The bill appears to make no provisions for those situations wherein the Armed Forces are called upon by either statute or executive order to assist other governmental agencies in performing governmental tasks. Examples of these are assistance to the Secret Service in protecting public officials, candidates during Presidential campaigns, foreign visitors; assistance to the Drug Enforcement Agency in international narcotics interdiction efforts; assistance to State and local law enforcement agencies, with the loan of equipment, firefighting devices, natural disaster assistance in cases of floods, tornadoes, aerial pursuit of aircraft hijackers, et cetera. An example we are sure must not have occurred to your subcommittee is the need for the Army Corps of Engineers when involved in public works projects to prepare environmental impact statements including the details and rationale for any community opposition to Corps of Engineers projects. Many of these involvements with other Federal or local agencies might bring the military participants unto unwitting violation of the criminal prohibitions contained in this bill.

The Department of Defense also from time to time becomes involved in counterespionage operations in cooperation with other Government agencies in a manner which might bring them into conflict with the statute. These are very important and sensitive matters which I do not wish to spell out in greater detail except to note that the target of such operations is a foreign intelligence organization. Surely we do not wish to inhibit, let alone preclude, such vitally important national security investigations.

I would now like to address the specific language of S. 2318. On receipt of the comments of the military departments on the proposed legislation I requested that Department of Defense representatives meet with your subcommittee staff members to discuss the overbreadth features of the bill. Certain of the difficulties in drafting effective and realistic legislation were related to your staff. Thereafter, lawyers from the three military departments again convened to consider ways and means by which this might be overcome. These efforts highlighted several issues which we believe should be resolved before any legislation is reported out of subcommittee.

The first and foremost problem is one of defining precisely the specific acts which constitute a crime. For example, the bill applies to investigations regarding "beliefs, associations, or political activities", but it does not define this very essential element. While we have considered various definitions, we have experienced practical difficulties in developing a meaningful legislative description of political activities that would be clearly understood by our personnel, and that would stand a court test when challenged. Another definitional problem arises from the apparent distinction in the bill between "investigation" and "surveillance". As we see it, the apparent intention of the bill is to outlaw, under certain circumstances, the use of persons and investigative devices, by either covert or overt means, for the purpose of obtaining information about the political activities and beliefs of civilians having no

affiliation with the Department. It appears unwise to create definitional problems by using two separate terms, and especially to include "electronic surveillance" which is already covered by existing legislation.

A second major drafting problem is to spell out, in express terms, the scope of the prohibition against politically oriented investigations. This also applies to records the maintenance of which would constitute a crime. In ruling against the Subversive Activities Control Act in U.S. v. Robel, 389 U.S. 258, at 262, the court made an ob-servation which has application to the legislation now before you. In referring to the Aptheker case, Chief Justice Warren stated in part:

We held that the clarity and preciseness of the provision in question makeit impossible to narrow its indiscriminately cast and overly broad scope with-out substantial rewriting. Id., at 515, S. Ct., at 1669. We take the same view of Section 5(a) (1) (D), of the Subversive Activities Control Act. It is precisely because that statute sweeps indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment.

Without a considerable narrowing of the scope, the bill would appear to have application to a countless number of records within the Department of Defense, confined not alone to criminal or investigative files, but to records centers, libraries, public information centers, and other offices totally unrelated to the intended objective. The third problem is to enumerate with precision the several instances in which investigations and records are properly exempted from the application of the bill. While S. 2318 properly recognizes the need for the military forces to be employed in investigative activities in four enumerated areas, it falls considerably short of giving proper recognition to a number of other legitimate and well recognized defense needs. In our earlier testimony we referred to a number of specific examples where use of military investigators was justified because the matter under investigation involved property, personnel, funds, activities or security interests of the Department of Defense. Of particular concern is the failure of the bill to exclude instances in which military personnel are assigned or detailed to carry out a statutory function of another agency. Although the Posse Comitatus Act, 18 U.S.C. 1385, recognizes these statutory exceptions, the exceptions in the proposed section 1386 do not.

The fourth area of concern to the Department of Defense and its personnel is the provision authorizing civil actions for damages irrespective of the existence of any pecuniary injury. Equally objectionable is the provision calling for injunctive relief by individuals or classes of persons similarly situated. While we recognize this proposal as an effort to overcome the Laird v. Tatum decision, 408 U.S. 1 (1972), we believe the majority opinion is sound when it declared:

Allegations of a subjective "chill" are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harms; "the Federal courts established pursuant to Article III of the Constitution do not render advisory opinions”. United Public Workers v. Mitchell, 330 U.S.. 75, 89 (1974).

We might add, that in opposing these so-called remedies, the military departments are not without means of correcting deficiencies or errors in the system. The departments have taken action to discipline persons who have violated regulations governing the investigation and record keeping of persons having no affiliation with the Department of Defense. In less serious offenses, the military member may receive an official reprimand. In more serious cases the offending person could be charged under the Uniform Code of Military Justice.

On a more positive note, we should mention that the proposal to extend the Posse Comitatus Act to the Navy and Marine Corps is easily accomplished. In fact, it would be nothing more than a reflection of present administrative practices. By SECNAV instructions, the Navy and Marine Corps are bound to the same constraints that are applicable by law to the Army and Air Force. However, the extension of the prohibition to the Coast Guard is a matter to which I defer to the Secretary of Transportation. We might note, however, that the Coast Guard has specific law enforcement responsibilities which have not been taken into consideration. To sum up, we have attempted in our testimony here today to review for you the intensive efforts we have made within the Department to confine our investigative activities to their proper sphere. Over the past several years we have been furnishing this subcommittee with clear evidence supporting the conclusion that the situation which previously existed is no longer an issue to be addressed by legislation. Most significantly we hope that we have demonstrated to this subcommittee some of the legal and practical problems in drafting a criminal statute which will pass constitutional muster. We hope we have shown that the present version of this bill has fatal overbreadth problems, and that the serious effort which must be made to narrow down in the requisite precise language required of a criminal statute to prescribe the mere acquisition of and holding information in a governmental agency is a virtual impossibility.

Because of the numerous flaws in the present bill, the indiscriminate sanctions it would impose on unlimited classes of persons for mere record keeping, and the potential burdens it would impose on first amendment freedoms for persons not only within the Department of Defense but also upon any "civil officer of the United States" we must record our unqualified opposition to S. 2318.

Most significantly, we believe we have demonstrated that the problems which led to the extensive hearings this subcommittee conducted in 1970 and 1971 are now a part of history. Spurred by the light which your hearings shed on this issue, the Department of Defense set about in a most positive way to correct the excesses which the civil disturbance intelligence collection mission had engendered. Great credit must go not only to this subcommittee for lighting the way but also our former Secretary of Defense, Melvin R. Laird, who initiated the strongest possible measures to restructure and regulate the investigative resources within the Department. Three years later, these policies are now a secure part of our

doctrine. We have demonstrated we have the mechanism to ensure that our policies are observed in both letter and spirit. Secretary Schlesinger fully supports these controls and has made it crystal clear that the close supervision, inspection and review of investigative activities shall continue.

We thank the chairman and the subcommittee for the opportunity of sharing our views on this important issue.

Mr. Chairman, we thank you for this opportunity.

Senator ERVIN. You state that the definitions are not sufficient. Can you define the word "beliefs" any more than the word "beliefs" defines itself?

Mr. COOKE. Mr. Chairman, we believe that the conjunction of the definitions of "beliefs, associations

Senator ERVIN. Let's deal with beliefs first, because the first amendment allows anybody to believe anything they want to.

Mr. COOKE. Indeed it does, sir. We in the Department of Defense certainly support the right under the first amendment of anyone to believe anything he wants to.

Senator ERVIN. Can you define "beliefs" any more than the word "beliefs" defines itself? I can't.

Mr. COOKE. Mr. Chairman, we find that very difficult to do.

Senator ERVIN. I don't think it can be done. I don't think there is any use in trying to define the indefinable when the definable defines itself.

The same thing is true of the word "associations". I think a man has a right to join any association he wants to.

Mr. COOKE. We agree.

Senator ERVIN. And I think that a man has a right to engage in any political activity he wants to.

Mr. COOKE. We agree.

Senator ERVI. Well, that is all this bill protects.

Mr. COOKE. Mr. Chairman, I think it does considerably more. It makes it a criminal provision to conduct investigation, maintain surveillance or record or maintain information.

Senator ERVIN. You are saying, for example, there is no provision here to allow the Department of Army to require security checks for people who are already in service, that is, employed by the Army. But subsection 3 on page 3 says you can conduct investigations to determine the suitability of employment or the retention of employment of any individual actually seeking employment or employed by the Armed Forces of the United States or by the militia of any State or a defense facility. If you require a man to undergo a security check in order to retain employment, you can certainly investigate him.

Mr. COOKE. Mr. Chairman, we do not require a man to undergo a security check to retain employment. Under the Executive orders, we require a security check to grant him a specific level of security clearance, depending upon his need and access to classified infor

mation.

The fact that for one reason or another he may not qualify for a clearance to top secret does not mean his employment or his enlistment in the Armed Forces would be terminated.

Senator ERVIN. Well, this bill doesn't say that.

Mr. COOKE. This bill, in our judgment, Mr. Chairman, would restrict this.

Senator ERVIN. This bill, from reading your statement, has apparently conjured up more non-existent legal ghosts than ever imagined. There is not a syllable in this bill that deprives the Army of anything it now has the lawful power to do. It just forbids the use of the military to suppress the beliefs and the associations or the political activities of people.

Mr. COOKE. Mr. Chairman, section (b), section 2(b) of the bill provides for four limited exceptions to section 2(a) of the bill. Senator ERVIN. Yes, and section

Mr. COOKE. Apparently, the provisions of Section (b) were inserted because in the view of the drafters of the bill, without such specific exceptions, those activities described in section (b) would fall within the purview and the criminal restrictions of section (a) which make it a crime to conduct an investigation, retain surveillance, record or maintain information.

Senator ERVIN. This section was intended to keep somebody else from conjuring up some legal ghosts. You have got a right to inquire into the man's associations when you want to hire him. You have a right to do that.

I don't object, if you want to read the Congressional Record but this bill doesn't prohibit that, because you don't get a copy of the Record by spying.

Mr. COOKE. Mr. Chairman, the provisions of section (a) make it a crime to record or maintain information regarding beliefs, associations, or political activities. As we read section (a), section (a) does not limit the records or information to records or information obtained by liaison or by investigation but rather proscribes or forbids retention of all information or records regardless of how obtained if they relate in one way or another to beliefs, associations, or political activities.

Senator ERVIN. I don't think it is susceptible to that interpretation when you understand the overall purpose.

You say under this Army Corps of Engineers cannot even prepare an environmental report.

Mr. COOKE. Mr. Chairman, the Army Engineers in preparing an environmental impact statement are required to record opposition to it as part of the statement. In our reading of the bill that would be proscribed; not only proscribed, but would subject the Army Engineers to criminal penalties.

Senator ERVIN. Do you really think that?

Mr. COOKE. I do.

Senator ERVIN. Well, if this means what you say, it would be impossible to ever draw a bill on this subject, wouldn't it?

Mr. COOKE. Mr. Chairman, it would be difficult and is. We have, following the meeting of the Defense representatives with your staff, been working hard on this, and we have found it is a very, very difficult task to draw proper legislation in this field. I would hesitate to say that it is impossible.

Senator ERVIN. Well, you object to the sanctions in it.