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Exhibits 12 through 16 contain a broad sampling of the recordkeeping and dissemination practices of federal surveillance agencies. Files of different persons are often intermingled if they have associated in any way together; derogatory generalizations are made about groups or organizations in the files of persons who have been members or associates; information is collected from and disseminated to sources known by the investigative agencies to be prejudiced against or hostile to the subject of a non-criminal investigation; information about lawful private or political activities is characterized in a subjective and derogatory manner; and erroneous or misleading information is released about the scope and purpose of intelligence gathering activities.
Finally, exhibit 17 provides several examples of surveillance programs conducted by the FBI and military intelligence to "disrupt" political organizations and discredit their leaders.
SCHEDULE OF EXHIBITS
1. 25-year warrantless wiretap on domestic organization. Saxbe Affidavit, Dellinger v. Mitchell, C.A., No. 1768-69 (D.D.C.)
2. 21-month warrantless wiretap on former National Security Council aide. Second Amended Complaint, Halperin v. Kissinger, C.A. No. 1187-73 (D.D.C.) 3. Interception of Detroit attorney 40 times on 13 separate warrantless wiretaps initiated after 1972 Supreme Court decision barring domestic security taps. Saxbe Affidavit, Jabara v. Kelley, C.A. No. 39065 (E.D. Mich.)
4. Interception of civilian American attorneys in Germany on warrantless Army wiretaps. McDougal and Schreiber Affidavits, Berlin Democratic Club v. Schlesinger, C.A. No. 310-74 (D.D.C.)
5. District Court opinion declining to hold "foreign security" surveillance legal on basis of ex parte in camera submission by FBI. Jabara v. Kelley, supra (January 17, 1975).
6. Justice Department interpretation in Congressional hearings of 1972 Supreme Court decision invalidating warrantless domestic security wiretaps. Testimony of Kevin T. Maroney, Deputy Assistant Attorney General, Hearings before Subcommittee on Administrative Practice and Procedure, Senate Judiciary Committee, 92nd Cong., 2d Sess., June 29, 1972, at 70.
7. Access to private bank records without legal process by FBI and Secret Service. Forcade v. Knight, C.A. 1258-73 (D.D.C.); Kenyatta v. Kelley, C.A. No. 71-2595 (E.D.Pa.); ACLU v. Shultz, C.A. No. 1330-72 (D.D.C.). See also Exhibit 12.
8. Secret Service access to telephone toll records without legal process. Forcade v. Knight, supra.
9. FBI access to credit records without legal process. Forcade v. Knight, supra. 10. Mail covers and mail opening without legal process by FBI, Secret Service and Army Intelligence. Paton v. La Prade, C.A. No. 1091-73 (D.N.J.); Forcade v. Knight, supra; Berlin Democratic Club v. Schlesinger, supra.
11. Use of undercover agents and informers in political and religious groups by FBI and Army Intelligence. Kenyatta v. Kelley, supra; Berlin Democratic Club v. Schlesinger, supra. See also Exhibit 4.
12. Non-criminal investigation of Arab-American attorney by FBI for seven years, including 50 wiretap interceptions, inspection of his bank records, continuous physical surveillance and data collection, solicitation of derogatory data from domestic zionist groups and constant dissemination of data about subject outside FBI. Jabara v. Kelley, supra.
13. FBI investigation of former Member of Congress. Lowenstein v. Rooney, C.A. No. (E.D.N.Y.).
14. Release of "erroneous or misleading" information by Army Intelligence concerning the scope of its surveillance of American civilians. Berlin Democratic Club v. Schlesinger, supra; Laird v. Tatum, 408 U.S. 1 (1972). See also Exhibit 4.
15. Cross-referencing of files and construction of political "spiderwebs" by FBI and Army Intelligence. Forcade v. Knight, supra; Berlin Democratic Club V. Schlesinger, supra.
16. Dissemination of derogatory reports by Army Intelligence about civilian, political and legal activities. Berlin Democratic Club v. Schlesinger, supra. 17. FBI and Army Intelligence "disruption" programs. COINTELPRO Black Panther Party proposal; Kenyatta v. Kelley, supra; Berlin Democratic Club v. Schlesinger, supra.
(By John H. F. Shattuck)
John H. F. Shattuck is a national staff counsel of the ACLU, coordinating litigation on privacy, surveillance, and government secrecy.
This article is adapted from "Tilting at the Surveillance Apparatus," which first appeared in Civil Liberties Review, Summer 1974, Copyright 1974 by the American Civil Liberties Union. Reprinted by permission of the copyright holder and the publisher, John Wiley & Sons, Inc.
Political surveillance the search for enemies of the government through techniques traditionally associated with law enforcement-has a long and troubled history in the United States. Modern methods of controlling political expression were first used during the aftermath of World War I and the Russian Revolution, when a general threat to existing authority began to haunt most Western countries. The periodic "Red Scares" and anti-fascist drives of the twenties and thirties created increasing demands for political surveillance, while the McCarthy era produced the first full flowering of such techniques as bugging, wiretapping, and undercover infiltration, all of which have been refined for more intensive use against political activists in our own era.
The last decade has witnessed dramatic developments in the investigative and data-gathering activities of government at all levels. Massive injections of funds into police and other security agencies were made by political leaders bent both on responding to their constituencies' frustrations with rising crime rates, and on allaying their own fears of growing political dissent. The most tangible product of all this surveillance is a vast increase in the government's maintenance and dissemination of personal intelligence records on the millions of citizens who had participated in or supported activities considered by the surveillance bureaucracy to warrant scrutiny.
THE LITIGATION RESPONSE
Not surprisingly, these developments have provoked a variety of responses from civil liberties groups. One major response has been litigation. During the past four years, a wide variety of lawsuits have been initiated to restrain the growth of political surveillance. These suits offer a panoramic view of controversial political groups and leaders and of the heads of the government's intelligence apparatus. Among them are:
Kenyatta v. Kelley, challenging the FBI surveillance of a black nationalist leader; including searches of his bank records, wiretapping, sending informers into his organization and placing his name on a "Security Index" of political dissenters.
Fonda v. Nixon, a suit against the President, White House aides, and other officials for having ordered federal agents to inspect Jane Fonda's bank records, burglarize her car and seize her baggage and other property; thereby subjecting her to continuous surveillance and impairing her reputation.
Laird v. Tatum, a class action to enjoin the Army from collecting intelligence on domestic political activity.
Kent State Vietnam Veterans Against the War v. Fyke, a damage suit against Kent State University for placing on campus an undercover police agent who tried to persuade VVAW members to purchase weapons and to blow up campus buildings.
In all, approximately 75 lawsuits against political surveillance practices have been brought in recent years. Perhaps 100 lawyers have been involved throughout the country. Thousands of pages of testimony have been taken, hundreds of briefs written, and dozens of opinions rendered by courts.
What has all this litigation accomplished so far? If the measure is how often courts have ordered the government to cease illicit political surveillance practices, or awarded damages to those whose political liberty was impaired, the outcome of four years of litigation is at best mixed in terms of its projection of First Amendment rights. Two major decisions are typical:
In Laird v. Tatum, the Supreme Court in a 5-4 decision in 1972 dismissed as "nonjusticiable" a class action seeking to enjoin the Army's program of gathering
intelligence on civilian dissenters. The majority opinion held that the plaintiffs were attacking the "mere existence and operation of the intelligence operation" and not specific acts. Nevertheless, the Army substantially reduced its challenged program in response to the lawsuit and congressional hearings condemning military surveillance.
In Anderson v. Sills, the New Jersey Supreme Court in 1970 reversed a lower court decision enjoining local and state police from collecting and maintaining a special statewide intelligence file on political protest groups. The court ordered a trial on whether the data collection had a "chilling effect" on political activity, but the case has since become bogged down in procedural issues.
In terms of constitutional doctrine, many of the political surveillance decisions between 1969 and 1972 were undoubtedly discouraging to civil libertarians. With one major exception, no recent Supreme Court decision has significantly curtailed the power of the government to eavesdrop, employ informers and undercover agents, collect data, or use photographic surveillance against political groups. The major exception was the unanimous 1972 decision in United States v. United States District Court, rejecting the government's assertion that the Executive Branch has an inherent power to wiretap domestic radicals without a court order to protect the national security. However, the Supreme Court held a few months later in Laird v. Tatum, that plaintiffs in civil cases must prove concrete injury to themselves before the courts can review most claims of improper surveillance.
Nevertheless, beginning in 1973, lower federal courts throughout the country, affected in all probability by judicial concern over the Watergate revelations, have shown a more critical attitude toward the government's claims of power to investigate political groups. These decisions have not yet produced definitive rulings which hold physical surveillance and the use of informers or dossier systems unconstitutional, and have not yet expanded the Supreme Court's ringing prohibition in 1972 of warrantless domestic security wiretapping. What the rulings have done, however, is to reject government motions to dismiss antisurveillance suits and to uphold requests by plaintiffs that local or federal agencies reveal traditionally secret aspects of their surveillance operations in pre-trial discovery proceedings. They have narrowed the scope of Laird v. Tatum and Anderson v. Sills in ways that open up opportunities for further litigation.
To overcome the judicial attitudes toward surveillance which have thwarted several major lawsuits, recent litigants have shelved, at least temporarily, the broad claim that government surveillance inevitably exerts a chilling effect on political activities. In such cases as Laird v. Tatum, plaintiffs have discovered that their claims of "chilling effect" have led to a Catch-22 situation in which courts rejected their arguments since anyone "chilled and cowed" would not bring a lawsuit.
To get around this roadblock litigants have recently been framing surveillance suits more narrowly. Fewer plaintiffs are involved, and those who are can demonstrate that they are the specific targets of the surveillance, and that it is being used to deny judicially recognized First Amendment rights. In doing so they have isolated and succeeded in striking down surveillance which results in the punitive treatment and public branding of persons engaged in First Amendment activity.
A federal court of appeals last year, for example, ruled in United States Servicemen's Fund v. Eastland that the House and Senate Internal Security Committees violated the First Amendment by secretly obtaining bank records of a peace group. The decision did not rest on any chilling effect. The court stated: "The right of those engaged in activities which may not meet with popular favor to be free from having either state or federal officials expose their affiliation and membership . . . has been made clear a number of times."
This traditional First Amendment analysis has been adopted in several other recent lower court decisions in cases involving the misuse of surveillance. In Yaffe v. Powers, for example, a broad challenge to police photographic surveillance in Fall River, Massachusetts, was upheld by the First Circuit Court of Appeals in part because one of the plaintiffs was a candidate's wife whose police photograph, picturing her leading an antiwar demonstration, was released to the press on the eve of the election. This is an example of what a federal court in Wisconsin recently found to be "harm from the bad faith operation of
the surveillance system" in a ruling that sustained a complaint alleging that police and FBI files on demonstrators had been widely disseminated so that one of the plaintiffs had difficulty finding a job (Bach v. Mitchell).
These recent decisions and others like them suggest that litigants should go back to the roots of the First Amendment in order to escape the judicial limits set in earlier cases. Following this approach, there is one area in which dramatic gains have been registered in previously alien territory: the use of informers and undercover agents to conduct searches by deceit and to provoke the groups they have infiltrated to commit illegal acts.
The heart of most effective surveillance operations is the undercover operator. Unlike technological surveillance devices, such as the wiretap or the hidden camera, the human agent can exercise a high degree of control over the surveillance subject. In fact, his credibility is often enhanced when he participates in and helps to shape the activities of those he is watching.
Though the law does not prohibit deceptive police practices, it does protect individuals against entrapment. The defense of entrapment was first recognized by the Supreme Court in 1932 in Sorrells v. United States, which held that the police could not manufacture crime in order to ensnare suspects. The Court's dissenters in Sorrells would have permitted a broader entrapment defense, rejecting prosecutions when the police have engaged in illegal conduct regardless of any unlawful intent ascribed to the defendant.
Over the last forty years, in a controversy similar to that over the exclusion of illegally seized evidence, courts have debated the merits of adopting the Sorrells minority position as a means of deterring police misconduct. In a decision last year, however, the "subjective test" of entrapment was reaffirmed in Russell v. United States, although the Supreme Court left open two important questions: first, whether entrapment is established if the crime itself is entirely created by the government with the assistance of a "willing defendant" and second, whether agents and informers can be permitted to operate freely among persons whom they have no reason to believe are engaged in criminal activity. Several recent lower court decisions have answered these questions in the negative. The most striking case is Kent State Vietnam Veterans Against the War v. Fyke. There, a group of campus antiwar veterans had been infiltrated by a campus police agent who they allege had urged them to take up arms and blow up campus buildings. His colleagues called the police, and the agent was arrested by the municipal police for illegal possession of firearms, although he was quickly released when campus police verified that he was an undercover agent.
The veterans filed suit in federal court against the university and its police force on the theory that their First and Fourth Amendment rights had been denied because, even if they were eventually acquitted, the intended entrapment would have thoroughly discredited their political activities. The trial judge sustained the plaintiffs' complaint for damages and injunctive relief against the state's motion to dismiss, and then granted a series of broad discovery orders permitting the veterans to obtain extensive files which the campus police had compiled on their activities as a result of the undercover agent's work. The judge consistently made a distinction between the use of undercover agents for the purpose of investigating a specific crime, and undercover surveillance to investigate "subversive activities," which as he put it, “is a large canopy and a large tent where . . there might be some constitutional rights involved."
Throughout the proceedings in the Kent State case, the guiding precedent was a 1972 lower federal court decision in Handschín v. Bureau of Special Services involving the use of undercover agents among political dissenters by a special unit of the New York City Police Department. In that case the district judge ruled that while informers per se do not violate constitutional rights, the plaintiffs' allegations that "an anti-Vietnam organization of veterans disbanded due to the actions of a named informer," as well as the police efforts to create dissension among various anti-war groups placed the suit "beyond the pale of [Laird v.] Tatum."
OPENING THE FILES
Over the last two years, there have also been new developments in broadening and speeding up the discovery process. The most frequent problem in surveillance litigation isits protracted and inconclusive character. Since the government has a virtual monopoly on the evidence, a private litigant must make herculean efforts to extract information from his adversaries before he can even begin to press his claims on the merits.
For a variety of reasons, discovery often proceeds at a snail's pace no matter how diligent the plaintiffs are. The problem is well illustrated by Anderson v. Sills, the New Jersey case in which the state supreme court reversed the trial court's ruling that a statewide surveillance program was unconstitutional per se, and ordered the plaintiffs to prove their allegations that the program had a chilling effect on speech. A dozen depositions by the plaintiffs revealed little new information. The barriers thrown up by government lawyers in these depositions would fill a handbook on "how to keep the demonstrators out of court." The classic ploy is to refuse to answer any questions seeking factual information on the ground that it is protected by an "investigatory privilege.” At the same time, defendants will often decline to answer questions probing the government's purpose and method of operation because those inquiries are too "broad."
A frustrating example is the deposition of Lieutenant Michael Goch, supervisor of the Central Security Unit of the New Jersey State Police. In the questioning by Frank Askin, attorney for the plaintiffs, the following colloquy was typical:
Q. What is the personnel, how large is the personnel of the Central Security Unit?
Mr. Zauber (attorney for the state): I direct you not to answer that question, Lieutenant.
Q. What kinds of equipment are possessed by the Central Security Unit other than ordinary office equipment?
A.: I direct you not to answer that question.
Q: Does the Central Security Unit possess any kind of special photographic equipment?
Mr. Zauber: I direct you not to answer that question.
And so on for a number of questions . .
This rather tortured dialogue reads like a section of the record in Jarndyce v. Jarndyce, the ill-fated and interminable suit imagined by Charles Dickens, which "drags its dreary length before the Court, perennially hopeless."
The only way to overcome such typical stonewalling and evasion is to bring the discovery problems to court and move to compel the production of information or documents. However, because such motions raise thorny issues of governmental privilege, they tend to become intertwined with the merits of the litigation and are often held awaiting decision for months or even years. In Anderson, for example, motions to compel discovery have been awaiting decision for more than two years and in Kenyatta v. Kelley it took 14 months for a ruling to be made on discovery motions.
Over the past year, however, there have been several developments which indicate that the pace of discovery is quickening. The power abuses disclosed in the Watergate and impeachment hearings have, no doubt, given credence to allegations of government misconduct. Furthermore, since recent lawsuits have been framed with greater specificity, it is now more difficult for the government to evade the issues. Several important decisions have rejected governmental claims of investigatory and executive privilege.
The pattern of government evasion in wiretap cases has become so clear that some courts have refused to accept sworn general denials of illegal surveillance activities. Several federal judges have recently ordered FBI officials to set forth in detail how they supposedly searched the Bureau's records to determine whether a particular person was wiretapped, despite a sworn denial of wiretapping.
Finally, trial courts in some cases have grown so impatient with the government's refusal to disclose information at the core of a surveillance case that they have simply ruled the withholding to be an admission against the government's interest. One dramatic decision in this area was federal Judge Charles Richey's conclusion in Center of Corporate Responsibility v. Smultz that the White House had pressured the IRS to deny tax-exempt status to a Ralph Nader-affiliated public interest organization, the Center on Corporate Responsibility. The ruling was based substantially on the government's refusal to grant discovery of documents.
EXPOSING POLITICAL SURVEILLANCE
In an era in which the White House Plumbers and the Symbionese Liberation Army have shared the front pages, the law of government surveillance must be clarified. Given the difficulties in litigating an anti-surveillance lawsuit, and