from the appropriate officials of the Justice Department the existence and precise nature of the guidelines and safeguards governing the collection, assembly, and dissemination of information on law abiding citizens.

On March 17, 1971, the subcommittee convened to hear Assistant Attorneys General William Rehnquist and Robert Mardian. What we witnessed was still another round of confusion, obfuscation, and evasion of direct response-an evasion I might add which continues to this day.

When asked by members of the subcommittee to explain the authority for and controls governing data collection by the Department, Mr. Mardian (after being reminded that the FBI was indeed an agency of the Justice Department) trotted out a 4-year-old memorandum from a former Attorney General dealing with one limited program and quoted a single paragraph as the basis for data collection and surveillance on law abiding citizens by Justice Department agencies. When pressed by understandably incredulous members of the subcommittee, Mr. Mardian hastened to assure us that indeed. there must be additional guidelines covering, for example, the FBI. Yet the nature of those guidelines, the safeguards they containand frankly their very existence-continue to be in doubt despite the persistent requests of the subcommittee for production of any of those documents. In fact, when the subcommittee made further oral requests for those guidelines, the response of the Justice Department was in effect, "we do not know what you are talking about." Finally, the subcommittee resorted to a formal letter quoting the testimony of Mr. Mardian claiming such guidelines existed and asked in effect. "whatever you were talking about is what we want to see." In fact, the only directive governing surveillance by Justice Department agencies that I know of is one which came to our attention through the so-called "Media raid," which suggests that FBI efforts be concentrated to give the impression of having "an agent behind every mailbox."

Further indication of the seriousness of the situation is the fact that nowhere in the response of the Justice Department to the subcommittee's request for a listing of Government data banks is there any mention of the so-called "Security Index" which reportedly contains entries on 25 million people. This despite the fact that the Department's response, coupled with the testimony of its witnesses, purported to be a complete inventory of all such collections.

Mr. Chairman, as you recall better than any of us, on March 17, 1971, the subcommittee requested copies of the documents cited by Assistant Attorney General Mardian in his testimony-or rather claimed to exist by him. It is now August 4, 1971-almost 5 months since Mr. Mardian's testimony that there were guidelines and over a year after the initial requests to the Justice Department--and we have yet to receive any documents setting forth or describing the guidelines governing Justice Department data collection on individuals.

Senator ERVIN. I would like to say on this point that the silence of the tomb is equaled only by the silence of the Department of Justice.

Senator TUNNEY. In the meantime, the executive branch has developed the theory that by executive order, without even the briefest pass through the Congress, it can even further expand its data. gathering activities through an attempted end run with the Subversive Activities Control Board.

Mr. Chairman, I am deeply concerned with the results of these and innumerable other examples, examples with which every Member of the House and Senate is familiar. We are witnessing an era in which the legislative branch of our Government is being progressively sapped of the ability to legislate by the conscious and deliberate denial of the information upon which to base its decisions. These denials are becoming increasingly pervasive and present a threat to the very basis of our Government. Historic constitutional principles of separation of powers and checks and balances are being persistently eroded to the point where they may soon be meaningless. The information gap between the Executive and the legislative branches has always been substantial even without the Frankenstein growth of executive privilege. Time and again Senators and Representatives must make decisions based upon information developed by a legislative staff no larger than a half dozen persons at most. Contrast this with executive departments capable of producing hundreds of pages of documents (and classifying them) overnight.

But when we add the hydraheaded monster that executive privilege has become, the peril of the Congress is most acute.

Mr. Chairman, I fear for our ability to legislate responsibly if this trend continues. The examples I have described this morning are typical of the problem we face. People in this country are deeply concerned, and rightly so, about the nature and extent of governmental intrusions on their privacy. In many ways, the investigations we have begun in the subcommittee place an even greater obligation upon us to bring them to a public resolution. For one thing, the public has the right to know whether we have seen anything more than the tip of the iceberg. More importantly, however, we must determine what guidelines and safeguards should be. In short, we are being asked to act like responsible members of the legislative branch. Yet we continue to be denied the most essential component of the legislative process, the information upon which to make responsible judgments. I dread the day when Congress will be forced to govern by subpoena, but it would seem that that day is drawing ever nearer because of the stubborn refusal of the executive branch of our Government to deal in an open and honest manner with the Congress.

(Information referred to follows:)
(Subcommittee insert.)

GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE,
Washington, D.C., June 10, 1971.

Hon. SAM J. ERVIN, JR.,

Chairman, Subcommittee on Constitutional Rights,

Committee on the Judiciary,

U.S. Senate,

Washington, D.C.

DEAR MR. CHAIRMAN: Your questions concerning the Fort Monroe and the Fort Hood data banks and the additional files referred to on page 3 of your March 30, 1971 letter to Secretary Laird have been referred to me for reply.

As you know, representatives from the Army met with the Subcommittee's Chief Counsel for several hours on April 15 to respond to the six questions set forth on page 2 of your letter. During these discussions, he raised additional questions about the Fort Monroe and the Fort Holabird computer systems. Answers to these questions are enclosed at Tab A.

It is believed that the submissions included with this letter, plus certain follow-up actions by the Department of the Army, will provide the Committee with as complete a report of the computer operations as possible under the circumstances. In this respect, it is noted that the draft report of the Constitutional Rights Subcommittee Staff, dated April 26, 1971, suggests a certain unresponsiveness on the part of the Department of the Army. The record is to the contrary. The Department has endeavored at all times to furnish a full and complete account despite the fact that the computer operations in question have long since been disbanded, and the computer printouts at Fort Holabird and Fort Monroe destroyed except for those which are now in the temporary custody of the Subcommittee. To secure a technical explanation, the Department of the Army contacted the originators of the computer system and obtained their recollections as to the meaning of the computer code symbols.

With reference to your request for further information on the Fort Monroe and Fort Hood computer data banks, answers to your various questions have been prepared from the information presently available and from the recollection of those who worked on these programs. The destruction of these computer data banks and related files last year makes it quite difficult to answer many of your questions. In this regard, the Army is unable to provide you copies of any documents, manuals, or other publications relating to the establishment of these systems because they are no longer available and in some cases existed only in a fragmentary and informal form. However, two pamphlets on coding instructions for the Fort Holabird computer are being held by the Department of Justice for purposes of the Tatum v. Laird litigation. These may be of interest to you in your inquiry.

The Fort Monroe computer data banks, known as the Counterintelligence Records Information System (CRIS), was established in January 1968 but was not computerized until May 1968. CONARC sought and obtained approval for the computerization of this system in April-May 1968 in accordance with the provisions of paragraph 2-1, Army Regulation 18-2 (attached). This regulation does not establish the criteria for reviewing the propriety of a particular system; it only outlines the procedures for reviewing the feasibility of a particular program in light of available and prospective computer resources and requirements. On April 1, 1970, the Secretary of the Army issued a policy letter which required his personal approval of any computerized data bank on civilians not affiliated with the Department of Defense and only after consultation with Congress. DOD Directive 5200.27 now imposes the requirement that the Chairman of the Defense Investigative Review Council approve such computer operations.

CRIS, the Fort Monroe system, was designed to retrieve civil disturbance information rapidly and generate data and statistics to assist CONARC in the prediction of civil disturbances which might result in the deployment or commitment of federal troops. The attempt to predict possible civil disturbances or incidents related directly to the requirements placed on CONARC to provide Task Forces for deployment and for actual use in civil disturbances in accordance with the Army Civil Disturbance Plan (Garden Plot). The statistics and other data produced by this program were considered to be a necessary adjunct to the requirements and responsibilities imposed by the Army Civil Disturbance Plan, and it was hoped that this data would assist CONARC staff in planning for and reacting to situations calling for the possible use of federal troops.

The CRIS contained three basic categories of information with a crossreference retrieval capability among them: personalities, organizations, and incidents. The information itself was stored on magnetic discs, with a backup file on magnetic tape. Information for CRIS was received from USAINTC, CONUSAMDW, and the FBI. There was not, however, a direct interconnection between other computers nor was the information fed directly into CRIS over teletype or other electrical means. Recipients of the information produced by CRIS included: Office Deputy Chief of Staff for Intelligence, CONARC; the Deputy Chiefs of Staff for Intelligence, CONUS Armies and Military

District of Washington; HQ, USAINTC; Assistant Chief of Staff for Intelligence, DA; and the Commander, Military Traffic Management and Terminal Service. There is no way of determining how many printouts or other information derived from CRIS were produced and forwarded to the recipients listed above. However, the June 9, 1970 Army policy letter required the destruction of all civil disturbance information on civilians.

It should be pointed out that only 2.5% of available computer time was used on CRIS. The remaining computer time was consumed by 8 major programs, all of which dealt directly with CONARC's command and control functions. These programs were: Force Status, Unit Identification, Automated Army Unit Readiness Reporting System, Contingency Planning Troop List, CONARC Movement Planning and Status, Computerized Airlift Planning, and Contingency Plan Map System.

The civil disturbance information in CRIS was stored on four magnetic tapes and discs. They were all destroyed on April 12, 1970, by degaussing i.e. the information was removed from the discs and tapes by passing them through a magnetic field. No other discs or tapes contained the information which was in the Fort Monroe program. Supporting files consisted of boxes of IBM cards, existing printouts, and the user manuals. These related files were destroyed on April 22, 1970.

You have asked whether a civilian approved the initiation of the Fort Monroe program. The requirement for the approval of such computer data banks was not imposed until April 1, 1970 and hence, there was no requirement for such approval at the time the system was initiated. The Office of the Army General Counsel did become aware of the system on or about March 1, 1970. I would stress that there was no effort to hide the system in question; it was discussed and explained at various briefings to high military officials and was viewed as a normal adjunct to the Army's civil disturbance program. The Fort Hood system, the second system referred to in your letter, did not reach the same stage of development as CRIS. In fact, it did not become fully operational before its destruction on August 15, 1970. By way of background, a feasibility study was begun in July 1969 at Fort Hood on a computer program which could provide III Corps with the ability to retrieve civil disturbance information rapidly and assist it in predicting disturbances within its geographical area of responsibility. Under the Army Civil Disturbance Plan (Garden Plot), Fort Hood was required to provide three civil disturbance task force headquarters and six civil disturbance brigades for possible deployment in a civil disturbance situation. The computerization of the data contained at Fort Hood was intended to supply the intelligence required to respond efficiently and rapidly to a civil disturbance situation.

The program was run on a computer which was used primarily in the areas of supply, finance, accounting, and maintenance with the secondary purpose of providing support for various systems development such as the Division Logistics Systems Tests and currently the Combat Service Support System. In fact, only 0.008 of 1 percent of computer time was used in the formulation of the civil disturbance program. A request for program approval was not submitted under the provisions of paragraph 2-1, AR 18-2, described above. However, since AR 18-2 relates only to the feasibility of the system, the question of the propriety of implementing such a system would not have been reviewed under AR 18-2. Of course, new policy letters and directives now impose a requirement that such a computer data bank be approved by civilian officials.

The information for the data banks was received from the FBI, USAINTC, and from liaison contacts with local authorities. The data bank itself listed in alphabetical order various civilian organizations which were deemed to have some relation to the III Corps responsibility under Garden Plot. Under the listed organizations, the names of certain members of the organization were also included. Since this system did not reach full operational status, only two copies of a printout were produced for distribution outside of Fort Hood. The Deputy Chief of Staff Intelligence, 4th US Army, received one copy which was subsequently destroyed in August 1970. One was also forwarded to the Assistant Chief of Staff for Intelligence DA.

The computer program at Fort Hood was not known at DA, Headquarters until the latter part of April 1970 when an exception was sought from the provisions of the April 1, 1970 letter requiring the destruction of computerized data banks on civilians not affiliated with the Department of Defense. To

review the propriety of the exception, ACSI, DA, requested a copy of the printout from the Fort Hood computer. This copy (referred to above) was forwarded, and after review of the document, the exception was denied and the data bank was ordered destroyed on August 5, 1970. The data bank and computer program on magnetic tape (there were no discs) were then destroyed on August 15, 1970.

As I indicated above, the printout, from the Fort Hood system sent to the 4th U.S. Army was previously destroyed. It was thought that the printout provided to ACSI, DA, the only other printout, had also been destroyed. Although there had never been any written record of destruction to confirm this, several prior searches had failed to discover the document in question. However, on May 11, 1971, the last remaining printout from Fort Hood was discovered by accident among some files in the Office of the Assistant Chief of Staff for Intelligence, Department of the Army. On May 21, 1971, the Acting General Counsel of the Army wrote to the Department of Justice requesting its advice on the proper disposition of this item in view of the Tatum v. Laird litigation. The Justice Department has advised the Department that it should be retained for litigation purposes.

You asked about the existence of a set of records called the "Van Deman" files. Major General Ralph Van Deman, who formerly headed Army Intelligence, compiled intelligence files during the period of 1929-1952. There is no indication, however, that he collected these files prior to his retirement in 1929. The files, for the most part, consisted of four general categories: (1) collection of various newspapers from the West Coast alleged to be communist or communist-affiliated; (2) literature and reference material on or produced by alleged communists; (3) a photo album of assorted individuals; and (4) files on individuals and organizations based upon information acquired from various agencies and private sources. The information in the latter category largely dealt with communist activities.

The Assistant Chief of Staff for Intelligence, Sixth Army, assumed custody of at least some of General Van Deman's files on January 22, 1952. It is believed that certain portions of the files were removed by associates of General Van Deman before the Sixth Army acquired these files, but this cannot be verified. The reasons for assuming custody is not entirely clear. It is quite possible that there was some informal arrangement between the Assistant Chief of Staff for Intelligence, Sixth Army, and General Van Deman for the transfer of these items at General Van Deman's death.

The files in the possession of the Sixth Army were shipped in 1958 to what is now designated as the United States Army Investigative Records Repository (USAIRR). Following this transfer, the index cards prepared by General Van Deman for use with his material were replaced by punch cards and integrated into the USAIRR index. His own index cards were then destroyed. In 1968, the punch cards prepared from the earlier index cards were also destroyed, and all reference to these materials in the Defense Central Index of Investigations was thereby deleted. The Van Deman files were then segregated within the USAIRR. After 1968, these files were not referenced by the DCII.

These files remained in the USAIRR, although segregated, until March 2, 1971, when they were transferred to the Internal Security Subcommittee of the Senate Judiciary Committee pursuant to a written request by the Chairman of the Judiciary Committee. We have found no record of an inquiry to Mr. Froehlke or to the Department of Defense related directly or indirectly to the Van Deman files prior to your letter of March 30.

In regard to your last series of questions on page 3 of your letter, the Army implemented a policy in February 1971 of reviewing each file at the USAIRR prior to its release to an authorized official for the purpose of removing material which cannot be retained under our present directives. Mr. Froehlke explicitly informed you of this policy in his appearance.

"There are dossiers within the Army Investigative Records Repository which contain FBI reports and other material which do not meet current Army criteria for retention. A mass screening of the 8 million dossiers would be a long and very expensive undertaking. To comply with the spirit of the new DA policy, however, all dossiers are reviewed for unauthorized materialwhich is removed and destroyed-before being released to the requester.” (Report of Proceedings held before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, March 2, 1971, Vol. 4, p. 600)