gration laws where such assistance is sometimes needed. This avoids the implication that $375 as reported by the Subcommittee bars personnel assistance outside the area of controlled substance enforcment. Fifth, the alternative language suggested above would permit military personnel assistance related to maintenance of equipment anywhere as such equipment maintenance activities do not raise the tort claims concerns expressed by the Deparment of Defense and do not place military personnel in the type of direct contact with civilians prohibited by the Posse Comitatus Act. Similarly, assistance in the operation of equipment necessary to track and communicate the movement of air and sea traffic is permitted both inside and outside the United States as such activities by the Department of Defense and reflected by enactment of the Posse Comitatus Act. To the extent that military personnel operate equipment or assist therein, however, such activities are limited to missions occurring outside the United States. This will help to clarify that the military may assist civilian law enforcement personnel outside the land areas of the United States. Moreover, with exception of asistance in tracking and communication of movements of air and sea traffic, it is primarily in the territorial waters of the United States and points beyond that civilian law enforcement officials could benefit from military assistance. Federal drug agencies do not need military assistance, within the United States, in connection with drug arrests and seizures or in connection with operation of most kinds of equipment. Given the significant resources of federal, state and local law enforcement agencies, we are presently able to assemble, on short notice, a wellequipped force of civilian law enforcement officials sufficient to deal with any domestic drug enforcement situation. Representatives of the Department are, of course, available at your convenience to discuss this proposal in more detail and to furnish such additional information as you may require. Sincerely, RUDOLPH W. GIULIANI, Associate Attorney General. Rep. PETER W. RODINO, Jr., FRIENDS COMMITTEE ON NATIONAL LEGISLATION, DEAR REPRESENTATIVE RodinO: I call your attention to the proposed revisions in the Posse Comitatus Act which were added to the Military Appropriations Bill (H.R. 3519) by the Armed Services Committee. The Crime Subcommittee of the House Judiciary Committee heard testimony on these proposals this afternoon and will be marking-up the bill tomorrow. Briefly, this language would broadly extend the use of military personnel and resources in civil law enforcement activities. The Friends Committee on National Legislation is strongly opposed to this gross expansion of military activity in domestic situations. This country has a long and respected history of civil government and civil enforcement of its laws. Far from being an outmoded concept left over "accidently" from post-Civil War days, the Posse Comitatus Act has served over the years as a wise and necessary aid to the preservation of civil law enforcement authorities who are accountable to civil governments. If you have not already had the opportunity to do so, I urge you to review the analysis of this legislation prepared for the Subcommittee by Professor Christopher Pyle. According to Professor Pyle (and according to the Government Operations Committee report), it is already possible under current law for military agencies to lend equipment and expertise to non-military agencies, including law enforcement agencies. But the language in the bill goes far beyond allowing such reasonable assistance; it authorizes the participation of military personnel in actual arrests. The bill does not specify the number of troops to be used for any one arrest, nor the number of arrestees or seriousness of the crime which could warrant military intervention. Future "drug busts" featured in the paper may show a house surrounded by Army troops and weaponry. In spite of the deep concern of the general population about the drug problem, the American people will not accept law enforcement by the military for long. We do not see ourselves as a people ruled or controlled by a military government. We urge you to use your best efforts to remove this entire section (908) from H.R. 3519. If those efforts are not successful, perhaps the committee would be willing to accept language which deletes the authority to use military personnel in actual arrests. Senator Nunn's S. 441 contains such language. We hope you will share our concern on this issue. Sincerely yours, RUTH FLOWER, Legislative Secretary. Hon. WILLIAM J. HUGHES, MORGANTON, N.C., June 2, 1981. Chairman, Subcommittee on Crime, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR BILL: Many thanks for your letter of May 22, 1981 which has just reached my office. I do not question the good intentions of any member of Congress. However, it is well to remember that good intentions are responsible for all legislative mistakes and that only a faithful obvservance of the letter and spirit of the Constitution will protect Americans from tyranny on the one hand and anarchy on the other. The Constitution clearly contemplates that no part of the armed forces shall be used in the United States for any purpose other than the following: (1) To repel a foreign foe; (2) to quell a domestic insurrection against the government; or (3) to suppress domestic violence which the states are unable to suppress without federal aid. On several occasions in the past the armed services have been used for other purposes. For instance, they were wrongfully used to enforce the excise tax on whiskey in the early days of the Republic; they were used during Reconstruction by Congress which wanted to supervise elections in the South; they were used on some occasions by unwise officers to aid civilians in enforcing civil laws; and they were used without any legal authority during 1967 and 1968 to spy on civilians. The second of these uses inspired an act of Congress which forbids the use of the armed forces in connection with elections, and the third inspired the Congress to enact the Posse Comitatus Act which forbids the use of the military forces for law enforcement purposes. The fourth constituted one of the foulest episodes in modern American history and inspired my Subcommittee on Constitutional Rights to conduct a protracted investigation of the alleged use of the armed services. I have recently written an article about the army spying on civilians, and take the liberty of enclosing a copy of it which explains in detail what an unwise use of the army it was. Congress ought to stick to the Constitution and wise practices of the past. The military forces should never be used for law enforcement purposes even for the purpose of suppressing the drug traffic. While such use may seem comparatively insignificant to some, it is well to remember that the wisest advice Americans ever received was when James Madison told them to resist the first incursion upon their liberties. Despite my high respect for those who wish to use the military forces to fight the drug traffic, I cannot find words adequate to express how unwise that would be. I have no objection to the military forces furnishing information about drug violations which it inevitably receives while discharging its proper functions. But I do deplore any prospect of the military forces actively seeking any information or taking any other action to enforce civil laws against drugs or anything else. With all good wishes, I am, Sincerely yours, Enclosure. SAM J. ERVIN, Jr., ARMY SPYING ON CIVILIANS President Johnson ordered federal troops to Detroit in the summer of 1967 to aid Michigan to quell destructive riots in negro slums. Acting without lawful authority, in defiance of national traditions, and in secrecy, the Army seized on this event as an excuse to convert its intelligence units into a nationwide detective force, and to assign about 1500 of them to spy as plainclothes agents on civilians and organizations in virtually every area of the United States. This activity was first publicly exposed by Christopher H. Pyle, who had served as a Captain in the Army's intelligence installation at Fort Holabird, Maryland. In an article which appeared in the January, 1970, issue of the Washington Monthly, he detailed the Army's massive surveillance of civilians and organizations having no connection with it, and revealed how it had stored information concerning them in a computer at Fort Holabird, and in manual files elsewhere. On December 16, 1970, I read to the Senate a letter written to me by John M. O'Brien, who had formerly served with an Army intelligence unit in the Chicago area. He described how this unit targeted for surveillance 800 persons in Illinois, collected by overt and covert means information about them, stored such information in dossiers, and transmitted some of it to intelligence installations elsewhere. Among those persons were Senator Adlai E. Stevenson, Representative Abner Mikva, and United States Circuit Judge and former Illinois Governor Otto Kerner, as well as state and local officers, clergymen, journalists, lawyers, and contributors to political and social causes. For a time officers of the Department of the Army sought to lay the charges implicit in the revelations of Pyle and O'Brien to rest by denying them or professing ignorance of them. These revelations were soon corroborated, however, by other former Army intelligence agents, and provoked much congressional concern as well as criticism in the press. By way of response, Secretary of Defense Melvin R. Laird took steps in late December, 1970, to subject military intelligence operations to strict controls, and shortly thereafter the Secretary of the Army instructed the Army's intelligence commanders to leave the surveillance of domestic political activities to the Department of Justice and to purge the records at Fort Holabird of information relating to them. The Department of Defense and the Department of the Army sought in various ways to stymie the efforts of the Subcommittee on Constitutional Rights to obtain the truth relating to the Army's surveillance of civilians. In so doing, they illustrated the validity of what I said on another occasion: "As all of my colleagues are well aware, the difficulties the Congress encounters in wresting embarrassing information out of an executive agency at times seem to dwarf the troubles the biblical camel must encounter in passing through the eye of a needle. It matters not that the events under investigation took place in the past under officials that have long since left. The usual response to a congressional request for information which is potentially embarrassing is to draw the wagons around the agency and prepare for a seige. Only the most persistent and irresistible forays by the Congress bring results." Notwithstanding the obstructive tactics of the Department of Defense and the Army, the Subcommittee held illuminating hearings in February and March, 1971, and established by the indisputable testimony of former Army intelligence agents and others the occurrence of the events set out in the ensuing paragraphs. Beginning in 1967 and ending in 1970 the Army ordered hundreds of its intelligence agents operating out of installations in virtually all areas of the country to spy on thousands of civilians and hundreds of private organizations whose activities had no relationship to any mission assigned by our constitutional and governmental systems to the Army. These civilians and organizations were not put under surveillance for violations of laws. On the contrary, the overwhelming majority of them were simply exercising their First Amendment rights to freedom of thought and speech and association to protest government policies they deemed unwise. These Army intelligence agents attended public protest meetings and rallies in disguises, surreptitiously infiltrated college campuses, churches, and various organizations of civilians, and secretly collected by notes, tape recordings, photography, newspaper clippings, and other means vast information concerning the attitudes, aspirations, thoughts, beliefs, private communications, public utterances, and in some instances the financial conditions of civilians past numbering who opposed our country's involvement in the war in Southeast Asia and the use of the draft to augment its military forces there, or who dissented from some policies of the administration relating to labor, racial, and welfare matters. Some of the information pertained to clergymen, editors, public officials, and others who had merely manifested a sympathy with the views of the dissenters or undertaken to justify their right to dissent. The Army stored the information its agents collected in computers at Fort Holabird, Maryland, Fort Monroe, Virginia, and Fort Hood, Texas, and numerous manually operated data banks, exchanged the information with the Federal Bureau of Investigation and various state or local law enforcement agencies for information gathered by them, and undertook to classify some of those to whom the information related as highly undesirable characters. Among the hundreds of diverse groups subjected to Army surveillance were these: American Civil Liberties Union, American Friends Service Committee, American Society of Friends, American Veterans Committee, Americans for Constitutional Action, Americans for Democratic Action, Anti-Defamation League of B'nai B'rith, Clergy and Laymen Concerned About Vietnam, Foreign Policy Association, Friends Committee on National Legislation, Fund for the Republic, International Longshoreman's and Warehouseman's Union, John Birch Society, Ku Klux Klan, League of Women Voters, Liberty Lobby, Life Line Foundation, Manion Forum, Minutemen, Mississippi Freedom Democratic Party, Moral Re-Armament, N.A.A.C.P. Legal Defense and Educational Fund, National Association for the Advancement of Colored People, National Association for the Advancement of White People, National Baptist Convention, National Committee for a Sane Nuclear Policy, National Council of Churches, National Democratic Women's League, United World Federalists, Urban League, White Citizens Council, Young Americans for Freedom, and Young Democrats. On some occasions the Army carried its surveillance of civilians to absurd lengths. An intelligence agent dutifully reported to his superiors that in obedience to orders he attended religious services at a church in Philadelphia. According to his report, hymns were sung, prayers were said, a collection was taken up, the minister preached a sermon on a biblical text, and the congregation dispersed quietly. In mid-September, 1969, Lawrence F. Lane, a former intelligence analyst and undercover agent at Fort Carson, Colorado, who tesified at the hearings, was ordered to tape record the speeches at a rally protesting our involvement in military operations in Vietnam. Fifty-three intelligence agents disguised as newsmen spied on the 66 demonstrators at the rally. Lane testified that the speeches were innocuous, but he was unable to tape record them because several Army helicopters flew directly overhead during the rally and his recorder could not register anything except the noise they made. The Army's excuse for its surveillance of civilians was that it was seeking information to enable the President to predict where insurrections or civil disturbances requiring the deployment of federal troops might occur. This was a task, I submit, for the Federal Bureau of Investigation and other federal and state civilian authorities, and not for the Army. It is difficult to conjecture how the information collected by the Army concerning civilians was useful for this purpose. A former Secretary of the Army succinctly stated its value when he said that the Army surveillance activities "were a damned waste of time." In summarizing the Army's activity, I said: "More than 100,000 civilians were subjects of surveillance by military intelligence. At its height, the monitoring was carried out by more than 1500 agents. Their reports were fed into scores of computers and data banks across the country. No meeting or demonstration was too trivial to note; no detail of one's personal life too irrelevant to record. The documents which the Subcommittee examined were, indeed, alarming. Basic rights of free expression and association were ignored. The First Amendment took a back seat to the military's insatiable quest for information on political dissent." Despite the disclaimer of persons in high places, it is difficult for even the most naive to believe the Army conducted its massive surveillance of civilians_without authority, acquiescense, or knowledge of the White House and the civilian Secretaries of Defense and the Army. Although evidence clearly demonstrated that high ranking Army officers ordered the surveillance and received in one form or another the information it produced, the Subcommittee was unable to obtain any positive evidence linking the White House and the civilian Secretaries of Defense and the Army to the Army's monitoring activities. Its efforts to do so were thwarted by Secretary of Defense Laird who forbade the Army officers having command of the operation to testify before the Subcommittee or give it any information on the subject. As the Secretary knew and intended, his action made it impossible for the Subcommittee to obtain the evidence of these officers in respect to the origin of the surveillance. This was so because Congress undertakes to regulate matters of this nature by an antiquated, unintelligent, ineffective, and unjust statute. Under it, Congress must beg an agency of the executive branch, i.e., the Department of Justice, to prosecute the executive officer who refuses to testify before a congressional committee in obedience to the command of his superior, and the Department of Justice must satisfy a jury beyond a reasonable doubt that in so doing the executive officer was manifesting his willful contempt for Congress. As a result of this unhappy experience, I afterwards joined Senators Edmund S. Muskie, and William V. Roth, Jr. in introducing a bill providing a direct, effective and simple civil remedy for problems of this nature. The Senate approved the bill without dissent, but for some unfathomable reason the House would not accept it. I subsequently introduced a bill to enforce the First Amendment and the Fourth Amendment to the Constitution and the constitutional right of privacy by prohibiting the use of the armed forces of the United States or the militia of any state to conduct surveillance over or collect information regarding "the beliefs, associations, or political activities of any person not a member of the armed forces of the United States." This bill appears in the Congressional Record of August 1, 1973. My bill was sponsored by Senators James Abourezk, Howard H. Baker, Jr., Birch Bayh, J. Glenn Beall, Jr., Alan Bible, Howard W. Cannon, Clifford P. Case, Frank Church, Alan Cranston, Thomas F. Eagleton, William Fulbright, Mike Gravel, Philip A. Hart, Floyd K. Haskell, Mark O. Hatfield, Harold E. Hughes, Hubert H. Humphrey, Daniel K. Inouye, Jacob K. Javits, Edward M. Kennedy, Mike Mansfield, Gale W. McGee, Frank E. Moss, Charles H. Percy, Jennings Randolph, Abraham A. Ribicoff, William V. Roth, Jr., Robert T. Stafford, Adlai E. Stevenson, John V. Tunney, Lowell P. Weicker, Jr., and Harrison A. Williams, Jr. Notwithstanding the strong support for my bill, the Senate Judiciary Committee relied upon the assurances of the Administration that the armed forces would never again be allowed to exercise surveillance over civilians and private organizations, and for that reason failed to report it to the Senate for its consideration. NATIONAL ORGANIZATION For the Reform of Marijuana Laws, Hon. PETER W. RODINO, Jr., DEAR REPRESEntative RodinO: The House Judiciary Committee has obtained a sequential referral for H.R. 3519, which expires June 10th. This is the Defense Department's appropriations bill. Section 908 of that bill authorizes the military to provide information, equipment, facilities and personnel for the enforcement of civilian law. This language would supersede law that has forbidden military enforcement of domestic law for over 100 years. The Subcommittee on Crime will be holding hearings on H.R. 3519 on Wednesday, June 3rd. The use of the military against civilians has the potential for immense violations of civil rights. The military's history of abuse in the gathering of intelligence during President Nixon's years is a signal of the type of abuse we can expect in the future. A role for the military in domestic law enforcement is being created under the pretext of drug law endorcement. However, under Section 908's current language, only the provision of personnel is limited to drug law enforcement; the provision of equipment, facilities and information is not limited to enforcement of drug laws. Under its current language, the bill would allow the use of military camps as prison camps. Even if the language were changed to limit the military to assisting only in drug law enforcement, its role would be very substantial. According to the National Institute on Drug Abuse (NIDA), thirty percent of the adult population have tried marijuana-25 million people use it regularly. These are among the most violated laws in the country. To allow the military to enforce marijuana laws is to give the military a leading law enforcement role, something that has never existed before in this country. The enforcement of criminal laws against marijuana use is already a severe drain on law enforcement resources. The military should not be depleted of its resources by enforcing these laws. Just as marijuana has corrupted the Drug Enforcement Administration, it can corrupt the military. NORML urges you to actively oppose Section 908 of H.R. 3519 and to urge the Committee to report the bill unfavorably with clear limitations reported in Committee reports on the bill. I would be happy to meet with you or your aides on this subject. If you have any questions, please do not hesitate to call me. Thank you for your consideration. Sincerely, |