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the proper scope of the military's surveillance of dissent within its own ranks. Because the Subcommittee has chosen to concentrate its attention on the surveillance of civilians, I shall not discuss the military's needs in this area, except to note that the improper surveillance of civilians will not completely end until the political rights of servicemen receive equal consideration. The foregoing discussion does not begin to enumerate all of the instances in which the collection or receipt of information by the military may involve reports on the political beliefs, associations, and activities of civilians. Hopefully, however, it will provide a base of knowledge about the military's intelligence needs from which the line-drawing exercise of legislative drafting may proceed.
II. SOME GUIDES TO REDRAFTING
S. 2318 goes a long way towards protecting the rights of civilians guaranteed by the First Amendment and I support it heartily. At the same time, I believe there is room for improvement. What follows are some suggestions for redrafting.
Section 1386(a) of the bill sets forth a general prohibition declaring who should not do what to whom, and how. It provides:
"(a) Except as provided in subsection (b) of this section, whoever being a civil officer of the United States or an officer of the Armed Forces of the United States employs any part of the Armed Forces of the United States or the militia of any State to conduct investigations into, maintain surveillance over, or record or maintain information regarding, the beliefs, associations, or political activities of any person not a member of the Armed Forces of the United States, or of any civilian organization, shall be fined not more than $10,000 or imprisoned not more than two years, or both."
Persons obligated. The prohibition would apply only to "civil officers" [which section (c) defines as "any civilian employee"] and "officers of the Armed Forces." However, since much of the initiative for the surveillance excesses of the late 1960's came from sergeants and warrant officers, it would make sense to cover them too. The prohibition also should be rephrased to burden officers of the militia since some National Guard bureaus have created domestic intelligence networks of their own. In addition, the term "employs" probably should be changed to "causes" to avoid semantic quibbles by defense lawyers.
Activities prohibited. The enumeration of activities prohibited in subsection (a) is a substantial improvement over prior drafts of the bill in that it explicitly prohibits recordkeeping as well as surveillance. The prohibition against the maintenance of information also may be read to cover the receipt and redistribution of information orally, although perhaps that contingency ought to be guarded against too. An additional phrase or term might be added to forbid the hiring of private detectives for surveillance purposes, as occurred in the Civil War.
Activities protected. The bill's protection of “beliefs, associations, or political activities" seems to be both too broad and too narrow. There are no adjectives to describe the kinds of beliefs and associations to be protected, yet there is an adjective limiting the bill's prohibition to “political activities." One way to solve the problem would be to move the adjective "political" over to modify beliefs and associations too, but that also would be too narrow. Much of the activity monitored by the military can not be called "political" within the plain meaning of that word. Adding "social and religious" might help some; so too would a provision to cover "private affairs."
Still another way to convey the essential purpose of the bill would be to define the matters to be protected in terms of the First Amendment. In so doing, however, it would be important to phrase the bill so as not to limit the definition of Constitutionally protected matters to those beliefs, associations, and activities, which can now be vindicated in civil suits under the currently restrictive rules of standing.
Persons protected. As the bill now stands, the only persons protected are those who are not members of the Armed Forces. This formulation is broader than that used by the military in its current regulations (which speak of persons "not affiliated with" the Armed Forces), and narrower than the class of
persons subject to the surveillance and entitled to protection under the First Amendment. Extending the bill's coverage to servicemen would be desirable but would raise a host of problems which have not yet been investigated fully by the Subcommittee. At a minimum, the bill should not imply a backhanded approval of the military's surveillance of its own people.
Criminal penalty. Because S. 2318 is intended to extend the posse comitatus act's ban on the use of troops to enforce civilian law, it contains a criminal penalty. Like the posse comitatus act, this penalty is not likely to be enforced. It should be retained to emphasize the seriousness with which Congress regards the prohibited activity. At the same time, every effort should be made to devise civil remedies and administrative procedures that will ensure full compliance with both the letter and the spirit of the bill.
Subsection (b) of the bill enumerates four instances in which "the provisions of . . . [section 1386] shall not apply." These exception include 1) actual military operations pursuant to the riot and rebellion laws (10 U.S.C. Secs. 331333), 2) investigations of criminal conduct committed on military installations or involving offenses to the property of the United States, 3) suitability investigations of employees and prospective employees of the Armed Forces, militia, and defense facilities, and 4) surveillance operations by the militia when not in federal service. I will discuss each of these exceptions in turn, and suggest some additional exceptions.
The exception clause. The great danger in writing exceptions to a bill of this sort is that the exceptions may turn into backhanded authorizations of conduct which the Congress means to forbid. One way to prevent that here would be to change the opening clause to read: "Nothing in this section shall be construed to prohibit, or to provide authority for, the following investigative or datakeeping activities .
The riot exception. Subsection (b) (1) provides that the prohibition of this bill shall not apply to the use of the Armed Forces or the militia "when they have been actually and publicly assigned by the President to the task of repelling invasion or supressing rebellion, insurrection, or domestic violence pursuant to the Constitution or section 331, section 332, or section 333 of title 10 of the United States Code."
It seems to me that this exception is at once too broad and too narrow. As the foregoing analysis of the Army's needs suggests, personality and organizational data are not needed by riot units. Therefore, the bill should not allow riot units to collect it. By clearly forbidding its collection in the course of riots, Congress will free intelligence agents for more useful work on reconnaissance and liaison duty.
At the same time, the riot exception would appear to bar the receipt of information from civilian law-enforcement agencies about an incipient riot in advance of the President's order directing the deployment of troops. Nothing in the bill should forbid civilian authorities from keeping the military well informed and up-to-date on fast-breaking developments.
In addition, the provision would appear to forbid the existence of a Pentagonbased civil disturbance analysis unit like the domestic section of the Counterintelligence Analysis Branch (CIAB). I believe that would be a serious mistake. It is too much to expect military commanders to leap into domestic strife without a staff to inform and advise them. CIAB during the late 1960's showed great coolness in crisis situations and provided intelligence estimates which were, by and large, more realistic than those produced by the Justice Department's Interdivisional Intelligence Unit (IDIU). CIAB also provided an alternative source of advice to decision-makers who were continually pressed with dire forebodings of riot and rebellion by the staff of the Directorate for Civil Disturbance Planning and Operations (DCDPO) (now the Directorate of Military Support). I see no reason why the Pentagon should not have a small staff of intelligence analysts during periods of civil disorder which can sort out and digest reports from the civilian agencies and the press for the Army's civilian and military leaders. In tense moments, distinterested counsel from a staff of this sort might avert a fatal overreaction on the part of uninformed commanders.
There is no evidence that any of the information in CIAB's data bank was
ever used or distributed in ways which could injure the rights of individuals or organizations. However, the possibility was always there, because CIAB's microfilm archive was bloated with highly sensitive FBI and Army reports on the personal and private lives of individuals. Since such information is not needed in riot situations, S. 2318 should forbid its retention, while also permitting the military to maintain an analytical unit with authority to receive, analyze, and hold for a reasonable period of time, current reports on civil disorders from appropriate law enforcement agencies and the press.
The military also should be permitted, at the request of the Department of Justice, to send observers to the scene of a possible riot to help with reconnaissance and planning.
The criminal investigations exception. The second exception in subsection (b) of the bill would allow the military "to investigate criminal conduct committed on a military installation or involving the destruction, damage, theft, unlawful seizure, or trespass of the property of the United States." This exception also appears to be to broad and too narrow.
The clause exempting the investigation of criminal conduct on military installations implies a belief that the military may never carry its criminal investigations off-post. As a general rule applicable to the United States, that is true; crimes committed off-post in the United States by military personnel are usually investigated by civilian agencies. However, S. 2318 has no geographical limitations. Thus, where Status of Forces Agreements do not require that servicemen be tried in foreign courts for off-post crimes, nothing in the bill should imply an intent to leave such crimes unpunished by the military. Revision of the opening clause of the subsection to clearly express an intent not to change the current situation regarding criminal investigations would probably solve this problem.
The first clause of the second exception also might be read to imply an intent to forbid the military to investigate instances of suspected sabotage at defense facilities located in the civilian community. Undoubtedly the purpose of the clause is to reiterate the primacy of civilian agencies in the investigation of crimes committed by civilians within the civilian community, but nothing in the bill should appear to prohibit inquiries by responsible military authorities into the nature of the crime and its effect, if any, on military personnel or operations. Nor should the bill imply an intent to bar appropriate military commanders from receiving status reports on criminal investigations by civilian authorities.
An example may help to illustrate this point. Suppose a political group dynamites electric power lines supplying a defense facility in a civilian community which directly supports a local military installation. The crime is not committed on the military installation or by persons subject to the Uniform Code of Military Justice. Thus the basic criminal investigation must be conducted by civilian authorities. At the same time, information about the crimes, the methods in which they were carried out, and the motives of the suspected bombers may be directly relevant to security efforts by the military commander. He should be free to make inquiries and receive information for that specific purpose.
The second clause of the criminal investigations exception would appear to authorize military investigations whenever anyone destroys, damages, steals. unlawfully seizes, or trespasses upon the property of the United States. If viewed as a positive grant of authority, this clause would transform the Army into a national police force. Obviously, that is not the intent of the bill.
The suitability investigations exception. An exception for political information legitimately collected in the course of a security clearance or pre-employment check of a particular person is entirely appropriate so long as it is not worded as a positive grant of authority. Any legislation giving Congressional blessing to the security clearance program should only be adopted after the most extensive hearings and staff investigation.
The state militia exception. The final exception in the bill would permit political surveillance and data keeping by "the militia of any State" when "under the command or control of the chief executive of that State or any other appropriate authorities of that State." This exemption seems both unwise and illusory.
The exemption is unwise in that it might be construed to permit the military to achieve through the National Guard, which is heavily funded by the federal government, what it would not be able to do by itself. If the National Guard were not interested in political surveillance, that would not be a problem, but the military departments of at least two states (Oklahoma and California) have exhibited great interest in monitoring protest politics.
The exemption also is illusory because S. 2318 would make any National Guard officer who collected the forbidden information while in state service an instant criminal upon federalization. Thus the Subcommittee might wish to alert National Guard intelligence officers to the risk this bill poses them by forbidding the expenditure of any federal appropriations received by the Guard to carry out the prohibited surveillance.
Some Proposed Exceptions
In marking up this bill, the Subcommittee may find it helpful to group exceptions to the prohibition in two categories: 1) exceptions permitting certain kinds of investigations, and 2) exception which do not permit independent military investigations, but which do authorize the receipt of certain kinds of information from other agencies under specific restrictions defining the nature of the information, how long it may be retained, and how it may be used and distributed. The Subcommittee also may find it helpful to prepare one list of excepted investigative and data-keeping activities to be included in the bill, and another to be published in its report.
The following are some investigative and/or data-keeping activities which I believe ought to be considered as candidates for exceptions, either in the bill or in the report. The exceptions are grouped according to the categories of intelligence needs set forth above in the first section of this statement.
Civil disturbance exceptions. The bill should not preclude the military from: 1. receiving information from the Justice Department, (and from municipal and state authorities once troops have been alerted for potential riot duty), bearing on the riot situation, even though that information may bear tangentially on constitutionally protected political activities;
2. receiving information from the Justice Department or other appropriate authorities on the status of permit negotiations for mass demonstrations where the military may have to play a role;
3. receiving information from local, state, or federal authorities about the intentions, capabilities, and probable courses of action of groups planning to demonstrate against the military on or just outside a military installation or activity.
4. observing such demonstrations from the installation or nearby.
5. collecting ordinary combat and counterintelligence (narrowly construed) on para-military or military groups within the United States which have raised arms against federal authority.
6. maintaining a Pentagon-based analytical unit for the purpose of monitoring press reports on civil disturbance and receiving reports from civilian law enforcement agencies relevant to civil disturbance which may affect the military in the performance of its mission, provided however, that this unit not be permitted to compile extensive files on politically active, law-abiding citizens, or to disseminate its reports widely. The sole function of the unit should be to inform and advise top military and civilian officials of pending or incipient civil disturbance situations which are likely to be of direct concern to the military in the near future.
7. sending observers, at the Justice Department's request, to potential riot areas, to assist with planning and liaison.
Counterintelligence exceptions. S. 2318 as now written appears to forbid the collection of political information in the course of an investigation of espionage or sabotage by foreign agents. Insofar as political information is part of a dossier compiled in the course of a criminal investigation, the investigation and retention could be authorized in a general criminal investigations exemption. On the other hand, the investigation of espionage and sabotage also may be part of a counterintelligence operation where the military's purpose is not to prosecute, but to break up an enemy operation and "double" its agents back upon their foreign masters. If the word "counterintelligence" could be given a
sufficiently narrow definition in the bill, it could be used to express this exception. The definition, however, should explicitly exclude terms like "subversion" and "disaffection" and should not encompass the surveillance of dissent within the military.
Criminal investigations exceptions. There should be no general exception for criminal intelligence operations. However, there should be an exception for ordinary criminal investigations which may touch upon political motives, associations, and activities. The provision might be worded to leave untouched military investigations of possible violations of the Uniform Code of Military Justice, military investigation of crimes committed by civilians on military installations, and the investigation or receipt by the military of information pertaining to joint investigations of crime, such as attempts by civilians to persuade military personnel (or civilian employees of the Armed Forces or militia) to violate the law or disobey lawful orders or regulations.
Security intelligence exceptions. There should be no exception which permits the establishment of massive "subversives files" in the military. Insofar as the subversive activity involves crimes, the investigation and data-keeping should be left with the appropriate law enforcement units.
At the same time, military commanders should be permitted to receive reports about politically motivated actions which may, or which have, disrupted military installations or activities, damaged military property, impeded the flow of military supplies, transportation, or communications, or resulted in harm to military personnel. Reports of this sort should be periodically destroyed to prevent the compilation of political data banks, and restrictions should be placed on them to prevent the contamination of security clearance dossiers or disclosure to persons without a legitimate need to know.
The unauthorized disclosure of national defense information also poses a security problem which should be the subject of a narrowly drawn exception. Another exception should leave the military free to receive information on thefts of arms, ammunition or equipment, or the destruction of facilities, equipment or records belonging to defense contractors which may affect its mission. Command intelligence exceptions. Without tackling the entire question of the surveillance of dissent within the military, the Subcommittee probably should specify those instances in which it does not seek to prohibit command intelligence operations, even though they may pick up information on civilian political activity. As I see it, these should be limited to the exceptions allowed for ordinary criminal investigations and the receipt of information generated by civilian agencies involved in joint criminal investigations.
Additional exceptions. There are several additional categories of information and investigations that also might be excepted by the Subcommittee's report from the prohibition of this bill. These include:
1. the maintenance of congressional and press liaison files compiled solely by the liaison personnel from overt sources and their own personal experience; and 2. the gathering of information on foreign nationals by U.S. military governments and armies of occupation for combat, civil disturbance, counterintelligence, security, law enforcement, and command purposes.
Restrictions on retention. Where exceptions to the prohibition permit the receipt of information on political and private affairs, restrictions ought to specify how long it may be retained. In some areas, it may not be feasible to specify time limits in the bill. However, where the military has received information in connection with a riot, demonstration, or disruption, the bill should provide that the records be turned over to civilian law enforcement authorities or destroyed within sixty days of the withdrawal of troops or the end of the disruption.
Restrictions on use and distribution. One of the most serious aspects of the CONUS intelligence program of the late 1960's was the indiscriminate way in which sensitive information about individuals and organizations was distributed throughout the military and law enforcement community. Thus restrictions on how exempted information may be used and distributed might be appropriate, either in the bill, or in the report's recommendations to administrators.