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whatever information a President or his advisers think might be useful or to use whatever means of gathering information might seem convenient. The rights of individuals must be taken into account. So, too, must the statutes and constitutional provisions which grant authority to use troops in situations involving domestic violence, and which impose constraints upon the use of troops for domestic purposes.
With respect to the question of legitimate authority for undertaking military surveillance of civilian political activity, three points seem particularly critical :
(1) The only statutes which explicitly authorize the use of armed forces in connection with domestic violence (10 U.S.C. $$ 331-333) clearly contemplate their use only as a back-up force in specific situations where illegal overt acts amounting to serious rioting or insurrection have already taken place and civilian authorities have been unable to restore order. Indeed, these statutes are part of a chapter of the United States Code which is entitled “Insurrection.” The chapter contains a statutory requirement that the President, whenever he considers it necessary to use armed forces under the chapter, must issue a proclamation ordering the “insurgents” to disperse. Read in context, the provisions of this chapter clearly provide no basis for sweeping domestic intelligence operations. Rather, they indicate that use of the armed forces in domestic affairs is a “last resort” measure to be employed only by Presidential directive, only for the limited purpose of restoring order when state and local authorities have been unable to do so, and only when certain specified conditions have been met.
(2) Other federal statutes, notably the Posse Comitatus Act, reflect the same policy. The Posse Comitatus Act has been amended several times since it was first enacted in 1878, but its basic thrust-prohibiting the armed forces from assisting local law enforcement officials in carrying out their ordinary duties—has remained constant. Its clear import is that federal troops can be used in connection with civil disorders only pursuant to the provisions of 10 U.S.C. $$ 331–333, and then only when the President has issued the proclamation required by 10 U.S.C. $ 334.
(3) As for authority for the use of troops that may be derived from the constitution itself, independent of any statute, we readily acknowledge that the law in this area is somewhat murky. However, the few Supreme Court cases dealing with the scope of the President's authority as Chief Executive and Commander-in-Chief make it clear that his authority is not unlimited even where national security is concerned. In the famous Steel Seizure case of 1952, for example, the Supreme Court emphatically rejected the idea that the President's Article II powers authorized seizure of the nation's steel mills-even to avert a crippling steel strike that might have seriously jeopardized the national defense effort during the Korean War-in the absence of statutory authority for such a seizure. And only two years ago, in United States v. United States District Court, the Court rejected a claim by the Government that warrantless electronic surveillance of citizens suspected of subversion could be undertaken on the basis of the President's power to protect the national security. Justice Powell's opinion for the Court made it clear that First and Fourth Amendment values had to be taken into consideration, and that surveillance in national security cases was subject to Fourth Amendment requirements of judicial approval prior to initiation of a search or surveillance. By analogy, it seems clear that there is no broad constitutional authority for the President-much less subordinate officials in the Defense Department-to authorize domestic surveillance operations in the absence of clear statutory authority to do so, and without regard to the constitutional rights of the persons subjected to such surveillance. 2. The Rights at Stake
Defenders of past military surveillance operations have tended to stress the right of society to protect itself from insurrection and domestic violence. They have argued, in essence, that a compelling governmental interest in preventing domestic violence, or in being able to rapidly suppress such violence when it breaks out, justifies any “incidental” infringement of constitutional rights which may have occurred.
We readily acknowledge a governmental interest in being able to quell domestic violence expeditiously, but that is an interest which must be considered in light of the strong societal interest in the protection of individual rights. In our view, the sort of surveillance operations conducted by the Army during the 1967-1970 period seriously infringed the rights of free speech and association, the right to petition the government for redress of grievances and the right of privacy. For example, to the extent that electronic surveillance or physical searches may have been undertaken, it is clear that Fourth Amendment questions arise. To the extent that dossiers containing information about an individual's financial affairs, sex life, and psychiatric history were compiled without his knowledge and consent, it seems plain that a “zone of privacy” emanating from several constitutional guarantees has been invaded. To the extent that membership lists of organizations and communications between individual members of particular groups were made the subject of agent reports and files, it is apparent that what the late Justice Harlan referred to as “the vital relationship between freedom to associate and privacy in one's associations, grounded in the First Amendment,” has been infringed.
As the Supreme Court has observed, First Amendment freedoms need "breathing space" in order to survive. They are in danger of being stified when the government attempts to systematically keep track of persons seeking to exercise First Amendment rights in unpopular or unorthodox ways. The danger is particularly acute when the agency doing the monitoring is a part of the military establishment. 3. The Question of Remedies
In its 5-4 decision in Tatum v. Laird, the Supreme Court adopted a very narrow view of the issues of standing and justiciability, and thus avoided reaching the substantive question of whether the Army's surveillance activities violated the constitutional rights of individuals. Under the majority's holding in that case, the ordinary citizen is left without a remedy against excesses of the sort that took place during the 1967–1970 period, unless he can show direct injury to himself or the threat of imminent injury. The next effect of the holding appears to be that persons subjected to military surveillance are placed in a Classic “Catch-22” dilemma: if they are truly intimidated in the exercise of their constitutional rights, they are entitled to seek the aid of the court—but if they are in fact intimidated they are not likely to invoke their rights. The majority opinion thus makes it exceedingly difficult for lawless surveillance activities to be controlled.
In our opinion, the problem of controlling military surveillance activities is not one which can be left solely to the executive branch of the government. Three years ago, then Assistant Attorney General William Rehnquist-now Mr. Justice Rehnquist-testified before this Subcommittee that "self discipline on the part of the executive branch” would provide an answer “to virtually all of the legitimate complaints against excesses of information gathering.” Whatever may have been the soundness of that observation three years ago, we now have abundant evidence that the self-discipline of the executive branch, in the area of surveillance activities, has not been great.
The problem is not simply one of venality on the part of high Administration officials. Even when top officials in a government agency wish to place a tight rein on surveillance activities and conscientiously take steps to do so, they may not succeed. Indeed, the difficulties which senior officials may face in seeking to curb surveillance excesses is illustrated by the problems which senior Defense Department officials encountered when they tried to curtail the Army's domestic intelligence activities following the initial disclosures about them back in 1970. They had great difficulty in ascertaining the full extent of the operations, and apparently were misled by lower echelon commanders on more than one occasion.
C. RECOMMENDATIONS REGARDING LEGISLATION
In our judgment, the problem of military surveillance of civilian political activities is one which is appropriate for Congressional legislation. Although we believe that existing law should be read as prohibiting broad surveillance and data collection activities of the sort that were undertaken during the 1967–1970 period, Administration spokesmen have taken a contrary view. And, as long as the narrow concept of standing delineated in Laird v. Tatum remains a guiding principle, litigation is not likely to be effective in curtailing such activities in the future.
In the absence of specific statutory prohibitions on such activities—prohibitions which are enforceable there will as a practical matter be no obstacle to resumption of the kind of activities which were undertaken during the 1967–1970 period other than the "self-discipline" of the Executive Branch. The restrictions on such activities which the armed services have imposed on themselves by regulation do not resolve the problem satisfactorily. These regulations are helpful, but they still leave room for an unjustifiably wide range of monitoring activities to be conducted by military personnel. Moreover, the terms of the regulations (or the vigor with which they are enforced) may change at any time. The incumbent administration or a future administration could find it convenient to again adopt a domestic intelligence program, and could simply rescind or modify the present regulations—conceivably even by classified exceptions to them.
The importance of effectively prohibiting any future resumption of the sort of military surveillance activities which were carried on during the 1967-1970 period cannot be underestimated. Such activities invade the privacy of individuals and groups, inhibit free expression of beliefs and ideas, and in general exert a chilling effect upon the political activities of a free people. We believe that such activities exceed the constitutional and statutory authority of armed forces, violate or seriously jeopardize rights guaranteed by the First, Fourth, and Ninth Amendments to the Constitution, and cannot be justified on the basis of any compelling governmental interest.
Moreover, even assuming for the sake of argument that such activities are not unconstitutional, they are clearly undesirable as a matter of policy. Such activities would be difficult to justify no matter what governmental agency conducted them, because of their intrusions into individual privacy and the chilling effect which they exert upon political activities. They are especially repugnant to American ideals and traditions when undertaken by the armed services. It is directly contrary to our nation's long tradition of civilian control of the government for the military to be involved in such matters. To the extent that such surveillance activities must be carried on at all, it is far more appropriate that they be undertaken by a civilian arm of the government—and even then, of course, such activities should be subject to on-going Congressional scrutiny. If surveillance activities of any sort are justifiable and necessary, it is likely that a civilian agency will be able to conduct them more efficiently, less intrusively, less threateningly, and probably at less cost to the taxpayer, than military intelligence.
With these considerations in mind, our committee has recommended that Congress enact legislation generally prohibiting all military surveillance of civilian political activities and proscribing all collection and storage of information on the political or private affairs of individuals not directly affiliated with the armed forces. The basic principles which our committee felt should be incorporated in such legislation are these :
(a) The statute should, in broadly inclusive terms, bar members of the armed forces or persons employed by the armed forces from conducting surveillance whether overt or covert, of civilians. It should be carefully drawn to prohibit the compilation of dossiers or data banks containing information on the political activities or private affairs of individuals or organizations, but should not preclude the armed services from gathering “physical reconnaissance” data of the sort that would enable commanders to deploy troops efficiently when called upon pursuant to 10 U.S.C. $$ 331-333.
(b) The statute should provide for criminal penalties for violations, and should, in addition, include provisions for injunctive relief and for damages (including punitive damages and counsel fees).
(c) The statute should confer standing to sue upon any person or organization which has been the subject of the proscribed activities.
(d) The statute might well include a carefully drawn provision excepting from its proscriptions the collection of tactical information on the location, size, and actions of groups engaged in violent activities in areas which federal troops have been ordered by the President pursuant to 10 U.S.C. $8 331–333. If so, it should also provide that any such activities should cease with the cessation of the violence and withdrawal of the troops and should in no event extend beyond 60 days without explicit Congressional approval.
With respect to the bill presently before the Subcommittee, S. 2318, we are, of course, wholeheartedly in favor of the bill's basic concepts of prohibiting
military surveillance except in very limited circumstances, establishing criminal sanctions for violation of the restrictions, and providing civil remedies for persons who have been subjected to unwarranted surveillance activities. For the most part we believe the bill is well-drafted. We do, however, have some comments and suggestions to make with respect to several of its provisions, as follows:
1. The general prohibition of surveillance operations contained in the proposed new § 1386(a) appears to be directed only at the command level. It speaks, for example, of “an officer of the Armed Forces” who "employs” any part of the Armed Forces to conduct investigations, maintain surveillance, etc. We recognize that the phrase “officer of the Armed Forces” may be a term of art which covers enlisted men as well as commissioned officers, but we think it should be made clear that inembers of the armed forces of every rankfrom private on up-are covered by the prohibition. In that connection, we would also suggest the use of a verb other than "employs”—perhaps “causes” would be better. In addition, it should be made clear that the prohibition also covers any non-military persons utilized for such purposes.
2. We believe that the language of the proposed Section 1386(a) should be revised in order to ensure that all of the areas that should be protected from military surveillance are covered by the general prohibition. Thus, we suggest that the language be amended to prohibit investigation into, surveillance over, or the recording or maintenance of information regarding “* * * the beliefs, associations, political activities, or other conduct or affairs of any persons
etc. 3. We recognize that there may be grounds for permitting the armed services to monitor at least some kinds of conduct of military personnel. However, military intelligence should not have carte blanche to pry into the private affairs of the men and women in the armed services. Rather than exempting surveillance of members of the armed forces from the general prohibition, as § 1386 (a) would now do, we would recommend covering this matter through
narrow and specifically worded exception which would be included in § 1386 (b). For example, we see no objection to an exception which would authorize limited surveillance over military personnel where there is probable cause to believe that they may be engaged in espionage or other serious offenses.
4. The exception contained in the proposed § 1386 (b) (2) appears to be far broader than necessary. As it presently reads, it would appear to leave room for military surveillance operations arising out of any incident “involving the destruction, damage, theft, unlawful seizure, or trespass of the property of the United States”—whether or not committed on a military installation or defense facility. At a minimum, the provision should be re-worded to confine the exception to surveillance directly related to the damage or unlawful seizure of Department of Defense property. Even then, we seriously question whether the investigation of criminal conduct occurring anywhere other than on a military installation is not more properly a function of a civilian agency.
5. We also question whether the exception contained in the proposed $ 1386 (b) (3) is necessary, though this is perhaps a closer question. We feel that civilian agencies would probably be better suited to conduct investigations of individuals to determine their suitability for employment by the armed forces or by a defense facility.
6. Particularly since the militia of the several states—the various National Guard units—are so closely linked to the regular armed forces (and, indeed, are heavily subsidized with federal funds), we fail to see the necessity for exempting members of the militia from the proposed prohibitions. Surveillence by the military is just as distasteful when conducted by personnel under the control of state authorities as when conducted by personnel under the control of federal authorities. We would delete the exemption contained in the proposed § 1386 (b) (4).
7. We would modify the language now contained in the proposed § 1386 (b(1), to provide that any surveillance activities undertaken by the armed forces when assigned by the President to the task of repelling invasion or suppressing rebellion, insurrection or domestic violence should be limited to collecting tactical information of immediate utility in quelling the disorder, should cease with cessation of the violence and withdrawal of the troops, and should in no event extend beyond 60 days without explicit Congressional approval. We would also add language requiring that any information on individuals and groups gathered by the Armed Forces while assigned to such tasks be turned over to civilian law enforcement authorities or else destroyed within 60 days of the date that troops are withdrawn.
8. We would modify the wording of the proposed § 2691 (a) to allow any person or organization that has been the subject of an act prohibited by 10 U.S.C. § 1386 to sue for damages. This would deal with the problem posed by the narrow concept of standing created by the Supreme Court's restrictive interpretation of the concept in Laird v. Tatum. We would also add language expressly authorizing persons who bring suit under the proposed 8 2691 to recover punitive damages and counsel fees.
In conclusion, let me emphasize that we feel this Subcommittee has done a remarkable job over the years in bringing to public attention problems of unwarranted intrusion by Government into the lives of individual citizens. The Subcommittee's work in this area of military surveillance of civilian political activities is an outstanding example of its efforts. It is our hope_as we know it is yours—that these efforts will result in constructive legislation that will effectively curb surveillance excesses, while still allowing the armed services to obtain information that is essential for them to perform their legitimate functions.
Thank you for the privilege of allowing me to appear before you today.