LAIRD v. TATUM
Argument of Griswold
Chief Justice Warren E. Burger: We'll hear arguments next in 71-288, Laird against Tatum and others.
Mr. Solicitor General.
Mr. Griswold: May it please the Court.
This case is here on the Government's petition for writ of certiorari to review a divided decision of the United States Court of Appeals for the District of Columbia Circuit.
The question before that Court was whether the District Court had rightly dismissed the complaint filed in that Court on February 17, 1970 by the parties who are respondents here.
The complaint was dismissed by the District Cour0t without the production of any evidence.
Thus, the case arises here on the complaint in the District Court, the motion to dismiss and certain affidavits, which were filed in connection with these matters.
In their brief, the respondents say that, and I quote, "The Government has persistently attempted to convert this case into something other than the case brought by the plaintiffs."
I'm afraid that's the way we feel about the respondents.
We think that the case is in the appendix while they try to present it on the basis of two volumes of hearings before the Senate Subcommittee on Civil Rights.
I'm reminded of Lord McNaughton's remark about the rule in Shelley's case when he said that it is one thing to put the case in a nutshell and another thing to keep it there.
The complaint filed in the District Court was filed by four individuals and nine unincorporated associations.
It is framed as a class action on behalf of all other individuals and organizations and I read from page 8 of the appendix, "All other individuals and organizations who wish to exercise their right under the First Amendment of the United States Constitution to engage in peaceful political protest, demonstrations, marches, rallies, church meetings and other forms of constitutionally protected expression and assemblies without surveillance by defendants agents and without becoming the subject of dossiers, reports and files, defendants' data bank and intelligence network."
The complaint then contains allegations that the Army had been conducting surveillance of lawful and peaceful civilian activity within the United States and that this information is stored in a computerized data bank.
In exhibit "A" attached to the complaint, they gave a sample of the sort of material, which has been compiled.
This appears on pages 13 to 21 of the appendix and I would like to read a few examples beginning on page 14 in Hartford, Connecticut, March 11, 1968.
Approximately 20 persons picketed outside the U.S. Federal Building.
The protestors carried placards denouncing the war in Vietnam and the payment of income tax.
The demonstration was sponsored by the Voluntown Connecticut Chapter of the New England Committee for nonviolent action.
And on page 16, San Jose, California, an anti-Dow Chemical Company demonstration was held in front of the administration building at San Jose State College.
A crowd of about 400 to 500 persons were present but approximately 90% of these were spectators or curious onlookers.
At 1230 hours, the demonstrators moved to the Morris Dailey Auditorium where they were refused permission to hold a rally.
San Jose State College officials however permitted the protestors to use the music building for an afternoon rally.
The rally received very little support and attendance was light.
Now, I am not going to read others of those items but it's apparent that they're the kind of items that constantly appear in the newspapers, information of very little significance and not at all repressive in its nature.
There's also attached to the complaint as an exhibit a copy of an article by Captain Christopher H. Pyle in which appeared in the January 1970 issue of a publication called The Washington Monthly.
There can be no doubt that the publication of this article was the immediate reason for the bringing of this suit.
There are no allegations in the complaint that any specific harm or injury has been done to any of the plaintiffs either individual or the unincorporated associations.
It was alleged that this type of activity has a chilling effect on the plaintiffs and other seeking to exercise their First Amendment rights.
There is no allegation in the complaint that there was any surveillance of any wholly private activity.
What is charged is that the members of the military went to public meetings and rather elaborately recorded what they saw.
Before proceeding further, I should call attention to some background facts.
There is no rigid dichotomy between military and civilian in this country.
Both the constitution and the statutes provide for the use of the military and domestic civilian context, the military is at all times subject to civilian control through the President as Commander in Chief and the Secretary of Defense and the Secretaries and other civilian officers of the three branches of the Armed Forces.
A high proportion of adult American males including many members of Congress and the courts have served in the military for a time.
Many of them retained their civilian outlook as is shown clearly by one of the amicus briefs filed here.
Over the past 20 years, the military has been called on many times to supplement civilian power.
On some occasions to enforce decisions of the courts including this Court and on many other occasions to help to restore and to maintain order in many of our cities.
This was done in Detroit in July 1967.
It was done in April 1968 here in Washington and in Chicago, and in Baltimore, and in other cities.
I remember coming to the calm of this courtroom on the Monday after the death of Martin Luther King.
There was smoke in the air and a soldier on every street corner as I passed.
The Court set but a number of the persons whose admission I was to move that day did not get here.
We can recall too that the warrant commission reported that advanced intelligence had not been adequate for the protection of the President and recommended that greater steps be taken to a compiled data about person who might be inclined to violence.
A similar recommendation was made by the Kerner Commission in 1968.
Today, we provide a guard not only for the President and the Vice President but also for every presidential candidate and the last with reason.
If the Army is to have the function in helping to preserve order in the civilian society, it must have some intelligence information.
How much is of course an important question but it must have some.
As the court below said, it cannot be expected that the Army should use its force blindly.
In the summer of 1968, the past was sad and the future was uncertain.
This was when the Army began to expand its intelligence gathering activities.
From my point of view, it went too far or perhaps to put it in other way, there was an absence of adequate civilian control.
One of the problems of an Army is that you ordinarily have to far more people than you have any use for because you have to have enough people at the right place when the need arises.
Here, the Army had a lot of people in intelligence.
They spent more than 90% of their time in investigating people who needed clearances for military or civilian employment.
But they had men remaining.
And they received directives that they were to build up intelligence for use in case the military were needed in connection with civilian disturbances.
So they build up the material we see here.
And they had a computer and they put all of this on the computer.
And from the computer, they build up a list of the names which appeared in the data which the plaintiffs call a blacklist.
From my point of view, it was poor judgment, and inappropriate use of military resources.
As Secretary of the Army, Froelke has said and I quote "From the vantage point of hindsight, the guidance and direction to the military for a collection of civil disturbance information was too often general and oral rather than in written form."
Or in Senator Ervin's words, "Some people charged with responsibility in this especially at the local level got a little bit too zealous in their activity."
With this summary statement of the facts for the case arises on the complaint, the motion to dismiss and the accompanying exhibits and affidavits as included in the appendix, I would like to summarize our legal position.
First, the complaint does not allege a justiciable controversy.
And related to that, the plaintiffs do not have standing to maintain the case.
There is a controversy all right, but it is not a Case or Controversies in the constitutional sense.
Second, what was done as alleged in the complaint on why is it, it may have been did not violate the constitution or any statute.
Third, if there was anything done that was legally wrong and the case is justiciable, it has been stopped.
And fourth, in this situation, I do not claim mootness in the strict sense but the case is not one now if it ever was in which there is equity jurisdiction.
That is in which it is appropriate for a court of equity to intervene by way of injunction.
Let me turn first to the question of justiciability.
As I have already said, no plaintiff alleges that anything has been done to injure him, the whole cause of action rest on chills.
I know of no decision of this Court, which has been based on chill alone.
In every case in which chill has been a factor, there has been a criminal prosecution either in process or immediately threatened or there had been governmental attempts to compel disclosure of information as a prerequisite to entitlement to government employment or benefits.
There was an individual before the Court who said that he was injured in some immediate and concrete fashion.
Here, the complaint proceeds only on the broadest of generalities.
It states on page 10 of the appendix and I quote, "that the purpose and effect of the collection, maintenance, and distribution of the information on civilian, political activity described herein is to harass and intimidate plaintiffs and others similarly situated, yet they do not allege a single instance of harassment or intimidation."
They do allege generally an invasion of their privacy, damage to their reputations and an adverse effect on their employment.
But they cite no specific instance or example.
The dissenting judge in the court below called these indefinite claims of highly visionary apprehensions.
They do not -- we submit of the concreteness and sufficiency of focus to make the claims justiciable.
There is no assertion here that the activity complained of has cause direct injury to these plaintiffs or to others similarly situated.
Instead, they appear here as they have said various times in their arguments below and then in their briefs, on behalf of millions of people.
But when you appear on behalf of millions of people, the case is no longer concrete and specific.
That is the sort of thing, which is appropriate for consideration by the legislative branch or the executive but does not present a case for decision by a court.
The case is much like the situation in United Public Workers against Mitchell, a case which they cite once but skip over very quickly where the Court refused to find a generalized claim as to the validity of the hot check to be justiciable.
Justiciability is not a mere technicality.
Illusive as it may be, it is an expression of one of the basic concepts on which our constitution rests the separation of powers.
The courts exercise judicial power under the constitution.
This is not the power to decide all the questions of law, which arise in the course of the administration of the Government.
It is the power to act as a Court, to decide the concrete and specific issues which arise between men and men or between the citizen and his government.
When someone says, he did this to me and I am hurt.
This is not the power to respond when the complainant says, I don't like the way the Government is acting.
I am not hurt but I might be someday and I want this stopped.
General questions arising with respect to structure and the administration of the Government are best resolved by the two other coordinate branches established by the constitution.
The Executive administers better than the courts are equipped to administer and the Congress formulates general policies with more responsiveness to the democratic process than the courts can.
The courts with their independence are better qualified to deal with concrete cases of alleged wrong, which directly affect the complainant.
But the Court should not undertake to decide all the questions which arise in Government.
This case I think is a specific example.
If the court is to grant relief, it maybe of two forms, (a) it may say that the Army is enjoined from conducting any and all intelligence operations involving civilians under any circumstances.
I think that would be wrong.
I suppose there was a plot to blow up an arsenal or sink a troop ship for example.
Or suppose the Army was actually engaged in riot control operations in Washington or Detroit or Chicago.
The Court could hardly deny the Army the resources to protect this personnel or to maintain its legally assigned mission.
If that alternative won't do, that is absolute forbidding to do any civilian intelligence work, then the alternative is (b) to workout in detail what the Army may and may not do under variant circumstances and subject to change from time to time and from place to place.
That is administration and the courts are not equipped to carry on administration.
We can hardly have a situation where a Colonel or a Captain confronted with an immediate problem in Seattle or in Syracuse would have to say, Well, I can't act.
I will have to apply to the United States District Court and the District of Columbia to get a modification of the injunction in view of the circumstances which confront me.
Managing things in this way is not judicial action.
Disputes, which can lead only to such control of another branch of government, are not justiciable.
Unknown Speaker: How about the Fourth Amendment problems that puts judges in administration?
Mr. Griswold: There's no suggestion here that anything has been searched or seized, reasonable or unreasonable.
Unknown Speaker: Does this involve electronic surveillance?
Mr. Griswold: There is no suggestion in this complaint that there was electronic surveillance.
Unknown Speaker: Does the Army or any gang (ph) have data banks in which [Voice Overlap].
Mr. Griswold: Yes Mr. Justice, it did have but as I will point out, it has stopped them on these matters.
In addition to the Executive to administer a very important lay on this area, there's the legislative branch of the Government.
Many other problems here are well suited to the sort of general policymaking, which the Congress can do.
If Congress can device appropriate means to regulate the military in this area, it has the power to do so.
The Senate has already held extensive hearings on this specific question and a number of bills have been introduced.
And as I shall indicate below, the executive has also taken clear and specific action.
But, second, if the case is justiciable, if the plaintiffs have adequate standing then we say, that it is a matter of law, the complaint does not state a cause of action on the merits.
However unwise the actions may have been and in my judgment, they went far beyond anything that was appropriate for the military to do as the Department of Defense and the Army have recognized, they did not violate the constitution or any provision of the law.
There is nothing to indicate that anything that was done was evil or malicious.
And no allegation that the materials were in fact misused.
There is no allegation that anyone was deprived of his freedom of speech which is what the First Amendment says.
Indeed, not much was generally known about the Army's activities until the publication of Captain Pyle's article on the filing of this suit.
Those were in my opinion useful acts but they were also the immediate cause of whatever shivering there may be.
They have led to uninhibited robust and wide-open debate, which I suppose is one of the objectives of the First Amendment as this Court has said.
They have led the tighter civilian control, which is desired.
They have led to extensive consideration of the problem by the Congress which is appropriate.
But there is I submit no action taken by the Army alleged in this complaint, which violates anything literally contained in the Constitution and nothing done which violates anything implied from the Constitution as far as this Court's decision have gone.
Third, if there was anything done here which was illegal, it has been stopped.
To show this, I have to go outside the appendix but I believe that is justified under this Court's decisions for everything that which I refer as a matter of official acts.
And for support on that, I would refer to this Court's decision last term in the Allard case.
In this case, the official actions were numerous and clear.
Two of them are included in the appendix to our main brief.
Numerous others are set out in volume 2 of the hearings before the Senate Committee on Constitutional Rights.
It may seem odd that I refer to these hearings in connection with our case while saying that the hearings themselves cannot be utilized to make this a different case from that which is presented in this record.
But I believe the distinction is clear, the respondents want to use the hearings as a repository of evidence to establish facts which are not alleged in their complaint.
That is to make this a different case from what it is in the complaint.
My reference to the hearings is simply as a convenient place in which the Court can find the text of official actions, which shows that the practices, which the respondents here complain about, have been stopped.
Unknown Speaker: I see references in this report of the Senate Judiciary Committee to this case and the problems.
Can we take judicial notice of that?
Mr. Griswold: Mr. Justice, I think you cannot take judicial notice of the evidence and testimony, which was presented before that hearing.
I think you can take judicial notice of the official actions, which among other places are recorded in volume 2 of those hearings.
As I have said, the surveillance has been stopped, the computer banks and printouts have been destroyed, the index list of names or blacklist, have been destroyed.
In each case, one copy has been retained for the purposes of this litigation.
We did not want to restore, destroy all for fear of someone who would say that we had improperly interfered with the due administration of justice.
But that one copy is in good hands and will be destroyed as soon as this litigation is terminated or the Court has given us the authority to act.
It's true that the respondents say that we cannot certify that every single copy has been destroyed but the copies were not numbered.
But it is clear that there has been a bona fide effort to recall and destroy every copy and orders have been given against the utilization of any copy.
I do not think that more can be done even under the orders of a court.
In this circumstance, we do not say that the case is necessarily moot.
In some situations, past action is sufficient to aviate mootness even though the action has been stopped.
We do say however that the actions taken by the Army are sufficient to destroy equity jurisdiction in the District Court.
We sometimes forget that equity has a jurisprudence of its own and one of the principles of equity is that it does not utilize the mighty remedy of injunction when the conduct complained of has been stopped in the absence of extraordinary circumstances such as a substantial risk that the conduct will be resumed if this Court does not intervene.
This is essentially the basis of this courts recent decision in the medical committee on human rights case.
Here, there is no such risk.
I feel sure that the Court will find that the actions of the Secretary of Defense, of the Secretary of Army and of other defense officials are clear, vigorous and in good faith.
It is said that these officials cannot control the army that the Army will go ahead and watch civilians anyway.
If they can't succeed, I am inclined to doubt that the District Court would be more successful.
I think that the situations are different.
Today, from what they have been sometimes in the past that the officials of the Army are alert and determined.
It is much better I submit to leave the resolution of the details of carrying out their directives to the civilian army authorities than to have the intervention of the courts.
Thus, if the case is justiciable, is the actions of the Army in conducting surveillance of civilians did violate the constitution and the laws, I submit that the decision of the District Court should nevertheless be affirmed since the actions of the army have now been terminated, and though the District Court did have jurisdiction of the case if the records of jurisdictional amount was present, it is not as of now a case within the principles of equity jurisdiction where the wrong no longer continues, courts do not ordinarily issue an injunction, there should be no injunction here.
The decision below should be reversed and the judgment of the District Court should be affirmed.
Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.
Argument of Frank Askin
Mr. Frank Askin: Mr. Chief Justice and may it please the Court.
Senator Ervin will take the final 10 minutes of this argument and will deal mainly with the ultra vires nature of the military conduct.
Now, I agree with the Solicitor General that the only materials before this Court are the plaintiffs' allegations.
But with all due respect, I believe the Solicitor has again misstated and misrepresented those allegations in the circumstances of this case.
And it is as the plaintiffs' allegations which are here.
Not the allegations as the defendants would like to rewrite them and not some stated facts as they might appear in the light of hearsay assertions offered by defense counsel nor the Solicitor's efforts to justify the Army's conduct with the specter of smoke in the air and soldiers on street corners.
The sole question for this Court to decide is whether the plaintiffs were entitled to a judicial hearing whether they are uncontested allegations of unauthorized and unconstitutional conduct by the Army earns them the right to their day in Court.
It was defended to move to dismiss this complaint who said in effect construe plaintiffs' allegations most favorably give them all the benefits of the doubt and all the inferences, they said there was still no set of facts which might be proved which would entitle plaintiffs to relief or even to a hearing on the merits.
The trial judge acted on defendants' advice, he decided to taking everything in the consideration plaintiffs alleged they have no right to be in court.
The District Court was at error about that and Judges Wilkey and Tom in the Court of Appeals were correct as I believe a review of the plaintiffs' allegations will demonstrate.
Now, I don't want to go over in great detail the factual setting of this case.
We are dealing, it's true with a public issue that has been discussed and reported upon very widely in the two years since plaintiffs filed their complaint but I do want to point out the facts which make these allegations justiciable.
Now, plaintiffs set forth a pervasive system of military spying in data keeping on the political activities of the plaintiffs and other law-abiding Americans.
Over a thousand army agents around the country helping to keep track of the political assemblages and speeches of citizens unassociated with the Armed Forces.
Citizens like plaintiffs and members or plaintiff organizations who had done no wrong, people unassociated with the specter of civil disturbance which the army belatedly invoked to justify its lawless behavior.
Other information being gathered by more clandestine and an undercover methods of operation and I must point out that the Solicitor General is wrong.
He has not read plaintiffs' complaint.
There are allegations of electronic surveillance in plaintiffs' complaint.
Paragraph 8 says very specifically that much of the information, which is being gathered by the Army was gathered both through anonymous informants and through the use of photographic and electronic equipment.
So there was -- this was not wholly public activity we were talking about, there were allegations, uncontested allegations that clandestine undercover operations were taking place in gathering this information on the political activities of the plaintiffs and others acting similarly.
Justice Potter Stewart: The allegation as I under -- I have it before me --
Mr. Frank Askin: Yes, Mr. Justice Stewart.
Justice Potter Stewart: -- it is a little ambiguous.
Electronic equipment of course could include a tape recorder at a public meeting.
And in its context here with the use of photographic and electronic equipment, that would almost seem the meaning to be ascribed to it, wouldn't it?
Mr. Frank Askin: Well, I do not think so Mr. Justice.
Again, I think we have to construe this complaint broadly.
We were making allegations that they were using a variety of means both photographing people at demonstrations and I would say that the allegation includes both taping meetings and use of other kinds of electronic.
Justice Potter Stewart: There's no allegation, any specific or explicit allegations or wire tapping or what became known as bugging or anything at that nature here that I've been able to find.
Mr. Frank Askin: No, there is not Mr. Justice.
We did have witnesses at the hearing in the District Court who were former army agents who were prepared to testify about some of the undercover activities they had engaged in but they were not permitted to go on a stand.
Justice Potter Stewart: In short, I am right am I not in understanding this complaint as not relying on the Fourth Amendment but rather on the First Amendment?
Mr. Frank Askin: Essentially, this is the First Amendment complaint, that's correct. Except in so far as the allegations of invasion of the right of privacy include of course both the First Amendment and the Fourth Amendment and whatever other constitutional provisions have been invoked in its [Voice overlap].
Justice Potter Stewart: The Ninth and Tenth and the few others but it's basically a First Amendment complaint?
Mr. Frank Askin: Essentially, the complaint is that the Army was invading the First Amendment Rights of the plaintiffs.
Justice Potter Stewart: Not the Fourth Amendment rights as such, that's not the gravamen of the complaint?
Mr. Frank Askin: That would not be the essential gravamen of the complaint.
Justice Potter Stewart: Okay.
Justice William O. Douglas: There was no answer here, only the motion to dismiss?
Mr. Frank Askin: That's correct Mr. Justice Douglas, only the motion to dismiss.
In plaintiffs' complaint, its exhibits, its affidavits in support of its motion for preliminary injunction, which went on at the same time with the motion to dismiss was heard.
The complaint states that the Army was using a teletype system similar to the ones maintained by our new services, reporting the information it was gathering to a central intelligence command in Fort Holabird and out again to military intelligence units all over the country.
Data banks, large and small at various military installations and self-storing and often computerizing the data on plaintiffs and others for their own use further dissemination of the data to both military and civilian, federal and state governmental units all over the country.
In short, we put forth a chilling system having nothing to do with a military function.
Indeed, until it was revealed to be part of the operations of the United States Army, this was a kind of system which Americans associate it with some place else, not with the United States of America.
And the plaintiffs who brought this class suit challenging the authority of the Army to engage in such a program were of course among the very people most immediately and directly affected by it.
They were the targets of surveillance.
Every one of the plaintiff organizations and individuals had come within the focus of the Army's surveillance operation.
All had been the subject of the Army's intelligence reports.
The Government's assertion that the plaintiffs do not allege that the Army spied on selected individuals or groups is, its double talk.
Plaintiffs' allegations are as clear as can be that information about them was collected, was transmitted over the Army's teletype network, was fed into its data banks, was then disseminated further around the country indeed to military installations around the world.
Plaintiffs allege that this program not only invaded their privacy, threatened their reputations and employment but also caused immediate and irremediable injury to their First Amendment Rights.
Both because they themselves were forced to become more circumspect about their speech and association and more importantly because others were deterred from associating with them and pursued of political objectives and frightened the way from membership in their associations and organizations.
The nation has since discovered in fact that plaintiffs' complaint described only the very tip of an iceberg.
It was revealed in hearings before the Senate of the United States and referred to them really to illuminate our complaint and because this case is here on the justiciability [Voice overlap].
Justice Thurgood Marshall: But the Solicitor General said the tip is the only thing we have.
Mr. Frank Askin: Well, Mr. Justice Marshall, our allegations we believe are complete and state clearly a justiciable claim.
We do believe that in construing our complaint and broadly and liberally construing as this Court has on many times said it must be done, indeed, it's useful to examine other information which subsequently was revealed about this system as illuminating what in fact this complaint was talking about.
The complaint in accordance with the federal rules was a short and plain statement.
It did not give evidence or detail of the allegations.
Indeed, what we're talking about now is the evidence which would later be used to demonstrate.
In fact if the plaintiffs could prove their complaint, we do not believe that that information is essential to the question of justiciability except in so far as it does illuminate what the plaintiffs were complaining about.
We did of course --
Justice Thurgood Marshall: I thought you're going to say if you got to trial, you might put evidence on the same line.
I thought that's what you are going to say?
Mr. Frank Askin: We could put witnesses on this.
I am saying, if we go back for a hearing, we will have the witnesses to prove the allegations in our complaint and some of those witnesses are indeed those who did testify before Senator Ervin's committee.
This is the way in which our complaint well in fact the prudence to be.
We have some of those witnesses in court with us that morning.
Justice Thurgood Marshall: (Inaudible)
Mr. Frank Askin: Mr. Justice Marshall, it was our understanding that we were going to have an evidentiary hearing that morning.
Indeed, we had brought witnesses in from all over the country and they were prepared to go on a stand.
They were not permitted to testify, but our understanding was they would be permitted to testify.
We did not believe that with our motion for preliminary injunction before the court that it was possible for the court to really consider issuing a preliminary injunction against United States Army based on affidavits.
And we were under the impression that our witnesses would be allowed to go on in that morning.
Now, I will not pursue the factual detail.
I believe the information has been stated in great detail in our brief as well as in the two amicus.
[Voice Overlap] Yes, Mr. Justice Powell.
Justice Lewis F. Powell: Before you leave the facts, I understood you to say that the Solicitor General had misstated the facts that he made reference to electronic equipment.
Did he misstate in any other way?
Mr. Frank Askin: Yes, Mr. Justice, I believe he says that we are complaining about a generalized system which does not focus concretely on these plaintiffs.
Indeed, this system did focus concretely on the plaintiffs.
The plaintiffs were watched by military.
And we might take the situation of one of our plaintiffs Mr. Conrad Lynn.
A military agent apparently went to a meeting at a Unitarian Church in Philadelphia at which Mr. Lynn spoke.
He filed a report over the Army's teletype system to Fort Holabird which among other things identified Mr. Lynn as the author of Draft Evasion Literature.
We alleged that that information then goes into the Army's data bank at Holabird.
That information is then picked up, sent out over to the Army's teletype system on their weekly summary which is what is attached as an exhibit to the complaint to other military installations all over the country and then taken and put in their mini banks at these various other military installations.
So this is something other than plaintiffs merely complaining about some generalized system.
This is a system which in fact very intimately affected them and focused upon them and that's where I believe that the Solicitor General has in fact misrepresented our allegations as indeed with the other allegations of, we said clandestine operations.
In our exhibits to the complaint for example, it is said that among other things, the military went to the Registrar at a university to gather confidential information about students and these was one of the ways in which they were gathering information.
But indeed, we were limited in our knowledge of course as we didn't know the details of this system.
We sought as has been said before only the very tip of the iceberg.
We did not have that full details as they ultimately emerge of course in Senator Ervin's committee.
We could only put forth in our complaint as of the detail as we in fact knew at that time include -- in addition to the broad outline to the system as it was functioning.
Chief Justice Warren E. Burger: Mr. Askin, suppose instead of sending agents, the military for whatever reason relied upon newspaper clipping services and just identified certain people in certain organizations who had a clipping service and fed them into their data banks, would you feel that that violated some constitutional rights of the persons affected?
Mr. Frank Askin: Of course Mr. Chief Justice, that's not our case.
On the merits, it would be a different case.
Chief Justice Warren E. Burger: These were all public meetings, were they not?
Mr. Frank Askin: Well, the meetings we're talking about in the exhibit to the complaint republic meetings that suggest we made allegations that they were also gathering information by other kinds of clandestine methods.
If they were only the kinds of clipping you were saying but still if they were maintaining data banks and were still disseminating information with individuals and still compiling with we refer to as a blacklist what they call an index list, I would believe that there would still be a justiciable controversy.
The ultimate result on the merits might turn out different but I would say that there would still be a justiciable controversy if in fact this system did focus on these particular plaintiffs.
That they would have a right claim, which would be justiciable, and then we'd have to go back for a hearing on the merits as to whether or not the army indeed could do it.
Now, based on the claims that we have put forth, our contested allegations, we insist that there was really no question that plaintiffs are entitled to a hearing, that the answer to the justiciability question must be the same one given by this Court in a series of celebrate cases over the past dozen years.
In each of which, Government defendants argued that this Court should close its eyes and close its ears to serious violations of constitutional rights.
We refer to Baker versus Carr, Zwickler versus Koota, Powell versus McCormack, Flast versus Cohen, and each of those cases, this Court reaffirmed its commitment to the principle of judicial review.
And in this case, even more than any of those, we suggest judicial review is absolutely essential because this case involves the most serious of all threats to Democratic Government, military intrusion into civilian political affairs.
Now of course the Army piously denies would block all judicial review of such surveillance operations.
It says it's only arguing that this case is not reviewable.
There is no other form in which this military surveillance operation may be judicially reviewed.
It is now or never.
It is unlikely will ever be more right that anyone else will have ever have better standing than these plaintiffs to litigate this claim.
So despite the Army's denials, it is asserting that the military surveillance operation is in fact unreviewable.
And such a result would make constitutional rights a nullity.
And Mr. Chief Justice, as you yourself reminded us in your dissent in Bivens last year without some affective sanction constitutional protection against unlawful conduct by government officials would constitute little more than rhetoric.
And if these plaintiffs do not assert a justiciable claim, there is no sanction whatsoever against the armies engaging in this kind of lawless conduct.
They would then be able -- that would mean that the Army can snoop at will into people's lives, prepare computerized dossiers on every men, women and child in this country free of any judicial oversight.
Justice Potter Stewart: I'd understood the Government's argument and this plays the case at least in terms of standing to be that certainly there would be judicial review on when any individual plaintiff could show that he had been actually injured just as a matter of standing.
Mr. Frank Askin: Mr. Justice Stewart, on standing [Voice overlap].
Justice Potter Stewart: Or perhaps, justiciable controversy or cases or controversy, we all agree these concepts run into each other and overlap the deal.
Mr. Frank Askin: Well, Mr. Justice Stewart, on the question of standing, first of all, it is unlikely that any particular plaintiff, any particular individual is ever going to find out exactly what happened to him.
Justice Potter Stewart: Well he'll find out if he lost his job or if he were denied the clearance to some --
Mr. Frank Askin: He would never know Mr. Justice.
Justice Potter Stewart: -- confidential information in a place where he works or at a variety of other ways at which are reflected in many of the decisions in this Court.
If he were denied a job at a defense facility or something to that kind, he could show that he was hurt.
Mr. Frank Askin: Yes, but - I'm sorry.
Justice Potter Stewart: I am finished.
Mr. Frank Askin: But indeed it is very unlikely that such a person would ever know why it was that he lost that job.
This system operates in such a way that they don't come to him and say, you're now losing your job because the military gathered information on your political activities.
Somebody would say, you're not hired or you've lost your job and that will be the end of it.
He would never know the reason why.
Indeed, we think it's very clear that our plaintiffs have suffered the worst kind of injury.
They have indeed suffered present injury to their First Amendment rights.
And we believe this Court has constantly recognized that this is the most serious kind of constitutional injury which gives standing.
Now, [Voice overlap].
Chief Justice Warren E. Burger: Your time is consumed.
You are now entering into Senator Erivin's time.
Mr. Frank Askin: Alright, let me very briefly try to conclude Mr. Chief Justice.
We concede that this is a significant case, which will ultimately raise complex and difficult questions of constitutional interpretation.
The ultimate question is whether the Army may do what they've been doing to the plaintiffs.
We insist they cannot, we insist we have a justiciable controversy here that is right for adjudication.
But that question of what -- whether the Army and they do it is not before the Court at this time. This case has reached this Court prematurely.
The questions presented by the Government on this petition have long been settled.
Of course plaintiffs' claims are justiciable.
I would say this issue was settled if not in Marbury than an ex parte Milligan.
And indeed to hold otherwise, to grant the Army the unbridle discretion, it here seeks to interfere with civilian, political action would in the words of one recent law review commentary on this case result in the uncorking of the genie of military command.
And the ultimate result of such a course, we can only dimly imagine by viewing the tragic history of other nations which failed to sharply draw the line between military power and civilian politics.
Chief Justice Warren E. Burger: Thank you Mr. Askin.
Argument of Sam J. Ervin, Jr.
Mr. Sam J. Ervin, Jr.: Mr. Chief Justice and may it please the Court.
Chief Justice Warren E. Burger: Senator Ervin, we allowed you ten minutes on request and will keep our bargain, you have five of it before lunch and five after the recess if that's agreeable.
Mr. Sam J. Ervin, Jr.: Yes, that would be fine.
There's laws on statute books which makes the use of the Army for the purposes in which it is used in this case legally.
Article 1, Section 8 of the Constitution empowers Congress to make rules for the Government and regulation of the land and naval Forces and to provide for calling forth the Militia to enforce the Laws of the Union, suppress insurrections and repel invasion.
Article 4, Section 4 of the Constitution provides that the United States shall protect each state against domestic violence if it is requested to do so by the legislator or by the Government in case the legislation is not in session.
Congress has exercise this power to lay down rules for the Government of the Armed Forces in the Posse Comitatus Act, which was an Act in 1878 as a result of the use of the Army in 70 communities in South Carolina to enforce laws, and as a result of the practice of United States Marshals to call on the Army for contingence, to asses in the enforcement of the law.
This statute says this, "Whoever, except in cases and under circumstances expressly authorized by the Constitution or an Act of Congress, willfully uses the Army and it has not been admitted, any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000.00 and imprisoned not more than two years or both."
Now manifest that statute, both thence use the Army for police purposes and police purposes including detective learning.
So it forbids the use of the Army for detective work.
There are statutes, which Congress has based Sections 331, 332 and 333 of Title 18 of the United States Code, which allowed the President to use Armed Forces to suppress rebellion and insurrection and domestic violence of a high magnitude.
The first of these statutes is in harmony with Article 4, Section 4 of the Constitution provides, the President could use Armed Forces to suppress an insurrection against the states if it's requested by state authorities so to do.
The second provides that the President can use Armed Forces to suppress a rebellion against this federal authority, which impedes the enforcement of the Federal laws by the normal force of action in the judicial proceedings.
And the third provides that the President can use the Armed Forces when the such domestic violence within the boarders of the state that it impedes the execution of the federal and state laws to certain extent that the place of citizens is deprived of a right named in the constitution and secured by law and the state refuses or fails or is unable to suppress the insurrection or the domestic violence.
Now, these statutes are subject to limitation, which is upheld.
It says before the President could invoke anyone of these three statutes and use the Armed Forces that the President must issue a proclamation calling upon the insurgents to disperse and to return to their places of abode within a reasonable time.
That's the conditions under which the Army can be used and these conditions didn't exist with reference to these plaintiffs.
Now it manifest, if the President can use Armed Forces to the easy use of public proclamation, the Army cannot be used as a detective force as was used in this case.
And in the past that it was used in all that Army might be able to engage in the role of a prophet and predict when and where there might be an insurrection or domestic violence and where the President might in the future call them out.
That's what this is.
Chief Justice Warren E. Burger: We'll take at that point after lunch Senator.
Mr. Sam J. Ervin, Jr.: Thanks.[Lunch Break]
The Government's argument in brief takes a leaf out of notebook that all lawyers who use to file and speak in demurs.
They asked this Court to determine the sufficiency of the complaint not on the allegations of the complaint but on the allegations of some affidavits, which were recently irrelevant to own an opposition to the motion of the plaintiffs in the District Court for a preliminary injunction.
They're not relevant to the question presented in this Court.
Now, when though the complaint in this case is interpreted in the light most favorable to the plaintiffs and all doubts, all result in their favor as the rule applicable to a challenge to sufficiency of the complaint it requires.
This complaint makes these allegations first, that the plaintiffs and others similarly situated are civilians having no connection with the Army who dissent from policies of Government in respect to the draft, the war in Southeast Asia and certain racial violence.
Second, that the plaintiffs and other similarly situated are exercising on the peaceful fashion that First Amendment rights of freedom of speech, association or similarly in petition to express that dissent, convert others to their views and persuade Government to all of the policies to which they dissent.
Third, that although the plaintiffs and other similar situated are exercising their First Amendment rights peaceably.
The army has required 1000 military intelligence agents operating out of 300 stations throughout the nation and additional intelligence units while all the substantial forces of the Army are stationed to exercise surveillance both overt and covert all of the plaintiffs.
And that these military intelligence agents and personnel overtly and covertly collecting information concerning the personal thoughts, the political activities and views of the plaintiffs and other similar situated and storing it in dossiers and computers, and exchanging it to some of the information concerning them gathered by federal investigative agencies such as FBI and the Secret Service and State and Local Law Enforcement agencies and are making all of such information available to all American Military Units throughout the United States, Europe and to all the Federal Departments and Agencies engaged in hiring employees and the State of Local Law Enforcement Agencies.
Fourth, that the Army's engaging in these activities to deter the plaintiffs and other similar situated from exercising their First Amendment rights to dissent the governmental policies stated, and to influence others to join them in petitioning Government to abandon all such policies.
And the Army as accomplishing this purpose and its excellent deterring the plaintiffs and other similar situated from exercising their First Amendment rights for the purpose stated.
And is damaging their reputations and impairing opportunities as citizens to obtain employment at the hands of the Federal Government or others feels that the activities of the Army exceed any legitimate needs of the Army and then authorized below.
Fifth -- Sixth, that, plaintiffs have no adequate remedy at law and unless until the Court raise declaratory and injunctive relief to hold the activities described in the compliant, irreparable injury will continue to be done to plaintiffs and all those similar situated as well as a national interest.
I am going to make one observation with respect to the allegations of the complaint which cover the exhibits about 44 pages.
If these allegations do not state a cause of action in which judicial relief can be granted within the purview of the case or controversy close of the Third Article of the Constitution, the Star-Spangled Banner lasts when it says, that our country is a land of the free.
I believe our country is a land of the free and I believe this Court believes that our country is a land of the free.
And for that reason, I feel I am justified in asking this Court to affirm the ruling of the Court of Appeals which adjudges the complaint to be sufficient and remands the court to the -- the case to the District Court to be tried on the merits with the state when that date will determine after trials on the merits establishes the fact whether injunctive and declaratory relief should be granted.
Chief Justice Warren E. Burger: Thank you Senator Ervin.
You have about two minutes Mr. Solicitor General.
Rebuttal of Griswold
Mr. Griswold: Mr. Chief Justice and may it please the Court.
With one exception, I do not think that I have misrepresented the complaint here and certainly I have not intended to do so.
That one exception was in my answer to the question from Mr. Justice Douglas when I said there was no allegation about the electronic surveillance.
It is true that there is a reference through the use of photographic and electronic equipment on page 9.
In my response, what I had in mind was wiretapping and bugging.
There is no specific allegation with respect to that.
In all of the hearings, there is no evidence that such action was taken.
There is some evidence that there was video tape, which I suppose is electronic but is more closely analogous to photographic and to what we usually have in mind when we say electronic.
Now, with respect to the other items on the meaning of the complaint and the complaint itself is only seven pages long and of course the Court will decide it on the basis of what it finds in the complaint.
But I would call attention to the opinion of the majority of the court below on page 137 of the record.
Appellants freely admit that they complained of no specific action of the Army against them, only the existence and operation of the intelligence gathering and distributing system which is confined to the Army and related civilian investigative agencies.
There is no evidence of illegal or unlawful surveillance activities.
We are not sided to any clandestine intrusion by a military agency.
And then the dissenting judge, Judge McKinnon below in footnote 2 at the bottom of page 149 of his opinion, there are no allegations that the Army has conducted surveillance of wholly private activity and at all argument, appellants indicated in effect that they did not have any witnesses who would testify that the Army had engaged in such activity.
Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.
Thank you gentlemen.
The case is submitted.