Domestic intelligence and privacy

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Domestic intelligence and privacy
Rubin, Daniel D
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vi, 113 leaves : ; 29 cm


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Intelligence service -- United States ( lcsh )
Privacy, Right of -- United States ( lcsh )
Intelligence service ( fast )
Privacy, Right of ( fast )
United States ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )


Includes bibliographical references (leaves 107-113).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Political Science.
General Note:
Department of Political Science
Statement of Responsibility:
by Daniel D. Rubin.

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Source Institution:
University of Colorado Denver
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Auraria Library
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Full Text
Daniel D. Rubin
B.A., Brandeis University, 1965
J.D., New York University, 1971
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Political Science

1995 by Daniel D. Rubin
All rights reserved.

This thesis for the Master of Arts
degree by-
Daniel D. Rubin
has been approved
f, in?
1 Date

Rubin, Daniel D. (M.A., Political Science)
Domestic Intelligence and Privacy-
Thesis directed by Professor Michael Cummings
Law enforcement officers monitor a variety of activities
by American extremist groups. Governments have always
collected information about their citizens, either to
know about them or from fear of them. Even in the United
States, domestic intelligence operations are as old as
the nation itself. However, this intrudes upon privacy
interests, especially the interest in informational
autonomy. Case law consistently holds that the police
may and should conduct lawful domestic intelligence
operations. Before deciding upon guidelines for such
operations, one should understand why they are conducted.
The most difficult guidelines concern operations against

minor extremist groups. The solution lies in defensible,
written policies that are available to the public and are
consistently enforced.
This abstract represents the contents of the candidate's
thesis. I recommend its publication.
Michael Cummings

1. INTRODUCTION.............................1
2. HISTORICAL PERSPECTIVE..................20
3. PRIVACY INTERESTS.......................38
4. THE LAW OF PRIVACY......................49
5. ANALYSIS................................81
6. CONCLUSION..............................91
LIST OF REFERENCES................................107
CASES CITED.......................................113

By the time Claude Marks and Donna Willmott
surrendered to the Federal Bureau of Investigation in
December, 1994, both had spent several years on the "Ten
Most Wanted" list for their alleged involvement in an
escape plot at Leavenworth federal penitentiary. The
escape plan included the use of plastic explosives and a
helicopter ("Bomb plot fugitives surrender," 1994).
There were others involved in the plan, including a
former Leavenworth prisoner paroled to Denver. His
assignment was to rent safehouses to be used by the
escapees and to steal automatic weapons. He did so, but

was discovered and became an informant for the FBI and
the Denver Police Department's Intelligence Bureau. The
plot was never carried out, although FBI surveillance
gained some attention (Roberts, 1985). The informant is
now in the Federal Witness Protection Program. The two
potential beneficiaries of the escape plot were
considered domestic terrorists by the U.S. government:
one prisoner was the alleged leader of the FALN, a
violent Puerto Rican nationalist group, and the other
prisoner was an active member of a group called the
Republic of New Africa.
It is unusual for most local police departments to
become involved in the investigation of such a level of
criminal activity by members of extremist groups. More
typical for local police to deal with is activity such as
throwing pig's blood against the building that contains
the office of a U.S. Senator, to protest his votes
favoring a right-wing government in Nicaragua (Gutierrez,
1987). Or defacing gravestones in a Catholic cemetery
and statues at a Catholic cathedral, to protest the

Church's attitude toward homosexuality (Seipel and
Culver, 1993). Or pouring fake blood on a statue of
Christopher Columbus to protest treatment of American
Indians (Sinisi, 1989). Or blocking access to an
abortion clinic in an effort to prevent abortions from
being performed (Briggs and Simpson, 1989).
From escape plots to pig's blood, these examples
demonstrate the variety of behavior that can be expected
from extremist groups, and also the variety of extremist
groups. However, all such groups, whether violent or
otherwise, may find themselves subject to surveillance or
other information-gathering activity by local, state, or
federal law enforcement agencies, in an attempt by the
agencies to prevent subsequent illegal behavior or at
least to limit its impact.
The purpose of this paper is to examine these law
enforcement activities and their impact on the privacy
interests of members of extremist groups. What authority
and responsibility do law enforcement agencies have to
gather information about extremist groups before the

groups break the law? What privacy interests do members
of extremist groups have to protect themselves from such
law enforcement activity?
Much has been written concerning abuses of the
intelligence process by American law enforcement
agencies, especially during the Vietnam War. My bias,
however, favors the police. I will argue that police and
other law enforcement agencies have intelligence-
gathering authority and responsibility, and that it is
grounded in American history, tradition, social
psychology and law.
The privacy interests that compete with
intelligence-gathering are less clear. Police
intelligence activity threatens to impinge primarily upon
the First and Fourth Amendment rights of members of
extremist groups, and the police have too often been
found to be at fault. Nonetheless, the courts have
continually reiterated the authority of law enforcement
agencies to conduct intelligence operations. And while
the Bill of Rights is the source of the still-developing

American right to privacy, the concept of privacy itself
is even more elusive. I will argue that the courts have
been slow to recognize a right to privacy because our
society itself is confused about privacy, that we
struggle to define and find a balance between our need
for privacy, our need for socialization and our
inquisitiveness toward each other.
I should mention here a distinction between
gathering intelligence about someone's activities, and
sabotaging those activities. Sabotage, as evidenced by
the FBI's COINTELPRO operations during the Vietnam War,
is not the subject of this paper.
If this paper is to deal with "extremist groups," I
should define the term. I have not found any definition
of "extremist" or "extremist group" in the literature.
Dictionary definitions are not particularly helpful.1 I
define "extremist group" as
1 The best I could find: "Extremist: one who advocates or resorts to
measures beyond the norm, especially in politics." (American Heritage
Dictionary of the English Language. Third Edition. 1992. Boston:
Houghton Mifflin Company.)

a group that expresses a willingness
to, or does, engage in law violations
in an effort to create a commitment
by members of the general public to
defy or challenge government laws or
regulations, in furtherance of the
group's articulated goals for social
In devising this definition, I was guided by Garrison's
(1990, p.15) description of "challenging groups" with
their "creation of commitment," by Piven and Cloward's
(1979, p.5) definition of protest movements and their
"collective defiance," and by Zald and Ash's (1966,
p.329) definition of a "social movement organization,"
whose goals are aimed at change.
My definition is tested by empirical validation.
That is, do groups that are typically thought of as
extremist groups fit within the definition, and do no
other groups? For example, the definition should not
include the average labor union, which may condone
unlawful acts during a strike but does not attempt to
mobilize the general public to join it and whose goals
are typically financial, not social.

On the other hand, the definition should include
groups that engage in actions of non-violent civil
disobedience, actions that may not by themselves be
expected to change anything but are aimed at publicizing
their cause in order to gain public support for their
social goals, whether the goals involve nuclear
disarmament or better treatment of animals.
The concern with extremists is not new to America.
What I call an extremist group, James Madison would have
included in his definition of a "faction." In The
Federalist #10 he defined a faction as
a number of citizens, whether
amounting to a majority or a minority
of the whole, who are united and
actuated by some common impulse of
passion, or of interest, adverse to
the rights of other citizens, or to
the permanent and aggregate interests
of the community (Hamilton, Jay, and
Madison, p.54).
Admittedly, Madison's definition is broader than
mine. Unlike my definition of an extremist group,
Madison's definition of a faction does not include

requirements for lawbreaking and appealing to the general
public.2 His factions were primarily interested in
protecting or improving their personal financial well-
being. In fact, Charles Beard argued that Madison
believed financial well-being to be everyone's primary
interest. Beard wrote that, to Madison, "the theories of
government which men entertain are emotional reactions to
their property interests" (Beard, 1963, p.157).
My definition does not account for all members of
extremist groups. Groups of all persuasions are composed
of individuals with various levels of commitment.
Despite the fact that an extremist group "expresses a
willingness to, or does, engage in law violations," there
may be law-abiding individuals who are considered by the
group to be members or who consider themselves to be
members. Nonetheless, I consider anyone (whether or not
a member) who supports or aids the group'sillegal
activity to be an "extremist," subject to the same
2 On the other hand, time may reveal that the goals of my "extremist
groups" were not adverse to the rights or interests of the community.

intelligence-gathering efforts as is the group, even if
that individual does not personally break the law. This
is consistent with the criminal law theory that one may
be guilty as an accomplice despite the lack of any
agreement with the principal (LaFave and Scott, 1986,
At the inception of most domestic intelligence
operations, of course, law enforcement agencies are
monitoring alleged extremist groups. Because law
enforcement suspicions are not always accurate, some of
these groups and individuals will be shown not to meet
the definition. Because I will conclude that the
reasonable expectation of privacy of extremists must be
the same as that of everyone else, in this paper I will
not distinguish between intelligence-gathering operations
aimed at alleged extremists and those aimed at proven
Although this paper focuses on the law enforcement
challenge to privacy interests, it should be noted that
there are challenges by private industry as well.

Employers may violate the privacy of their workers and of
others in an attempt to learn who is leaking embarrassing
information to the press (Safire, 1991; Rothfeder, 1992,
pp.72-73). Credit bureaus may collect irrelevant
information and distribute it carelessly (Rothfeder,
1992, pp.31-62).
Despite the problems caused by private intrusions on
privacy interests, many people are especially resentful
when the intrusion is by the government, especially by
law enforcement agencies. During a television
appearance, a representative of an anti-abortion group
complained that U.S. Marshals were recording license
plate numbers of the group's members. When he was
reminded that his group recorded license plate numbers of
clinic workers, he replied that "there's a major
difference between individuals taking down license
numbers and the federal government doing it" (CNN, 1994).
At a 1990 street-corner news conference called by a
Denver anti-abortion group, a member of the group tried
to avoid a police intelligence officer's camera, as the

invited television and press cameras took pictures of
everyone for mass publication. When the officer pointed
out the contradiction, the member agreed, yet expressed
his discomfort at the thought of his photograph in the
hands of the police.
Professor Amsterdam (1974), of Stanford Law School,
relates a similar concern in a discussion of undercover
police informers. Amsterdam concedes that individuals
have no right to assume that their conversations will be
wholly private when they voluntarily converse with
others, because there is no guarantee that the
conversation will not be repeated. However, Amsterdam
argues, it is not reasonable to suppose that some person
with whom one converses may be a human microphone
reporting to the government (Amsterdam, 1974, pp.406-
408) .
The special resentment toward privacyintrusions
committed by the government is based on more than
Constitutional proscriptions against certain government
activity. There is a fear of how the information will be

used (see below, p.42). But even more than that, we see
the government as an all-powerful entity upon which we
are almost totally dependent; privacy is our sanctuary
and our symbol of autonomy. Finally, we see the
government as our protector; intrusions upon our privacy
is somehow a betrayal of our trust.
Hubert Humphrey wrote:
We act differently if we believe we
are being observed. If we can never
be sure whether or not we are being
watched and listened to, all our
actions will be altered and our very
character will change (Benn, 1971,
p.24) .
The promotion of such self-consciousness has been seen as
a worthy objective by some law enforcement authorities.
The belief that one is under police surveillance, whether
one is or not, is seen as a crime deterrent (Schultz and
Norton, 1968, p.162).
It is logical to expect that awareness of privacy
interests would limit information-gathering behavior.
Ironically, the mere existence of privacy, more

particularly the existence of "secrets," may encourage
such behavior. Wolff (1950, p.334) observed that a
secret at once creates both a barrier between people and
a tempting challenge to pierce it, by gossip or
confession. Schwartz (1968, p.742) adds that the
challenge is taken up by the spy, the Peeping Tom, and
the eavesdropper, who, he asserts, have come to symbolize
the challenge.
When secrets are shared by groups of people, the
perceived need to penetrate them increases. The secret
society appears dangerous to outsiders by mere virtue of
its secrecy. The reaction of government may be the most
intense. It is impossible to predict whether an
association, originally organized for legitimate (that
is, non-extremist) purposes, may one day become an
extremist group. This uncertainty, according to Wolff
(1950), is the main source of any central authority's
suspicion of groups among its citizens or employees.
The secret society is so much
considered an enemy of the central
power that, conversely, every group
that is politically rejected, is

called a secret society (Wolff, 1950,
In addition, there are what Shils (1966, p.287)
called "the facts of authority"----namely that rulers wish
to see their subjects and to know something about them.
The Roman census, the Anglo-Norman Domesday Book, and the
Nuremberg and Swiss cantonal censuses of the fifteenth
century are illustrative of the antiquity of governmental
information-gathering (Shils, 1966, p.298). Because
rulers feel a need for the security of their own tenure,
they will, in varying degrees, want information about
subversive opinions (Shils, 1966, p.287). After all, as
sociologist Georg Simmel observed,
[t]he first condition of having to
deal with somebody at all is to know
with whom one has to deal (Wolff,
1950, p.307) .
Thus, 0. W. Wilson, one of the most influential
writers on police administration, argued that a chief of
police needs information
regarding those in his community who
may be members of secret

organizations that threaten the local
or national security through
subversive activity or espionage. He
should know what organizations are
devoted to engendering racial hatreds
and disturbances and what their
programs and plans are (Wilson, 1972,
Bouza (1976), a former commander of the New York City
Police Department's intelligence unit, believed that
"[1]ike the Cyclops Polyphemus, the New York City Police
Department would be virtually helpless to cope with the
many sudden, unexpected public crises without its eye:
the police intelligence unit" (Bouza, 1976, p.19).
Polyphemus is the Cyclops who confined Odysseus and his
companions in a cave until Odysseus blinded him and
The tension between privacy and domestic
intelligence reflects the tension between the
philosophies of communitarianism and rights-based
liberalism. This tension is explored at length by
Richardson (1985) and Sandel (1984). Richardson refers
to the "contrasting pictures of the self offered by the

politics of the common good and the politics of
[individuals' rights]" (Richardson, 1985, p.397).
To the modern liberal, Richardson states, the
separate and independent individuals need privacy not
only to choose their own way but to enable them "to
resist the pull of [their communities'] loyalties,
obligations, and traditions" (Richardson, 1985, p.397).
Sandel presents the communitarian position that, for
example, we are more than citizens, we are citizens of a
country, and members of a movement. or partisans of a
cause. Thus, we are partly defined by and are obligated
to the communities we inhabit (Sandel, 1984, p.17).
Moreover, there is the individual's desire to "share
in privacy" (Shils, 1966, p.304). People want to tell
others about themselves. Ironically, when they share
this information with a small group, Shils notes, the act
of sharing simultaneously separates the small group from
others with whom the information was not shared.
Richardson makes a similar observation:
Humans are "twinned beings." On the
one hand, and in the first instance,

they are attached in the most
powerful way to those things which
are their own----their bodies, their
thoughts, their families and friends,
their properties and personal
possessions. On the other hand, they
are drawn into attachments which
transcend self, family, property, and
mere private opinion. Were it not
for this duality in human nature
itself, the issue of public and
private would not arise within
political thought and practice at all
(Richardson, 1986, p.415).
To some, the validity of a distinction between
individual rights and communitarian philosophies is
suspect. After all, communities are simply a number of
individuals, and individuals are members of communities.
Tensions arise when the desires of most of the
community's individuals conflict with the desires of a
few of the community's individuals. In Wittmer's (1995)
words, "[t]he choice is not between the individual and
community, but rather the kind of community that is best
for the individual."
I submit, however, that to most people in
government, including most police officers, the

distinction is valid. To them, an emphasis on the rights
of individuals interferes with the efficient and
effective administration of government functions,
functions which serve the best interests of the community
as opposed to the interests of its individual members.
If the community-individual dichotomy is a misperception,
it is nonetheless a misperception upon which many policy
decisions are based.
In summary, a desire for information about its
subjects, domestic intelligence, is a natural and
necessary part of the existence of government. It is
just as natural for many of those subjects to resent the
fact that the government collects information about them,
for whatever reason. But one cannot simply hide from the
government or from other segments of society, because
whatever desire people have for privacy is balanced by
their desire to be social animals who want to share
information about themselves.

In the next chapter I will demonstrate that the
targetting of extremists for domestic intelligence has an
American tradition that is as old as the Republic.

Government intrusions on privacy are "as old as
empires" (Shils, 1966, p.294). Upper- and middle-class
fears of bomb-throwing anarchists were pervasive in the
late 19th- and early 20th-centuries, mostly in Europe but
also in the United States. In the U.S., this fear was
aggravated by the violence of the conflicts between
industrialists and their employees. Special private
police and detective services were established by
employers as a means of coping with their dissatisfied
workers. In fact, at the turn of the century in the
United States (unlike Europe), the government's police

carried only a small proportion of the responsibility for
surveillance and repression. Private agencies did the
rest (Shils, 1966, p.294). The growth of the private
investigative profession was stimulated by the changes in
the mores of Western Europe and America which made
divorce more permissible while still legally difficult;
suspicious spouses hired private detectives to conduct
surveillance and obtain evidence of infidelity.
Moreover, the growth after World War I of large mass-
production industries based on semi-skilled labor and the
growth of other large commercial enterprises created work
environments where top management and labor were not
known to each other and, therefore, not trusted (Shils,
1966, pp.295-296).
Mutual distrust reached its height during unionizing
efforts before World War II. In the mid-1930s, for
example, General Motors employed at least fourteen
private detective services. GM was the largest
industrial client of Pinkerton's National Detective
Agency. At times, as many as 200 spies were reporting on

union activities in GM plants. At one point, GM assigned
Pinkerton detectives to spy on the detectives of a second
agency GM had hired, fearing that the second agency's
detectives might be betraying GM's trade secrets (Fine,
Actually, distrust pre-dates the U.S. Constitution.
Alexander Hamilton, in The Federalist #21, expressed his
fear that, should the Constitution not be adopted,
[u] surpation may rear its crest in
each State, and trample upon the
liberties of the people, while the
national government could legally do
nothing more than behold its
encroachments with indignation and
regret. A successful faction may
erect a tyranny on the ruins of order
and law, while no succor could
constitutionally be afforded by the
Union to the friends and supporters
of the government .... Towards the
prevention of calamities of this
kind, too many checks cannot be
provided (Hamilton et al. , 1937,
pp.126, 127).
On the minds of Hamilton and the rest of the country
was Shays' Rebellion, which occurred a year earlier, in
the summer of 1786. In an attempt to stop foreclosures

that followed inflation during the Revolutionary War, war
veteran Daniel Shays led a group of debtors in a march on
Springfield, Massachusetts, and prevented the state
supreme court from meeting. When the government sent
troops against them, the debtors attacked the Springfield
arsenal. They were routed, and the uprising collapsed.
Shays fled to Vermont (Garraty, 1983, p.118) .
While Thomas Jefferson regarded the uprising as only
"a little rebellion" (Garraty, 1983, p.118), most well-
to-do Americans were terribly alarmed. It prompted
George Washington to observe that "we are fast verging to
anarchy and confusion" (Garraty, 1983, p.119). Hamilton
The tempestuous situation from which
Massachusetts has scarcely emerged,
evinces that dangers of this kind are
not merely speculative. Who can
determine what might have been the
issue of her late convulsions, if the
malcontents had been headed by a
Caesar or by a Cromwell? Who can
predict what effect a despotism,
established in Massachusetts, would
have upon the liberties of New
Hampshire or Rhode Island, of
Connecticut or New York? (Hamilton et
al., 1937, pp.126-127)

In The Federalist #43 it was Madison who discussed
the dangers of domestic insurrection, despite his
assertion that he "take[s] no notice" of the large number
of slaves who could "give a superiority of strength to
any party with which they may associate themselves"
(Hamilton et al., 1937, p.285). Beard argued that in
this essay Madison was appealing "to the slave-holders'
instinctive fear of a servile revolt" (Beard, 1963
p.174) .
Morgan (1980, ch. 2) recounts the subsequent history
of domestic intelligence gathering in the United States.
It began during the American Revolution with the exposure
and punishment of Tories by vigilantes such as the Sons
of Liberty, often with the approval of government
officials. With the establishment of the Republic, the
government engaged in the monitoring of dissent, but on a
sporadic basis.
Whenever the federal government
perceived itself as faced with a
severe crisis of disloyalty, it
quickly got into the business of

monitoring dissent (Morgan, 1980.
Once the crisis had passed, however, the monitoring ended
and the officials involved were assigned to other tasks.
At the federal level, at least, it was not until World
War II that a permanent and specialized domestic
intelligence function was institutionalized.
The first crisis that the federal government
perceived was Jacobinism, the radical philosophy of the
French Revolution. Many American politicians were
alarmed by the social upheaval in France, and by the
influence the Jacobins were having on the growing
Jeffersonian (Democratic-Republican) party opposing the
Federalists, who had presided over the creation of the
new American form of government.
The next step, active intrigue by the
Jeffersonians with French agents, was
thought by [President John] Adams and
his secretary of state, Timothy
Pickering, to be only a short one.
The perceived threat created a
classic situation in which new
regimes resort to political
repression (Morgan, 1980, p.17).

Congress responded to President Adams' concerns by
enacting three statutes that became known as the Alien
and Sedition Acts. Of the three, the Sedition Act was
the most repressive. It made it a crime to threaten to
damage even the character of a federal official, or to
speak or write scandalously or maliciously against the
federal government or Congress or the President "with the
purpose of bringing them into contempt, stirring up
sedition, or aiding and abetting a foreign nation in
hostile designs" (quoted by Morgan, 1980, p.18).
The Sedition Act included a two-year sunset
provision, and it expired relatively harmlessly in 1800.
Adams' fears did not prevent Jefferson's election to
president that year; nonetheless, the republic survived.
Whether because the Jeffersonians were too strong, or
because the Federalists were psychologically unprepared
to engage in full-scale repression, or simply because the
necessary investigative bureaucratic machinery was never
put into place, the Federalist program of surveillance

[W] ithin a very few years [the Alien
and Sedition Acts]came to be viewed
as a symbol of unacceptable
government interference in the
political process. This first,
legislatively authorized attempt at
political repression, rather than
setting a dangerous precedent, served
instead to constrain future leaders
in responding to dissent----a rather
pleasant irony in our political
tradition (Morgan, 1980, p.19).
The Civil War presented the next occasion when the
federal government mounted a domestic intelligence
program. Now the targets were Copperheads (Northerners
sympathetic to the Confederacy) and labor radicals who
interfered with the war effort. The Conscription Act
culminated in the New York City draft riots of 1863, and
the Union's domestic intelligence apparatus increasingly
was used to thwart this type of "sedition" against the
United States.
The end of the war brought with it the dismantling
of the federal domestic intelligence apparatus. Even
sensational terrorist incidents such as the 1886
Haymarket Square bombing in Chicago during a labor

protest failed to provoke a federal response, although
they did bring about the creation of many urban police
"red squads" and at least one state police force. There
were individual federal investigations, but for these the
federal government usually hired private investigative
agencies such as the Pinkertons. Occasionally, Secret
Service agents, who dealt almost exclusively with
counterfeiting, were borrowed from the Treasury.
In 1906 the Justice Department obtained the
indictments of an Oregon senator and congressman in
connection with fraud involving federal land. The use of
borrowed Secret Service agents to conduct the
investigation led to a 1908 statute prohibiting the
further employment of Secret Service agents by other
government departments. This prohibition would
eventually lead to the creation of what would become the
Federal Bureau of Investigation, to fill the
investigative void.
The combination of labor violence, foreign
radicalism, and mass immigration around the turn of the

century caused increasing anxiety among politically
influential Americans, and eventually the federal
government began an organized effort to monitor political
dissent during World War I. The FBI's first authority to
conduct domestic intelligence came with passage of the
Espionage (1917), Immigration (1918) and Sedition (1918)
Acts. In 1919 and 1920, a unit of the FBI (then the
Bureau of Investigation) called the General Intelligence
Division, headed by a young J. Edgar Hoover, cooperated
with the Immigration Bureau to conduct anti-radical raids
in several cities that rounded up thousands of political
militants. These "Palmer Raids," named after then-
Attorney General A. Mitchell Palmer, resulted in a
popular backlash.
When Calvin Coolidge became president in 1923, a top
priority was the restoration of confidence in a
politically corrupt Justice Department. He appointed
Harlan Fiske Stone, an outspoken critic of the Palmer
Raids, as attorney general. Stone offered Hoover the
directorship of the FBI, and Hoover agreed on condition

that it be removed from politics and responsible only to
the attorney general. Stone agreed.
In addition, Stone drew what has become known as the
"Stone Line." He established as formal policy that the
FBI would investigate and gather intelligence on only
particular violations of federal laws. The General
Intelligence Division was disbanded, having accumulated
close to half a million index cards on individuals and
groups, "and Hoover, whose own career had been so deeply
entwined in intelligence activities during and
immediately after the war, pledged to live by the 'Stone
Line'" (Morgan, 1980, p.30).
With the rise of Hitler, however, President Franklin
Roosevelt soon ordered the FBI to renew its domestic
intelligence activities. The enactment of the Smith Act
of 1940, the modern sedition act which made it unlawful
to advocate the overthrow of any government of the United
States by force or violence, seemed to close the circle
that had begun with President Adams.

World War II itself, and the Cold War that followed
it, created new organizations of "specialists in
intrusions" (Shils, 1966, p.297), and new arguments for
their indispensability. With the intelligence work
conducted by the FBI in Central and South America during
the war, the idea of intelligence-gathering infiltrated
the agency (Schultz and Norton, 1968, p.23). It was
inevitable that fears of espionage would quickly extend
to the local level and create incentives for local police
agencies to use intelligence units to monitor subversive
groups and individuals. Hearings held by the House Un-
American Activities Committee set the tone at all levels
of government in the 1950s (Shils, 1966, p.297).
The general public's fear of law enforcement
intelligence-gathering increased simultaneously with
advances in information filing systems and the increased
ability to disseminate that information. Hentoff (1974,
p.261) related the story of a New York woman who was
fired from her job as a substitute postal clerk after the
U.S. Civil Service Commission learned from FBI files that

she was a member of Students for a Democratic Society and
had participated in a campus demonstration at
Northwestern University. Karst (1966, p.370) observed
that the development of the photocopier exacerbated the
problems associated with widespread dissemination- of
The potential effects of dissemination of
information to other government agencies were only part
of the problem. Information might be passed to private
groups, too. In 1965, Detroit housewife and civil rights
worker Viola Liuzzo was shot to death in Alabama
following the Selma to Montgomery civil rights march, a
death attributed to the Ku Klux Klan. After her murder,
the Detroit Police Department's Central Intelligence
Bureau compiled a dossier on her. Somehow, a copy of
that dossier was obtained by a police commissioner in
suburban Warren, Michigan, from where it was sent to the
sheriff of Dallas County, Alabama, which included Selma.
The Imperial Wizard of the United Klans of America also
obtained a copy of the dossier, which included

information on her marriages and divorces and non-
criminal contacts with the police (Karst, 1966, p.366fn,-
"Liuzzo File Study Opens in Detroit," 1965) .
In addition, Karst (1966) described an organization
of police officers, active at that time in Los Angeles,
which engages in right-wing political
activity, including ... a newsletter
which consists in substantial part of
lists of names of persons who have
been identified by someone as
communists or communist sympathizers,
often coupled indiscriminately with
the names of persons who support the
establishment of civilian police
review boards (Karst, 1966, p.366fn).
Karst was "morally certain" that this organization had
access to any police file in the city.
More recently, in 1993, the district attorney of San
Francisco investigated evidence that a then-member of the
San Francisco Police Department's intelligence unit
illegally provided information on groups and individuals
to the private Anti-Defamation League (Paddock, 1993) .
Of all government law enforcement agencies that
collect information on American citizens, most has been

written about the activities of the Federal Bureau of
Investigation. For example, in the 1960s and early
1970s, generally the years of the Vietnam conflict,
acquisition of intelligence about the plans and
membership of subversive organizations replaced
prosecution as the FBI's principal investigative mission
(Theoharis, 1990, p.224). Much of this investigative
effort dovetailed with FBI surveillance of civil rights
groups in the southern states, during which observation
of civil rights violations took precedence at first over
protection of the victims' civil rights (O'Reilly, 1988,
p.205) .3
In the late 1980s, the FBI was criticized for
investigating left-wing groups supporting the Sandinista
regime in Nicaragua and the rebels in El Salvador, and
more so for allowing that investigation to expand and
continue beyond reasonable boundaries (English, 1989,
3 During this period, the FBI's COINTELPRO operations involved not
just intelligence-gathering, but sabotage against the activities of
certain groups. As I mentioned earlier, such behavior, which was
often illegal, is beyond the scope of this paper.

p.485). Meanwhile, a small uproar arose over the FBI's
Library Awareness Program, which entailed soliciting the
assistance of librarians in spotting foreign agents
looking for scientific or military information (Robins,
1988) .
Gathering information on subversives has not been
the sole intelligence function of law enforcement
agencies. Hentoff reported that the Cleveland Police
Department bugged the office and tapped the telephones of
the first black mayor of Cleveland, Carl Stokes (1967-
1971). The mayor's staff felt that if they had brought
the Cleveland police intelligence unit in to remove the
bugs, "they would have removed five and put in ten"
(Hentoff, 1974, p.262). Stokes would hold important
meetings in hotels, never in his office. He would call
the hotel at a moment's notice, just prior to the
meeting. That way the Cleveland police did not have time
to bug the room or tap its telephone (Hentoff, 1974,
p.262) .

Similarly, when Willie Williams became chief of the
Los Angeles Police Department in 1992, one of his first
tasks was to padlock the offices of its Organized Crime
Intelligence Division. A just-published book by a former
detective in that unit claimed that it had spied on
celebrities and on political rivals of former chief Daryl
Gates, and that the information may have been used to
influence city council votes (Rothmiller and Goldman,
1992; Mydens, 1992).
And during the 1950s, before all of the above, the
FBI (and the State Department) requested data from the
Kinsey Institute on particular individuals who were
allegedly involved in research on sexual behavior. The
request was refused (Diener and Crandall, 1978, p.70).
In summary, domestic intelligence-gathering about
extremist groups, or groups feared to be extremist, is a
tradition in the United States as well as in less
democratic countries. Often, the intelligence operations
were proper and valuable. At other times they were not.
The operations paralleled or were directed by political

forces outside the law enforcement community. Therefore,
it is unlikely that abuses of the police intelligence
function would be properly resolved by attempts to forbid
domestic intelligence activities altogether.
In the next chapter I.will examine privacy itself
and efforts to define and control it.

Even a cursory interest in current affairs reveals
the public's concern over privacy issues. When a woman
who was suing President Clinton for sexual harassment
learned that nude photographs of her, taken by her
boyfriend, were about to be published in a magazine
without her consent, she sued to enjoin the publication.
A representative of the American Civil Liberties Union
supported her argument that "an individual has a privacy
right to control the distribution of images about her"
(Goodman, 1994). A letter to a newspaper complained that
by requiring employees to attend racial sensitivity

seminars, a company that had been accused of racism
"invade[s] the psychic privacy of employees" (Ackerman,
1994). After a CBS camera crew accompanied the Secret
Service on a raid, the suspect's wife sued for invasion
of privacy; the U.S. Court of Appeals agreed, saying that
"a private home is not a sound stage for law-enforcement
theatricals" ("A Warrantless Camera Crew," 1994). And a
nationally syndicated columnist called for a
constitutional amendment that protects privacy,
describing four "recent affronts to privacy rights" by
the government (Perkins, 1994).
Identifying a right to privacy is not a simple task.
In the next chapter, I will discuss American case law
concerning privacy rights. For now, we should note that
the United States Supreme Court has recognized its
existence without really defining it. The Court held in
Griswold v. Connecticut (1965) that it is one of the
"unenumerated rights" that are "retained" by the people
under the Ninth Amendment. If so, the right to privacy
pre-dates and is independent of the Constitution. Thus,

it is not just a legal right, but a human right (Wellman,
1978, p.49).
When considering a right to privacy, some
philosophers focus on' a right to autonomy, to control
over the use of one's personal information. Like actors
and actresses, we play roles in our daily lives. We
allow, indeed want, an audience to see us in our makeup,
but do not want to be seen backstage. Backstage, we
behave as our true selves and prepare for our next scene.
It is not so much that the audience has a duty not to
know about us, as that they have a duty not to try to
find out (Ryan, 1983, p.151).
Schoeman presents another perspective, that of
German sociologist Max Scheler:
[Scheler] differentiates roles into
those in which individuality is
central and those in which it is out
of place. Scheler points out how
shame can be occasioned when one
thinks of himself impersonally in a
role but others treat him as
personally involved. Being noticed
nude by a painter, not as a model,
but as something fuller, is Scheler's
example. Being treated as an
individual rather than as a fungible

abstraction leads to a loss of
anonymity and, in some contexts, to a
loss of self-respect (Schoeman, 1992,
p'l7) .
Compare Scheler's observations to the behavior of the
camera-shy pro-life activist I described earlier (above,
A distinction can be made between situations in
which personal information is exposed and used, and ones
in which personal information is exposed but not used.
In the first case, by use of confidential information
about them, people are manipulated as a means to
another'.s ends, perhaps for the latter to gain an
advantage in business. In the second case, information
is merely conveyed to another party, such as by gossip.
These cases illustrate the relationship and difference
between privacy and autonomy.
Gross (1971, p.179) described the difference as
"between managing another person as a means to one's own
ends, which is offensive, and acting merely as a vehicle

of presentation (though not gratuitously) to satisfy
established social needs, which is not offensive."
Professor Westin (1967) of Columbia Law School made the
analogy to what primitive people feared when their
photographs were taken by anthropologists----the fear that
part of them had been taken and might be used in the
future to harm them (Westin, 1967, p.62).
Americans are increasingly conscious of their
privacy. In 1990, in a poll of a broad cross-section of
Americans, 79% said that they were highly concerned about
threats to their privacy and would add privacy to "life,
liberty and the pursuit of happiness" in the Declaration
of Independence. In 1977, only 47% of Americans reported
that they were concerned about the loss of personal
privacy. And in 1970, before the Watergate scandal, only
34% of Americans questioned told pollster Louis Harris
that their privacy was being invaded (Rothfeder, 1992,
Concern over how personal information will be used
may be the source of a particular concern about invasions

of privacy by the government. Gibson (1992, p.343)
reported that, of the sample he studied, 12.5% of blacks
said they were reluctant to talk about politics because
of a worry "that the government might find out about me."
Among whites, 2.4% felt that way. Gibson found that
large numbers of Americans, black and white, believed
that the government would prohibit them from expressing
their opposition to government policy through
conventional speech and assembly activities.
In fact, Wellman (1978, pp.55-56), after deciding
that privacy is a human right that pre-dates the
constitution, defined it as an ethical right .against only
the government, not against private parties, noting that
important human rights documents and declarations have
been essentially political documents, proclaiming
individual rights in the face of the state. Rubenfeld
(1989, p.807) described the right to privacy as a right
to be left alone by the government, to not have the
course of one's life dictated by the state.

There are many avenues by which the government might
collect information on its citizens. Certainly, the
Internal Revenue Service and the Bureau of the Census
collect information. The U.S. Army spied on Martin
Luther King, Jr. and on his family for decades (Tompkins,
1993). One writer has argued that merely being
questioned by police who are checking for drunk drivers
is an invasion of privacy (Gilchrist, 1991, p.317).
It has been argued that a fundamental purpose behind
intrusions into privacy, whether by government or by the
private sector, is social control. These entities want
to enforce norms, monitor compliance with standards of
behavior, and enable other organizations to promote what
the intruding entities consider desirable social
conditions or practices. James Zogby, president of the
Arab American Institute, asserted that, historically, the
FBI and other law enforcers "do not go after dangerous
groups. They go after unpopular groups" (Roberts, 1995).
His statement recalls Wolff's observation (above, pp.13-
14) that "every group that is politically rejected is

called a secret society." Perhaps these perceptions
explain one writer's assertion that
[t]he word terrorism does not
describe a heinous act. Instead, it
describes the actor. If our
government performs the act . then
it's a matter of preserving national
security, and we should ail sleep
better at night. But if anybody else
does such things, then it's an act of
terrorism, and we should all feel
fearful and ask that same government
to protect us (Quillen, 1995).
Westin (1967) notes that leaders of all types----
family heads, group leaders, religious leaders, and
tribal and national leaders----will forever engage in
surveillance to see that private conduct stays within a
socially determined degree of conformity with the rules
and taboos of the group (Westin, 1967, p.21). And
Schoeman (1992) argued that our ideas of privacy keep
women "domesticated, isolated, and thus politically and
ideologically voiceless (Schoeman, 1992, pp.13-14).

We should be aware that social control need not be
in the hands of our "leaders." For example, credit
agencies may act as agents of others in this regard.
People who are troublesome to merchants can be kept away
by being denied consumer credit. Or the amount or nature
of the credit they are allowed can be tailored to what is
considered "safe" for them, thus adjusting their
privileges to balance the risks they pose to others. Or,
a bank might actively curtail behavior of those
considered undesirable by confiscating their credit cards
(Rule, McAdam, Stearns and Uglow, 1980, pp.47-48).
Psychologist Jourard made the same assertions as did
Schoeman and Rule, insisting that these allegations are
"obvious. What is less obvious," Jourard argued, "is
that the so-called healers in society---the psychiatrists
and psychotherapists---often function in the same
commissar-like fashion" (Jourard, 1966, p.312).
In summary, I have described some of the theories
and attitudes toward privacy in the United States. For
the purposes of this paper, I adopt autonomy as that

aspect of privacy that is most relevant to an analysis of
domestic intelligence and privacy. More specifically, I
believe that all of the theories and attitudes described
above are consistent with people's attitudes toward
"informational autonomy," the feeling of control over
their personal information. The discussion in this
chapter has also indicated people's fears that if their
personal information is revealed to certain entities----
especially to the government---there is danger that it
will be used against them. If this fear is joined with a
government that uses information for social control, the
resulting tension is easily understood. I believe that
personal autonomy versus social control is at the crux of
any discussion of domestic intelligence and privacy.
In the next chapter, I will present the law,
primarily case law, concerning privacy. I will also
present case law concerning the authority of law
enforcement agencies to conduct domestic intelligence
operations. I believe that the facts of these cases, as
described in the opinions of different judges, reflect

the same issues discussed above.

The legal restrictions and authority concerning the
gathering of domestic intelligence find their source in
the Bill of Rights. There is much case law and some
statutory law on the subject. I will discuss case law
The case law approaches domestic intelligence from
various directions. Some cases were concerned with a
right to privacy. Other cases dealt with the criminal
law of search and seizure. Still other cases dealt with
the authority of the government to collect information on
its citizens. Some of the plaintiffs claimed that the

government violated their rights under the First
Amendment. Others claimed rights under the Fourth
The leading case on search and seizure is Katz v.
United States, decided by the U.S. Supreme Court in 1967.
The case concerned an electronic bug attached by the
police to the outside of a telephone booth that a
bookmaker used as an office. Prior to this case, the
Court had regarded physical trespass as the basis for an
unconstitutional search; a search was legal when there
was no physical trespass by the police onto or into the
criminal defendant's property. In Katz. however, the
Court introduced the concept of zones of privacy into the
law of search and seizure. The Court required that the
Fourth Amendment's requirement of "reasonableness" must
be applied wherever the government invaded a "reasonable
expectation of privacy," a phrase that comes from Justice
Harlan's concurring opinion (p.360). "The Fourth
Amendment," Harlan wrote, "protects people, not places"
(p.361). Therefore, before searching a place in which an

alleged lawbreaker had a reasonable expectation of
privacy, law enforcement officers had to have probable
cause to believe that they would find evidence of a crime
there; in most cases, such a search would require a
warrant. Katz had a tremendous impact on law enforcement
practices by enlarging the number of areas requiring
reasonable grounds (i.e., probable cause) to search and,
usually, search warrants.
Katz has led some people, like Professor Amsterdam
(1974, p.407), to suggest that law enforcement agencies
engaging in domestic intelligence should be required to
obtain a warrant before the reasonable expectation of
privacy of a group or individual may be violated by an
informer. The courts, however, have traditionally found,
in the theory of assumption of risk, a difference between
searches and the use of informers. They reason that when
we are in the presence of others, we cannot assume that
what is done or said will remain private. The resulting
information may be used to prosecute us unless it was

obtained in a "police-dominated atmosphere" or under
compulsion (Illinois v. Perkins. 1991).
Around the same time as Katz. the Supreme Court was
examining other situations in which government activity-
might affect privacy interests. These cases included
situations in the related areas of sex, marriage, child-
bearing and child-rearing. Generally, the Court treated
these interests as falling within the broad category of
"the right to privacy." However, in many instances (for
example, abortion rights or student dress regulations) a
more illuminating term might be "the right to personal
One could argue that everyone enjoys a
constitutionally protected privacy interest in being free
from having the government, including the police,
unreasonably gather information about them, or from
disseminating that information. This claim could be a
logical extension of the holding in Griswold v.
Connecticut (1965), that married couples have a right to
keep secret from the government the fact that the couples

use contraceptives, absent a "compelling" government need
for the information. The U.S. Supreme Court, however,
has not shown sympathy with the argument, as illustrated
by the cases below.
In Paul v. Davis (1976), the plaintiff had been
arrested for shoplifting. Subsequently, his photograph
and name were included in a list of "active shoplifters"
in a flyer that the police chief circulated to hundreds
of local merchants. The shoplifting charges against the
plaintiff were dismissed, however, and he sued under the
federal Civil Rights Act for violation of his
constitutional rights. In a 5-3 vote, the Supreme Court
held that the plaintiff's interest in his reputation was,
by itself, not protected by the U.S. Constitution. (In
contrast, a list of suspected shoplifters and burglars
that was published in Union Point, Georgia, in December,
1994, did more than hurt their reputation^ It was
accompanied by a police order banning them from more than
two dozen stores and businesses ranging from banks to
video arcades and laundries, under threat of arrest. The

police order was lifted the following February after
being attacked by civil rights groups----all twenty-one
suspects were black ["Merchants in Ga. town relent on
banning 21 suspected thieves," 1995].)
The year after Paul v. Davis, the Court decided the
case of Whalen v. Roe (1977) Here, a New York statute
required doctors to report the names and addresses of all
patients who received prescriptions for certain drugs.
This information was then entered into a central computer
system. The Court found that although prescription drug
users in New York had a privacy interest in not having
the state gather information about their drug use, their
interest was outweighed by the state's compelling
interest in gathering the data.
In his opinion for the Court in Whalen. Justice
Stevens observed that the privacy cases that had come
before the Court involved at least two different types of
interests. One was the individual's interest in avoiding
disclosure of personal matters. The other was the
individual's interest in independence in making certain

types of important decisions---that is, personal
autonomy. The Court found that neither of these
interests was materially impaired by the New York
statute. But Justice Stevens noted that in this case the
Court was not ruling on the constitutional issues
surrounding unwarranted disclosure of accumulated private
information or a system that did not contain strong
security provisions.
These cases do not specifically address the
existence of a right to "informational autonomy" by
extremist groups. Nor do the cases concerning freedom of
speech. Of the free speech cases, the most relevant to
this discussion are those concerning the advocacy of
illegal conduct. They culminate in the 1969 decision of
the U.S. Supreme Court in Brandenburg v. Ohio. In this
case, the defendant was a leader of an Ohio Ku Klux Klan
group. He was charged with violating Ohio's Criminal
Syndicalism Statute. The statute forbade the advocacy of
crime or violence as a means of accomplishing industrial
or political reform. A unanimous Supreme Court struck

down the Ohio statute, and set forth a new free speech
test that is still in effect.
The Brandenburg opinion held that speech that
advocated the use of force or crime could only be
proscribed where two conditions were satisfied. First,
the advocacy must have been directed to inciting or
producing imminent lawless action, and second, the
advocacy must have been likely to incite or produce such
action. The first condition protects speakers who
advocate mere theory. The second condition protects
speakers who are harmless.
Brandenburg is one of the most important Supreme
Court decisions. However, a fear of arrest for illegal
speech touches only one aspect of the informational
autonomy interests of extremists, who may be monitored as
they listen to the speech of others. In fact, as will be
seen below, courts have upheld the authority of law
enforcement agencies to monitor activities that the
courts agree are protected from criminal prosecution.

It is more instructive, for the purposes of this
paper, when case law is approached from the opposite
direction; that is, case law concerning the authority of
law enforcement and other government agencies to engage
in domestic intelligence gathering.
Gibson v. Florida Legislative Investigation
Committee (1963) did not deal directly with law
enforcement intelligence activities but considered
similar issues. It is worth reviewing in this paper, if
only for the value of Justice Douglas' concurring
opinion. Gibson concerned an appeal by Theodore R.
Gibson, who in 1959 was president of the Miami branch of
the National Association for the Advancement of Colored
People. He was subpoenaed to appear that year before the
Florida Legislative Investigation Committee, and to bring
with him the branch's membership list.
Two years earlier, the Florida Supreme Court had
held that a previous incarnation of the Committee could
not require production and disclosure of the entire
membership list, but held that the Committee could compel

the branch president to bring the list to an
investigative hearing and compel him to refer to it to
determine if certain known or suspected Communists were
NAACP members. The Committee so ordered.
Mr. Gibson appeared before the committee but did not
bring the membership list. He stated, however, that he
was willing to answer from memory, as best he could, the
Committee's questions as to whether certain named
individuals were members. When given the names and
photographs of fourteen individuals, Mr. Gibson said that
he did not recognize any of them. Mr. Gibson was taken
to court and held in contempt, for failing to bring the
membership list. He was sentenced to six months'
imprisonment. This action was upheld by the Florida
Supreme Court.
The U.S. Supreme Court took Mr. Gibson's appeal. He
contended that bringing the list to the hearing and using
it as the basis of his testimony would interfere with the
right to freedom of association of the members and
prospective members of the NAACP.

In a 5-4 decision, the Supreme Court overruled the
state courts. It based its decision on the fact that,
although the Committee had the authority to conduct an
investigation into the activities of Communists and
Communist organizations, it did not have the right to
investigate the NAACP without there being any indication
that the NAACP was subversive, Communist-dominated or
even Communist-influenced. The dissenters, however, saw
no difference between an investigation of Communist
activity by organizations and Communist infiltration of
It is often observed that one can predict a
justice's opinion by reading his or her description of
the facts of the case. Gibson is a good example of that
observation. The majority and dissenting opinions in
Gibson were founded on different perceptions of the
Committee's investigative focus. Justice Goldberg's
majority opinion explained that the origins of the
controversy dated from 1956, "when a committee of the
Florida Legislature commenced an investigation of the

NAACP," and that the current committee was established in
1959 "to resume the investigation of the NAACP" (Gibson
v. Florida Legislative Investigation Committee. 1963,
p.540). To Justice Harlan and the other dissenters,
however, the Florida Legislature had not been
investigating the NAACP; instead, it "had been
investigating alleged Communist 'infiltration' into
various organizations in Dade County, Florida, including
the Miami Branch of the [NAACP]" (Gibson v. Florida
Legislative Investigation Committee. 1963, p.577).
In a concurring opinion, Justice Douglas saw the
case from a broader perspective. "We deal here," he
wrote (Gibson v. Florida Legislative Investigation
Committee. 1963, p.560) "with the authority of a State to
investigate people, their ideas, their activities." To
Douglas, the right to free assembly was as essential as
the right to free speech, in order to maintain the
opportunity for free political discussion. Moreover, he
noted, "joining groups seems to be a passion with
Americans" (Gibson v. Florida Legislative Investigation

Committee, p.564). In his view, joining a group was
"often as vital to freedom of expression as utterance
itself" (Gibson v. Florida Legislative Investigation
Committee. p.565).
Douglas wrote that the lawful objectives of
investigators should not be balanced against freedom of
association. He pointed out that the public interest in
crime suppression, for example, cannot be balanced
against a suspect's right to an attorney. In fact,
Douglas wondered if a 1928 case that affirmed a State's
authority to compel disclosure of Ku Klux Klan membership
lists was still valid, although he noted that the
decision was based on the particular violent character of
the KKK's activities. He continued: "Whether [a group]
has members who have committed crimes is immaterial. One
man's privacy may not be invaded because of another's
perversity" (Gibson v. Florida Legislative Investigation
Committee. p.572). It was Thomas Jefferson's view,
Douglas observed, that one's ideas and beliefs, speech
and advocacy are no proper business of government. Only

when they turn to action may the government move against
In this case, Justice Douglas expressed well the
concerns of members of extremist groups, or of groups
that are considered extremist by those whose definition
is broader than this paper's. The majority opinion in
Gibson did not contradict him, based as it was on the
lack of NAACP subversive activity rather than on the
value of its members' associational rights.
Seven years later, the New Jersey Supreme Court
dealt specifically with police domestic intelligence in
Anderson v. Sills (1970) Here, the plaintiffs
complained that a state police plan to record the names
of individuals and groups attending demonstrations might
chill their First Amendment right of assembly. The New
Jersey court held that a mere chill to the plaintiffs'
rights was not enough to succeed, since the existence of
many governmental functions necessarily curtail an
individual's activities. To this court, the issue was
not whether a chill existed, but whether the government

activity which resulted in the chill was illegal. Before
remanding the case to the trial court for further
hearings on this issue, the court discussed the
legitimacy of law enforcement intelligence-gathering, in
a passage that is worth quoting for its presentation of
the law enforcement point of view:
The police function is pervasive. It
is not limited to the detection of
past criminal events. Of at least
equal importance is the
responsibility to prevent crime. In
the current scene, the preventive
role requires an awareness of group
tensions and preparations to head off
disasters as well as to deal with
them if they appear. To that end the
police must know what forces exist;
what groups or organizations could be
enmeshed in public disorders. This
is not to ask the police to decide
which are "good" and which are "bad."
In terms of civil disorders, their
respective virtues are irrelevant,
for a group is of equal concern to
the police whether it is potentially
the victim or. the aggressor. The
police interest is in the explosive
possibilities and not in the merits
of the colliding philosophies. And
it must be evident that a riot or the
threat of one may best be ended with
the aid of private citizens who
because of their connections with the

discordant groups can persuade them
from a course of violence. Hence a
police force would fail in its
obligation if it did not know who
could be called upon to help put out
the burning fuse or the fire
(Anderson v. Sills. 1970, pp.684-685,
citations omitted).
The court pointed out that "the preventive role of
the police necessarily implies a duty to gather data"
(Anderson v. Sills. 1970, p.688) along a range even
broader than that encompassed by its investigatory
obligation. Because of the broad legal basis of the
police preventive role, the court felt that it should be
extremely reluctant to curtail intelligence activities
not shown by the plaintiffs to overstep the bounds of
In one of the leading cases concerning domestic
intelligence, it was the U.S. Army, not a police
department, that was on trial. In Laird v. Tatum (1972),
the plaintiffs instituted a class action lawsuit claiming
that the mere existence and operation of a U.S. Army

domestic intelligence program imposed a chilling effect
on the exercise of First Amendment rights of the
plaintiffs. The program, code-named CONUS, had been
created in response to requests to assist local
authorities in controlling civil disorders.
The plaintiffs alleged no specific action of the
Army against them, but based their claims of a chilling
effect on the contention that the Army surveillance
system was not appropriate to the proper role of the
Army, which might, like Westin's photographing
anthropologists (above, p.42), misuse the information in
the future, causing direct harm to the plaintiffs. The
U.S. District Court dismissed the case, but the Court of
Appeals reversed.
By a 5-4 majority, the Supreme Court held that the
plaintiffs had not presented a justiciable controversy
and did not have standing to sue. The majority based
this ruling on the fact that the plaintiffs had not
demonstrated that they had suffered any harm from the
surveillance. In fact, at the oral argument before the

District Court, the plaintiffs' attorney admitted that
his clients were "not people, obviously, who are cowed
and chilled" and that they in fact were quite willing "to
open themselves up to public investigation and public
scrutiny" (Laird v. Tatum. 1972, p.l3fn). The majority
rejected the contention that the plaintiffs could sue on
behalf of "millions of Americans not nearly as forward
[and] courageous" as themselves (Laird v. Tatum. 1972,
p.l3fn, brackets in original).
The Laird decision recalls the earlier words of
Justice Black, an outspoken champion of freedom of
speech, in Younger v. Harris (1971) :
The existence of a "chilling effect"
even in the area of First Amendment
rights has never, been considered a
sufficient basis, in and of itself,
for prohibiting state action (Younger
v. Harris. 1971, p.51).
As was the case in Gibson, above, Laird is a good
example of majority and dissenting opinions that are
based on different perceptions of the facts. To Justice

Burger, writing for the majority, "the total intelligence
operation concerned with potential civil disorders hardly
merits description as 'massive,' as one of the dissents
characterizes it" (Laird v. Tatum. 1972, p.7fn).
Moreover, he pointed out, by the time the lawsuit was
filed Congress and the Army itself had become concerned
with the scope of the program, and it had been cut back
considerably. Finally, the Army had already revised its
policies to limit its domestic intelligence-gathering to
civil disturbance matters of immediate concern to the
To the dissenting Justice Douglas, however,
[t]he present controversy is not a
remote, imaginary conflict.
Respondents were targets of the
Army's surveillance. First, the
surveillance was not casual but
massive and comprehensive. Second,
the intelligence reports were
regularly and widely circulated and
were exchanged with reports of the
FBI, state and municipal police
departments, and the CIA. Third, the
Army's surveillance was not
collecting material in public records
but staking out teams of agents,
infiltrating undercover agents,
creating command posts inside

meetings, posing as press
photographers and newsmen, posing as
TV newsmen, posing as students, and
shadowing public figures (Laird.
1972, pp.26-27).
To Justice Douglas and the other dissenters, the
case should not have been dismissed by the District
Court, and the plaintiffs should have been afforded the
opportunity to prove their allegations of harm.
Laird stands for the narrow rule that subjects of
domestic intelligence do not have standing to sue unless
and until they can demonstrate an injury. As can be seen
in the other cases summarized here, it is articulated
harm to the targets of domestic intelligence----
particularly economic harm, as in employment----that marks
the line behind which law enforcement intelligence
programs generally may safely stand.
For the purposes of this paper, however, the value
of Laird is in two broader aspects. One is Justice
Douglas' articulation, quoted above, of the seriousness
of domestic intelligence from the point of view of its

targets. The other is expressed in the majority's
comments concerning the role of the Army in assisting
local government with the control of civil disorder.
They held that even the Army, which the plaintiffs had
held up as distinguishable from law enforcement, was
entitled to gather domestic intelligence. This passage
from the lower Court of Appeals decision in the case was
quoted with approval by the Supreme Court majority:
In performing this type function the
Army is essentially a police force or
the back-up of a local police
force.... No logical argument can be
made for compelling the military to
use blind force. When force is
employed it should be intelligently
directed, and this depends upon
having reliable information---------in
time. As Chief Justice John Marshall
said of Washington, "A general must
be governed by his intelligence and
must regulate his measures by his
information. It is his duty to
obtain correct information ...."
(Laird v. Tatum. 1972, pp.5-6,
emphasis in original).
Even where plaintiff-extremists have prevailed and
law enforcement agencies were revealed as wrongdoers, the

courts have upheld the government's authority to monitor
extremist groups. In one such victory, the Socialist
Workers Party (SWP), the Young Socialist Alliance (YSA,
the SWP's youth arm), and several of their members,
successfully sued the federal government over the
improper use of informants and undercover agents that had
infiltrated their ranks. During the course of the legal
action, the trial judge enjoined the FBI and its
confidential informants from monitoring an upcoming YSA
The injunction was appealed, and was overturned by
the U.S. Court of Appeals, Second Circuit. There was
evidence in the record that a dissident wing of the SWP
endorsed violence and hoped to convert the YSA into a
violent movement. The Court of Appeals observed:
The FBI has a right, indeed a duty,
to keep itself informed with respect
to the possible commission of crimes;
it is not obliged to wear blinders
until it may be too late for
prevention (Socialist Workers Party
v. Attorney General of the U.S..
1974, p.256).

Moreover, the Court of Appeals noted that the use of
informants by law enforcement agencies need not await the
existence of probable cause for arrest. The Court did,
however, sustain that part of the trial judge's order
that enjoined the FBI from transmitting to the U.S. Civil
Service Commission the names of persons attending the
convention, to be compared against a list of federal
employees---just the activity that Hentoff complained of
(above, p.31). The government conceded that such
attendance would not justify dismissal from or denial of
employment. The Court felt that this concession caused
the balance of interests to tip toward protection of the
plaintiffs' freedom of association.
Ten years later, U.S. Court of Appeals for the
Seventh Circuit agreed that domestic intelligence was
The FBI always has investigated
people who advocate or threaten to
commit serious violations of federal
law, even if the violations are not
imminent; and it always will .... It
need not wait till the bombs begin to
go off, or even till the bomb factory
is found (Alliance to End Repression

v. City of Chicago. 1984b, pp.1014-
This Court agreed also that law enforcement agencies
may investigate a threat that was not so immediate as to
permit punitive measures.against the speaker. The Court
reasoned that "[s]ince the repressive effect of an
investigation is less than that of a prosecution but the
benefits in preventing violent crime may be as great, a
less immediate danger will justify the government's
action" (Alliance to End Repression v. City of Chicago.
1984b, pp.1015-1016).
As recently as 1992, in Pleasant v. Lovell, the
Tenth Circuit Court of Appeals cited that holding in
Alliance with approval. Pleasant involved an
investigation of the National Commodity and Barter
Association (NCBA) by the Internal Revenue Service. The
NCBA, a tax-protest group centered in Colorado, was
considered by federal law enforcement agencies to be a
"far-right" extremist group with ties to other right wing
extremists (Lipsher, 1995). "As important as the First

and Fourth Amendment rights are," the Court of Appeals
held, "the government also may protect its important
interests" (Pleasant v. Lovell. 1992, p.1232). The Court
then quoted approvingly from Gibson:
[T] here can be no question that the
State has power adequately to inform
itself ... in order to act and
protect its legitimate and vital
interests (Gibson_______v._____Florida
Legislative Investigation Committee.
1963, p.539).
In Philadelphia Yearly Meeting of the Religious
Society of Friends v. Tate (1975) the plaintiffs alleged
police behavior that the court agreed would be illegal.
The plaintiffs claimed that the Philadelphia police not
only gathered personal information about them, but made
it available to private employers and the press, and even
announced on a nationwide television broadcast the names
of certain of the plaintiffs as subjects of police
surveillance. The trial court dismissed the case. The
U. S. Court of Appeals agreed that the collection of
information was legal. The Court of Appeals did hold,

however, that the other allegations, if true, constituted
a threat of ham to the plaintiffs' employment
opportunities that, if joined with the absence of a
lawful police purpose, constituted a violation of their
First Amendment rights of "associational privacy and
freedom of speech" (Philadelphia Yearly Meeting of the
Religious Society of Friends v. Tate. 1975, p.1339).
Despite the consistency of the decisions supporting
domestic intelligence authority, even where the
information-gathering activity itself has been improper,
there is case law that challenges the majority view. In
1975 the California Supreme Court decided White v. Davis.
Hayden White, who taught history at UCLA, sued over the
infiltration of undercover Los Angeles Police Department
officers onto the campus. The officers' activities
included the tape recording of some classroom discussion,
including some in White's class. White won.
In his opinion for the California court, Justice
Matthew Tobriner argued that, although the police
unquestionably have a legitimate interest in gathering

information to forestall future criminal acts, they may
not "pursue that function by any and all means." He
found that official surveillance of public intellectual
activity, especially in the academic environment,
threatened free and open discourse, and cited U.S.
Supreme Court decisions to support his contention that
the academic environment deserves special protection
under the First Amendment. He concluded that the alleged
speculative harm to unspecified students was sufficient
to find the LAPD actions to be unconstitutional.
This case is distinguishable from those decided by
other courts because of two unique aspects of California
law. First, White did not sue as a party whose
constitutional rights had been violated. Under the rule
of Laird v. Tatum (above, pp.64ff), he would have had
difficulty establishing standing. California law,
however, gave him standing to sue in his role as a
taxpayer. Thus, White sued as a taxpayer objecting to
LAPD expenditures in an unconstitutional program.
Second, in 1972 California voters had amended their state

constitution to include among their various "inalienable"
rights a right of privacy. The California Supreme Court
based its decision in White on both the state and federal
Morgan (1980) criticized the decision in White on
other, somewhat surprising grounds:
Justice Tobriner's argument may seem
plausible. The problem with its
reasoning, on reflection, is that the
[U.S.] Supreme Court, in deciding in
the Laird case that the plaintiffs
lacked standing to sue, in effect,
decided that no constitutional
violation had occurred in the army's
CONUS intelligence program. The
question of standing and the basic
constitutional question were
operationally congruent in Laird.
One exalts form and obscures
significance by ignoring this central
fact (Morgan, 1980, p.120).
This, despite the statement in the Laird opinion
(p.164) that "our conclusion is a narrow one, namely,
that on this record the respondents have not presented a
case for resolution by the courts."

In addition to the case law examined above, there
are statutes that address privacy interests and domestic
intelligence. The best known is the federal Privacy Act
of 1974. It regulates the procedures by which the
government may collect, maintain and disseminate personal
information. It applies to any federal executive agency,
independent regulatory agency or private contractor that
operates a system of records on behalf of an agency. It
does not apply generally to even federal law enforcement
investigatory records, and it does not apply to state or
local governments (Hayden and Novik, 1980, pp.122-125).
Richardson (1985) discusses the Act at length. He
notes that while many issues of the time were grouped
under the category of invasions of privacy, four areas of
privacy interests dominated discussion: (a) physical
surveillance and wiretapping, (b) mail openings and
burglaries by government agencies, (c) unfair use of
people's records, and (d) the harassment of individuals
for political purposes. But, he notes, the final version
of the Act dealt only with the unfair use of people's

records (Richardson, 1985, p.366). In fact, to
Richardson, the Privacy Act is not a guarantee of
privacy, but rather a federal "code of fair information
practices" (Richardson, 1985, p.368).
The Act does recognize the
individual's interest in government-
held personal data, and it does
restrict somewhat the information
practices of federal agencies. As
regards striking a balance between
individual privacy interests and
legitimate social needs for
information, however, the Act is
without much value or substance
(Richardson, 1985, p.375) .
At least one local law has been enacted. As a
result of revelations concerning the intelligence files
of the Seattle Police Department, in 1979 the Seattle
City Council enacted an ordinance that banned political
surveillance and the collection of information about
someone because of that person's lawful exercise of a
constitutional right. The ordinance requires
authorization from high levels within the police

department when a criminal investigation will enter the
area of free expression. The ordinance also requires
that a civilian auditor conduct periodic audits of the
police files and holds the city government civilly liable
for violations (Donner, 1990, pp.352-353).
Two ordinances were proposed in New York City in the
1970s, provoked by revelations of domestic intelligence
abuses by the CIA and the FBI. These ordinances would
have restricted police electronic or even photographic
surveillance to actual criminal investigations and
required court orders before undercover officers could be
placed within groups or organizations. Another proposed
ordinance provided that individuals on whom the police
kept records that were not related to a criminal
investigation be notified of the existence of the records
and be permitted to inspect and copy them (Bouza, 1976,
pp.161-163) .
In this chapter, various court decisions have shown
that, with few exceptions, the courts have supported the
authority and responsibility of police and other law

enforcement agencies to conduct domestic intelligence
operations. On the other hand, I believe that the courts
have been slow to clearly define a right to privacy
because, as we have seen in previous chapters, our
society itself is confused about privacy, because we
continue to struggle to define and find a balance between
our need for privacy, our need for socialization and our
inquisitiveness toward each other.

As we have seen, American history, tradition, and
law present a long-standing and no doubt eternal conflict
between the interests of government, as perceived by the
government, and the interests of the individual, as
perceived by the individual. There are additional
perspectives that should be considered, however, when we
discuss domestic intelligence and privacy.
Why do the police target extremist groups for
intelligence-gathering? Of course, much of the
justification involves the seriousness of the alleged
plans of some of the groups. Additional justification is

based, not on the nature of the groups, but on the nature
of the investigations. The Attorney General's guidelines
for FBI domestic intelligence-gathering, adopted in
response to the criminal acts and other wrongdoing of the
FBI's COINTELPRO operations against extremist groups in
the 1960s and 1970s, went to great lengths to define and
justify legitimate investigations. An early version of
the guidelines was involved, and quoted at length, in
Alliance to End Repression v. City of Chicago (1984a,
According to the guidelines (which restricted only
the FBI), the groups had to have been ones that sought to
further political or social goals through activities that
involved force or violence. The guidelines went on to
explain that the targeted organizations provided a life
and continuity of operation that were not normally found
in regular criminal activity, and so, the intelligence
investigation may have had to continue even after a
member of the group was convicted of a crime. This
justification parallels the criminal law theory that

conspiracies may be punished even if their plans were
never executed, because conspiracies pose a danger in
themselves (LaFave and Scott, 1986, p.530).
There are additional reasons why the police target
extremist groups. These are reasons that are not argued
in court, and by discussing them I do not mean to
minimize the formal justifications for domestic
intelligence. Nonetheless, these reasons should be
examined if we are to understand the conflict between
domestic intelligence and privacy.
First, police officers study domestic terrorists and
find that, until they committed their first terrorist
act, they appeared to be no different from the members of
non-violent extremist groups. The police ask themselves
if one or more of the seemingly innocuous extremists they
are watching today will bomb a government building
tomorrow. Intelligence officers of the Denver Police
Department knew that Denver radio talk show host Alan
Berg was under surveillance in 1984 by members of the
white supremacist Aryan Nations, but did not anticipate

the danger. A few weeks later Berg was murdered by the
people who had been watching him.
The police fear of underestimating people is not
limited to domestic intelligence. It is an "officer
safety" issue emphasized in training: Did the driver you
just pulled over run the stop sign because he didn't see
it, or was his mind on the bank robbery he just
committed? Police officers are paid to be suspicious;
one should not complain when they are. This police habit
is complicated by the fact that many officers hope the
driver did just rob a bank, and that the extremist they watching is a terrorist. A movie character wrongly
accused of treason was a victim of this tendency:
But, Uncle Philip! [cried the
heroine.] The police say this man is
really dangerous!
Of course they do. How can they be
heroes if he isn't dangerous?
("Saboteur," 1942)
Another reason why the police monitor extremist
groups is that the groups challenge the status quo.
Since government agencies represent the status quo, there

is a knee-jerk government defensive reaction to the
activities of extremist groups. In fact, Donner (1990),
defined "political repression" itself in this context:
[P]olitical repression ..., in the
context of policing, may be defined
as police behavior motivated or
influenced in whole or in part by
hostility to protest, dissent, and
related activities perceived as a
threat to the status quo (Donner,
1990, p.l).
As an example, he described "an intimidating
practice" (Donner, 1990, p.2) used by the police at
demonstrations: the assignment of note-takers, sometimes
in uniform, to record what was said. Donner's example
complements the observation by Schultz and Norton (above,
p.12) that police surveillance is itself a crime
A related (but not quite the same) reason why law
enforcement and other government agencies target
extremist groups is that the agencies represent
authority, and extremist groups challenge authority.

Therefore, the groups challenge the agencies themselves
and, by implication, the members of those agencies. The
challenge may be to the status quo, to the agencies'
purpose, to their ethics, or to the lawfulness of their
procedures. But, in one way or another, the challenge is
to the agencies' power. Power is something that the
government depends on for its existence and,
unfortunately, power often becomes something that
government employees depend on for their self-esteem.
The police investigate extremist groups for still
another, quite simple, reason. They investigate them
because they can. To a certain extent this is what Shils
(1966) has referred to, angrily:
A great deal of the intrusion into
personal privacy is not only an
immoral affront to human dignity, it
is also quite useless and unnecessary
from any serious standpoint. Much of
it is unnecessary to effective
government, efficient administration,
national security, the progress of
knowledge, or industrial
productivity. Much of it is the
frivolous self-indulgence of the
professionals of intrusion (Shils,
1966, p.306).

This "frivolous self-indulgence" is what sells
supermarket tabloids. When practiced by those in a
position of power, however, the results can be serious.
Although Shils (who was describing both public and
private intelligence) was right, frivolous self-
indulgence is not what I am suggesting. Suppose that,
instead of asking why the police target extremist groups,
we ask a different question: Why don't police
intelligence units target everyone suspected of criminal
activity? The answer is that it's too difficult to
target all criminals. Extremist groups are watchable.
In their attempts to influence the general public, they
advertise their agendas and hold demonstrations. Members
are interviewed by the news media. Like the plaintiffs
in Laird, many members are "not people, obviously, who
are cowed and chilled" and in fact are quite willing "to
open themselves up to public investigation and public
scrutiny" (above, p.66). This makes surveillance awfully

Analogy may be made to some other law enforcement
operations. The most efficient are "stings" in which the
police pretend to be buyers of stolen property, or
pretend to be giving away prizes to lucky winners who
just happen to be fugitives---the thieves and fugitives
come to the police, and come in groups. Extremist groups
essentially do the same. But unlike the thieves and
fugitives, whom the police must somehow organize,
extremist groups are already organized (as are
traditional organized crime groups, which are also
traditional targets of intelligence units).
Moreover, the voting public generally supports law
enforcement collection of information on extremist
groups. By challenging and defying laws that most people
accept and obey, extremist groups challenge and defy the
values of the very people whom the groups attempt to
influence. And, of course, the violent extremist groups
---perhaps better described as terrorists----intend to and
succeed in putting the public in fear of their lives.
Following the April, 1995, car-bombing of the Federal

Building in Oklahoma City, a CBS News poll found 76% of
Americans willing to give the government more authority
to infiltrate possible terrorist groups, with 50% willing
to give the government that authority even if it meant
spying on groups that had nothing to do with terrorism
("Poll: Empower U.S. to fight terrorism," 1995). An
Associated Press poll taken a few days later reported
that 54% of U.S. adults believe that the government must
try to stop terrorists, even if it intrudes on rights and
privacy ("Skeptics question constitutionality of anti-
terrorism plan," 1995). Compare these results to those
of 1990 (above, p.42), when 79% said that they were
highly concerned about threats to privacy.
In this chapter I have analyzed the domestic
intelligence behavior of law enforcement agencies. That
behavior is motivated by reasons that are legitimate and
mandated by the agencies' legal responsibilities. That
behavior is motivated also by less obvious, often subtle
reasons that may be just as powerful, just as there are

subtle reasons that contribute to all human behavior,
including, as we have seen, feelings about privacy.
Motivations both obvious and subtle must be taken
into account when addressing procedures to deal with the
issues surrounding domestic intelligence and privacy. In
the next chapter, I will attempt to do so.

In his Letter of Transmittal of the proposed
Constitution, George Washington offered these thoughts
Individuals entering into society,
must give up a share of liberty to
preserve the rest. The magnitude of
the sacrifice must depend as well on
situation and circumstances as on the
object to be obtained. It is at all
times difficult to draw with
precision the line between those
rights which must be surrendered, and
those which may be reserved (George
Washington, Letter of Transmittal to
Congress of Proposed Constitution, in
Hamilton et al., 1937, pp.585-586).

Etzioni (1991, p.41) echoed General Washington's
sentiments, arguing that citizens should accept some
limited "adjustments" of their individual rights and some
enhancements of their moral and public commitments, in
exchange for improved public safety, less drug abuse,
order in the schools and the advancement of "other
compelling shared needs." Like General Washington,
Etzioni (1991) recognized that
[w]hat some consider to be a
diminution of rights, however small
in the eyes of some, will be viewed
by others as a threat to basic
freedoms, and by still others as
merely a reinterpretation of recent
legal traditions .... The public, it
must be acknowledged, finds it
difficult to deal in fine gradations,
especially when the issues involved
are highly emotional (Etzioni, 1991,
p 41) .
Similarly, Westin (1967) maintained that there is a
balance that must be struck between the rights of
citizens to privacy and the obligations of law
enforcement agencies to collect, keep, and disseminate

information on those citizens. Westin's concern with
erosion of privacy interests, by government and by
private industry, was satisfied by the identification and
enforcement of that balance. Westin worried less about
what or how much information was gathered, than about how
it was stored and what use was made of it (Westin, 1967,
pp.370-377). He concurred with Shils:
In over-all terms, the goal of a
liberal society is to achieve a state
of political "civility," which Shils
defines as a condition in which there
is enough privacy to nourish
individual creativity and group
expression; enough publicity of
government affairs to let the public
know the facts necessary to form
judgments in political matters; and a
small area of secrecy for government
to preserve the integrity of certain
secret information and the privacy of
internal policy-making processes
(Westin, 1967, p.26).
Rule et al. (1980, pp.73-82) disagreed with Westin.
They criticized Westin's willingness to compromise,
arguing that the real problem is the over-collection of

information in the first place. Gross (1971, p.180)
challenged the assertion by anyone that the interest in
privacy must be balanced against the interest in
security. That assertion assumes that the greater the
ability of the government to watch what is going on, or
obtain evidence of what is going on, the greater its
ability to prevent crime. But, he asked, is that
assumption valid? Are all crimes suppressible? Gross
wondered if, assuming the existence of a generally
efficient system of law enforcement, any increase in
efficiency would only increase punishments, not decrease
crime. Furthermore, he argued, trading privacy for
security in order to live a good life is illogical
because privacy, like peace and prosperity, is itself
part of what is meant by a good life.
With the benefit of these thoughts by Washington,
Etzioni, Westin, Gross and Rule, I will address the
relationship, or balance, between the privacy interests
of extremist groups and the intelligence-gathering
interests of law enforcement agencies. Of course, the