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beyond the scope of any constitutional or statutory authority. The plaintiffs charged that "[t]he purpose and effect" of the surveillance program "is to harass and intimidate [them] and others similarly situated and to deter them from exercising their rights of political expression, protest and dissent from government policies, which are protected by the First Amendment, by invading their privacy, damaging their reputations, and adversely affecting their employment and their opportunities for employment" [Complaint, ¶ 15]. The plaintiffs claimed that they were deterred from exercising their political rights for "fear that they will be made subjects of reports in the Army's intelligence network, that permanent reports of their activities will be maintained by the Army, that their profiles will appear in the so-called 'Blacklist' and that all this information will be released to numerous federal and state agencies upon request" [Id., ¶16].

Unfortunately, the reception which the plaintiffs received in the District Court was almost as chilling as their treatment by Army intelligence. Comparing the Army's surveillance apparatus to a newspaper clipping service, the district judge scoffed at the rejoinder by plaintiffs' counsel that "newspapers don't have guns and jails" [Transcript of Proceedings, April 22, 1970, at ]. The Court refused to grant the plaintiffs an evidentiary hearing-thus barring the testimony of several former Army intelligence agents who were to testify before this Subcommittee ten months later 2and denied their motion for a preliminary injunction, dismissing their complaint.

This decision was reversed on appeal on April 27, 1971, and the case was remanded for a full evidentiary hearing [444 F.2d 947 (D.C. Cir. 1971)]. The Court of Appeals held, in an opinion by Judge Wilkey, that the complaint stated a justiciable cause of action involving First and Fourth Amendment questions and instructed the District Court to determine:

"1. The nature of the Army's domestic intelligence system ***, specifically the extent of the system, the methods of gathering information, its content and substance, the methods of retention and distribution, and the recipients of the information.

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"2. What part, if any, of the Army domestic intelligence gathering system. is unrelated to or not reasonably necessary to the performance of the mission as defined by the Constitution, statutes, and military regulations * "3. Whether the existence of any overbroad aspects of the intelligence gathering system * * has or might have an inhibiting effect on appellants or others similarly situated.

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"4. Such relief as called for in accordance with the above established law and facts [444 F.2d at 958-59]."

The remand hearing never took place, however, because the Army's petition for certiorari was granted, and the Supreme Court reversed the Court of Appeals decision by a narrow 54 majority. Writing for the majority, Chief Justice Burger implicitly indicated that the case involved issues not amenable to judicial resolution but more appropriate for legislative action. The majority view that the Tatum complaint was not justiciable apparently was based on the fact that the plaintiffs were broadly challenging "the existence and operation of the [Army's nationwide] intelligence gathering system" [408 U.S. at 3]. Reviewing prior decisions striking down governmental practices which inhibited the exercise of First Amendment rights, the Chief Justice concluded that in each of those cases relief was granted to particular individuals who were the direct targets of the challenged practice. To the extent that there were such persons among the plaintiffs in Tatum, however, the Court found that they were "indistinguishable from the public at large", although all four dissenters (Stewart, Marshall, Douglas and Brennan, J.J.) pointed out that this was a clear misreading of the record and that the plaintiffs should have been given a chance to prove their case at a trial [408 U.S. at 165-78].

2 Plaintiffs proffered the testimony of former Army Intelligence officers Ralph Stein, Oliver Peirce and Christopher Pyle. The Stein and Pyle testimony, as well as that of former agents Joseph Levin, Jr., Edward Sohier, John O'Brien and Lawrence Lane was presented in full in this Subcommittee's 1971 hearings. Although it need not be summarized here, this testimony bears directly on the need to enact S. 2318 [See 1971 Hearings, at 41 ff., 100 ff., 147 ff., 244 ff., 277 ff., 298 ff.].

The Tatum decision undoubtedly stands as one of the most controversial actions of the Burger Court. Without dwelling upon the tenuous and often confused reasoning of the majority opinion [see, e.g. Note, Big Brother Wears Army Green, 72 COLUM. L. REV. 1009 (1972)], it is only necessary to point out that the decision did not vindicate the Army's claims that what it had been doing was legal but merely held that a generalized challenge on behalf of a nationwide class of civilians was judicially unmanageable. The Court's concluding language implies that Congress is better equipped to provide a remedy to the problem: "there is nothing in our Nation's history or in this Court's decided cases, including our holding today, that can properly be seen as giving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied" [408 U.S. at 165].

B. Litigation After Laird v. Tatum.

Another case challenging the Army's CONUS Intelligence operation was litigated in the shadow of Tatum, and was ultimately dismissed on the basis of the Supreme Court's decision of June 26, 1972. American Civil Liberties Union v. Westmoreland, 323 F. Supp. 1153 (N.D. Ill. 1971), aff'd sub nom. American Civil Liberties Union v. Laird, 463 F.2d 499, petition for rehearing denied, 463 F.2d 503 (7th Cir.), cert. denied, 409 U.S. 1116 (1972). Nevertheless, there are several aspects of this case which are worth noting as further evidence of the need for the prohibition in S. 2318 and the appropriateness of legislative action on military surveillance.

ACLU v. Westmoreland was a class action brought by politically active citizens in the Chicago area against the 113th Military Intelligence Group, a Chicago-based unit of CONUS Intelligence, and its Army command structure. Filed on the eve of this subcommittee's hearings and the rising public concern about military spying, the suit reached a five-day evidentiary hearing in the District Court on plaintiffs' motion for a preliminary injunction in early January 1971. The testimony at the hearing was set forth in detail for the subcommittee in its 1971 Hearings (at pp. 91 ff.) by Alexander Polikoff, the plaintiffs' trial attorney. It was summarized as follows in our petition to the Supreme Court for certiorari:

"The testimony at the hearing was directed to showing the organization, scope and operation of the Army's domestic intelligence program and its impact on plaintiffs. It was shown that the Army's intelligence activities were divided into seven military intelligence groups covering the entire United States, and that a 'left-wing desk' was maintained by the Assistant Chief of Staff for Intelligence with responsibility for obtaining information on such matters as the financial background, political activities and sexual conduct of persons connected with 'left-wing' and 'anti-war' groups. This information was obtained by both overt and covert methods and placed in computerized depositories for easy reference.

"As part of this operation, the 113th Military Intelligence Group maintained dossiers on virtually every organization in the Chicago area. In addition, files were maintained on any person whom the Army 'had reason to believe was in a leadership position in a group that was or could be or reasonably expected to be involved in civil disturbance.' Pursuant to these criteria, a dossier was maintained on each of the plaintiffs. Undercover agents were employed, newspapers were combed, and reports were received from federal, state and local investigative agencies. The resulting files 'con

3 Perhaps the most controversial aspect of the decision was the fact that Mr. Justice Rehnquist cast the deciding vote, notwithstanding his testimony before this very subcommittee, as a Nixon Administration witness prior to his nomination to the Court, that the issues in Tatum were nonjusticiable. See 1971 Hearings, at 597; 849. Moreover, as an Assistant Attorney General for the Office of Legal Counsel, Rehnquist was the custodian of the evidence which the Court of Appeals held was discoverable by the plaintiffs. Since Justice Rehnquist had been expected to disqualify himself from participating in the Tatum decision (and since the result would have been different had he done so), the plaintiffs moved to recuse him nunc pro tunc after the case was decided. He denied their motion, but conceded its "seriousness", on October 11, 1972 [41 U.S.L.W. 3208].

4 The complaint was brought on behalf of the American Civil Liberties Union and Jay Miller, its Executive Director; Jessie Jackson, the Executive Director of Operation Breadbasket; Alderman A. A. Raynor of Chicago; Gordon Sherman, President of the Business Executives Move for Vietnam Peace and Henry DeZutter, a Chicago journalist.

tained all details on a person's file, background and history.' Notwithstanding repeated assertions by the witnesses for the defendants that the surveillance program was substantially reduced in scope, it was conceded that files were still retained on plaintiffs Sherman and Raynor.

"Plaintiffs Miller, Sherman and Jackson testified to the direct effect of the Army's activities on them and their organizations. Each of them stated that the effect of surveillance was both personally inhibiting and interfered with the work of their organizations by deterring public participation and support. The result was that effective communication of ideas was significantly impeded."

At the conclusion of the hearing the trial judge denied the motion for a preliminary injunction and dismissed the complaint. In a sarcastic opinion he rejected the plaintiffs' testimony about the burden and inhibition on their free speech and political activities produced by the Army's surveillance, and found that the surveillance in any event had been reduced. The judge's sarcasm, however, was by no means limited to the plaintiffs: "This evidence indicates that typical, gigantic Washington bureaucratic boondoggle. [T]here has been a tremendous waste of the taxpayers' money in hiring people to perform the duties that were performed as revealed by the evidence in this case . ." [323 F. Supp. at 1154].

The Seventh Circuit Court of Appeals was more inclined to substance than sarcasm. The Court was disturbed by the evidence but did not feel that it could reach the merits because the Supreme Court had already granted certiorari in Tatum, Nevertheless, the Court did not hesitate to point out, based in part upon the evidence before it that:

"[W]e assume, without deciding, that a 'massive' domestic intelligence operation conducted by the United States Army can have a sufficient deterrent effect on the free expression of political ideas to give individual citizens affected thereby standing to challenge the legitimacy of such an operation * * *

"[W]e assume, without deciding, that the domestic intelligence activities as conducted by the Army prior to June 7, 1970, were illegitimate, and that the excesses could be excised by judicial decree [463 F.2d at 500]."

The Tatum and Westmoreland decisions were based in part on indications that the Army had ceased its surveillance operations by the time the cases were on appeal, thus introducing the question of possible mootness. The testimony and documentary evidence in the record of this Subcommittee's 1971 Hearings, and the Committee reports based on those Hearings, are not entirely clear on this issue, but it is certainly true that the CONUS Intelligence operation in existence at the time the Tatum complaint was filed was at least considerably reduced by the time the case reached the Supreme Court. It does not seem unreasonable to suggest that this reduction was not voluntary, but resulted from pressures brought by Congress, by the litigation and by public exposure.

Before discussing S. 2318 and some of the constitutional questions involved, I would like to set forth some recent evidence that military surveillance of civilians is continuing.

The first evidence comes from a lawsuit that was filed prior to Tatum, but involves related issues and was stayed while Tatum was pending on appeal. In People Against Racism v. Laird, Civil Action No. 3565-69 (D.D. C.), a group of anti-war demonstrators had boarded a bus in Washington, D.C. to go to a demonstration in Wilmington, Delaware on January 21, 1969. Their bus was detained for more than an hour by persons identified by bus company personnel as "military intelligence agents." It was subsequently determined through litigation that the agents were plainclothes field operatives of the 116th Military Intelligence Group; that they conferred at length with bus company officials and with their own headquarters by telephone; that a substitute bus driver, also suspected of being a military intelligence agent, was selected to drive the plaintiffs to their destination; and that file information was collected and indexed under the names of several of the plaintiffs in the Army's databank at Fort Holabird. What is particularly significant about these facts, all of which were admitted (except the identity of the substitute driver) in the Army's Answer to the Amended Complaint filed on November 12, 1973, is that the

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Army continues to maintain files on three of the six individual plaintiffs and "an index card in the Defense Central Index of Investigation on an organization, People Against Racism * * *" [Answer, ¶ 23]. The Army claims, "on information and belief, [that] the files to which that card [on the organization] relates were purged and destroyed," but it makes no similar claim with respect to files on the individual plaintiffs [Id.]. The Army has withdrawn a motion for judgment on the pleadings and the case is now proceeding through discovery. [Copies of the Amended Complaint and Answer in People Against Racism v. Laird are submitted for the record.]

The last case I would like to discuss involves substantial new evidence that military surveillance of civilians is continuing. Berlin Democratic Club, et al. v. Schlesinger, et al., Civil Action No. 310-74 (D.D.C.) is an action for declaratory and injunctive relief and damages, brought by sixteen American civilians and two American organizations in West Germany who have been the targets of intensive surveillance by the Army during at least the last two years. I am the attorney of record in the case.

The BDC complaint, which was filed on February 19, 1974, alleges four broad categories of intrusive surveillance: (1) wiretapping; (2) infiltration of organizations and private meetings; (3) blacklisting and political intelligence gathering; and (4) opening of private, civilian mail. Most of the specific allegations in these broad categories are supported by documentary evidence. Much of this evidence was supplied to the plaintiffs and released to the public by Army intelligence agents, who, like the agents testifying before this subcommittee in 1971, knew that what they had been commanded to do was illegal and unconstitutional, and acted out of a sense of public duty in making their disclosures.

The evidence indicates that the Army's attention has focussed particularly on American civilians in Berlin and in the Heidelberg area. Among the former are a group of citizens who worked in the presidential campaign of Senator George McGovern, and following the 1972 election continued to work in support of the platform adopted at the 1972 Democratic National Convention. In early 1973 the group was formally chartered as an affiliate of the Democratic National Committee under the name, "Berlin Democratic Club". The evidence reveals that starting sometime after August 1972 agents of the 66th Military Intelligence Group in Berlin began to infiltrate the organization and file detailed reports on its activities. One such report indicates that the group adopted the Bill of Rights as its Constitution and that it did not seem to be inclined toward "subversive activities". Nevertheless, the group was branded "CS", or "countersubversive"-the label which the Army attached to the reports, under which they were filed.

Details about the personal lives of BDC members were recorded, including their marital status and attitude toward their work (many of them are students or faculty members at the Free University in Berlin). More important, however, is the fact that their political views were exhaustively reported and analyzed, in an often sophomoric attempt to determine their "aims" and predict their actions. Apparently, much of this information was collected through "intercepts", both of mail and of telephone conversations. For example in June 1973 BDC collected 330 names on a petition urging the initiation of impeachment proceedings against President Nixon, and the petition was "intercepted" and photographed after it was put in the mail to House Speaker Carl Albert.5

Another target of military spying in Germany is a group of civilian attorneys who regularly provide counsel to servicemen in court martial proceedings and other military cases. Conversations among lawyers working for the Lawyers' Military Defense Committee and their clients were intercepted

5 Among the various activities of BDC which were reported in detail in intelligence briefing papers for Maj. Gen. Harold Aaron, then the Deputy Chief of Staff for Intelligence, U.S. Army Europe and now the Army's top intelligence officer in the Pentagon, were: (1) the receipt of an autographed picture from Senator George McGovern; (2) the sponsoring of a conference on "GI Rights and American Civil Liberties" in Feb. 1973; (3) contacts between BDC members and various "underground newspaper"; (4) contacts between BDC and LMDC lawyers; and (5) the sponsoring of a conference in June 1973 on "Watergate-Its Meaning and Significance."

on at least one wiretap installed on the phone of one of the plaintiffs, MaryJo Van Ingen Leibowitz, who is an American free lance journalist and consultant to LMDC. Conversations overheard on the wiretap, as revealed by Army documents summarizing them, include discussions about how to conduct the court martial defense of one of the plaintiffs, Larry Johnson a black GI who has since been discharged from the Army. According to the Army intelligence agents who disclosed the wiretapping, more than fifteen volumes of classified surveillance documents, including the records of other wiretaps on LMDC lawyers, were destroyed by the Army immediately after the disclosures occurred last August, thus further indicating that the Army knew the entire operation was illegal."

The action last week of a military judge presiding over a court martial in Naples, Italy gives an additional indication of the extent of military surveillance over civilian American attorneys in Europe. On Thursday, April 3, 1974. Commander L. T. Mirtchung, U.S.N., granted a defense motion in United States v. Crowder, et al. for the disclosure of all wiretap surveillance of the eleven military defendants (Naval personnel serving on the U.S.S. Little Rock) and their LMDC lawyers. The order covers the period January 29, 1974 (when the lawyers first came into the case) to the present, and requires the Army to search its files and produce whatever surveillance documents are found so that the defendants can conduct a "taint hearing". It is not known whether or not to what extent the Army will attempt to comply with the order.

Other targets of the Army's wiretapping and infiltration were American clergymen residing at the Goessner Industrial Mission in Mainz and underground newspapers and their American staffs. The Goessner Mission is a Protestant organization jointly sponsored by the National Council of Churches (U.S.), the World Council of Churches and the German Evangelische Kirche. Two of its residents, Rev. David McCreary and Rev. James Stillman are the subjects of several 66th Military Intelligence Group surveillance reports and are plaintiffs in the BDC suit. The American underground newspapers which have been kept under surveillance include Forward, published in Berlin, and Fight Back, published in Heidelberg. The intensity of this surveillance is demonstrated by one classified document from the Army's files: a photostatic copy of a letter to the staff of Forward from the Librarian of the College of Charleston, South Carolina, ordering a subscription and requesting back copies of the newspaper for the college library.

All of this surveillance was conducted with an immediate and palpable effect on the lives of the plaintiffs. Apart from the fear and dissension which it created among the moderate activists of the Berlin Democratic Club, and the inhibitions which it injected into the relationship of LMDC lawyers with their clients, it also caused two of the BDC plaintiffs to lose their jobs and a third to be threatened with deportation. Jay Brady and David Harris, both members of BDC, were fired from their positions at the American Exhibit in the Berlin Industries Fair on October 31, 1973, for what the Director of the Exhibit later told other employees were "political reasons." Both Brady and Harris had worked for Forward, but their names never appeared in any issue and they could not have been linked to the newspaper except through surveillance. Another plaintiff, Karen Bixler, a staff writer for Fight Back, was threatened with deportation from Germany in September 1973, based upon the recommendation of the Office of the Chief of Staff for Intelligence, U.S. Army, Europe, which provided a "fact sheet" on her activities to the German authorities. She

6 It should be noted that the Army dropped its charges against Spec. 4 John McDougal, one of the Army intelligence agents who made the "unauthorized disclosures", after McDougal's lawyer gave notice that he intended to base his defense on the illegality and unconstitutionality of the surveillance. An even more telling admission by the Army that its surveillance program could not be defended in Court was the rescission of Eighth Army Regulation 381-25 ("Military Intelligence Counterdissidence Program") in early August 1973, immediately after the first reports about the wiretapping and infiltration began to appear in the press, and little more than a week after the Regulation was promulgated on July 23. The Regulation defined "dissidence" as "manifestation of a rejection of military, political or social standards," and authorized military intelligence agents to collect information about civilian or military "dissidence" by a variety of covert means. 7 Special Court Martial, Naval Support Activity, Naples, Italy (Capt. P. K. Cullins, Convening Authority).

8 It should be noted that this is precisely the kind of "injury" found lacking by the Supreme Court majority in Laird v. Tatum, supra.

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