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pears to be impending violence or civil disturbance that might require dispatching of troops. First of all, we don't think this is true under the bill. The armed services can surely receive information about specific areas where there is the possibility that troops may have to be dispatched. But in order to deploy troops as a backup force, the military clearly does not need detailed informatian about beliefs, associations and activities of specific individuals and groups.
We have no objection at all to the Army having general physical reconnaissance information about major arteries, possible bivouac areas, and so forth—the kind of things outlined in Mr. Vance's statement as read earlier this morning.
On pages 13 and 14 of his statement, Mr. Cooke makes a considerable point of what he terms the bill's “failure” to make an exception to the general prohibition against surveillance and data gathering in situations where military personnel are detailed to carry out a statutory function of another agency. This, particularly, is an arca where we would urge the subcommittee exercise a great deal of care in considering possible exceptions.
It is possible that the device of detailing military personnel to other agencies could be used as a means of getting around prohibitions for gathering data by the armed services themselves. Indeed, we are concerned that the present DOD regulations on surveillance specifically provide that they do not apply to personnel detailed to other agencies.
On page 14, Mr. Cooke presents a case of the Army Corps of Eurineers, on an environmental impact statement, including details of community opposition to some kind of an engineering project they might undertake. This probably should be taken into account in preparing final drafts of the investigation. However, we would urge that any exceptions to the general prohibition based upon need such as this should be quite specific. They should provide that any such data be collected only pursuant to public statements of responsible senior civilian officials, that the data be accessible under the Freedom of Information Act, and that it be retained only for sharply limited specified periods of time.
On pages 14 and 15 of his statement, Mr. Cooke expresses a concern that we not inhibit or preclude vitally important national security investigations directed against a foreign intelligence organization. The difficulty with this statement is that it does not define what such a national security investigation might be, nor does it explain why the Department of Defense should be involved in it. Again, such matters would appear to be within the province of civilian agencies.
On page 16-this came up earlier this morning too-Mr. Cooke comments that the Department sees the bill as directed against obtaining of information about political activities and beliefs of civilians. We do not see it as limited only to political activities and beliefs, although that is, of course, one primary thrust of it. We think the bill is and should be directed against the gathering of other sorts of information too. For example, we see no reason why the armed services should have information on citizens' sex lives, psychiatric histories or financial affairs.
We gather from pages 18 and 19 of the Department's statement, that it is opposed to authorizing any civil damages and any class action for damages. The difficulty there is that it is only if such remedies are authorized that there is any effective way of curtailing such activities, in addition, of course, to the threat of criminal sanctions being imposed. In essence, what the Department's position is, is that it does not want criminal sanctions or civil sanctions. In this year of Watergate, particularly, we cannot help but be skeptical about claims that the executive branch has a capacity for self-discipline that requires no prod from the citizenry.
Finally, in references on pages 16 and 17, and page 20, of Mr. Cooke's statement, we see he has invoked the First Amendment in opposing the proposed statute. In view of the infringements on First Amendment rights which arise from military surveillance activities, that strikes us as an audacious argument.
Apparently he is suggesting that there is some kind of First Amendment right for the Department of Defense or its employees to know about the private lives and political activities of individual American citizens. Such a suggestion, we think, can only be characterized as preposterous.
In conclusion, while in general we differ rather strongly with the position expressed early this morning by the spokesman of the Department of Defense, we do feel that the Department's needs should be carefully considered. Conceivably, more exceptions to the general prohibition might be necessary. However, we feel that the burden of showing the need for any such exceptions should be on the armed services and it should be a heavy burden.
The inhibiting effects of the kind of surveillance undertaken by the armed services in the 1967 and 1970 period, and apparently not altogether abandoned—at least overseas so serious that this is an area where we feel that legislation along the lines of this bill is very badly needed.
Mr. BASKIR. Mr. Mahoney, let me just ask you one or two questions.
One, are you aware of any prosecutions under the Posse Comitatus Act in the last 100 or so years?
Mr. MAHONEY. I am not, Mr. Baskir.
Mr. BASKIR. Second, do you perceive a difference between the collecting of information with respect to a possible criminal or violent act directed against the military, by civilian or nonmilitary people on the one hand, and collecting information regarding associations and beliefs on the other?
Mr. MAHONEY. I think there is a clear difference. I see no legitimate need whatsoever for collecting the sort of information on general political activities and beliefs and so forth, your second alternative there. When you get to specific criminal acts, again it seems to me the burden should be on the Department of Defense to show what their specific needs are in this area. In general we
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. 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.]