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CHURCH COMMITTEE REPORTS

IMPROPER SURVEILLANCE OF PRIVATE CITIZENS BY
THE MILITARY
CONTENTS
1. Introduction and Summary _
A. Traditional and legal restraints _
B. Summary of improper surveillance activities _
1. Collecting information about the political activities of
private citizens and private organizations in the late
1960S ~---------------
2. MoSntaittoersing private radio transmissions :'11 the United_
3. Investigations of private organizations considered
"threats" by the military _
4. Assisting law enforcement agencies in surveilling
private citizens and organizations _
C. Effect of 1971 departmental directive _
D. Issues presented _
E. Conduct and scope of investigation _
F. Organization of report _
II. The Collection of Information About the Political Activities of Private
Citizens and Private Organizations: 1965-1970 _
A. Legalauthorities _
B. Orpigriongsraamnd development of the Army's domestic surveillance_
1. Limited beginnings _
2. The Army's involvement intensifies _
C. The Army's domestic surveillance program -- _
D. Questionable activities on the part of Army agents _
1. The covert penetration of civilian groups _
2. Posing as newsmen/covert photography _
3. Harassment/disruptive conduct _
4. MaoirngtaeD~lazna~tteoonfs files on private citizens and private_
E. Termination of the Army's civil disturbance collection program_
III. M1o9n7it0oring Private Radio Transmissions in the United States: 1967_-
A. Legal authorities and restrictions _
1. Mission of the Army Security Agency _
2. Section 605 of the Communications Act of 1934 _
B. Origins of domestic radio monitoring by ASA _
C. Domestic radio monitoring by ASA: 1967-1970 _
1. The march on the Pentagon _
2. The King assassination riots _
3. The poor people's campaign in Washington, D.C _
4. The national political conventions of 1968 _
5. The Huey Newton trial _
6. Cafe Zipper ~ _
D. The termination of domestic radio intercepts _
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IV. InvAesctoignatitninuginCgipvrioligarnamGroups Considered "Threats" to the Military_;
A. Investigations of civilian groups within the United States _
1. Investigations undertaken prior to the 1971 directive.
2. Invdeirsetcigtiavteions of civilian groups after the 1971_
a. Antiwar group in San Diego, California _
b. Peace group to HanoL _
c. UnFdoerrcgeroBuansde newspaper near Travis Ai_r
d. Peace group in San Diego, California _
e. Antiwar group in Charleston, South Carolina_
f. WhCiaterolirnaacist group in Charleston, South_
g. Dissident group in Long Beach, California _
h. Serviceman's Counseling Center in San Diego_
i. AnCtiamroilliitnaary group in Charleston, South_
B. Investigations of civilian groups overseas _
1. Army operations in West Germany and West Berlm_
2. Navy operations in Japan _
V. Assisting Law Enforcement Agencies in Surveillance of Private
Citizens and Organizations _
A. Legal authority _
B. Nature of assistance _
1. Collection and exchange of information _
2. Transfer of money and equipment. _
3. Participation in law enforcement operations _
4. Participation in interagency intelligence projects _
VI. CurrAen. tCDuerpbainrgtmpeansttaalbRuessetsraints Upon Surveillance of Civilians __
1. Preparing for civil disturbances _
2. Monitoring domestic radio transmissions _
3. Investigating "threats" to the military _
4. Assisting law enforcement agencies _
B. Prev1e.ntSincgopseurveillance in the future __
2. Permitted exceptions _
a. Covert surveillance _
b. Overt surveillance _
c. Electronic surveillance _
d. Retention of files _
3. Implementation and enforcement _
4. Prospects for the future _
VlT. Current Statutory Restrictions Upon Military Surveillance _
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IMPROPER SURVEILLANCE OF PRIVATE CITIZENS
BY THE MILITARY
I. INTRODUCTION AND SUMMARY
The Department of Defense maintains agents and investigators
abroad and within the United States to gather foreign intelligence and
to perform a variety of investigative tasks.! This report describes how
these agents and investigators have been used in the past to gather
information on the political beliefs and activities of "private citizens"
2 in violation of their rights or in violation of the legal and traditional
restraints which separate the military and civilian realms. It
does not cover the monitoring of international communications by the
National Security Agency.3
A. Traditional awl Legal Restraints
The authors of the American Constitution sought to establish and
preserve a clear separation of the military from the civilian realms.
An express provision of this effect was suggested by one of the delegates
to the Constitutional Convention,· but it was not included in the
final version since the Founders considered separation assured by other
provisions, such as those which made the Armed Forces subordinate to
a popularly-elected President,5 and left it to a popularly~elected legislature
to "raise and support" them.6 As James Madison later wrote:
"The Union itself, which [the proposed Constitution] cements and
secures, destroys every pretext for a military establishment which
could be dangerous." 7
1 Within the United States, the Select Committee estimates that there are
approximately 5000 DOD personnel involved in the conduct of security clearance,
~riminal, and counterintelligence investigations. For a discussion of the organization
and activities of DOD foreign intelligence and investigative elements, see
the Select Committee's Foreign and Military Intelligence Report, Department of
Defense, pp. ~9.
• The term "private citizen," as used in this report, refers to persons and groups
of persons, who are neither military nor civilian employees of the Department of
Defense, nor employees of civilian contractors of the Department of Defense.
How the constitutional rights of this special group of citizens are infringed by
the intelligence activities of the Department is, however, a matter deserving of
congressional attention and the Select Committee, by this omission, does not intend
to discourage such an inquiry in the future.
• The use of military personnel to monitor international communications to
obtain information on civilians and civilian organizations is discussed in the
Select Committee's Report on National Security Agency Surveillance Affecting
Americans.
• Recommendation of Charles Pickney, submitted August 20, 1787, printed in
The Records of the FederaZ Convention Of 1787, ed. by Max Farrand (New Haven:
Yale University Press, 1966), Vol. 2, p. 340.
• Article II, Section 2, Constitution of the United States.
• Article I, Section (12), Constitution of the United States.
• James Madison, No. ,+1, Federalist Papers (New York: Mentor Books, 1961),
p.258.
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788
The Bill of Rights to the Constitution, adopted in 1791, established
additional restraints ap,I?licable to all government authority, including
the military, by forbiddmg any exercise of govermnental power which
infringes upon certain rights of the people,8 among them, the ri~ht to
privacy and the rights to freedom of speech, of the press, of relIgion,
of association, and the right to petition the government.9
Despite the separation of the military and civilian realms secured
by the Constitution and the guarantee of personal liberties found in
the Bill of Rights, Congress has enacted no statute which expressly
provides how the military may be used in the civilian community,
or more specifically, whether it is (>rohibited from investigating private
citizens and private organizatIOns. Congress did enact the Posse
Oomitatus Aot in 1878 10 which forbade using the Army to "execute the
law," but this was done to prevent federal marshals from commandeering
military troops to help enforce the law, and not to prohibit investigations
of civilians by the military.ll Apart from the P088e Oomitatus
Aot, only the Privacy Act of 1974 12 appears to serve as a restraint upon
military investigators, but even the impact of this statute is uncertain.13
It prohibits all federal agencies, includin~ the military, from maintaining
records which reflect "how any mdividual exercises rights
guaranteed by the First Amendment." 14 While the Act does not prohibit
investigations per 8e, its proscription against maintaining records
may, as a practical matter, inhibit them.
This report describes certain past investigative activities of the
military which may have exceeded these limitations. It also identifies
instances in which military investigators may have violated s'p'ooific
statutes because of the tactics employed in investigations of ciVIlians.
It does not attempt to evaluate the foreign intelligence and other investigativeactivities
of the Department of Defense in terms of their
efficiency or usefulness.
B. Summary ofImproper Surveillance Aotivities
After conducting an investigation of both the foreign and domestic
intelligence and investigative activities of the Department of Defense,
the Committee identified four types of surveillance, or investigative
activity, which have involved the collection of information on the activities
of private citizens and private organizations and which may
have violated the traditional and legal restraints mentioned above:
(1) the collection of information on the polit~cal activities of \lrivate
citizens and private organizations in the late 1960s; (2) momtoring
of domestic radio transmissions; (3) investigations of private organizations
which the military considered "threats"; and (4) assistance to
other agencies engaged in surveillance of civilian political activities.
In each case, the Committee attempted to focus upon those activities
which are improper in themselves, and those which are improper because
it is the military which is engaging in them.
• Amendments I-X, ~nstitutlonof'the United States.
• Amendment I, Constitution of the United States.
10 18 U.S.C. 1385.
11 For a brief history of the P088e Comitatu8 Act, see Edward S. Corwin, T'JI,e
Pre8ident: Office and POW€r8 1787-1957 (New York: New York University Press,
1957), pp.I30-138. See also the discussion at pp. 822-823.
12 Pub. L. 93-579.
11 The application of the Privacy Act of 1974 is discussed in detail at pp. 833834.
u l5 U.S.C. 552a(e) (7).
789
1. Oollecting Information about the Political Activities of Private
Citizens a1Ul Private Organizations in the Late 1960s.-The President
is authorized by statute to use the militia (the National Guard), the
Armed Forces, or both, to "suppress" domestic violence.1. Prior to
~he 19608, the President's exercise of this authority had been relatively
rnfrequent.
In the early 1960s, however, the Army and National Guard were
called upon with increasing frequency to control civil rights demonstrations,
prompting the Army to prepare for possible future
disturbances and to begin systematic collection of information concerning
civilians and organizations who might be involved.
Initially the Army relied, for the most part, on obtaining information
from local police authorities, the FBI, and the news media,
rather than assigning its own personnel to investigate. However, as
the frequency and severity of urban riots and antiwar demonstrations
grew in the late 1960s, the Justice Department and the White House
pressed the Army to obtain informatIOn on individuals and groups,
and the Army's resJ;l0nse was to direct its investigators to report on
civilian political actIvities throughout the country.
Elaborate collection plans were issued, calling for the collection
of information on the most trivial of political dissent within the
United States.16 As part of this collection program, massive
operations were undertaken by Army intelligence agents to penetrate
major protest demonstrations. In addition, political dissent was
routinely investigated and reported On in virtually every city within
the United States. These reports were circulated, moreover, to law
enforcement agencies at all levels of Government, and to other agencies
with internal security responsibility. In all, an estimated 100,000
individuals were the subjects of Army surveillance. The number of
organizations which were the subjects of an Army file was similarly
large, encompassing "virtually every group engaged in dissent in
the United States." 17
Techniques employed to carry out this surveillance included the
covert infiltration of private organizations by military agents at
demonstrations and meetings; Army agents posing as newsmen;
covert photography; and use of civilian informants.
The Department of Defense ended the nationwide collection program
as a matter of policy in 1971, after the program had been
exposed in the press, and on the eve of a congressIOnal investigation.
2. Monitoring Private Radio Transmissions in the United States.Section
605 of the Communications Act of 1934 prohibits anyone from
intercepting and publishing the content of a private radio transmission.
Despite this statutory prohibition the Army Security
Agency, primarily a foreign intelligence-gathering agency, moniu
10 U.S.C. 381-334.
.. One of these plans called for "the identification of all personalities Involved
or expected to become involved, in protest activities." It furthermore tasked
military investigators to provide "details concerning the transportation arrangements"
of such individuals as well as "detllils concernine: (their) housine:
facilities." United States Army Intelligence Command Collection Plan, April
23,1969.
11 Testimony of Rll lnh Stein. form"!' Arm.v intelligen<>e llnaly-st. Senate .Tlldi..,illry
Subcommittee on Constitutional Rights Hearings. "Federal Data Banks, Computers,
and the Bill of Rights," p. 264. See footnote 21, p. 792.
790
tored and recorded domestic radio transmissions of U.S. citizens on
six occasions in the late 1960s.
Some of the radio monitoring was done during demonstrations or
urban riots where Army troops had been committed. On occasion,
it was undertaken in advance of, or in the absence of, any troop
commitment.
After its radio monitoring activity had begun, the Army sou~ht
approval from the Federal Communications Commission. The FCC,
after receiving an opinion from the Attorney General, advised the
Army that such monitoring was illegal. Neve.rtheless, the Army continued
its domestic radio monitoring without informing the FCC until
1970, when the Department of Defense ordered the Army to disContinue
such monitoring.
3. Investigations of Private Organizations Oonsidered "Threats"
by the Military.-Although they are not expressly authorized by law,
each of the military services investigates civilian groups, both within
and without the United States, which it considers "threats" to its
personnel, installations, and operations.
In the late 1960s all of the services were engaged in monitoring
civilian antimilitary groups within the United States. This activity
was conducted concurrently with the civil disturbance collection effort
described above and continued after it stopped. Most of the information
gathered about these antimilitary groups was collected from law
enforcement agencies and the news media, but the services also quite
commonly inserted their own undercover agents and informants into
the groups.
Penetrations of groups which are hostile, or might be hostile, to the
military continues today in the United States, although it has been
greatly reduced. Overseas, military intelligence is more active, largely
because it does not have civilian law enforcement agencies to rely upon.
In West Germany and West Berlin, the Army has actively conducted
surveillance of activities of American citizens and groups of
American citizens whom it considered "threats" since World War II.
Until 1968, the authority to target such individuals and ~ouns for
surveillance rested solely with the commanders of occupying Amiy
forces, and authorized techniques included opening mail, wiretaps,
and covert penetrations. In 1968, the West German Government placed
restrictions on the use of mail opening and wiretaps. and forbade the
Army from employing such techniques any longer. The use of covert
penetmtions, however, was not affected by the new restrictions and
continued to be employed. Furthermore, the new restrictions did not
apply to West Berlin, where an Army commander governs the American
sector of the city as part of a special tripartite agreement with the
British and French. Here, mail opening and wiretaps continued to be
employed after 1968 against Americans and groups of Americans considered
to be "threats" to the military without the Army's having to
obtain the approval of the West Germ'an Government.
In Japan, the Navy has carried out similar operations in three cities
against groups of American civilians thought to pose "threats" to
the Navy, employing covert penetrations and informants, but not mail
opening or wiretapping.
791
"Threat" investigations are still conducted at present, but under
internal controls of the Department of Defense.
4. Assisting Law Enforcement Agencies in Surveilli'ng Private Oitizens
and Organizations.-The Posse Oomitatus Act (18 U.S.C. 1385)
prohibits the military from "executing the law." 18 Nevertheless, military
intelligence has frequently provided assistance to civilian law
enforcement agencies. In Chicago during the late 1960s, military
intelligence agents turned over their files on civilians and civilian
organizations to the Chicago police, were invited to participate in
police raids, and routinely exchanged intelligence reports with the
police. In Washington, D.C. Army intelligence participated in an
FBI raid in a civilian rooming house and provided funds for the
police department's intelligence division.
The military was also called upon by the Justice Department to
assist in analyzing intelligence information received during the 1972
national political conventions. Further, i,t joined other intelligence
agencies ill drafting the so-called Huston Plan in 1970, and later
participated in the Intelligence Evaluation Committee, an interdepartmental
committee established by the Justice Department to analyze
domestic intelligence information.1s'
O. Effect of 1M1 Departmental Directive
In March 1971, during congressional hearings on the Army's civil
disturbance collection program, the Department of Defense announced
the issuance of a new directive to govern the collection and retention of
information by the military on "unaffiliated" persons and organizations.
19
In general, the new directive prohibited, as a matter of policy, the
collection of any information whatsoever on "unaffiliated" persons and
organizations, except for limited "military" purposes. It also established
the policy that any information which was collected by the military
would be obtained through liaison with law enforcement agencies
rather than through military operatives. Finally, it required the destruction
of all current holdings of the department which were found
to violate the provisions of the directive.
This directive is discussed later in this report as it bears on issues
regarding possible legislative restraints upon future investigative activities
of the department.2o But an awareness of its existence and a
general understanding of its impact is crucial to the case studies which
follow. '
D. Issues Presented
Each of the four types of activity summarized above involve investigations
by military intelligence of the political activities of private citizens,
and thus, to the extent they survive today, threaten to violate the
traditional and legal restraints which govern the use of military forces
in the civilian community. This situation gives rise to two major ques-
18 The P088e ComitatU8 Act originally applied only to the "Army." It was later
amended to include the Air Force, and has been interpreted by the Department
of Defense as applying to all the military services.
18, See the Committee Report, "National Security, Civil LibertieJ'l, and the
Collection of Intelligence: A Report on the Huston Plan."
18 DOD Directive 5200.27.
,. See pp. 825-833.
792
tions: First, should these activities in the civilian community be permitted
at all ~ If so, should they be restrained to prevent their overstepping
traditional and legal bounds ~ Second, are the present DOD
directives sufficient for the task ~ Should Congress enact new
legislation ~
Beyond these basic questions is the matter of what the restraints
which govern these activities should be:
(1) Should the military be prohibited from collecting or maintaining
any information regarding "private citizens~" If not, where
should the line between permissible and impermissible information be
drawn¥
(2) Should the military be prohibited from using its own operatives
to collect information in the civilian community ~ Are there collection
techniques that might be authorized for some federal agencies (e.g.,
wiretaps) that should be denied to the military ~
Finally, there are issues of oversight and control:
(1) Should there be a special mechanism established to control and
oversee activities by the military within the civilian community ¥
(2) How should congressional oversight of this area be achieved ~
E. OoruiuotandSoope of Investigation .
The Committee's inquiry, as summarized above, is divided into
four parts. One recoWlizes at the outset that the first of these-the
Army's domestic surveillance pro~m of the late 1960s-has heretofore
been the subject of a congressional investigation.21 The Select
Committee determined, however, that it could not iWlore this largest
of military intelligence aibuses, even though its inquiry must necessarily
overlap the previous investigation in some respects. The Army
program of the late 1960s, besides being the worst intrusion that military
intelligence has ever made into the civilian community, resulted
in new departmental restrictions being drawn, and other intelligence
activities against American citizens being curtailed or eliminated.
Thus, current use of military intelligence agents in the civilian community
can not be fully understood without some knowledge of the
Army program and how it was curtailed.
The Select Committee inquiry does go well beyond the earlier
inquiries. In particular, it represents the first attempt to analyze the
origins and termination of the Army program. The Committee had
access to former Army intelligence officers, who were not permitted
to testify in the earlier investigations, and it had access to documents
not previously available to Congress.
• The Senate Judiciary Subcommittee on Constitutional Rights, chaired
by Senator Sam J. Ervin, Jr., held two series of hearings and published two
committee reports on the subject of military surveillance of civilians: 1) "Federal
Data Banks, Computers and the Bill of Rights," Hearings before the Subcommittee
on Constitutional RightR, Committee on the Judiciary. United States
Senate, 92nd Cong., 1st Sess. (1971) (cited hereinafter as 1971 Hearings);
2) "Military Surveillance," H{'arings before the Subcommittee on Constitutional
Rights, Committee on the Judiciary, U.S. Senate, 93rd Cong., 2d Sess.• (1974)
(cited hereinafter as 1971, Hearings) ; 3) "Army Surveil1ance of Civilians: A
Documentary Analysis." A 'Staff Report of the Subcommittee on Constitutional
RiA'bts. Committee on the Judicillry, United States Senate. 92nd Cong.• 1st Sel's.•
(1972) (cited her{'inafter as 197! Report) ; and 4) "MilitarySuTveillance of
Civilian Politics." A Report of the Subcommittee on Constitutional Rights. Committee
on the Judiciary, United States Senate, 93rd Cong., 1st Sess., (1973)
(cited hereinafter as 1978 Report).
793
After initial briefings from pertinent elements within the Department
of Defense, the Committee staff interviewed 35 past and present
employees of the Department, and 13 other individuals regarding
some aspect of this inquiry.
The investigation generally covered the period from 1967 through
1975, although some events of prior years are described to provide
historical background.
F. Organization of Report
Parts II through V of the following Report describe in detail the
activities which have been summarized above. In Parts VI and VII,
the issues posed above are considered. The effect of recent Departmental
restrictions and the effect of the Privacy Act of 1974 are given
particular consideration.
II. THE COLLECTION OF INFORMATION ABOUT THE POLITICAL ACTIvrrIES OF
PRIVATE CITIZENS AND PRIVATE ORGANIZATIONS: 1963-1970
A. Legal Authoritie8
There is no statute which authorizes military intelligence to collect
information on the political activities of private citizens and private
organizations, but the Army claimed in 1971 that it needed such information
in the late 1960s to enable it to prepare for situations in
which it was called upon to put down civil disturbances.22
Article IV, Section 4 of the United States Constitution provides
that "the United States shall ... protect each [State] ... against
domestic violence."
Congress first passed a statute to implement this constitutional
provision in 1795,23 and, although amended, its provisions remain virtually
intact today.24 In essence, the President is authorized to use the
militia of any state, or the Armed Forces, or both, to "suppress
insurrection." 25
The President has occasionally exercised this authority and called
out the National Guard or the Armed Forces to put down unrest or
enforce the law where such enforcement proves to be beyond the capability
of civil authorities. According to a 1922 study by the War
Department, the President exercised this authority thirty times between
1795 and 1922.26 In recent times, while commitment of federal
troops in the civilian community has been more frequent,28
an extraordinary exercise of executive authority.28
There is no explicit authority in sections 331-334 of title 10, United
States Code, for the National Guard, or the Armed Forces, to make
any "preparations" for future deployments upon order of the President.
In 1971, however, the Department of Defense argued before
II Testimony of Robert F. Froehlke, Assistant Secretary of Defense (Administration),
1971 Hearing8, p. 376.
"1 Stat. 424 (1795) .
.. 10 U.S.C. 331-334.
06 10 U.S.C. 331.
.. Results of this study were quoted in the testimony of Robert F. Froehlke,
1971 Hearing8, pp. 376--377.
~ Froehlke,1971 Hearings, pp. 377-378.
lIS DOD General Coumel J. Fred Buzhardt told Senator Ervin that only "drastic
circumstances" necessitate the deployment of federal troops. See 1971 Hearing8,
p. 412.
794
Congress that such authority could be implied, and would justify thl'
collection of information on persons and organizations in the civilian
community:
In order to carry out the President's order (under the statute)
and protect the persons and property in an area of civil
disturbance with the greatest effectiveness, military commanders
must know all that can be learned about the area
and its inhabitants. Such a task obviously cannot be performed
between the time the President issues his order and
the time the military is expected to be on the scene. Information
gathering on persons or incidents which may give rise
to a civil disturbance and thus commitment of Federal troops
must necessarily be on a continuing basis. Such is required
by sections 331, 332, and 333 of title 10 of the United States
Code, since Congress certainly did not intend that the President
utilize an ineffective Federal force.29
The Senate Subcommittee on Constitutional Rights subsequently
rejected this assertion, however, stating that it was "unwilling to imply
the authority to conduct political surveillance of civilians from the
role assigned by statute to the military in the event of civil disturbance."
30 It cited the traditional separation of the military and civilian
realms as a reason for refusing to imply such authority,3! and it qnestioned
the use of military rather than civilian authorities to gather
information about pending civil disturbances.32 Finally, it observed
that even if the military had implied authority to collect some information
on areas of potential civil disturbance, this authority did not
include the collection of information on how citizens exercise their
First Amendment rights,33
B. Oriqim and Development of the Army's Domestic Surveillance
Program
Army intelligence began collecting information on private citizens
and organizations in the early 1960s as part of furnishing information
to military commanders whose units were dispatched to control racial
situations in the South. In the late 1960s, however, as the volume of
civil disturbance and protest demonstrations grew, the Army came
under increasing pressure from civilian authorities to provide information
on persons and organizations involved in domestic dissent.
It responded by sending over 1200 of its investigators into civilian
communities to report on all vestiges of political activity.
(1) Limited Beginnings.-Despite the lack of clear legal authority
to "prepare" for deployments in civil disturbance situations, the Army
in the early 1960s initiated formal efforts to plan for its troops being
committed in future civil disturbances. Prompted by a rash of troop
commitments to control racial situations and enforce court orders in
20 Froeblke, 1971 Hearing8, pp. 884--885.
eo 1978 Report, p. 106.
III Ibid.
.. Ibid., p. 108.
• Ibid., p. 109.
795
the South,S4 the Joint Chiefs of Staff in 1963 designated the Chief of
Staff of the Army as its "Executive Agent" for civil disturbance matters,
and the Continental Army Command was made responsible for
the selection and deployment of Army troops in such situations.85
Formal contingency plans were drawn.
It was at this time that Army intelligence began collecting information
on individuals and organizations, without any express authorization,
as part of its overall mission to support military commanders
with information regarding possible deployments in civil
disturbances.s6 The Army's collection, however, was ordinarily confined
during this period to those areas where civil disturbances were
likely or had already taken place, and information on civilians was
ordinarily obtained through liaison with law enforcement and use
of public media.37 Any covert use of military intelligence agents within
the civilian community still had to have the approval of the Department
of the Army,SS
In the following three years, the number of riots and disorders within
the United States increased dramatically. In 1965, there were four
major riots, including Watts, California; in 1966, there were 21 major
riots and disorders; and in 1967, there were 83.39 These had necessitated
the deployment of National Guard forces 36 times during this
period.40
The Army, while being deployed only once during the period,41 was
nevertheless affected by events. Frequently, Army troo~s had been
alerted, and occasionally, they had been "pre-positioned" in the event
they were called upon.42 Army' intelligence stepped up its own collection
efforts in support of mIlitary commanders still relied, for the
most part, on their contacts with local police and the public media,43
Army investigators in the United States were still spending most of
their time doing security clearance investigations for Army
employees,44
(2) The Army's Involvement Intensifies.-In 1967, the character
of the investigative program began to change. In .July of that year, the
Army was placed on alert for riot duty in Newark, New Jersey, and
later in the month was actually deployed for eight days in Detroit,
Michigan.45 It was the most extensive use of Army troops since 1962.
.. In 1957, federal forces were used in connection with the integration of Central
High School in Little Rock, Arkansas. In 1962, 20,000 Army troops were
sent to Oxford, Mississippi, in connection with the integration of the University
of Mississippi. In 1963, federal troops were dispatched to Tuscaloosa and HuntB~
ville, Alabama, to enforce federal court orders. See 1971 Hearings, pp. 377, 1291.
.. Froehlke.1971 Hearing.~, p. 377.
"Ibid., p. 381. This information was also confirmed by former Army Chief of
Staff, General H'lrold K. Johnson. Staff summaly of Gen. Harold K. Johnson
interview, 11/18/75.
lIT Froehlke, 1971 Hearings, p. 381.
.. Ibid.
.. Ibid., p. 377.
.. Ibid.
41 Ibid., p. 378.
.. In early 1965, the Army Intelli~nce Command was apparently preparing a
daily civil disturbance intelligence summary. The Secretary of the Army ordered
it di~continued in September 1965, however. Froehlke, 1971 Hearings, p. 832.
.. Ibid.
"Ibid.
.. Ibid.• p. 378.
59-984 0 - 76 - 51
796
In the post-mortems which followed the Detroit riots, the lack of
adequate intellig-ence prior to moving into the city was a sore point.
But the focus of the criticism was the lack of "physical intelligence"
about the area in which troops were being committed. Cyrus Vance,
sent by the President to make an aIter-action assessment, specifically
cited the need for this type of information:
In order to overcome the initial unfamiliarity of the Federal
troops with the area of operations, it would be desirable if
the several continental armies were tasked with reconnoitering
the major cities of the United States in which it appears possible
that riots may occur. Folders could then be prepared for
those cities listing bivouac areas and possible headquarters
locations, and providing police data, and other information
needed to make an intelligence assessment of the optimum
employment of federal troops when committed.46
The Army reacted to Vance's recommendation by appointing a special
task force in the fall of 1967 to study the civil disturbance situation
and make recommendations as to what its role should be.41
In the meantime, the Army was preparing for a unique sort of civil
disorder, one announced in advance and directed against the military
establishment. The so-called March on the Pentagon was scheduled
for late October 1967.
For the first time in its history,48 the Army authorized a massive
covert intelligence operation to be undertaken in connection with a
civilian demonstration. In all, 130 Army intelligence agents were used
in connection with the demonstration.49 Some were used to penetrate
protest groups comin~ to Washington: some were used to penetrate
the groups in Washington who were planning the March; and still
others were used to penetrate and report on the line of march.50 Army
agents, moreover, took still and motion pictures of the crowds, and
secretly monitored amateur radio bands to learn of the demonstrators'
plans.61
Even after this large covert operation, the Army apparently was
still relying primarily on civilian authorities and the media for information
on civilian "dissenters." 52 In a memorandum to the Undersecretary
of the Army from the Army Assistant Chief of Staff for
Intelligence in late 1967, the Under Secretary was told:
Army intelligence is not engaged in any concerted investigative
effort to determine the routes of domestic discontent or
.. Final Report of Cyrus R. Vance, Special ABsistant to the Secretary of Defense,
Concerning the Detroit Riots, July 28 through August 2, 1967; Department
of Defense Press Release No. 856-67, 9/12/67, p. 01.
"Froehlke,1971 Hearings, p. 379.
.. See Memorandum. Department of Army, "U.S. Army Intelligence Role in
Civil Di!'turbances." 1971 Hearings, p. 1292.
.. Froehlke, 1971 Hearings, p, 440.
.. Ibid, p. 378.
11 IMd. Sl'e pp. 808-809.
.. It should be noted that Army Assistant Chief of Staft' for Intelligence. Major
Genl'ral William Yarhorough, in Od~bf>r 1967 requested that the Nlltional Security
Agency provide the Army with any information it might have. or obtain,
regarding the foreign connections of domestic political groups. See Select Committee
report "National Security Agency Surveillance Affecting Americans."
797
the channels it will follow. The quantity and quality of third
agency reports is sufficient to allow proper and timely analysis
of the domestic situation so that commanders in the field will
be properly informed at all times.53
But if the Army had refrained from widespread use of its own
operatives, it was nonetheless increasingly relied on by the White
House and the Justice Department to provide information on civil
unrest. In a meeting at the 'Vhite House on .Tanuary 10, 1968, for
example, Attorney General Ramsey Clark told those present 54 that
"every resource" must be used in the domestic intelligence effort and
he criticized the Army for not being more selective in the reports that
it was sending to the Justice Department.55 According to former Army
Chief of Staff Harold K. Johnson, this was but one of several meetings
at the White House where the Army was urged to take a greater role III
the civil disturbance collection effort.56
The Army was looked to, first, because it had approximately 1200
agents scattered across the country who were young and could easily
mix with dissident young groups of all races.57 Second, the Army
was virtually the only agency apart from the FBI which had an independent
teletype network nationwide which could be used to transmit
data on civil unrest.58 The FBI had such a network but it was used for
other purposes, and could not handle the voluminous amount of data
generated by civilian political protests.
The pressure on the Army to produce information was rapidly
mounting in the winter of 1967, and it began to have its effect.
The Army task force, appointed to study the Army's role in civil
disturbances, recommended among other thin~, that "continuous
counterintelligence investigations are required to obtain factual information
on the participation of subversive personalities, groups or
organizations and their influence on urban populations to cause civil
disturbances." 59 It also recommended that the Army develop new
criteria to apply to the collection of domestic intelligence which would
"serve to indicate potential areas of civil disturbance." 60
Chief of Staff Harold K. Johnson approved these recommendations
in late November 1967, and directed that It plan be prepared
.. Quoted in Memorandum for Record from Army General Counsel Robert E;
Jordan III, for the Under Secretary of the Armv, undated, 1974 Hearingll, p. 288.
.. Attending the meeting were White House aides Joseph Califano and Matthew
Nimitz, Deputy Secretary of Defense Paul Nitze. Drputy Attorney General Warren
Christopher, and Army General Counsel Robert Jordan.
.. Memorandum for the Under Secretary of the Army, Subject: Civil Disturbane"
Planning Meeting in Mr. Califano's Office, 1/10/68.
.. .Tohnson (staff summary). 11/1~/7!,).
'" See staff summary of General William Blakefield interview, 7/11/75; staff
summary of General William Yarborough (ret.) interview, 7/18/75; staff summary
of Col. Arthur Halligan (ret.) interview, 7/15/75; staff summary of Col.
Millard Daughtery interview, 11/20/75; staff summary of General Harold K.
John!'lon interview, 11/18/75.
.. Ibid.
III Memorandum from Army Generlll Couns!'l Rohert E. Jordan III, for the
Secretary of the Army. Subject: Review of Civil Disturbance Intelligence History.
undated, 1974 Hearings, p. 289. The term "subversive" was not defined.
.. Ibid.
798
formally directing the Army to collect civil disturbance information
on a nationwide scale.61
O. The Army's Domestic Surveillance Program
The collection requirements were set out in an annex to the Department
of Army Civil Disturbance Plan, promulgated on February 1,
1968.62 The plan identified as "dissident elements" the "civil rights
movement" and the "anti-Vietnam/anti-draft movements," and stated
that they were "supporting the stated objectives of foreign elements
which are detrimental to the USA." 63 It furthermore directed Army
commands to provide information on the "cause of civil disturbance
and names of instigators and group participants," as well as
information on the "patterns, techniques, and capabilities of subversive
elements in cover and decention efforts in civil disturbance
situations." 64 The terms "civil disturbance," "instigators," "group
participants," and "subversive elements" were not defined.
While this new collection plan was being implemented across the
country, the Army was in the midst of planning its second concerted
domestic operation in preparation fora civilian demonstration-the
so-called Washington Spring Project. Martin Luther'King, Jr. had
announced his intention of bringing the nation's poor to Washinfrton
in April 1968 in a massive protest demonstration. Antiwar groups had
also indicated their intent to use the occasion to protest the war.
The Washington Spring Project did not proceed as scheduled, however,
because Dr. King was assassinated in Memphis on April 4th. Extensive
rioting broke out in numerous cities across the country causing
simultaneous commitments of Army troops in Washington. D.C., Baltimore,
and Chicago. Other Army troops were placed on alert in Pittsburgh
and Kansas City.65
This had never happened before, and it had a profound effect upon
the Pentagon. In a meeting with the Secretary of Defense on April 10,
1968, it was agreed that the Army would set up a permanent "task
force" to plan for civil disturbances, and that it would operate upon
the theory that the Army may have to deploy as many as 10,000
soldiers in 25 cities simultaneously.66
Three days later. the Under Secretary of the Army directed the
Chief of Staff to establish the Directorate of Civil Disturbance
Planning and Operations (DCDPO) which he instructed to "maintain
an around-the-clock civil disturbance operations center to monitor
incipient and on-going disorders ... and develop intelligence reporting
procedures to provide information on civil disturbances occurring
or imminent." 67
... See Memorandum for Record from Milton R Hyman. Office of the General
Counsel, to the Army General Counsel. Subject: Army Civil Disturbance Intelligence
Activities. 1/23/71. 1971, Hearings, p. 302.
"1971 Hearitt.gs, pp. 1119-1122.
... Ibid., pp. 1120-112l.
.. Ibid., pp. 1121-1122.
.. New York Times, 4/9/68, p. 36.
M Memorandum for Record from Secretary. General Staff, MG Elias C. Townsend.
SUbject: Debrief of SECDEF Meeting, 1100 hrs., 4/10/68, 1971 Hearings,
pp. 1281-1282.
• f Memorandum from David E. McGiffert. Under Secretary of the Army. for the
Chief of Staff. U.S. Army, Subject: Civil Disturbances, 4/13/68, 1971 Hearings,
pp. 1283-1284.
799
Two other changes were brought on by the King assassination riots.
The Secretary of the Anny was formally designated Executive Agent
for the DOD on civil disturbance matters,68 and it was decided that the
intelligence requirements of the Army Civil Disturbance Plan of
February 1 were inadequate for the Army's purposes.
A new, more detailed, collective plan, classified CONFIDENTIAL,
was thus issued on May 2, 1968.69 The new plan expanded the criteria
to be used for collecting information and directed that information on
political activities be gathered in cities where there was a "potential"
for civil disorder.70 Former Assistant Secretary of Defense Froehlke
told the Ervin subcommittee that demands of the collection plan for
infonnation were sweeping:
The requirements of the pbn were bath comprehensive and
detailed, and, in the light of experience, substantially beyond
the capability of military intelligence to collect. They reflected
the all-encompassing and uninhibited demand for infonnation
directed at the Department of Army.... So comprehensive
were the requirements levied in the civil disturbance
information collection plan that any category of infonnation
related even remotely to people or organizations active in a
community in which the potential for a riot or disorder was
present, would fall within their scope. Information was sought
on organizations by name or by general characterization.
Requirements for infonnation were even levied which required
collection on activities and potential activities of the
public media, including newspapers and television and radio
stations.n
The May 2nd Collection Plan was distributed to the White House,
the Department of Justice, the Federal Bureau of Investigation, and
the Department of Defense, among others.72 While it is not clear
whether officials in any of these agencies actually read the plan, it is
clear that they had begun to press the Anny by this time for infonnation
on indiVIduals and organizations involved in domestic dissent.7~
While the Army was routinely disseminating its intelligence reports
to the FBI, it also frequently received verbal tasking from high-ranking
officials on the outside for information on particular incidents or
individuals.a Their d~mands were insistent, and were conveyed down
the Army chain of command with a similar degree of intensity.75
According to former Army intelligence. officials, this led to a situation
where restraints on collection in the civilian community were ignored.
76 Lower-ranking intelligence officers considered the fact that
os DOD Directive 3025.12,6/8/68,1971 Hearings, p. 1272.
eo 1971 Hearings, pp.1123-1138.
'·1971 Hearings, pp.1123-1138.
n Froeblke te!<timony, 1971 Hearings, p. 384.
ft 1971 Hearings, p. 1137.
•a Froehlke tf'stimony, 1971 Hrarirl,fls, p. 388. This statement WAS also
confirmed in the staff interviews with General Harold K. Johnson; Gen. William
Blakefield; MG William Yarborough (ret.), Robert E. Jordan III; Col. Arthur
Halli~n (ret.), and Col. Millard Daugherty (ret.)
.. Ibid. .
.. Blakefield (staff summary). 7/11/75; Halligan (staff summary). 7/15/75;
Dangberty (staff summary). 11/20/75.
"'Ibid.
800
demands were coming from their superiors as sufficient authority to
obtain it by whatever means necessary.77 Secondly, it led Army intelligence
agents in the field to collect as much information as possible so
they would not be caught short when demands for timely and comprehensive
information came down through channels.18
Thus, there de\ eloped, as former Assistant Secretary of Defense
Robert Froehlke described it, "a practical inconsistency between the
level of demand for information imposed and the methods of collection
authorized." 19
Army agents were dispersed into civilian communities across the
country and tasked to report on any vestige of political dissent.
D. Questionable Activities on the Part of Army Agents
About 1500 Army intelligence agents were engaged in monitoring
civilian protests in 1968.80 These agents routinely monitored civilian
political activities in the communities to which they were assigned,
and occasionally were used as part of concerted intelligence operations
undertaken by the Army during the major political protests of the
late 19608. The following discussion thus encompasses aetivities undertaken
both under "routine" circumstances and during major protest
demonstrations.
(1) The Oovert Penetration of Oivilian Group8.-Army agents covertly
penetrated the organizational structure of civilian political
groups, attended their meetings, and participated in their private and
public activities. They also were inserted into public demonstrations of
all dimension!:'. A sampling of these activities follows:
-Army agents penetrated the Poor Peoples' March to Washington
in April, 1968, as well as the subsequent encampment which became
known as "Resurrection City;" 81 .
-Army agents were also inserted into groups coming from Seattle,
Washington to the Poor Peoples' Campaign; 82
-Army agents infiltrated the National Mobilization Committee; 83
-The Army monitored protests of a welfare mothers organization
in Milwaukee, Wisconsin; 84
-Army agents infiltrated a coalition of church youth groups in
Colorado Springs, Colorado; 85
-Army agents were routinely used to penetrate antiwar groups in
Chicago; 86
'I'Ilbld. Retired intelligence Colonel Millard F. Daugoberty pointed out that the
approval authority for operations in the civilian community was usually the same
authority making demands for information. Daugherty (staff summary),
11/20/75.
'IS Ibid.
.. FrOf>hlk~. 1971 Hearings, p. &.'*1.
80 See 1973 Report, p. 10.
St Ralph M. Stein, formpr Armv agent, testimony, 1971 Hearingtt, p. 253:
ChriRtophpr H. Pyle testimony. 1971 Hearinfls.p. 185.
.. Department of Army Memorandum, "U.S. Army Intelligence Role in Civil
Disturbances," 1971 Hearings, p.l293.
... Pyle, 1971 Hearin,gs, p. 201.
.. Rtein. 1971 Hearings. p. 273.
.. Oliver A. Pierce testimony, 1971 Hearingfl, p. 306.
.. John O'Brien, former Army intelligence agent, testimony, 1971, Hearings,
p.101.
801
-Army agents attended a Halloween party for elementary school
children in Washington, D.C., where they suspected a local "dissident"
might be present; 87
-Army agents posed as students to monitor classes in "Black Studies"
at New York University, where James Farmer, former head of
the Congress on Racial Equality, was teaching; 88
-58 Army agents were inserted into the demonstrations which took
place in Chicago during the Democratic National Convention of
1968; 89
-Army agents attended the October 1969 and November 1969 Moratorium
marches in various locations around the country; 90
-Army agents attended a conference of priests in Washington, D.C.,
which had convened to discuss birth control measures; 91
-Army agents were routinely assigned to cover speeches made at
the major universities in New York City from 1968 to 1970; 92
-Army agents attended meetings of a sanitation workers' union in
Atlanta, Georgia, in 1968; 93
-An Army agent infiltrated the Southern Christian Leadership
Conference in 1968; 9' .
-Army agents infiltrated a Yippie commune in Washington, D.C.,
prior to the 1969 Inauguration; 95
-Army agents wttended an antiwar vigil at the Chapel of
Colorado State University; 96
-Army agents monitored the weekend activities of college fraternities
in White, South Dakota, which allegedly had been responsible for
previous damage to town property; 97
-An Army agent attended an antiwar meeting at St. Thomas Episcopal
Church in Washington, D.C. ; 98 and
-107 Army agents monitored the protest activities surrounding the
Presidential inauguration in Washin~on,in January 1969.99
(2) Posing a8 Newsmen/Oovert Pliotography.-Army intelligence
ag-ents frequently posed as newsmen in order to photograph and interVIew
"dissident" personalities. Photographing participants in political
activities itself became a widely used intelligence technique.
During the Democratic National Convention of 1968, the Army, for
the first time, sent undercover agents, disguised as television news reporters
from a nonexistent television news company, to videotape
Interviews with leaders of the demonstrations.10o This technique was
.., Quentin I,. Burgess, former Army intelligence agent, testimony, 1971
Hearings, p. 285.
88 Joseph J. Levin, Jr., forlllf'r Army intelligence agelllt, testimony, 1971
Hearings, p. 290.
SI Froehlke,1971 Hearings, p. 440.
'" Pyle, 1971 Heal'ings, pp. 204-205; Peirce, 1971 IIearings, p. 305.
'" Burgess, 1971 Hearings, p. 286.
"'levin, 1971 Hearings, p. 293.
... Stein, 1971 Hearings, p. 274.
M Ibid.
.. Pyle, t971 Hearings, p. 201.
.. Laurence F. Lane, former Army intelligence agent, testimony, 1971
Hearings, p. 314.
P7 ~tein, 1971 Hearings, p. 255.
OR Burgess, 1971 Hearings, p. 285.
• Froehlke, 1971 Hearings, p. 440.
100 Froehlke, 1971 Hearings, p. 387. See also, Pyle, 1971 Hearings, p. 154.
802
repeated during subsequent demonstrations in Atlanta, Washington,
D.C., San Francisco, and Baltimore.lOl
A representative of the Reporter's Committee on Freedom of the
Press also stated in congressional testimony that Army agents, posing
as newsmen, interviewed H. Rap Brown and Stokely Carmichael in
New York in 1967 ; interviewed staff of the Southern Christian Leadership
Conference in 1968; and covered the 1969 Inaugural parade.102
The Army began using photographers to take still and motion pictures
of the participants in political demonstrations in 1967 during
the March on the Pentagon.lOS This rapidly became an accepted collection
technique for Army agents across the country.l04
(3) Harassment/Disruptive Conduct.-Army agents generally refrained
from aggressive activities against civilian protestors, but occasionally
they engaged in conduct designed to harass or confuse such
groups. Typically, this sort of activity was carried out at the "grass
roots" level by lower-level military intelligence agents, who neither
sought nor received authorization for such activity. The Committee
found no evidence of any concerted program of harassment, analogous
to the COINTELPRO operations of the FBVOG Nonetheless, some of
the techniques employed by Army agents were similar.
A former intelligence agent stated that he had posed as a bus driver
during a demonstration in Chicago, collected the bus tickets of departing
demonstrators, and then sent them off to find a nonexistent bus.l06
This same agent also recalled having posed as a parade marshal during
the 1969 Inaugural, and, as such, provided misinformation to demonstrators.
lO?
Another recalled making harassing telephone calls and sending
orders of fried chicken to the offices of the Chicago 7 defense team.lOS
Another admitted having torn notices of rallies and demonstrations
from school bulletin boards/09 and still another recalled agents having
heckled speakers in order to cause a disruption. 110
Another former agent stated in a newspaper account that he was
given blank postcards which had been confiscated by the FBI from
the headquarters of a protest group in Washington, D.C. The cards
were to 00 sent in by Washington residents who were willing to house
demonstrators during the inaugural demonstrations. The agent stated
101 Lane,1971 Hearings, p. 314.
101 Fred P. Graham, testimony, "Freedom of the Press," Hearings before the
Subcommittee on Constitutional Rights, Committee on the Judiciary, United
States Senate, 92nd Cong., 1st Sess. (1971), p. 260.
... Memorandum, Department of Army, "U.S. ATmy Intelligence Role in Civil
Disturbances." 1971 Hearings. p. 1292.
1lH Pyle, 1971 Hearings, p. 155 (photographing demonstrations at the University
ot Minnesota); O'Brien, 1971 Hearingl/, p. 113 (photographing dissidents in
Chicago) ; Stein,1971 Hearings, p. 273 (photographing demonstrators in Seattle) ;
Peirce, 1971 Hearings, p. 807 (photographin~ demonstrators in Colorado Springs).
,.. For a tull description of the FBI's COINTELPRO operations, see the Select
Committee report on this subject.
,oo Richard Norusis, former Army intelligence agent, testimony, 6/23/75.
10'1 Ibid.
tOO O'Brien testimony, 1971 Hearing.,. p. 114. Also. "Government Spied On
ChiC1llto 7; U.S. AttemptR in '69. '70 Told," Chicaoo Tribull('. 11/13/73.
'n00. SSttaatteemmeenntt ooft fCoornmneerr AHremnyryi,nftoelrlmigeernAcermagyenint,teClaUs~peenrc,eWIIylroenmt.ing, Field Office
ot the 113th Military Intelligence Group (anonymous). in files of Select Committee.
803
that he filled out the cards with the names of fictitious persons and sent
them in.11i
The Select Committee also investigated the relationship of military
intelligence with a right-wing terrorist group in Chicago known as
the Legion of Justice. Former members of the terrorist group told the
COmIIllttee that from 1968 until 1970 "military intelligence" had directed
and helped finance their activities against left-wing groups in
Chicago.112 They also alleged that the Army had supplied tear ~as,
grenades, and bugging devices to be used against left-wing groups.l1S
Finally, they suggested that Army intelligenc~ had received a ~m
and various documents stolen by the LegIon from left-wmg
organizations.114
The Committee's investigation did not substantiate any of these al·
legations.ll5 It did, however, show that Army intelligence agents had
been in contact with the leader of the LelPon on several occasions in
regard to obtaining information on left-wmg groUps.ll6 Army agents
inSIsted, however, that they did not realize that their source was a
leader of the terrorist group, nor that the information he was offering
the Anny had been stolen.H7
(4) Mainte1ULnce of Files on Private Oitizens and Private Or~anizations.-
All of the information collected by Army agents on civilIan
political activity was stored in "scores" 118 of data banks throughout
the United States, some of which the Army had computerized.l19 The
reports were routinely fed to the FBI, the Navy, and the Air Force,
and were occasionally circulated to the Central Intelligence Agency
and the Defense Intelligence Agency.12o
In all, the Army probably mamtained files on at least 100,000
Americans from 1967 until 1970.1.21 Among them were: Dr. Martin
Luther King, Jr., Whitney Young, Julius Hobson, Julian Bond, Arlo
Guthrie, Joan Baez, Major General Edwin Walker, Jesse Jackson,
Walter Fauntroy, Dr. Benjamin Spock~ Rev. William Sloane Coffin,
Congressman Abner Mikva, Senator Adlai Stevenson III,122 as well as
U1 See "Break-In by FBI Alleged Before 1969 Inauguration," New York Times,
5/31/73, pp. 1,6; "FBI Was Given Key for Search in 1969," New York Time8,
6/1/13, p.14.
The Select Cvmmittee was unable to locate the source of this news report;
hOwever, FBI records made available to the Committee indicate that such searches
were made in the Washington D.C. area in advance of the presidential
inauguration.
11JI Sta:tr summaries of Stephen Sedlacko and Tom Stewart interviews, 5/28/75.
ill Ibid.
110 Ibid.
11lI The allegations that Army intelligence furnished the Legion with bugging
deVices and tear gas grenades appears improbable since these items were not
in the inventory of Army intelligence units. Approval of fund expenditures also
had to come from intelligence group headquarters, and there were no records
of such expenditures being approved. The remainder of the allegations were not
sU'p'PQrted by testimony received from Army witnesses.
Richard Norusis, 6/23/75; Thomas Filkins testimony, 10/21/75; and Robert
Liesik, 6/27/75, former members of the 113th Military Intelligence Group.
n. Norusis, 6/23/75, and Filkins, 10/21/75.
11lI 1979 Report, p. 4.
no The Army maintained computerized files at Fort Holabird, Fort Monroe,
Fort Hood, and the Pentagon. See 1979 Report, pp. 59-83.
uo Froehlke, 1971 Hearings, p. 423.
121197Z Report, p. 57.
1JlI Stein, 1971 Hearing8, p. 266.
804
"clergymen, teachers, journalists, editors, attorneys, industrialists, a
laborer, a construction worker, railroad engineers, a postal clerk, a
taxi driver, a chiropractor, a doctor, a chemist, an economist, a historian,
a playwright, an accountant -an entertainer, professors, a radio
announcer, business executives, and authors" 1.23 who became subjects
of Army files simply because of their participation in political protests
of one sort or another.
In addition, one witness told the ErV'in subcommittee thwt "it was no
exaggeration to state that (the Army's files) covered virtually every
group engaged in dissent in the United States." 124 Cited as examples
were the American Civil Liberties Union. the Nat-ional Association for
the Advancement of Colored People, the 'Ku Klux Klan, the Congress
on RacJial Equalitv, the Urban League, the Women's Strike for Peace,
the American Friends Service Commit/tee, the Citizen's Coordinating
Committee for Civil Liberties, the Southern Christian Leadership
Conference Ramparts, The Natimuil Review, Anti-Defamation League
of B'nai B'rith, National Committee for a Sane Nuclear Policy, the
John Biroh SocieJty, Young Americans for Freedom, Clergy and Laymen
Concerned About the War, Business Executives Move to End the
War in Vietnam, and ,the National Organization for 'Vomen, among
others.125
E. Termi'lULtion 01 the Army's Oivil Disturbance Oolleetion Program
The Army did not decide to terminate its domestic collection program
until the summer of 1970, aftedt had been exposed in the press
and Congress had '8JlllOunced its intentions to invesbigate. There had,
nevertheless, been reservations within the Army regarding the scope
of its domestic effort as early as the fall of 1968.
The first indication tha.t anyone at the Department of Defense had
qualms about the Army's domestic program came in Sepltember 1968,
when Deputy Secretary of Defense Paul Nitze disapproved an Army
request for 167 additional spaces for Army intelligence It#5ents citing
"reservations regarding the extent of Army involvement III domestic
intelligence adtivities." 126
Three months later Army Under Secretary David McGiffert also
expressed concern that the Army's domestic collection program might
not be "worth the effort," and expressed his desire that the "civil disturbance
collection effort be more sharply focused on essential requirements
and the mission be more precisely delineated.121
This concern apparently led McGiffert in February 1969 to attempt
to curtail the Army's program. In a memorandum to the Vice Chief
of Staff, he expressed concern that the Army' was, in furtherance of
the civil disturbance mission, collecting detaIled information on persons,
organizations, and movements. Citing expediency rather than
principle, he stated that "our limited assets should not be expended in
developing such detailed information on these matters as part of the
U11197S Reporl, p. 57.
UI Stein, 1971 Hearings, p. 264.
UII Ibid.
us Quoted in Memorandum from Army General Counsel Robert E. Jordan, for
the Secretary of the Army. Subject: Review of Civil Disturbance Intelligence
History, 197~ Hearings, p. 293. (Cited hereinafter as Jordan memo).
127 Froehlke, 1971 Hearings, p. 393.
805
process of assigning priorities to particular metropolitan areas." 128
He expressed the opinion that such information, to the extent it was
necessary, could be gathered from civilian law enforcement agencies.
The memorandum also required that he be apprised on a quarterly
basis of all covert and overt collection activities.
The Under Secretary's memorandum met with stiff resistance from
the Army staff and was not fully implemented.l29 The Under Secretary
did not press his demands, in part because he was about to leave, and
in part because the Army General Counsel had initiated negotiations
with the Department of Justice to reach an agreement which would
relieve the Army of its domestic intelligence-gathering role.lao However,
the agreement which eventually resulted from these discussionsthe
Interdepartmental Action Plan on Civil Disturbances-left the
domestic role of Army intelligence as ambiguous as before.l3l Nevertheless,
the initiative of the General Counsel had served to forestall
the implementation of McGiffert's memorandum until his successor
had taken office,and could be prevailed upon to continue the Army's
collection activities.
McGiffert's successor, Thaddeus R. Beal, did nonetheless retain
the requirement that the Army's collection activities be reported to
him on a quarterly basis. In the first of these renorts, filed on April 15,
1969, the Army indicated that 35 percent of its 3219 intelligoence reports
were based on operations conducted by Army ag-ents.182 This figure
caused some alarm at the Department of Army level,133 but did not
engender any formal attempts to limit such operations.
It was only in ,January uno, when a former Army intelligence officer,
Christopher H. Pyle, wrote an article for the W(J)JhingtOlJtMO'nthly
exposing the extent of the Army's dompstic program, that serious efforts
to curb the Army's domestic activities 'Were undertaken.134 Pyle's
article drew substantial attention in the press, and two congressional
committees in the spring of 1970 announced their intentions to hold
hearings on the matter.las
In response to the growing public pressure, the Army on June 9,
1970, rescinded its May 2, 1968 collection plan and issued an order
stating that:
Under no circumstances will the Army acquire, report,
process, or store civil disturbance information on civilian individuals
or organizations whose activities cannot, in a reaus
M('morandum from David E. McGiffert. Under Secretary of the Army, for
the Yice Chief of Staff, Subject: Army IntelUg('nce Mission and Requirements
Related to Civil Disturbances, 2/5/69, 1971 Hearings, p. 1139.
1JIII See Memorandum from the DCDPO to the Army General Counsel, Subject:
Army Intellill'ence Mission and Requirements Related to Civil Disturbances,
3/4169,1971 Hearings, pp. 1289-1292.
130 Jordan memo,1974 Hearings, p. 296.
m The final version of the plan stated that "raw intelligence data pertaining
to civil disturbances will be aequired from such sources of the Government as
may be available." See 1974 HeariJngs, pp. 346-353.
181 Jordan memo, 1974 Hearings, p. 298.
Dll Ibid.
... Christopher H. Pyle, "CONUS IntelUlrence: The Army Watches Civilian
Politics," WaJlhington Monthly (January 1970), pp. 4-16.
.. Senate Subcommittee on Conmitutional Rights and the House Armed Services
Committee.
806
sonably direct manner, be related to a distinct threat of civil
disturbance exceeding the law enforcement capabilities of
local and State authorities.136
The matter did not end there, however. Congressional hearings were
still in the offing,137 and in December, NBC News reported that the
Army had had files on Illinois Senator Adlai Stevenson, III and Congressman
Abner Mikva.138
These disclosures brought on renewed criticism which led Secretary
of Defense Melvin R. Laird on December 23, 1970, to direct that new
regulations be proposed which would ensure that "these [intelligence
activities] be conducted in a manner which recognizes and preserves
individual human rights." 139
On March 1, 1971, the day the Senate was to begin hearings on the
Army surveillance program, DOD formally issued the new regulation
called for by Secretary Laird.1
{Q The new directive in general prohibited
military personnel from collecting information on "unaffiliated"
persons and organizations, except where "essential" to the military
mission. It also required that all information which violated the
new directive, and was currently being held by the military, must be
destroyed. While as a practical matter implementation of the directive
did not occur immediately,Hl the Army's nationwide collection effort
against civilians had officially come to an end.
III. MONITORING PRIVATE RADIO TRANSMISSIONS IN THE UNITED STATES:
1967-1970
During the late 19608, when the Army was being called upon to
control civil disturbances, an element of the Armv, the Army Security
Agency (ASA) , normally used to intercept international communications
for foreign intelligence purposes, was used to monitor radio
transmissions in the United States. At times it was authorized not
only to monitor radio transmission, but to "jam" radio broadcasts
or transmit false information over the air, if such techniques w(',re
thought necessary.
At first, ASA conducted its monitoring activity in support of Army
troops committed in civil disturbances. Later, however, ASA mom-
,.. Letter from Robert E. Lynch, Acting Adjutant General of the Army, to
subordinate commands, Subject: Collection, Reporting, Processing, and Storage
of Civil Disturbance Information, 6/9/70, 1971 Hearing8, pp. 1099-1102.
ur Although the House committee had conducted its own investigation, it had
decided against holdin~ public hearin~. The Senate subcommittee, while cancelling
hearings seheduled for October 1970, announced its intention of seheduling
them in early 1971.
,.. NBC News, First Tuesday, 12/1/70.
110 1971 HearinfJ8, p. 1299.
148 DOD Directive 5200.27, dated Ma,rch 1, 1971, SUbject: The Acquisition of
Information Concerning Persons and Organizations Not Affiliated with the Department
of Defense. The provisions of this directive are discussed in detail at
pp. 825--833.
HI. Several penetrations of civilian groups, begun 'before the directive, continued
after it was issued, Qn the grounds that exceptions WQuid later be sougbt
under the terms of the directive. Also, it required months for the Army and other
services to dispose of old files being held in violation of the directive.
807
tored radio communications in situations where Army troops had
not been deployed, and were not expected to be. Indeed, on two occasions,
ASA ordered its units, in violation of standing instructions, to
conduct general searches of the radio spectrum without regard to the
source or subject matter of the transmissions. ASA did not report
these incidents to the Army, even when specifically asked to do so as
part of the Army's preparations for the Ervin subcommittee hearings
in 1971.
In this report, the domestic use of the Army Security Agency is
treated separately from the Army's civil disturbance collection program
for several reasons. First, ASA is an agency whose primary mission
is to gather foreign intelligence. In this respect, it differs from
the other Army collectors in the field in the late 1960s, who were there
primarily to conduct security clearance investigations. Second, ASA
has unique capabilities for surveillance that other Army investigators
do not possess. The fact that these capabilities were turned inward
upon private citizens is uniquely ominous. Finally,this type of surveillance
activity is bound by particular legal restraints which do not
apply to other types of investIgative activity.
A. Legal Authoritie8 and Re8tricti01t8
(1) Mission of the Army Security Agency.-ASA carries out communications
intercepts for both national and tactical intelligence purposes.
H2 It also develops techniques of electronic warfare--"jammmg"
and "deceptive transmitting"-to support tactical Army operations.H3
While it does maintain operational units within the United States-in
both mobile and fixed-station configura.tions--the domestic mission
of these units is limited primarily to support of Army training exercises
and to determine the vulnerability of Army tactical communications
to interception by hostile intelligence agents.l44
(2) Section 605 of the 1934 Oommunications Act Prohibit8 Monitoring.-
Section 605 of the 1934 Communications Act provides, in
pertinent part :
No person not bein~ authorized by the sender shall intercept
any radio commUnIcation and divulge or publish the exist~
nce, contents, sUbsta;nce1 purport,. effect, or meaning of such
mtercepted commUnICatIOn to any person.H5
The statute thus makes the interception and publication of radio
transmissions a crime. While anyone with the appropriate radio
receiver may intercept the radio communication of another, Congress
has decided that the interceptor must not publish it. The law thus
assures persons using radios to communicate that their transmissions
will not be intercepted and divulged.
B. Origins of Dome8tic Radio Monitoring by ASA
Prior to 1963, there had been no explicit Army policy which had
either authorized or prohibited domestic use of the ASA. In 1963,
however, the Army was forced to decide the issue when it received
1<2 Army Regulation 10-22(C).
m Ibid.
•" Ibid.
"'47 U.S.C; 605.
808
requests for ASA support from two Army task forces assigned to deal
with civil disturbances brewing in Alabama and Mississippi. The
commander of one of these task forces requested on June 7, 1963,
that ASA units be used to monitor police, taxi, amateur, and citizens
band radio, and that ASA be authorized to "jam" transmissions
emanating from a Ku Klux Klan net in Tuscaloosa, Alabama, if such
action were found desirable.146
But the Department of Army said "no." In a message to the task
force commander, it prohibited the domestic use of ASA resources:
United States Army Security Agency· organizations or
elements thereof are prohibited from engaging in USASAtype
operational roles (e.g., monitoring or jamming of civil
and amateur telecommunications) in support of U.S. Army
forces committed to maintain or enforce law and order during
civil disturbances and disorders within the states and territories
of the United States of America.w
This policy remained in effect for the next four years, until the
pressure of events caused the Army to reverse its position.
O. Dome8tW Radio Monitoring by ASA: 1967-1970
(1) The March on the Pentagon.-In October 1967, preparations
were underway for the so-called March on the Pentagon, scheduled
for late in the month. As part of this planning, a "high level" decision
was made in the Army to 'allow ASA units to support Army units
which would be used to control the demonstration.14s Accordingly, on
October 14, 1967, a message went from the Army to ASA expressly
rescinding the 1963 ban, and directing that ASA participate in "Task
Force Washington," the Army force created to handle the demonstration!
49 The Arm;r directed not only that ASA monitor civilian communications
durmg the March, but that it have the capability to
"jam" radio transmissions and to undertake "deceptive transmitting,"
in the event that either became necessary.150
1" Message from Commanding General, Third Army, to the Commanding General,
Continental Army Command, 6/7/63.
1<, Message from the Department of Army to subordinate commands, 6/11/67,
Subject: Monitoring Civil and Amateur Telecommunications during Civil Disturbances
in U.S.
148 None of the documents examined by the staff identified the particular individual
who approved the ASA deployment in connection with the March on
tbe Pentagon. In a report made by the Army Inspector General to the Secretary
of the Army, 1/3/72, Subject: Report of Investigation into the Failure to Provide
Mr. Froehlke with Full and Accurate Information Prior to his Appearance
Before the Ervin Subcommittee, the Inspector General simply refers to this
decision as having been made "at a high level." (p. 25.)
This investigation of the Army Inspector General was undertaken because
ASA had failed to provide Assistant Secretary of Defense Robert F. Froehlke,
the DOD witness at the Ervin subcommittee hearings, with information regarding
its orders, issued without Army approval, to conduct general searches
of the radio spectrum in connection with the Republican National Convention
of 1968 and the Huey Newton trial in September 1968. See pp. 812-813.
,. Message from the Department of Army to the Army Security Agency,
10/14/67, Subject: Use of ASA's Resources in Civil Disturbances. I" Ibid.
809
According to an after-action report later filed by ASA after the
March, this was the first time that ASA resources had ever been used
in support of the Army domestically.15l
During the weekend of the March, ASA units monitored citizens
band, police band, taxi band, and amateur radio bands from a total
of 36 listening posts.152 Twenty-three of these were located at the
Pentagon; nine at ASA headquarters in Arlington, Virginia; and four
at an ASA fixed station facility near Warrenton, Virginia.153 The
after-action report of ASA also recites the fact that while it did have
the capability to "jam" and undertake "deceptive transmitting" during
the March, none was actually carried out.154
Despite its participation in the "March," ASA's potential usefulness
in civil disorders was not widely recognized, even in the Army. The
Army's Civil Disturbance Collection Plan of February 1, 1968, contained
no mention of ASA's role in such .activities. Moreover, the message
of October 14, 1967, which had rescinded the 1963 ban, had been
sent only to ASA.15O Presumably, the rest of the Army was not on
official notice of ASA's potential support capability.
On March 31, 1968, official notice was provided in a classified message
sent to all domestic commands of the Army.156 The message stated
that ASA would participate in the Army's Civil Disturbance C~llection
Plan and could be used to monitor domestic communications lina-conduct
jamming and deception in support of Army forces committed
in civil disorders and disturbances. All such operations were required
to have the approval of the Army Chief of Staff. It also provided that
ASA personnel were to be "disguised" either in civilian clothes or as
members of other military units. None were permitted to be used as
liaison with civilian authorities. The 1963 ban was expressly rescinded.
(2) The King A88assination Riot8.-Four days after the messa~
was sent authorizing use of ASA units in civil disturbances, Dr. Martm
Luther King, ,Tr. was assassinated in Memphis, and rioting erupted in
Washington, D.C. On April 5, even though Army forces had not
officially been brought on the scene, ASA units were directed by the
Army to begin monitoring civilian radio transmissions as part of the
riot control operation.107 They were instructed to report directly to
the Army Operations Center until an Army Task Force had been
officially committed. On April 9, in anticipation of further demonstrations
in Atlanta, the site of the King funeral, ASA elements were
again requested to conduct radio monitoring operations, in advance
of any troop commitment.ls8
181 Annex A (Intelligence Summary) to USASA Task Force Washington After
Action Report, Army Security AgencY,1/5/68, p. 4.
1.62 Letter from Col. Robert R. Brust, Chief of Staff, Army Security Agency, to
Robert E. Jordan, III, Army General Counsel, SUbject: Radio Monitoring Activity,
12/15/70 (cited hereinafter as Brust Letter).
"'" Memorandum from John D. Kelley, Office of the Deputy Chief of Sta1T, Security,
to the Army Chief of Staff, Subject: ASA Radio Monitoring, 2/3/71, in
Select Committee files. (Cited hereinafter as Kelley memorandum).
lIS< 47 U.S.C. 605.
1Q5 See footnote 149.
111 Department of Army messa~e to subordinate commands, 3/31/68, Subject:
Use of USASA Resources in Civil Disturbances.
1BT Department of Army message to ASA, 4/5/68, Subject: Use of Resources.
111 Department of Army message to ASA, 4/9/68.
810
In all, the monitoring lasted from April 5 until April 17, 1968.
ASA units at the Arlington, Virginia, headquarters, at the Treasury
Building in Washington, and at a fixed station facility near Warrenton,
Virginia, participated in the 'V"ashington area monitoring.159
ASA units at Fort McPherson, Georgia, performed similar tasks for
the Atlanta area. Citizens band, police band, taxi band, military band,
and amateur bands were monitored.160 On April 23, after the moni·
toring had ceased, ASA sent a message to the National Security
Agency, informing it that ASA had participated in the domestic
operations surrounding the King death. The message further advised:
"Similar tasking by DA expected in future whenever Federal troops
committed in civil disturbance operations." 161 This is the only indication
found by the Committee staff that NSA had ever been officially
apprised of the domestic activities of ASA.
After the King funeral, on April 29, 1968, persons from the Office
of the Army Assistant Chief of Staff for Intelligence met with representatives
of the FCC for the purpose of obtaining the FCC's
approval of future Army monitoring broadcasts during civil disturbances.
162
The FCC asked that the Army put its request in writing.16s
(3) The Poor People's Oampaign in Washington, D.O.-Despite its
failure to achieve any immediate approval from the FCC, the Army
proceeded with plans to monitor civilian radio communications as part
of its surveillance of the Poor People's March and Campai'!ll in Washington,
D.C. ASA began radio monitoring on May 8, 1968, although
no formal authorization of these activities appears to have come from
the Army until May 21, 1968.164 In any case, some form of radio monitoring
took place from May 8 until June 26,1968.165 Two mobile vans
were located for this purpose at the 13th Police Precinct in Washington.
166 Other locations included ASA headQuarters, the Treasury
Building, and (from .Tune 6 until June 26) the ASA fixed station
facility near Warrenton, Virginia.167
It was not until after the Poor People's Campaign that the Army
renewed its initiative to the FCC in It .June 25, 1968, letter from Actjn~
Assistant Chief of Staff MG Wesley Franklin to Rosel Hyde. the FCC
Chairman.168 The letter suggested, first of all, that the FCC itself
monitor civilian radio broadcasts in these situations to obtain information
useful to the Army. Alternatively, it was suggested that the Army
be allowed to monitor on its own.
,.. Kelley memorandum, 2/3/71.
110 Brust letter, 12/15/70.
101 Army Security Agency message to the National Security Agency, 4/23/68,
Subject: Civil Disturbance Tasking.
... See Memorandum for Record, Army Assistant Chief of Staff for Intelligence,
6/10/68, Subject: Possible Violations of Federal Communications Act in
Connection with Civil Disturbances.
1.. Ibid.
1" Department of Army message to ASA, 5/21/68, Subject: USASA Support to
DA OPLAN Washington Spring Project.
1'" Brust letter, 12/15/70.
101 Kelley memorandum, 2/3/71.
107 Ibid.
.. Letter from MG Wesley C. Franklin, Acting Assistant Chief of Staff for
Intelligence, Department of Army, to Rosel H. Hyde, Chairman, Federal Communications
Commission, 6/25/68.
$11
The FCC referred the Army's letter to the Department of Justice
for 'a legal opinion.169 However, by August 6, when the Republican
National Convention opened in Miami Beach, the FCC had taken no
formal action.
(4) The Nati0114l Political Conventions of 1968.-Senior officers at
ASA ,vere unaware of the initiative to the FCC being taken by the
Army Assistant Chief of Staff for Intelligence.l1O Thus, the fact that
the FCC was preparing a response to the Army's query with respect
to its domestic radio monitoring had no bearing on ASA deciding,
on its own, to resume radio monitoring in connection with the Republican
National Convention in Miami Beach.
On August 6, 1968, without the required approval of the Army
Chief of Staff, ASA ordered its fixed stations in Virginia and Florida
to begin general searches of the amateur radio bands to determine if
there were dissident elements which were planning to disrupt the GOP
Convention.l7l It ordered the monitoring to continue through August
10.172
ASA had no reports from its fixed stations regarding the convention,
and thus cannot state with certainty that such monitoring was, in
fact, carried out.173 The incident is significant, however, because (1) it
illustrates that such monitoring could be ordered, and was ordered,
without the required clearance of the Department of Army; 114 and
(2) it involved "general searches"-scanning of incoming radio signals
without regard for their source or subject matter.
In any case, while the Miami Beach convention had occasioned relatively
little disruption, Army intelligence predicted that the forthcoming
Democratic National Convention, scheduled to begin on
August 22 in Chicago, would occasion violent confrontations between
protestors and civilian authorities.
Prompted by fears that Army troops might have to be committed,
and that the Army Security Agency might once again be deployed,
representatives of the Army Assistant Chief of Staff for Intelligence
again pressed the FCC for a response to the earlier inquiry regarding
domestic radio monitoring. At a meeting held on August 15, 1968, the
FCC gave its reply: such monitoring would be illegal under section
605 of the Communications Act of 1934.115 FCC representatives told
the Army that the matter had been brought up with the Attorney
General and that he had disapproved the Army reqUesty6 The Fcb
agreed, however, to submit a written reply to the Army stating that
HI Staff summary of Hilburt Slosberg, former Deputy General Counsel, Federal
Communications Commission, interview, 6/17/75.
"0 Staff summary of MG Charles Denholm (ret.) interview, 6/16/75; and staff
summary of Col. John J. McFadden, ASA, interview 6/23/75.
171 Message from ASA to selected field stations, 8/6/68. Subject: Tasking in
Support of DA Civil Disturbance Operations.
1"" Ibid.
1'7S See footnote 148.
"4 The Department of the Almy did not learn of the incident until February
1971. (Kelley memorandum, 2/3/71.)
1711 Memorandum for Record, Army Assistant Chief of Staff for Intelligence,
8/16/68, Subject: Possible Violations of Federal Communications Act in Connection
with Civil Disturbances. For provisions of section 605 see page 807.
1'" This was confirmed by Sol Lindenbaum, Executive A!lsistant to the Attorney
General. Staff summary of Sol Lindenbaum interview, p. 11.
69-984 0 - 76 - 52
812
it could not "provide a positive answer" to the Army's proposal, rather
than a letter which branded the proposal as "illegal." 177
The FCC's formal reply to the Army was sent on August 19, 1968.178
By this time however, the pressures on the Department of Army to
authorize deployments of ASA in Chicago had grown. On August
12, 1968, the ASA had itself requl'sted Army approval to send
radio monitoring teams to Chicago.179 This was followed Iby a request
from the Army Commander at Fort Sheridan, on the outskirts of
Chicago, asking for ASA support.180 He anticipated his own troops
being called upon.
Thus, on August 21, in obvious disregard of the FCC's opinion
that civil disturbance radio monitoring by the Army would be illegal,
the Army ordered ASA to send momtoring teams to Chicago from
Fort Hood, Texas, and Fort Bragg, North Carolina.181 These teams
were positioned at three locations in the downtown area and, while
no Army troops were actually called out during the demonstrations,
these teams did monitor citizens, police, and commercial bands from
August 22 to August 31.182
(5) The Huey Newton TTial.-Less than two weeks after the close
of the Democratic Convention in Chicago, B1ack Panther leader Huey
Newton wafl brought to trial in Alameda, California. Again ASA,
without the approval of the Army Chief of Staff, ordered as required
by the message of March 31, 1968 its fixed stations near Warrenton,
Virginia, and Monterrey, California, to monitor domestic radio communioations
to determine if there were any groups aroulld the country
which might be planning demonstrations in support of Newton.18S The
order, in this case, called for a "general search" of all amateur radio
bands from September 6 through September 10, 1968.184 This meant
that ASA elements were given free reign to listen in on radio transmissions
across the country, without regard to point of origin or subject
matter.
11'1 Army ACSI Memorandum for the Record, 8/16/68.
I'll Letter hom Max D. Paglin, Executive Director, FCC, to Major General
Wesley C. Franklin, Deputy Chief of Staff for Intelligence, 8/19/68.
170 Message from ABA to Department of Army, 8/12/68, Subject: Force Generation
and Closure Times.
... Message from Fifth Army to the Continental Army Command, 8/16/68, Subject:
USASA Support.
181 Message from Department of Army to Army Security Agency, 8/21/68,
Subject: USASA Support.
1lD Brust letter, 12/15/70.
Press allegations were made two years afterward that during this period
ASA agents had bugged the campaign headquarters of Democratic Presidential
candidate Eugene McCarthy. (See "Military Agents Had Secret Role at 1968
Conventions," Washington Evening Star, 12/2/70.) An ASA after-action report of
the Chicago operation made no mention of the bugging, but it did mention that
the most productive of the radio nets being monitored was a radio net set up
between medical aid stations serving demonstrators in the Loop area. The net
control station, ASA learned, had been located in a room of the Conrad Hilton
Hotel, Wlhich was assigned to a member of the MCCarthy campaign staff. (See
Army Security Agoency Re[I<Jrt. 7/29/69, Subject: TJSASA Sup[I<Jrt to DA Civil
Distrubance in Chicago, Illinois.) This may have been the source of the press
story.
183 Message from ASA to subordinate field stations, 9/6/68, Subject: Operation
Rancher III.
JIM Ibid.
813
ASA could produce no record which showed what monitoring, if
any, actually took place.185 The order to monitor is, nevertheless, significant
since it was given without authorization,and in a situation
where the use of Army troops was not contemplated.
(6) Cafc Zippcr.-There is no record of any further domestic
radio monitoring by ASA until March 1969. On March 17, 1969,
during a civil disturbance exercise at Fort Hood, Texas, ASA units,
who were monitoring radio transmissions of the participating forces
to determine their vulnerability, intercepted transmissions of unidentified
persons using citizens band radios who appeared to be
monitoring the conduct of the exercise. ASA requested Army permission
to continue monitoring the net-designated Cafe Zipper
Net 2-and permission was given.18G
It was subsequently decided by ASA thrut the net was a nationwide
net probably comprised of members of the Citizens Band Radio
Opemtors of America. In a message from the Department of Army
to the Fort Hood commander, the net was cryptically described as
being "devoted to the illegal use of citizens band for hobby purposes.
lot is not believed to represent a threat to the United States Army." 187
This conclusion was reached on April 21, 1969, over a month after the
monitoring had begun.
The significance of this incident is that the monitoring was not
undertaken for any authorized purpose. Although there was never
any indication that a civil disturbance would develop, requiring the
use of Army tl'OOpS, the monitoring continued for more than a month.
D. The Termination of Dmnestu: Radio Intercepts
While there were no further domestic intercepts actually undertaken
after "CAFE ZIPPER," the Army continued to debate ASA's
support role in civil disturbance operations. The Army's civil disturbance
office proposed in the fall of 1969 that the ASA role be
formalized in regulation.188 This prompted the Office of the Army
Assistant Chief of Staff for Intelligence (ACSI) (which had been
told a year earlier that such activity was illegal) to ask for another
legal opinion from the Army Judge Advocate General.189 On October
2, 1969, Army JAG responded that such activity was probably
illega1.t90 Relying on this opinion, the ACSI "nonconcurred" in the
proposal of the civil disturbance office.19l
"'" The investigation of the Army Inspector General included searches of ASA
files and interviews with ASA operational personnel. The investigation did not
uncover any documentary evidence, however, showing the results of the "general
search" which had been ordered in connection with the Newton trial.
,.. Message from Department of Army to ASA, 4/10/69, Subject: Cafe Zipper.
"7 Message from Department of Army to Continental Army Command, 4/22/69,
SUbject: Cafe Zipper.
188 Memorandum fo.r the Record, Army Assistant Chief of Staff for Intelligence,
10/13/69, Subject: USASA Employment of Civil Disturbance Operations.
... Disposition Form, Assistant Chief of Stall for Intelligence, to the Army
Judge Advocate General, 9/15/69, Subject: USASA Employment of Civil Disturbance
Operations.
... Letter from William M. Nichols. Colonel, Judge Advocate General Corps,
to the Army Chief of Staff for Intelligence, 10/2/67, Subject: USASA Employment
in Civil Disturbance Operations.
'01 DiRpositian Form, Army Assistllnt Chief of Staff for Intelligoence to the
Directorate of Civil Disturbance Plans and Operations, 10/15/69, Subject:
USASA Employment of Civil Disturbance Operations.
814
Shortly thereafter, Army ACSI sent a memorandum to the Army
General Counsel recommending that the Army seek legislative authority
to engage in future radio monitoring.192 In the same memorandum,
however, it was stated that previous ASA operations had
been of little value:
No compromise of any covert operation has occurred to date.
However, it should be pointed out that the intelligence obtained
was of mar~inal value. Existing laws prohibit monitoring
civilian radIO transmissions and for the USASA to
continue covert monitoring could prove harmful to the United
States Army if compromised. Continued use of the USASA
in this effort does not appear justified considering the risks
involved.19B
In spite of the Army ACSI's apparent decision in October 1969
that further domestic use of ASA was not justified, he took no formal
action to put -an end to such use. ASA itself sought guidance
from ACSI regarding its domestic support role on two occasions in
1970/94 but ACSI responses were ambiguous. On December 1, 1970,
for example, the Army told ASA that while it would no longer have
a formal support role in civil disturbances, "in the event intelligence
estimates of civil disturbance threats change to indicate a requirement
for ASA support in civil disturbances operations, ASA will again
be asked to provide support." 195
In fact, as was the case with the Army's civil disturbance collection
program, ASA domestic intercepts were not formally terminated
until they were exposed in the press. On December 1, 1970, NBC News
reported that ASA units had been used to monitor civilian radio
broadcasts during the 1968 Democratic National Convention.19s This
led the Army, on December 10, 1970, to rescind the March 31, 1968
message which had authorized the use of ASA resources in support
of civil disturbance operations.197
No subsequent authorization has been issued.
IV. INVESTIGATING CIVILIAN GROUPS CONSIDERED "THREATS" TO THE MILITARY:
A CONTINUING' PROGRAM
There is no express statutory authority for the military to investigate
persons or groups whom the military considers as "threats." The
services cite only the general authority of the National Security Act
of 1947 which authorizes each service secretary to undertake those
functions "necessary or appropriate for the training, operations, adtal
Memorandum from Army Assistant Chief of Sta1'l' for Intelligence to the
Army General Counsel, Subject: United States Army Security Agency (USASA)
Covert Activities in Civil Disturbance Control Operations (undated) .
... Ibid.
1M Message from ASA to Department of Army, 11/28/69, Subject: Status of
USASA Support to DA Civil Disturbance Control Operations. Message from
ASA to Department of Army, 11/30/70, Subject: USASA Support to DA Civil
Disturbance Control Operations.
... Message from Department of Amy to MIA, 12/1/70, Subject: USASA
SUDllOrt to DA Ci,i1 Disturblln<'e Control Operations.
... NBC News, First Tuesday, 12/1/70.
", Mpmorandum for Record, Army Assistant Chief of Sta1'l' for Intelligence,
12/11/70, Subject: Meeting with General Counsel.
815
ministration, logistical support and maintenance, welfare, preparedness,
and effectiveness of (their particular service) ." 198
Each of the military departments has trll,ditionally maintained that
the services required such authority in order to defend themselves.199
Their argument has been that within the United States the FBI does
not provide sufficient information for this purpose, and, outside the
United States, there is no law enforcement agency upon which they
can rely at all for such information.2°O
The restrictions, imposed by the DOD in 1971 upon the collection of
information on "unaffiliated" persons and groups, expressly excepted
the collection of information on "threats" from its general prohibition..
201 But the 1971 restrictions do not define what a "threat" is, apart
from listing examples such as "subversion of the loyalty, discipline, or
morale: of Department of Defense military or civilian personnel,"
which lend themselves to broad interpretations.202
A. In?Jestigations of Oivilian Ormlps Within the United States
(1) Investigations Undertaken Prior to the 1971 Direetirve.-In
the late 1960s and early 1970s military investigators from each of the
three services conducted investigations and maintained files on civilian
groups whose activities were directed against the military. The
Army reported. to Congress that it "maintained files" on eleven such
civilian groups during 1969 and 1970..203 Furthermore fourteen military
groups (designated as "Resistance in the Army"-RITA) were
subjects of Army investigations.204
Of particular interest to all the services were offpost coffeehouses,
operated by these civilian groups, and "underground" newspapers,
published by the same groups. Typically, both were designed to attract
military personnel. The primary means of obtaining information on
both the coffeehouses and the underground newspapers was to penetrate
them with either a military intelligence agent or a military informant,
who would report back on the group's activities. These
reports were typically shared with the FBI and local law enforcement
agencies.
Again, Army representatives told Congress that the Army had conducted
"investigations" of 17 such coffeehouses,205 and "maintwined
'""10 U.S.C. 3012 (authority for the Secretary of the Army).
See 10 U.S.C. 5031 and 10 U.S.C. 8012 for comparable provisions for the Secretary
of the Navy and Secretary of the Air Force, respectively.
,.. Testimony of David O. Cooke, Deputy Assistant Secretary of Defense (Comptroller),
1974 Hearings, p. 108.
lIOO Ibid., pp. 106, 122.
lI01 DOD Directive 5200.27, paragraph IV (A) .
... That part of the OOD Directive which permits the investigation of civilian
groups considered by the military as "threats" is discussed in detail at pp. 827828.
203 "Department of Defense Appropriations for FY 71," Hearings before a
Subcommittep of the Committee on Appropriations. House of Representatiyes,
91st Cong., 2nd Sess. (1970), Pt. III, p. 163.
The extent to which the Army was still maintaining files and conducting surveillance
activities against civilians came in the course of testimony regarding
Army expenditures for intelligence.
..,. Ibid.
... Ibid., p. 161. These included the Fun, Travel and Adventure Coffee House
near Ft. Knox, Ky. ; Sergeant Brown's Memorial Necktie near Ft. Devens, Mass. ;
Open Your Eyes near Ft. Eustis, Va.; Shelter Half near Ft. Lewis, Wash.; and
the Oleo Strut, near Ft. Hood, Texas.
816
files" on 53 "underground" newspapers 206 during 1969 and 1970; but
that as of March 1970, the number of coffeehouses, as well as the
number of "underground" newspapers, was "drastically declining." 2(07
(2) Investigations of Oivilian Groups After the 1971 Directive.As
mentioned above, in March 1971, an internal directive was issued
which genemlly limited the military's collection of information about
private groups and individuals. It allowed for the collection of information
on "threats," however, and it permitted the military to penetrate
covertly civilian groups so long as such pene.trations wereapproved
by a special DOD-level board-the Defense Investigative Review
Council (DIRC) .208 The directive set no standards, however,
. upon which the DIRC would base its decision.209
Since the date of the directive, nine requests have been made by the
milit'ury services (none of which were made by the Army) for DIRC
approval of covert penetrations directed ag-ainst civilIan groups.
Summaries of these requests follow.21O
(a) Antiwar GrQUp in San Diego, Oalifornia.-On March 25, 1971,
Navy Secretary John Warner requested DIRC approval for three
ongoing penetrations of civilian groups being carried out by agents
of the Naval Investigative Service (NIS). On May 24, 1971, he
amended the request by asking for permission to continue only one of
the three.
This entailed the penetration of an antiwar organization in San
Diego whOse membership was predominantly comprised of military
personnel. NIS reported that it had several sources within the group,
including one in the "inner circle" of the group's headquarters. DIRe
was also informed that the FBI had declined to conduct its own penetrllition,
but had been informed of the NIS operation and its plans
to continue.
DIRC approved the request on M'ay 24, 1971. In November 1971. it
revalidated the penetration ~ the request olthe Navy.
On June 30, 1972, the Navy terminated the operation on its own
initiative. It reported to DIRC that it had succeeded in identifying
189 military personnel who were members or had some contact with
the group (NIS had obtained a copy of the membership list) , and had
obtained extensive inform~tion on its financial and political connections.
NIS also indicated that it had filed a total of twenty-one reports
on the group, all of which had been distributed to the FBI, DIA, the
Air Force, and the Army. The operation terminated because 'the group
had disbanded.
(b) Peace Group to Hanoi.-The Air Force had recruited an antiwar
activist who was scheduled to go to Hanoi as palt of a. pellice group
to report on the conditions of prisoners-of-war in North Vietnam.
DIRC approval was sought since the operation involved the penetration
of a civilian group.
200 Ibid.
207 Ibid., p. 163.
.... DOD Directive 5200.27, para. V(E).
200 The deficiency in the DOD Directive is discussed in detail at pp. 828-833. It
should be noted, however, that the DIRC has issued instructions to guide the individual
services in submitting their requests for approval of covert penetrations.
Presumably, these same standards would govern the DIRC's decision.
210 All of the following summaries are the product of staff review of DIRC frIes.
817
DIRe gave ,its approval on September 24,1971, but the Air Force
source did not make the contemplated trip to North Vietnam,and no
information was obtained.
(c) Undergr(Y/Jnd New8paper Near TraviB Air F(Yf'ce Baae.-On
October 1,1971, Air Force Secretary John McLucas requested DIRe
~rmissionto penetrate the staff of an underground newspaper which
was published near Travis Air Force Base in California. He stated
thwt the newspaper had encouraged insubordination by Air Force personnel,
and that a penetration was necessary to determine whether
there was any conscious effort to disrupt Air Force activities or damage
Air Force property. DIRC approved the request on October 6,
1971.
The operation lasted until October 1972. DIRC was informed that
the Air Force Office of Special Investigations had not succeeded in
planting a source on the newspaper staff, but that it had identified
fifty Air Force personnel and fifteen civilians who were active in the
newspaper's operations. No evidence of any conscious effort to damage
Air Force property or disrupt Air Force activities was found.
(d) Peace Group in San Diego, Oalifomia.-On May 30, 1972, Navy
Under Secretary Frank Sanders requested DIRC approval for the
penetration of a second antiwar group in San Diego, California. Members
of the group were thought to have been instrumental in protesting
the deployment of certain ships to South Vietnam. DIRe was informed
that both the FBI and local police had declined to place a
source in the group.
DIRC approved the operation on June 5, 1972. A year later, NIS
filed a progress report and requested revalidation of the operation. It
cited the fact that the operation had succeeded in identifying military
personnel who were members of the group, and had learned of "discussions"
regarding plans to sabotage U.S. ships,211 to encourage insubordination
within the Navy, and to reveal military secrets. NIS also
stated that it had received warnings of public demonstrations against
the war as a result of the penetration. The DIRC revalidated the penetration.
It continued until May 1974, when the group no longer focused
upon military problems.
(e) Antiwar (}roup in Oharleston, South 0 arolina.-Dn October 20,
1972, the Navy requested DIRC approval to penetrate an antiwar
group in Charleston, South Carolina. It cited FBI reports which
showed the group planned to protest the departure of certain ships to
South Vietnam, and was contemplating acts of sabotage against a
Navy vessel. NIS reported that the FBI already had a source within
the group, but that the source did not provide sufficient information
regarding military personnel and military targets. DIRC approved
the penetration.
The operation lasted until May 1973, when it was determined that
the group no longer represented a significant threat to the Navy. NIS
reported that as a result of the penetration it had learned of one incident
in which Navy personnel had attempted to damage the boilers
on a U.S. vessel.
(f) White Racist Group in Oharle8ton, South Oarolina.-Dn
April 23, 1973, the Air Force Office of Special Investigations requested
011 The "plans" referred to in the files apparently were never carried out.
818
.DIRC approval of a penetration of a white racist group in Charleston,
South Carolina. Members of this group had apparently been re·
sponsible for encouraging racial unrest at Charleston Air Force Base.
Furthermore, the Air Force had information that the group had contacted
an Air Force sergeant for the purpose of obtaining ammunition
from the airbase. DIRC approved the penetration.
This penetration never took place because the military source was
transferred before his application for membership in the group was
approved.
(g) Dissident Group in Long Beach, Oalifornia.-Dn March 15,
1973, the Navy requested DIRC approval for the penetration of a dissident
group with antimilitary objectives in Long Beach, California.
DIRC was informed that the FBI did not have a source within this
group.
DIRC disapproved the request on the grounds that the group did
not represent "a direct and palpable threat" to the Navy. It suggested,
however, that the Navy might provide a source which could be placed
under FBI control.
In fact, a Navy agent was "loaned" to the FBI in September 1973,
with DIRC approval. It lasted until July 1974, when the FBI decided
to terminate.
(h) Ser'Vicemen's Oounseling Oenter in San Diego.-On June 7,
1974, the Navy requested DIRC approval for a penetration of a servicemen's
counseling center in San Diego, California. It stated that it
had reason to believe that the center was under communist influence
and encouraged insubordination among Navy personnel.
DIRC took no action on the request, and it was formally withdrawn
in August 1974.
(i) AntiJmilitary Group in Oharleston, South Oarolina.-On
March 14, 1975, the Navy requested DIRC approval to penetrate a
group that was offering advice to dissident sailors in Charleston, S.C.
It cited evidence it had obtained from the FBI that the group intended
to encourage a sit-down strike aboard a Navy vessel. NIS indicated that
it already had someone within the group that would cooperate.
DIRC approved this penetration to last for a period of 90 days only.
On May 1, 1975, the Navy reported that the penetration had been
terminated. NIS had learned of plans for a sit-down strike but it
never materialized because the ringleader had been administratively
discharged for drug-related reasons. Apparently, the Navy informant
had provided information which formed the basis for the discharge.
B. Investigatiffns of Oivilian Groups Overseas
Overseas, in the absence of the FBI, the military services have in
the past been more active in investigating civilian groups which they
consider "threats." In many cases, these groups have been composed
entirely or in part of American citizens living abroad.
Until August 1975, there were no departmental restrictions on
investigations of U.S. citizens living abroad.212 DOD Directive 5200.27,
2L2 On August 20, 1975, the Defense Investigative Review Council voted to
extend DOD Directive 5200.27 overseas. This change has subsequently been in·
corporated in the directive.
In a case currently pending before the United States District Court for the
District of Columbia (Berlin DrmwcraJic Club et al. v. Soh!lesinger et tU., Civil
819
which restricted such investigations in the United States, did not
apply overseas. Hence, the only restrictions which did apply
were the laws of the host country and the Status of Forces
treaties which normally govern the relationship between American
occupying forces and the host country. As a practical matter authority
to conduct operations against civilian groups has rested largely
with local military commanders.213
(1) Army Operati01UJ in West Germatny and West Berlin.-The
Army has had troops stationed in West Germany and West Berlin
since the conclusion of World War II. As part of the occupation
agreements negotiated between the United States and West Germany,
the German Government agreed to provide security for American
forces stationed in West Germany.214 In satisfaction of this obligation,
the West German government has allowed the U.S. Army to conduct
counterintelligence operations within its boundaries. While such
operations were undertaken, for the most part, to detect the activities
of hostile intelligence agents or to recruit sources for foreign intelligence
purposes, they were occasionally undertaken to identify persons
or groups which sought to undermine the discipline or morale of U.S.
troops.
Until 1968, the decision to conduct such operations rested largely
with the commanders of intelligence units scattered throughout the
country.215 They were guided for the most I?art by operational necessity.
While no figures are available for thIS period, it is clear that
American citizens were occasionally targeted by these operations, and
that relationships between foreign groups and individuals, and American
citizens were routinely scrutinized.216
A variety of intelligence-gathering techniques were employed: wiretaps,
mail opening, covert penetrations, photography, and personal
surveillances. All were performed apparently with the knowledge of
the West German authorities, and, in the case of mail and telephone
intercepts, with their cooperation.217
In 1968, the Federal Republic of Germany (FRG) brought the
most sensitive surveillance activities-mail opening and wiretapsunder
its exclusive control. It created a parliamentary commission to
Action No. 310-74, filed 2/29/74), the government does not argue that U.S.
citizens who live or travel in foreign countries lose their constitutional rights
vis-a-vis the United States Government agencies, Le., the Army, which might he
present in such countries. It does argue, however, that the Government has
additional security needs abroad against which the exercise of constitutional
rights must he balanced. The Government further argues that certain constitutional
safeguards, e.g., the warrant requirement of the Fourth Amendment, are
not applicable in foreign contexts. See Memorandum of Law in Support of
Motion to Dismiss, or, in the Alternative, for Summary Judgment, filed 6/7/74,
pp.46-48,66-76,105-107.
S10 This authority has, of course, been subject to the direction of higher military
authority.
1Il< Convention on Relations Between the Three Powers and the Federal Republic
of Germany, 5/26/52, As Amended by 'Schedule I of the Protocol on Termination
of the Occupation Regime in Germany, Signed at Paris, 10/23/54, Article
5. Printed in "Documents on Germany: 1944-1910," Committee on Foreign Relations,
United States Senate (1971), p. 250.
"6 Staff summary of DOD Briefing, Army Counterintelligence Operations in
West Germany and West Berlin, 10/24/75.
". Ibid. Also see staff summary of Col. John J. Coakley (ret.) interview, 8/14/75.
217 Ibid.
820
pass upon all requests for both mail and telephone intercepts, and
required that all such intercepts be performed by FRG authorities.218
The requirements of this law were incorporated in a supplemental
agreement to the Status of Forces Agreement, referred to above.
Thus, the Army has been required to request mail opening and wire
surveillance from the West German commission in conformity with
the requirements of the new law since 1968. On one ocoasion, in fact,
a wiretap was requested on a foreign national who was working closely
with an American political group in Heidelberg.219 It resulted in the
Army's obtaining considerable information regarding the personal
and political activities of American citizens who were living and
traveling in the Heidelberg aroo.220
Insofar as other types of surveillance are concerned-penetrations,
photographic or covert observation-U.S. Army intelligence officeI'fl
continued to have approval authority.
In fact, Army intelligence has conducted surveillance operations
against civilian groups, comprised in part of American citizens, in
West Germany since 1968. In Heidelberg, for instance, the Army in
1973 attempted to penetrate the staff of an "underground" newspaper,
Fight Back, which was directed at military personnel in the area.221
It also penetrated a civilian legal counseling troup in Heidelberg
which was offering free counsel to serviceme.n.222
In Mainz, another West German city, the principal target of Army
operations in 1973 was a meeting house jointly sponsored by the U.S.
N'ational Council of Churches, the World Council of Churches, and
the German Evangelische Kirche, which attracted servicemen allegedly
engaged in "dissident" activities within the military.;!2 3The
Army photographed persons going into the meeting house, wrote down
license plate numbers, and sent their own agents inside to report back
on the woup's activities.224
Similar operations were carried out by the Army in West Berlin
where the laws of the Federal Republic of Germany did not apply.
Hence, ,the 1968 law, which placed strict restrictions on the Army's
ability to employ unilaterally mail openings and wiretaps, had no
effect there.
In West Berlin, under a special tripartite agreement with the
British and the French called the Allied K O1TIfl1W,rulaflura, the Army
commander is made the governing authority for the American sector
... Federal Republic of Germany, Law Restricting the Privacy of Mails, Telephone
and Telegraphic Communications, 8/13/68, commonly referred to as the
"G-10" law.
219 1974 Hearings, pp. 382-389.
.,., Ibid. The summaries of wiretapped conversations indicate, in fact, that the
Army was more interested in the activities of American dissidents who were
working with the subject of the wiretap than it was with the subject himself.
"" See "Germany Expelling U.S. Student for Work on Anti-Army Newspaper,"
New York TilM.~, 9/13/73.
22. Affidavit of Carl E. Maze, Army intelligence agent, Defendants Submission
to the Court in camera, Ex Parte Berlin Demoeratic Club, et al. v. Schlesinger
Civil Action No. 310-74. United States District Court for the District of Columbia,
10/29/74.
223 1974 Hearing.~, p. 394, and "U.S. Army Is Said To Spy on Its Critics in
Germany," New York Times, 7/28/73, p. 1.
... 1974 Hearings, p. 394.
821
of West Berlin.225 The Kowmandaturoa contains no restrictions on intelligence
gathering of any kind: On the contrary, it requires each
of the three governments to provide information to the others regarding
security in their respectIve sectors of the city.226 An active intelligence
operation thus appears to have been contemplated.
In fact, such an operation has been carried out by the Army since
World War II, not simply for its own purposes, but for the other Allied
commands as well. The Army has engaged in wiretapping and mail
openings as part of this program, as well as a variety of other surveillance
techniques.227 Further, in West Berlin, as in other cities in West
Germany, the Army has occasionally turned this intelligence apparatus
against civilian groups (composed largely of American citizens) who
were considered by the Army to be "threats." 228
In August 1972, the Army focused its attention on a group called
"Americans in Berlin for McGovern," an organization which reportedly
had petitioned the National Democratic Party in the United
States for official affiliation.229 After the election, the group changed its
name to Concerned Americans in Berlin, and attempted to interest
military men in joining. Members of the group were connected to an
"underground" newspaper called FO'l'Ward, which made direct appeals
for support to military personnel in West Berlin.
As part of its surveillance of the group's activities, the Army opened
mail addressed to the newspaper, and penetrated its staff.230 It also
sent informants or agents into Concerned Americans in Berlin to report
on its activities.231 Surveillance of the group continued until 1974.
(2) Navy Operoations in Japan.232-Beginning in 1973, the Naval
Investigative Service (NIS) conducted special counterintelligence
operations (covert penetrations) in three Japanese cities-Okinawa,
I wakuni, and Yokosuka-ag.ainst targets similar to those investigated
by the Army in West Germany. In each case, the targets were private
meeting places operated by a coalition of political groups, comprised
predominantly of Americans living in Japan. The groups attempted
to attract military personnel-often they provided legal counseling
and representation; and in some cases they published newspapers
designed to appeal to the military. .
Mail opening and wiretaps were not used by the Navy against these
groups, as the Army had done in West Germany. The Navy's method
of operation in Japan was confined to using its own personnel as informants.
NIS records show that these informants made frequentrin
some cases, almost daily-reports to their case officers. Usually, the
reports described the activities of the members of each group, and
... Statement of Principles Governing the Relationship Between the Allied Kommandatura
and Greater Berlin, Signed by the Three Western Commandants, Berlin,
5/14/49. Also, Allied Kommandatura Letter, Subject: Declaration on Berlin,
to the Governing Mayor, Berlin. 5/5/55.
... Ibid., 'Para 2 (e) .
..., DOD Briefing (staff summary), 10/24/75.
... Ibid.
... 1974 Hearings, pp. 370-379.
230 1974 Hearings, pp. 364-365.
231 Maze Affidavit, Berlin Democratic Club et al. v. Schlesinger, 10/29/74; and
1974 Hearings, pp. 373-379.
m The description of these operations is based upon an examination of NIB
flles by the Select Committee staff.
822
what had taken place in discussions and programs at the meeting
places. Any military personnel who frequented the meeting places
were reported, as were any "outsiders" who came as guests. NIS frequentlY
ran FBI and DOD checks on such "outsiders," and occasionally
requested copies of passport and visa applications from U.S. and
foreign authorities.
Navy informants also obtained copies of letters and envelopes found
at the meetin~ houses, and took cOJ?ies of subscription lists, financial
records, and' contact" lists maintamed by the groups under surveillance.
In most cases, they also provided copies of photographs taken
of group members to NIS.
Information regarding the participation of Navy personnel was reported
by NIS to local Navy commanders, and on at least two occasions,
Navy personnel who became active participants in the groups
were transferred to other locations.
None of the three penetrations were coordinated with the FBI, CIA,
or DOD counterintelligence agencies as they would have been if the
agents of a hostile intelligence service had been involved. Nonetheless,
NIS did disseminate reports on the three groups to all of the agencies
mentioned.
In none of the three cases did NIS have information prior to conducting
the penetration that the groups were, in fact, engaged in, or
planning to engage in, illegal activities. The penetrations were undertaken
to determine if the groups posed any threat to the Navy, and, if
so, to enable the Navy to prepare for it.
All of these operatIons were instituted by the Director of the Naval
Investigative Service. Since they involved overseas operations, they
did not, at that time, require the approval of the Defense Investigative
Review Council.
V. ASSISTING LAW ENFORCEMENT AGENCIES IN SURVEILLANCE OF PRIVATE
CITIZENS AND ORGANIZA'I1IONS
Military intelligence is rather frequently called upon, or undertakes
on its own initiative, to provide information or support to law enforcement
agencies at all levels of ,government. as well as the Secret Service.
A. Legal Authority
The extent to which the military can legally be used to "assist" law
enforcement agencies in the performance of their duties is not clear.
On the one hand, the Posse ComitatWJ Act of 1878 prohibits the military
from "executing the law ... except in cases and under circumstances
expressly authorized by the Constitution or act of Congress." 233
One such statutory exception, which Congress recognized in its debates
on the 1878 Act,234 was the power of the President to use the
armed forces to enforce the laws, in times of insurrection.235 Such use,
however, was conditioned upon the President's issuing a formal proclamation
calling for the insurgents to disperse.236
"'18 U.S.C. 1385.
... 7 Congo Rec. 3849 (1878).
1116 10 U.S.C. 331-333.
-10 U.S.C. 334.
823
In the years following the Civil War, federal marshals had relied
on Army troops to help them enforce federal election laws in the
South.237 By enacting the Posse Oormitatus Act in 1878, Congress
sought to end the practice, or at least ensure that federal troops could
not be used without a formal proclamation from the President.238 This
suggests, therefore, that the Posse OomitatU8 Act was intended to
limit the ability of law enforcement agencies, in the absence of a
presidential proclamation, to task federal troops for support.
Insofar as military intelligence is concerned, it seems clear that the
Act would prevent its being tasked by civilian law enforcement to
perform criminal investigations of civilians. The extent to which the
military intelligence can otherwise be required to support such activity
is not so clear, but the Posse Oomitatus Act undoubtedly serves to
restrain such cooperation.
B. Nature of Assistance
(1) Oollection arul Exchange of Information.-In Chicago, Army
intelligence in the late 1960s received a copy of virtually all police
intelli~ence reports.239 The military, in turn, provided the Chicago
police with their own reports, and in some cases, with military personnel
records.240 In addition, Army intelligence frequently responded to
police and Secret Service requests for information.241
When the DOD restrictions came into effect in 1971 calling for the
destruction of all files on "unaffiliated" persons and organizations,
several Army intelligence units turned over their intelligence files on
dissident individuals and organizations to local police authorities
rather than having them destroyed: the Chicago Police Department
received the files of the 113th Military Intelligence Group; '242 the
Pennsylvania State Police obtained the files on "personalities" of the
109th Military Group; 243 the Cuyahoga County Sheriff's office received
the 109th's files on dissident organizations in the Cleveland, Ohio,
area; 244 and the Washington, D.C. Police Department reviewed and
retained certain files of the 116th Military Intelligence Group.245
In 1972, an Air Force counterintelligence unit in San Diego began
maintaining files on dissident individuals and groups in the San Diego
area. This activity was in antWipation of receiving tasking from the
Secret Service to collect such information in preparation for the 1972
Republican National Convention, which was scheduled for San Diego
at that time.246
'37 See Edward S. Corwin, The President: Office and Powers, 1187-1957, (New
York: New York University Press, 1957), pp. 137-138.
... Ibid. See also, Rankin and Kallmayr, Freedom and Emergency Powers in the
Cold War (New York: Appleton-Century-Crofts, 1964) p.220.
... Norusis (staff summary), 6/23/75.
... Ibid. Also, see "Lawyer Data Winds Up in Police Files," Chicago Daily News,
4/9/75, p. 1.
241 O'Brien. 1971 Hearings, pp. 116--117.
'42 "Ex-FBI Aide Accused in Police Spy Hearings," Chica.llo Tribune, 6/21/75,
p.3.
... 1971 Hearings, p. 1297.
... Ibid.
245 Memorandum for ACSI Task Force, U.S. Army Intelligence Command, Subject
: Possible Transfer of MI Files, 2/8/71.
,.. See DIRO Inspection Report No.4, 4/21/72, 1974 Hearings, p. 250.
824
(2) Tramfer of Money and Equipment.-In 1968 after the riots
following the assassination of Martin Luther King Jr., a meeting was
held at the White House. At this meeting Mayor Walter Washington,
of Washington, D.C., expressed concern that the Intelligence Division
of the Metropolitan Police Department did not have sufficient resources
to predict future riots and disorders.
Shortly thereafter, at the order of the White House, the Army arranged
for a transfer of $150,000 from its intelligence funds to the
D.C. Police Department to be used for intelligence purposes.1l48 In the
summer of 1968, the Army also agreed to furnish the Justice Department
with tear gas grenades for distribution to local police departments,
but the plan was never implemented.249
(3) PartWipation in Law Enforcement Operationa.-On January
14, 1969, shortly before the inauguration of President Nixon, two
Army intelligence agents participated in an FBI search of the evacuated
premises of an underground newspaper in Washington, D.C.250
The FBI obtained a key from the landlord to gain entry, and subsequently
removed documents which they found on the premises. These
were turned over to the Army agents.251
In Chicago, two Army intelligence agents were invited to "observe"
a 1970 police raid on a meeting place of the Chicago 7 defense team.m
Another Army agent in Chicago stated that he had been invited to participate
in several raids by the Chicago police, inc1udin~ the raid on
the apartment of Black Panther leader Fred Hampton III November
1969.253 He denied having participated in any of the raids, however.
During the Democratic Convention of 1968, Army intelligence
agents in Chicago were also detailed to support the U.S. Secret Service.
One of the agents who was involved was assigned at various times to
monitor personally the activities and whereabouts of Ralph Abernathy,
Lester Maddox, and Jesse Jackson.254
In 1974, at the request of the FBI, Army investigators were used to
take down the license numbers of cars in a parking lot at West Point,
New York.255 The lot was being used to park the cars of demonstrators
in town for a protest demonstration.
Also in 1974, a special agent of the Defense Investigative Service
was asked to assist with an investigation of the U.S. Customs Bureau
by interviewing a friend suspected of having knowledge of the case.2~
(4) Participation in Interagency Intelligence Projects.-Representatives
of the military were among those involved in drafting the so-
... See Testimony of Albert C. Hall, Assistant Secretary of Defense (Intelligence),
Hearings before the Select Committee on Intelligence, U.S. House of
Representatives, 94th Cong., 1st Sess. (1975), p. 219.
... Hyman Memorandum, 1914 Hearings, p. 307.
Z6II"Break-In by FBI Alleged Before 1969 Inauguration," New York Time8,
3/3'1/7'3, p. 1; also "FBI Was Given Key for Search in 1969," New York
Times, 6/1/73, p. 14.
- Ibid,;
-Norusis (stair summary), 6/23/75.
... Staff summary of Jerry h Borman interview, 6/13/75.
... Statement of Richard G. Stahl, former intelligence agent, 6/18/75.
.. See Army Response to 2nd Select Committee inquiry, in Select Committee
files.
.. Ibid.
825
called Huston plan in the summer of 1970.257 This }?lan was developed
for the President and proposed numerous alternatIVes for the expansion
of domestic intelligence capabilities. The military representatives,
however, succeeded in keeping the military out of further domestic
responsibilities. As White House aide Huston put it in his recommendations
to the President: "The intelligence community is agreed
that the risks of lifting these restraints (on military intelligence) are
greater than the value of any possible intelligence which could be acquired
by doing so." 258
In December 1970, however, six months after the Huston Plan had
been rescinded, the Department of Defense agreed to participate in an
interagency committee on domestic intelligence. Designated the Intelligence
Evaluation Committee, the group operated under the aegis
of the Justice Department.259 Its objectives were to prepare analyses
and reports on domestic unrest. The DOD furnished one representative
to the Committee which lasted from January 1971 until June
1973.260 It also furnished a Navy ensign who was assigned to the IEC
working statr.261
In 1972, the Under Secretary of the Army approved a Justice
Department request to furnish three Army intelligence analysts to the
Justice Department's Information Evaluation Center in Miami
Beach.262 The purpose of these agents was to analyze intelligence coming
into a Justice Department communications center regarding possible
demonstrations during the Democratic and Republican National
Conventions of 1972. These agents were on duty from July 15 to
July 25, 1972; and from August 15 to August 25, 1972.288
VI. CURRENT DEPARTMENTAL RESTRAINTS UPON SURVEILLANCE OF
CIVILIANS
As discussed above, 'after the Army's civil disturbance collection program
had been exposed in the press, the Department of Defense in
March 1971 issued a new directive 28' which, in general:
-forbade the military from collecting and maintaining information
on "unaffiliated" persons and organizations, except for that "essential"
to the military mission;
-required that all information being held in violation of the directive
be destroyed;
-permitted the military to continue investigating civilian groups
which it considered as "threats" ;
11111 Representatives of the Army, Navy, Air Force, DIA and NSA took part.
For a detailed description of the Huston Plan and itB evolution, see the Select
Committee staff report, "National Security, Civil Liberties, and the Collection
of Intelligence: A Report on the Huston Plan."
"'" Memorandum from Tom Charles Huston to H.R. Haldeman, 7/17/70, Subject:
Domestic Intelligence Review, p. 4.
- See Letter from D. O. Cooke, Deputy Assistant Secretary of Defense, to Senator
Sam J. Ervin, Jr., 1974 Hearings, p. 205.
..., Ibid.
... Ibid., p. 206.
... Ibid., p. 205.
... Ibid., p. 206.
... DOD Directive 5200.27.
826
-permitted the military to conduct both covert and overt surveillance
of civilian political activities if permitted by high-level DOD
officials;
-did not prevent military intelligence from continuing to supply
assistance to civilian law enforcement agencies.
The discussion now turns to a more detailed account of what the
directive requires and how it has worked. We begin by noting the impact
the directive has had on intelligence activities undertaken for the
purposes identified in Parts II-V above. The report then discusses the
remaining provisions of the directive as restraints upon military surveillance
in the future.
One must keep in mind throughout, however, that it is an administrative
directive being considered. No matter how effective it may
have been in the past, the directive can be rescinded or changed at the
direction of the Secretary of Defense.
A. Ourbing Past AbU8es
Although the new directive :places relatively strict restraints on
the collection and retention of mformation regarding "unaffiliated"
persons and organizations, it leaves military intelligence free to engage
in collection activities for each of the purposes described in parts II-V.
(1) Preparing for Oivil Disturbances.-The directiv{' states that
the Attorney General of the United States is the chief civilian officer
for purposes of coordinating activities relating to civil disturbances.
Furthermore, it gives the Secretary of Defense or his designee-in this
case, the Secretary of the Army-the authority to order that information
be acquired to meet the Department's "operational re9.uirements,"
if "there is a distinct threat of a civil disturbance exceedmg the law
enforcement capabilities of state and local authorities." m
The directive does not state from whom the Department is authorized
to obtain the information relating to its "operational requirements,"
or whether it may use its own personnel to collect such information.
Moreover, by reciting that the Attorney General is the chief
official responsible for coordinating civil disturbance operations, it
implies that if the Attorney General were to task the DOD for information
regarding civil disturbances, the Department would have no
choice but to comply. This is, of course, precisely what took place in
1967.
Thus, while the directive requires that any civil disturbance collection
effort using military operatives or otherwise be ''turned on" at a
high level of the Department, it does not forbid the military from
collecting information for this purpose.
As a matter of fact, the Secretary of the Army has exercised his
authority under the directive by desi~ating a small element at the
Department of Army level-the DiVIsion of Military Support-to
mamtain contact with the Justice Department and acquire information
from it regarding "distinct threats of civil disturbances." None
of this informatIOn is currently disseminated within DOD but, presumably,
it would be in the event Army troops were deployed.
It would seem that while the directive appears to authorize the collection
of information on potential civil disturbances on a case-by-case
""" DOD Directh'e 5200.27, Para. IV (c).
827
basis, in fact the Army has decided to authorize continuous, albeit
limited, collection.
The Committee's investigation also revealed that this portion of
the directive has been violated. As late as 1975, the National Security
Agency, a foreign intelligence collection agency of the Department
of Defense, was maintaining information on potential civil disturbances
on the grounds that it was helpful to NSA recruiters who may
be entering such "troublespots." 267 DOD put an end to the practice.
(2) Monitoring Dom.estie Radio Transmissions.-The directive contains
no direct reference to radio monitoring. Rather, it has a general
prohibition against the use of electronic surveillance "except as authorized
by law."
It is noted, in this regard, that the monitoring and publication of
radio transmissions are outlawed by section 605 of the Communications
Act of 1934, but that did not prevent the Army Security Agency
from engaging in such intercepts from 1967 to 1970.268 The Army, in
fact, continued such monitoring even after being told by the FCC that
it was illegal.
(3) Investigating "Threats" to the Military.-The directive expressly
provides that "information maybe acquired about activities threatening
defense military and civilIan personnel and defense activities
and installations ...." One example of a "threatening" activity
cited in the directive is the subversion of loyalty, discipline, or morale
of Department of Defense military or civilian personnel by actively
encouraging violation of law, disobedience of lawful orders or regulations,
or disruption of military activities."
This exception for "threats" is, on its face, ambiguous. The phrase
"subversion of the loyalty, discipline, or morale of DOD personnel,"
is not defined, nor is the phrase "encouraging ... disobedience ... or
disruption of military activities." Conceivably, these exceptions could
encompass any form of prote&t activity against the established order in
the civilian community.
The Committee has noted in the course of its investigation that
there are differing interpretations of what constitutes a "threat"
among the military services. For example, the Navy considered the
fact that its personnel were members of a "dissident" civilian group
sufficient grounds to treat the group as a "threat," and thereby justify
retaining information about the group. The Army and Air Force,
however, did not consider the membership of their personnel in such
a group sufficient grounds to collect information on the group. They
would retain information regarding such a group only if it could otherwise
be shown to be a "demonstrable threat" to their respective services.
These differences in interpretation are also reflected in the services'
requests to the DIRC for approval of covert penetrations. In the one
case where the DIRC turned down such a request, it did so on the basis
"'" DIRC Inspection Report, No. 19, 4/29/75. See Select Committee Report
"Xational Security Agency Surveillance Affecting Americans" .
... Neither the National Security Agency nor the service cryptologic agencies
which are under its operational control (the Army Security Agency is one of
these) regard section 605 of the 1934 Act or title III of the Omnibus Crime Control
and Safe Streets Act as applying to them, since they collect foreign intelligence.
See the Select CommIttee report "National Security Agency Surveillance
Affecting Americ;ans". A different question is posed, however, when the National
Security Agency or one of its service components intercepts domestic communications
for purposes other than foreign intelligence.
69-984 0 - 76 - 53
828
that the civilian group against which a penetration was proposed, although
presumably antimilitary, did not represent a "direct and palpable"
threat. The directive, of course, makes no such distinction.
We have also seen in practice that what the military views as "threats"
are not always perceived as such by the FBI which, when approached
by the military, declines to initiate an investigation of the civilian
group in question.
(4) Assisting Law Enforcement Agencies.-The directive states that
DOD will place "maximum reliance" upon domestic law enforcement
agencies to satisfy its informational needs regarding civilians. It also
provides that the directive shall not be construed to prevent the Department
from reporting threats to life and property, or violations of the
law, to local law enforcement.
It makes no reference, however, to DOD's being tasked by law enforcement
or other Federal agencies to perform intelligence duties in
the civilian community. In practice, DOD has taken the position that
all operations within the civilian community must be carried out in
accordance with the directive, whether they are done at the request of
other agencies or not.
Nevertheless there is a discernible tendencv for DOD to agree when
asked by other agencies to undertake intelligence activities which it
would otherwise forbid to itself. For example, DOD participation in
the Intelligence Evaluation Committee and its support to the Justice
Department at the 1972 political conventions are cases where DOD
undertook domestic intelligence activities at the request of other
agencies, which it presumably would not have undertaken on its own
initiative.
In short, the activities of the Department of Defense which have led
to abuses in the past are still within its jurisdiction, although the use
of military personnel to collect such information has been restricted.
The nature of these restrictions is the subject of the next section.
B. PTeventing SUTVeillance in the Future
Although DOD Directive 5200.27 does seek to prohibit the "collecting,
reporting, processing, or storing information on individuals or
organizations not affiliated with the Department of Defense," it allows
for exceptions and its terms are so ambiguous that future surveillance
activities in the civilian community might be undertaken consistent
with the directive.
(l) Scope.-Until August 20, 1975, DOD Directive 5200.27 applied
only to military personnel located in the 50 states, and the territories
and possessions of the United States.271 Furthermore, it did not apply
to the acguisition of "foreign intelligence information," even if such
informatIOn involved unaffiliated persons and organizations.
As noted previously, the Army undertook operations against civilian
groups in West Germany and West Berlin,and the Navy undertook
operations against similar groups in Japan, without seeking
exceptions to the DOD directive.
There has also been confusion over the meaning of the exclusion of
foreign intelligence information. Until August 1973, two years after
J'T1 On August 20, 1975, DIRe expanded the scoPe of the directive to include
military personnel in overseas locations.
829
the directive had been in effect, the National Security Agency, a foreign
intelligence collection agency within the Department of Defense,
considered itself to be exempted by this clause from the provisions of
the directive.272
Moreover, NSA was found to have been violating the restrictions of
the directive. Its Office of Security was told in 1973 to destroy 40 cubic
feet of files on "unaffiliated" individuals and organizations being held
in violation of the directive.273
(2) Permitted ExceptWns.-In addition to designating what information
on unaffiliated individuals and groups may be collected and
retained, the directive ·also provides how such information shall be
collected. It begins by stating as a matter of "policy," that "maximum
reliance" will be placed upon local law enforcement authorities.
It, nevertheless, allows military personnel to be used to collect "essential"
information if authorized by various high-level persons within
the military.
(a) 0 overt 8urveillance.-The directive provides that "there shall be
no covert or otherwise deceptive surveillance or penetration of civilian
organizations unless specifioolly authorized by the Secretary of Defense
or his designee." In this case, the "designee" is the Chairman of
the Defense Investigative Review Council, the special board, referred
to earlier, established to monitor the implementation of the directive.274
It should be noted, however, that the directive provides no criteria to
guide the judgment of those officials who must decide whether covert
surveillance should be employed. Assistant Secretary of Defense
Robert F. Froehlke, in an exchange with Senator Edward M. Kennedy
during the 1971 hearings, conceded that the directive may be deficient
in this respect:
KENNEDY. And you are not maintaining any information
then on any individual at the present time who is involved in
in protests ?
FROEHLKE. Only under the policy that we have now. It
does allow it under certain circumstances, but in all cases 8
civilian official would first have to give his approval.
KENNEDY. And what criteria does he use ?
FROEHLKE. Judgment, his judgment.
KENNEDY. Completely a subjective determination?
FROEHLRE. As of this moment, yes. . . .
KENNEDY. Don't you think criteria ought to be set f
FROEHLXE. Yes. Short of having criteria, you are going
to be arbitrary.275
As noted above, this authority has been exercised nine times since'
1971 by the Chairman of the DIRC, all for the purpose of conducting
penetrations of civilian groups considered "threats." The Com-
.... The DIRe informed NSA that the directive covered all elements of the Department
of Defense, including foreign intelligence collection agencies. It only
excludes foom its general prohibition "foreign intelligence information." See
DIRO Inspection Report, No. 19, 3/29/75; and Staff Summary of Roland Morrow,
Defense Investigative Program Office, interview, 5/22/75.
.... Ibid.
m The DIRO was established by DOD Directive 5200.26.
.... 1971 Hearings, p. 435.
830
mittee's investigation revealed only one minor "deceptive surveillance"
which appears not to have been authorized by the DIRC in accordance
with the directive. This occurred at Pawnee, Oklahoma, near Fort
Sill, where on two occasions in the spring of 1973 the Provost Marshal
of Fort Sill ordered Army personnel to conduct reconnaissllJlce flights
to determine if members of the American Indian Movement were
marching on the Army post, or were building fortifications near
Fort Sill.277
(b) Overt SurveUlanee.-The directive also provides that "no DOD
personnel will be assigned to attend public or private meetings, demonstrations,
or other similar activities for the purpose of acquirinp;
information the collection of which is authorized by this Directive
without specific prior approval by the Secretary of Defense or his
designee." The designees in this case are the Secretaries and Under
Secretaries of each military department. Local commanders may also
authorize such surveillance on their own initiative to collect information
on "direct and immediate threats," but this must subsequently be
reported to the Secretary of Defense or his designees.
Again, the Committee investigation revealed only one probahle
violation of this provision. Army investil!Rtors attended a protest
rally in West Point, New York, in May, 1974, without the required
authorization of thp Secretary or Under Secretary of the Army.
(c) Electroni<J Surveillanee.-As mentioned previously, the directive
provides only that the department will not conduct electronic
surveillance of any unaffiliated persons or organization "except as
authorized bv law." This would seem to mean that insofar as nonconsensual
wiretaps and eavesdrops are concerned, DOD must obtain
the approval of the Attorney General in accordance with section 2516
of title 18, United States Code. Consensual eavesdrops (one party
consents) must also have the approval of the Attorney General; 279
consensual wiretaps, however, may be approved within the Department
of Defense, but onlv for the investigation of crimes.~80
It should also be noted' that since electronic surveillance would also
be covert or deceptive, presumably its use would also require the
approval of the Secretary of Defense or the Chairman of the Defense
Investigative Review Council.
The Committee found no evidence that DOD had employed electronic
surveillance against any unaffiliated person or organization
in the United States since 1971.
(d) Retention of Files.-The directive prohibits the "storage" of
information which violates its provisions. It further provides that
any information gathered under its provisions shall be destroyed
within 90 days, "unless its retention is specifically reQuired by law. or
unless its retention is specifically authorized under criteria established
by the Secretary of Defense or his designee." The designee in this case
is the Chairman of the Defense Investigative Review Council.
=See DOD Response to Senate Select Committee's 2nd document Teque9!:.
279 See j\Iemorandl1m from the Attornev General to the heads of Executive
Departments and Agencies; 6/16/67. .
280 DOD Directive 5200.24.
831
The Chairman of the DIRC did exercise this authority soon after
the directive was issued to permit the military departments to maintain
"dead storage" files, so long as procedures were employed to
screen any such files prior to disseminating information from them.281
This decision was made in order that the military departments
would not have to screen literally millions of files in "dead storage."
It did, nonetheless, result in a technical violation of the directive smce
much of this information was not retainable.
A second violation of these provisions was the Army's retention
of microfilm files in a counterintelligence analysis unit in Washington,
D.C. Secretary of the Army Howard H. Callaway announced in
January, 1975, that the microfilm files contained substantial information
on the political activities of persons and organizations unaffiliated
with the Department of Defense and should have been destroyed.
Subsequent investigation by DOD disclosed that the microfilm contained
160,000 documents, 24,000 of which were added since March 1,
1971, the date of the departmental directive. Of the 136,000 documents
dated prior to the directive, approximately 6,900 were found to be
held in violation of the directive's retention criteria. Of those 24,000
added after the date of the departmental directive, 175 were identified
in a preliminarily screening as being in possible violation of the directive.
Twenty-three were then determined by DOD to be in definite
violation of its directive.
The Army explained that the microfilm files had, in fact, been
screened in December 1970, in accordance with an Army order preceding
the promulgation of the DOD directive. At that time, those who
screened the files apparently considered the exception made for
"threats" to the Army to be broader than the current interpretation.
Due to the negligence of subsequent commanders of the Army unit
which maintained the files, the annual screening required by the
departmental directive did not occur.
A similar explanation was given for the accumulation of twentythree
documents, obviously in VIOlation of the directive. After the date
such directive was issued, the Army suggested that those who had
placed such documents in the files had a dIfferent interpretation of the
term "threat" than was currently acceptable.
The Select Committee also investigated news reports that the Army's
civil disturbance files, the retention of which was not authorized by
the directive, were transferred in 1972 from Fort Holabird, Maryland,
to the Massachusetts Institute of Technology via a Defense Department
computer network.283 The Committee investigation, however, did
not substantiate the news report.
(3) Implementation and Enforeement.-The task of implementing
and enforcing the departmental restrictions is delegated primarily
to the Defense Investi~ative Review Council (DIRC), the Chairman
of which reports directly to the Secretary of Defense on such matters.284
The DIRC carries out its work by [ssuing guidance to subordinate
elements of the department on how the basic directive should be imple-
28l DIRC Study Report No. I, 5/5/71. Subject: Retention Criteria for Investigative
Information, Para VI.
... The Report was aired on the NBC Nightly News, 6/3/75.
... See DOD Directive 5200.26.
832
mented. It also conducts unannounced inspections of DOD installations
to determine whether they are in compliance with the departmental
restrictions. As of May 29, 1975, the DIRC had conducted 19 such
inspections, covering a total of 82 DOD installations.285
In general, the Committee investigation found that implementation
of the departmental restrictions has been vigorous and effective. The
Committee reached this judgment only after its staff inspected the
files and key operational personnel of every major domestic intelligence
headquarters of the Department. It found that the Department.
of Defense now maintains little information on private citizens and
organizations in its current files. Of that which is maintained, all :has
been carefully segregated and is systematically screened prior to disclosure
outside the particular agency which holds them.
Moreover, as indicated above, violations of the directive have been
rare and relatively minor. They do not demonstrate widespread or
systematic misconduct. Furthermore, exceptions permitted by the
Department to the general prohibition of the directive do not appear,
in the Committee~sview, to represent egregious abuses of discretion on
the part of authorizing officials.
(4) Prospects for the Future.- While the current departmental ~irectives
have succeeded in limiting military surveillance activitIes
against private ciitizens 'and organizations, these limitations remain
only in the form of an internal regulation, which can be rescinded or
amended by the Secretary of Defense. Although the Department assures
the Committee that it has no intention of doing either, it cannot
dispute the fact that such a possibility remains. Several former Army
officials told the Committee staff that if America returned Ito a period
of perceived crisis, such 'as the late 19608, the new controls may be
scrapped.286 Assistant Secretary of Defense Robert F. Froehlke conceded
as much in his testimony before the Ervin committee in 1971:
The Army, in such situations (civil disturbances), is really
the only unit of Government that has the resources today.
Whether or not it should be that way I think is very debatruble,
but that is now the faot, and when you get crisis situations,
you need info~mation. Responsible officials fear cities
are going to burn. Where do they look? They look to that
unit of Government that has the resources avaHable, and it
is always the Army.287
Indeed, the current directives have such great flexibility that renewed
surveiHance activity could easily be undertaken if permitted
by high level offi'cials of the Department. Again, one might consider
the following exchange between Senator Edward M. Kennedy and
Assistant Secretary Froehlke at the 1971 Ervin hearings:
KENNEDY. Are we going to assume now at the end of these
hearings that the Department of Army is going to continue
to involve itself (in collecting information on civilians) ?
... At each installation visited by the DIRC inspection team, all units which
are likely to collect or maintain information on unaffiliated individuals and
organizations are normally inspected.
... Staff' summary of Col. Arthur Halligan interview, 7/15/75; and staff summary
of Gen. Millard Daugherty interview, 11/20/75.
287 1971 Hearings, p. 436.
833
FROEHLKE. The Army is out of it. ...
KENNEDY. Of course, they are out of it unless your council
[the DIRe] decides they are back in it.
FROEHLKE. Yes, sir....288
VII. CURRENT STATUTORY RESTRICTIONS UPON MILITARY SURVEILLANCE
There is no statute which expressly prohibits the investigation of
private citizens by the military.
As noted above, the Posse Oomitatus Act (18 U.S.C. 1385) which
prohibits the military from being used to "execute the law," would
probably prevent the military from conducting criminal investigations
of civilians, but that this would not hear upon other types of
investigations.289
Other than this, only the Privacy Act of 1974 290 appears to bear
indirectly upon the matter. The Privacy Act imposes general restrictions
on all agencies of the Federal Government that "maintain systems
of records" insofar as the maintenance and dissemination of
records on individuals are concerned.
One of these general restrictions, which applies to the Department
of Defense, as an agency which "maintains a system of records," is:
Each agency that maintains a system of records shall . . .
maintain no record describing how 'any individual exercises
rights guaranteed by the First Amendment unless expressly
authorized by statute or by the individual 'about whom the
record is maintained or unless pertinent to and within the
scope of an authorized law enforcementactivity.291
Thus, the Act prohibits the maintenance of certain files, and not
investigations per se. Obviously, if 'an agency is prohibited from maintaining
records of investigations, it will ordinarily not be disposed
to conduct them.
Nevertheless, the impact of the Privacy Act, insofar as preventing
military investigations in the civilian community, is far from certain.
The Act itself has received no authoritative judicial interpretation,292
and section 552a(e) (7), cited above, is, on its face, ambiguous. It is
unclear, for example, what a record "describing how any individual
exercises rights guaranteed by the First Amendment" might consist of.
Would attendance at a protest demonstration, for example, be an activity
which could not be recorded under the Act? If the military
expected to be deployed during the demonstration, would taking note
of an individual's attendance be pennissible under the Act? Whether
an individual act represents the exercise of Frst Amendment rights
or is conduct which justifies government investigation often depends
upon the facts of the case.
Further, section 552 (e) (7) allows a government agency to maintain
infonnation on an individual's exercise of First Amendment
rights if (1) the agency is expressly authorized by statute to main-
... Ibia.
... See pp. 822-823.
... P.L. 93-579.
'"'5 U.S.C. 552a(e) (7) .
... The Privacy Act of 1974 became effective on 9/27/75.
834
tarn such information; (2) if the maintenance of such record is authorized
by the individual concerned; or (3) if such information is
pertinent to and within the scope of an authorized law enforcement
activity." 293
These exceptions would appear to allow the military to maintain
records on private citizens and organizations for certain purposes of
its own, and to permit the use of these records by other federal agencies
which themselves fall within one of the excepted categories.
For example, the military is charged with enforcement of the Uniform
Code of Military Justice, a law enforcement function. Thus,
criminal investigators would probably be able to maintain information
on the politICal activities of private citizens which was pertinent
to their investigations. Similarly, the military conducts security clearance
investigatIOns to which subjects give their consent. Presumably,
this would enable military investigators to maintain information on
the political activities of such indIViduals.
Insofar as assisting other agencies is concerned, the reader has also
seen that the military intE'1ligence has frequently been employed by
agencies with law enforcement purposes (the Justice Department and
FBI), and by an agency "expressly authorized by law" to maintain
such information (the Secret Service).294 It would appear, therefore,
tluvt the military is not foreclosed by the Privacy Act from providing
intelligence assistance to other agencies.
In summary, the Privacy Act falls short of providing adequate
assurance that the military will not engage in surveillance of private
oitizens in the future. The statute is written as applying generally to
all government agencies; its particular application to the military is
unclear. It is also sufficiently ambiguous arid contains enough exceptions
to raise doubts as to its effectiveness as a future restraint on
military investigative activity against private individuals and
organizations.
... This exception, insofar as the military is concerned, would have to be considered
in light of the Posse Oomitatus Act.
.. Section 2 of Pub. C. 90--831 (Note to section 305c. title 18, United States
Oode).

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