1972] First Amendment: The Computer Age 337 the Navy reports an average of 400 persons annually. We learned, for example, that among the many categories of people to be reported were not only servicemen but civilian employees of the Defense Department who were discharged on security or suitability grounds and who showed "evidence of emotional instability or irrational or suicidal behavior, expressed strong or violent sentiments against the United States," or who had "previous arrests, convictions, conduct or statements indicating a propensity for violence and antipathy for good order in Government.' Military Spying 49 T Another example of First Amendment information programs is the Army program for spying on Americans who exercised their First Amendment rights Despite these rights and despite the constitutional division of power between the federal and state governments, despite laws and decisions defining the legal role and duties of the Army, the Army was given the power to create an information system of data banks and computer programs which threatened to erode 50 these restrictions on governmental power. Allegedly for the purpose of predicting and preventing civil disturbances which might develop beyond the control of state and local officials, Army agents were sent throughout the country to keep surveillance over the way the civilian population expressed their sentiments about government policies. In churches, on campuses, in classrooms, in public meetings, they took notes, tape-recorded, and photographed people who dissented in thought, word or deed. This included clergymen, editors, public officials, and anyone who sympathized with the dissenters. 49. Appendix B of Agreement. Under Appendix A, identification data, photograph, physical description, date and place of birth, employment, marital status and identifying numbers are to be furnished, together with summaries or excerpts from DOD files as applicable to an individual or group reported. In a related exchange of correspondence, the Subcommittee Chairman, in response to complaints, directed an inquiry to the Secretary of the Navy, on April 22, 1970 about a Navy directive which required that in any case where enlisted personnel were to be separated under other than honorable conditions within the continental United States, local civil police authorities were to be notified in advance of the name, race, sex and place and date of birth of the person, and of the time and place such separation is to be effected. This regulation seemed to serve no useful function since the Army and the Air Force functioned without one. On May 7, 1970, the Navy Department notified the Subcommittee that they concurred in this view and would delete the reporting requirement. (Correspondence in Subcommittee files.) 50. For legal and constitutional implications, as well as a comprehensive historical account, see testimony of Christopher Pyle, an attorney and former Captain in Army Intelligence. See 1971 Hearings at 147, and exhibits providing examples of nation-wide military surveillance. 38 Columbia Human Rights Law Review [Vol. 4 With very few, if any, directives51 to guide their activities, they monitored the membership and policies of peaceful organizations who were concerned with the war in Southeast Asia, the draft, racial and labor problems, and community welfare. Out of this surveillance the Army created blacklists of organizations and personalities which were circulated to many federal, state and local agencies, who were all requested to supplement the data provided. Not only descriptions of the contents of speeches and political comments were included, but irrelevant entries about personal finances, such as the fact that a militant leader's credit card was withdrawn. In some cases, a psychiatric diagnosis taken from Army or other medical records was included. This information on individuals was programmed into at least four computers according to their political beliefs, or their memberships, or their geographic residence. The Army did not just collect and share this information. Analysts were assigned the task of evaluating and labeling these people on the basis of reports on their attitudes, remarks and activities. They were then coded for entry into computers or microfilm data banks. || The Army attempts to justify its surveillance of civilians by asserting that it was collecting information to enable the President to predict when and where civilians might engage in domestic violence, and that the President was empowered to assign this task to it by the statutes conferring upon him the power to use the armed forces to suppress domestic violence. I challenge the validity of this assertion. Under our system, the power to investigate to determine whether civilians are about to violate federal laws is committed to 51. See Ervin, Privacy and Governmental Investigations, 1971 UNIV. ILL. L. FORUM 137 (1971) for an account of the various plans and their lack of relevance to the problem of putting down civil disturbances, and for analysis of the Defense and Justice Department's claims to constitutionality for the actions of the military. Texts of four "Plans," 1971 Hearings at 1123, 1119, 1154, 1731; Memorandum at 1139, 1141, 1278-98, showing attempts by civilians to cut back on the program. 52. The bulk of investigative activity by the Army's own personnel occurred at the field level. Agents collected information and filed "spot reports," "agents reports," and "summaries of investigation." Most of this data was forwarded up the chain of command but record copies were kept in data centers at every level of command. Manual files were maintained at every level. At least four and possibly more computer systems were employed to store, analyse and retrieve the information collected. Many files on lawful citizens were microfilmed and integrated with other files on persons who were suspected of violations of security and espionage laws. These computer systems were located in the headquarters of the Intelligence Command (Fort Holabird), the Continental Army (Fort Monroe), the Third Army Corps (Fort Hood), and in the Pentagon. More than one computer data bank was maintained in some of these locations. (Subcommittee investigation). 53. Testimony of Ralph Stein on the difficulty of labeling young people on the basis of their speech, when a difference of one digit was the difference between a communist and a non-communist. 1971 Hearings at 248, 260. 1972] First Amendment: The Computer Age 39 federal civil agencies, such as the FBI; and the power to investigate to determine whether civilians are about to violate state laws is reposed in state law enforcement officers. If President Johnson believed he ought to have had information to enable him to predict when and where civilians might engage in future domestic violence, he ought to have called upon the FBI or appropriate state law enforcement officers for the information. He had no power to convert the Army into a detective force and require it to spy on civilians. This conclusion is made plain by the Constitution and every act of Congress relating to the subject. Sections 331, 332, 333 and 334 of Title 10 of the United States Code certainly did not confer any such power on the President. These statutes merely authorized him to use the armed forces to suppress domestic violence of the high degree specified in them, and conditioned their use for that purpose upon his issuing a proclamation immediately ordering the offenders "to disperse and retire peaceably to their abodes within a limited time." The only other statute relevant to the subject is section 1385 of Title 18 of the Code, which prohibits the use of any part of the Army or Air Force "as a possee comitatus or otherwise to execute the law... except in cases and under circumstances expressly authorized by the Constitution or Act of Congress." The legislative history of this statute is fully revealed in the opinion of United States District Judge Dooling in Wrynn v. United States, 200 F. Supp. 457 (E.D.N.Y. 1961). When the words of this statute are read in the light of its legislative history, it is obvious that the statute is not limited by the expression "as a posse comitatus or otherwise," but operates as a prohibition against the use of the Army to execute the laws without reference to whether it is employed as a posse comitatus or as a portion of the Army. Indeed, the statute embodies "the inherited antipathy of the American to the use of troops for civil purposes." [200 F. Supp. at 465]. President Johnson's use of the troops to spy on civilians, to build data banks and create computerized information systems, discloses that relevance of this statute to our day is sadly clear. Since neither the Constitution nor any Act of Congress expressly, or impliedly, authorized such use, the President was forbidden by section 1385 of Title 18 of the United States Code to use the Army to spy on civilians. The Army's spying violated First Amendment freedoms of the civilians who became aware that they or the groups to which they belonged had been placed under surveillance. This is so because it 40 Columbia Human Rights Law Review [Vol. 4 undoubtedly stifled their willingness to exercise their freedom of speech, association and assembly.54 If any proof were needed of the logic and truth of this statement, it can be drawn from such testimony as the Subcommittee received from Dr. Jerome Wiesner who commented, Many, many students are afraid to participate in political The Subcommittee has heard no testimony yet that the Army's information program was useful to anyone. The only result of the 54. See Brief for Respondents filed in Tatum v. Laird in the Supreme Court of the United States, No. 71-288, challenging the Army's surveillance program, and arguing that plaintiffs' claims are justiciable and ripe for adjudication; that the present inhibiting effect on the exercise of First Amendment rights creates a justiciable controversy; that the justiciability of their claims is enhanced because the military exceeded its constitutional and statutory authority and intruded into civilian affairs; that they have standing to adjudicate these claims for themselves and the claims of others similarly situated; and finally, that they argue that their case cannot be mooted by the Army's assertion that its domestic surveillance activity has been reduced. The appendix contains an interesting and landmark study of the chilling effect of overbroad governmental programs on First Amendment activity from the social science view. All of the plaintiffs named have been subjects of political surveillance, and all are believed to be subjects of reports, files, or dossiers maintained by the Army." In an amici brief filed by Senator Ervin on behalf of the Unitarian Universalist Association, the Council for Christian Social Action, United Church of Christ, the American Friends Service Committee and the National Council of Churches of Christ, the question posed for review is framed as follows: Do individuals and organizations not affiliated with the armed services present a Essential though the freedoms are, they are not easily exercised in a climate of 1972] First Amendment: The Computer Age 41 testimony by the Defense Department was to confirm my belief that under the Constitution and under the laws, the Army had no business engaging in such data-gathering and that the scope and breadth of the surveillance was so broad as to be irrelevant to the purpose. Congress has still to discover the complete truth about these Army computers. Apparently, even officials responsible for intelligence did not know of the existence of the computers for implementing the program. The Subcommittee has repeatedly requested the testimony of the Army Generals who would be most knowledgeable about the computers and what they contained. We have just as repeatedly been denied their testimony as well as delivery and declassification of pertinent documents demonstrating the scope and purpose of the program. The Army said it would cut back on the datagathering on lawabiding citizens and would defer to the Department of Justice. So I asked the Justice Department officials how many computers that Department had containing information on people who lawfully exercised their First Amendment freedoms.57 56 I had seen newspaper articles quoting the director of the Justice Department's Interdivisional Information Unit. He said there that the computer's list of thousands of names is not a register of "good guys" or "bad guys." "It is simply a list of who participated in demonstrations, rallies and the like." This would include non-violent people as well as violent, he said.58 On the basis of these reports, I asked for the testimony of this official, but for some strange reason, he could not be located. Despite questioning during the hearings and correspondence with the Justice Department, we have been unable to obtain an accurate description of the use of Justice Department computers for collecting, processing and analyzing information on lawful First Amendment activities of citizens. Nor have we been able to ascertain or obtain the standards followed by the Department in deciding what individuals should be the subjects in such files, or how they should be excluded from such files. Legislative Remedies There has been much discussion of the need for new laws granting access to individual records. I believe a person should have the 55. 1971 Hearings at 765. 56. See exchange of correspondence on this subject. Id. Part II at 1046 A, 1180 Indices to letters. 57. Id. at 597, 849. 58. Id. at 616-22. |