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Senator Ervin. Well, thank you gentlemen very much.

Mr. CookE. Mr. Chairman, it was a pleasure to appear before you.

Thank you.

Senator ERVIN. Counsel will call the next witness. Mr. BASKIR. Mr. Chairman, our next witnesses are Mr. Eastman Birkett, attorney, Association of the Bar of the City of New York; accompanied by Mr. Barry Mahoney, attorney, Association of the Bar of the City of New York.

Senator Ervin. I want to welcome you to the subcommittee and express our appreciation for your being willing to appear and giving us the benefit of your views with respect to this proposed legislation.

TESTIMONY OF EASTMAN BIRKETT, ATTORNEY, ASSOCIATION OF

THE BAR OF THE CITY OF NEW YORK; ACCOMPANIED BY BARRY MAHONEY, ATTORNEY, ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

Mr. BIRKETT. Mr. Chairman, it is a pleasure to be here in two capacities, both in my capacity representing and reading the statement of Cyrus Vance, and also in my capacity as a member of the Civil Rights Committee of the Association of the Bar of the City of New York.

As the Chairman knows, Mr. Vance, formerly Secretary of the Army, was Under Secretary of Defense under Secretary McNamara and special representative of President Johnson during the Detroit Riots of 1967 and advisor to Mayor Washington during the riots, following the death of Martin Luther King in 1968. He is currently the nominee for President of the Association of the Bar of the City of New York as well.

Senator Ervin. Well, I can certainly recommend him without any hesitancy for election to that position because I knew Mr. Vance very well when he was here in Washington, and he is a very fine and talented gentleman.

Mr. BIRKETT. He particularly asked me to convey his kindest regards to you. His statement follows: PREPARED STATEMENT OF CYRUS R. VANCE, READ BY EASTMAN

BIRKETT, ATTORNEY Mr. Chairman and members of the subcommittee, I deeply regret that a court commitment prevents me from appearing personally before you today to testify in support of the proposed legislation. Mr. Eastman Birkett, a former partner of mine and currently a member of the Civil Rights Committee of the Association of the Bar of the City of New York, has kindly agreed to read this statement on my behalf.

With respect to the specific provisions of S. 2318, I have reviewed the bill and the statement of Mr. Barry Mahoney made on behalf of the Association of the Bar of the City of New York. I wholeheartedly concur with Mr. Mahoney's statement as well as the report of the association on civil rights, dated May 10, 1973, entitled Military Surveillance of Civilian Political Activities: Report and Recommendations for Congressional Action”; and believe that the enactment of legislation along the lines of the proposed bill is an essential goal. I should like to add the following comments in amplification of the comments appearing in paragraph 7 on page 22 of Mr. Mahoney's statement. These comments arise out of my experience with the riots in Detroit, Michigan and Washington, D.C. in 1967 and 1968 and very helpful discussions with Professor Christopher H. Pyle of the John Jay College of Criminal Justice.

I recommend that a new subsection be added to section 1386 which would assure the Armed Forces that the ban on surveillance and datakeeping would not hamper advance reconnaissance and onsite observation essential to the conduct of antiriot operations. The bill should guarantee that packets of city maps, data on bridge loads, possible approach routes, bivouac sites, possible headquarters locations, et cetera and the names and offices of local officials could still be gathered.

Further, I believe, nothing in the statute should bar the Armed Forces from sending observers to the scene of riots when requested by the Attorney General of the United States to collect the necessary planning information and to advise the Justice Department and Presidential representatives of the military aspects of the situation.

In addition, the statute should permit the dispatch of liaison officers to local police headquarters, precinct stations, and National Guard headquarters for the purpose of monitoring the development of a riot for which troops have been alerted, and keeping military commanders informed of the kinds of tactical information they would need to deploy troops where they would do the most good.

Also, if Federal troops are committed by the President pursuant to 10 U.S.C., Sections 331-334, the Armed Forces inevitably would have to collect some information concerning individuals active in the riot. The legislative history should make it clear that this information collected in the course of reporting instances of violence and detention of individual rioters is not prohibited by the statute. The statute should provide, however, that all such information not turned over to civil law enforcement authorities for law enforcement purposes must be destroyed within 60 days of the withdrawal of troops.

Finally, the legislative history might also note that the statute is not intended to restrict the preparation of afteraction reports or military histories of antiriot operations.

In closing, I should like to take this opportunity to thank the subcommittee for the vitally important work it has done and is doing in this and other areas in the field of civil rights.

That is the end of Mr. Vance's report, sir.

Senator Ervin. I think he has made some very valuable suggestions to the subcommittee, very helpful.

Mr. BIRKETT. I would like to add for myself as a former chairman of the legislative committee and a present member of the civil rights committee my complete agreement with the statement of Mr. Vance as to importance of the work of this committee, and to reiterate how much we have appreciated our relationship with your committee and you personally over the years.

We have enjoyed the interchange very much.

Senator Ervix. Thank you very much. I think Mr. Vance's recommendations raise points which certainly require the most serious thoughts of the committee in marking up this bill. They are very helpfu.

Mr. BIRKETT. I would like to say a word about Mr. Barry Mahoney, who will give his statement on behalf of the Association of the Bar which the civil rights committee completely endorses.

He was formerly a New York attorney, and he's recently moved to Denver where he is doing research on pretrial release and the right to a speedy trial. He was a principal author of the 1973 report of the Civil Rights Committee and has maintained his membership in the Assocation of the Bar, I am pleased to say, from Denver and is still participating in its affairs, as you can see.

TESTIMONY OF BARRY MAHONEY, ATTORNEY

Mr. MAHONEY. Mr. Chairman, I am most appreciative of the opportunity to appear here before you today on behalf of the Association of the Bar of the City of New York.

Over the years, this subcommittee has done a remarkable job in bringing problems of government intrusion into the lives of individual citizens to public attention. The subcommittee's work in the area of military surveillance of civilian political affairs is an outstanding example of its efforts. We thank you for inviting us to testify on this subject, and we hope that we may make some contribution to the formulation of constructive legislation in the

area.

As you know, I have prepared a written statement for presentation to the subcommittee. However, rather than read that statement in ful, I would like to submit it—and with it, the 1973 report by the Bar Association's Committee on Civil Rights entitled, “Military Surveillance of Civilian Political Activities: Report and Recommendations for Congressional Action"- for inclusion in the record of these hearings.

Senator ERVIN. The committee will have your written statement printed in full in the body of the record and will receive the report as an exhibit.

[The material referred to follows:]

PREPARED STATEMENT OF BARRY MAHONEY, ON BEHALF OF THE ASSOCIATION OF

THE BAR OF THE CITY OF NEW YORK Mr. Chairman and Members of the Subcommittee, I am most appreciative of the opportunity to appear here before you today on behalf of the Association of the Bar of the City of New York. Several months ago, the Association published a report of its Committee on Civil Rights entitled "Military Surveillance of Civilian Political Activities : Report and Recommendations for Congressional Action.” I would like to present that report to the Subcommittee, and to ask that it be made a part of the record of these hearings.

Our report had three central purposes: (1) to review the historical background and the status, as of mid-1973, of the controversy over military surveillance of civilian political activities; (2) to outline the principal legal considerations relevant to the problem; and (3) to set forth our views with respect to possible Congressional action. Rather than review the report in detail here, I would like to simply summarize its substance and to make a few comments on the bill now before you (S. 2318) in light of our recommendations.

A. THE NATURE AND EXTENT OF THE PROBLEM In reviewing the history and recent scope of military surveillance operations, our committee relied heavilly on the record established by this Subcommittee at its 1971 hearings and on the documentary analysis done by the Subcommittee's staff. We believe that the record is a shocking one-one which points clearly to the need for legislation to curb abuses of the sort which took place during the period from 1967 through 1970.

Army surveillance activities during this period had a massive sweep. The scope of these activities has been documented in considerable detail by this Subcommittee and by others, but it may nevertheless be useful to recall some of the salient features of the surveillance program:

1. A great number of widely disparate groups, covering the full range of the political spectrum, were subject to Army surveillance_including, for example, the American Civil Liberties Union, the John Birch Society, the Southern Christian Leadership Conference, the NAACP, and the League of Women Voters.

2. Files were also kept on a large number of private citizens and public officials. These dossiers often included data on the private and personal affairs of citizens—on their financial affairs, sex lives, and psychiatric histories, for example as well as on their activities in connection with political organizations.

3. Although most of the data collected on groups and individuals consisted of matters of public record, information was also obtained from private institutions—sometimes through covert operations. Indeed, former Assistant Secretary of Defense Robert Froehlke has testified before this Subcommittee that it was “highly improbable" that many of the requirements for information contained in the Army's 1968 civil disturbance information collection plan could have been met in any way other than through covert collection means.

4. In quantitative terms, an enormous amount of information, on a very large number of individuals, was collected and stored. The Subcommittee's staff was probably being conservative in estimating that in 1970 Army Intelligence had reasonably current files on the political activities of at least 100,000 individuals unaffiliated with the armed forces.

5. The Army's data system, as of 1970, had the technical capacity for cross referencing organization, incident, and personality files—and thus for rapidly producing lists of citizens by name, address, ideology, political affiliations, and involvement in particular political activities.

6. Perhaps most serious, from the standpoint of persons concerned with maintaining government under law, the surveillance programs of the 1967– 1970 period apparently developed not only in the absence of legislative authorization, but without the knowledge or approval of senior civilian officials in the Department of Defense. As this Subcommittee noted in its report on the subject last year, the failure of such officials to know of the program represents a serious breakdown of civilian control over the military.

What has happened since the existence of this massive Army surveillance program first came to light in 1970? As of mid-1973, when our committee issued its report, it appeared from all counts that the scope of military surveillance activities had been greatly reduced from what it had been during the 1967–1970 period. However, the question of the extent to which these activities are currently being undertaken is probably one which only those in charge of such operations can answer.

To be sure, the Department of Defense has issued detailed regulations which sharply limit the scope of surveillance operations. But even if these regulations are being followed, a number of serious legal and practical issues remain. For one thing, the Defense Department's official position, ever since the existence of the surveillance program first came to public attention in 1970, has been that the widespread surveillance activities carried on during the

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1967–1970 period, even if not "appropriate" were nontheless "lawful". Implicit in this position is a reservation by the Department of Defense of an alleged right to resume such activities whenever the Department deems it appropriate to do so.

Moreover, the regulations issued by the Department and by the various branches of the armed forces still leave considerable room for surveillance activities to be undertaken by the armed forces. For example, DoD Directive 5200.27 contains a provision permitting infiltration of citizen organizations and observation of private meetings when such surveillance has been given prior approval by the Secretary of Defense or his designee. And even the requirement of obtaining such prior approval does not apply when, in the judgment of the local commander, “the threat is immediate and time precludes obtaining prior approval.” What constitutes such an emergency is implicitly left exclusively to the military authorities to determine. The DOD Directive also apparently permits surveillance of individuals, and of groups which do not constitute an “organization” to be undertaken even without the prior approval of the Secretary or his designee, in furtherance of the missions to protect “DoD functions and property” and “ensure personnel security.” These are provisions which can be read very broadly-so broadly, indeed, as to render the probibitóry language in the directive almost meaningless.

Finally, while the DoD directives referred to in our report are not classified, there is nothing to ensure that future directives dealing with the scope of domestic intelligence operations would be unclassified. Indeed it is worth noting in this connection that during the summer of 1970—even as the unclassified DoD regulations were being drafted and published-secret plans for extensive monitoring of civilian political activities were apparently being formulated at top levels of the executive branch of the government. The plans apparently anticipated eventual participation of military agencies—including the Defense Intelligence Agency, the National Security Agency and the military intelligence agencies.

We do not mean to minimize the significance of the steps taken by the Defense Department and the armed services to limit surveillance activities. The regulations that have been promulgated are laudable steps in the right direction. But they may be changed at any time, and even as presently written they still leave room for an unjustifiably wide range of monitoring activities to be conducted by military personnel. We believe that the area is one in which Congressional legislation is appropriate and desirable. Before turning to a discussion of what we feel such legislation should contain, however, let me briefly discuss our conclusions with respect to some of the principal legal issues involved.

B. THE LEGAL CONSIDERATIONS

In reviewing the state of existing law with respect to the problem of military surveillance of civilian political activities, our committee focused on three questions:

First, to what extent, if at all, is such surveillance authorized under existing law?

Second, what constitutional rights have been or might in the future beinfringed or jeopardized by military surveillance operations?

Third, insofar as military surveillance operations may infringe constitutional rights or be otherwise unlawful, what remedies presently exist ? 1. The Question of Authority for Surveillance Operations

In taking the position that the military surveillance operations conducted during the 1967–1970 period were not unlawful, Defense Department officials have recognized that neither the Constitution itself nor any federal statutes explicitly authorize such monitoring of civilian political activities. They have argued, however, that such activities are “necessary” or at least “appropriate” if the armed forces are to be adequately prepared to respond to presidential orders for deployment of troops in instances of domestic violence. This sort of argument can, of course, be used to support almost any sort of executive branch data gathering. An infinite range of contingencies can be imagined, and there are many kinds of information which it would doubtless be very useful for a Chief Executive or his advisers to have in order to deal with any one of them. But under our Constitution, the government is not free to gather

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