Page images
PDF
EPUB

the accomplishment of the Department of Defense missions outlined (in the directive]."57 Exceptions to the general prohibition were made for the gathering of specified types of information for three missions: (1) protection of DoD functions and property; (2) investigations of armed forces personnel and persons applying for DoD positions or seeking access to “official information"; and (3) assisting in carrying out operations dealing with civil disturbances.

Certain kinds of activities were sharply limited or prohibited altogether by the directive. For example, one section of it provides, inter alia, that:

“A. The acquisition of information on individuals or organizations not affiliated with the Department of Defense will be restricted to that which is essential to the accomplishment of assigned Department of Defense missions under this Directive.

B. No information shall be acquired about a person or organization solely because of lawful advocacy of measures in opposition to Government policy.

C. There shall be no physical or electronic surveillance of Federal, state, or local officials or of candidates for such offices.

D. There shall be no electronic surveillance of any individual or organization except as authorized by law.

E. There shall be no covert or otherwise deceptive surveillance or penetration of civilian organizations unless specifically authorized by the Secretary of Defense or his designee.

F. No DoD personnel will be assigned to attend public or private meetings, demonstrations, or other similar activities for the purpose acquiring information, the collection of which is authorized by this Directive, without specific prior approval by the Secretary of Defense or his designee. An exception to this policy may be made by the local commander concerned, or higher authority, when, in his judgment, the threat is direct and immediate and time precludes obtaining prior approval. In each such case a report will be made immediately to the Secretary of Defense or his designee.

G. No computerized data banks shall be maintained relating to individuals or organizations not affiliated with the Department of Defense, unless authorized by the Secretary of Defense or his designee." 58 The DoD directive-while clearly designed to limit substantially the scope of domestic intelligence under the May, 1968 "civil disturbance information collection plan”-has nevertheless been sharply criticized for being much too broad in terms of the surveillance it purports to authorize. It has been pointed out, for example, that the directive permits infiltration of civilian organizations and observation of private meetings, though such surveillance now requires specific prior approval by the Secretary of Defense or his designee except in “emergencies.” Moreover, it apparently permits surveillance of individuals, and of groups which do not constitute an “organization,” to be undertaken even without prior approval of the Secretary or his designee, in furtherance of the missions to protect “DoD functions and property” and ensure "personnel security." 59

of

"

Even the Defense Department's critics agree that the recent directives are a step in the right direction. However, in addition to criticizing the directives as being over-broad in terms of the leeway they leave for surveillance and data-keeping operations, they note the new directives can be changed or rescinded at any time. Moreover, while the new directives are not classified, there is nothing which would ensure that future directives dealing with the scope of domestic intelligence operations would be unclassified. If the Defense Department's regulations do not provide sufficient protection against unwarranted intrusions into personal privacy and inhibitions upon freedom of speech and association, then legislation is needed. Before turning to that subject, however, we think it useful to outline the principal legal considerations which seem relevant to the problem.

II. THE STATE OF THE LAW

Legal considerations are, of course, not the only ones which must be taken into account in determining what sort of action, if any, Congress ought to take with respect to military surveillance of civilian political activities. Even if military surveillance of the sort described above could be regarded as entirely lawful, the fundamental policy question-to what extent, if at all, such activities should be permitted in the future-would remain to be resolved. However, points of law and the values they reflect are highly relevant to a consideration of that basic policy issue.

In reviewing the state of existing law in the area, the Committee has focused on three questions:

A. To what extent, if at all, is military surveillance of civilian political activities authorized under existing law?

B. What constitutional rights have been-or might in the future be -infringed or jeopardized by military surveillance operations?

C. Insofar as military surveillance operations may infringe constitutional rights or be otherwise unlawful, what remedies presently exist?

A. The Question of Authority for Surveillance Operations

Defense Department officials and other administration spokesmen have taken the position that the military surveillance operations conducted during the 1967–70 period were fully authorized by the Constitution and by statutory law.60 Clearly, however, neither the constitutional provisions nor the statutes cited by these officials explicitly authorize surveillance of civilian political activities. Recognizing this, defenders of the military surveillance operations have argued that such operations are implicitly "necessary," or at least "appropriate,” if the armed forces are to be aware of the possibility of domestic violence occurring at a particular place or time, and thus prepared to respond effectively to a Presidential directive issued pursuant to the constitutional and statutory provisions which authorize the use of troops in circumstances involving domestic violence.61

In addition, proponents of the surveillance operations have also maintained that such operations are necessary so that the armed forces can carry out their missions once they are dispatched by the President. Thus, the Justice Department has argued that the armed forces must have an ongoing intelligence gathering and analysis operation in order to enable it to act as a kind of "super police force" anywhere in the country:

"When the National Guard or the U.S. Army moves in to restore order, their function is unquestionably in the role of a policeman; they simply accomplish what the police lack in number of men to do. They patrol streets, make arrests, regulate traffic, and try to calm down angry crowds just as local policemen would do. In performing those duties, they necessarily require some of the same tools as a police force, both to quell the disturbances and to perform an equally important function, the prevention of further disturbances.

In order to carry out these duties as efficiently as possible, both the Army and the police must have an awareness of group tensions, what forces exist, the nature and size of discordant groups, and they must be capable of estimating the explosive possibilities of colliding philosophies.

Clearly, the only way this information can be made available to the Executive Branch and the Army or the National Guard in time for it to be used effectively when those components are called upon to exercise their police responsibilities is for the information to be gathered and placed under current analysis ahead of time. And it must be gathered by the force which will ultimately use it, for there is never sufficient time between the disorder and the subsequent Presidential order sending the armed forces to the troubled areas for the police to transmit the information to the armed forces and the armed forces then to disseminate the information to the local commanders.” 62 The foregoing arguments in support of a putative authority for the armed forces to conduct wide-ranging domestic intelligence operations, while not without some pragmatic force, must be examined in the light of constitutional and statutory provisions which impose constraints on the activities of the armed forces and in the light of the existing case law. When thus scrutinized, it seems apparent that the scope of legitimate authority for the undertaking of such operations is not nearly as broad as Administration officials have claimed. Three points seem particularly relevant:

1. Federal statutes dealing with the role of the armed forces in domestic affairs indicate that Congress-consistent with the clear intent of the Framers of the Constitution63–has mandated that that role be a very limited one. The only statutes which explicitly authorize the use of armed forces in connection with domestic violence (10 U.S.C. $$ 331–333) clearly contemplate their use only as a back-up force in specific situations where illegal overt acts amounting to “insurrection” have already taken place and civilian authorities have failed to restore order. Indeed, these statutes are part of a chapter in Title 10 of the United States Code which is entitled “Insurrection,” and are accompanied by a statutory requirement (in 10 U.S.C. § 334) that the President, whenever he considers it necessary to use armed forces under the chapter, must “by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time.” Read in context, the provisions of 10 U.S.C. $$ 331–333 clearly provide no basis for inferring authority for sweeping domestic intelligence operations by the armed forces or for their use as any kind of “super police force.” On the contrary, those provisions indicate that the 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 reflect the same policy. Perhaps the most noteworthy is the "Posse Comitatus Act" (18 U.S.C. $ 1385), which in its present form provides as follows:

“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned

not more than two years, or both.” Originally enacted in 1878, the Posse Comitatus Act was aimed at precluding the armed forces from assisting local law enforcement officers-e.g., U.S. Marshals and local sheriffs-in carrying out their duties. The statute has been amended slightly over the years (e.g., to include the Air Force as well as the Army), but its main thrust has remained constant. As Judge Dooling has observed, the Posse Comitatus Act may be regarded as expressing “the inherited antipathy of the American to the use of troops for civil purposes,” and is “absolute in its commands and explicit in its exceptions." 64 Its import would seem to be that federal troops can be used in connection with civil disorders only pursuant to the provision 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. While the extent of the President's constitutional powers to act in the national security area may be greater than those expressly delegated to him by statute, the range of these powers is a matter of considerable dispute and is clearly not unlimited. This area of law is a murky one, but 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 such authority is subject to both constitutional and statutory restraints. In what is perhaps the leading case, Youngstown Sheet and Tube Co. v. Sawyer,65 the Supreme Court in 1952 emphatically rejected the Government's claim that the President's Article II powers authorized seizure of the nation's steel mills-even to avert a crippling steel strike that the President feared would jeopardize the national defense effort during the Korean War–in the absence of statutory authority for such a seizure. More recently, in United States v. United States District Court,66 the Supreme Court in 1972 rejected a Government contention that warrantless electronic surveillance of individuals suspected by the Attorney General of engaging in subversive activities could be regarded as a lawful exercise of the President's power to protect the national security. Mr. Justice Powell's opinion for the Court, after noting that national security cases often reflected “a convergence of First and Fourth Amendment values not present in cases of ‘ordinary' crime,” held that domestic security surveillance was subject to “the customary Fourth Amendment requirement of judicial approval prior to initiation of a search or surveillance.”

In sum, claims of broad executive authority for domestic surveillance

" 67

а

operations by the armed forces would appear to be in conflict with statutes prescribing a limited domestic role for the armed forces and with constitutional doctrine limiting the scope of executive authority in the national security area. Thus, even apart from the problems posed by possible infringement of the constitutionally guaranteed rights of individuals, there remains a substantial question as to whether, as a matter of law, the armed forces have any authority at all to monitor the political activities of civilians.

a

B. The Rights at Stake

Defenders of past military surveillance operations, while sometimes questioning whether individual rights were actually infringed by such 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, or being able rapidly to quell, domestic violence, justified any "incidental” infringement of constitutional rights which may have occurred.68 There are at least two major difficulties with this argument.

First, even assuming that some "domestic intelligence” information is essential in order to enable the armed forces to respond rapidly and effectively in a situation where they are called upon to do so, it is not essential that broad intelligence operations be carried on by the military. Where information on individuals or organizations involved in a particular riot is necessary to performance of the armed forces' limited “back up” function, it can be quickly transmitted to the appropriate commanders by civilian officials.

To the extent that intelligence operations must be carried on at all, it is more appropriate that they be carried on by a civilian agency, and that the agency's activities be clearly authorized by law and subject to continuing 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 at less cost to the taxpayer, than military intelligence. Judge Wilkey observed in Tatum that:

“The compilation of data by a civilian investigative agency is thus not the threat to civil liberties or the deterrent on the exercise of the constitutional right of free speech that such action by the military is, because a civil investigative agency has no inherent power to act against an individual, that power always being subject to the welldefined restrictions of law and the approval of the courts. The military have no such restrictions; they have their own force (of incomparable power), they have their own commanders trained as soldiers not lawyers, the military's vast size may make civilian control of individual or small unit actions more theoretical than actual, and the military is not accustomed to operating within the restrictions of law

and the processes of courts.” 69 Second, the argument of "compelling governmental interest” does not address the question of what constitutes only an “incidental” infringement of constitutional rights. The question is one of degree, of course, but there are strong empirical and legal arguments to be made for the proposition that the sort of surveillance operations conducted by the Army during the 1967– 70 period seriously infringed the rights of free speech and association, the

« PreviousContinue »