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serious in its desire to limit military intelligence operations to legitimate bounds. It is also apparent that the DIRC has gotten its message across at the "grass roots” level of military intelligence.
Despite these commendable developments, however, I continue to have misgivings about the present regulatory scheme. Say what you will, the only protection which the American people have against a return to the military spying of the past is a regulation of the Defense Department itself. This regulation contains qualifications, exceptions, and ambiguities which permit surveillance even within the confines of an otherwise restrictive policy. If these permitted exceptions to the general rule are classified, chances are they will never come to the attention of the public. What this comes down to is that if the Defense Department should decide to invoke such qualifications and exceptions or, even worse, violate its own regulation, there is no one in a position to say "no.” The system of checks and balances which the Founding Fathers so ingeniously wove into the fabric of our Government finds no application here. For this reason, if for no other, I believe a statutory resolution of this problem is called for.
To be sure, the subcommittee staff's follow-up investigation does indicate the Defense Department has achieved significant success in bringing its domestic intelligence operations under control. But it also demonstrates that the potential for continued surveillance is lurking just beneath the surface. Specifically:
(1) The subcommittee has been informed that, under the provision in the DOD directive prohibiting covert penetration of civilian organizations unless approved by the Secretary of Defense or his designees, several such penetrations—"no more than three in any given year”_have been authorized since 1971. Although the subcommittee has not been informed of the details of these special operations, they apparently involved the covert penetration of antimilitary civilian groups who were thought to pose a threat to military personnel or property.
(2) The subcommittee staff has found that the majority of units inspected by DIRC possessed files on civilians or civilian organizations which either were flatly prohibited by the DOD directive or which, if authorized, were being held beyond the time limitations provided by the DOD directive, or DIRC retention criteria.
(3) The DOD directive permits the collection of intelligence on civilians and civilian organizations which constitute a “threat” to Defense Department property and personnel. The subcommittee staff has found, in point of fact, that the "threat” rationale has replaced the “preparation-for-civil-disturbance” rationale of the late 1960's as the primary justification for the current collection and retention of files on civilians. In all fairness, it should be pointed out that the DIRC has attempted to define the term narrowly, limiting it to activities which genuinely menace the military mission. Furthermore, it has required that "threat” information be continuously updated and verified. Nevertheless, it cannot be disputed that the term is a vague one which lends itself very well to subjective interpretation by field commanders and field operatives alike. The DIRC
inspection reports made available to the subcommittee confirm this as a recurring problem.
(4) Although the work of the DIRC has been commendable, I am not without qualms regarding its effectiveness as a "watchdog." Its inspection reports are typically designated "For Official Use Only” and not normally available to the public. Moreover, the two inspections which revealed the most egregious departures from the DOD directive were classified “Confidential.” The upshot of this is, of course, that the public will not become aware of any
violations of the directive or shifts in policy. The DIRC, for all of its fine work, clearly does not view its role as a public watchdog.
I also would point out that DIRC inspections must, of necessity, be infrequent. There have been only 14 inspection trips since 1971. I suspect that any unit inspected could breathe a sigh of relief for the next 5 or 6 years before the next DIRC inspection would take place. The number of defense intelligence offices is so large that more frequent DIRC inspections are all but impossible.
(5) The subcommittee has been informed that the Defense Investigative Service has undertaken three "plumber" operations to determine the source of leaks to the press of classified defense information. Although the subcommittee was assured that DIS agents interviewed only persons affiliated with the Defense Department in connection with these leaks, there appears to be no limitation on such investigations provided by the DOD directive, even if they were to spill over into the civilian community.
(6) It is clear that the Defense Department maintains strong liaison with law enforcement agencies at all levels of Government. Ordinarily, such liaison is of great benefit to the department in carrying out such legitimate functions as conducting security clearance investigations, conducting espionage investigations under the delimitations agreement, and responding to civil disturbance situatons. Judging from incidents reported to the subcommittee, however, it is clear that liaison with law enforcement agencies constitutes a major pitfall for military intelligence.
To cite a few examples, it has been reported to the subcommittee that the Defense Department participated in the now-defunct Intelligence Evaluation Committee (IEC) of the Justice Department from 1971-73. Participation has been justified by the military's need to prepare for civil disturbances. But the IEC gathered and analyzed intelligence information regarding not only civil disturbances but a host of other “dissident” activities, none of which concerned the mission of the military per se. Although it is my considered opinion that the Defense Department's participation was, in fact, not inconsistent with its own directive, it very well might have been had its representatives not been as conscious of the new restrictive policies as they were.
The subcommittee has also been informed that the Defense Department provided three military intelligence analysts for a communications center run by the Justice Department during the Democratic and Republican National Conventions at Miami Beach. The analysts were provided at the request of the Justice Depart
ment on the basis that a civil disturbance situation might develop which would require bringing in Federal troops. The DOD specifically found that this support was not inconsistent with the DOD directive.
Another incident reported to the subcommittee by the DIRC involved a military intelligence unit in San Diego, which, prior to the decision to move the GOP convention from San Diego to Miami Beach, had begun to build its files on dissident groups in the area in contemplation of liaison responsibility with the Secret Service at convention time. The DIRC advised that this activity should be halted.
Occasionally, military liaison with local law enforcement, used for the purpose of investigating military personnel, becomes a pretext for assisting local authorities to investigate civilians. In a case which took place in Prince William County, Va., shortly after the promulgation of the DOD directive, military intelligence agents were assigned to assist local police by posing as members of a drug ring. Ostensibly, they were "loaned” to the local police because military personnel were thought to be involved. As it turned out none were, but military agents helped to identify 29 civilians for the local authorities.
I mention these cases to illustrate that the borderline between permissible and impermissible intelligence activity is sometimes blurred by the contingencies of the moment. Liaison is helpful in the performance of legitimate functions, but it often offers tempting and compelling opportunities to hedge, if not avoid, the paramcters of the DOD directive.
(7) The subcommittee notes, finally, that the DOD directive applies only to military personnel stationed in the United States or its territories and possessions. It does not apply to personnel stationed overseas. The DIRC reported to the subcommittee that it had considered expanding the applicability of the directive to overseas posts but had unanimously rejected the idea because it might interfere with the gathering of foreign intelligence by military agents.
Regardless of the merits of their objection, I am not satisfied that the DIRC has chosen to turn its back on the problem altogether. It is one thing for the military to investigate civilians abroad, even American civilians, who are suspected of being agents of a foreign power. It is quite another thing for the military to have its agents watch civilians living or travelling abroad who have no remote connection with any foreign power or its intelligence services. I believe the DIRC would do well to reconsider its decision and draw more precise lines between overseas "intelligence” investigations and overseas "dissidence” investigations.
As has been reported in the press, the subcommittee does have evidence that Army intelligence did, in fact, conduct extensive surveillance of American citizens in West Germany in 1972 and 1973. Most of the groups and individuals under surveillance were what might be described as “political activists" whose concerns focused primarily upon domestic politics in the United States. As far as we have been able to determine, there is no evidence to connect these groups and individuals under surveillance with the operations of any foreign government. The subcommittee is still awaiting the Defense Department's response to its inquiry of last December 10, which dealt with these matters. But I think it is clear that these sorts of operations violate the spirit of the DOD directive, if not its letter. In the minds of many, they mar what had otherwise been a highly successful turnabout.
I do not plan to have these hearings concentrate unduly on overseas operations. I certainly do not think they should divert us from the larger and more significant fact that very commendable reforms have taken place within the United States. I do think, however, that the overseas operations remind us that the issue of military surveillance is not moot.
With this in mind, I intend to submit certain evidentiary materials relating to these operations, now in the possession of the subcommittee, for inclusion in the record of these hearings. Some of these materials are classified and I propose to ask the Department's cooperation in having them declassified.
In conclusion, then, while the Defense Department has taken significant and commendable strides to bring its domestic intelligence operations in line, the regulatory structure has shown itself to be still defective and inadequate as a matter of fully protecting our constitutional guarantees. The rights endangered by military surveillance are too precious to be left to an equivocal policy of selfrestraint on the part of the military.
While I would be the first to agree that enactment of a statute offers no cure-all in itself, it is an opportunity to clarify and remedy many of the current ambiguities and shortcomings, and it would go much further in deterring future surveillance than a mere departmental directive.
I am hopeful that the Department will give us its support and its assistance in developing this legislation. I can think of no better way for it to demonstrate to the American people its sincerity in putting an end to domestic spying than to have its support on this legislation. Its 1971 directive established commendable po guidelines. This legislation only attempts to give them the permanence and dignity they deserve as a part of the law of the land.
Before calling the first witness, I should like to say that without objection from the subcommittee members, I shall have placed in the appendix of the hearing record the past correspondence between the subcommittee and the Defense Department as it pertains to the matters we are addressing. Without objection, I shall also place the evidentiary materials which deal with the surveillance of civilians in West Germany together with an explanation of the materials prepared by the subcommittee staff in the appendix. All references to individuals in these materials will be stricken for purposes of publication. In the case of those documents which are classified, I will instruct the subcommittee staff to seek their declassification prior to publication.
[A copy of the proposed bill, S. 2318 follows:)
IN THE SENATE OF THE UNITED STATES
AUGUST 1, 1973 Mr. Ervin (for himself, Mr. ABOUREZK, Mr. BAKER, Mr. Bayu, Mr. Beall, Mr.
BIBLE, Mr. CANNON, Mr. Case, Mr. CHURCH, Mr. CRANSTON, Mr. EAGLETON, Mr. FULBRIGHT, Mr. GRAVEL, Mr. Hart, Mr. HASKELL, Mr. HATFIELD, Mr. HUGHES, Mr. HUMPHREY, Mr. INOVYE, Mr. Javits, Mr. KENNEDY, Mr. McGee, Mr. MANSFIELD, Mr. Moss, Mr. Pell, Mr. Percy, Mr. RANDOLPII, Mr. RIBICOFF, Mr. Roth, Mr. STAFFORD, Mr. STEVENSON, Mr. TUNNEY, Mr. WEICKER, and Mr. WILLIAMS) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL To enforce the first amendment and fourth amendment to the
Constitution, and the constitutional right of privacy by prohibiting any civil or military officer of the United States or the militia of any State from using the Armed Forces of the United States or the militia of any State to exercise surveillance of civilians or to execute the civil laws, and for
Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 SECTION 1. This Act may be cited as the “Freedom
4 From Surveillance Act of 1973".