SUPPLEMENTARY DETAILED STAFF REPORTS
ON INTELLIGENCE ACTIVITIES AND THE
RIGHTS OF AMERICANS

_______

BOOK III
_______

FINAL REPORT

OF THE

SELECT COMMITTEE
TO STUDY GOVERNMENTAL OPERATIONS

WITH RESPECT TO

INTELLIGENCE ACTIVITIES
UNITED STATES SENATE

APRIL 23 (under authority of the order of April 14), 1976

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. 1 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 and 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, 4 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

The Bill of Rights to the Constitution, adopted in 1791, established additional restraints applicable to all government authority, including the military, by forbidding any exercise of governmental power which infringes upon certain rights of the people, 8 among them, the right 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 prohibited from investigating private citizens and private organizations. Congress did enact the Posse Comitatus Act 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. 11 Apart from the Posse Comitatus Act, 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, including the military, from maintaining records which reflect "how any individual exercises rights guaranteed by the First Amendment." 14 While the Act does not prohibit investigations per se, 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 specific statutes because of the tactics employed in investigations of civilians. It does not attempt to evaluate the foreign intelligence and other investigative activities of the Department of Defense in terms of their efficiency or usefulness.

B. Summary of Improper Surveillance Activities

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 political activities of private citizens and private organizations in the late 1960s; (2) monitoring 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.

1. Collecting Information about the Political Activities of Private Citizens and 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. 15 Prior to the 1960s, the President's exercise of this authority had been relatively infrequent.

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 response 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, monitored 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 sought approval from the Federal Communications Commission. The FCC, after receiving an opinion from the Attorney General, advised the Army that such monitoring was illegal. Nevertheless, 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 Considered "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 groups for surveillance rested solely with the commanders of occupying Army 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 penetrations, 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 German 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.

"Threat" investigations are still conducted at present, but under internal controls of the Department of Defense.

4. Assisting Law Enforcement Agencies in Surveilling Private Citizen and Organizations. -- The Posse Comitatus 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, it joined other intelligence agencies in 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. 18a

C. Effect of 1971 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. 20 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 questions: 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 maintainin 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. Conduct and Scope of Investigation

The Committee's inquiry, as summarized above, is divided into four parts. One recognizes at the outset that the first of these -- the Army's domestic surveillance program of the late 1960s -- has heretofore been the subject of a congressional investigation. 21 The Select Committee determined, however, that it could not ignore this largest of military intelligence abuses, 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.

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 ACTIVITIES OF PRIVATE CITIZENS AND PRIVATE ORGANIZATIONS: 1963-1970
A. Legal Authorities

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 Lined 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 Congress that such authority could be implied, and would justify the 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, 31 and it questioned 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. Origins 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 the South, 34 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. 35 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. 36 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. 38

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 troops bad 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 the post-mortems which followed the Detroit riots, the lack of adequate intelligence 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 after-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. 47

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 coming 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. 51

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 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 White House on January 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 in 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 things, 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 a plan be prepared formally directing the Army to collect civil disturbance information on a nationwide scale. 61

C. 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 deception 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 for a civilian demonstration -- the so-called Washington Spring Project. Martin Luther King, Jr. had announced his intention of bringing the nation's poor to Washington 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

Two other changes were brought on by the King assassination riots. The Secretary of the Army 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 information were sweeping:

The requirements of the plan were both 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 information directed at the Department of Army.... So comprehensive were the requirements levied in the civil disturbance information collection plan that any category of information 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 information were even levied which required collection on activities and potential activities of the public media, including newspapers and television and radio stations. 71

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 Army by this time for information on individuals land organizations involved in domestic dissent. 73 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. 74 Their demands 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 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. 78

Thus, there developed, 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." 79

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 1960s. The following discussion thus encompasses activities undertaken both under "routine" circumstances and during major protest demonstrations.

(1) The Covert Penetration of Civilian Groups. -- 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 dimensions. 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

-- 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; 94

-- Army agents infiltrated a Yippie commune in Washington, D.C., prior to the 1969 Inauguration; 95

-- Army agents attended 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 Washington, in January 1969. 99

(2) Posing as Newsmen/Covert Photography. -- Army intelligence agents 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. 100 This technique was repeated during subsequent demonstrations in Atlanta, Washington, D.C., San Francisco, and Baltimore. 101

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. 103 This rapidly became an accepted collection technique for Army agents across the country. 104

(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 FBI. 105 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. 106 This same agent also recalled having posed as a parade marshal during the 1969 Inaugural, and, as such, provided misinformation to demonstrators.107

Another recalled making harassing telephone calls and sending orders of fried chicken to the offices of the Chicago 7 defense team. 108 Another admitted having torn notices of rallies and demonstrations from school bulletin boards, 109 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 be sent in by Washington residents who were willing to house demonstrators during the inaugural demonstrations. The agent stated that he filled out the cards with the names of fictitious persons and sent them in. 111

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 Committee 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 gas, grenades, and bugging devices to be used against left-wing groups. 113 Finally, they suggested that Army intelligence had received a film and various documents stolen by the Legion from left-wing organizations. 114

The Committee's investigation did not substantiate any of these allegations. 115 It did, however, show that Army intelligence agents had been in contact with the leader of the Legion on several occasions in regard to obtaining information on left-wing groups. 116 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 Army had been stolen. 117

(4) Maintenance of Files on Private Citizens and Private Organizations. -- 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. 119 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. 120

In all, the Army probably maintained files on at least 100,000 Americans from 1967 Until 1970. 121 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 "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" 123 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 Ervin subcommittee that "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 National Association for the Advancement of Colored People, the Ku Klux Klan, the Congress on Racial Equality, the Urban League, the Womens Strike for Peace, the American Friends Service Committee, the Citizen's Coordinating Committee for Civil Liberties, the Southern Christian Leadership Conference, Ramparts, The National Review, Anti-Defamation League of B'nai B'rith, National Committee for a Sane Nuclear Policy, the John Birch Society, 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 Women, among others. 125

E. Termination of the Army's Civil Disturbance Collection Program

The Army did not decide to terminate its domestic collection program until the summer of 1970, after it had been exposed in the press and Congress had announced its intentions to investigate. 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 that anyone at the Department of Defense had qualms about the Army's domestic program came in September 1968, when Deputy Secretary of Defense Paul Nitze disapproved an Army request for 167 additional spaces for Army intelligence agents citing "reservations regarding the extent of Army involvement in domestic intelligence activities." 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. 127

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 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. 129 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. 130 However, the agreement which eventually resulted from these discussions -- the Interdepartmental Action Plan on Civil Disturbances -- left the domestic role of Army intelligence as ambiguous as before. 131 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 reports, filed on April 15, 1969, the Army indicated that 35 percent of its 3219 intelligence reports were based on operations conducted by Army agents. 132 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 1970, when a former Army intelligence officer, Christopher H. Pyle, wrote an article for the, Washington Monthly exposing the extent of the Army's domestic 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. 135

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 reasonably 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, 19719 the day the Senate was to begin hearings on the Army surveillance program, DOD formally issued the new regulation called for by Secretary Laird. 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, 141 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 1960s, when the Army was being called upon to control civil disturbances, an element of the Army, 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 were thought necessary.

At first, ASA conducted its monitoring activity in support of Army troops committed in civil disturbances. Later, however, ASA monitored 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 Authorities and Restrictions

(1) Mission of the Army Security Agency. -- ASA carries out communications intercepts for both national and tactical intelligence purposes. 142 It also develops techniques of electronic warfare -- "jamming" and "deceptive transmitting" -- to support tactical Army operations. 143

While it does maintain operational units within the United Statesin both mobile and fixed-station configurations -- 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. 144

(2) Section 605 of the 1934 Communications Act Prohibits Monitoring. -- Section 605 of the 1934 Communications Act provides, in pertinent part:

No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. 145

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 Domestic 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 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 USASA-type 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. 147

This policy remained in effect for the next four years, until the pressure of events caused the Army to reverse its position.

C. Domestic 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. 148 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. 149 The Army directed not only that ASA monitor civilian communications during 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

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. 151

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. 155 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 Collection Plan and could be used to monitor domestic communications and 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 Assassination Riots. -- Four days after the message was sent authorizing use of ASA units in civil disturbances, Dr. Martin Luther King, Jr. 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. 157 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. 158

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 Washington 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 monitoring 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. 163

(3) The Poor People's Campaign in Washington, D.C. -- 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 Campaign 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 June 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 a June 25, 1968, letter from Acting 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.

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 National Political Conventions of 1968. -- Senior officers at ASA were unaware of the initiative to the FCC being taken by the Army Assistant Chief of Staff for Intelligence. 170 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. 171 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; 174 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. 175 FCC representatives told the Army that the matter had been brought up with the Attorney General and that he had disapproved the Army request. 176 The FCC agreed, however, to submit a written reply to the Army stating that 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 requested Army approval to send radio monitoring teams to Chicago. 179 This was followed by 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 monitoring 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 Trial. -- Less than two weeks after the close of the Democratic Convention in Chicago, Black Panther leader Huey Newton was 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 communications to determine if there were any groups around the country which might be planning demonstrations in support of Newton. 183 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.

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) Cafe Zipper. -- 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. 186

It was subsequently decided by ASA that the net was a nationwide net probably comprised of members of the Citizens Band Radio Operators 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. It is not believed to represent a threat to the United Stakes Army." 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 troops, the monitoring continued for more than a month.

D. The Termination of Domestic 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 illegal. 190 Relying on this opinion, the ACSI "nonconcurred" in the proposal of the civil disturbance office. 191

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 marginal 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. 193

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, 194 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. 196 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, administration, logistical support and maintenance, welfare, preparedness, and effectiveness of (their particular service)." 198

Each of the military departments has traditionally 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.

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. Investigations of Civilian Groups Within the United States

(1) Investigations Undertaken Prior to the 1971 Directive. -- 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 "maintained 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." 207

(2) Investigations of Civilian Groups After the 1971 Directive. -- As mentioned above, in March 1971, an internal directive was issued which generally 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 penetrations were approved 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 military services (none of which were made by the Army) for DIRC approval of covert penetrations directed against civilian groups. Summaries of these requests follow. 210

(a) Antiwar Group in San Diego, California. -- 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. DIRC was also informed that the FBI had declined to conduct its own penetration, but had been informed of the NIS operation and its plans to continue.

DIRC approved the request on May 24, 1971. In November 1971, it revalidated the penetration at the request of the 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 information 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 part of a peace 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.

DIRC 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) Underground Newspaper Near Travis Air Force Base. -- On October 1, 1971, Air Force Secretary John McLucas requested DIRC permission to penetrate the staff of an underground newspaper which was published near Travis Air Force Base in California. He stated that 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, California. -- 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. DIRC 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 Group in Charleston, South Carolina. -- On 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 sabotagre 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 Charleston, South Carolina. -- On April 23,1973, the Air Force Office of Special Investigations requested DIRC approval of a penetration of a white racist group in Charleston, South Carolina. Members of this group had apparently been responsible 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, California. -- On 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) Servicemen's Counseling Center 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.

(1) Antimilitary Group in Charleston, South Carolina. -- 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. Investigations of Civilian 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, 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 Operations in West Germany 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 part 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 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 occasion, 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 area. 220

Insofar as other types of surveillance are concerned -- penetrations, photographic or covert observation -- U.S. Army intelligence officers 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 co