146 LAW FORUM [Vol. 1971 tional principle which was implemented recently in the Freedom of Information Act21 and which is reflected in many other statutes requiring disclosure and full reports of government programs. The Froehlke argument assumes that people will not find out about illegal or unconstitutional programs. If Mr. Froehlke needed more proof that unconstitutional programs cannot be hidden from the people for very long, he has only to look at the history of the Army's civil disturbance program and he has only to consider the shock and dismay of the American people which they expressed to Congress as the full scope of this' program was made known to them by former agents and by the press. Some executive branch officials have not yet discovered the truth of Abraham Lincoln's observation, for it is clear from their arguments on this matter that they think the government can fool all the people all of the time. Secretary of Defense Laird and the Army sent word that the intelligence-gathering on civilians was being cut back and that the computers, in effect, were unplugged. He said the Army would henceforth rely on the Department of Justice for civil disturbance information.22 In view of that assertion, I asked the Attorney General, as chief legal officer of the Government, for his opinion on the constitutionality of the collection of information by the Army or other executive departments on people who were not suspected of breaking any laws but who were merely exercising their first amendment rights.23 He delegated this task to the Assistant Attorney General, Mr. Rehnquist, who told the Subcommittee that he didn't think it would stifle first amendment freedoms to place such persons under surveillance.24 He said that "[i]t may have a collateral effect such as that but certainly during the time the Army was doing things of this nature, and apparently it was fairly generally known that it was doing these things, it didn't prevent two hundred fifty thousand people from coming to Washington on at least one or two occasions to protest the war policies of the President." He also told us that while there might be "isolated abuses' of the investigative function, they were not unconstitutional."25 He further stated that he knew of no authoritative decision holding that it was unconstitutional to collect information which is not le 21. 5 U.S.C. § 552 (1970). 22. 1971 Hearings 394. But cf. id. at 436 (Froehlke testimony): "Nevertheless, experience has taught me that I cannot tell you that under no circumstances should the Army ever observe non-DOD-affiliated civilians. I think under certain extreme circumstances the Army might again have to, and that is the criteria we are talking about." 23. Id. at 571. The Subcommittee letter to the Attorney General also appears with remarks by Senator Ervin, 116 CONG. Rec. 26327 (1970). 24. 1971 Hearings 620. 25. Id. at 602, 603. No. 2] GOVERNMENT INVESTIGATIONS 147 gitimately related to the statutory or constitutional authority of the executive branch to enforce the laws.26 It was his contention that there is no constitutional rights violation by government investigation and data-gathering unless a government sanction is involved.27 My own suspicion of an unchecked executive branch investigative power was borne out during his testimony when he advanced the amazing theory that "self-discipline on the part of the executive branch will provide an answer to virtually all of the legitimate complaints against excesses of information-gathering."28 Mr. Rehnquist and other Justice Department officials bandied about a vague theory of preventive law enforcement which justifies surveillance.29 They cited article III, section 3 of the Constitution as the "source of the duty of the President to oversee the faithful execution of the laws and thereby exercise implicit power to investigate, prosecute, and prevent violation of the Federal law." As another source of information-gathering in the executive branch, they cited article IV, section 4, providing that the United States shall guarantee every state a "Republican Form of Government," and on application of the legislature, or of the executive, [shall protect each] "against domestic Violence."30 They cited an 80-year old Supreme Court decision, In re Neagle,31 involving a shoot-out between two judges. They cited statutes on the federal role in civil disturbances.32 But they conveniently ignored the Bill of Rights. Rather, they, like the Army, laid claim to a constitutional power of investigation for purposes of preventive law enforcement which, given the scope of federal criminal and civil laws, if carried to its logical extremes, could justify surveillance of any citizen for almost any purpose whatsoever. 26. Id. at 602. 27. Id. at 620. 28. Id. at 603. 29. Id. at 602. 30. Id. at 599. 31. In re Neagle, 135 U.S. 1, 10 S. Ct. 658 (1890). 32. 10 U.S.C. §§ 331-33 (1970). Under U.S. CONST. art. 1, § 4, and 10 U.S.C. §§ 331-33 (1970), the President has authority to use the armed forces for these purposes: 1. To suppress rebellion, insurrection, or domestic violence, which obstructs the execution of the laws of the United States, or impedes the course of justice under those laws. 2. To suppress insurrection against a state if state authorities so request. 3. To suppress insurrection or domestic violence in a state, which so hinders the execution of federal or state laws within the state as to deprive "any part or class of its people . . . of a right named in the Constitution and secured by law" if the constitutional authorities of the state (a) are unable, (b) fail, or (c) refuse to protect that right. 10 U.S.C. § 334 (1970) provides that whenever the President considers it necessary to use the armed forces under §§ 331-33, "he shall, by proclamation, immediately order the insurgents to disperse and retire peaceably to their abodes within a limited time." 148 LAW FORUM [Vol. 1971 I must take issue with the Department of Justice officials on all of these counts, for I believe they fail to understand the relationship between constitutional liberty and the government's claim to a power to investigate people in order to determine future behavior. First, contrary to the opinion offered by the Assistant Attorney General, recent events have shown that there is indeed a need for strict legislation in this area of the law. "Self-discipline" is not enough. It has not prevented the Army spying on civilians; it has not precluded the Census Bureau and other information-gathering agencies from.harassing people with broad questionnaires. It has not prevented the continuing inquiries into the most private lives and beliefs of federal employees and applicants. It did not stop the Secret Service from computerizing people who write letters about their grievances to high government officials, who are professional gate-crashers, and who make remarks embarrassing to high government officials at home or abroad. "Self-discipline" does not help the wives of applicants for FHA loans when they are compelled to disclose their birth control practices and confidential advice from their doctors. Nor has "self-discipline" prevented all the other programs from violating personal privacy. So I believe there must be new laws geared to the computer age, with specific guidelines for gathering personal data and with carefully drawn controls on the use, exchange, and protection of such information. Furthermore, I believe that some provision must be made to provide the individual access to government records about him and the chance to assure the accuracy of such information.33 Secondly, contrary to the opinion of lawyers at the Justice Department, I have found that the courts have long been active in this area, and I predict that they will be even more active if the executive branch continues to try to make prophets of its civil servants and if it continues in its present claim to an inherent power to make inquiries in the course of trying to predict the future behavior, attitudes, and beliefs of law-abiding Americans. For instance, the United States Supreme Court will soon consider the case of Laird v. Tatum,34 a suit challenging the 33. For an excellent discussion of the constitutional, legal, and philosophical problems involved in such an effort for one area of information-gathering see generally Security and Privacy Considerations in Criminal History Information Systems, Technical Rep. No. 2, July 1970, by Project SEARCH, California Crime Technological Research Foundation, funded by the Law Enforcement Assistance Administration, Department of Justice. Related to this issue is S. 2546, A Bill To Facilitate and Regulate the Exchange of Criminal Justice Information Systems, introduced by Senator Roman Hruska Sept. 20, 1971. 117 CONG. REC. 14563 (daily ed. Sept. 20, 1971). Also pertinent is the testimony of Richard Velde of the Law Enforcement Assistance Administration on the use of information and intelligence systems by criminal justice agencies. 1971 Hearings 605, 849, and testimony of FBI officials concerning the National Crime Information Center. Id. 914. 34. 444 F.2d 947 (D.C. Cir. 1971), cert. granted, No. 71-288, 1971 Term (40 U.S.L.W. 3238). No. 2] GOVERNMENT INVESTIGATIONS 149 Army program. Dismissed by the district court as not presenting constitutional rights issues, the case is defended by the Government with the claim that the threat of surveillance is not sufficient to invoke the judicial process and, furthermore, that the plaintiffs have not demonstrated a personal stake in the outcome of the controversy. According to the Justice Department, the record "presents only abstract legal issues involving, at best, the speculative impairment of constitutional rights."35 Many people, like the Assistant Attorney General, seem to think this is new legal ground which must be pioneered. These officials have overlooked the significance of numerous court decisions bearing on privacy and the investigative power of government. On the basis of my study of the decisions, I believe this case law was correctly summarized by Professor Bernard Schwartz in terms which should be brought to the attention of all government agencies. He writes: Of course, government may deal at any time with threats to its security expressed in acts. Where speech, association and other First Amendment rights are involved, on the other hand, the power of investigation should be no more far-reaching than that of legislation. In our system, authority over a subject matter involving speech, press, assembly, and the like must not go beyond the power to do that which is essential to be done in protection against a public danger. Civil liberties may not be abridged by investigatory authority merely in order to determine whether they should be abridged.36 From reports received by the Constitutional Rights Subcommittee, I think not only the Army investigators, but other federal and local agents are too often engaged in investigations. of people merely to determine if they should be investigated or if dossiers should be kept on them. Under Professor Schwartz's test, such practices, wherever they occur, violate first amendment rights. Thirdly, unlike Administration officials, I think there are serious constitutional rights violations in these surveillance programs. I have found three Supreme Court decisions in particular which provide a point of departure for courts and legislatures seeking guidance in setting controls on unwarranted information-gathering and data banking. I recommend these decisions to officials in the executive branch who assert a broad claim to investigative power. The first case is United States v. Rumely, decided in 1953.37 In that case, the accused was the secretary of an organization which, among other things, engaged in the sale of books of a political nature. 35. Id. Petitioner's Brief for. Certiorari at 10 n.4. 36. B. SCHWARTZ, 1 COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES: POWERS OF GOVERNMENT 140 (1963). 37. 345 U.S. 41, 73 S. St. 543 (1953). 150 LAW FORUM [Vol. 1971 The House Select Committee on Lobbying had called on him to disclose the names of those who made bulk purchases of those books for further distribution. He refused to furnish the names and was convicted under a statute providing penalties for refusing to give testimony or to produce relevant papers upon any matter under congressional inquiry. The Committee claimed authority to demand this under the power, stated in their resolution, to investigate all lobbying activities intended to influence, encourage, or promote legislation. Justice Frankfurter delivered the opinion of the Court, holding that the accused was not required to deliver the names on the ground that the authorizing resolution restricted the Committee to a study of lobbying activities which were carried on directly with members of Congress and could not extend to a person's effort to influence legislation through the means of books and periodicals. With this as an alternative ground for decision, the Court did not have to reach the constitutional issue. However, the Justice made the significant observation: "Surely it cannot be denied that giving the scope to the resolution for which the Government contends, that is, deriving from it the power to inquire into all efforts of private individuals to influence public opinion through books and periodicals, however remote the radiations of influence which they may exert upon the ultimate legislative process, raises doubts of constitutionality in view of the prohibition of the First Amendment."38 Justice Douglas wrote a concurring opinion in which he said that he was compelled to face the constitutional issue that this involved the grant of power to the Committee. He pointed out, in an able opinion with which I thoroughly agree, that the resolution did not give the Committee the power it claimed but that it was unconstitutional as a violation of the first amendment guarantee of the freedom of press and speech. He recognized that no legal sanction was involved here but felt that it could be the beginning of surveillance of the press. Under such a rule, he noted, the spectre of a government agent will look over the shoulder of everyone who reads, and the subtle imponderable pressures of the orthodox will lay hold. "Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press. Congress could not do this by law. The power of investigation is also limited. Inquiry into personal and private affairs is precluded. . . . And so is any matter in respect to which no valid legislation could be had."39 Therefore, since Congress could not by law require of Rumely what the House demanded, it could not take the first step in an inquiry ending in fine or imprisonment. 38. Id. at 46, 73 S. Ct. at 546. 39. Id. at 58, 73 S. Ct. at 551-52 (citations omitted). |