Civilian Demonstrations Near the Militarv Installation: Reshaints on Military Surveillance and Other Activities

• Author: Major Paul M. Peterson
• Pages: 03

The . . . task LS to reject as false, claims m the name of ciud liberty whteh, Lf granted, would paralyze or impabr authority to defend . . . our socrety, and to reject as false, claims in the name of security which would undrrmms our freedoms and open the way to represswn.'

I Introduction

Imagme that the commander of a large Army installation convenes a staff meeting The provost marshals informs the commander that a civilian demonstration is scheduled outside oneof the gates next week. The commander expresses concern about disruptions that this demonstration may cause to military activities. The provost marshal, however, cannot provide the commander with any detailed information about the demonstra. tmn. The commander, therefore, instructs the provost marshal and the intelligence officer (G-Z)3 to find out everything they can about the planned demonstration and the organization that is sponsoring it. The commander then turns to the staff judge advocate-the senior lawyer on the installation and the chief legal advisor to the commander. The commander asks, "Any problems?"

*Judge Advocate GeneraYs Carps. Umted States Army Presently asaimed as an Instructor. Administrative and Civil Law Divmon, The Judge Advocate Oenerah School United States Army B S E E , wmmn cum lauda, 1919.Umueraity of Califorma at Berkeley. J D , magna cum lauda. 1985, George Wsahin@on University, LLM , 1992. The Judge Advocate Generala School, United Sfaten Amy Thin article >J bared on B wrltten dmaertahon that the author submitted to satiafy m part, the Master of Laws degree riqvirementa far the 40th Judge Advocate Officer Gradvate CourselCammumcations Adn Y Doud, 339 U S 382, 445 (1950) (Jackeon. J , eonrurnng and dissenting)zThis Y the staff offilcer rmpomible far military police functiona on the l"stdlatl0"iThia article BIJY~BS the installatian commander IS a1~0 the commander ofa collocated combat unit. and the G.2 18 the staff aiXcer responsible for intelligence and necunfy ~n B combat unit If no collocated combat unit enst8. the Installation commander will have B specific staff section Tespanaible far security. such as B deputy sscretary whose roaponmblities include security funetmns Nevertheless, thr legal analyses presmted herem apply regardlean of haw the staff section responsible far aeeurify IS labeled

This factual shation easily might occur Labor strife could precipitate a demonstration at almost any time. Similarly. dunng times of international tension, antiwar demonstrations often occur During the Operations Just Cause, Desert Shield, and Desert Storm, for example, anti-war demonstrations occurred near several different military installations even though the actual hostilities were short in duration and relatively popular.

This article examines the legal ramifications of domestic intelligence collection under these circumstances. Unfortunately, the military's internal guidance for obtaining this intelligence 1s

ill.defined, confusing, and contradictory As a consequence. commanders unwittingly may initiate a process of information collection and retention that violates the statutory and constitutional rights of Individual8 who plan or participate in a demonstration.& More Importantly, the process may result not only In unwelcome publicity, but also litigation.

I1 Organization and Scope

This article begins with a summary of military involvement in domestic intelligence gathering Historical knowledge aids inunderstanding the issues developed in this article This article then sets forth the existing regulatory guidance that affects military surve~llance of civilians. The guidance vane8 considerably depending on whether the commander chooses to use law enforcement or military intelligence personnel to collect Information.

This article then measures the existing regulatory guidance against the Privacy Act5 and the First Amendment These two authonties are the most likely sources of legal challenges to a commander's information gathering processes. This article concludes with proposed changes to B key Department of Defense directive, and how these changes would facilitate mnsmtent regulatory guidance and would lessen the likelihood of a successful legal challenge.

'See Em Lardme, Comment, Ju~ticinbilit~ond Conslifufiondil~ o/

Polificoi Inleiiigmce Gotkrnng 30 U C L A L REV 976, 979 119831. Howard & Crawlsy Pleading, Disco~eri. and Pirfriol Procedure far L~f~gdion ngainst

Gaieinmanf Spying, 55 Ll DET J Dns L 931. 932-39 (19791, me The Pn>acy Act

of 1974, 5 US C 9 552a ,19881, The Freedom of Infarmstion Act. 5 U S C 9 652 11968, Title 111 of the Omnibus Cnme Contra1 and Safe Streets Am of 1968, 18 U S C 6 2611 119881 leriating civil cause of action for ~ s m m infereepfr and uses

~0mmum~~L~one16The Privacy Act of 1974, 6 US C 5 55% (19881"Congress shall make ne law respecting an establishment of religlon or prohibiting the free D X ~ ~ C I S ~ thereof, or abridging fhs freedom of speech, OT a1 the mess 01 the ridts of tho n e d e to assemble. and to netition the Government far

of mal and W L T ~

Because most dissent, including anti.war dissent, is of damestic origin,7 this article's scope 18 restricted to collection efforts targeting activities with no foreign sponsorship. The analysis also excludes situations in which the President invokes emergency authority to mobihze the military in response to a em1 disturbance or in which the actinty m question is being conducted by soldiers or cmhans affXated wth the Depadment of Defense.

Some important term8 require definition prior to beginning the discussion. The Army defines "physical security" as fallows.

That part of the Army security system, based on threat analysis, concerned with procedures and physical meas-ures designed to safeguard personnel, property, and operations, to prevent unauthorized access to equip-ment, facilities, matenel, and Information; and to protect against eapmnage, terrorism, sabotage, damage, misuse, and theft.8

In this article, "physical security mtelhgence" d l mean any

information gathering that focuses on the protection of military operations in the Continental United States (CONUS)when no

evidence exists that the persons considered a potential threat are

either affiliated8 with the Department of Defense OT sponsored by any foreign power "Domestic intelligence," on the other hand, will refer to all intelligence gathering in the United States, by military or civilian agencies, far any purpose, including physical security, preparation for civil disturbance operations, and detection and monitonng of organized crime or terrorists.

111 Historical Background

A The Oriains of Domestic IntellLggenee Colleetron

The United States military, and more specifically the Army, has been involved in collectine information on the oolitical

"No evidence linking these movem~nfb to foreign powera was found " IhTELLIoEICE ACEUClES 163 (1976) lrefemng to the ctvil unrest of the 1960ei So widenee ever wad vncovorod that the Y B ~ O Y B

proteati and demonstrslmns af the 1960s were interconnected by any sort of eonnpirsey, ather fore~gn or domestx Subcornmiltee mn Conslifvt~~naf

Righta, Report on Military Surrdfonce of

C~idian Pahhra Senate Committee on the Jzdicwy, 93d Cong , 1st Sea, at 5 (Comm Pnnt 19731 [heremafter Rmorl on Mililorv Suroriflmeel

xoarou H H*LPEhlX ET AI., THE LawLass STATE THE CalhrEs OF THE us

'DDEP'I OF hw, REO. 190.13, P~vsrca~

S~crralrr THE h4ahw PHYSICAL

SECL-RITI PROOM, ~lossary (20 June 19811 [hereinafter AR 190-131

"'Affiliation" mcludes almost every voluntary relationship with the mlhtary See Dep'r OP Anwy, REO 380-13. AC9ulsm10~ AXD Sromor OF

(30 Sept 1974) [hereinaner AR 380-131

IrFohMaTloh CoNCEnNlZC h-OlAFFILIAIED PERsoNs AVD Ona*h-lurloas, glossary

activities of civilians for one reason or another ~ince the nineteenth century. One scholar who has specialized in the study of military intelligence tracer military collection of domestic intelligence back to the formation of the Army's Military Intelligence Div~sion ~n 1888 10 World War I, however, brought on the first extensive domestic intelligence operations. Tasked at first to provide information about supposed large-scale German espionage networks--spy nngs that never materialized-the military intelligence apparatus began collecting political Information on German Immigrants and, eventually, persons and organizations whose common goal was opposition to the war Even though organized domestic intelligence declined dunng the postwar era, the World War I experience provided a bureaucratic scheme and collection plan that wm employed by the military to again step up domestic surveillance in each ensuing period of crisis-crises such as the Bonus March of 1932. World War 11, and the Korean War Because stateside counterintelligence agents tended to be underemployed throughout these periods, most were readily available to perform political surveillance Significantly. the civilian hierarchy that controlled the military often was ignorant about the extent and nature of domestic intelligence gathering

Prior to the early 19708, apparently no written authority for military involvement in domestic intelligence gathering existed In 1939, President Roosevelt directed that the investigation of all "espionage, counterespionage, and sabotage matters" be controlled and handled exclusively by the Federal Bureau of Investigation (FBI), the "Military Intelligence Division" of the War Department, and "the Office of Naval Intelligence ''11 Subsequent presidential directives tasked the FBI to "take charge" of these Same matters and others. such as "subversive activities" and ''vmlations of the neutrality laws '' Nevertheless, the remamng role of the military deoartments. if any. was not addressed.12 Only I" the area of

L'Presidentisl Directive of Sepf 6 1935 runtitledl, rrpiinfed I" KahvB~uX mprs note 11. at C-3, C-4. Presidential Directire of Jan 8 1943 (Police Cooperatmn), mprtnrod m Koar~~ca,supra note 11, mt...