Page images

ever used or distributed in ways which could injure the rights of individuals or organizations. However, the possibility was always there, because CIAB's microfilm archive was bloated with highly sensitive FBI and Army reports on the personal and private lives of individuals. Since such information is not needed in riot situations, S. 2318 should forbid its retention, while also permitting the military to maintain an analytical unit with authority to receive, analyze, and hold for a reasonable period of time, current reports on civil disorders from appropriate law enforcement agencies and the press.

The military also should be permitted, at the request of the Department of Justice, to send observers to the scene of a possible riot to help with reconnaissance and planning.

The criminal investigations exception. The second exception in subsection (b) of the bill would allow the military "to investigate criminal conduct committed on a military installation or involving the destruction, damage, theft, unlawful seizure, or trespass of the property of the United States." This exception also appears to be to broad and too narrow.

The clause exempting the investigation of criminal conduct on military installations implies a belief that the military may never carry its criminal investigations off-post. As a general rule applicable to the United States, that is true; crimes committed off-post in the United States by military personnel are usually investigated by civilian agencies. However, S. 2318 has no geographical limitations. Thus, where Status of Forces Agreements do not require that servicemen be tried in foreign courts for off-post crimes, nothing in the bill should imply an intent to leave such crimes unpunished by the military. Revision of the opening clause of the subsection to clearly express an intent not to change the current situation regarding criminal investigations would probably solve this problem.

The first clause of the second exception also might be read to imply an intent to forbid the military to investigate instances of suspected sabotage at defense facilities located in the civilian community. Undoubtedly the purpose of the clause is to reiterate the primacy of civilian agencies in the investigation of crimes committed by civilians within the civilian community, but nothing in the bill should appear to prohibit inquiries by responsible military authorities into the nature of the crime and its effect, if any, on military personnel or operations. Nor should the bill imply an intent to bar appropriate military commanders from receiving status reports on criminal investigations by civilian authorities.

An example may help to illustrate this point. Suppose a political group dynamites electric power lines supplying a defense facility in a civilian community which directly supports a local military installation. The crime is not committed on the military installation or by persons subject to the Uniform Code of Military Justice. Thus the basic criminal investigation must be conducted by civilian authorities. At the same time, information about the crimes, the methods in which they were carried out, and the motives of the suspected bombers may be directly relevant to security efforts by the military commander. He should be free to make inquiries and receive information for that specific purpose.

The second clause of the criminal investigations exception would appear to authorize military investigations whenever anyone destroys, damages, steals. unlawfully seizes, or trespasses upon the property of the United States. If viewed as a positive grant of authority, this clause would transform the Army into a national police force. Obviously, that is not the intent of the bill.

The suitability investigations exception. An exception for political information legitimately collected in the course of a security clearance or pre-employment check of a particular person is entirely appropriate so long as it is not worded as a positive grant of authority. Any legislation giving Congressional blessing to the security clearance program should only be adopted after the most extensive hearings and staff investigation.

The state militia exception. The final exception in the bill would permit political surveillance and data keeping by "the militia of any State" when "under the command or control of the chief executive of that State or any other appropriate authorities of that State." This exemption seems both unwise and illusory.

The exemption is unwise in that it might be construed to permit the military to achieve through the National Guard, which is heavily funded by the federal government, what it would not be able to do by itself. If the National Guard were not interested in political surveillance, that would not be a problem, but the military departments of at least two states (Oklahoma and California) have exhibited great interest in monitoring protest politics.

The exemption also is illusory because S. 2318 would make any National Guard officer who collected the forbidden information while in state service an instant criminal upon federalization. Thus the Subcommittee might wish to alert National Guard intelligence officers to the risk this bill poses them by forbidding the expenditure of any federal appropriations received by the Guard to carry out the prohibited surveillance.

Some Proposed Exceptions

In marking up this bill, the Subcommittee may find it helpful to group exceptions to the prohibition in two categories: 1) exceptions permitting certain kinds of investigations, and 2) exception which do not permit independent military investigations, but which do authorize the receipt of certain kinds of information from other agencies under specific restrictions defining the nature of the information, how long it may be retained, and how it may be used and distributed. The Subcommittee also may find it helpful to prepare one list of excepted investigative and data-keeping activities to be included in the bill, and another to be published in its report.

The following are some investigative and/or data-keeping activities which I believe ought to be considered as candidates for exceptions, either in the bill or in the report. The exceptions are grouped according to the categories of intelligence needs set forth above in the first section of this statement.

Civil disturbance exceptions. The bill should not preclude the military from: 1. receiving information from the Justice Department, (and from municipal and state authorities once troops have been alerted for potential riot duty), bearing on the riot situation, even though that information may bear tangentially on constitutionally protected political activities;

2. receiving information from the Justice Department or other appropriate authorities on the status of permit negotiations for mass demonstrations where the military may have to play a role;

3. receiving information from local, state, or federal authorities about the intentions, capabilities, and probable courses of action of groups planning to demonstrate against the military on or just outside a military installation or activity.

4. observing such demonstrations from the installation or nearby.

5. collecting ordinary combat and counterintelligence (narrowly construed) on para-military or military groups within the United States which have raised arms against federal authority.

6. maintaining a Pentagon-based analytical unit for the purpose of monitoring press reports on civil disturbance and receiving reports from civilian law enforcement agencies relevant to civil disturbance which may affect the military in the performance of its mission, provided however, that this unit not be permitted to compile extensive files on politically active, law-abiding citizens, or to disseminate its reports widely. The sole function of the unit should be to inform and advise top military and civilian officials of pending or incipient civil disturbance situations which are likely to be of direct concern to the military in the near future.

7. sending observers, at the Justice Department's request, to potential riot areas, to assist with planning and liaison.

Counterintelligence exceptions. S. 2318 as now written appears to forbid the collection of political information in the course of an investigation of espionage or sabotage by foreign agents. Insofar as political information is part of a dossier compiled in the course of a criminal investigation, the investigation and retention could be authorized in a general criminal investigations exemption. On the other hand, the investigation of espionage and sabotage also may be part of a counterintelligence operation where the military's purpose is not to prosecute, but to break up an enemy operation and "double" its agents back upon their foreign masters. If the word "counterintelligence" could be given a

sufficiently narrow definition in the bill, it could be used to express this exception. The definition, however, should explicitly exclude terms like "subversion" and "disaffection" and should not encompass the surveillance of dissent within the military.

Criminal investigations exceptions. There should be no general exception for criminal intelligence operations. However, there should be an exception for ordinary criminal investigations which may touch upon political motives, associations, and activities. The provision might be worded to leave untouched military investigations of possible violations of the Uniform Code of Military Justice, military investigation of crimes committed by civilians on military installations, and the investigation or receipt by the military of information pertaining to joint investigations of crime, such as attempts by civilians to persuade military personnel (or civilian employees of the Armed Forces or militia) to violate the law or disobey lawful orders or regulations.

Security intelligence exceptions. There should be no exception which permits the establishment of massive "subversives files" in the military. Insofar as the subversive activity involves crimes, the investigation and data-keeping should be left with the appropriate law enforcement units.

At the same time, military commanders should be permitted to receive reports about politically motivated actions which may, or which have, disrupted military installations or activities, damaged military property, impeded the flow of military supplies, transportation, or communications, or resulted in harm to military personnel. Reports of this sort should be periodically destroyed to prevent the compilation of political data banks, and restrictions should be placed on them to prevent the contamination of security clearance dossiers or disclosure to persons without a legitimate need to know.

The unauthorized disclosure of national defense information also poses a security problem which should be the subject of a narrowly drawn exception. Another exception should leave the military free to receive information on thefts of arms, ammunition or equipment, or the destruction of facilities, equipment or records belonging to defense contractors which may affect its mission. Command intelligence exceptions. Without tackling the entire question of the surveillance of dissent within the military, the Subcommittee probably should specify those instances in which it does not seek to prohibit command intelligence operations, even though they may pick up information on civilian political activity. As I see it, these should be limited to the exceptions allowed for ordinary criminal investigations and the receipt of information generated by civilian agencies involved in joint criminal investigations.

Additional exceptions. There are several additional categories of information and investigations that also might be excepted by the Subcommittee's report from the prohibition of this bill. These include:

1. the maintenance of congressional and press liaison files compiled solely by the liaison personnel from overt sources and their own personal experience; and 2. the gathering of information on foreign nationals by U.S. military governments and armies of occupation for combat, civil disturbance, counterintelligence, security, law enforcement, and command purposes.

Restrictions on retention. Where exceptions to the prohibition permit the receipt of information on political and private affairs, restrictions ought to specify how long it may be retained. In some areas, it may not be feasible to specify time limits in the bill. However, where the military has received information in connection with a riot, demonstration, or disruption, the bill should provide that the records be turned over to civilian law enforcement authorities or destroyed within sixty days of the withdrawal of troops or the end of the disruption.

Restrictions on use and distribution. One of the most serious aspects of the CONUS intelligence program of the late 1960's was the indiscriminate way in which sensitive information about individuals and organizations was distributed throughout the military and law enforcement community. Thus restrictions on how exempted information may be used and distributed might be appropriate, either in the bill, or in the report's recommendations to administrators.


Civil Actions, generally. As I read Section 2691, it would do nothing to change the definition which the Supreme Court gave to the "chilling effect" doctrine in Laird v. Tatum, 408 U.S. 1 (1972). A judge interpreting the term “aggrieved" in subsection (a) or "threatened with injury" in subsection (b) is given no hint that he should not follow Chief Justice Burger's opinion in that case which denied standing to persons who could only allege a present fear of future harm. The purpose of Section 2691 should be to reverse the decision of the Supreme Court with a Congressional determination that anyone who has been the subject of military surveillance has standing to challenge it as a violation of this bill. The bill should amount to a legislative finding that any person who has been the subject of the prohibited activity has suffered an injury within the meaning of the "case or controversy" requirement of Article III of the Constitution. No proof of harassment, loss of employment, or defamation should be required of the plaintiff for the purpose of determining his right to sue.

An alternative to subsections (a) and (b) might read:

"(a) Whoever violates any provision of Section 1386 of title 18, United States Code, shall be liable to any individual or organization that, as the result of such violation, has been the subject of the prohibited investigation, surveillance, or data-keeping in an amount equal to the sum of:

(1) any actual damages suffered by the plaintiff, but not less than liquidated damages at the rate of $100 a day for each day during which the prohibited data-collection activity took place;

(2) such punitive damages as the court may allow, but not in excess of $1,000; and

(3) the costs of any successful action for damages, together with reasonable attorneys' fees as determined by the court.

(b) Any individual or organization that has been the subject of the prohibited investigation, surveillance, or data-keeping may bring a civil action against the United States to secure when appropriate, the following relief:

(1) injunctive and other relief directing the cessation of the prohibited activities;

(2) the deletion from any files kept by any department or agency of the United States of any information gathered as a result of the prohibited data collection activities;

(3) further judicial orders directing the expungement of such information from the files of state and local agencies and organizations to which it may have been communicated."

Class action. Section 2692 would grant standing to bring a class action to any person who "has reason to believe" that a violation of Section 1386 has occurred or is about to occur. It seems to me that this grant of standing is too broad, and might generate unnecessary and frivolous suits.

In addition, there does not appear to be any reason why all three civil remedies should not share the same test for standing: was the plaintiff a subject of the forbidden surveillance. This would reduce the number of persons who can bring a suit, but should not affect the likelihood of a prompt court test. Limiting standing to subjects of the surveillance also would reduce the risk of a court decision holding that the "reason to believe" test violates Article III of the Constitution by granting standing to one who does not have the requisite “personal stake" to raise a justiciable “case or controversy.” An alternative provision might read:

"Any individual or organization that has been the subject of data-collection activities prohibited by title 18, United States Code, may bring a class action pursuant to Rule 23, Federal Rules of Civil Procedure to enjoin the planning or implementation of the prohibited data collection activities and to assure the destruction of any unauthorized records."

Jurisdictional Amount

An additional section should be included in the bill to guarantee that no jurisdictional amount shall be required in order to initiate in federal court pursuant to sections 2691 and 2692.



DEPARTMENT OF JUSTICE, Washington, D.C., April 16, 1974.

Chairman, Committee on the Judiciary, U.S. Senate,
Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on S. 2318, the proposed "Freedom from Surveillance Act of 1973."

The legislation would add a new section to title 18, United States Code, prohibiting the use of the Armed Forces of the United States or the militia of any State to investigate or maintain surveillance over the beliefs, associations, or political activities of any person except in connection with certain specific responsibilities of the Armed Forces. It would amend title 28, United States Code, to authorize individuals to bring injunctive and damage actions and to permit class actions to enjoin such activities. It would also amend the Posse Comitatus Act, 18 U.S.C. 1385, to extend that Act to all of the Armed Forces, including the Coast Guard.

It might be noted, that section 2 would not permit the use of the Armed Forces to maintain surveillance when the Armed Forces are being used to assist the Secret Service in protecting the President, Vice-President and foreign visitors pursuant to Public Law 90-331, since this function is not included among the exceptions to the basic prohibition.

In addition to the criminal penalties imposed by section 2, section 3 of the bill would authorize civil suits both for injunctions and damages. The Department of Justice opposes this provision as authorizing unnecessary and possibly harassing litigation. Even in those instances when section 2 would permit maintenance of surveillance, it is likely that suits would be filed under section 3 testing the authorization in each instance.

Section 5 would extend the Posse Comitatus Act, which presently refers only to the Army and Air Force, to all of the Armed Forces. "Armed Forces" is defined to include the Coast Guard as well as the traditional military branches. This would, in effect, prohibit the Coast Guard from carrying out its historic law enforcement duties. See 14 U.S.C. 89. We have no objection to including the other Armed Forces but suggest that the Coast Guard be expressly excluded from the Posse Comitatus Act.

For the foregoing reasons, the Department of Justice opposes the enactment of S. 2318.

The Office of Management and Budget advises that there is no objection to the submission of this report from the standpoint of the Administration's program.


Assistant Attorney General.


Washington, D.C., April 6, 1972.

Secretary of Defense, Department of Defense,
The Pentagon, Washington, D.C.

DEAR MR. SECRETARY: The Subcommittee has received complaints that active duty members of the Marine Corps stationed in Quantico, Virginia, have been assigned to assist local law enforcement in apprehending civilians suspected of violating narcotics laws in Prince William County.

Would you advise me under what conditions Marines can be assigned to investigative and undercover work for the enforcement of federal and state criminal laws? Would you also advise me as to the extent to which members of the Army, Navy and Air Force may be assigned to such duties?

It would be especially helpful to receive copies of the regulations for each of the Services governing this matter.

Sincerely yours,



« PreviousContinue »