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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."
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.
Hon. JAMES O. EASTLAND,
DEPARTMENT OF JUSTICE, Washington, D.C., April 16, 1974.
Chairman, Committee on the Judiciary, U.S. Senate,
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.
W. VINCENT RAKESTRAW,
Hon. MELVIN R. LAIRD,
SENATE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS,
Secretary of Defense, Department of Defense,
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.
SAM J. ERVIN, Jr.,
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE,
Hon. SAM J. ERVIN, Jr.,
Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, U.S. Senate, Washington, D.C.
DEAR SENATOR ERVIN: The Secretary of Defense has requested that I respond to your letter of April 6, 1972, concerning a complaint you have received about active duty Marine Corps personnel being assigned to assist local law enforcement agencies in Prince William County, Virginia.
The particular incident to which we believe you refer occurred in about August 1971, in the vicinity of a shopping center in Manassas, Virginia. Authorities at the Marine Corps Base, Quantico, had been concerned for some time about keeping drugs of all kinds off the base and out of military hands. In late July 1971, information was received from local Prince William County police that some cars bearing Marine Corps “decals” had been observed in the Westgate Shopping Center in possible involvement with drug transfers. It was surmised that Marines may have been buying drugs from civilians at the shopping center.
As a result of this information, two Marine Corps personnel were authorized to go to the shopping center, with the knowledge of and in cooperation with the County police officials, to determine whether there was any Marine involvement in drug traffic in that vicinity. They were not assigned to assist local law enforcement personnel but rather were there to ascertain whether any Marines or other military personnel were engaged in drug traffic. Several AWOL Marines were detected in the course of their actions and later apprehended but none was established as engaged in the drug traffic under investigation by local police. On September 10, 1971, local authorities arrested approximately 30 persons, 29 of whom were charged and later convicted of drug possession, sale, or related transactions. As it developed, none of these thirty was a military member, and it was therefore concluded that further Marine Corps participation would be unfruitful. At the subsequent trial in Circuit Court, Prince William County, Virginia, held in January 1972, Marine Corps personnel appeared pursuant to subpoena and testified to their knowledge of the defendants' participation in drug traffic.
The Marine Corps as well as all other military units maintain close liaison with local law enforcement agencies in the vicinity of military bases. For the policies governing the employment of military resources in the event of civil disturbances see DoD Directive 3025.12, August 29, 1971, attached.
Also attached hereto are copies of regulations for each of the Services relating to conflict of interest and outside employment of military personnel. Your particular attention is invited to Marine Corps Order 5330.3, dated December 21, 1970, attached, which contains prohibitions on civilian employment of active duty Marine Corps personnel. Paragraph 4.d. of this directive refers specifically to the prohibition against engaging in civilian employment as law enforcement officers for a public police force.
We trust this information help to set the record straight concerning the specific complaint you have in mind.
J. FRED BUZHARDT.
SENATE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS,
Hon. JAMES SCHLESINGER,
DEAR MR. SECRETARY: AS I indicated in my letter of July 3, 1973, the Constitutional Rights Subcommittee intends to continue its inquiry into surveillance by the military and other government agencies of political activities of Americans. You were kind enough in your reply of July 14, 1973, to offer your cooperation and to designate Mr. Martin Hoffman as liaison with the Subcommittee.
I am submitting with this letter a set of inquiries on this subject. Mr. Baskir of the Subcommittee will be in touch with Mr. Hoffman in case any problems arise with respect to this inquiry.
I want to thank you for your cooperation in the Subcommittee's endeavor. With kindest wishes,
SAM J. ERVIN, Jr.,
I. CONTINUING INTELLIGENCE ACTIVITIES
A. On March 1, 1971, the Department of Defense issued DoD Directive 5200.27 governing the collection and retention of information on the political activities of Americans unaffiliated with the Armed Forces. The Department has forwarded to the Subcommittee a copy of this directive as well as USAINTC Reg. 381-100, dated 2 January 1970. The USAINTC Reg. included Chapter 6 which is classified "Secret" and published under separate cover. The Subcommittee has also received Changes 1, 2 and 3 to the USAINTC Reg. and no changes to DoD Directive 5200.27.
(1) Are the DoD Directive and USAINTC Regulation still in effect?
(2) Since the dates of their issuance (March 1, 1971, and January 2, 1970), have there been further formal changes to the DoD Directive or the USAINTC Reg. which are not in the Subcommittee's possession?
(3) Since these dates, have there been any other directives or ordersclassified or not—which amend, alter, modify, interpret or make exception to the provisions of the DoD Directive or the USAINTC Regulation in any respect? (4) Have any one-time or temporary exceptions or modifications been granted to the provisions of the DoD Directive, or the USAINTC Regulation under the provisions of para. 1-23 (c) or otherwise?
(5) Does the Directive apply to operations of the NSA, DIA and all other agencies under the jurisdiction of the Department of Defense? If not, please submit copies of the analogous regulations or orders which govern the collection of intelligence by these agencies.
(6) Prior to March 1, 1971, was any information collected by the Department of the Army about civilians unaffiliated with the Department of Defense ever transmitted to NSA?
(7) Subsequent to that date, was any such information ever transmitted to NSA? Does NSA now possess any such information?
(8) If the answer to (6) or (7) is yes, please describe the kind, amount and nature of the information, and the circumstances of its transfer.
B. Section I of DoD Directive 5200.27 states that the directive applies to the collection of information regarding all persons and organizations not affiliated with the Department of Defense. Section II of the Directive provides, however, that it is applicable only to the use of military forces located within the 50 states and the territories and possessions of the United States. Para. 1-13 of USAINTC Regulation contains these same provisions.
(1) Does the DoD Directive prohibit the collection of information on American civilians living abroad by military forces stationed outside the 50 states or the territories and possessions of the United States?
(2) If not, are there other directives, regulations, or orders which do prohibit such information-gathering?
(3) If there are not such regulations, are there other directives, regulations, or orders which limit or regulate such information-gathering?
C. Change 1 to USAINTC Reg. 381-100, dated 1 June 1971, added Section IV of Chapter 1, entitled "Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense," and Section X of Chapter 6, entitled "Counterintelligence Information Reporting." Para. 1-13(a) of USAINTC Reg. 381-100 states that it implements a Department of Army letter directing the implementation of DoD Directive 5200.27. It does not purport to supersede the existing provisions of USAINTC 381-100 except where they are in conflict with the policies stated.
(1) Are the procedures authorized by Chapter 6 of USAINTC Reg. 381-100 still valid as long as the intelligence collecting does not exceed the limits
established by DoD Directive 5200.27 and Chapter 1, Section IV of USAINTC Reg. 381-100?
(2) If so, how many covert special operations plans have been proposed under the provisions of para. 6-14 since 1 June 1971, the date of Change 1 to USAINTC Reg. 381-100? How many received approval by USAINTC? By Department of the Army? By the Chairman of the Defense Investigative Review Council (DIRC)? Please specify the nature and circumstances of each plan which received approval.
(3) Para. 6-16(b) (2) alludes to the fact that some of the covert operations plans may entail "clandestine" (defined as "illegal") activities. Did any cover special operations plans proposed under para. 6-14 since 1 June 1971 entail "clandestine" activities? How many such plans were approved by USAINTC? By Department of the Army? By DIRC? Pleaase specify the nature and circumstances of each plan which received approval.
(4) Section IV, Chapter 6 of USAINTC Reg. 381-100 authorizes Aggressive Counterintelligence Programs (ACIP), to be initiated on the request of local commanders. How many such requests for ACIP's were received by USAINTC after 1 June 1971? How many were approved by USAINTC? Is approval for such plans required by any higher level of authority? Please specify the nature and circumstances of each request which received approval of USAINTC or any higher authority.
(5) Section VI, Chapter 6 of USAINTC Reg. 381-100 authorizes covert Offensive Counterintelligence Operations (OFCO), to be initiated by MI group commanders. How many such operations were proposed by MI group commanders after 1 June 1971? How many were approved by USAINTC? Is approval for such plans required by any higher level of authority? Is higher authority required to be informed either before or after initiation? Please specify the nature and circumstances of each plan which received approval of USAINTC or any higher authority.
(6) Section VII, Chapter 6 of USAINTC Reg. 381-100 provides, inter alia, for the selection and development of "confidential sources" among Department of Army personnel. Para. 6-39(C) (e) further alludes that some of these may be called upon to perform "clandestine" (defined as "illegal") acts. How many such "confidential sources" are now maintained by USAINTC? How many of these are classified as "clandestine" sources?
(7) Is the Interagency. Source Registry, provided for in Section VIII, Chapter 6, USAINTC Reg. 381-100, still in existence? If not, on what date did it cease operation?
(8) Para. 6–62(d) of USAINTC Reg. 381-100 authorizes off-post monitoring of "subversive activity" under certain circumstances if the approval of the Department of Army has been obtained. How many requests to conduct such monitoring have been made to USAINTC since 1 June 1971? How many were approved by USAINTC? By Department of Army? Please specify the requesting unit, the approving authority, the activity monitored and the results of such operations.
(9) Section XII, Chapter 6 of USAINTC Reg. 381-100 provides for use of video tape and equipment to conduct intelligence operations. How many operations plans calling for use of such equipment were submitted to USAINTC since 1 June 1971? How many were approved by USAINTC? By Department of Army? Again, please specify the requesting unit, the approving authority, and how such equipment was employed.
D. We have noted that neither the DoD Directive nor the USAINTC Regulation applies specifically to military units stationed outside the 50 states or territories and possessions of the United States. The Subcommittee is interested in knowing whether USAINTC collects information on American citizens living outside the United States and its territories and possessions who are not affiliated with the Department of Defense. Specifically:
(1) If there are such operations, are they then governed by the limitations of DoD Regulation 5200.27 or USAINTC Reg. 381-100?
(2) If they are so governed, please furnish the Subcommittee with the number of special operations plans authorized under the provisions of para. 6-14 of USAINTC Reg. 381-100; the number of these plans which involved "clandestine" activities under para. 6–16(b) (2); the number of ACIP's authorized