military officials and members from engaging
in any and all kinds of investigation and information gathering on any person, whether affiliated with the Armed Forces or not, except for the four narrow and specific exemptions listed in the bill. Paradoxically, three of these exceptions permit investigations not of civilians but of ourselves.
The bill prohibits receipt of any information via liaison with the FBI or others relating to threats from civilian groups outside the Armed Forces affecting the safety and welfare of the DOD personnel, property or functions. Our reading of the bill indicates to us that if a civilian group with a patina of political orientation such as the Black September terrorist group or the Symbionese Liberation Army, should be planning but has not yet committed a terrorist attack on a military base, or plans to steal nuclear material or other weapons, we would be in violation of the criminal statutes if we record or maintain such advance threat information. Such a result is insupportable.
The bill would permit investigation of the suitability for employment of persons seeking employment with the Armed Forces but inexplicably omits any mention of investigation of persons for security clearances required either in the course of their employment with the Armed Forces or in private industry wherein access to classified national security information is required.
The bill would prohibit the receipt of any information from any source relating to an impending civil disturbance, unless the President has publicly assigned the Armed Forces to the task of repelling invasion or suppressing rebellion, insurrection or domestic violence. This, of course, would deny the military any advance information which might permit them to preposition troops as we have done on several occasions over the past three years. Advance information received from the Department of Justice has been found essential if the Armed Forces are to perform their proper missions assigned them pursuant to title 10 of the U.S. Code.
The purported exemption in the bill designed to permit the Armed Forces to investigate criminal conduct committed on a military installation is not sufficiently broad to permit investigations of a wide variety of criminal acts such as narcotics trafficking involving both military personnel and civilian pushers, procurement fraud, black marketing, bribery, conflicts of interest, surplus property disposal, collusion with civilian contractors, most of which investigations are run in concert with civilian law enforcement agencies.
The same criminal exemption clause would preclude us from investigating conspiracies, suspected espionage, planned thefts of weapons, inducement to sabotage, attempts to solicit classified information from military personnel and other attempted crimes which have not yet resulted in a completed criminal act.
We find no language in the bill which would permit us to investigate threats made to officials of the military departments, such as harassing phone calls, cranks, or "crazies” who threaten the safety of our personnel. We submit we ought to be able to protect our own people, and not at the risk of facing criminal charges ourselves under this bill.