Page images
PDF
EPUB

ANSWERS TO INQUIRIES OF SENATE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS, SUBMITTED TO THE SECRETARY OF DEFENSE ON JULY 30, 1973

SECTION I.A

Question: 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.

Comment: USAINTC Reg. 381-100 dated 2 January 1970, is not and does not purport to be the Army's implementation of DoD Directive 5200.27. The Army's primary implementation of the latter mentioned DoD Directive is the enclosed Department of the Army letter dated June 1, 1971. As Section 3 of the Army's 1 June 1971 letter states, "This letter is the sole and exclusive authority for collecting, reporting, processing and storing investigative and related counterintelligence information on civilians not affiliated with the Department of Defense." Also, it states: "No other Department of the Army or subordinate command regulations, policy letter, circular or other form of authority, classified or unclassified, may be used to justify activities forbidden by this letter." (Attachment 1)

(Attachment 1 is printed in Hearings before the Subcommittee on Constitutional Rights "Federal Data Banks, Computers, and the Bill of Rights," 1971, at p. 1239.)

SECTION I.A. (1)

Question: Are the DoD Directive (5200.27) and USAINTC Reg. still in effect? Answer: DoD Dir. 5200.27, dated March 1, 1971, is still in effect. USAINTC Reg. 381-100 with changes 1, 2 and 3, is also in effect.

SECTION I.A. (2)

Question: 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 Regulation, which are not in the Subcommittee's possession?

Answer: DoD Directive 5200.27 has not been formally changed. USAINTC Regulation 380-211 issued on January 2, 1970, has been changed by Change 1, dated 1 June 1971, Change 2, dated 8 Nov 1971, and Change 3, dated 14 Feb 1972.

SECTION I.A. (3)

Question: Since these dates, have there been any other directives or orders— classified or not-which amend, alter, modify, interpret or make exception to the provisions of the DoD Directive or the USAINTC Regulations in any respect?

Answer: Yes. DIRC supplemental guidance has resulted in modifications and interpretations which have been incorporated in the unclassified Army letter of 1 June 1971, attachment 1. In addition, ACSI DA subsequently has issued interpretations of the 1 June 1971 letter as shown in attachments 2, 3 and 4.

By letter of August 3, 1971, Mr. J. Fred Buzhardt, General Counsel of the DoD, furnished Chairman Ervin the essence of six actions of supplemental guidance promulgated by the DIRC. These concerned the following subjects: Detailed Guidance on Retention of Investigative Records

DIRC Inspection Techniques

A Review of Counterintelligence Publications

Investigative and Related Counterintelligence Terminology

Standards for Recruitment, Training and Accreditation of DoD Investigative Personnel

Special Operations Requests

In late 1971, the DIRC examined the feasibility of extending DIRC investigative policies and prohibitions with respect to U.S. citizens overseas, paying

particular attention to local customs, laws, status of forces agreements, and other legal considerations affecting investigative activities in foreign countries. The DIRC agreed unanimously not to enlarge the geographic boundaries set forth in DoD Directive 5200.27. They noted the continuing effort to separate the idea of investigations of our own personnel from intelligence operations and observed that overseas, much of our investigative activity intertwines with and is inseparable from foreign intelligence missions. To extend investigative policies abroad might tend to blur the distinctions drawn by DIRC between intelligence gathering and investigations of personnel. Further, differences in relationships with foreign governments, treaties, status of force agreements, and some unstated or unwritten accords, all serve to make application of DIRC policies abroad enormously complicated.

Subsequently the DIRC has addressed the issue of Applicability of DIRC Guidelines to Criminal Investigative Activities—The main objectives were to examine the advisability of extending DIRC guidelines to criminal investigative activities, the adequacy of present restrictions on military criminal investigators, and the practical considerations attendant upon any such expansion of DIRC jurisdiction. The DIRC decided that DIRC constraints do apply to criminal investigative activities where such activities involve alleged subversion, espionage, sabotage or other security related matters.

The criminal investigative activities of the military departments in the civilian community were determined to be closely regulated by statute, Service regulations and the Delimitations Agreement between the Federal Bureau of Investigation and DoD agencies. Essentially, the jurisdiction of military law enforcement investigators within the United States is limited to persons subject to military law, or otherwise affiliated with the Department of Defense, as defined by DIRC. (The DIRC definition of "affiliation" in incorporated in implementing directives previously furnished Chairman Ervin.)

Also, the DIRC has held that except in cases where concurrent military investigative responsibility exists, DoD command and supervisory officials shall not sanction or lend affirmative support for the use of DoD personnel as prospective sources or informants for civilian law enforcement agencies.

When the Defense Investigative Service was created in early 1972, it was immediately placed under the civilian overview of the DIRC, and since becoming operational in October 1972, has been included in inspections by DIRC principals.

The DIRC examined the issue of bilateral counterespionage operations, and granted blanket authority for the participation of military investigative agencies in the conduct of operations against foreign intelligence agencies in the U.S., in those cases where the operation is controlled by a non-DoD Federal agency. If, however, in the exercise of this authority, the penetration or the covert or otherwise deceptive surveillance of a domestic civilian organization by DoD personnel is contemplated, specific DIRC approval for the special operation must be obtained under DIRC rules.

The issue of applying the DIRC restrictions to National Guard units was resolved by the DIRC with the holding that only when federalized is the Guard bound by DoD Directives, at which time all the prohibitions and restrictions of DoD Directive 5200.27 apply to personnel of a federalized unit.

The DIRC has also held that, with the exception of electronic monitoring, the prohibitions of DoD Directive 5200.27 do not apply to civilians on a military base.

The DIRC has also amended DIRC file retention criteria by adding the following provisions:

"File holdings of investigative agencies resulting from any activities involving an inquiry from members of the public to the DoD for information relating to DoD functions or units, unit insignia, signatures or photos of senior commanders, etc., may be retained subject to annual review for pertinency."

"File holdings of investigative agencies resulting from any activities involving an unsubstantiated report to DoD components from members of the public alleging imminent invasions, communist plots and similar events of a delusional nature, and assorted "crank" files, may be retained in excess of one year but subject to annual review for their pertinency."

Also, as a result of Chairman Ervin's recent request to the Secretary of Defense not to destroy certain "domestic intelligence files," a directive to withhold all destruction of files was issued as shown in Attachment 5.

SECTION 1.A. (4)

Question: 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 paragraph 1-23 (c) or otherwise?

Answer: No. However, in accordance with the provisions of the DoD Directive which provides for the Secretary of Defense or his designee to authorize an exception to certain prohibited activities, the Chairman of the DIRC has, since March 1971, authorized a small number of special operations under Section V. E. of DoD Directive 5200.27. No other exceptions to prohibited activities have been made since promulgation of this directive. None of the exceptions granted under Section V.E. of the DoD Directive has involved a request initiated under USAINTC Regulation 381-100.

SECTION I.A. (5)

Question: Does the Directive apply to operations of the NSA, DIA and all other agencies under the jurisdiction of the DoD? If not, please submit copies of the analogous regulations or orders which govern the collection of intelligence by these agencies?

Answer: The DoD Directive applies to the NSA and the DIA and other Defense agencies within the geographical areas covered by the DoD Directive. It does not apply to "the acquisition of foreign intelligence information or to activities involved in ensuring communications security," and hence does not apply to the foreign intelligence gathering activities of both the DIA and NSA. It does apply to their personnel investigative activities within the 50 states, the District of Columbia, Puerto Rico and U.S. territories and possessions. Copies of the relevant directives are enclosed as Attachments 6 (DIA) and 7 (NSA). (Attachment 7 omitted)

SECTION I.A. (6)

Question: Prior to March 1, 1971, was any information collected by the DA about civilians unaffiliated with the Department of Defense ever transmitted to NSA?

Answer: Yes. Summaries of Information and other Civil Disturbance documents, including the so-called "compendium," were furnished to the National Security Agency and other DoD components by the Department of the Army during the period 1968-1969. The NSA copies of the "compendium" ("Civil Disturbance and Dissidence," Vols I and II) have all been destroyed. The NSA advises that they have no such civil disturbance information from the Department of the Army or any other source in their possession. According to limited records still available from that period, it seems that whatever information was received was disposed of by the National Security Agency because it was of no interest to that Agency. In any event, we are certain (as we previously advised Chairman Ervin on January 23, 1973) that the National Security Agency was not furnished and is not maintaining copies of Army files and data banks relating to domestic surveillance of the late 1960's.

SECTION I.A. (7)

Question: Subsequent to that date, was any such information ever transmitted to NSA? Does NSA now possess any such information?

Answer: No to both questions.

SECTION I.A. (8)

Question: If the answer to (6) and (7) is yes, please describe the kind, amount and nature of the information, and the circumstances of its transfer. Answer: See answers to (6) and (7) above.

SECTION I.B.

Question: 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. Paragraph 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?

Answer: No.

SECTION I.B. (2)

Question: If not, are there other directives, regulations or orders which do prohibit such information-gathering? (Underlining added)

Answer: No. However, it is important to point out that any investigation done by military investigators anywhere must be authorized. Prohibitions alone do not set the stage for what an investigator can or cannot do. In order for a military investigator to undertake an investigation, there must be some authorized and legitimate mission-related military purpose in doing so. Moreover, in drafting DoD Directive 5200.27, it was only thought necessary to prohibit certain activities within the US, its territories and possessions, because it was in these geographical areas where the military previously had been tasked to gather civil disturbance information circa 1968-1969, which the Directive issued on March 1, 1971, was designed to prohibit, except in carefully delimited circumstances.

SECTION I.B. (3)

Question: If there are not such regulations, are there other directives, regulations or orders which limit or regulate such information gathering? Answer: Yes. For example, Status of Forces Agreements (SOFA) in some countries severely delimit or prohibit our investigative activities within the civilian community. This varies from country to country. Our internal regulations of overseas commands reflect these SOFA's, and other written or unwritten accords. As a different kind of example, overseas command within the Army require approval for counterintelligence wiretaps to be given only at theatre (USAREUR or USARPAC) level. Thus, in Europe the authority who approves all requests for such wiretaps is the Deputy Chief of Staff, Intelligence, Headquarters USAREUR, acting for the CINC, USAREUR. In West Germany, the actual wiretap is performed by Federal Republic authorities in accordance with the provisions of German law, but only after initial approval for the wiretap is given by the DCSI, USAREUR. In Army criminal investigations, world-wide, initial approval for all wiretaps must be obtained from the Commander, CID Command in Washington, D.C.

SECTION I.C.

Question: 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 Regulation 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 Regulation 381-100?

Answer: Yes, procedures authorized by Chapter 6 of USAINTC Regulation 381-100 are still valid under the conditions set forth in this question.

SECTION I.C. (2)

Question: 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 Regulation 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.

Answer: Since 1 June 1971, one covert special operation has been proposed to USAINTC by a subordinate element and is currently under consideration. No plans for such operations have been approved by HQ, USAINTC nor have any such plans been submitted for approval to Department of the Army (DA).

SECTION I.C. (3)

Question: 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 covert 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? Please specify the nature and circumstances of each plan which received approval.

Answer: The proposed covert special operation mentioned in the response to Question (2) above, does not entail "clandestine" activities, nor does it entail "illegal" activities.

SECTION 1.C. (4)

Question: Section IV, Chapter 6 of USAINTC Regulation 381-100 authorizes Aggressive Counterintelligence Programs (ACIP) to be initiated on the request of local commanders. How many such requests for ACIPs 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?

Answer: USAINTC has received a total of seven requests for ACIPS since 1 June 1971. Of these, two have been approved by USAINTC and by DA. DA approval of all ACIPS is required. Each of the ACIPs which has been approved was requested because the installation commander felt that a threat to the security of his installation existed or because he felt that the sensitivity of the installation's activities dictated expanded security protection. (ACIP operations are on-post operations designed to give indications of internal security problems.) There are 9 other ACIPS, approved prior to 1 June 1971, which are still on-going.

SECTION 1.C. (5)

Question: Section VI, Chapter 6 of USAINTC Regulation 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 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.

Answer: Countersubversion Offensive Counterintelligence Operations can be proposed but not initiated by MI Group commanders. As indicated in response to Section I.C. (2) above, one such covert operation has been proposed since 1 June 1971. No such operations have been approved by USAINTC. Approval for all such plans must be given by the Under Secretary of the Army and by the Chairman of the DIRC before initiation of an OFCO.

SECTION 1.C. (6)

Question: Section VII, Chapter 6 of USAINTC Regulation 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

« PreviousContinue »