« PreviousContinue »
paragraphs so designated. The classified paragraphs relate to the Canal Zone, if my memory serves me correctly, but they do not affect the tenor of the report as it applies to the Canal Zone, or the DIRC, but rather notes the inspection team's awareness of military missions being accomplished outside the purview of the DIRC.
The inspection's findings from that inspection, are fully noted in the 15 unclassified paragraphs and the discrepancies relate solely to the retention of records.
Mr. Baskin. There is no problem in declassifying those ?
Mr. Cooke. I think there would be a considerable amount of problem in declassifying these too.
I have not looked at them personally, but as I say, they relate to matters outside the purview of the DIRC.
Mr. BASKIR. Is there any problem with the committee publishing the unclassified DIRC inspection reports?
Mr. CookE. We have not specifically examined that, Mr. Baskir. As you know, these reports are internal working documents where one could have argued that they should not be furnished to the committee, but in earnestness of our good faith, we voluntarily submitted them to the committee. I think the information, not so much in reports themselves, but the concept of publishing unclassified-publishing internal working documents, is a very serious precedent. We have to examine that. I will say we have made the reports available to you in your role and we will continue to do so. But I have reservations about printing them publicly.
Mr. BASKIR. The reason I suggest that is that it might do much to reassure the general public as to the effectiveness of the work you describe in the opening pages of your statement. If you were not only to make these previous reports public, but also on a regular basis make them available to reporters and the general public, I think it might do much to
Mr. COOKE. In that regard, I was heartened by the comments of the Chairman on our good efforts with particular regard to the inspections, and I think perhaps if you could in turn reassure the general public pursuant to your continuing oversight responsibilities
Mr. BASKIR. With respect to the regulations, the DOD regulations and subsidiary regulations and interpretations, there was a problem back in 1970 of certain rules and regulations being issued by the Department or by the Army to limit surveillance, and then certain classified exceptions were issued contemporaneously which were not made available. Would the Department agree or see any difficulty in publishing, let's say in the Federal Register or some generally accessible public record, the regulations and all subsequent changes and agreeing that no changes would be made except those made publicly?
Mr. COOKE. I am not aware of any classified exceptions to the policies enunciated in DOD Directive 5200.27–
Mr. BASKIR. I am referring to something that happened before that regulation was issued.
Mr. CookE. I can't specifically identify the issue to which you are referring. I will note, however, that each of the military departments have published regulations binding upon their members implementing the provisions of DOD 5200.27, and a typical example, if you will bear with me a minute, is the Army promulgation of the same subject as the DOD directive, which states that this Army regulation is the “sole authority” for the implementation of 5200.27 in effect.
In other words, if you are inquiring about whether we would object to the publishing of the service regulations implementing 5200.27, then our answer is we would have no objections whatsoever.
Mr. BASKIR. Would the Department agree that no exceptions or changes or modifications of these regulations in the future would be made by any classified regulations, that all changes would be made in an unclassified nature?
Mr. COOKE. Yes.
Senator Ervix. I think that the reason that you and I have so much difference about this bill is illustrated by the statement on page 13 of your transcript which says "we find no language in the bill which would permit us to investigate threats made to officials of the military departments”. You evidently construe the law to prohibit everything it doesn't permit. Under that construction, you might construe this law to prohibit marriages between a military man and civilian because it doesn't specifically authorize them to get married.
Mr. ANDREWS. Mr. Chairman, I was here in 1971 when we discussed what could be done and what could not be done in this area.
As I recall it, the distinguished Chairman pointed out rather forcefully, at the time that in this area we could not act unless we had authority. It seems to me here we are being given a bill which says we shall not act and it makes it a crime to act. So therefore, we are very wary of trying to write in or read into the bill exceptions which I think we are both in agreement should be recognized.
You see those exceptions in the bill. We do not.
Senator Ervin. Well, according to the interpretation Mr. Cooke has put on it, this bill prohibits anything, it does not expressly permit
. If you have to draw a bill like that, it would be about twice the length of the Encyclopedia Britannica and the U.S. Code all
I don't think this bill prohibits anything except collecting information about the beliefs and the associations and the political activities.
Mr. ANDREWS. May I ask the Chairman a question for purposes of clarification?
Senator ERVIN. Yes, sir.
Mr. ANDREWS. Do the words "activities and associations", are they related to political activities or separate and apart?
Senator ERVIN. Yes.
Mr. ANDREWS. So the word “political" characterizes beliefs, activities, and associations, fine.
Now, do the reports that we would maintain, are those reports obtained as a result of our investigations or are they any reports that we might receive outside of our investigative efforts?
Senator ERVIN. Those are the things that the Army receives, or that they gain by using the military to exercise surveillance over civilians not connected with the Army for the purposes of finding out what their beliefs are, what their associations are, and what their political activities are, which is none of the business of the Defense Department.
Mr. ANDREWS. So the chairman reads it as such reports as we obtain as a result of an investigation?
Senator Ervin. Yes. I don't think it prohibits you from reading the Encyclopedia Britannica or the Bible or the newspaper.
Mr. ANDREWS. We are comforted by your interpretation.
We would suggest the bill include a provision which contain words of such a character. The problem could be met by adding “compiled as a result of such investigation" after the word "records".
Senator Ervin. I think that would clarify it and I appreciate your suggestion. Mr. Snider.
Mr. SNIDER. Mr. Cooke, you have objected to the language of S. 2318. I wonder if you would object if we just dropped that language and substituted the language of DOD directive 5200.27 and made that a statute ?
Mr. COOKE. We obviously would find that considerably more acceptable. There are still drafting problems, and I repeat the offer I made-I think there will be drafting problems in drafting that as a criminal statute.
May I ask my representative from the General Counsel's office to further comment on that proposal?
Mr. ANDREWS. The military departments, the civilian lawyers, I might add, assembled to determine whether this could be done. The directive language can be written in such a way as to give adequate guidance. When you translate that into a law, particularly into a criminal law, we had definite problems in defining terms in making sure that what we wrote specified the crime clearly.
We have some ideas and I think that the chairman's comments very recently about how he reads the bill would aid us considerably in narrowing the prohibition and thus avoiding a longer list of exceptions.
Mr. SNIDER. Are you saying that the DOD directive is not clear enough?
Mr. ANDREWS. I think the DOD directive is quite clear enough for administrative management purposes, but it is quite a different thing to write a criminal statute.
Mr. SNIDER. Does the DOD directive make an exception for Who's Who, for having a copy of Who's Who?
Mr. ANDREWS. I am sure it does. Because it talks about investigative reports and what may be collected and what may be retained. I think with the chairman's interpretation, we don't have a problem.
Mr. SNIDER. The directive does not apply outside of the United States and its territories and possessions. That has been established.. Why was it so restricted ?
Mr. COOKE. I believe the answer is in my statement, contained in my written statement and shows the considerations which the DIRČ considered in approaching this problem, and if I may find it again
Mr. SNIDER. Well, we have that.
I would just like to know if that doesn't mean military intelligence units stationed abroad can conduct surveillance of Americans traveling abroad without any restriction other than just the local command regulations.
Is there any other restriction, either on the manner they collect the information or
Mr. COOKE. There are any number of restrictions, including status of forces agreements in each of the countries, understandings with the sovereign law enforcement organization of those countries, and let me state flatly that military intelligence units, wherever located, are not conducting investigations of the political beliefs of American citizens or indeed anyone else on that basis alone.
The investigations which must be authorized and I would note that there is no authority to conduct an investigation unless it is directed—are investigations where there are prospects of immediate and direct harm to military personnel, military property, or military installations.
Now, it is a regrettable fact that our forces overseas are targeted by hostile intelligence operations, by terrorist organizations. It is also a regrettable fact that perhaps in some instances, these efforts may be aided by U.S. nationals within or without the services.
Let me point out it is a serious matter. This is a picture of a bombing of a barracks in Heidelberg, Germany. There was about $100,000 worth of damage. It was done by a terrorist organization. I don't think in this particular case there were any U.S. nationals involved, but three Americans lost their lives in this. Our forces are targeted and they have to take adequate steps to protect themselves, and on that I think you will all agree.
What I am saying is that, again, a military counter-intelligence organization certainly does not investigate any U.S. citizens solely on the basis of their political beliefs in those areas.
Mr. SNIDER. Is there any requirement that Americans be remotely connected with a foreign government or its investigative agents before he can be placed under surveillance overseas?
Mr. COOKE. This would depend solely on the facts of the case. I would say that if an American citizen was a member of an identified terrorist organization, he would be, and must be a legitimate interest to our counter-intelligence organization, not because of his political beliefs.
Mr. SNIDER. Do you consider the Concerned Americans in Berlin to be a terrorist organization?
Mr. COOKE. I am not familiar with the facts in the case. As I pointed out, this matter is before the courts and will be expressly litigated there.
Mr. SNIDER. I have no more questions, Mr. Chairman.
Mr. COOKE. Mr. Chairman, may I make just several observations?
I regretted seeing the newspaper headlines this morning talking about "plumber” activities. The word "plumber” these days is a word which conjures up, as you know, illegal or clandestine acts. I am referring specifically to the responsibilities of the Defense Investigative Service and other Defense agencies in seeing if any of our people have leaked classified information.
I would point out these investigations are required by Executive Order 11652, section 13(b), which requires the head of each Department take prompt and stringent administrative action against any officer or employee of the United States determined to have been responsible for any leaks or disclosure of any national security information or material in a manner not authorized by or under this order through the National Security Council.
Where a violation of criminal statute may be involved, the Department should refer any such case promptly to the Department of Justice.
I would like to point out our investigations of unauthorized leaks are investigations of Department of Defense personnel, military or civilian. They are done by interviewing these people. There is no covert infiltration or clandestine activity involved, rather there is an organized and recognized and highly essential activity.
Senator Ervin. Well, I didn't write the headline for the newspapers. The subcommittee had been informed the Defense Investigative Service has undertaken three, "plumber”, activities. I furtliermore proceeded to use one of those new fancy words to describe the special operations permitted under the DOD directive.
I didn't use the word that Mr. Huston used in his plan: “surreptitious entry” or burglary. I used this very fancy word that is used in the directive, "covert penetration.”
Mr. ANDREWS. Mr. Chairman, you may not write headlines, but you make them.
Mr. COOKE. The Defense Investigative Service, like all our services, is bound by the prohibitions and strictures of 5200.27 where they conduct anything outside the Department. But these investigative security leaks have been going on, as you know, sir, for literally many years.
Mr. BASKIR. Might the investigation involve interrogation or other kinds of inquiries with respect to nonaffiliated individuals?
Mr. CookE. Our investigations of security leaks are limited only to people affiliated with Department of Defense to carry out the provisions of the executive order.
Should there be something beyond that, we refer the case to the Department of Justice.
Mr. BASKIR. Any investigation of a leak of military classified information, under the directive would that be barred from reaching persons not affiliated
Mr. COOKE. 5200.27, yes, it would, emphatically. As a matter of fact, our investigations do not and have not involved people not affiliated with the Department.
Mr. BASKIR. I have no further questions.