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istration 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.
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 1967–70 period other than the "selfdiscipline” of the executive branch.
With these considerations in mind—and they are spelled out in much more detail in my statement and in our printed report-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 we feel should be incorporated in any such legislation are outlined in the statement and the report.
The statement also contains some specific comments and suggestions with respect to S. 2318, the bill presently before the subcommittee.
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 section 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, et cetera. 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 members of the Armed Forces of every rank—from private on up-are covered by the prohibition. In that connection, we would also suggest the use of à verb other than "employs”—perhaps "causes" would be better. In addition, it should be made clear that the prohibition also covers any nonmilitary 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 person—", and what we are thinking of particularly here is a prohibition against the kind of data gathering on persons wholly unaffiliated with the armed services regarding their sex lives, psychiatric histories, financial affairs, and so forth that turned up as a result of the 1971 hearings.
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 section 1386 (a) would now do, we would recommend covering this matter through a narrow and specifically worded exception which would be included in section 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, sabotage or other serious offenses.
4. The exception contained in the proposed Section 1386(b)(2), as it presently reads, 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 military installation or defense facility. Perhaps that might be somewhat more precise. At a minimum, the provision should be reworded 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 Section 1386(b)(3) is necessary, though this is perhaps a closer question. We do 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, or conduct these checks with respect to clearances where they are already employed in such facilities.
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. Surveillance 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 now contained in the proposed section 1386(b) (4).
7. We would modify the language now contained in the proposed section 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. I should add that I am sure that the association would endorse the additional suggestions made by Mr. Vance in the statement Mr. Birkett read a few minutes ago.
Mr. BIRKETT. We do, indeed.
Mr. MAHONEY. We would modify the wording of the proposed section 2691 (a) to allow any person or organization that has been the subject of an act prohibited by the proposed 10 U.S.C. section 1386 to sue for damages. This would deal with the problem posed by the narrow concept of standing created by the majority opinion in Laird v. Tatum.
Senator Ervin. Excuse me, I have a vote signal so I have to go to the Senate and vote. I will be back in a moment.
I want to thank you and express my appreciation to the Bar Association of New York City for the help they have given us in other times past.
Mr. MAHONEY. Thank you, Senator and thank you for the invitation to appear here today, too.
Mr. BASKIR. Mr. Mahoney, there is a vote but I think you are just about finished with your statement. It might be best if you continued with it, although the Senator has to go vote, in the interest of time.
Mr. MAHONEY. Certainly. We will be glad to.
We would also add language expressly authorizing persons who bring suit under the proposed section 2691 to recover punitive damages and counsel fees.
Since the Department of Defense's position is so clearly at odds with our own, perhaps it might be useful to get on the record some responses to specific points made in Mr. Cooke's statement. I had an opportunity yesterday afternoon to pick up a copy of Mr. Cooke's statement, so I will refer as I go along to specific pages in his statement.
At the outset, on pages 1 and 2, I understand that the position of the Department of Defense is that they agree that there should be clear limitations and boundaries on the jurisdiction of the military to investigate persons outside the Armed Forces. With that we agree wholeheartedly. I think that may be about the point at which our agreement ends, but let me go on from there.
On page 6 of Mr. Cooke's written statement he comments that the Defense Department has built in some flexibility for what they call "special operations” which involve obtaining information on organizations which the Defense Department perceives as presenting a threat to its functions and personnel. A number of questions are raised by this comment.
First of all, are special operations limited to gathering information or do they involve other actions? Special operations, to many, denote covert infiltration, disruption of the activities of groups and so forth. We seriously question whether this is an area in which the armed services should be involved at all. Again, it seems an area for civilian agencies to the extent it should be undertaken at all. The obvious question here is, by what statutory authority does the military get involved in such activities?
What sort of information gathering techniques are authorized ? By whom? What limitations are there on how the information is disseminated and to whom it is disseminated? What limitations are there on how long and in what form this sort of information is retained ?
On page 7 of his statement, Mr. Cooke noted that the DOD Directives provide that the chairman of the Defense Investigative Review Committee can authorize the creation of a data bank on nonaffiliated civilians. The obvious question is, why? For what legitimate purpose ? Indeed, the creation of data banks is precisely the evil the subcommittee has been trying to get at for some period of time. There is no authority we can see for the Army to create such a data bank. If they need one, it seems to us that they should come to Congress for explicit authority to establish it and come up with specific reasons why it would be necessary.
On pages 8 and 9 of the written statement, there is an attempt to justify the fact that the existing DOD regulations do not apply overseas, and I assume that the argument would also run that no statute should impose restrictions overseas. Two basic grounds are advanced by the Department as we understand them here. First, they point to the existence of some complicated arrangements, some apparently unwritten, with foreign countries. Second, they point to the fact that the FBI does not have primary internal security responsibilities overseas.
Öne difficulty with both of these arguments is that they wholly fail to take into account the fact that Americans living abroad have constitutional rights, too. They don't leave these rights behind them when they depart our shores, at least insofar as their relationship with our government is concerned.
The second difficulty is that these arguments ignore the fact that the military does not have any statutory authority for undertaking such activities, at least none that we are aware of.
Insofar as the surveillance of off-post activities of American civilians are concerned, it seems to me that from what we have been able to understand about the surveillance activities in connection with the political group that was supporting Senator McGovern for President in 1972 in Berlin—it is a situation all too reminiscent of what was going on in the 1967–70 period in this country.
On pages 9 and 10 there is a broad assumption that the DOD has a "well-recognized need” to conduct investigations of civilians where such activity is related to a legitimate government interest. This is a shockingly sweeping statement of the scope of legitimate Department of Defense activities. This is the sort of argument that can, of course, be used to support almost any sort of executive branch data gathering. An infinite range of contingencies and government interests can be imagined, and there are many kinds of information which it would doubtless be very useful for a Chief Executive or his advisors to have. But under our Constitution, the government is not free to gather whatever information a President or his advisors think might be useful or to use whatever means of gathering information might seem convenient. The rights of individuals must be taken into account, and 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.
We think the constraints imposed by 10 U.S.C., sections 331–333 are fairly severe. They are fairly explicit in their wording. As we read them, the import is very clear that Federal troops can be used in connection with civil disorders only pursuant to these provisions, only when the President has issued the kind of proclamation which is required by 10 U.S.C. section 334. They should be used only for the limited purpose of restoring order when local and state authorities have been unable to do so, and only when the conditions outlined in those statutes have been met.
On page 10 Mr. Cooke says the bill now before you—because that bill fails to draw a clearly defined line between what is permissible and what is impermissible investigation-says because that bill is inadequate, the DOD is opposed to the enactment of any criminal statute. This strikes us as sort of incredible. Is Mr. Cooke saying that, because the Department finds this particular bill objectionable, it is opposed to the enactment of any criminal statute, even if the possible drafting problems are overcome?
On pages 10 and 11, Mr. Cooke suggests that if the bill were to be passed in its present form, military personnel could be charged with a crime if they had things like the Congressional Directory, a Martindale-Hubbell or the Congressional Record. A short answer to this suggestion, we think, is that it is quite clear from the legislative history that the bill is not directed at the possession of these sorts of documents. This is a problem that can be taken care of in a committee report, or if really thought necessary, through some minor drafting work in preparing new language for inclusion in the bill.
On page 12 of his statement, Mr. Cooke raises the specter of civilian terrorist groups planning for attack on a military base, conspiring to steal weapons and so forth. He says that the bill would place the armed services in violation of the statute if they were to record or to maintain such advance threat information. I don't think we would have any objections to the armed services simply receiving advance information about specific threats of such violent action, but we would draw a sharp distinction between the armed services receiving such information and going out and doing the investigation into possible threats themselves. Such investigations should be done by a civilian authority, we think. Moreover, we think there should be limitations on how long and in what form any such advance warning information should be retained by the armed services. Again, we come back to the basic purposes of the legislation—to prevent systematic collection and storage of information on political and personal affairs of individuals and organizations.
On page 12 Mr. Cooke suggests that the bill would prevent the Armed Forces from obtaining any advance information which might be necessary for prepositioning of troops where there ap