SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice at 10:10 a.m., in room 2228, Dirksen Senate Office Building, Senator Sam J. Ervin, Jr. (Chairman), presiding.

Present: Senator Ervin.

Also present: Lawrence M. Baskir, chief counsel; and Britt Snider, counsel.

Senator ERVIN. The subcommittee will come to order.

OPENING STATEMENT OF THE CHAIRMAN

The subcommittee begins 2 days of hearings this morning on S. 2318, a bill I introduced last November with the co-sponsorship of 34 Senators. A copy of this bill will be inserted at the conclusion of my statement.

The bill provides that military personnel shall not be used to conduct surveillance of the political activities of civilians or civilian organizations except in those limited situations where the military actually has a need for such information to further a lawful objective.

The bill is, at bottom, privacy legislation. It seeks to shield the expression of one's political views from the eyes and ears of Government. It seeks to protect one's associations from the perpetuity of a Government computer. And, it seeks to preserve the promise of a free society where men are not entrapped by their past.

As I contemplate this computerized society we have entered upon, I am reminded of the passage in Lewis Carroll's Through the Looking Glass where the king raves: "The horror of that moment... I shall never, never forget it." "You will, though," says the Queen, "if you don't make a memorandum of it."

A democratic society must be compassionate as well as just. It must be willing to forget past indiscretions and allow its citizens to begin again. But the queen is right. Beginning anew is much more difficult when there are "memorandums" of the past to live down and contend with.

It is no accident that most of the so-called "privacy" bills before Congress today focus upon limiting the "memorandums" that Gov

ned to milent and disseminate on AmeriGeLsally a matter of protecting vemacion, rag the means by which it is obtained and IN THATS NO IS sened

The most perram and the constitutional rights of expresSVL SOL 20 Teases to be posed by political surveillance have been vill na dwell upon them here except to Malasır Thom SCR of any kind which is not ÈNCY ME SIG is ernst governmental purpose is repugnant

IN MAY NORchant when it is carried out by the military si s è wwi st the panical and private affairs of law-abiding Os star ever, when the information being gathered is no di forng for that richered by other agencies of the executive sa imesačng tradition in this country that the 27 sa fm ad subordinate to, the civilian seaded in the Constitution and it is embodied Ensors of the U.S. Code.

Tha the shunnine opens these hearings conscious of the fact that there as a SNL PRNtion in law and policy against miliay intrar no callan politics in any form. It follows that any Aegis à de chommittee chooses to make to this policy muss deathy die the circumstances in which intrusion may be justifiai

8. 2018, which is before the subcommittee, is one attempt to do just that. It contains a general prohibition against military surveillance of persons not afliated with the armed forces and then suggests four instances in which data-gathering for certain limited purposes may nevertheless be appropriate.

I might say, despite my authorship of the bill, that I retain an open mind with regard to all of its qualifications. They should be regarded as the starting point for debate.

Many people ask me whether military surveillance is still going on. They remember the subcommittee's hearings in 1971, but they are not aware of what became of it. As the subcommittee will recall, the hearings in February and March 1971 disclosed that Army intelligence had carried out a widespread program of surveillance against "dissident" groups and individuals in the late 1960's.

The subsequent reports of the subcommittee-one entitled, "Army Surveillance of Civilians: A Documentary Analysis," published in 1972; and the other entitled, "Military Surveillance of Civilian Politics," published in 1973-concluded that the surveillance had been "both massive and unrestrained." The subcommittee estimated that at the height of the surveillance, Army intelligence alone engaged over 1.500 plainclothes agents to collect information on civilians. This information was stored in scores of data banks across the country, and was routinely exchanged with other governmental agencies. The subcommittee's reports did indicate, however, that in 1971 the Defense Department began to restrict its domestic intelligence operations to the gathering of information essential to the military mission.

The subcommittee staff has been monitoring the effectiveness of these new restrictions since their creation, and I think that it may be worthwhile, as a prelude to the testimony of our witnesses, to describe briefly where I think we now stand.

On March 1, 1971, in the course of our hearings, the Defense Department issued a directive which sought to put an end to the military surveillance of civilians under all but certain exceptional circumstances. It further provided that most of the information. which had been collected on civilians in the past would be destroyed. To enforce these restrictions, the Defense Investigative Review Council (DIRC) was created to monitor the implementation of the new policies. The Assistant Secretary of Defense for Administration was designated as having primary responsibility for domestic intelligence matters.

Subsequent to the issuance of the DOD directive, each branch of service issued its own implementing orders. The DIRC also issued supplementary guidance in the form of studies and policy decisions to all subordinate agencies.

In September 1971 DIRC began a series of unannounced inspections of intelligence units throughout the United States and its territories and possessions. To date, 14 such inspections have been conducted. The subcommittee staff has been provided with the results of the first 11. In addition, the staff has been informed from time to time of the supplementary policy decisions and study reports which have been issued by DIRC.

We have also directed a number of written inquiries to the Defense Department seeking explanations of incidents which have come to our attention. In some cases, the department's responses have indicated improper or at least questionable behavior. I will touch upon these in a moment, but I do want to say at the outset that from what the subcommittee staff has been able to determine to date, the Defense Department has made a good faith and apparently successful effort to get itself out of the business of spying on civilians, at least those living in the United States. In particular:

(1) To date, no significant departures from the operational restrictions imposed by the DOD directive have been found, insofar as the collection of domestic intelligence is concerned. There have been exceptions permitted to the directive's restrictions, but these have been approved in accordance with procedures established by the directive.

(2) Most of the intelligence reports on civilians prepared prior to 1971 apparently have been destroyed. We have the explicit assurance of DOD that all civil disturbance intelligence files have been destroyed. The possibility remains that at least part of the old files are being retained in accordance with the new criteria contained in the DOD directive. But the sheer volume of files whose destruction has been reported to the subcommittee tends to confirm that prior holdings have been dramatically reduced.

(3) The Defense Investigative Review Council appears to be energetically and conscientiously performing its oversight role. Its inspection reports and policy decisions indicate that it is indeed

serious ʼn is testre ir liary inteligence operations to egitimate bounds is so actarent that the DIRC has gotten is message across it the mass mots eve of military intelligence. Despite these commendacie fevelopments, however. I continue to have misongs out be sent story scheme. Say what you will be my on which the American people have gainst a remote nitary song of the past is a regulation of the Defense Department set Tisation contains qualificaTens, exceptors, and amcigines which permit surveillance even within the confines of in cervise strutive poney. If these pernitted excepcions to the general me are classided, chances are they will never come to the attention of the pucie. What this comes down to is that the Defense Department should decide to invoke such qualisestions and exceptions or, even worse, violate its own regiation, there is no one na pesition to say "no." The system of cheeks and balances when the Founding Fathers so ingeniously wore into the fabre of our Government inds 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 staf's follow-up investigation does indicate the Defense Department has achieved significant success in bringing its domestic intelligence overations 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