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Forces are areas where the military may need information of civilians. I don't think there is a thing in this bill that would prevent the military from receiving such information from all civil agencies properly charged with investigative jurisdiction or would prohibit them from retaining information which they receive from those civil agencies.

Colonel DoWNIE. It may be necessary-first of all, as I say, I don't advocate extending the jurisdiction, Mr. Chairman. The Armed Forces now have jurisdiction in the United States in the case of espionage committed by the Armed Forces. First, this fellow doesn't do espionage in a vacuum, and the man who is handling him, directing him, is a civilian. The civilian investigative jurisdiction of the FBI requires close collaboration between the two services. In that sense I am not saying the Army should investigate the civilians, but they should investigate that military man and receive information concerning the military.

Senator ERVIN. I am unable to find a single syllable in this bill which restricts in any way the ability of the Armed Services to obtain information from any person who is a member of the Armed Services. It just doesn't apply to them at all. It only applies to individuals or organizations which are not a part of the Armed Services.

Colonel DoWNIE. But, I am afraid, Mr. Chairman, that is my problem. Without naming any foreign intelligence organizations neither they nor their members are members of our Armed Services, and yet we would need to collect information.

Senator ERVIN. Well, I don't think the Congress of the United States has jurisdiction to legislate to protect the rights of foreign civilians.

Colonel DoWNIE. This is in the United States, Mr. Chairman, as well as overseas.

But I am also afraid that I, as a professional intelligence officer, reading your bill, would say that ends my profession. I am not going to investigate anybody in these four areas. I am afraid we would misinterpret your intention.

Senator Ervin. This doesn't really keep the Armed Forces from investigating anybody with respect to anything except their beliefs, their associations and their political activities, nothing else. If they find any sabotage or espionage this bill doesn't apply to them.

We found in the course of the subcommittee's investigation that the Army collected a tremendous amount of information about people's political beliefs, about not only their associations which were perfectly legitimate, but the associations of some of their kinfolk, some of their wives or husbands. There was information collected and stored as to what people's political views were, and I don't think that is any business of the government, much less the Armed Forces.

Colonel DoWNIE. I would agree with you on that, Mr. Chairman.

Senator ERVIN. I wouldn't object to putting an amendment in that this bill does not apply to any collection of information that is directed towards the detection or neutralization of foreign espionage directed against the Armed Forces. I wouldn't object to an

amendment taking care of that objection, because it, certainly is not intended to be that.

Colonel DOWNIE. Mr. Chairman, you would console an elderly gentleman, retired, from Pennsylvania, if you would.

Senator ERVIN. Thank you.
Do you have any questions?

Mr. BASKIR. Colonel Downie, I wonder, since you are familiar with the information collected in the period the subcommittee investigated, I wonder if you would give an evaluation of that information in terms of what the military mission was at that time? How useful was it? Was it good information? Would it have served a purpose ?

Colonel DoWNIE. I am not sure that 99 percent of it served a useful purpose at the departmental level, that is, in Washington; it was undoubtedly of use to local commanders, if only to reassure them that everybody is looking around and there is no imminent civil disturbance.

In my personal opinion, the Army was as a civil disturbance instrument overused. I can see in Detroit in 1967 the unexpected situation requiring a considerable amount of force and the Army might be required. I can see in the April 1968 disturbances, they were so widespread, civil authorities simply couldn't extend themselves. But I believe that the Army should not be employed in the civil disturbance role under any circumstances. That may sound dreadfully revolutionary, but it isn't.

Pennsylvania boasts the first civil disturbance under this Constitution, the Whisky Rebellion, and George Washington did not use the regular Army. George Washington brought in militia from other States because his principle was that the regular Army should not be used against American citizens. I think that is a heck of a fine principle. As he applied that principle there is undoubtedly a need someplace in the executive branch for information on what is happening, how many of them are there, where are they, do they have clubs, where am I going to put whatever element I am going to use to suppress this thing, but I think it is purely academic as far as the utility of the Army is concerned. The Army or the Navy or the Air Force should not be used.

Mr. BASKIR. Your feeling that the military has been called upon too often in civil disturbances leads to the next question I have.

During the course of the mid-1970's there was the development of what has come to be known as the Huston Plan. I know that plan was never carried out but there was subsequent to that the creation of something called the IEC or the Intelliger.ce Evaluation Committee, which did include representation from the Department of Defense. About November or December, the President did say he disapproved of Army intelligence activities in the area of civilian activities, and in March came the DOD regulation.

Was the participation of the Defense Department considered an exception to the DOD regulation or just not covered?

Colonel DoWNIE. I am afraid I am going to be lost in time. The Huston plan was in the summer of 1970, I believe.

Mr. BASKIR. That is right.

Colonel DoWNIE. I believe in the version of the thing which I have seen printed in the newspapers, there is a startling statement, the current limitations or restrictions on the military will continue. There was no DOD Regulation at that time. The reference was to the restrictions imposed by the Military Departments on themselves. The army was the most limited. There was no DOD icy involved in that one.

The IEC came about in December of 1970. I represented the Assistant Secretary of Defense for Administration on my attendance in this thing, and the DOD policy already was at that time that you accept nothing unless it has a direct bearing on the military. This policy was carried to the point where papers manufactured by the IEC were not taken into the Pentagon.

Mr. BASKIR. I was going to ask you to describe the role of the Defense Department in the role of the operations of the IEC during December and the following few months.

Colonel DOWNIE. Fundamentally, I think the role was a very restrained one in the sense that as the representative to the IEC my instructions were that you do not accept any requirement for any military service, DOD or DIA, unless that requirement clearly bears on the mission of the military and is a legitimate requirement by the military, and no matter what the IEC produces you will not accept any products unless it was of clear value to the military and the military mission. I don't believe there was ever any formal instruction. Mr. Froehlke sat me down and made it clear enough to me that it was a good solid policy to stick with, and I stuck with it.

Mr. BASKIR. Mr. Jordan testified earlier this morning about the inability of the civilian authorities in the Justice Department to appreciate any limitations on the role of the military in this kind of activity. Did you find a similar thing about a year or so later with respect to the IEC?

Colonel DoWNIE. I think the civilian professional members did, that is, the representatives of the intelligence agencies, because we have been well aware for years of the limitations which clearly keeps the military out of the investigation of civilians in the United States. This is not news to them.

Perhaps some of the Justice Department people who were more legally oriented than investigatively oriented had difficulty grasping that point.

Mr. BASKIR. They should have been more alert to that. If they are legally oriented, they are supposed to know what limitations are on the Defense Department.

Colonel DoWNIE. Here again the Delimitations Agreement is an agreement that originated back in 1942 with Mr. Hoover and the chiefs of the Naval Intelligence organization. It is not a law.

Mr. BASKIR. I think an example would be the Posse Comitatus Act of 1878 and the tradition of military separation.

Mr. SNIDER. Colonel Downie, you noted the DOD directive does not apply overseas. Do you see any problems with applying that directive overseas?

Colonel DoWNIE. Now, remember that I left the working Army in April of 1972, so I can't give you current information. Subsequent to my last Army assignment I worked with a Defense organization. But there seemed to be no problem that I was aware of while I was still with the Army.

Mr. SNIDER. Insofar as collecting information on civilians and their political activities abroad is concerned, don't you think the DOD directive should apply or do you think we should have some other sort of restrictions on this activity ?

Colonel DoWNIE. I think there may be problems with the DOD directive in the legal sense. Berlin, as I understand, is one of those places where the United States has tried to provide as much local sovereignty as possible, but it is still technically an occupied country. I can see where the application of U.S. law doesn't work. You have no substitute such as the Justice Department which you would find in the United States.

Mr. SNIDER. Other law enforcement agencies?
Colonel DoWNIE. That is right.

Mr. SNIDER. There is also a section in the DOD directive that permits certain special operations that are defined as covert penetrations of civilian groups in the United States. Do you see any reason for that sort of exception?

Colonel DoWNIE. No; but I think whoever put it in probably thought the thing might pop up some day and he was doing two things. He was leaving an escape valve for himself in case he needed it, and he was directing, channeling information on the contemplation of such a thing to his office. It is sometimes better than to flatly prohibit something to say, ask me. At least you know the guy has it on his mind.

Mr. SNIDER. The Department has informed the subcommittee they have actually authorized a number of exceptions. They haven't given us the details—but no more than three a year since 1971. So we could have had as many as nine covert penetrations.

Colonel DoWNIE. Are these in the United States?
Mr. SNIDER. Yes, in the United States.
Colonel DoWNIE. News to me.

Senator ERVIN. The Posse Comitatus Act is pretty narrow in scope. It has three provisions in effect. The first is that the President can use the Armed Forces only when unlawful obstructions, combinations, or assemblages are impending against the authority of the United States, making it impractical to enforce the laws of the United States in a State or territory by the ordinary course of judicial proceedings. I don't think you need any political spying for that purpose.

The second is that when there is an insurrection or domestic violence which so hampers the execution of the laws of that State within the United States that any part of its people are deprived of their rights, privileges, immunities, and protections named by the Constitution as secured in the law the civil authorities are unable to protect that right, privilege, or immunity.

The third is when this insurrection or conspiracy makes impossible the execution of the laws of the United States or impedes the course of justice under those laws.

Now, I agree with you. I think that the military has been used too much. Of course, local people are always glad to have military brought in, because it not only gives them aid but also relieves them of a great deal of responsibility.

Colonel DoWNIE. And it is cheaper, also, Mr. Chairman.

Senator Ervin. This bill is not intended in any way to interfere in any manner with the control of the military over its own personnel, and it is certainly not intended to obstruct the gathering of information on any person engaged in espionage. I think under the law of the United States, anybody is entitled to believe anything he wants to, no matter how foolish it may be. In fact, the Supreme Court has said a man has a right to believe anything as long as he takes no action against the United States. I think the first amendment also gives the right to everybody to pick his own associations and his own associates. This word “political activity" as used in the bill doesn't trouble me, because I think that political activities are not illegal activities. I don't think they have anything to do with espionage. I think it is just exercising your right to express yourself and to carry on activities relating to government.

But I would be glad to have any suggestions for drafting which would remove the objection you voice, because it is certainly not my intention to interfere with such matters.

Colonel DoWNIE. I appreciate that, Mr. Chairman, I really do.
Senator ERVIN. Counsel, any further questions?
Mr. BASKIR. Mr. Bowe, do you have a statement, also ?

Mr. BOWE. Yes; I have a statement which I have submitted to the staff, and I would like to make a few comments from the statement with respect to the bill.


Mr. Chairman, I appreciate the opportunity to make a few com

I ments today concerning the Senate bill before the committee.

I was assigned, when I entered the Army in 1968, to the Counterintelligence Analysis Branch of the 902d Military Intelligence Group headquartered in Washington, D.C.

Among the functions of the branch was the requirement to spond to intelligence and analytical requirements levied by the Office of the Assistant Chief of Staff for Intelligence of the Army at the Pentagon. It is in this connection that I had the opportunity to work with Colonel Downie, and in connection with this work, I received a great deal of familiarity with the issues that have been under discussion here today.

Reflecting the turmoil of the period of service in the Army, 1968 to 1971, I was engaged in the preparation of intelligence estimates on the necessity for deploying or employing Regular Army troops for use in the control of civil disturbances unable to be handled by State National Guards and local security forces.

The estimate which was submitted for the record, I think, extends for the proposition that no large collection mechanism of the Army or any of the other services was required in order for the Army to prepare reasonable threat estimates which are an essential guide to

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