The Surveillance Scene: Everyone Must Know

(The author is a graduate student in Russian History who worked this summer for Rep. Robert Kastenmeier [D-Wisc.], a member of the House Judiciary Committee.)

IN a televised news conference three months ago, President Nixon categorically denied that repression was a policy of the Administration. A few days later Attorney General Mitchell stated that fears of repression on the part of students and blacks was "more of that rhetoric." Whether there is a well-formulated policy of repression may be a moot question if many citizens believe it to be so and behave as if such a policy existed and if the government is carrying out activities which could be categorized as ad hoc repression. In the first few months of 1970, increasing frequency of reports concerning the snooping activities of various branches of government has lent credence to fears of a growing repressive apparatus. The disclosure that Internal Revenue Service agents have been checking cards in various libraries and the passage of the D. C. Crime Bill with its controversial no-knock and wiretapping provisions are only the most recent examples of such potentially-repressive activities.

The operations contained in the following summary do appear suppressive of the rights of privacy, freedom of speech and association, and are constitutionally dubious. Beyond this, the gathering of intelligence data; its computerization and storage in data banks by different branches of the government, by private firms, or by complexes such as the Cambridge Project, is a logical product of the bureaucratic and technological rationale for investigation, more information, and expertise. Whether the subject be the political behavior of Guatemalan peasants or Bolivian tin miners, the reaction to urbanization of South Vietnamese peasants or ghetto blacks, the rationale is that if only we had more Knowledge about the problem, if only data were quantifiable and immediately retrievable, then human behavior and events would be more predictable and thus more controllable. It is a logical extension of such thinking to maintain files on a growing number of American citizens whose personal information, ideas, and actions are deemed of interest to some organization or for reasons of "security."

The Department of the Army is certainly no newcomer to intelligence and surveillance operations. In the past, however, such operations have logically focused on the Army's military role abroad: no matter that dossiers have been kept on politically suspect South Vietnamese, at least American citizens were reasonably assured that their political activities were not under surveillance. Such is apparently no longer the case according to Christopher Pyle, formerly a captain in Army intelligence himself and presently a graduate student at Columbia. Writing in the Washington Monthly (January and July, 1970), Pyle documents the collection, computerization, storage, and analysis of purely domestic intelligence by the U. S. Army Intelligence Command under the official designation of "CONUS," the Army's acronym for Continental U. S. Begun in 1965, and greatly expanded after the summer riots of 1967, the CONUS operation maintains files on millions of Americans who may have been involved, however remotely or passively, in domestic political activity, however lawful. The operation functions under no specific authority from the Executive much less the Legislative branch.

PYLE DISCLOSED that the Army maintains a $2.7 million command post under the Pentagon parking lot. This so-called Directorate for Civil Disturbance Planning and Operations is a constant riot watch. Despite Army assurances that it has dismantled its computerized file system at Fort Holabird, Md., it still maintains 375 copies of a two-volume encyclopedia on dissent entitled "Counter-Intelligence Research Project," popularly known as the Compendium. This is compiled by the Counter-Intelligence Analysis Division at the Pentagon.

In addition, still functional are:

A computer-indexed, microfilm archive of intelligence reports, newspaper clippings, and other records of political protest and civil disturbances at the CIAD headquarters in Alexandria, Va.

Similar intelligence reports at Continental Army Command headquarters at Fort Monroe, Va.

Non-computerized regional data banks at stateside army commands and at military installations.

Non-computerized files at most of the 300 intelligence group offices of the Intelligence Command.

The input of these files consists of the reports of 1000 Army investigators and undercover agents in addition to "incident reports" which include police reports, newspaper clippings, and wire service reports collected in local field offices.

Included in the files is intelligence about civilians unconnected with the military; such intelligence could not be construed as necessary for personnel security. Data on civil disturbances and lawful and nonviolent meetings and lectures find their way to computers which can correlate trends and like incidents as well as compile lists of all incidents in which a particular individual has been involved. Alongside such perfunctory data such as names and addresses of leaders of organizations are data on the membership, ideology, program and practices of the organizations or groups.

The Army's justification for such domestic intelligence-gathering operations is its ultimate responsibility for domestic order should local or National Guard units be unable to keep the peace, as indeed happened in 1967 and 1968. If the Army may be called to assist in quelling riots, then it must have at its disposal relevant intelligence information to enable it to cope with the situation most effectively.

Granting the Army some claim to jurisdiction in these matters, several questions may be put which challenge the use or abuse of such jurisdiction. What are the guidelines in terms of categories of information kept on file? How important are subjective categories such as political convictions? What sort of political convictions are deemed subversive and therefore worthy of inclusion in the files? What limitations, if any, are placed on the access to these files? Could prospective employers or universities, say, retrieve data from the Army's files? What is the nature of the analysis which the data undergoes? Some of the data, it has been revealed, are kept in "raw form"; that is, enter the files from a police or investigator's report or from a newspaper clipping without any evaluation of its accuracy. Finally, it is logical to ask whether or not the individuals on file have any opportunity to correct or challenge the information kept about them?

The Army is not alone in its domestic intelligence operations, though its presence is perhaps the most unexpected. Other branches of government, particularly Justice and the Treasury, carry on similar activities. The Justice Department, for instance, maintains an even bigger computer in its "domestic war room" which is fed FBI intelligence reports in raw form. (One might here ask to what extent such information is obtained from wiretaps.) In addition Secret Service inputs data concerning threats to the President, information on demonstrations, abusive statements, and plans to embarrass government officials. Weekly computerized intelligence reports give a city-by-city assessment on the potential for civil disorder, indicating what marches, rallies, or meetings are occurring and the organizations or individuals sponsoring them, as well as the city's disturbance history. The books are read by the Interdivisional Information Unit which sends pertinent data to the Attorney General and various department divisions. Special reports were filed on the November 15 demonstration listing all the available stored intelligence on the individuals and organizations planning it. The Black Panthers also rate special reports.

The Civil Disturbance Group, under Executive orders on civil disturbance preparation, is the division charged with advising the President when disorders have reached a point where federal action is necessary. Operating with a $274,000 budget, the Civil Disturbance Group uses 100 daily reports from the FBI and other agencies, 12 intelligence analysts, and a computer which puts out an eight-inch thick set of books on the riot potential of every city. The command post of the "Interdivisional information unit" on the sixth floor of the Justice Department rivals the Army's CIAD for intelligence purposes.

IN JULY of this year it was revealed that the Treasury Department has been conducting investigations of library cards in several American cities, including Atlanta and Milwaukee. The Internal Revenue Agents were operating under the authority of the 1968 Gun Control Act, which gives the Treasury's Alcohol, Tobacco, and Firearms Division responsibility for the registration of explosives. Librarians in several cities were asked to show the cards for various books on explosives as well as books on guerrilla warfare or by Che Guevara. When librarians refused to divulge the names of borrowers of books, many agents reportedly threatened to subpoena the files. Assistant Secretary of the Treasury Eugene Rossides, appearing before the Senate's Permanent Subcommittee on Investigations which throughout the summer was conducting hearings on bombings and other terroristic acts, denied that a general investigation of the reading habits of Americans was part of Treasury policy; the agents were purportedly conducting a specific investigation. This is another example of the "plausible denials" by which, according to Pyle, the Army placated irate senators and congressmen such as Sen. Samuel Ervin and Rep. Cornelius Gallagher concerning its CONUS operation. Once such investigatory operations are underway it is not likely that they will be limited unless outside pressure is exerted.

In April the U. S. District Court dismissed a suit filed by the ACLU on behalf of 13 plaintiffs- individuals and organizations- who claimed that the surveillance, data banks, and blacklists violated the Bill of Rights by reason of the chilling effect which knowledge of their existence can have upon the willingness of citizens to exercise their freedom of speech, press, and association, and their rights to petition the government for redress of grievances.

The "chilling effect" referred to above is manifest when mere doubt or the need to weigh previously untrammeled behavior is present. According to the Harvard Civil Rights-Civil Liberties Law Review (Jan., 1970), "secret files are inherently dangerous and by their very existence tend to restrict/chill/deter those who would advocate, within protected areas, social and political change." The chilling effect consists of an awareness of the existence of files as well as the apprehension that such files will be used systematically to harass individuals or groups. "Citizens are chilled when, on the basis of awareness and apprehension, they become unwilling to engage in political expression and association or at least modify their behavior in order to meet accepted norms. . . . What is crucial, however, is not whether particular plaintiffs have abandoned or modified a course of action, but whether the files might reasonably be expected to interfere or prevent exercise of First Amendment rights."

Any burden upon the exercise of First Amendment Rights, argues civil liberties lawyer Frank Askin ( Stanford Law Review, Jan., 1970), that can be expected to deter their exercise constitutes an infringement of those rights. The more cautious and discreet may be discouraged from engaging in protest activities by government surveillance and the maintenance of dossiers on those who engage in active protest against government institutions and policies.

CLEARLY the abridgement of First Amendment rights is one of the main issues at stake. If one is afraid that his statements will be put on computerized file, that this record will not be subject to rebuttal, and that the accessibility of this file is not defined, then one's freedom of speech is restricted. If one is wary of joining organizations or groups which may be surveilled, or of identifying with individuals whose views are likely to make him the subject of a file, then one's freedom of association is constrained. If one's freedoms of speech and association are infringed, and if files containing personal information as well as one's views are available for the most uncritical examination,

then one's privacy is invaded. It may well be that the dictatorships of the world with their high priority attached to the police function in an attempt to limit the freedoms of individual citizens may not be aberrations of civilized man but one of the watermarks of the 20th century.

In many existing dictatorships, however, the police function, while pervasive, is not undertaken by the Army. Recent disclosures such as Pyle's concerning the Army's intelligence operations in the "continental United States" raise serious questions about the Army's role in domestic politics. The judge who dismissed the ACLU suit claimed that Army maintenance of files was no different than maintenance of files by a newspaper. Frank Askin, arguing for the plaintiffs, observed that no newspaper also possessed weapons or other means of force to deploy against whoever was on file. The right of the Army to operate data banks for the surveillance of private citizens is a questionable one and ought to be challenged.

More broadly, one could question the right of any agency- federal or private- to conduct such surveillance. Computerized data banks are not restricted to the storage of case histories of people who have been arrested or who have committed a major crime, but rather such a filing apparatus specializes in files devoted to a description of the lawful political activity of civilians.

The necessity of Congressional investigation is evident. The Army, or the Justice Department, or Treasury, for that matter, will evade the issue unless threatened by hearings. Pyle has already documented how the Army, by means of plausible denials and half-assurances, succeeded in placating Sen. Ervin and Rep. Gallagher when they threatened to hold hearings earlier in the year.

In the end, Ervin did schedule hearings for his Senate Subcommittee on Constitutional Rights for October 6-8. These hearings were to focus on "privacy, computers, and Government data banks, including the Army's civil disturbance program for surveillance of civilians." They were postponed at the last minute due to "pressing Senate business." On October 6, Ervin, in announcing the postponement of the hearings, stated:

In the interim, the subcommittee will continue its efforts to make sense out of the executive branch responses to our inquiries about Government data banks. In particular, I have asked Secretary of Defense Laird to declassify the reams of directives and regulations in which Defense Department agencies have buried their response to our questionnaire asking what surveillance programs they maintain for monitoring activities of law-abiding civilians.

Hearings, if held, must press the Army to concede that its blacklists and dossiers do not contribute to the prediction or control of riots. Hearings must determine the extent to which military intelligence units should be permitted to watch controversial political figures on the theory that "agitators" cause riots, and the extent to which the Army through the CIAD should be expected to analyze political and social aspects of civil disturbances. Finally, the hearings must define the Army's authority to monitor civilian politics in light of such principles as the civilian control of the military, state and civilian primacy in law enforcement, the decentralization of intelligence duties, and obedience to the constitutional scheme of the separate branches of government sharing policy-making powers.