I find myself in substantial agreement with many things you say, in fact with most of them. You state on page 2 of your prepared transcript: "I do not believe evil motives were in any way involved,” that is in the use of the military in these urban riots during that period of time. You say: "What happened flowed from a sense of crisis, combined with overly general directives from the top to a highly decentralized bureaucracy underneath." I think that is undoubtedly true. I agree with you.

I have a great respect for the military, because I think that these people perform the most essential service of anybody in our Government, that is, to insure our national security and survival. I don't think average military officers relish being given the assignment to do detective work and regret whatever they are required to do incidental to repression of civil disturbances.

I also don't think there is anything in this bill that would prohibit the Army from having physical information that, as you state on page 4 of your transcript, is "essential to proper planning: access routes, bivouac locations, command and control data, including the identity and location of the relevant local and State government officials, and so forth." I don't think this bill would affect that at all because it is restricted to exercise of surveillance for the purpose of taking information as to the beliefs and associations and the political activities of people.

I am really rather intrigued by your closing observation: "Finally, by singling out the defense personnel, this bill seems to me by negative implication to suggest that the prohibited activities are legitimate if conducted by civilian agencies." I don't know why there is any necessity to talk about civilian activities or law enforcement officers when you are trying to regulate the use of military for detective purposes. In other words, it was never my intent to cover civilian agencies, either to restrict them or condone their tactics. I think this is a pretty clearly drawn law. It was very hard to draw. I drew about 15 versions of it before I got one I was satisfied with. I am satisfied now because I think it is so plain that there is no room for construction. It is awfully bad for a legislator who happens to be a lawyer to draw a law of that kind because it decreases the employment of his brethren of the bar. Some time ago I had a professor of law at the University of North Carolina at Chapel Hill who said that the reason so many of our laws are so vague and indefinite, he suspected, was that they were drawn by lawyers in order to promote litigation to determine the meaning. I don't think we should have such trouble with this bill.

I thank you very much and appreciate your statement, and especially the statement that you agree in principle with the idea that motivates the bill.

Mr. McGIFFERT Thank you, Mr. Chairman.

Senator ERVIN. Counsel, call the next witness.

Mr. BASKIR. Mr. Chairman, our next witness is Col. John W. Downie.

Until his retirement last year. Colonel Downie served in a variety of important counterintelligence assignments here in the United States for the Army.

From July 1900s until April 1971 he was director of counterintelligence in the ctice of the Army's Assistant Chief of Staff for Intelligence.

In early 1971 he was in charge of a special 30-man task force arpointed by the Army Chief of Staf to investigate charges of military surveillance in preparation for our hearings that year.

Later. Colonel Downie served as Deputy Commander of the U.S. Army Intellience Command.

Mr. Chairman, accomparing him is Mr. William J. Bowe, an attormer and former domestic intence analyst with the Army's Counterintelligence Analysis Branch who worked with Colonel

Downie.

Senator ERVIN. I wish to welcome both of you gentlemen to the committee and express our appreciation for your willingness to come and give us the benefit of your views in respect to what I consider an important piece of legislation, not only from the standpoint of privacy of civilians, but also from the standpoint of the military.

TESTIMONY OF COL. JOHN W. DOWNIE U.S. ARMY (RETIRED); ACCOMPANIED BY WILLIAM J. BOWE, ESQ.

Colona! Dowry. Mr. Chairman, thank yon vry much for your kind invitation.

My statement, of course, is made at your invitation. In it I express my own opinions as an individual citizen.

I am no longer an active military officer: my statement has not been coordinated with, and does not represent the views of, the Department of Defense.

The purpose of S. 2318, as I understand it, is to amplify the Posse Comitatus Act of 1878. I believe there is a need to amplify that act. I leave comment on the details of S. 2318 to those more skilled at technicalities: I have no obiection to this bill as it applies to the act. I believe the application of the bill is far more sweeping than intended. I do not claim to be a constitutional lawyer, but I am a citizen. The limitations on the bill which I suggest are, in my opinion, perfectly compatible with the objectives stated in the preamble to the Constitution.

The need to expand and clarify the Posse Comitatus Act of 1878 has been very recently demonstrated. The contemporary media headlines of 1967 to 1970 make evident the stimuli of the need among national leadership for information on impending and actual civil disturbances. Initially, it was expedient to use the Army to gather the information. Perhaps, in the long run, use of the Army spared the effort, time and cost of organizing, equipping and maintaining a civil element to perform the task. Patriotic, well-intentioned men of character did not weigh either the propriety or the principle involved in using the Army for this purpose. The current political and military leadership of the Armed Fees do not need the guidance of S. 2318. There will be new lea in uture, however,

who will face changing social and political situations. The Posse Comitatus Act was not forgotten in the late 1960's; it was not believed to apply. The lessons of the past should not be forgotten. The future deserves additional guidance in law.

I have said I have no objection to the provisions of the proposed bill as it amplifies the Posse Comitatus Act but that I believe the application of the bill is far more sweeping than may have been intended. In my opinion, the bill should recognize certain functions necessary to the successful accomplishment of the mission of the Armed Forces. These functions should be not only recognized but exempted from the application of the bill. These relate to the collection, storage and use of information necessary to:

The successful conduct of military operations in foreign sovereignties:

The detection and neutralization of foreign espionage directed against the Armed Forces;

The maintenance of the morale, discipline and loyalty of members of the Armed Forces;

The rational, equitable and legal conduct of that part of the business of the United States which is entrusted to the Armed Forces. In the past 30 years or so the Armed Forces have been committed to a number of overseas missions; in some cases they are still there. The circumstances which require commitment are not susceptible to long-range prediction and the decision for commitment is never within the authority of the Armed Forces. One has only to reflect on the problems of World War II and the absolute necessity of distinguishing between collaborationist and pro-ally, not to mention the distinctions between Gestapo, Abwehr, the Allgemeine SS, the NSKK, the HJ, the RAD and so on. To a greater or lesser extent, similar problems were present in Korea, the Dominican Republic, Lebanon and Vietnam. Commanders must be capable of identifying friendly and hostile orientations among the local populace and within the local government. It is conceivable that the security of the command and the success of the mission may be dependent upon such judgments. This information must be collected, analyzed and prepared for use within the United States in advance of contingencies. Once the overseas expedition is landed at its destination, the collections of all Government agencies are assembled in the United States in order to provide support to the overseas element. Because the bill does not exempt this form of foreign intelligence, it prohibits its practice among the Armed Forces, in the United States and overseas.

The detection and neutralization of foreign espionage directed against the Armed Forces involves both operational investigation and education in the United States and overseas. For both investigation and education, information on espionage organizations and personalities is important. Unfortunately, the occasion has arisen in which this information must be collected and stored for courtmartial purposes. The bill, as now written, denies this capability to the Armed Forces.

The Armed Forces must be reliable, disciplined and loyal. There is no democracy at the tip of a bayonet. The individual citizen

soldier is entitled to his political beliefs, but the Armed Forces, as an entity, must be politically neutral. Desertion counselling, incitement to refuse duty, inducement to mutiny have, in the recent past, come from without the Armed Forces both in the United States and overseas. Had these efforts succeeded in creating an unruly, mutino and disloyal military, the results would have been catastrophic to our national interests and, quite possibly, to our constitutional form of government. Intelligent defense against such efforts within the Armed Forces does require information on the individuals and organizations involved. The bill does not permit the acquisition of this information.

Finally, there are a multiplicity of occasions in which intelligent response is required of Defense agencies to actions originating outside the military. These range from the bidder for the purchase of surplus military equipment to the requester for the provision of a guest speaker.

Unless some information is available upon which to base a reasoned response, the public business will be reduced to absurdity.

In none of the four areas which I have discussed do I propose extending the investigative jurisdiction of the Armed Forces. I argue the need to receive appropriate information from the civil agencies properly charged with investigative jurisdiction and the need to retain appropriate information.

In summary, I support the purpose of S. 2318. I believe its provisions in amplification of the Posse Comitatus Act are practical. I believe there is a requirement to limit the application of the bill, however, or, to put the matter more positively, to describe the permissible activities of the Armed Forces.

That concludes my formal statement, Mr. Chairman.

I would like to add one item, if I may.

Very recently I received a copy of an Army estimate, an unclassified civil disturbance threat estimate for the 5-year period 1971 to 1975. The author of this estimate, incidentally, is Mr. Bill Bowe, if there are any questions to be put to the author of the estimate, there

he is.

My first point is that the Army staff insisted on the specific authorization of the Under Secretary of the Army before this 5-year estimate was undertaken in 1970.

But second of all, this estimate is based on unclassified publicly available information. There is no covert system at all. I think when your staff reviews it they will find it isn't a bad estimate for a 5-year estimate. I would like to offer it to the committee, and I will be glad to receive any questions.

Senator ERVIN. Yes, sir. The committee will be glad to receive it and note it an exhibit.

The exhibit referred to follows:]

THE CIVIL DISTURBANCE THREAT 1971-75

I. SCOPE

A. This study deals with the nature, extent, and form of the domestic civil disturbance threat as it is expected to exist over the period 1971-1975. Following a background section, the study will break down the range of possible dis

orders into seven broad categories of disruption. While there is some degree of overlap, these seven fundamental categories of disturbances are sufficiently distinct to provide a useful framework for analysis of the total civil disturbance threat. The different types of disturbances to be taken up in order include: (1) racial disturbances; (2) student disturbances; (3) mass demonstrations; (4) political terrorism and guerrilla warfare activity; (5) labor disturbances; (6) newly developing sources of civil disturbances; and (7) natural disasters and other emergencies.

B. Each of the seven categories noted above will be separately discussed with specific reference to the present situation, the likely size, tactics and composition of the groups which might be engaging in various disorders, the manner in which such disorders may be affected by leadership elements, and the impact of such disturbances on civil police, National Guard and active Federal military forces. The seven sections of the study will conclude with forecasts of the civil disturbance threats as they are expected to exist over the period, ending April 1972, and over the five year period ending in 1975. These forecasts are consolidated for easy reference in a separate section at the end of the study.

II. BACKGROUND

Before beginning the discussion of the probable sources of disorder in the years immediately ahead, it is useful to look back at the historical emergence of civil disturbances as a law enforcement problem, with emphasis on the post World War II period.

A. Employment of Active Federal Forces

1. The commitment of active Federal forces in the control of domestic disturbances has been relatively rare in the 20th Century. Race riots have involved the Army on several occasions, in Washington, D.C. and Omaha in 1919; in Detroit in 1945 and 1967; and in Washington, D.C., Baltimore, and Chicago in 1968. State-Federal conflicts over the enforcement of Federal antidiscrimination laws also brought alive Federal forces to Little Rock in 1957 and Oxford, Mississippi, in 1962. With the exception of the Bonus Army's removal from Anacostia Flats in Washington, D.C. in 1932, labor disputes have been the only other source of conflict to involve the Army. In 1907, a Nevada mining disturbance resulted in the commitment of Federal troops. In 1914 and 1921, in Colorado and West Virginia, respectively, coal mining disputes required Army intervention. In 1919, the Secretary of War instructed commanders to respond to state requests for assistance on the theory that states were without protection from internal disorders due to the service of the National Guard in World War I. The use of active Federal forces in the Gary steel strike and elsewhere in 1919 was without presidential proclamation or other formalities. In the spring of 1970, a strike by post office employees resulted in the use of Federal troops in New York City. This employment differed from previous Army commitments in labor unrest in that troops restored an essential service and were not employed to maintain law and order.

2. While domestic violence became widespread during the 1960's, it was for the most part of a predominantly low order of magnitude. Other than the employment of regular Army troops on five occasions related to racial disturbances in the 1960's. the only other events of major significance for the Army in the recent past occurred when sizeable numbers of troops were prepositioned in three cities in anticipation of possible disorders. These cities were: (1) Chicago, in connection with the Democratic National Convention in August, 1968; (2) Washington, D.C. in connection with the Presidential inauguration in January 1969, the Vietnam Mobilization demonstration in November 1969, and again during the protest demonstration against the commitment of troops to Cambodia in May 1970; and (3) New Haven, Connecticut. during protests against the trial of Black Panther leaders near Yale University in May 1970. In contrast to the spontaneous race riots of the 1960s, the prepositionings involved demonstrations organized for the purpose of achieving well-defined political goals. On each of these occasions, the overwhelming majority of demonstrators were peaceful in their protest, and the small minority which chose to provoke violence was at all times able to be brought under control by local or state police or National Guard forces.

3. Another problem has been the occasional threat to the security of Federal installations. A number of political demonstrations involving Federal installa