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television newsmen, sometimes with bogus press credentials, during the 1968 Democratic National Convention in Chicago.29 - sending agents, enrolled as students, to monitor classes in the Black
Studies program at New York University.30 - keeping card files, dossiers, and photographs on students and fac
ulty at the University of Minnesota.31 - infiltrating a coalition of church youth groups in Colorado Springs,
Colorado.32 4. An enormous amount of information was collected and stored. Some of it dated to as far back as World War I but most of it was collected during the 1967–70 period. The Army appears to have had more than 350 separate records storage centers containing files on civilian political activities.33 One such center, the Fourth Army Headquarters at Fort Sam Houston, Texas, reported the equivalent of over 120,000 file cards on "personalities of interest.”
.” 34 Considerable duplication of files on individuals doubtless existed, but the staff of the Senate Subcommittee on Constitutional Rights is probably 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.35
5. At least two of the Army's data banks had the capacity for cross-reference among “organizational,” "incident” and “personality" files.36 The system thus had the technical capacity to produce correlations among persons, organizations and activities-e.g., lists of citizens by name, address, ideology and political affiliation-virtually instantaneously.
6. The surveillance program seems to have developed a bureaucratic momentum of its own, and to have rapidly expanded without the knowledge or approval of civilian officials in the Department of Defense. Senator Ervin has cogently described the process:
"In the midst of crisis, Pentagon civilians issued vague, mission-type orders which essentially gave intelligence officers a free hand in collecting whatever information they deemed necessary to the efficient conduct of civil disturbance operations. Subsequently, neither the Pentagon's civilian hierarchy nor the Congress had any routine means by which to review the appropriateness of those decisions until former agents came forward and blew the whistle in 1970.
Meanwhile, the surveillance grew, as most governmental programs grow, by the quiet processes of bureaucratic accretion ... [E]ach subordinate element in the chain of command expanded on the orders it received from above, while the traditional secrecy we have granted our intelligence agencies immunized each echelon from effective review by its superiors." 37
D. Efforts to Curb Surveillance Activities, 1970-Present
The existence of a large-scale military domestic intelligence program first received widespread public attention early in 1970, with the publication of an article on the subject by former Army intelligence officer Christopher H. Pyle in the Washington Monthly.38 In the three years that have passed since then, the scope of the program has, by all accounts, been greatly reduced. Serious issues remain, however, and to understand them it may be helpful to review the principal developments that have taken place in the three major arenas-the courts, the Congress, and the Department of Defense itself-in which the controversy has been conducted.
(1) Litigation: Laird v. Tatum and ACLU v. Laird.
The lawfulness of the military surveillance was challenged in two lawsuits filed shortly after the initial disclosures were made in 1970. The principal case is Laird v. Tatum, 408 U.S. 1 (1972). The plaintiffs in that case were a number of citizens and organizations, most of which had been identified in intelligence reports quoted in Captain Pyle's Washington Monthly article as having been subjects of Army monitoring activities. They alleged that the Army's domestic intelligence operations were unauthorized and overbroad, deterred political expression and dissent, and inhibited other persons from associating with them. They sought a declaratory judgment that the surveillance activity was unconstitutional or otherwise illegal, and asked for an injunction forbidding such activity in the future and requiring the destruction of all information acquired as a result of the monitoring.
The District Court for the District of Columbia dismissed the complaint in Tatum on the merits, without holding an evidentiary hearing.39 The Court of Appeals reversed 2-1, holding that the plaintiffs' allegations presented a justiciable case under the "chilling effect" doctrine.40 Judge Wilkey's opinion for the majority in the Court of Appeals noted particularly the combination of factors alleged to inhibit First Amendment rights, including the carrying on of activities beyond the statutory authority of the Army, the intrusive and inhibiting effects of such activities, and the fact that the Army -an immensely powerful institution—was the governmental agency involved in the activities.
The Supreme Court, in a 5-4 decision, reversed the Court of Appeals, accepting the Government's contention that the plaintiffs' claims of First Amendment violations did not present a justiciable controversy because plaintiffs failed to allege specific present objective injury or threat of specific future injury to themselves. Chief Justice Burger's opinion for the majority held that the plaintiffs' claims were barred by the: "established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger
of sustaining a direct injury as a result of that action.” 41 The majority opinion in Tatum did not review the allegations of the complaint in any detail, nor did it address the plaintiffs' contention that they could prove the injuries to themselves which they alleged if given an opportunity to do so at an evidentiary hearing. The Court also apparently accepted at face value the Government's contention that the surveillance operations had been greatly cut back, although there was evidence in the papers before the Court that the effect of the cut-backs was open to considerable question.42
Justice Douglas, in an opinion which Justice Marshall joined, vigorously dissented, observing that:
"The act of turning the military loose on civilians even if sanctioned by an Act of Congress, which it has not been, would raise seri
ous and profound constitutional questions. Standing as it does only on brute power and Pentagon policy, it must be repudiated as a usurpation dangerous to the civil liberties on which free men are dependent. For, as Senator Sam Ervin has said, 'this claim of an inherent executive branch power of investigation and surveillance on the basis of people's beliefs and attitudes may be more of a threat to our internal security than any enemies beyond our borders.' * * *
This case is a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance. When an intelligence officer looks over every nonconformist's shoulder in the library or walks invisibly by his side in a picket line or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian
image. ...” 43 Justices Brennan and Stewart also dissented, basically adopting the position previously taken by the Court of Appeals on the justiciability question.44
Subsequent to deciding Laird v. Tatum in June, 1972, the Supreme Court has denied petitions to rehear the case and to disqualify Mr. Justice Rehnquist nunc pro tunc from participating in the case, on the ground that he had previously testified before the Senate Subcommittee on Constitutional Rights concerning the legality of the Army's surveillance activities.45 The Court has also denied a petition for certiorari in ACLU v. Laird (formerly ACLU v. Westmoreland), a case which raised similar questions but had a somewhat more fully developed trial court record, thus allowing the dismissal of a complaint similar to the Tatum complaint to stand.46
The upshot of the Supreme Court decisions appears to be that the judiciary will not in the foreseeable future undertake any review of the scope of military surveillance operations in the absence of very specific allegations of imminent injury to particular plaintiffs. Even the majority in Tatum recognized, however, that the subject was one which warranted the concern of both the legislative and the executive branches of the Government.47 As a practical matter, if recurrences of the 1967–70 surveillance program are to be prevented, it is in those branches that corrective actions will have to be undertaken. Some headway has already been made in both branches.
(2) Congressional Action: Hearings and Proposed Legislation.
In February and March of 1971, the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary held several days of hear
ings on the Army's monitoring activities. Chaired by Senator Sam Ervin of North Carolina, the subcommittee developed an extensive record consisting of testimony from high Defense Department officials, former Army intelligence agents, various individuals who had been subjects of monitoring activities, and academic analysts, and supplemented by extensive correspondence and documentary material.
Some of the factual data developed by the subcommittee on the extent of the domestic intelligence operations has previously been noted in this report.48 In addition to eliciting this factual data, the hearings also helped to illuminate the constitutional and statutory problems raised by the surveillance activities-problems which had been addressed only tangentially in the court proceedings because the focus there was on questions of standing and justiciability.
The principal spokesmen for the Department of Defense were Robert F. Froehlke, then Assistant Secretary of Defense for Administration, and J. Fred Buzhardt, then General Counsel of the Department. Their position, as stated at the hearings, was that many of the monitoring activities had been “inappropriate” from a policy standpoint, but that they had not been “illegal.” Mr. Froehlke explained the Defense Department's position on the legal issues involved as follows:
“Basic authority for the use of the Armed Forces in connection with civil disturbances is Article II, Section 4 of the Constitution and Sections 331, 332 and 333 of Title 10 of the United States Code.
The civil disturbance information collection activities of the military services were all integrally connected to use or potential use of Federal troops under this authority. This information collection was obviously considered necessary and essential to the effective use of Federal military forces in connection with the widespread riots and domestic disorders occurring during this period ...
In order to carry out the President's order and protect persons and property in an area of civil disturbance with the greatest effectiveness, military commanders must know all that can be learned about that area and its inhabitants. Such a task obviously cannot be performed between the time the President issues his order and the time the military is expected to be on the scene. Information gathering on persons or incidents which may give rise to a civil disturbance and thus commitment of federal troops must necessarily be on a continuing basis. Such is required by Sections 331, 332 and 333 of Title 10 of the United States Code, since Congress certainly did not intend that the President utilize an ineffective Federal force.” 50 Mr. Froehlke maintained that none of the monitoring activities were prohibited by Federal or State law, arguing that:
"Since no use of civil disturbance information was made or intended to be made that would result in any action to the prejudice of any individual or organization, it is difficult to perceive how the constitutional rights or even the right of privacy could be impaired by the collection of such information. Even were the rights of some individuals indirectly affected, however, the Supreme Court has repeatedly held that such rights of individuals are not absolute but are
under certain circumstances subject to incidental limitations upon their exercise." 51 The Defense Department's broad interpretation of the constitutional and statutory provisions relied upon as authority for the monitoring activities was vigorously challenged by Senator Ervin and others at the hearings, as was the assertion that no individual rights were infringed by the monitoring. Thus, for example, Rep. Abner Mikva (D.-I11.), who had himself been a subject of some military surveillance activities, testified that:
“The existence of arbitrary, widespread military surveillance of civilians-or even the popular belief that it exists-has a chilling effect on free speech. It discourages the kind of full, free and unrestrained exchange of ideas and viewpoints on which American democracy is based. More than any other, our guaranteed right to freely criticize our government and elected officials is what distinguishes us as a nation. It has long been a hallmark of totalitarian societies that only ‘approved persons could participate and that only ‘acceptable’ ideas could be heard. Military surveillance of civilian parties raises the spectre of such official approval' and 'acceptability' as some day being a requirement of American politics, as it has long been in the Communist countries we condemn * * *
It would probably be going too far to say that the wide acceptance of military programs by the Congress has been influenced by the fear of covert military surveillance. But who can say that in future months or future Congresses there will be none who will have second thoughts about a vote on military affairs? Who can be certain that his judgment will not be swayed, perhaps even unconsciously, by the belief that he is being watched? Even the possibility of surveillance raises the spectre of subtle political interference. After all, who wants to be represented by a man who is so disreputable that the Army feels that the national security requires that his activities be monitored.” 52 In addition to holding hearings, the Subcommittee on Constitutional Rights has released a documentary analysis of a portion of the Army's files on civilian political activities53 and is in the process of completing work on a detailed report on the surveillance operations. The subcommittee has thus contributed significantly to establishing a public record on the details of the program and the policy issues involved. Several Senators and Congressmen have also introduced bills aiming at halting or limiting military surveillance activities.54
(3) Action by the Executive Branch of the Government: Issuance of New Regulations by the Department of Defense.
Although the initial reactions of the Defense Department to the disclosure of the domestic intelligence operations were somewhat equivocal,55 by March of 1971, the Department had issued a series of directives aimed at greatly reducing the scope of the data gathering and storage activities. The principal document, DoD Directive 5200.2756 states that Department policy "prohibits collecting, reporting, processing, or storing information on individuals or organizations not affiliated with the Department of Defense except in those limited circumstances where such information is essential to
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