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under Section IV, Chapter 6; the number of OFCO's authorized under Section VI, Chapter 6; and, finally, the number of instances where off-post monitoring under para. 6-62(d) have been authorized in overseas locations. (The Subcommittee realizes that these figures may be included in the totals furnished in the previous answers.)
(3) If intelligence-gathering activities are being carried out by USAINTC against American civilians living abroad, and these are not governed by DoD Directive 5200.27 and USAINTC Reg. 381-100, under what regulation are they being carried out? If such an alternative regulation exists, the Subcommittee asks that it be furnished a copy.
(4) If intelligence-gathering activities are being carried out by USAINTC against American civilians living abroad, which, if any, of the following techniques have been employed to collect such intelligence:
b. Electronic bugging;
c. Covert infiltration;
d. Opening, copying or tampering with mail;
e. Burglaries or other clandestine means;
g. Overt observation;
h. Videotape equipment;
i. Liaison with foreign governments; and
(5) Has any intelligence operation been conducted by USAINTC involving the activities of one Thomas Schwaetzer or one Max Watts, residing in Heidelberg, West Germany? If so, has this operation entailed a wiretap by USAINTC on telephone number 06223-3316? To what intelligence operation does the USI case number A-0088 refer?
(6) Does USAINTC maintain a dossier on Lawyer's Military Defense Committee attorney Howard DeNike, residing in Heidelberg, West Germany? If so, what is the authority for the maintenance of such dossier?
E. The Subcommittee is interested in learning the extent of surveillance activity over civilians which is carried out by all subordinate units of the Department of Defense, and not simply those of the Army or the USAINTC. What other agencies or units under departmental jurisdiction are now authorized to collect intelligence on civilians and civilian organizations either within or without the 50 states and the territories and possessions of the United States? What directives or regulations govern such activities? Please furnish the Subcommittee with copies of such regulations. In particular, the Subcommittee has not received copies of regulations issued by the Navy or Air Force which correspond to USAINTC Reg. 381-100. Accordingly, we request copies of those regulations issued by the other services since March 1, 1971, which govern their intelligence activities both within and without the continental United States.
II. MILITARY PARTICIPATION IN INTERAGENCY INTELLIGENCE ACTIVITIES
A. In the course of the Subcommittee's investigation into Army surveillance beginning in 1970, it was ascertained that military representatives held seats as late as 1970 on the two standing committees of the Justice Department's Interdivisional Intelligence Unit, namely, the Intelligence Evaluation Committee and the Law Enforcement Policy Committee.
DoD Directive 5200.27 did not specifically preclude the military's participation in interagency intelligence committees, such as the Justice Department's IDIU. In fact, Section IV (c) of the directive acknowledges that the "Attorney General is the chief civilian officer in charge of coordinating all federal government activities relating to civil disturbances," and that information may be obtained from the Justice Department which relates to the military's civil disturbance function, providing the receipt of such information has been authorized by the Secretary of Defense or his designee. USAINTC Reg. 381-100 also clearly contemplates close liaison with the Justice Department. Participation in interagency intelligence committees or other activities seems to have been implicitly allowed for.
(1) To what extent, if any, did Department of Defense personnel continue to participate in any interagency intelligence evaluation committees after the promulgation of DoD Dirctive 5200.27 on 1 March 1971? The Subcommittee is interested in participation in any sort of domestic intelligence committee, whether formal or ad hoc, or whether created under the auspices of the IDIU, the Internal Security Division or any other Division of the Justice Department, the White House or any other agency of the Executive Branch.
(2) If, indeed, there was such participation by Defense Department personnel, please provide the names of the intelligence committees, the names and offices of those participating, and the inclusive dates of such participation.
(3) Again, if there was such participation, please describe the purpose and authority of each committee. If there are written statements to this effect, please include a copy of them. The Subcommittee also requests that it be furnished copies of any reports which these committees may have produced. (4) Please indicate if participation is continuing.
III. OPERATION OF THE DEFENSE INVESTIGATIVE REVIEW COUNCIL (DIRC)
A. DOD Directive 5200.27 established the Defense Investigative Review Council (DIRC) to monitor the operation of the Defense Department's intelligence activities in order to insure that the regulation was being complied with. The Subcommittee subsequently did receive copies of inspection schedules which the DIRC had conducted or intended to conduct.
(1) The Subcommittee has never received any of the inspection reports. We now request that copies of all these reports be made available to us. We are, of course, particularly interested in any such reports which include evidence of (a) continued domestic surveillance of civilians by military agents in violation of the DoD Directive, (b) the maintenance of domestic intelligence information collected after the date of the regulation, or (c) the maintenance of domestic intelligence information which had not been destroyed as required by the regulation. Any record of corrective action taken by the DIRC or the unit involved should also be included.
(2) Does the DIRC review the intelligence activities of the Defense Intelligence Service? If so, what has been the Council's findings in regard to this agency's compliance with the DoD regulation?
(3) Does the DIRC review the intelligence activities of the National Security Agency? If so, what have been the Council's findings with respect to compliance on the part of this agency?
(4) Does the DIRC review intelligence activities of Defense Department units outside the continental United States? If so, what have been the DIRC's findings with respect to compliance in this area?
(5) Please submit copies of all DIRC reports with respect to compliance by DIS, NSA, and intelligence activities by units of the Department of Defense.
OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE,
Washington, D.C. November 8, 1973.
Hon. SAM J. ERVIN, Jr.,
DEAR MR. CHAIRMAN: The Special Assistant to the Secretary of Defense has reviewed and asked me to send to you the answers to the comprehensive list of questions contained in your letter of July 30, 1973.
In responding to your inquiries, we have attempted to avoid limited and technical answers but rather to address the underlying issues which we believe concern you. Additionally, it may prove useful to have staff discussions of the efforts that have been made to restructure and limit the investigative activities of the Department of Defense.
It is our hope that the attached information and the ensuing dialogue will respond to your concerns.
D. O. COOKE,
Deputy Assistant Secretary of Defense.
ANSWERS TO INQUIRIES OF SENATE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS, SUBMITTED TO THE SECRETARY OF DEFENSE ON JULY 30, 1973
Question: On March 1, 1971, the Department of Defense issued DoD Directive 5200.27 governing the collection and retention of information on the political activities of Americans unaffiliated with the Armed Forces. The Department has forwarded to the Subcommittee a copy of this directive as well as USAINTC Reg. 381-100, dated 2 January 1970. The USAINTC Reg. included Chapter 6 which is classified "SECRET" and published under separate cover. The Subcommittee has also received Changes 1, 2 and 3 to the USAINTC Reg. and no changes to DoD Directive 5200.27.
Comment: USAINTC Reg. 381-100 dated 2 January 1970, is not and does not purport to be the Army's implementation of DoD Directive 5200.27. The Army's primary implementation of the latter mentioned DoD Directive is the enclosed Department of the Army letter dated June 1, 1971. As Section 3 of the Army's 1 June 1971 letter states, "This letter is the sole and exclusive authority for collecting, reporting, processing and storing investigative and related counterintelligence information on civilians not affiliated with the Department of Defense." Also, it states: "No other Department of the Army or subordinate command regulations, policy letter, circular or other form of authority, classified or unclassified, may be used to justify activities forbidden by this letter." (Attachment 1)
(Attachment 1 is printed in Hearings before the Subcommittee on Constitutional Rights "Federal Data Banks, Computers, and the Bill of Rights," 1971, at p. 1239.)
SECTION I.A. (1)
Question: Are the DoD Directive (5200.27) and USAINTC Reg. still in effect? Answer: DoD Dir. 5200.27, dated March 1, 1971, is still in effect. USAINTC Reg. 381-100 with changes 1, 2 and 3, is also in effect.
SECTION I.A. (2)
Question: Since the dates of their issuance (March 1, 1971, and January 2, 1970), have there been further formal changes to the DoD Directive or the USAINTC Regulation, which are not in the Subcommittee's possession?
Answer: DoD Directive 5200.27 has not been formally changed. USAINTC Regulation 380-211 issued on January 2, 1970, has been changed by Change 1, dated 1 June 1971, Change 2, dated 8 Nov 1971, and Change 3, dated 14 Feb 1972.
SECTION I.A. (3)
Question: Since these dates, have there been any other directives or orders— classified or not-which amend, alter, modify, interpret or make exception to the provisions of the DoD Directive or the USAINTC Regulations in any respect?
Answer: Yes. DIRC supplemental guidance has resulted in modifications and interpretations which have been incorporated in the unclassified Army letter of 1 June 1971, attachment 1. In addition, ACSI DA subsequently has issued interpretations of the 1 June 1971 letter as shown in attachments 2, 3 and 4.
By letter of August 3, 1971, Mr. J. Fred Buzhardt, General Counsel of the DoD, furnished Chairman Ervin the essence of six actions of supplemental guidance promulgated by the DIRC. These concerned the following subjects: Detailed Guidance on Retention of Investigative Records
DIRC Inspection Techniques
A Review of Counterintelligence Publications
Investigative and Related Counterintelligence Terminology
Standards for Recruitment, Training and Accreditation of DoD Investigative Personnel
Special Operations Requests
In late 1971, the DIRC examined the feasibility of extending DIRC investigative policies and prohibitions with respect to U.S. citizens overseas, paying
particular attention to local customs, laws, status of forces agreements, and other legal considerations affecting investigative activities in foreign countries. The DIRC agreed unanimously not to enlarge the geographic boundaries set forth in DoD Directive 5200.27. They noted the continuing effort to separate the idea of investigations of our own personnel from intelligence operations and observed that overseas, much of our investigative activity intertwines with and is inseparable from foreign intelligence missions. To extend investigative policies abroad might tend to blur the distinctions drawn by DIRC between intelligence gathering and investigations of personnel. Further, differences in relationships with foreign governments, treaties, status of force agreements, and some unstated or unwritten accords, all serve to make application of DIRC policies abroad enormously complicated.
Subsequently the DIRC has addressed the issue of Applicability of DIRC Guidelines to Criminal Investigative Activities-The main objectives were to examine the advisability of extending DIRC guidelines to criminal investigative activities, the adequacy of present restrictions on military criminal investigators, and the practical considerations attendant upon any such expansion of DIRC jurisdiction. The DIRC decided that DIRC constraints do apply to criminal investigative activities where such activities involve alleged subversion, espionage, sabotage or other security related matters.
The criminal investigative activities of the military departments in the civilian community were determined to be closely regulated by statute, Service regulations and the Delimitations Agreement between the Federal Bureau of Investigation and DoD agencies. Essentially, the jurisdiction of military law enforcement investigators within the United States is limited to persons subject to military law, or otherwise affiliated with the Department of Defense, as defined by DIRC. (The DIRC definition of "affiliation" in incorporated in implementing directives previously furnished Chairman Ervin.)
Also, the DIRC has held that except in cases where concurrent military investigative responsibility exists, DoD command and supervisory officials shall not sanction or lend affirmative support for the use of DoD personnel as prospective sources or informants for civilian law enforcement agencies.
When the Defense Investigative Service was created in early 1972, it was immediately placed under the civilian overview of the DIRC, and since becoming operational in October 1972, has been included in inspections by DIRC principals.
The DIRC examined the issue of bilateral counterespionage operations, and granted blanket authority for the participation of military investigative agencies in the conduct of operations against foreign intelligence agencies in the U.S., in those cases where the operation is controlled by a non-DoD Federal agency. If, however, in the exercise of this authority, the penetration or the covert or otherwise deceptive surveillance of a domestic civilian organization by DoD personnel is contemplated, specific DIRC approval for the special operation must be obtained under DIRC rules.
The issue of applying the DIRC restrictions to National Guard units was resolved by the DIRC with the holding that only when federalized is the Guard bound by DoD Directives, at which time all the prohibitions and restrictions of DoD Directive 5200.27 apply to personnel of a federalized unit.
The DIRC has also held that, with the exception of electronic monitoring, the prohibitions of DoD Directive 5200.27 do not apply to civilians on a military base.
The DIRC has also amended DIRC file retention criteria by adding the following provisions:
"File holdings of investigative agencies resulting from any activities involving an inquiry from members of the public to the DoD for information relating to DoD functions or units, unit insignia, signatures or photos of senior commanders, etc., may be retained subject to annual review for pertinency."
"File holdings of investigative agencies resulting from any activities involving an unsubstantiated report to DoD components from members of the public alleging imminent invasions, communist plots and similar events of a delusional nature, and assorted "crank" files, may be retained in excess of one year but subject to annual review for their pertinency."
Also, as a result of Chairman Ervin's recent request to the Secretary of Defense not to destroy certain "domestic intelligence files," a directive to withhold all destruction of files was issued as shown in Attachment 5.
SECTION 1.A. (4)
Question: Have any one-time or temporary exceptions or modifications been granted to the provisions of the DoD Directive, or the USAINTC Regulation under the provisions of paragraph 1-23 (c) or otherwise?
Answer: No. However, in accordance with the provisions of the DoD Directive which provides for the Secretary of Defense or his designee to authorize an exception to certain prohibited activities, the Chairman of the DIRC has, since March 1971, authorized a small number of special operations under Section V. E. of DoD Directive 5200.27. No other exceptions to prohibited activities have been made since promulgation of this directive. None of the exceptions granted under Section V.E. of the DoD Directive has involved a request initiated under USAINTC Regulation 381-100.
SECTION I.A. (5)
Question: Does the Directive apply to operations of the NSA, DIA and all other agencies under the jurisdiction of the DoD? If not, please submit copies of the analogous regulations or orders which govern the collection of intelligence by these agencies?
Answer: The DoD Directive applies to the NSA and the DIA and other Defense agencies within the geographical areas covered by the DoD Directive. It does not apply to "the acquisition of foreign intelligence information or to activities involved in ensuring communications security," and hence does not apply to the foreign intelligence gathering activities of both the DIA and NSA. It does apply to their personnel investigative activities within the 50 states, the District of Columbia, Puerto Rico and U.S. territories and possessions. Copies of the relevant directives are enclosed as Attachments 6 (DIA) and 7 (NSA). (Attachment 7 omitted)
SECTION I.A. (6)
Question: Prior to March 1, 1971, was any information collected by the DA about civilians unaffiliated with the Department of Defense ever transmitted to NSA?
Answer: Yes. Summaries of Information and other Civil Disturbance documents, including the so-called "compendium," were furnished to the National Security Agency and other DoD components by the Department of the Army during the period 1968-1969. The NSA copies of the "compendium" ("Civil Disturbance and Dissidence," Vols I and II) have all been destroyed. The NSA advises that they have no such civil disturbance information from the Department of the Army or any other source in their possession. According to limited records still available from that period, it seems that whatever information was received was disposed of by the National Security Agency because it was of no interest to that Agency. In any event, we are certain (as we previously advised Chairman Ervin on January 23, 1973) that the National Security Agency was not furnished and is not maintaining copies of Army files and data banks relating to domestic surveillance of the late 1960's.
SECTION I.A. (7)
Question: Subsequent to that date, was any such information ever transmitted to NSA? Does NSA now possess any such information?
Answer: No to both questions.
SECTION 1.A. (8)
Question: If the answer to (6) and (7) is yes, please describe the kind, amount and nature of the information, and the circumstances of its transfer. Answer: See answers to (6) and (7) above.