THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK MILITARY SURVEILLANCE OF CIVILIAN REPORT AND RECOMMENDATIONS By THE COMMITTEE ON CIVIL RIGHTS INTRODUCTION Domestic intelligence operations conducted by elements of the United States armed forces have raised serious problems involving rights of privacy, speech and association. Such problems have long been of concern to lawyers1 and to members of this Association in particular.2 In January 1970, charges were made that the United States Army was engaged in widespread surveillance within the United States of the political activities of civilians.3 Publication of the charges received considerable coverage in the press, and provoked inquiries from a number of Senators and Congressmen about the scope of the Army's domestic intelligence operations. During 1971, the Senate's Subcommittee on Constitutional Rights held hearings on the subject, and since that time a number of bills aimed at limiting the scope of military surveillance have been introduced in Congress. To date, however, none of the bills has been reported out of committee. High Defense Department officials have acknowledged that the charges of widespread domestic intelligence data gathering and storage were indeed accurate,5 and the Department has issued detailed regulations which sharply limit the scope of such operations.6 Significant legal and practical questions remain, however, for the official Department of Defense position appears to be that the widespread information collection activities undertaken during the 1967-70 period, even if not "appropriate," were nonetheless "lawful."7 Manifestly, implicit in this position is a reservation by the Department of Defense of its alleged right to resume these activities whenever the Department deems it "appropriate" to do so.' * It should be noted that according to documents made public subsequent to compilation of the body of this report, secret plans for extensive monitoring of civilian political activities were apparently formulated at top levels of the executive branch of the government during the spring and summer of 1970. The techniques to be employed included electronic surveillance, mail coverage, and surreptitious entry. While referring to retention of restrictions on the use of military undercover agents, the plans apparently anticipated eventual participation of the military. A permanent committee consisting of the F.B.I., C.I.A., Ñ.S.A., D.I.A. [Defense Intelligence Agency] and the military counterintelligence agencies was to evaluate information and "carry out the other objectives specified in the report." See “Text of Documents Relating to Domestic Intelligence Gathering Plans in 1970," New York Times, June 7, 1973, p. 36. The documents were subsequently made a part of the record at the hearings before the Senate Select Committee on Presidential Campaign Activities, in June, 1973. The purpose of this report is threefold: (1) to review the historical background and current status of the controversy regarding military surveillance of civilian political activities; (2) to outline the principal legal considerations involved; and (3) to set forth our views with respect to possible Congressional action. Our principal conclusion is that Congress should enact legislation to prohibit all military surveillance of civilian political activities, except perhaps in certain well-defined circumstances where limited datagathering may be justifiable. I. THE NATURE AND EXTENT OF THE PROBLEM A. Military Surveillance Prior to 1967 Although military surveillance of civilian political activities reached a peak during the three years following the riots in Newark and Detroit in 1967, such surveillance is by no means a recent phenomenon. The modern origins of the problem can be found in the expansion of military intelligence work at the outbreak of World War I, in response to German efforts at espionage and propaganda within the United States. By the end of the war, military intelligence had established a nationwide network of agents and civilian informers, who reported to the Army not only on suspected German spies and sympathizers, but also on pacifists, labor organizers, socialists, communists, and other "radicals." 8 The network remained in existence for several years after World War I, continuing to infiltrate civilian groups, monitor the activities of labor unions, racial groups and "left wing" political organizations, and occasionally harassing persons regarded as "potential troublemakers."9 It was finally disbanded in 1924, and until the outbreak of World War II the military's domestic intelligence activities were conducted on a much reduced basis.10 The Federal Bureau of Investigation was the principal agency involved in domestic intelligence operations during the period between 1924 and 1940. With the outbreak of World War II, military intelligence operations were, of course, greatly expanded. Some elements of military intelligence again became involved in reporting on civilian political activities, mainly in an effort to counter suspected Axis “fifth column" attempts at subversion and sabotage.1 .11 The monitoring continued, on a much reduced scale and in a rather haphazard and sporadic fashion, during the Cold War period of the 1940's and 1950's. The primary domestic responsibility of military intelligence units during this period was the conduct of loyalty and security investigations involving persons working in the defense establishment, but the carrying out of these responsibilities sometimes spilled over into fairly extensive surveillance of civilians.12 During the early 1960's, the scope of domestic intelligence operations by the armed forces gradually began to expand. A number of factors were responsible for the expansion, including the general build-up of the defense establishment as the United States became increasingly involved in the war in Vietnam, the beginnings of the anti-war movement at home, repeated crises over desegregation (which actually led to the deployment of troops in Alabama and Mississippi in 1962 and 1963), and instances of protest against racial discrimination in cities in both the North and the South. Officials charged with responsibility for deployment of federal troops during these years expressed a need for better knowledge of the problems that might have to be faced.13 Thus, for example, following the crisis in Birmingham, Alabama in May 1963, then Maj. Gen. Creighton Abrams (now Chairman of the Joint Chiefs of Staff), wrote that: "We in the Army should launch a major intelligence project without delay, to identify personalities, both black and white, develop analyses of the various civil rights situations in which they may become involved, and establish a civil rights intelligence center to operate on a continuing basis and keep abreast of the current situation throughout the United States, directing collecting activities and collating and evaluating the product. Based upon this Army intelligence effort, the Army can more precisely determine the organization and forces and operations techniques ideal for each." 14 The extent of the actual collection of information on individuals and groups during the early and mid-1960's seems to have varied considerably from one military unit to another, depending upon how broadly the unit commanders interpreted vague directives to keep track of "subversive activities." 15 It was not until 1967, after large-scale riots had taken place in ghetto areas of Newark and Detroit, that truly extensive, systematic, domestic intelligence operations independent of the loyalty-security programs began to get underway. B. Formulation of the 1967-70 Surveillance Program In July of 1967, Federal troops were alerted for possible duty in connection with the riots which broke out in Newark and were actually committed to action in helping to quell the Detroit riots. In September, 1967, Cyrus Vance, who had been a special representative of the President in Detroit at the time of the riots there, filed an extensive “after-action report.” Mr. Vance's report recounted the events which had taken place and summarized his conclusions with respect to planning for situations of domestic violence requiring the use of Federal troops which might arise in the future. Among other things, he recommended the reconnoitering of major American cities in order to prepare folders listing bivouac sites, possible headquarters locations, and similar items of information needed for optimum deployment of Federal troops when committed.16 He particularly noted the utility of police department logs of incidents requiring police action, as indicators for determining whether a riot situation was beyond the control of local and state law enforcement agencies, and suggested that it would be helpful to develop a "normal incident level" curve as a base of reference. He also thought it would be useful to assemble and analyze data showing activity patterns during the riots in places such as Watts, Newark, and Detroit, in order to ascertain whether there were any typical "indicator" incidents or patterns of spread.17 The Vance report did not suggest that the Army should collect data on personalities or organizations, but that is nevertheless what Army intelligence proceeded to do. Extensive plans for expanding the Army's domestic intelligence operations and computerizing many of the files on civilian political activity were formulated during the fall and winter of 1967-68. A comprehensive Army civil disturbance plan was distributed to Army units in January, 1968, and was followed the next month by issuance of an "intelligence annex" to the plan which contained a list of elements of information to be collected and reported to the U.S. Army Intelligence Command. The annex singled out "civil rights movements” and “anti-Vietnam/anti-draft movements" as “dissident elements," and authorized military intelligence units to collect a far wider range of information than had been recommended in the Vance report of the preceding September.18 In May, 1968, following the riots touched off in a number of cities by the assassination of Dr. Martin Luther King, the Army issued an even broader "Civil Disturbance Information Collection Plan." The Plan described this mission of Army Intelligence in very broad terms: "To procure, evaluate, interpret and disseminate as expeditiously as possible information and intelligence relating to any actual, potential or planned demonstration or other activities related to civil disturbances, within the Continental United States (CONUS) which threaten civil order or military security or which may adversely affect the capability of the Department of the Army to perform its mission." 19 The Plan contained a detailed listing of various kinds of information to be obtained and accorded different priorities to particular kinds of information. Some examples of kinds of information on "predisturbance activities" in local communities given high priority by the Plan are the following: — presence of "militant outside agitators" increase in charges of police brutality, resentment of law enforce ment - known leaders, overt and behind the scenes - plans, activities, and organization prepared by leaders - friends and sympathizers of participants, including newspapers, radio, television stations, and prominent leaders - efforts by minority groups to upset balance of power and political system - purposes and objectives of dissident groups (including estimates of plans and objectives, capabilities, resources to be employed, coordination with other minority groups and dissident organizations) source and extent of funds, how funds are distributed, and general purposes for which funds are used - organization of dissident groups (including location of functions and responsibilities, lines of authority, organization charts, and rosters of key personnel, for both the “high command” and the “subordinate elements" of the groups) · personnel (including the number of active members, a breakdown of membership by ethnic groups, age, economic status, and criminal record, and biographic data on key members).20 C. The Scope of the Data Collection, 1967-70 Assistant Secretary of Defense for Administration Robert Froehlke later testified that the requirements of the civil disturbance information collection plan issued in May, 1968, reflected an "all-encompassing and uninhibited demand for information" which the Army was expected to meet.21 As he pointed out, it was "highly improbable" that many of the requirements listed could be obtained by other than covert collection means.22 The Army's May 1968 plan was distributed to numerous Federal agencies and to top officials in each State government.23 The Army itself, through its Intelligence Command, vigorously sought to implement the plan. The massive sweep of its surveillance activities has been extensively documented 24 and need not be reviewed in detail here. However, some particularly salient features may be noted to help illustrate the nature and extent of the program: 1. A great number of widely disparate groups were subject to Army surveillance. They covered the full range of the political spectrum and included, for example: - The American Civil Liberties Union 2. Files were also kept on a large number of private citizens and public officials. These dossiers often included data on the private and personal affairs of citizens as well as on their activities in connection with political organizations. Computer print-outs and other publications generated by the Army in the course of the 1968-70 operations included, among other things, comments about the financial affairs, sex lives, and psychiatric histories of many persons wholly unaffiliated with the armed forces.26 Much of the information appears to have been unverified, sometimes consisting of nothing more than rumor or gossip.27 3. Most of the data collected on groups and organizations consisted of matters of public record—a great deal of it simply clipped from newspapers. However, information also was obtained from private institutions and, in some cases, through covert operations. Thus, for example, former members of Army intelligence testified at the 1971 Senate hearings that the Army's domestic intelligence activities had included: - infiltration of undercover agents into Resurrection City during the Poor People's Campaign in 1968.28 - having agents pose as press photographers, newspaper reporters and |