« PreviousContinue »
was subsequently permitted to remain in Germany when the German government determined not to pursue her case after her marriage to a German citizen.
"[The Army's] own documents suggest that it was trying to establish the existence of a conspiracy to subvert army enlisted men, linking the Methodist missionaries, the LMDC lawyers, the Berlin Democrats, underground news papers, foreign Communist parties and antiwar activists. But in the case of the Berlin Democrats the surveillance continued months after it was clear that the organization was legitimate in its aims and its methods. And indeed, the briefing for Gen. Aaron noted that “during the meeting of Feb. 24 [of Concerned Americans in Berlin), there was no particular attempt to meet the GIs or solicit their support. At one point, a sheet was passed around so that a mailing list could be started. Most of the GIs, however, refrained from signing. "The army's own secret agents were of course exceptions to this GI apathy. Since they were recruited from the Berlin garrison, it is reasonable to assume that GIS soon got the message that army intelligence was keeping an eye on the Berlin Democrats, and that it was unhealthy to join them."
Whatever was the original purpose of the Army's operation, what we already know about it indicates that in practice it has swallowed up all purpose and trampled on the rights of American civilians abroad. [Copies of the First Amended Complaint and Exhibits A through O in Berlin Democratic Club, et al. v. Schlesinger, et al., Civil Action No. 310-74 (D.D.C.) are submitted for the record).
II. MILITARY SURVEILLANCE AND THE CONSTITUTION
There are two separate but related aspects to the unconstitutionality of military surveillance. First, the surveillance program, regardless of its origin, infringes on individual rights. Second, the fact that the military is conducting the surveillance enhances its unconstitutionality, because civilians are historically protected from military intrusions of any kind.
That none of the courts which have addressed the issue have yet reached the merits of a challenge to Army surveillance does not weaken these constitutional arguments. On the contrary, because the Supreme Court majority indicated in Laird v. Tatum that it would be difficult to frame a judicially manageable citizens' claim for relief from military surveillance, the constitutional arguments are particularly appropriate in considering S. 2318 as a legislative solution to a problem the courts have not been able to solve. A. Invasion of Constitutional Rights
1. Freedom of Speech and Association. The impact of governmental surveillance on First Amendment freedoms is severe. When the price of engaging in a controversial political activity—or any other form of protected speech or association is compulsory disclosure to government agents of all the details about that activity, the price is too high to pay. As the Supreme Court has repeatedly pointed out, First Amendment freedoms can be quickly extinguished if they are not given the “breathing space” they need to survive. See, e.g., NAACP v. Button, 371 U.S. 415, 432-33 (1963).
Surveillance, however, need not demonstrably inhibit First Amendment rights to have a serious impact on their exercise. The interception and recording of information about a person's political views and associations cuts to the core of the associational privacy that the First Amendment was intended to protect, regardless of whether it has a "chilling effect” on protected activities. So strongly rooted are the traditions of privacy in one's political beliefs and associations that even the debates over the adoption of the Constitution were carried out anonymously in the Federalist and Anti-Federalist papers. Beveridge, 4 Life of Marshall (1919), at pp. 313-19.
The right of privacy in the sphere of controversial associations was most forcefully recognized by a unanimous Supreme Court in NAACP v. Alabama, 357 U.S. 449 (1958). In connection with an attempt to enjoin the NAACP from operating in Alabama, the Alabama Attorney General sought disclosure of its local membership list. Mr. Justice Harlan, writing for the Court, ruled that Alabama could not constitutionally compel disclosure of the list :
9 The Supreme Court has long held that American citizens do not lose their protection by the Constitution against illegal actions of their own government when they travel abroad. Reid v. Covert, 354 U.S. 1 5-6 (1956) (“We reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights."). See also Kent v. Dulles, 357 U.S. 116 (1957); Lynd y. Rusk, 389 F. 2d 940 (D.C. Cir. 1967).
“This Court has recognized the vital relationship between freedom to associate and privacy of one's associations. * * * Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs [357 U.S. at 462].”
Repeatedly over the last decade and a half the Supreme Court has reaffirmed and extended the protection of associational privacy from government intrusion. See, e.g., Bates v. Little Rock, 361 U.S. 516 (1960) (barring compulsory disclosure of NAACP membership and contributor lists); Talley v. California, 362 U.S. 60 (1960) (striking down ordinance prohibiting circulation of anonymous handbills) ; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) (striking down statute requiring state registration of members in nonprofit organizations) ; Lamont v. Postmaster General, 381 U.S. 301 (1965) (striking down statute requiring addressee of “communist political propaganda” to identify himself by requesting delivery); Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark.) (three-judge court), aff'd. per curiam, 393 U.S. 14 (1968) (quashing subpoena of bank records of Arkansas Republican Party).
From these decisions the following principles emerge. First, when a protected First Amendment activity is involved, the government may not intrude upon that activity and compel the participants to identify themselves and their beliefs as a necessary condition of exercising their rights of speech and association. See, e.g., Thomas v. Collins, 323 U.S. 516, 540 (1945) (“a requirement that one must register before he undertakes to make a speech to enlist support for a lawful movement is quite incompatible with the requirement of the First Amendment”) Second, even if some part of the activity is not protected by the First Amendment, the protected participants do not lose their right to associational privacy and the government cannot collect and extract information about all the participants. See, e.g., Shelton v. Tucker, 364 U.S. 479, 488 (1960) (“even a legitimate governmental purpose . cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved"). See generally Note, The Constitutional Right to Anonymity: Free Speech, Disclosure and the Devil, 70 Yale L. J. 1084 (1961).
To the extent that the Supreme Court in Laird v. Tatum declined to recog. nize the invasion of associational privacy and political anonymity by the Army's surveillance program, therefore, and insisted that the plaintiffs had to prove an additional injury (such as the loss of a job), I respectfully suggest that the majority misconceived the nature of the First Amendment issue in the case.
Judicial scrutiny of government surveillance in areas touching upon First Amendment rights is well established. When the police are not gathering evidence of a specific crime but are conducting intrusive and generalized surveillance, lower federal courts have not hesitated to enjoin the intrusion if it affects speech or association. In Bee See Books, Inc. v. Lcary, 291 F. Supp. 622, 627 (S.D.N.Y. 1968), for example, the district court enjoined the New York City Police Commissioner from stationing policemen in bookstores where “the circumstances indicate[d] that surveillance was initiated for the purpose of inhibiting the distribution of material by the plaintiffs rather than to detect and gather evidence in violation of the New York obscenity statute." Similarly, the mere presence of police at private labor union meetings was enjoined by an Indiana federal court in Furniture Workers Local 309 v. Gates, 75 F. Supp. 620 (N.D. Ind. 1948).10
10 Many civil rights cases challenging various forms of governmental surveillance of First Amendment activities have recertly been held to be justiciable despite the decision in Laird v. Tatum. See, e.g., Yaffe v. Powers, 454 F. 2d 1362 (1st Cir. 1972), reversing 71-514-J (D. Mass. June 13, 1971), and remanding for class action determination and discovery proceedings; Kenyatta v. Kelley, F.R.D.
Civil Action No. 71-2595 (E.D. Pa. March 29, 1974) (ordering discovery); Jabara v. Kelley, F.R.D. Civil Action No. 09865 (E.D. Mich. March 18, 1974) (ordering discovery): Handschu v. Special Services Division, 349 F. Supp. 766 (S.D.N.Y. 1972) (denying motion to dismiss) ; Bach V. Mitchell, -- F. Supp. (W.D. Wis. January 14, 1973) (denying motion to dismiss); Kent State V.V.A.W. v. Fyke Civil Action No. 072–1271 (N.D. Ohio July 13, 1973) (denying motion to dismiss) ; Philadelphia Yearly Meeting v. Tate, 71 Civ. 849 (E.D. Pa. July 14, 1972) (denying motion to dismiss) ; Philadelphia Resistance v. Mitchell, 58 F.R.D. 139 (E.D. Pa. 1972) (ordering discovery on extent of undercover surveillance of political activists) ; Holmes v. Church 70. Civ. 5691 (S.D.N.Y. June 14, 1971) (order enjoining police surveillance of political activists “neither suspected of nor engaged in criminal activity'') : Cf. Anderson v. Kugler, 56 N.J. 210, 265 A. 2d. 278 (1970), reversing 106 N.J. 545 (Ch. Div. 1969), and remanding for an evidentiary hearing.
2. Right to Privacy and Freedom From Unreasonable Searches and Seizures.The military surveillance practices that have been revealed over the last four years are reminiscent of the infamous British writs assistance, in reaction to which the Fourth Amendment was adopted. The writs were general warrants under which “officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent. Stanford v. Texas, 379 U.S. 476, 481–82 (1965). The general, warrantless searches conducted by military intelligence agents are aimed at determining and recording the ideas and beliefs of American civilians. It is precisely in these circumstances—where dissenting ideas are the objects of a search, not contraband or other evidence of a crime—that the protections of the Fourth Amendment are most important.
Four months before its decision in Laird v. Tatum, the Supreme Court held that the Fourth Amendment's requirements cannot be selectively disregarded in the interests of national security, particularly when the object of a search is speech. United States v. United States District Court, 407 U.S. 297 (1972). Writing for the unanimous Court, Mr. Justice Powell explained why :
“Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance * **. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs *. The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. 32 L. Ed. 2d, at 764.”
The constitutional right to privacy covers a multitude of areas where the individual has a “reasonable expectation of privacy,” e.g., Katz v. United States, supra (telephone booth); Griswold v. Connecticut, 381 U.S. 479 (1965) (marital relations); Pollak v. Public Utilities, 343 U.S. 451 (1952) (public bus) ; Roe v. Wade, 410 U.S. 113 (1973) (abortion). Federal courts in recent years have held that public or private spying on an individual's private activities gives rise to a cause of action for damages and injunctive relief.
In York v. Story, 324 F.2d, 450 (9th Cir. 1963), cert. denied, 376 U.S. 939 (1964), for example, a woman collected damages against the police in a civil rights action for violating her right to privacy when a policeman induced her to submit to intrusive photography by claiming that it was necessary to substantiate an assault and battery complaint she wished to file. Pointing out that “[a] search of one's home has been established to be an invasion of one's privacy against intrusion by the police,” the court upheld the plaintiff's claim that her privacy had been invaded, even though the events in question occurred not in her home but in the police station, pointing out that:
"It has already been declared by the Supreme Court that the security of one's privacy against arbitrary intrusion by the police is basic to a free society and is therefore ‘implicit in the concept of ordered liberty' embraced within the Due Process Clause of the Fourteenth Amendment. 324 F.2d at 455."
Under a variety of circumstances similar to those in York, most state jurisdictions have also recognized a common law cause of action for the invasion of privacy, particularly where personal information not in the public domain has been acquired surreptitiously. See generally 14 A.L.R. 2d 750 and 13 A.L.R. 3rd 1025.
The arrest record expungement cases further demonstrate that the collection and recording of derogatory personal information for surveillance purposes is an invasion of privacy. These cases recognize that the government must justify by some important public need the retention and/or distribution of information on persons who were arrested but not convicted of crimes. In Morrow v. District of Columbia, 417 F.2d 728, 742 (D.C. Cir. 1969), the court commented that it was an “unjustified invasion of privacy" for police to disseminate information about innocent persons who had been arrested. In Wheeler v. Goodman, 306 F. Supp. 58 (W.D.N.C. 1969) (three-judge court), the records of persons arrested for engaging in constitutionally protected activity were ordered expunged. See also United States v. Kalish, 271 F. Supp. 968, 970 (D.P.R. 1967). Similarly, in Menard v. Mitchell, 328 F Supp. 718, 725 (D.D.C. 1971), on remand from 430 F.2d 486 (D.C. Cir. 1970), Judge Gesell noted the disturbing growth of intelligence databanks and their impact on privacy :
“The increasing complexity of our society and technological advances which facilitate massive accumulation and ready regurgitation of far-flung data have presented more problems in this area, certainly problems not contemplated by the framers of the Constitution. These developments emphasize a pressing need to preserve and to redefine aspects of the right of privacy to insure the basic freedoms guaranteed by this democracy.”
In the final analysis, however, it is not merely the privacy of citizens which is diminished by military surveillance, but rather their whole range of constitutional protections against intrusive and manipulative government action. Justice Douglas summed up the constitutional infirmities of the Army's surveillance apparatus in a strong dissenting opinion in Laird v. Tatum which concluded as follows:
"This case is a cancer on our body politic. It is a measure of the disease which afflicts us * * *. The Constitution was designed to keep government off the back of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance * * *. The aim was to allow men to be free and independent and to assert their rights against government. There can be no influence more paralyzing of that objective than Army surveillance ***. [408 U.S., at 171-72].” B. Lack of Constitutional or Statutory Authority in the Military to conduct
surveillance of Civilians. The second reason why military surveillance is illegal is that it is wholly lacking in constitutional or statutory authority. Even if the military were able to demonstrate an overwhelming governmental interest in its surveillance program, and the unavailability of any less drastic means to accomplish its purposes, the program would still be illegal.
The Constitution expressly assigns the power to Congress to define the role of the military in civilian affairs.11 The military, therefore, is strictly limited to whatever civilian roles are given to it by statute, and the courts are charged with the duty to review any exercise by the military of this statutory authority. O’Callahan v. Parker, 395 U.S. 258 (1969); Toth v. Quarles, 350 U.S. 11 (1955); Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866). Because constitutional rights are at stake when the military acts in the civilian area, the Supreme Court has long held that any civil authority granted to the military must be strictly construed :
"It is an unbending rule of law, that the exercise of military power, where the rights of citizens are concerned, shall never be pushed beyond what the exigency requires. Raymond v. Thomas, 91 U.S. 712, 716 (1875).”
The statutory authority on which the Army claims to have been relying in conducting domestic surveillance is contained in 10 U.S.C. sections 331-334. These sections provide for the domestic use of the armed forces by the President "to enforce the laws of the United States" or "suppress insurrection” when it becomes impossible for local and state authorities to enforce the laws “by the ordinary course of judicial proceedings.” See Alabama v. United States, 373 U.S. 545 (1963); Presser v. Illinois, 116 U.S. 252 (1886) ; In Re Charge to the Grand Jury, 62 F. 828 (D. Ill. 1894). The statutes empower the military to act only after a particular insurrection has grown beyond the capabilities of the civilian police,12 or when the civilian police have refused to enforce the federal laws, Alabama v. United States, supra.
The statutes contain no express or implied reference to the Army's authority to investigate lawful political activity of civilians and to collect, maintain and distribute reports on them. Indeed, since protection of the political freedom of citizens and organizations forms the very essence of constitutional liberty and security, it is difficult to imagine a construction that would do more violence to the statutory language than the one suggested by the Army. That the Executive has statutory as well as constitutional authority to combat illegal overt acts amounting to "insurrection” after the failure of civilian authority does not mean that the Army can spontaneously institute an intelligenre gathering operation aimed at civilians.
If there were any doubt about the meaning of these statutes, it should have been resolved by the decision of the Supreme Court in Schneider v. Smith, 390 U.S. 17 (1968), which dealt with a similar statute authorizing the President
11 U.S. Constitution, Art. I, 8, C1. 14–16.
12 Indeed, no troops or milítia can be employed by the President under this chapter unless and until "he shall by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time." 10 U.S.C., § 334.
to safeguard vessels against sabotage and other subversive conduct. Purporting to act under that authority, the President promulgated regulations authorizing the Coast Guard Commandant to gather information about the political beliefs and associations of civilian seamen. The Court held that the statute did not contemplate such broad investigations :
“The present case involves investigation, not by Congress but by the Executive Branch, stemming from congressional delegation. When we read the delegation with an eye to First Amendment problems, we hesitate to conclude that Congress told the Executive to ferret out ideological strays in the maritime industry. The words it used—'to safeguard * * * from sabotage or other subversive acts-refer to actions, not to ideas or beliefs. We would have to stretch those words beyond their normal meaning to give them the meaning the Solicitor General urges. 390 U.S. at 26-27.”
As Justice Douglas pointed out in his dissenting opinion in Laird v. Tatum:
“If Congress has passed a law authorizing the armed services to establish surveillance over the civilian population, a most serious constitutional problem would be presented. There is, however, no law authorizing surveillance over civilians * * * [408 U.S., at 165].”
Not only is there no law authorizing military surveillance, there are several statutes which appear to forbid it, even under emergency conditions. The Posse Comitatus Act [18 U.S.C. § 1385], for example, prohibits the use of military forces "to execute the laws
except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” One federal court has construed that statute "as expressing the inherent antipathy of the American to the use of troops for civil purposes.” Wrynn v. United States, 200 F. Supp. 457, 465 (E.D.N.Y. 1961). Similarly, 18 US.C. sections 592 and 593 bar the use of armed forces to supervise elections, while 18 US.C section 1384 prohibits military police from making "investigations, searches, seizures or arrests of civilians” suspected of engaging in prostitution in the vicinity of military bases.
Nor can the military fall back on a claim of inherent power to protect the national security in order to justify its wholesale invasions of the constitutional rights of civilians. In two of the leading Supreme Court cases involving similar assertions of inherent power by the Executive, the claim was rejected in both instances, either because the will of Congress had been expressed in a contrary manner, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), or because constitutional rights had been violated by Executive act unauthorized by statute. United States v. United States District Court, supra. Where the military has usurped civil authority the Supreme Court has consistently rejected the claim of an inherent power based on military necessity. See, e.g., Ex Parte Milligan, 71 U.S. (4 Wall.) 2 (1866). As Justice Murphy pointed out in an eloquent concurring opinion in Duncan v. Kahanamoku, 327 U.S. 304, 324–25 (1946):
"The argument [of necessity) thus advanced is * * * a rank appeal to abandon the fate of all our liberties to the reasonableness of the judgment of those who are trained primarily for war.”
III. COMMENTS ON S. 2318
S. 2318 is a broad legislative prohibition of military surveillance. While there may be some reason to question the necessity for legislation which expressly prohibits government action already implicitly prohibited by the Constitution and existing legislation, on balance we believe that the special circumstances surrounding the practice of military surveillance make the enactment of S. 2318 essential.
In light of the Supreme Court's decision in Laird v. Tatum, it is unlikely that the broad prohibition contained in S. 2318 will be implemented by the courts without express statutory authority. While the Supreme Court majority rejected the idea that self-discipline on the part of the military is a solution to complaints about broad military surveillance, it took such a narrow view of standing and justiciability that only the most egregious complaints are likely to be adjudicated. Furthermore, the Army's cutback of its surveillance operations is implemented by a Defense Department Directive (5200.27, promulgated March 1, 1971) which gives great leeway to the military to continue or reinstitute certain surveillance practices. This suggests that even if self restraint were to be exercised by all future military intelligence commands,