Other Materials: Message from Department of the Army to major subordinate West Berlin_ Heidelberg-. 8th Infantry Division Regulation (USAREUR) No. 381-25, Page 287 299 323 324 360 380 395 MILITARY SURVEILLANCE TUESDAY, APRIL 9, 1974 U.S. SENATE, 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 ernment agencies are allowed to collect and disseminate on Americans. Protecting privacy, after all, is really a matter of protecting information, of restricting the means by which it is obtained and the means by which it is disseminated. The dangers to privacy and the constitutional rights of expression and due process of law posed by political surveillance have been widely recognized and I will not dwell upon them here except to emphasize that political surveillance of any kind which is not directly relevant to a legitimate governmental purpose is repugnant to a free society. It is all the more repugnant when it is carried out by the military and is directed at the political and private affairs of law-abiding civilians. This is true even when the information being gathered is no different from that gathered by other agencies of the executive branch. There is a longstanding tradition in this country that the military will be separate from, and subordinate to, the civilian realm. This policy is embodied in the Constitution and it is embodied in numerous provisions of the U.S. Code. Thus, the subcommittee opens these hearings conscious of the fact that there is a strong presumption in law and policy against military intrusion into civilian politics in any form. It follows that any exceptions which the subcommittee chooses to make to this policy must clearly define those circumstances in which intrusion may be justified. S. 2318, which is before the subcommittee, is one attempt to do just that. It contains a general prohibition against military surveillance of persons not affiliated 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 |