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would operate on the presumption that this is an area where the responsibility is one of civilian law enforcement agencies, and it is beyond in general the legitimate functions of the Department itself. We can see that there may be some areas and clearly this goes to the criminal conduct problem-where the armed services have a legitimate interest. But once you get off-post, it seems to us that there is an awfully heavy burden on the armed services to show any need to get involved. I don't see them coming forward. Certainly a wide ranging general investigation is something that, to the extent it should be done, should be done by civilian agencies, not by the armed services.
Mr. BASKIR. Even assuming there is some need to do criminal investigations off-post, those criminal investigations need not involve collecting information about somebody's political beliefs? Mr. MAHONEY. Yes.
Mr. BASKIR. Only what has to do with criminal violations?
Mr. BIRKETT. Or other beliefs or other activities.
Mr. BASKIR. You mean if they are related to criminal conduct? Mr. BIRKETT. Yes.
Mr. MAHONEY. You have to look at just what kind of criminal activities to the extent you might let the armed services get involved in investigating criminal conduct off-post, you have to look into what kind of criminal conduct they would be investigating. When you get into areas like espionage and sabotage, that is one thing. It is an entirely different matter if you are talking about a much less serious kind of activity that might fall into the petty misdemeanor category, for example.
Mr. BASKIR. It is my impression that it is a violation of military regulations to inquire into the political activities or beliefs of an individual when doing a security or background investigation for employment or a clearance.
Assuming that, and with respect to exception No. 3, it seems to me that such exception may be an excess of caution, since even the military thinks political information is irrelevant for such purposes.
Mr. MAHONEY. To start with, I am not sufficiently familiar with what the regulations are covering employment security checks. We do feel that is an area that probably ought to be handled by civilian agencies. To the extent that the military must be doing that, they should not be getting into political activities and beliefs, no.
Mr. BASKIR. The first exception has to do with troops being committed with respect to insurrection or rebellion or civil disorder. When the military is used in that circumstance, do you feel there would be a need for them to collect information about the political beliefs, activities, or associations of specific individuals?
Mr. MAHONEY. I can't see any legitimate need to do that. It seems to me if the military really does see a need to collect this kind of information that it would be helpful for them to come forward and say why. Under what kind of circumstances do they perceive this to be necessary?
Mr. BASKIR. So, examining the three exceptions, not with respect to the fourth, it would appear that describing them as exceptions may be an excess of caution, because strong arguments at least can be raised that even in those circumstances there is no proper need for the military to collect information of the sort we have been describing.
Mr. MAHONEY. We see no need to collect that kind of information. Mr. BIRKETT. I think it might be handled in some such fashion if the military needs reassurance by saying nothing in the statute shall be deemed to authorize or to prohibit rather than calling it an exception.
Mr. MAHONEY. It seems to us that the kind of information that the military would need in the interest of being deployed under sections 331-333 of title 10 would.be information on size and location and specific violent actions of rioters.
They don't have need, in that kind of a crisis situation, for detailed information on people's political activities and beliefs. They will have plenty to do without getting into that kind of data gathering, in our judgment.
Mr. BASKIR. Thank you very much, gentlemen.
The chairman has asked me in the event he couldn't get back in time, to adjourn these hearings on his behalf subject to the call of the Chair.
[Whereupon the hearing adjourned subject to the call of the Chair at 12:05 p.m.]
STATEMENTS FOR THE RECORD
PREPARED STATEMENT BY JOAN M. JENSEN, PROFESSOR, UNIVERSITY OF SAN DIEGO, ENTITLED "MILITARY SURVEILLANCE OF CIVILIANS, 1917-1967"
For the past fifteen years I have been studying and writing about the history of the internal security policies of this country. My book, The Price of Vigilance, published in 1968, focused on the surveillance activities of the American Protective League, the Bureau of Investigation, and military intelligence during the World War I period. Since that time, I have been at work on a larger study of the surveillance of civilians by the military. Thus my interest and concern as a historian and as a citizen predates the current controversy.
I was surprised to learn that during the 1971 hearings on Army Surveillance of Civilians held by the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, it was suggested that the surveillance of civilians during the late 1960's was unique and unprecedented. It is true that the scale and scope of that surveillance was unprecedented; never before had the political activities of so many civilians been computerized and never before had such vast resources been employed by the military to watch civilians. But Army surveillance of civilians did not begin in 1967. During the preceding fifty years, the United States Army monitored political activity during every major home crisis, from the German spy scare of 1917 to the anti-war protests of 1967. This surveillance, like the CONUS program of more recent origin, was initiated and executed without significant supervision and control by civilian officials. This was true regardless of which political party was in control of the executive branch of the government. I would like to sketch that history briefly, and to draw some conclusions from it.
ORIGINS OF ARMY INTELLIGENCE
What we now know as Army intelligence was first institutionalized in the War Department as the Military Information Division in 1888. This division was established primarily to provide for continuous collection of information abroad in peacetime as well as war. It also had the task of providing topographical and logistical information on conditions within the United States. It was modeled on the Prussian General Staff system of collecting information and was similar to units which other European nations were establishing in the late nineteenth century.
No structure for military surveillance of civilians existed during the Spanish-Cuban-American War. The focus of Army intelligence was counterespionage and the War Department spent a total of $45.00 in "secret service" funds to hire two detectives to shadow suspected Spanish spies in Tampa, Florida. Civilian surveillance existed but it was handled by the Secret Service of the Treasury Department which President William McKinley gave $50,000 from National Defense Funds to put at the disposal of the War Department. At the request of the Assistant Secretary of War, the Secret (169)
Service investigated the loyalty of civilians and soldiers and placed over 600 persons under surveillance during the few months of war.1
The first military intelligence network for watching civilians was developed during the Philippine-American War in 1899, when insurgents refused to acknowledge American control of the Islands. The Commanding General, Arthur MacArthur, established a Military Information Division which extended a large network of surveillance through the Islands. When the United States intervened in Cuba in 1906. Army intelligence established a similar network there. In both places, surveillance was used to stop political movements which contested policies of the occupying armies of the United States. Political surveillance was also used to a lesser extent by General John Pershing in the Southwest during 1916. Pershing returned from Mexico convinced that labor radicalism in Mexico posed a distinct threat to the internal security of the United States.2 Army intelligence networks to watch insurgents and labor radicals in Cuba, the Philippines, and the Southwest were to provide the experience and the model for later surveillance of civilians at home.
WORLD WAR I
The first major use of civilian surveillance in the United States came in 1917 after the United States declared war on Germany and entered the European conflict. Widespread fear of alleged German espionage networks (which never materialized) and doubts about the loyalty of recent German immigrants led to the creation of a widespread domestic surveillance program throughout the country. Army intelligence, in the form of the Military Intelligence Division (MID) of the War Department, played an active role in this effort.
The Military Intelligence Division began its war effort by training 150 officers and 300 sergeants. A few of these officers and fifty sergeants went to France with General Pershing; but most remained in the United States to form what eventually grew to be a relatively large Corps of Military Intelligence Police attached to Army posts, bases, and camps. Additional officers commissioned during the war were assigned to staff special offices in cities. In Washington, a work force of 1,000 civilians was hired to keep records. Their work included assembling extensive clipping files on such subjects as bolshevism, anarchism and feminism, organizing dossiers on groups such as the Industrial Workers of the World, and filing thousands of investigations into the political activities of individuals. By the end of the war, two million dollars had been spent for the work of military intelligence.3
Military intelligence also had the assistance of thousands of unpaid volunteers in the field. The largest force was the American Protective League, a group of business and professional men who nominally worked for the Justice Department and carried Justice Department credentials, but who often reported directly to military intelligence. One of the directors of the APL was commissioned as a military intelligence officer, put in charge of a special unit in the MID, and authorized to assign cases for investigation directly to volunteers in the field. The APL eventually reached an estimated 350,000 members which clearly qualifies it as the largest private domestic intelligence group in American history. Military intelligence officers in the Western Department, however, were not content with the information they received from their own agents and APL volunteers. They created, without War Department authority, a Volunteer Intelligence Corps of their own which
1 The only published comments on the Secret Service in the War of 1898 are in Don Wilkie, American Secret Service Agent (New York: Burt, 1934), 6, 12-14. There was never any public report on their total war activities. The first few months were reported in U.S., Secretary of the Treasury, Annual Report (1898), 866. The detectives are mentioned in W. S. Scott to Assistant Secretary of War, July 10, 1898, File 115052, NA, RG 92.
2 "History of the Philippine Department," undated, MID File 10560-152, NA, RG 165; Allan Reed Millett, The Politics of Intervention: The Military Occupation of Cuba 19061909 (Columbus, Ohio: Ohio State University Press, 1968), 130-131, 138-139; Harold M. Hyman, Soldiers and Spruce: Origins of the Loyal Legion of Loggers and Lumbermen (Los Angeles: Institute of Industrial Relations, University of California, 1963), 25.
3 Some of the information on the MID in World War I has been published in my book The Price of Vigilance (Chicago: Rand McNally, 1968).