# Amicus Curiae Brief — Laird v. Tatum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0054%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 408 U.S. 1 ## Text 1 ~ Supreme Court; U.S. FILE COPY. | rr FER 2 1972 IN. THE fe RoseRt SEAVER, CLER | supreme Court of the United States .OCTOBER TERM, sides a “No./71-288 2° 7 /, hee _MELVIN R. LAIRD, SECRETARY OF DEFENSE, et al, nie - Petitioners, v. _ ARLO TATUM, ef al., | | . . Respondents. . _ ON.WRIT-OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT.OF COLUMBIA CIRCUIT BRIEF OF : - , Unitarian Universalist Aiatidion Council for Christian Social Action, United Church of. Christ : _ American Friends Service Committee National Council of Churches of Christ faery Amici ¢ on behalf of the ee : 0 ae ee ; is at f Counsel: _ SAM J. ERVIN, JR. LAWRENCE M. BASKIR ~ Box 69 7 646 Independence Ave.; SE. __ Morganton, North Carolina Washington, D.C. Ue AP ate oa ee Washington. 0 C - THIEL PRESS - 202 393-0625 c DP >, . 7 . nf Pe RPE a Pas pete 7 . . yr SP LET IIE EN SINE IDR Sie Lp fag OS. ee ee ere zs 0 AO RAMA EI DBR IOS AS EINEM OBO OME LED CG GRIESE el (i). ase TABLE OF CONTENTS | _ “INTEREST OF THE AMICI CURIAE :..-.. 2.0... 05-. Ae - CONSTITUTIONAL AND STATUTORY PROVISIONS. eae: MMNED seg ey ce vep id. Veh os eas pats 6 ‘QUESTION FOR REVIEW oss pee iS ead chee He a Ne STATEMENT COSTAE ENS ee eel Me MneR EDI om aan s, 7 SUMMARY OF ARGUMENT i ge gees ae il ARGUMENT: Plaintiffs have satisfied me requiremerits of jaticlability by alleging : ~ an unauthorized, unnecessary, and. indiscriminate program of. mili- ~ tary investigation and surveillance which has infringéd ‘upon_ the " /peaceful exercise of their first amendment tights to free expression - ee eae aS Nias re Sie eeus wees 12 "ment Fights cee eee eee poh weg habs obs Be i . Deterrence of free expression hie 'e ae PRES 45.\-. = ae: Interference with freedom of association ......... 72. _3. Infringement of freedom of religion .... ea vs i ag , ' B. There is«no ‘compelling pore interest in - | ge purveleliee ks a a Beds fe . Military ase sited by’ law . ee | y 4a Military evince serves no’ military purpose ..... 32 3. Military surveillance is overbroad in direction and Be . indiscriminate in its operation 7 "CONCLUSION eee: ers ae ae ey, S .. TABLE OF — + Cases: ( s Baggett v. Bullitt, 377 US: 360 (1964). 20.2.0: be 8, Bates v. Little Rock, 361 U.S. 516 (1960) .. 12, 197; 1 20, 23, 32 ace ~ Ex Parte Milligan, 71 U.S. (4 Wall) 2 (1866) :............ 27 s ; ~ wy FF 2 : . ; Ae ; » > ee ae «* \ : s i 4 Pd cs 3, : . . “3 : > a ioe’ Gwe ee (ii) : 4 Home-Building d’ Joan. Assn. v. Blaisdell, 290 US. 308 en ens ~ Lamont. v. ‘Postma er General, 381 US. 301. (i96s). ee wa . 20, 25 4 ae y a Marbury v. Madison, ae : f _ NAACP. Alabama, 357 US. ‘449,(1958)- ees 7, 19, 20,23 '/371 US:415 (1963) 2.0. 16, 19, 23, 25” “ New, York Time sy. S 376US. 254 (1964). 2... Rete Le 4 « Sinith, ee 17 88) acon BA : ae ; fornia, 361 US. 147 (19589) oe ree: Tl gi » Tale, a US. 60,(1960)..2. 2g oes oe Tatum v. Laird 444 24947 (1971) Sk eo ee “Time Inc. v. Hill, 385° US. 374 Jagd ‘ : Sticke renee ghey 21 r Sas -v. Robei, 389; US. 258°(1967) Ce eS | 19, 25,31 e ‘Watkins v- US:, 354 US. 178 (1957) . ot Os Saas 19 _ Witney v. California, 274 U.S. 487 (1927), ‘, ceca ae ‘oWryan 4, U.S:, 200'F. Supp. 457 (1961) — Sa | Youngown Sheet: and Thbe Co. v. See 3 343 US: 579 - 1952). fo Secon vs Zwickler.v. ‘Kota, 389 US. 24) C1967). ; . ay Seok: Bh, 24 United States Constitution:” i.e 3 oe @ : ..Article,I, Section _ ote oe eae, ce : z ees ‘e a - «6,27, 29 = “‘Antible IV; Section 4 - eee ea elite el ok oss “Y ee “Statutes: se ie Py Chgset oe - ~@. 10us. 331-334 -. pis Grated ese ephels puke AS a Me +18 Use: 1385" re Ste Ee a eee oe ae eee : ““Qither ‘Authorities: Ge “ER ns * : an | ae “[7 Congressional Record, Patt 5, 4245, 45th’ Cong, 2d Sess, oe + (Dupe 7; 1878)... Fo eee eee eee ee oe gees "> sParrand, “Records a the F Federal Convention Vol. 31939, : —s = oe Faia es Rev. Bas cents te CE wens ee eee oe 27. a . rs . Pt ert ae : © a a : 3 a bs é ee Kio : eee ee eS . a pee reer’ cad se ~ sla — 3 = ¥ eae . ed ] Hearings on Fedaui Data pens Computers,’ and the Bill of Rights before the: Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, uss ee “Congress, Ist. Session (Feb.-March, We ie passim er, Alexander Hamilton and the Growth of the New ee A . Nation (1969 ed.) a oe cn ogee ie CAG oe oe vs ee a 27 Warren, The Bill of Rights and the Miliary, 37 NY UL.’ Rev. 7. 181 (1962) Lp ete ei ae Se Aipniot ot » .26, 30 i ne = - ry : ‘5 \ > P : ° . ¥ : > ° ° ° * | F ° . . ‘ . . »* . : ° . é be . * « ce - . ey : : , a ” J . ‘ . . ” z . . . 7 . . ° : : | : . é . « . ‘ . “* . . . - - . q = . . ‘) ‘ : . . ° ° ‘ e » @ ° 7 . . — : . : . « , . ‘ ‘ . 4 *. . - : - oad . t . 7 . hd - . . ; * ; , « . ® : a : ' . 3 2 . : bl . = 5 e e . ‘ rt . - » & ~. ; ‘ . . . “- . : : . . . . . . . : " : e . . . - . . a ° . , ‘ = - . . . . . > s . bd . e « : - . _ ‘ . ' * . ° : : = ¢, - . . . ° . e . . . : ‘ . ’ . Y . . . 7 < : . . . é ‘ . . . . ‘ . . - y a ; . ° er . . . . . . e * . ; , . ; . ™ > 't 7 7 Pi . ° . ry - . . . . ° = 2 > . \ ’ P . : ‘ 7 . . - “ . 24 : 7 ‘ \ - \ ’ o hoe . . \ . . \ “8 * ° 7 . . . > . ‘ ’ ee. . ; r ‘ od : t ‘ - . ® 1 7 * . : . . = ‘ . » . bd ’ . . ‘ ee . = ; ; . . * : . e. .) so . 8 ¥ “ Me x ‘ as ae 7 ' ‘ : as * os : _. ite " ¢ e , , * ee . : . ‘ . ; . . i . ’ . : 7 ~*~. . . _ ms . P ol - * > A - re. - ~ 7 ° - = rt a 6 Ld oo gl . « a > e ‘i . . : : 2 s” . - A A F pe r- . - : : P ; ‘ ; . ‘ . . . . ‘ . f : z * . . . - 4 g \ “” Pa INTHE " "Supreme Court of the United States. OCTOBER TERM, 1971 — No. 71-288 MELVIN R. LAIRD, SECRETARY OF DEFENSE, et al., -. ° — ‘ eo Petitioners, Vv. _ARLO TATUM, et al, | | Respondents. “ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF. APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT BRIEF OF — ee 8 5 "Unitarian Universalist ‘Assortaticn ous Council for Christian Social Action, United Church of Christ” American Friends Service Committee National Council of Churches of Christ “Amici on behalf of the ee | INTEREST OF THE AMICI CURIAE, | Unitarian Universalist. Association : _ _The.Unitarian Universalist Association is a religious associa- tion established more ‘than 200 years ago and incorporated under the laws of New Hampshire and New York. The _— -_—_ Eve sven Wea es ADS Sei tenes Phas aniailt early denis Bastian arent . bd bd Association, in its constitution, “is empowered to, and shall devote its resources to-and exercise its corporate powers for, religious, educational and charitable purposes.” In accord- ance. with. these purposes, the Association, among other things, seeks “to cherish and spread the universal truths taught by the great prophets and teachers of humanity . . |; to affirm, defend and promote the supreme-worth of every human personality, the dignity of man, and the use ofthe ~ democratic method in hurnan relationships;” and “‘to.imple- - ment our vision of 6ne world by striving for a world com- munity. founded on ideals of brotherhood, justice and peace.” The Association, its member churches and fellowships have long regarded the Constitution and the Bill of Rights’ as a bulwark of religious and -civil liberty. Individual members, churches,’ and congregations of ‘the Association have long believed: that social action on issues of public concern ds an important part of their religious and personal obligations. As a result, many congregations and individual members ~ have actively exercised their rights of free expression and . assembly under the Constitution with respect to the contro- versial public issues of our times. It was.a matter of grave. ‘concern, therefore, to the Association, its churches, and _ members to discover that at least: four churches and an. undetermined number of individual members have béen the © subject of military. investigation and surveillance. Because . of its belief . that such surveillance is alien to our form of '* . government and foreign to a society of free men and women, . - the General Assembly of the Association on June II, 1971, unanimously resolved to oppose such surveillance aivd to - support efforts to bring it to a halt. Council for Christian Social Action, United Charch of Christ The Council for Christian Social ‘Action is a national: - “instrumentality established by the United Church of Christ - ' to “study the content of the gospel in its bearing on than in’ ° society, provide and publish information and literature on social issues, cooperate ‘with... . appropriate bodies in mak- ing the’ implications of the gospel effective in society, and 4A 7 - 3 | formulate and promote a program of social education’ and action for the United Church of Christ.”” The United Church .. of Christ is a major American Protestant denomination of some 2,000,000 members, the union of the Congregational Christian churches and the Evangelical and Reformed Church: ° ‘Although the Council speaks only for itself, addressing both churches and the civil society in the interests of justice _ and mercy, on occasion it represents the broader convictions - of the communion as expressed through pronouncements of - its General Synods. This is the case in the Council’s long- term promotion of civil liberties in American society and its opposition ‘to, afl forces which deny rights of privacy and of. association, suppress political participation, stifle dissent, or punish critics of national policy. _ Thus ‘the Council. can also speak for the. Powith: eae ‘ Synod of its church, which called upon churchmen “as - Christians and citizens” to safeguard ‘the right of freedom of expression. as guaranteed in the First Amendment of the | Constitution of the United States, including the right within constitutional limits to.express opposition or commendation | to our government or to advocate peaceful change to aJterna- tive political and economic systems without being intimi- dated or harassed, ; eee More recently, this church’s Eighth. General Synod; 'r meet- ing in 1971, as part of its concern to enable U.S. power to © "serve humane: ends and contribute to world peace, took as one of its prime objectives “to have the Instrumentalities, churches and members work ‘to restrain the power of the sii in —— into the Private lives of American citizens.” . : es ‘American Friends Services Committee i: The. American Friends Service Committee is an inde- __ pendent, voluntary, privately-owned Quaker organization, founded in 1917; and ‘active since that time in works of humanitarian relief and service, reconciliation between nations, and peoples, public education about peace, and pro- _ granis to overcome discrimination and oppression occasioned ; 4 by race, poverty and injustice. It has devoted major energy - : «to opposing war, militarism and conscription and to assisting people who have suffered from their consequences. On February 28,-1970, the press reported that the Ameri _ can Friends Service Committee was the subject of Army _ mnilitary intelligence files and that there had been military . surveillance of ' the AFSC and individuals associated with it. Subsequent press and other public disclosures alleged that "the surveillance ‘had been indiscriminately directed at civilians engaged in legitimate anti-war, anti-draft and pro-civil rights _ activities. These disclosures had a disruptive effect on the ' peace education ‘work. of the AFSC and are believed to have « ' discouraged some Americans, otherwise ready to participate _ publicly in activities related: to U.S. war and draft policies : i and practices, from risking such official military surveillance. On May 1 1, 1970, the AFSC wrote to the Secretary of the aay requesting factual iriformation about the press state-. . ment and the Army. authority for maintaining such files. The reply stated that under Army policy, the Army Has no interest -in investigating the AFSC because the national activities and goals of the AFSC do not constitute a threat _ to the Army ’s“operations, property or personnel. But the Army. further stated that “certain members” of the. AFSC at the local level weré and can be “‘of investigative interest” to” the Army,"and- that, aside from any such individual files on “local members,” the Army did maintain a file on the AFSC . containing information and material “generally derived from other agéncies and sources.” We were informed that the file on the AFSC was examined to determine whether it _» could be retained under current policy and, in the words of | the General Counsel’s letter, “It could, not be retained and ~ was, therefore, destroyed.” “No proof of such destruction - has’ been offered and no information has ever been givefi as_- to which ‘individuals associated with the AFSC had been’ under. surveillance and the subject of. past or present files. The American Friends. Service Committee : believes that . American citizens must be accorded protection against the 4 $ _silent.and subrosa dissipation of their rights of privacy and against the invalidation or subversion of their rights of. " assembly,. press, speech and dissent by means of secret or | even brazen surveillance, data storage and information dis- ‘semination by the military authorities.. The American _- Friends Service Cognmittee seeks protection for itself and. § the American citizens associated ‘with it against such military dangers. Wages e Sis _ National Council of Churches of Christ The ‘National Council of the Churches of Christ ‘in the » United States of America is a federation of thirty-three Protestant and Eastern Orthodox religious bodies in the United States with aggregate membership totaling approxi- mately 43,000,000. It is governed by a General Board of 250 members chosen. by the member denominations in pro-. portion.to their size and support. The General Board deter- mines; the policies of -the organization through debate, - > amendment and adoption’ of carefully-prepared statements - . and resolutions brought to it bis its subordinate Program divisions. : Several of ees policies baie iiessinl the rights of all persons to freedom, of religion, speech, press and assembly . without fear of intimidation, retribution or obloquy. Itisin ~-— implementation of those policies: er the National Council — - of Churches participates in this brief*. An additional con- : sideration is the fact that one of the ed tiffs which has been ‘subjected to military surveillance, Clergy and Laymen Con- cerned About Vietnam, originated in one of the program e ‘units of the National Council and has since become an inde- pendent organization. Many of the leaders of the National - .. Council are or have been active as individuals in that organi- zation, and while no less concernéd for the like rights of all, -- feel a special kinship for it and a resentment against military | surveillance of persons whom they know and trust. Permission is : granted pm both parties for the — of this’ - brief. , oe : . . a . . : A el ‘ * . _* m . y ‘ . . te ED = . : x i 5 . be oe sala re . P e : i : . 3 t ere , 4 ro — = atti MOR >. OA EIS ee at ela ‘ ie ad lil ior ee . a Ps ee - - CONSTITUTIONAL AND STATUTORY |. PROVISIONS INVOLVED ~The constitutional provisions involved are: Article I, section 8, relatirig to the legislative power over , _, the armed forces, and especially the congressional powers - _ “To provide for calling forth the Militia to execute the laws - of the Union, suppress Insurrections and repel Invasions;” — Article IV, section 4, which provides that: ie United States . . shall protect each [state]. on Application .of the Legislature, or of the Execu tive (when the Legislature cocci be COnYeREE). against domestic violence;” pee eee | — The First Amendment: Congress shall make no law eanonainas 4 an estab e lishment of. religion, or prohibiting the free exercise thereof; or ‘abridging the freedom of: speech, or of. the press; or the right of the people peaceably to ~ assemble, and to petition. the ee for a Tedress of grievances.. ae statutory provisions, 10 United States Code 331-333 "are set forth in — A, pages 43-44,.of the petitioner's brief. : Section 334, bi title 10, U: S Cc. reads. as follows: ; Proclamation. to disperse. fe ee never the President ae it necessary to use / e-militia or the armed forces under this chapter, he shall, by proclamation, immediately order the | insurgents to disperse and retire peaceably to their ‘abodes within a limited time. "Section 1385, of title 18, US.C. reads as follows: ‘Use of Army and Air Force as possee comitatus. Whoever, excep in cases and under circumstances , expressly authorized, ‘by the Constitution or Act of _ Congress, willfully uses any part of the Army or the — Air Force as. a. possee comitatus or otherwise to exe - cute the laws shall be fined not more than $10,000 vie or imprisoned not more than two years, or both. t, ; ei. - a: ‘QUESTION FOR REVIEW ~. The writ of certiorari presents the following question: Do individuals and organizations not affiliated with the armed |. services present a justiciable' issue under the First, Fourth, : a Fifth and Ninth Amendments when they allege that their rights of free expression, privacy and association have been © .: infringed by unauthorized, unnecessary and indiscriminate ‘ military. investigation of their political activities and personal ~ fives? es feck. ; ys cee A Markee fo Sometime in the 1960’s, prompted by an increase in civil violence, the United States Government, acting through the. armed .forces and primarily the Army’, began a massive pro- - ’ gram of. investigation: and -surveillance?’ of. the thoughts, & habits, attitudes, political activities and associations of indivi- dual American citizens.?. This Arniy program took the form .” " of the development and maintenance of investigative files in . ‘manual and computerized systems. It was an expansion of | : 'Because of ithe incomplete nature’ of the record before the Court, this statement is based in part on the investigations of the Constitu- 1970, to present. The, bulk. of the Subcommittee’s investigations has’ . been printed. See Hearings on.Federal Data Banks, Computers, and . _the Bill of Rights, Subcommittee on Constitutional Rights, Committee — on the Judiciary, United States Senate, 92d Congress,’ Ist session, * 1971. Hereinafter -cited as “‘Hearings.”° Copies of these hearings are. _ Submitted separately as an appendix to this-brief. Additional informa-., - tional Rights Subcommittee, United States Senate, from January, . ° _ tion is contained in various classified and unclassified documents which .. - have been segregated for possible discovery proceedings in this litiga-. tion. seh a ‘ f Se ee ” - ’ ? although ‘popularly termed “surveillance” ; the military program. has consisted of far more than the passive observation and recording of .. _ public events that this term might suggest.“ ee | > Surveillarice of this type by the armed forces ha$ been conducted | with varying degrees of intensity ever since World War I. = z _ pre-existing investigative operations of the armed forces, such as personal background -investigations, and was in‘ many aspects inseparable from these other functions. The pro- _ gram’ was ostensibly developed in connection with: the . increased use of the ‘Army to put down civil violence. - - Afthough there is little evidence available tosupport the Cy * tention, it, has been explained a2 effort to. “predict” sita- ations in which the use of military force would be required. At the height of the program in the late’ 1960's, thousands . of agents of the United States Army Intelligence Command were involved. .In addition, numerous other investigative _ personnel and other sources of. military manpower from the Continental ‘Army Command,.the Navy and the Air Force "were employed, According to Army docyinents, the respon-_ - » $ibility of these investigators was to gather information on - persons and organizations engagéd in various activities - associated with racial problems, antiwar, antidraft, and other controversial public issues. Intelligence activities havé been onducted. in public places; on college campuses, at high schools, in churches, and at private meetings. Persons. sub- - jected fo this program have ranged. from leaders of active ° ‘organizations, to ordinary members, the curious and the | ne passerby. Individuals expressing support or sympathy with - ; subjects of the surveillance have also come ‘under investiga- tion. Subjects have. included numerous Congressmen: and’ United States Senators and family members of a PRES state and local officials, a member of this Court, newspaper > reporters, clergymen, ‘and thousands of other. Americans. Although no total number can be. estimated, ‘it’ is-not an | - exaggeration to talk in terms of hundreds. of thousands of | individuals, ‘organizations, events, and dossiers. . - The information gathered on these citizens has included their participation or presence at political events, their politi-~ cal views, their relationships with other political activities, their travel, their ‘family associations, finances, education, _ and other types of personal data. Once a person becomes the. subject of investigation, the. data’gathered about him and his “ire 9 cis, \ activities is unlimited: ‘ _Information for the ion dcinaices : E been obtained by Observation of public activities, by covert infiltration, by’ electronic devices, tape-recorders, ; _ cameras, and by videotape, as well ‘as by requesting data - from ‘other governmental agehcies and. from private sources. The ‘Army analyzed and attempted to categorize: and_ label individuals according to their utterances and the way ‘they exercised their rights of free ween, assembly, association, | . and petition. : The: bulk of investigative activity by the pest s own per. i sosisvel occurred at the field level. Agents collected informa- tion. and filed ‘“‘spot reports,” “‘agent reports”, and’ “sum-". ‘_ maries of investigation’. Most of this data was forwarded .- : up the chain of command but record copies were kept in data ceriters at every level of command. Manual files were. _. fhaintained at every - Jevel. At least four and possibly - ‘more ~ computer. systems were employed to store, analyze, and -Tetrieve the- information: collected. Many files were micro- -- . filmed and integrated with other files on persons who were — 4 suspected . of violations of security and espionage laws. These - were. located at the headquarters of the Intelligence Com- . - mand, (Fort Holabird), the Continental Army (Fort Monroe), _ the Third Army Corps (Fort Hood), and in the Peritagon. More than one computer data — was: maintained i in some 3 _ of these locations: ‘ é Information gathered in this program and political anal- ” “-yses produced as part of ‘it were: ‘indiscriminately shared and ' exchanged by the Army and were distributed to. other mili- tary record. systems, and to other federal; state, and local. _ agencies maintaining investigative files.. Although subsequent >. to the filing of this lawsuit, many of the Army ‘computer ‘systems and other collections of data were ordered destroyed, _ much. of the data still exists in files maintained by the _ Department of the Army; the Defense Department, and the | other federal, State, and local ‘agencies to- which it was . | ‘Hearings, p. 3 : Statement of - Assistant Secretary of Defense : Frochlke: a - 4 wee ep Mac BRE LL LEM GTI és t P a ’ . 4 ; eae \ 7. regularly- sent.” ‘The. Department of the ae has enn: unwilling or unable to ensure the complete elimination of the. . ormation collected under tis pivgrmnr- front i its own and ae .’ other, governmental” records. * pe 3 | foe Examples of the: type of Otpinizations put under. inves- '--* tigation include . the ing@The Southern Christian. Leadership. Conference, the National Association for the. ‘Advancement of Colored People, the te_Rights Party, _ fhe. Presbyterian Interracial Council of Chicago, -the Ameri- “can Civil Liberties Union, Clergy and Laymen Concerned -~ ‘About Vietnam, the. Congress . of. Racial Equality, the ,. Mexican-American Youth Organization, National Organiza-° . tion ‘for Women, Operation Breadbasket, United. Christian Community Service, the Urban. League, Young Americans . for Freedom, SANE, Milwaukee United School Integration me ‘Committee, American Friends Service. Conimittee and hun- dreds of others.° at . This action was bconent by ; a group | ‘of citizens and prgani- zations challenging the constitutionality under: the First, Fourth, Fifth and Ninth Amendments of intelligence: activi- ~ ~ ties conducted against them by the Department of Defense: _ _ They allege that military investigation of peaceful and lawful political activity by persons unconnected with the. armed_ forces has infringed upon. their ability to exercise, constitu- tionally protected rights, and that it infringes. the rights of. ... Others.. They seek a declaratory judgment that such military activity is unconstitutional or otherwise illegal, injunctions os SLetter from J. Fred Buzhardt, General Counset, DOD, to Senator a4] ‘Sam J. Ervin, Jr., Chairman, Constitutional Rights cary: June 10, 1971. Hearings, pp. 1232,. 1233, ABS... ; .. See “The Phoenix,”- Boston, Mais., October 27; 1971; and Dis- patch News Service International release no. 218 for a more compre: - _ hensive list of organizations. ‘These news stories are based on an army ' collection plan dated April 23, 1969. Hearings, pp. 1731-34. See also ’ . “Hearings, pp. 184, 264-66 for —" of other individuals and organi- : zations. ; > 3 be ¢ : e s moi ° ‘a Sy Vas: ® At |: — forbidding such aie the fitdee, and sistitat relief 3 | - requiring the destruction of all information which resulted —. * from the military program. The District Court dismissed the complaint on the government’ Ss motion without pérmit- " ting a hearing on the. request for a preliminary injunction. « The Court of Appeals reversed and ordered further proceed- ‘ings. This Court granted the government’ 's application for.a. - ". writ of certiorari over plaintiff's opposition. The facts necessary to ,an informed considération of the . issues taised .in the petition for certiorari donot. sufficiently “appear ir in the materials presented by the parties in their. joint. . appendix. ~Tliat information consists ‘of what little was ~ ". known of Army suirveillance as of April, 1970. ‘Subsequent _ ‘to that date and continuing to the present, additional infor: . _ mation has been uncovered on the nature of the-military program, its origins, purpose, authority, scope, and actual implementation, and its effect on constitutional ri Consideration of this additional information is necessary ‘to a proper determination of the ‘questions now before the Couft, .For that reason, copies of the’ hearings. conducted’ ae by the Constitutional Rights Subcommittee, United States . ‘Senate Committee on the. Judiciary, have bepn’submitted as _ as an appendix. to this brief. : -- ne , ‘SUMMARY OF ARGUMENT , - Plaintiffs present a ‘justifiable issue by alleging that their 2 rights to free éxpression, association and privacy have been ‘infringed by an unauthorized , unnecessary, afd indiscrim- . ‘inate military program of inyestigation into their political’ a views, activities, associations and personal lives. The i injuries | they suffer to their -First' Amendment rights consist of a o legally . perceivable inhibition ‘on: the desire or ability to exercise the rights of free expression, am invasion of their - Tight to associational privacy, and an infringement. of other areas of protected activity under’ the First Amendment. ~ Under. our Constitution, citizens do - not have to pay - -the Price of these consequences in order to voice opinions or: ~ ve , ° pea Re ee tS Sek etme RS Ro ening ORNS _ to associate with groups. which are asian with the gov- * ernment. Not only has military surveillance directly catised _ these injuries, but it has ‘contributed to or facilitated inhibi- — ": tions on free expression by joining with. and. fostering other= social and personal forces which supply coercive or deterrent’ effect to the government’s action. Despite such id€ntified * ‘harm to First Amendment rights, the government: lacks compelling interest for conducting thé military program. The other ‘strict. requirements which must be met to save the — activity from constitutional infirmity—proper legal authority, * @ . caréful standards and strict administrative control, and pre- : ‘3..- ‘cise implementation—are also. absent. In such a context, it - » ds insufficient to argue, as the governrient does,-tHiat plain. tiffs are. free to exercise their rights despite surveillance and. : that . injury to First Amendment rights must be ‘shown by ~ empirical proof that the surveillance actually prevented plain- tiffs-or others from-exercising their rights. _ + Freedoms such as these are protected not only - against _ heavy: -handed. frontal attack, bit also. from _ being stifled by more subtle governmental interfer- __ ences. Bates . Little Rock 361 U.S. 516, 523 (1960). . ARGUMENT ke _PLAINTIFFS HAVE SATISFIED’ THE REQUIREMENTS OF JUSTICIABILITY BY ALLEGING-AN-UNAUTHOR.: | IZED, UNNECESSARY, AND INDISCRIMINATE: PRO- -. GRAM OF ‘MILITARY :SURVEILLANCE: WHICH HAS _INFRINGED UPON THE PEACEFUL EXERCISE. OF ‘THEIR FIRST AMENDMENT RIGHTS TO FREE EXPRES- SION’ AND ASSOCIATION 2 A. Military Surveillance Itifringes on. - First Amendment .Rights . Although ‘the- issues immediately before the Court’ ieniion” | ' technical questions ‘of justiciability, these questions arise-in— a First Amendment case and must: ‘be considered in that spe- cia] €ontext.. The challenge by the plaintiffs (respondents. : here) is to the Army’s system of political surveillance of citizens unassgciated with the armed ‘forces, who are. merely exercising: in a pencere manner their constitutionally guar- 2, es . = Fe ee Sa teh: “AB as “ anteed rights to free expression. The. plaintiffs seek to’ vin=. “dicate those First Amendment rights: gid --The. Founding Fathers rightly believed that truth ‘sae : inakes? men free, and they desired most of all that: the — of America be politically, intellectually and Spiritually free. ; That is the supreme purpose of the First Amend ment. a guarantees to every person in our larid the freedom to think . ‘as he pleases; the freedom to convey information and ideas by. speech and other means of communication; the freedom to associate with others to accomplish any lawful Purpose; the freedom: to meet ‘peacefully for consultation. and pro- test; the tight to petition those in power for redress of griev- - ’ ances, either real or imagined ; and the freedom to’ entertain © "+ such: religious beliefs as conipott with his own conscience. _ As Justice Brandeis, in Whitney v. Calif., 274 US. a7, 375-76, (1927), eloquently put it: -Those who won our ‘atlases ce believed... that freedom to think as you will ES speak as you think are means indispensable to the discovery and spread of. political truth; that without ‘free speech: ‘and assembly discussion ‘would be futile; that with them, discussion - affords - ordinarily adequate. pro-- os tection against the dissemination of noxious doctrine; __ ‘ that’ the greatest menace to freedom is an inert. ____ people; that public discussion is a political duty; and - that this should~be—a-fundamentat principle-of-the— American ‘government: They recognized the risks . to which all “human ifstitutions are subject. But they knew that order ‘cannot be secured’ merely - _, through fear of punishment for its infraction; that. _ it is hazardous to discourage thought, hope. and .- imagination; that fear breeds repression; that repres- sion breeds hate; that hate menaces stable govern- ‘ment; that the. ‘path of safety lies in the oppor- ————tunity to discuss freely supposed grievances and pro- — _ posed remedies; and‘ that the fitting remedy for evil counsels is good ories. Believing in the powér of _ reasgn as applied through public discussion; they eschewed silence coerced by law—the argument of force in its worst form. Recognizing t the occasional . a . ; ra . . ‘ < oe Fahne * Oa SOT te meena s > ene eee ee en eS Pee cer ad Reh rearreyeyy - PERSIE ON Be ea ’ ” . a : . ~ : . 5 7 . . ° ’ as oe Ne clad . . . “14. * : 2 = ’ : ee : » : deeiiiaa of governing majorities, they. amended. the . Constitution so that free _ and erasing should . DE: teed. _ These freedoms are. impartial and inclusive. ‘They. oma to all persons, whether —_ are wise OF ‘foolish, learned “ae OMe a Siete eet eneewrere gry Pe pam There. ‘canbe no doubt that shinee. fréedome are ee often grossly abysed and that society is, consequently, often tempted to demand or countenance me ‘curtailment wie < e government. Essential though Be freedoms are, i“ are ‘tet easily - exercised in a climate of fear, discgrd, and ‘dissension, espe- ~ cially when ‘the ideas being expressed are those which are ae displeasing to government, and uns@tling to the majority . : - when disquieting demonstrators have staged violent, unlawful , ™. essary, most in‘dahger, and most difficult to exercise, It is * .’ most necessary because it serves at least two purposes: if the - of citizens. ‘ The: cgitical views expressed by plaintiffs and - - others-on racial issues, military policy, the war in Vietnam, = and the ‘state of our society and the policies. of our govern- merit are indeed displeasing to those in power and perhaps © to most of society. -They are voiced in a time of fear and — ‘doubt, when other nations threaten the peace of the. world and. our nation’s security, when crirhe and -vidlence stalk: Our land, when riotous mobs have burned . our cities, and demonstrations on _streéts-and-campuses—These—ideas and the recent discord assoeiated’ with them have gore . many. Americans, including those.in high office. | It is at such a time that the First Amendment is most nec-_. - .complaint being voiced is justified; it~ will lead to action to ameliorate’ that complaint ; if it is not justified, f free speech — —-nonetheless—serves—as-a safety valve for pressures which otherwise might lead to violence, Free expression is most in _- danger .in times of fear because it is then that demands for suppression of unpopular ideds are strongest. And free - saan is then most ecg ee ie because it’ takes Ge a a brave man to voice unpupales ideas and face the anger of . his neighbor and his government. The First Amendment, “however, was made for the timid’ as well as the brave. While - government cannot instill courage in the meek, jit may not. | take advantage of a climate of fear to undertake a program _ which has the effect‘of restricting the First Amendment only — _ to the very courageous. Government action, such‘as military surveillance, seemingly innocuous in the: abstract, has the very .réal effect of suppressing the. exercise. of ‘the First. _ Amendment. The, coercive power of this government action - lies in the national, climate: of fear and doubt, and in the - "” -wery\real, tangible apprehension of some unknown form of - retribution by government on those whom it fears and there-. fore watches. That such apprehension exists-.in America ~ today is manifest.’ - | ~ \ “. 1. Deterrence of free expression: There can be no doubt surveillance by the military has * _ an inhibiting effect on the exercise of freedém,of expression. § __~ The spectre of thousands of military agents dutifully observ- "ing, noting; and reporting to higher authority information about peaceful citizens expressing vi¢ws distasteful to govern- _ ‘Mnent, the gathering of information about the personal lives __ of these citizens, the-collection of similar data held by local, "State, and other federal agencies, the placing ‘of this infor- | ' . .mation in computers, and its interchange with other govern- - _™ental agencies at all levels, have created an atmosphere of Official repression. The type of political activity subjected — to this surveillance is what is currently termed “dissent.” * The views which have attracted the Army’s attention consist ‘ ' . _in large part of those which. onistic to the Army’s. . policies, its interests, and its own political attitudes. Quite _ Clearly, the Army: has put- under surveillance its political a Opponents. The surveillance, however, is even broader than : a ”For-examples of the widespread concern over government surveil: “ lance’ and repression, see the collection of letters, news articles, and editorials in Hearings, Pat fl. =83=83 °° . * ; ? 7 . " 7 rd 2 Pn ee “ ; oH as this. For included in the nieitience are racial matters, : ‘community affairs, labor unions,. churches, colleges, the ‘press, political. figures, and thousands of common, ordinary citizens opposed , to existing governmental policies. Army ' surveillance’ has had as its target alrhost the entire range of . . Political. attitudes which differ from “accepted, . “main- 2 _ Stream” opinion. sie eae Hie nay The fact that the government, through the inatrimateitality _ of the Army, has seen fit to investigate the views and per- . ‘sonal lives of those who disagree with it cannot help but . - clothe those views and the people. who. hold them with the | ' . taint of official disapproval and suspicion, and encourage the’. | the public to regard them as somehow disloyal. This .Court _ . ‘a always been suspicious of attempts by gover! ent to .» label or characterize political views as _ “approved” or “dis- _ approved.”® The reason is obvious. Government, by force of example,—has “considerable. power to encourage or dis- courage the” expression of ideas. The vice of military” suy- - veillance is that it serves to discourage the expression of con- ~ troversial views and to impede their. acceptance by others.’ : Bede of widespread governmental investigations of - t who hold, unpopular views is eyen greater, because military surveillance, even if it has served no > real purpose, is generally thought to have a purpose... 3 cer, ‘These freedoms are delicate and vulnerable; as eae co 2 ee ‘supremely presious in our society. ‘The threat of* "sanctions may deté®their exercise almost as potently _ ‘as the actual application of sanctions. NAACP». v. 3m USS. 415, 433 = a F = _ -®The Army’s attitude towards these views is well illustrated in the : Febgiry 1,:1968, Annex B (Intelligence) to the DA Civil Disturbance. -. Plan,.in which those active in civil rights and antiwar movements are listed -as “dissident elements” and only. the Army is listed as the ces as taal Hearings, p. 1121. a : P , . lar - ———— On SARIN Seen 8 OF ALS LAGI EL SA CURE LN LEED! BEEBE AIEEE LRA O BSE SM REO DG TOE et FEB ; pereiienge ‘cieates an apprehension that some. harm, its ; * exact nature. unknown, will befall those under surveillance, and those who’ ‘associate with them. ? _' We have recently had ‘occasion re hald in two cases that there. are. times and: circumstances when . States ‘may not. compel members of groups engaged | ae in the: dissemirfation of ideas to Mae public iden- * ~ . tified. . The reason for these) dings’ was. ‘that. & identification and fear of_r sal might deter per- aes _ fectly peaceful discussions of. public matters of impor-- tance.. itr Bip California, 362 U.S. 60, 65 (1960). coerci “power .of the unknown is very ‘great, and may jore of a deterrent than the threat of some specific ep eT This quite tangible fear is not eliminated by state- . ‘ments from those in authority that they intend no. Bx to #s ‘ those whom they are investigating. ‘Fhe social ostracism which ‘ ‘meets those who express. ‘dis- . tasteful views to“popular opinion thakes it an act of personal courage in many cases, to oppose/ the sentiments’ of the © community. ‘Military surveillance /in this. context ‘can only . make the individual’s ability. and desire to speak out more: § ’ difficult. “ Not. -Only -must face’ the disapproval ‘of his. | ‘: fellows, but he must also“incur the price of ‘a loss of his’ '\Privacy, the recording of his actions in the recesses of the - files and computers of thé armed forces, and the fear: of ‘some future detfimental use of those records by the Army * or the other. governmental bodies to whom the information ‘is distributed. . Talley v. California, 362 U.S. 60 ( 19607; ' Bates v. Little: Rock,. 361 U.S. 516 (1960); NAACP ¥. Al . - bama, 357 US. 449 (1958)... ‘Since the Army program is . ostensibly conducting surveillance of “unlawful” civil dis- turbance, the citizen whose peaceful, lawful. activities are. put ‘under surveillance has to ‘bear the added burden, and ‘the added fear, of being afbitrarily designated as one who. aids, abets, encourages, iat cht or everr — in unlaw- < ‘See testimony of Ralph aeaaaes. pp. 244, 257, — a a F fs 7 ‘ ee a ps ss E P FS Z . J A P : ° ° . 4 ak . : SI se ain a erg a Aa TE SLI LAM IAD, SELF! rea Or RE: PUR ” ‘fa’ acts of vioiencé, 10 The harm ‘is ali iitustiated by the reaction of citizens who support military surveillance? “The | ‘Military. wouldn’ t be ‘investigating them if they weren’t doing’ “something wrong.” The military} by conducting surveillance, @ fosters this public attitude, and ‘thereby inhibits: free expres-- sion in ‘violation. of the First. Amendment. : It is no reply to say that empirical proof of this i injury or | ‘not been demonstrated. The effect of the military program. . is to increase or entourage ‘silence. How-does one measure @ silence? It would be paradoxical, and obviously impossible, _ to require the production of witnesses to. confess publicly that they have been frightened out of expressing their true - ° feelings because’ of military surveillance:'! That would result | in the nullification of the proof at the very moment of its assertion. _NAACP v, Alabama 357°U.S. 449, 459 (1958). a It is enough that the government’ s actions can be ‘ ‘perceived. to have the consequence of unduly curtailing the merry of - | freedom of [speech} . ” 357 U.S. at 461. : The First Amendment’ s protection for freedom of ieee, _ of. association, and the right to petition government_ for. redress of. grievances is not limited to governmental action — which operates directly on those rights and when avowed purpose is to limit or regulate them. - ~.. : 4...» Fheedoms ‘such as these are tne not only ae * -against heavy-handed frontal attack, but also from | - being stifled by. more ‘subtle governmental” interfer- - ence. Bates v. Little Rock 361 ‘US: 516, a ton h 2 ‘i Lie . - . eich 6 . Be 5 ; ; ; va The a made no distinction in its investigations or in its dossier systems between those. who engaged. in perfectly legitimate activity, those who had been — of violating criminal laws or even those - | who were convicted espio agents. All were lumped together. It routinely used undefined chaNcterizations such as “militant,” “radi- cal,” “communist,” “tight-wing” and the like, to describe these people. See testimony of Ralph Steip, Hearings, pp. 244, 248. “CF, Testimony of Pete Parra, Hearings, p. 355. e a \ ¥ ’ - oo ke ree! : ’ A ‘ . sek re 19 4 » we ge 3 bed Se . + ° , ie . The. reason ‘for so ‘seaatiles the protection of the First ° Amendment to prohibit “‘siibtle governmental interference” ; ‘sis that’ freedom of expression needs “ ‘ survive” NAACP ¥. Button.371 US. 415, ¢ fore, governmental “action which may. ave curtailing the freedom to’ associate is subject to the closest “ - scrutiny.” _ NAACP y. Alabama 357 U.S. 449, 460-61 (1958).. . In recent. years challenges to government -action impinging on the free exercise of the First Amendment have involved _ . a wide range of situations, The Court has limited the require- _ ment of oaths, (Baggett v. Bullitt 377. U.S. 360 (1964)); _restricted the opezation of laws designed to .protect the - national security, (U.S. $. Robel 389 U:S. 258 (1967) ); __ struck dowfi controls on obscenity) (Smith v. Calif. 361. - US. 147 (1959)); limited libel laws, (New York Times A _ Sullivan 376 U.S. 254 (1964)) and restricted. the congres- -_ sional power of investigation. (Watkins v, U.S. 354 U.S. 178. ~ (1957)). : These cases have involved otherwise legitimate - governmental interests, hut because government iad trenched upon: protected areas in the course of pursuing its interests, ae its: action was impermissible undet the First Amendment. ’ The fact that Alabama, -so fat as is relevant. to the validity of the contempt judgment. presently. under -review,. has, taken“ no direct action, . . . to restrict the right of petitionet’s members to asso- ciate freely, does not end inquiry into the effect of _ ‘the production order. _In the domain of these indispensable liberties, “whether of speech, press, or. - association, the decisions of this Court recognize that abridgment of such rights, even though unintended, |. "May apulrigl follow from — forms of oe Beye mental action. oo “ The ice achion ch longed may appear to - - be. totally unrelated to protected liberties. Statutes imposing taxes upon rather than prohibiting partic- | ‘ ular activity have been struck down when perceived to have the consequence ' of unduly curtailing * the’ liberty of freedom of ‘press assured under the Four- _ . teenth Amendment. seta v. Ala: 357. US. 4, ~~, 461 (1958). im 3 + * , € . e . 3 4 spat 20 Mal ee tet von ye mine ae oe? EI GC RR AG we? = - .. e e = . 5 20 ‘The-deterrent. effect may be caused by | fear of cami lots ‘of-employment’? or of. a security clearance, by. the os breat. of a government sanction, “by the imposition of a tax, or by some. other loss of a government benefit Or . * threat of a legal sanction. . But. government action may be unconstitutional if it serves as the occasion, although not . the direct sourcé of this deterrence. . Pétitianer has madg an, uncontroverted showing. that a its‘ rank-and-file: members has exposed these members — . ~ -to economic reprisal, loss-of employment, threat of physical. coercion, _and other. manifestations of ‘pub- lic hostility... “og. i ‘It -is not sufficient ‘sc answer, as the State does — "here, that whatever repressive effect compulsory dis- — that on past occasions revelation of the identity of ..’. closure of names of petitioner’s members .may have — . upon participation by. Alabama citizens in petitioner's . activities follows not from state action but from pri- * yate community pressures. The crucial factor is the interplay of governmental and ‘private action, for it . is only after the initial exertion of state power rep- resented. by the production order that private action takes hold. NAACP v: Ala. 357 US. 449, 462-63 (1958). See also Bates v. Little Rock 361 U: s. os - 523-524 (1960). = ! Tl he deterrent effect need not, however, stem from forces’ al to the citizen. It may be self-generated. In Lamont vy: Postmaster General 381 U.S. 30} (1965),.the minor incon-. venience of filing a-card requesting delivery of foreign prop- aganda was: not a. great imposition on an addressee’ s time. “Yet it ‘was Fuled unconstitutional b&cause some citizens in sensitive positions “might think they would invite disaster if they’ read what the, Fedéral Government says contains the seeds of treason.” ‘The ordinary, citizen, moreover, “is likely to feel some inhibition in sending for literature which ZOn occasion Army Suceadlinnc has resulted in loss of employ: ment. Hearings, pp. 1451- 1457. . a fedecall Officials have ilineas as ‘communist political .propaganda.’’’ 381 U.S. at 307. The earlier practice of —paaiataleing Bits of such addressees had been. discontinued _ by the time fhe*case reached the Court. Quite clearly, that " practice, also involved in military surveillance, would have - _ occasioned even stronger judicial condemnation. F - The. “‘€omr munist registration cases. underlinie this conclu- sion. Here the deterrent effect is caused by the-public anti- ‘ pathy. towards organizations of*this nature and the effect. of explicit governmental disapproval . of these organizations, both of which factors operate to discourage citizens from Dae engaging in free‘éxpression: of views which are encompassed or might be encompassed by the registration laws. -Govern- -ment action, which inspires or even facilitates self-censorship “sis déterrence enough, Smith v-. California- 361 U.S. 147 (1959). Time Inc. v. Hill 385 U. S. 374 (1967). ° The oath cases provide additionat examples i in which the. deterrent effect is not dependent on government applied sanctions: alone. Oaths may not have the morally’ binding force they: once had in a more God-fearing age. Yet some who. sign disclaimer oaths will endeavor to abide by them, not only because of a speculative fear of future sanctions for violating the oath, but also because ofa conscientious desire - to avoid conduct and ideas they have sworn to forbear. * Baggett v. Bullitt 377--U.S. 360 (1964).’ Furthermore, the ‘oaths also Serve aS warnings to members of the general public ‘to avoid views and associations on the possibility that some day they may have to ascribe to the oath: The deterrent. . effect applies not only to those who must take the oath, but to those who may never have to take it. The lengths the Court. has gone to in identifying ‘such | deterrence are well-illustrated by the “abstention” cases. They are not directly relevant here because the. plaintiffs do not seek an exceptional interference with the normal require- ments of federalism ‘but only the, exercise of the Court’s responsibility to review. the constitutionality’ of federal "action. ats v. .. Madison | Cranch 137 (1803). Yet, the s e: 2. penton cases show that even delay caused by litigation amounts to a. legally cognizable deterrent. , {[T]o force’ the’ plaintiff who has. commenced a federal action to suffer the delay of state court pro- ; a ceedings might itself effect the impermissible. chilling | of the very constitutional right he seeks to protect. .Zwickler v. Koota 389 U.S. 241, 252 (1967). " The line of cases: dealing with indirect infringements on . _ First Amendment rights demonstrates that it is the injury - to First _Amendment interests which is important, and not merely the method. by which it is accomplished. To view ‘ ‘these cases as prohibiting only certain types of government action which have deleterious effects.on the First Amend- - ment is .to.give them a narrow and artificial construction, and» to reflect a strained and grudging appreciation; of the vital interest in preserving free expression. It would champion * form over. substance and put a premium on ingenuity when - government seeks tosilence those of whom it disapproves. In First Amendment cases especially, government may not - restrain speech by indirection any more than by a frontal | assault... Any lesser rule would demean the First Amendment r' i and give ‘solace to the ear but deny it to the heart. 2. Interference with freedam of association: The Court has explicitly recognized that effective advocacy -may require associational privacy, especially when the ideas advanced are controversial. It. is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advo- : cacy. may constitute as effective a restraint on free- dom of association as the forms of governmental action in the cases above were thought likely to- produce upon the particular constitutional rights . ‘there involved. This. Court has recognized the vital relationship between freedom to ‘associate’ and pri- - vacy-in one’s associations. When referring to the - varied forms of governmental -action which. might interfere with freedom of assembly, it’ said in‘ Ameri- can Communications Assn. v. Douds, supra, at 402: a 23 A mean that adherents of particular religious ’ faiths or political parties wear identifying arm-bands, © for. example, is obviously of this nature.’ Compelled — -. disclosure of membership in an organization engaged in ‘advocacy of particular beliefs is of.the same order. -_ Inviolability of privacy in group association may in + gms ‘many circumstances be indispensable ta’ preservation ~. of freedom of association, particularly where a group "espouses dissident beliefs. NAACP v. Alabama 357 U.S: 449, 462 (1958). ) . Anonymity. is necessary not a al groups meet in private, but also when-they demonstrate on the public. streets. There is a very real difference between a public event in which the individual participants are: essentially °— anonymous and the official recording of that act in order to identify the individual permanently with that event. The . privacy of a citizen whois one of a faceless crowd at a E. demonstration or ‘speech is totally destroyed when the Army -° observes and identifies the citizen, seeks out other data held _ by private and governmental agencies, infiltrates secret meet- _ings,}3 permanently records: this data, and makes it gen- erally available. to other governmental agencies. The harm . done to the citizen—loss of his associational privacy—is even . greater than when government merely compels self-disclosure ’ of organizational memberships. Unlike other situations ~ (Bates _v. Little Rock 361 U.S. 516 (1960), NAACP v.- _ Button. 371 U.S. 415 (1963), and NAACP v. Alabama 357 . US. 449 (1958)), in. which government sought to further other, admittedly legitimate purposes and only incidently - infringed upon associational anonymity, military surveillance _ | is an intentional and not.an. incidental invasion of associa- . tional privacy. There can be no question that plaintiffs can point to an injury done ‘to their First Amendment ‘rights, because. the action they complain of. was designed to dis- pel the saa bed so aay fonpolneal dissent. Zwickler ~ id The Army also sanieed: in covert operations. E.g., statement of ; ‘Assistant Secretary of ices Froehlke, Hearings, p. 422. 24 vi. Koga 389 389 U. S. 241 (1967), Talley v. California 362 U. S. 60 (1 ). That privacy is especially necessary when one is opposing antagonistic govetnmental forces. 3. “Infringement of Freedom of Religion: _ The. Amny’s indiscriminate intrusion into domestic civilian affairs has also had the éffect of interfering with a number — of other. constitutionally protected activities. Its surveillance of the activities of elected representatives at the federal; state, and local levels, of unions, of the press and of the judi- _ Clary and the legal process, for aimiple, are also jnfringe- . ments of the special constitutional rights of citizens engaged. ~ » irrthese protected areas. It is of particular ohare to your ‘amici that a largé portion of this program’ has also been dir- ected at members of the religious, community, and at reli- gious activities. The record is replete with examples “of this special invasion into religiqus aspects of ‘our society. We agree \with plaintiffs that the Army’s program is an uncon- ~ stitutidnal infringement of every citizen’s freedom of expres- - sion, but we are especially disturbed by the. fact that the program was also oblivious to the religious freedoms sedwred by the - First Amendment. The Constitution erects a high~ ~~ wall separating~the military from intrusion into domestic’ life. In ignoring this principle, the Army also breached tht wall of separation between the state and the religious activ- ities of Americans. When it included in its program the peaceful and lawful religious activitits ‘of Americans, the Army also violated the free exercise ariel of the First Amendment"? i — Interest in Milt | " Not. all action by g@vernment which has an effect of | deterring “the free exercise of First Amendment rights is @. necessarily unconstituti nal, but once such an etiect can be 14See.'e.g., testimony of John A. Sullivan, Hearings, p. 351 and Oliver A. Peirce, ane. P. 305. . identified, the action is constitutionally” defective ‘unless the - government satisfies strictly imposed limitations. As was. ; succinctly stated by then Assistant Attorney General Willjam Rehnquist, “While thére -is "obviously no ‘justification. for - _ surveillance of any kind that does not relate to a legitimate . investigative purpose,. the vice is not surveillance per se, - but surveillance:.of activities which are none of the Gover sy ment’s business.”!5 . The government must have a “edmpelling” interest in | taking the-action, it must be properly authorized, the rules on must. be precisely defined, and- the action. must be closély . ‘supervised and carefully conducted... In the area of First Aictadeait freedoms, govern- | ment. has the duty: to confine itself to the. least intrusive regulations which, are adequate for the purpose. Lamont v. Postnaster General 381 U.S. 301, 310) Brennan, J., concurring. Broad prophylactic rules in the area of free expres- sion are suspect .. . Precision of regulation must be the touchstone in an area so closely, touching-c _ most précious freedoms. NAACP ». Button, 371 ~ U.S. 415, 438 (1962)... 7 (See U.S. v. Robel, 389 US. 258, 269 (1967), Brennan, J. ~ concurring; for a discussion of the constitutional defects of: . inadequate standards in statutes ieee d on the ‘First Amendment). The fact. that the program of. political laeetaaton being ‘challenged has been conducted by the military serves hoth to. a underscore thé seriousness of its deterrent impact on the ~ _ First Amendment, 16 and also to identify its defective aspects. ’ As Chief Fastice Warren has Said: Determining the proper role to be assigned to thie aary in a democratic society has been a trouble- U . 'S Hearings, p. 691: \ 16See also Tatum v. Laird, 444 F.2d 947, 958 097), Wilkey, J. ? . 26 some problem for every nation that has ispited to a free political life. The military establishment is, of ‘ + course, a necessary ‘organ of government; but ‘the’ “reach of its power. must be carefully limited lest the delicate. balance between freedom and order be upset. The maintenance of the balance i is made more | difficult by the’ fact that while the military serves . the vital function of preserving the existence of the. nation, it is; at the same time, the one element of government that exercises a type- saa authority. not | easily assimilated in a free society. The critical importance of achieving a proper - . accommodation is apparent when one considers the , corrosive effect upon liberty of exaggerated military ‘power. In the last analysis, it is the military — or at least a militant organization of power — that domi- . Mates life in totalitarian countriés regardless of their - nominal political arrangements.. This is true, more- , over, not only with respect to Iron Curtain countries, -. but also with respect to many countries that have all the formal trappings of constitutional democracy. , — Warren, The Bill of Rights and the Military 37 N.Y.U.L. Rev. 181, 182 (1962).. I, Military surveillance is unauthorized by law. . Recognizing. this danger, the Founding Fathers took pains ‘to subject the nation’s myiitary forces to” strict controls.!” !7The necessity of limiting the military’s a in domestic _ affairs and of keeping it under strict civilian control has been recog- nized throughout history. For example: (a) The Revolutionary Period: The king “Kept among us, - - in times of peace, Standing Armies, without the Co our legislatures” and “He has affected to render the Military pry owen of and superior to the Civil power. ” Declaration ndependence; - (b) The Constitutional Convention: “It was further ob- served that, when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of-a standing army for that purpose, and leaves the militia in a situation as. contemptible. as possible, lest they might oppose its arbitrary designs; that, in this system, we give the general _ government every provision it could wish for, and even invite y? ay In six separate clauses of Article I, Section 8, they carefully - spelled out that Congress was to have legislative authority it to subvert the liberties of the States and their cxtizens; since — we give it the right to increase and keep up a standing army as_ . »Mumerous as it would wish, and by placing the’ militia totally . unorganized, undisciplined, and even to disarm them; while -. _the citizens so far from complaining of this neglect, might ° even esteem it a favor in the general government, as thereby, they would be freed from the burden of military duties, and~ left to their own private occupations or pleasures. Luther— Martin, Address to’.the Maryland legislature, November 29,. - 1787;-in 3 Farrand, Records of th Convention 209 _ (1939 Revised Edition, 1966); - ee es, | (c)-The\ Federalist Era: During the whiskey rebellion | “Hamilton \had hoped to capture a- sufficient: number of proper persons for examples, but of the 150 men brought in . ‘by the asmny few could qualify for this distinction. In obedi-. ence to Washington’s orders; the army remained in strict subordination to the civil authorities, S $ were not haléd before a military tribunal and no was condemned _Mithout due process of law. Nevertheless, Hamilton sent out ‘scouting parties to round up suspects, who, in some. cases,-- * ‘were brought before him for preliminary examination. While ‘he did not succeed in ferreting out many traitors by these methods, his inquistorial activities later provided his political enemies with a rich vein of propaganda.” Miller, Alexander __ Hamilton and the Growth of the New Nation, 409 (1969 ed.);. _ (d) The Civil War: “If this position is sound to the extent . -: Claimed, then when-war exists, foreign or domestic, and the country is subdivided into military departments for mere con- venience, the commander f one of them, can, if he chooses, withst his limits, on the plea of necessity, with the. approval ‘ of the Executive, substitute military force’ for.and to the _ . exclusion of the laws,-and punish all persons, as he thinks right and proper, without fixed or certain rules.” “The. statement of this proposition. shows its importance; for, if true, republican government is a failure, and there is an .end of liberty by law. Martial law, established on such a basis; destroys every guaranty of the Constitution, and effectually - renders the ‘military independent of and superior to the civil - power’—the attempt to do which by the Kind of Great Britain was deemed by our’ fathers such as offense, that they assigned it to the world as one of the causes which impelled *. them to declare their independence. Civil Liberty and this _ ' martial law cannot endure together; the antagonism is irrecon- + cilable and, in the conflict, one’ or the other must perish.” Davis, J., Ex Parte Milligan, 71 U.S. (4 Wall) 2, 124-5, (1866); ‘4 = — ese = over the military. yet dt the same time’ 6 they were stio careful . to ae against legislative tyranny or excessive discretion.. Thus, the Constitution restricts military appropriations to two years, divides jurisdiction over the militia between the central and state governments, and limits the domestic use of the. military. to repelling invasions, suppressing insur- (e) Reconstruction: porn the ‘necessity of the possee ~ ‘comitatus act, Senator Metrimon of North Carolina stated: © “Now sir, we know by sad experience that. the Army has been sued ‘not once, but time and time again, in a way. that not a court in this country would sanction. The Army has not only been used in: the collection of the internal revenue. in a way not authorized by law, but it has been used and prosti- : tuted to. control elections repeatedly. Statehouses Have been’ _ seized over and /over again, and not a great while in the past. _ The objection of this section is to prevent a like prostitution of thé army in the fyture. I maintain that it is right and proper that we should insist. upon it. Let us examine it can- , idly and see that it is right, and if not make it so; . . . I trust sir, that the President will not improperly employ the Army in the future; but I trusted on former occasions that the - President would not do so, but we. saw that he did doit, not ~ ‘once, but oftentimes, and where a supposed or pretended emergency may arise he may do so again. Nobody can tell. j I cannot-and I am not willing to risk any | President with such ~_ ' ° power, even if Congress has the right to confer ’it.” 7 Congressional Record, Part 5, 4245 45th Cong., 2d sess. - (June 7, 1878) (remarks of Senator Merrimon); . (f) The Korean War: “The order cannot properly be : sus- tained as an exer of the President’s military power as Commander ‘in Chief\ of the Armed Forces. The Government . attempts to do so py citing a.number of cases upholding - ‘broad powers: in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not. concern us - here. Even though ‘theater of war’ be an expanding concept, ‘we cannot with faithfulness to our constitutional system hold that the Commanders in Chief of the Armed Forces has the ultimate power as such to’ take posséssion of private property in order to keep labor disputes. from stopping production. | This is a job for the Nation’s lawmakers, not for its military authorities.” Black, J.,.Youngstown Sheet and Tube Co., v. Sawyer, 343 US. 579, $87 aes ° 29 4 rection, and: executing the laws. ‘Comune of the Asai : was given to the nation’s chief. civilian officer, the President, and his limited authority for-domestic use .of the. military _ was repeated. in ‘art. IV, 84 — repelling invasion and ‘sup- « pressing domestic violence — together with. the exact, Pro- cedure required to be followed i in such cases. The. Constitution, therefore, is- venaai sxilicit in: limiting the domestic role of. ‘the armed forces. Congress, ‘pursuant to art. I,.§8 and art. IV, 84, lias enacted: 10USC . 331-334: Which are the sole statutory grants authorizing . intervention by: the armed forces into American domestic’ life. -Yet, it is clear that these statutues nowhere by their ’ terms specifically~authorize'® or even contemplate sur- - _-veillance by the military. The statutes govern only the circumstances in which the President may use military force. Unless these cénditions are present, the President may not: | loose ithe Army on the American people, and’ any direction “by him purporting to do’ so is without statutory or con- ~ ‘stitutional. support. Even when the necessary preconditions for use of the armed forces under these statutes exist, these: statutes also prescribe the procedure that must be employed ’ before the President my call out the Army. Unfortunately, recent American history has provided: us with examples ~ where this has been deemed necessary.'? . But the actual use’ of military force to suppress violence, pursuant to art. aV;- § 4 and these statutes, is not: challenged here; nor is the . power of the Army to perform necessary investigation when actually committed pursuant to these statutes; nor even its right to receive intelligence when such: a commitment AS about to be made. What is challenged is cs program of \\ 18ge¢ eg., statement of Defense eee ‘General Counsel Buzhardt: “As I have said, Senator, there is no act that we know of that deals - with the subject o1 one way or the other, in Specific terms.” Hearings, P. 416. “19See “Y;5, Army Intelligence Role in Civil Disturbances” (un- dated). Hearings, p. ai dl | \ “\ 2 as ei " political surveillance dnd investigation of persons throughout: - . the entire. country, and encompassing almost every form of ae peaceful political ‘activity, with no relationship to actual ~ situations requiring the use ‘of military force. ae - The authority to ‘conduct political and personal emia tions of such a general nature cannot be’ read iffto these | statutes. First, the” Constitution » and American. history _ ; demonstrates that grants of power to the military’ to act in domestic affairs must be narrowly: construed. : On. the whole, it seems to me plain that the Court _ has viewed the separation and subordina of the -military establishment as a compellit Zg prificiple. oe When this principle supports an assertion of substan- tial violation of a precept of the /Bill of Rights, a: most extraordinary showing of military necessity in -in defense of the Nation has been required for the Court to conclude that the challenged action in fact. squared with the injunctions of the Constitution. _ ‘While-situations may arise.in which deference by the --Court is compelling, the cases in which this has . occurred demonstrate that such a restriction upon the scope of review. is pregnant With danger te mer vidual freedom. Warren, supra at 197 W/ Second, Congress has expressed itself in the past against a ee broad view of any military involvement in domestic-affairs. The posse comitatus act, 18 U-S.C. 1385, prohibits the use of military forcés to aid in the enforcément of law by civilian” authorities as a “posse comitatus or otherwise” ‘unless. - “expressly authorized by the Constitution’ or Act. of Con- - | gress.” (Emphasis added). ae See o The statute is not an anachronistic relic of an his- - torical period the experience of which is irrelevant to . ° the present. It is not improper to regard it, as it is said to have been — in 1878 by the Democrats po | - Z ‘2018 USC 592 and’ $93, . cochablaing the use of troops in electionis, _- are’ other examples of Congress’ efforts to protect domestic political life from the inimical influence of military involvement... ; eS y gn ; ee *) : ; who Prneteasar4 it, as expressing. “the! ‘eli inherited anti- pathy of the American to the use of troops for civil purposes.” (Sparks, National Development 1877- | 1885, p. 127, in Vol..23,~Fhe American. Nation, A . History) Its relevancy to this age is sadly clear (1957, 41 Op: A.G. No. 67): .. . [It is] a statute that is abso- - lute ‘in. its command and,-explicit in its excep- — * «,tions.. Wrynn y. U.S. 200 F. Supp. 457, 465 — Dooling, J.” Oe ite . - It is clear that the entire operation of. onil#Phcy. curvelliance'\s a violation of the federal criminal laws. But even ‘in. the | absence of these Jegal and constitutional’ principles’ which’ restrict the military’ Ss. authority: ift domestic activities; the — Court must apply the’ principle “that statutory words ‘are to be read narrowly so as to avoid questions concerning the ° ‘associational freedom’ that Shelton v. Tucker protected and - concerning other rights within the. purview of the First Amendment. > Schneider v.. Smith 390 US. 17, 27% (1968). If, ordinarily,” deference will be given to the President and. and the Congress in“ matters. of military affairs outside’ the borders of our country or in times of war, this broad latitude cannot apply when the military power is involved in domestic affairs, Youngstown Sheet and Tube Co. v., Sawyer 343 US. 579 (1952), and — not when. constitutional rights are “at stake. an @* ve The. Goveensine seeks to defend the. statute on - | _ the’ ground that it was passed pursuant to Congress’ . war power. ‘The Government argues that -this Court __. has given broad deference to the.exetcise of that con- . * stitutional power by the national legislature. That. argument: finds support ‘in .a number: of decisions of this Court. However, thephrase “war power” cannot. - he invoked as a talismanic incantation to support any: exercise of céngressional power which can be brought — within its ambit.’” “[E]ven the war power doés not. _Temove constitutional limitations. safeguarding essen- tial liberties.” Home Bldg. & Loan Assn. v. Blaisdell, - | 290 US. 398, 426 (1934). U.S. v. none 389 U.S> . ' . 258, 263-64 (1967). . ‘ f Mgt Ly . 32 | { 2. Military surveillance serves no military purpose. _ If, despite these principles, an implied authority to con» ‘duct surveillance canbe read into these statutes,?! such sur- ‘veillance still does not avoid challenge unless ‘it is necessary ‘to the effective performance of the. Army’s statutory func- tion, . pte. - _. .{GJovernmental action does not automatically become reasonably related ,to the achievement ‘of a legitimate. and substantial governmental purpose by mere assertion in the preamble of an ordinance. . When it is shown ,that state action threatens signifi- cantly to impinge upon constitutionally protected freedom it becomes the duty of this Court to deter- | _ mine whether the action bears a reasonable relation- ship to Ag achievement of the governmental purpose asserted as its justification. Bates v. Little Rock 361 U.S. 516,525 (1960) - me Because of the unysual posture of this case, the formal record _ is devoid of much evidence which illuminates the contentions of plaintiffs that the program has: been overbroad in concept, | that it has riot been controlled in operation, and that it has ‘ provided the military with no assistance of any value.to the _efficient performance of statutory duties. A consideration of - the other information available to the Court demonstrates that the argument of military necessity does not withstand - the evidence. rr __~--The ‘function ‘of the armed forces in civil disturbance is simply to assist the.-civilian authorities in suppressing vio- lence... In the absence of a declaration of martial law, the Army performs no civil, governmental functions of its own. go There is also the question of whether such authority to conduct * political surveillance has been properly delegated to the Army. The .“Delimitations Agreement” of 1940, as amended, assigns this respon- _ sibility to the Justice Department. Hearings, p. 1172. The record is | devoid of any Executive Order ar other written order by the Presi- dent expressly transferring to the Department of Defense the author- - ity to conduct domestic intelligence operations of the type involved - in‘this litigation. ‘ | : : 330 ~« In civil disturbances, the Army acts as an arm of the civilian authorities, but it is. not a law enforcement body. It is only. an instrument of power whose limited function is to. suppress violenee. The information the Army ‘actually reeds to p _- pare for civil disturbance-is limited to that logistical informa- §& -tion necessary to move troops, quarter them, and deploy them. The Army needs no: advance political information, no: & _ information on’ personalities, \ views, opinions, personal data, and the like. 2H | | The First Amendment s ban against: Comaewas “abridging” freedom of speech, the right peaceably to assemble. and: to petition, and the “associational free. dom” (Shelton v. Tucker, supra, at 490) that’ goes with those rights create a preserve where the vie f the individual are made inviolate. This is the bere _.* phy of Jefferson that “the opinions of men are not “~ the object of civil government, nor under its jurfadic, *tion.... [I]t is time enough for the rightful purposes of civil government for. its officers to interfere when — principles break out into overt acts against peace and» good order. . ...”. Schneider v. Smith, 390.US. 17, 2504 968) | The dssessment of the need for troops to suppress civil vi0- lence is one to be made by the civilian officials, state and. ‘federal, whose constitutional and statutory responsibility it is to decide to employ troops. ThisCourt need not assume the functions of a military commander. or the President to ° Tecognize the limited nature of the. information the military “needs to perform its limited responsibilities in this area. 3. Military surveillance is overbroad in direction and indis- | -criminate in its operation. ; The various senior officials responsible for Army surveil- lance have repeatedly expressed the view ‘that the military surveillance has not been necessary or helpful.2? Their judg- 22“ “They [the pictures and reports] were the most worthless damn things I have ever séen in my life. It was a waste of paper. We-said “Burn ’em,” ’ Jordan said. ‘Even if we didn’t have any concerns about _ Civil liberties, which we do, we would have said it was worthless and to 34 ments confirm the conclusion ordinary common sense dic-. . tates. Whatever value this p6litical and personal information . _ might have to civilian authorities, the political views of peace- ful critics, much less personal facts about their private lives, ‘ can-be.of no use to,the commander, deploying his troops to. _ put down violence, nor to the soldier on the street. The . statements of these officials also ‘confirm plaintiff's allegations that ‘the program: has permitted an unnecessarily | broad scope of discretion. to those who implemented the sur- . veillance program, 23 and that it has been.implemented in a totally indiscriminate manner.* The broad, ill-defined nature of the program is demonstrated graphically by the - documents which have so far come to light. The successive Intelligence Collection Plans of 1968.and 1969, the Intelli- gence. Annexes, and similar documents disclose that the Army agents have been told to-conduct surveillance on those who practice violence, those who advocate it, those who hold _ political views similar to those of persons who are sympa- ' thetic to violent tactics, and anyone remotely associated or sympathetic to them.** ,No -activity protected by. the First Amendment has been immune. Peaceful assemiblages,, do away with it,’ Jordan said.” _Interview with Robert E. Jordan, | General Counsel, Dept. of: the Army, in “Army Explains Civil Snoop- ing,” Washington, D.C:. Star,-Dec. 6, 1970, Hearingy, pp. 1728, 1729. “Sée also letters from Jordan to Ervin, Feb. 25, 1970 and Nov. 27, 1970, Hearings, pp. 1048, 1049; 11.06, 1107. 23Since early 1970, the rules and rexulations governing Army surveillance have been repeatedly defined and redefined by the Depart- ment of the Army and by the Seeretary of Defense. - Meg, Hearings, p. 421: “As I indicated in my statement this morning, Mr. Chairman, both the collection plans of February 1, and May 2, could be interpreted in such a way that would permit surveil- lance of almost anybody who is active in a community where there - was civil disturbance. Both plans were very broad.” Statement of Assistant Secretary of Defense’ Froehlke. 25See the various Intelligence Collection Plans, Hearings, pp. 1119. mae s 1154. / 35 speeches, marches, the filing of lawsuits, and any other kind of public activity connected with politics have been fit sub- jects for military surveillance. Once an individual has become “ the subject of surveillance, almost no information about him is irrelevant. - The Collection Plans° permitted and indeed Tequired the collection of almost all information possible.?° Compounding this excessive. requirement on the yhas © been a corresponding lack ‘of control actually exercised by | ~ senior authority.27 These officials apparently did not know é how many computers were involved; what information was ~ being collected by the Army, and indeed who was actually -7 collecting it. It appears that the first glimmer of knowledge - of the actual nature of this surveillance(by senior civilians in the Department came quite by accident. in late 1968. For at. ° least two years afterwards, revelations continued to surprise these officials, despite repeated efforts on their part to learn _ : and to control the actions of their subordinates. 28. a " 26S comprehensive were the requirements levied in the civil disturbance information collection plan that any category of informa-. tion related even remotely to people or organizations active in a com- munity in which the potential for a riot or disorder.was present, would fall within their scope.” Statement of Assistant Secretary Froehlke, Hearings, p. 384. 27s of early 1971, ‘rules governing muititary surveillance still depended on the “discretion” of government officials. See Hearings, pp. 385, acta statements of Assistant Secretary Froehlke. 28See, e.g., statement of Assistant Secretary of Defense Froehlke, . Hearings, p. 427; statements of Army General Counsel Jordan, Hear- ings, pp. 454, 462, 464; testimony of Edward Sohier, Hearings, p. 227. The .degree to which various officials were aware of the survefilan and their success in controlling it is only partially disclosed by the unclassified materials presently. available. On January 12, 1972, the * Constitutional Rights Subcommittee was informed by the Deferise Department that most of the intelligence responsibilities of the indivi- dual services had been reorganized under the direct control: of the Secretary of Defense. -4 Letter, Buzhardt to Ervin, January 10, 1972. : See Hearings, p. sae | | a 36 : 40 The evidence available illustrates that the program as. actually conducted has been as broad as the directives permit, and if anything, even broader, and has sometimes been con- — - . ducted in violation of the Army’s owff regulations.?? Docu- ments -segregated for possible use in this action; and made available to counsel,°° confirm that the surveillance was indis- — criminate as regards the persons investigated, the activities, ‘observed, the details of the information collected and.stored, and the aybitrary classification of individuals and their views. — An examination of the products of this surveillance discloses no conceivable usefulness that they might have had for any authorizec military respansibility. Indeed, these materials defy all attethpts to imagine any governmental purpose they " might have served, whether “military necessity” or otherwise... * . oe “2 *. ae . * It is well-séttled that activities of’ government having an inhibiting effect on, the First Amendment will be carefully scrutinized. _Those activities which are unauthorized by law, _ unnecessarily broad ‘in their design, which commit too large — a degree of discretion to'those who are charged with imple- menting them, or which in actual operation are overbroad, are defective constitutionally if ‘they infringe upon First. Amendment rights. Plaintiffs have alleged each of these defi- ciencies and have substantial evidence to prove their allega- tions at’ trial. It is. evident, therefore,’ that they have ‘ adequately presented the Court with necessary ingredients « of a challenge under the First Amendment. ?9See, e.g., Hearings, p. 422, statement of Assistant Secretary of Defense Froehlke; Letter, Buzhardt to Ervin, March 26, 1971, Hear- — ings, pp. 1220, 1222. : ; _ 3°These include the computer printouts and other Army intelli- gence materials transferred to the Department of Justice for possible. use in this litigation: See Hearings, p. 1220. | . - | * 37 CONCLUSION '_ -For the reasons abgve, and for the reasons submitted by respondents, the Court should affirm the decision below and’ © remand the case for trial on the merits. . Respecifully submitted, "SAM J. ERVIN, JR. Of Counsel:. _ Attorney for Amici | LAWRENCE M. BASKIR | . a | — 646 Independence Ave.,S.E. =~ OO - Washington, D.C. — os . | February, (1972 Sen, 38 APPENDIX = The Hicsiines's on Federal Data Banks, Computers, and the Bill of Rights, Subcommittee on Constitutjonal Rights, Com- | “mittee on the Judiciary, United States Senate, 92d Congress, | Ist Session (1972), Parts I and II, are submitted separately as _-SnLappendix-to this brief. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0054%3A05. Public record. Not legal advice.