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Hon. SAM J. ERVIN, Jr.,
GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE, Washington, D.C., April 26, 1972. 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
under Section IV, Chapter 6; the number of OFCO's authorized under Section VI, Chapter 6; and, finally, the number of instances where off-post monitoring under para. 6-62(d) have been authorized in overseas locations. (The Subcommittee realizes that these figures may be included in the totals furnished in the previous answers.)
(3) If intelligence-gathering activities are being carried out by USAINTC against American civilians living abroad, and these are not governed by DoD Directive 5200.27 and USAINTC Reg. 381-100, under what regulation are they being carried out? If such an alternative regulation exists, the Subcommittee asks that it be furnished a copy.
(4) If intelligence-gathering activities are being carried out by USAINTC against American civilians living abroad, which, if any, of the following techniques have been employed to collect such intelligence:
b. Electronic bugging;
c. Covert infiltration;
d. Opening, copying or tampering with mail;
e. Burglaries or other clandestine means;
g. Overt observation;
h. Videotape equipment;
i. Liaison with foreign governments; and
(5) Has any intelligence operation been conducted by USAINTC involving the activities of one Thomas Schwaetzer or one Max Watts, residing in Heidelberg, West Germany? If so, has this operation entailed a wiretap by USAINTC on telephone number 06223-3316? To what intelligence operation does the USI case number A-0088 refer?
(6) Does USAINTC maintain a dossier on Lawyer's Military Defense Committee attorney Howard DeNike, residing in Heidelberg, West Germany? If so, what is the authority for the maintenance of such dossier?
E. The Subcommittee is interested in learning the extent of surveillance activity over civilians which is carried out by all subordinate units of the Department of Defense, and not simply those of the Army or the USAINTC. What other agencies or units under departmental jurisdiction are now authorized to collect intelligence on civilians and civilian organizations either within or without the 50 states and the territories and possessions of the United States? What directives or regulations govern such activities? Please furnish the Subcommittee with copies of such regulations. In particular, the Subcommittee has not received copies of regulations issued by the Navy or Air Force which correspond to USAINTC Reg. 381-100. Accordingly, we request copies of those regulations issued by the other services since March 1, 1971, which govern their intelligence activities both within and without the continental United States.
II. MILITARY PARTICIPATION IN INTERAGENCY INTELLIGENCE ACTIVITIES
A. In the course of the Subcommittee's investigation into Army surveillance beginning in 1970, it was ascertained that military representatives held seats as late as 1970 on the two standing committees of the Justice Department's Interdivisional Intelligence Unit, namely, the Intelligence Evaluation Committee and the Law Enforcement Policy Committee.
DoD Directive 5200.27 did not specifically preclude the military's participation in interagency intelligence committees, such as the Justice Department's IDIU. In fact, Section IV (c) of the directive acknowledges that the "Attorney General is the chief civilian officer in charge of coordinating all federal government activities relating to civil disturbances," and that information may be obtained from the Justice Department which relates to the military's civil disturbance function, providing the receipt of such information has been authorized by the Secretary of Defense or his designee. USAINTC Reg. 381-100 also clearly contemplates close liaison with the Justice Department. Participation in interagency intelligence committees or other activities seems to have been implicitly allowed for.
(1) To what extent, if any, did Department of Defense personnel continue to participate in any interagency intelligence evaluation committees after the promulgation of DoD Dirctive 5200.27 on 1 March 1971? The Subcommittee is interested in participation in any sort of domestic intelligence committee, whether formal or ad hoc, or whether created under the auspices of the IDIU, the Internal Security Division or any other Division of the Justice Department, the White House or any other agency of the Executive Branch.
(2) If, indeed, there was such participation by Defense Department personnel, please provide the names of the intelligence committees, the names and offices of those participating, and the inclusive dates of such participation.
(3) Again, if there was such participation, please describe the purpose and authority of each committee. If there are written statements to this effect, please include a copy of them. The Subcommittee also requests that it be furnished copies of any reports which these committees may have produced. (4) Please indicate if participation is continuing.
III. OPERATION OF THE DEFENSE INVESTIGATIVE REVIEW COUNCIL (DIRC)
A. DoD Directive 5200.27 established the Defense Investigative Review Council (DIRC) to monitor the operation of the Defense Department's intelligence activities in order to insure that the regulation was being complied with. The Subcommittee subsequently did receive copies of inspection schedules which the DIRC had conducted or intended to conduct.
(1) The Subcommittee has never received any of the inspection reports. We now request that copies of all these reports be made available to us. We are, of course, particularly interested in any such reports which include evidence of (a) continued domestic surveillance of civilians by military agents in violation of the DoD Directive, (b) the maintenance of domestic intelligence information collected after the date of the regulation, or (c) the maintenance of domestic intelligence information which had not been destroyed as required by the regulation. Any record of corrective action taken by the DIRC or the unit involved should also be included.
(2) Does the DIRC review the intelligence activities of the Defense Intelligence Service? If so, what has been the Council's findings in regard to this agency's compliance with the DoD regulation?
(3) Does the DIRC review the intelligence activities of the National Security Agency? If so, what have been the Council's findings with respect to compliance on the part of this agency?
(4) Does the DIRC review intelligence activities of Defense Department units outside the continental United States? If so, what have been the DIRC's findings with respect to compliance in this area?
(5) Please submit copies of all DIRC reports with respect to compliance by DIS, NSA, and intelligence activities by units of the Department of Defense.
OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE,
Washington, D.C. November 8, 1973.
Hon. SAM J. ERVIN, Jr.,
DEAR MR. CHAIRMAN: The Special Assistant to the Secretary of Defense has reviewed and asked me to send to you the answers to the comprehensive list of questions contained in your letter of July 30, 1973.
In responding to your inquiries, we have attempted to avoid limited and technical answers but rather to address the underlying issues which we believe concern you. Additionally, it may prove useful to have staff discussions of the efforts that have been made to restructure and limit the investigative activities of the Department of Defense.
It is our hope that the attached information and the ensuing dialogue will respond to your concerns.
D. O. COOKE,
Deputy Assistant Secretary of Defense.