148 LAW FORUM [Vol. 1971 I must take issue with the Department of Justice officials on all of these counts, for I believe they fail to understand the relationship between constitutional liberty and the government's claim to a power to investigate people in order to determine future behavior. First, contrary to the opinion offered by the Assistant Attorney General, recent events have shown that there is indeed a need for strict legislation in this area of the law. "Self-discipline" is not enough. It has not prevented the Army spying on civilians; it has not precluded the Census Bureau and other information-gathering agencies from.harassing people with broad questionnaires. It has not prevented the continuing inquiries into the most private lives and beliefs of federal employees and applicants. It did not stop the Secret Service from computerizing people who write letters about their grievances to high government officials, who are professional gate-crashers, and who make remarks embarrassing to high government officials at home or abroad. "Self-discipline" does not help the wives of applicants for FHA loans when they are compelled to disclose their birth control practices and confidential advice from their doctors. Nor has "self-discipline" prevented all the other programs from violating personal privacy. So I believe there must be new laws geared to the computer age, with specific guidelines for gathering personal data and with carefully drawn controls on the use, exchange, and protection of such information. Furthermore, I believe that some provision must be made to provide the individual access to government records about him and the chance to assure the accuracy of such information.33 Secondly, contrary to the opinion of lawyers at the Justice Department, I have found that the courts have long been active in this area, and I predict that they will be even more active if the executive branch continues to try to make prophets of its civil servants and if it continues in its present claim to an inherent power to make inquiries in the course of trying to predict the future behavior, attitudes, and beliefs of law-abiding Americans. For instance, the United States Supreme Court will soon consider the case of Laird v. Tatum,34 a suit challenging the 33. For an excellent discussion of the constitutional, legal, and philosophical problems involved in such an effort for one area of information-gathering see generally Security and Privacy Considerations in Criminal History Information Systems, Technical Rep. No. 2, July 1970, by Project SEARCH, California Crime Technological Research Foundation, funded by the Law Enforcement Assistance Administration, Department of Justice. Related to this issue is S. 2546, A Bill To Facilitate and Regulate the Exchange of Criminal Justice Information Systems, introduced by Senator Roman Hruska Sept. 20, 1971. 117 CONG. REC. 14563 (daily ed. Sept. 20, 1971). Also pertinent is the testimony of Richard Velde of the Law Enforcement Assistance Administration on the use of information and intelligence systems by criminal justice agencies. 1971 Hearings 605, 849, and testimony of FBI officials concerning the National Crime Information Center. Id. 914. 34. 444 F.2d 947 (D.C. Cir. 1971), cert. granted, No. 71-288, 1971 Term (40 U.S.L.W. 3238). No. 2] GOVERNMENT INVESTIGATIONS 149 Army program. Dismissed by the district court as not presenting constitutional rights issues, the case is defended by the Government with the claim that the threat of surveillance is not sufficient to invoke the judicial process and, furthermore, that the plaintiffs have not demonstrated a personal stake in the outcome of the controversy. According to the Justice Department, the record "presents only abstract legal issues involving, at best, the speculative impairment of constitutional rights.”35 Many people, like the Assistant Attorney General, seem to think this is new legal ground which must be pioneered. These officials have overlooked the significance of numerous court decisions bearing on privacy and the investigative power of government. On the basis of my study of the decisions, I believe this case law was correctly summarized by Professor Bernard Schwartz in terms which should be brought to the attention of all government agencies. He writes: Of course, government may deal at any time with threats to its security expressed in acts. Where speech, association and other First Amendment rights are involved, on the other hand, the power of investigation should be no more far-reaching than that of legislation. In our system, authority over a subject matter involving speech, press, assembly, and the like must not go beyond the power to do that which is essential to be done in protection against a public danger. Civil liberties may not be abridged by investigatory authority merely in order to determine whether they should be abridged.36 From reports received by the Constitutional Rights Subcommittee, I think not only the Army investigators, but other federal and local agents are too often engaged in investigations. of people merely to determine if they should be investigated or if dossiers should be kept on them. Under Professor Schwartz's test, such practices, wherever they occur, violate first amendment rights. Thirdly, unlike Administration officials, I think there are serious constitutional rights violations in these surveillance programs. I have found three Supreme Court decisions in particular which provide a point of departure for courts and legislatures seeking guidance in setting controls on unwarranted information-gathering and data banking. I recommend these decisions to officials in the executive branch who assert a broad claim to investigative power. The first case is United States v. Rumely, decided in 1953.87 In that case, the accused was the secretary of an organization which, among other things, engaged in the sale of books of a political nature. 35. Id. Petitioner's Brief for. Certiorari at 10 n.4. 36. B. SCHWARTZ, 1 COMMENTARY ON THE CONSTITUTION OF THE UNITED STATES: Powers of Government 140 (1963). 37. 345 U.S. 41, 73 S. St. 543 (1953). 150 LAW FORUM [Vol. 1971 The House Select Committee on Lobbying had called on him to disclose the names of those who made bulk purchases of those books for further distribution. He refused to furnish the names and was convicted under a statute providing penalties for refusing to give testimony or to produce relevant papers upon any matter under congressional inquiry. The Committee claimed authority to demand this under the power, stated in their resolution, to investigate all lobbying activities intended to influence, encourage, or promote legislation. Justice Frankfurter delivered the opinion of the Court, holding that the accused was not required to deliver the names on the ground that the authorizing resolution restricted the Committee to a study of lobbying activities which were carried on directly with members of Congress and could not extend to a person's effort to influence legislation through the means of books and periodicals. With this as an alternative ground for decision, the Court did not have to reach the constitutional issue. However, the Justice made the significant observation: "Surely it cannot be denied that giving the scope to the resolution for which the Government contends, that is, deriving from it the power to inquire into all efforts of private individuals to influence public opinion through books and periodicals, however remote the radiations of influence which they may exert upon the ultimate legislative process, raises doubts of constitutionality in view of the prohibition of the First Amendment."38 Justice Douglas wrote a concurring opinion in which he said that he was compelled to face the constitutional issue that this involved the grant of power to the Committee. He pointed out, in an able opinion with which I thoroughly agree, that the resolution did not give the Committee the power it claimed but that it was unconstitutional as a violation of the first amendment guarantee of the freedom of press and speech. He recognized that no legal sanction was involved here but felt that it could be the beginning of surveillance of the press. Under such a rule, he noted, the spectre of a government agent will look over the shoulder of everyone who reads, and the subtle imponderable pressures of the orthodox will lay hold. "Through the harassment of hearings, investigations, reports, and subpoenas government will hold a club over speech and over the press. Congress could not do this by law. The power of investigation is also limited. Inquiry into personal and private affairs is precluded. . . . And so is any matter in respect to which no valid legislation could be had."39 Therefore, since Congress could not by law require of Rumely what the House demanded, it could not take the first step in an inquiry ending in fine or imprisonment. 38. Id. at 46, 73 S. Ct. at 546. 39. Id. at 58, 73 S. Ct. at 551-52 (citations omitted). No. 2] GOVERNMENT INVESTIGATIONS 151 The second opinion which I think is very illuminating on this subject is the case of NAACP v. Alabama.40 There the question was presented whether Alabama, consistent with the due process clause of the fourteenth amendment, could compel the petitioners to reveal to the state's attorney general the names and addresses of all of its Alabama members and "agents" without regard to their positions or functions in the Association. Justice Harlan wrote the unanimous opinion of the Court, holding that Alabama was precluded by the due process clause of the fourteenth amendment, which, of course, made the first amendment applicable to the states, from requiring this information. He said, and I commend this to the Department of Justice: "It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."41 The Justice noted that inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. The Court held that the immunity from state scrutiny of membership lists which the Association claimed was so related to the right of the members to pursue their lawful private interest and to associate freely with others in so doing as to come within the protection of the fourteenth amendment. It held that Alabama had failed to make a showing of overriding valid interest in possession of such information and that judgment of the Alabama court punishing the respondent for contempt of court was invalid under the Constitution.42 It is a natural extension of these decisions to say that, for example, the federal government can't go out and observe people exercising their first amendment rights and then take steps which have the effect of stifling their willingness to continue in the exercise of their first amendment rights. What inquiries and investigations Congress and the states may not undertake under the Constitution, certainly the executive branch has no inherent power to undertake. There is another opinion which I think sums up the constitutional law in this field very well. This is the dissenting opinion of Justice Harlan, joined by Justices Frankfurter, Clark, and Whittaker, in the case of Shelton v. Tucker.43 It is in harmony with the Rumely and NAACP cases, although it differs on conclusions of fact. In the Shelton case, the State of Arkansas required every teacher, as a condition of employment or continued employment, to answer a questionnaire requiring among 40. 357 U.S. 449, 78 S. Ct. 1163 (1958). 152 LAW FORUM [Vol. 1971 other things the name of every organization to which they had belonged or contributed during the preceding five years. The Supreme Court held that the statute interfered with associational privacy and went beyond legitimate inquiry for determining fitness. Justice Harlan in his dissent said in summarizing the law concerning rights under the first amendment, as made applicable to the states by the fourteenth amendment: Where official action is claimed to invade these rights, the controlling inquiry is whether such action is justifiable on the basis of a superior governmental interest to which such individual rights must yield. When the action complained of pertains to the realm of investigation, our inquiry has a double aspect; first, whether the investigation relates to a legitimate governmental purpose; second, whether, judged in the light of that purpose, the questioned action has subtantial relevance thereto.44 Judged by the test stated by Justice Harlan, it is clear to me that the Army's investigations of civilians had no substantial relevance to the duty of the military to know about roads, bridges, and major facilities, and to maintain men and equipment in readiness to assist in quelling rebellions and violence in those rare instances when local authorities could not maintain order. The test of Justice Harlan could be applied to any government program for investigation, surveillance, and dossier-building on private citizens. Such practices should be tested by Congress and the legislatures not only for their relevance to a governmental purpose but for which agency of government should be assigned the investigative functions. During 1967 and 1968, violent mobs burned and pillaged in some of our cities in numbers which disabled local officers to maintain order or enforce laws, and President Johnson dispatched the armed forces to those cities to suppress this domestic violence. He acted within the limits of his constitutional and statutory authority in so doing, but he and other civilian officials did not stop with using the armed forces to suppress violence. They assigned the Army the task of collecting information which would enable the President to predict when and where civilians might engage in domestic violence. It was certainly not the duty of the Army to engage in investigation of civilians for law enforcement purposes. It was engaged in programs which, if authorized at all, were more suitable for the Department of Justice and local law enforcement agencies. However I do not believe it has yet been demonstrated that this type of investigation and survelliance is necessary for any governmental purpose. The fourth major disagreement I have with the Department of 44. Id. at 497-98, 81 S. Ct. at 257. |