Senator Sam Ervin And the Army Spy Scandal Of 1970-1971: Balancing National Security and Civil Liberties in A Free Society

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"For the past four years, the U.S. Army has been closely watching civilian political activity within the United States." So charged Christopher H. Pyle, a former intelligence officer, in the January 1970 edition of Washington Monthly. [1] Pyle's account of military spies snooping on law‑abiding citizens and recording their actions in secret government computers sent a shudder through the nation's press. Images from George Orwell's novel 1984 of Big Brother and the thought police filled the newspapers. Public alarm prompted the Senate Subcommittee on Consti­tutional Rights, chaired by Senator Sam Ervin of North Carolina, to investigate. For more than a year, Ervin struggled against a cover‑up to get to the bottom of the surveillance system. Frustrated by the Nixon Administration's misleading statements, claims of inherent executive powers, and refusals to disclose information on the basis of national security, the Senator called for public hearings in 1971 to examine "the dangers the Army's program presents to the principles of the Constitution."[2]

Sam Ervin, the "ol' country lawyer" from Morganton, intended his hearings to focus on the narrow topic of how the Army's domestic surveillance of American civilians threatened civil liberties. He wanted to illustrate some "down home truths" about how the federal government should never trample on his beloved Constitution or endanger the privacy rights of individual Americans. But the Senator found himself engaged in an extended public debate with the Nixon administration over one of the central questions of the American political experience--a question that has recently taken on a renewed significance since the September 11, 2001, terrorist attacks on the World Trade Center and the Pentagon--how to balance the constitutional rights of the individual with the national security needs of the state.

Photo courtesy The Charlotte Observer

Although he did not know it at the time, Senator Ervin had started down the road to Watergate. It was during the subcommittee's investigation of Army surveillance in 1970 and 1971 that Ervin stumbled onto the secretive programs and questions of executive power that would lead him to chair the famous Watergate Hearings in 1973. Ironically, it was at the same time that Ervin began his investigation into military spying that Richard Nixon and his men began their own political espionage that put them, too, on the road to Watergate.

The Cover Up

Sam Ervin was one of the most famous North Carolinians of the twentieth century. During the Watergate Hearings in 1973 his spirited defense of constitutional government against Richard Nixon's "imperial presidency" brought the Senator media attention and national fame. Ervin's legal witticisms and crackerbarrel humor endeared him to a disenchanted public suffering through a long national crisis. But Ervin's reputation as a folksy country lawyer dedicated to protecting individual rights did not begin with Watergate. The roots of his civil libertarian philosophy and unique rhetorical style ran back through his long political career and tapped deep into the political culture of his native state.[3]

In 1925, while serving in the North Carolina House of Representatives, Ervin helped to defeat a bill that would have outlawed the teaching of evolution in public schools. The young representative from Burke County argued that the proposed legislation served "no good purpose except to absolve the monkeys of their responsibility for the human race." In 1954, during his first year in the United States Senate, Ervin took on Senator Joseph McCarthy in a speech in which he compared the communist-hunting senator from Wisconsin to Uncle Ephraim Swink, an arthritic mountaineer from down home in North Carolina. According to Ervin, when Uncle Ephraim was asked at a revival meeting to say what the Lord had done for him, he struggled to his feet and declared, "Brother, he has might nigh ruint me." And that, Ervin suggested, is what McCarthy had done to the Senate.[4]

In the early 1960s, the Senator launched several civil libertarian crusades from his position as chair of the Subcommittee on Constitutional Rights. In a series of successful subcommittee hearings he exposed alarming restrictions on the constitutional rights of the mentally ill, military service personnel, American Indians, and indigent defendants who could not afford bail. In each case he managed to attract enough media coverage and public outrage to pass corrective legislation. But the subcommittee had been less successful drawing the public's attention to another of Ervin's primary concerns--the danger government computers and data banks posed to the right to privacy.[5]

Then, one winter morning in 1969, Christopher Pyle walked into the subcommittee offices and told the surprised staff that the United States Army was spying on ordinary American citizens and keeping illegal dossiers on their domestic political activity in its secret computers. Here was the break Ervin had been waiting for, a sensational example of how government data collection threatened individual civil liberties. A few weeks later, Pyle's expose in the January 1970 edition of the Washington Monthly brought more public attention to the privacy issue than Ervin and his subcommittee had been able to generate in years.

According to Pyle, the U.S. Army Intelligence Command for the Continental United States ("CONUS intelligence") included more than one thousand undercover agents operating in a nationwide system with more than three hundred offices.[6] Agents sent their reports through a national teletype network to Fort Holabird, Maryland, where the Army kept its central computer. A staff of Army analysts filed these reports into a data bank that Pyle claimed "included descriptions of lawful political activities of civilians wholly unassociated with the military." Various publica­tions came from this computer, including a booklet nicknamed the "Blacklist" which CONUS sent to commanding officers around the country to assist them in identifying "people who might cause trouble for the Army."[7]

Pyle reported that the military had expanded the program far beyond its original purpose. He believed that the Pentagon activated the system in 1965 in order to gather logistical information for the Army's use during civil disturb­ances. But the increasing number of riots in the late 1960s and the military's insatiable desire for intelligence resulted in Army agents spying on all types of political activity. "Today, the Army maintains files on the membership, ideology, programs, and practices of virtually every activist political group in the country," Pyle charged, ". . . including such non­violent groups as the Southern Christian Leadership Conference, Clergy and Laymen United Against the War in Vietnam, the American Civil Liberties Union, Women Strike for Peace, and the National Association for the Advancement of Colored People."[8]

Pyle's predictions for the future were equally alarming. "If the Army's fascination with the collection of domestic intelligence continues to grow as it has in the recent past," he cautioned, "the Intelligence Command could use military funds to develop one of the largest domestic intelligence operations outside the Communist world."[9] Pyle's greatest fear, however, stemmed from the traditional American suspicion of unchecked power. He pointed out that neither Congress nor the courts had provided sufficient checks on the CONUS system. In several cases, intelligence officers had even kept the Army's civilian leaders in the dark. This lack of oversight led Pyle to warn that someday unscrupulous men might gain control of the govern­ment's growing domestic surveillance system and use it as "a weapon to be wielded against their personal and political foes"--a prophetic remark.[10]

Although Pyle succeeded in bringing the secret CONUS program to the public's attention, he left many apprehensive Americans wanting to know more, including Sam Ervin.[11] The Senator joined more than a dozen other congress­men from both political parties in ordering the Army to issue "an immediate explanation." [12] From the floor of the Senate Ervin declared, "Clearly, the Army has no business operating data banks for surveillance of private citizens; nor do they have any business in domestic politics." He went on to question the constitutionality of an "ever‑curious" Executive Branch secretly watching and maintaining files on law‑abiding Americans. He called the Army's surveillance program "a violation of the First Amendment rights of our entire nation."[13]

Instead of answering Ervin's concerns, the Army chose to cover up. Robert E. Jordan III, Army General Counsel, froze all responses to congressional inquiries. Agents received orders to gather only "essential elements of information," and not to discuss the CONUS operation with any civilian.[14] Behind the scenes intelligence officers at Fort Holabird removed from the files the embarrassing items to which Pyle had referred in his article.[15] Officers also telephoned agents across the country telling them to hide, but not destroy, any files until the controversy blew over.[16] To organize its response to the crisis, the Pentagon formed a "task group" which met in the "Domestic War Room" deep in the basement of the Pentagon. As one member of that group later recalled: "[We] proceeded from the start to deny any and all charges, factual or otherwise."[17]

The military intelligence bureaucracy fought back tenaciously against members of Congress, reporters, or any other American citizen who wanted to know more about their highly questionable domestic surveillance system. In the name of defending democracy and freedom, the officers in charge of the secret national security program acted in a manner more consistent with totalitarian regimes. In order to cover up the excesses of their domestic spying, CONUS commanders throughout the country began to replace all of their newer agents with older career soldiers.[18] Intelligence units received orders "to just hide it, get it out of the way, this will all blow over."[19] At some bases they destroyed the data but kept the "input" (the computer keypunch cards), or copied the information onto microfilm before destroying it.[20] As one clerk later recalled, "The order didn't say to destroy the information, just destroy the Compendium [a computer data bank]."[21] Typical were the actions of the officers in the 116th Military Intelligence Group at Fort McNair in Washington D.C. who classified all of their files and threatened anyone disclosing anything about their domestic surveillance would be court‑martial or prosecuted in civilian court for violation of national security."[22]

The Army supplemented its cover-up by employing a public relations strategy of justifications, limited confessions, and promises to sin no more. First, the Army defended the CONUS system by claiming to need information on potential civil disorders so that it could protect its facilities and carry out its responsibility to back up local authorities during domestic riots. Then General Counsel Robert Jordan wrote to Ervin admitting that in the past the Army had operated a computer data bank "with names and descriptions of individuals who might be involved in civil disturbance situations," a polite way to describe the "blacklist." But Jordan assured the Senator that after a recent review the Army had determined this information to be beyond its "mission requirements," and he declared that "all copies of the identification list have been ordered withdrawn and destroyed." He also guaranteed that "no computer data bank on civil disturbance infor­mation is being maintained."[23] Apparently, Jordan hoped that by terminating CONUS's most objectionable practices and presenting a contrite attitude he could appease the Army's congressional critics while preserving the Army's autonomy over its domestic intelligence system.

At first, the Army's cover up succeeded. As fresh news events crowded into the public's attention during the spring of 1970, and other issues demanded more of Congress's time, the pressure on the Army faded. Nixon's invasion of Cambodia, the massive protests against this extension of the Vietnam War, and the shootings at Kent State pushed the Army scandal off the newspapers' front pages. Eventually, only Sam Ervin and the staff of his Subcommittee on Constitutional Rights, which now included Christopher Pyle as a special consultant, were pursuing the issue of the Army's domestic spying. In a manner that anticipated the Watergate story, a cover-up based on justifications, limited confessions, and solemn promises almost succeeded in killing any interest in the scandal. But as would also happen with Watergate, a few investigative reporters kept digging for new leads, and Senator Ervin persisted in his conservative crusade to protect the constitutional right to privacy from what he considered to be the ever-growing danger of an activist federal government.

The Senator

To some Washington observers it seemed strange to see one of the South's most conservative senators leading the attack against the Army's domestic surveillance program. Ervin's consistent opposition to civil rights, his support of the Vietnam War, and his reputation as a defender of the free enterprise system hardly seemed to square with what in the 1960s seemed to be a "liberal" stand against the Army. As one newspaper stated, "Senator Sam Ervin is, to us, a strange man. He is ultra‑conservative . . . until it comes to interpreting the U.S. Constitution and especially the First Amendment; then he is a howling liberal."[24] But to most North Carolina journalists, Ervin's criticism of the Army fit comfortably with the civil libertarian image he had projected for the past sixteen years as their senator. "Whatever the current fashion, liberal or conservative," the Charlotte Observer reported, "you won't find him on either side. While everybody else is running from right to left and back, he's following an inner‑directed course, [which is] . . . the straight line, solid concept he holds of what the U.S. Constitution means."[25]

Ervin had always explained his seemingly inconsistent positions by claiming to be just "preserving the Constitution."[26] He insisted that he would oppose any government action that threatened to interfere with an individual's rights; no matter if it was a liberal proposal to increase the hiring of African Americans by instituting quotas, or an Army program to maintain national security by monitoring civilian political activity.[27] Ervin distrusted government power. He often repeated the advice given to him by Morganton's old-time philosopher Lum Garrison. When, as a young man, Ervin prepared to go to the North Carolina legislature for the first time back in the 1920s, Garrison suggested: "Pass no more laws, and 'peal half of those we've already got."[28]

Another basic tenant of Ervin's political philosophy was his belief in an individual's right to privacy. There is some irony in the fact that Ervin, a die-hard southerner and the Senate's foremost champion of a strict construction of the Constitution, became one of its most distinguished advocates of the constitutional right to privacy. The Founding Fathers had not actually written a right to privacy into the Constitution. Ervin, however, agreed with those legal scholars who argued that the implication was clearly there, located in the Bill of Rights and the Fourteenth Amendment. The Senator concurred with Supreme Court Justice Louis Brandeis who characterized "the right to be left alone" by the government as "the most comprehensive of rights and the right most valued by civilized men." Ervin frequently quoted Brandeis's statement that "any act or policy or program of government which deprives a person of his freedom; any use of power which attempts to make him conform his intellectual and political views and actions to the prevailing opinion of the day is an act which deprives him of his privacy and infringes on those rights secured by the First Amendment."[29]

Senator Ervin claimed that the origins of his concern for the right to privacy sprang from his family's roots in the foothills of North Carolina. Sam's father had been outraged by the high-handed practices of the federal revenuers who roamed the countryside looking for moonshiners. "My father always deplored officers going in and searching private dwelling places without any warrant. He made it clear in no uncertain terms that he didn't think actions of that kind had any place in a free society. So I attribute my becoming interested in things like this to my father's very pronounced feelings."[30]

Ervin's commitment to privacy rights can be traced back to other regional sources as well. Some of the Senator's biographers have suggested that his interest in privacy reflected an old fashioned, small southern town tradition of protecting personal idiosyncrasies and individual differences in an increasingly homogeneous world, or, as Ervin himself put it, the right "to have and hold and even enjoy our anxieties, allergies and our aspirin tablets."[31] The right to privacy also dovetailed nicely with Ervin's reverence for the southern constitutional tradition that denounced any federal government intrusion into a citizen's life. In his definitive study, Privacy and Freedom, Alan Westin identifies three of the ideas celebrated in the South's constitutional tradition--individualism, the right to a private associational life, and civil liberty based upon a belief in limited government power--as the basic privacy-supporting values in American society.[32]

All of these factors undoubtedly played a role in forming Ervin's growing interest in the right to privacy, but one additional regional influence must also be taken into account--the Senator's opposition to civil rights. Some of the first citizen complaints that attracted Ervin to the issue of privacy involved the new questionnaires asking government workers to identify their race. Ervin learned of this practice soon after the heated political battle over the Civil Rights Act of 1964, and he held his hearings on government employee's right to privacy at the same time that he was fighting against HEW's controversial school desegregation guidelines that required school districts to meet numerical standards of racial balance after 1965.

Photo courtesy The Charlotte Observer

Ervin seized upon the Civil Service Commission's new minority group status questionnaires as yet more proof of the Johnson Administration's plan to establish racial quotas. Commission Chairman John Macy testified before Ervin's subcommittee that the questionnaires's only purpose was to detect agencies where employment discrimination existed, and he insisted that the suggestion of racial quotas was not only untrue but "unthinkable." But Ervin maintained that the questionnaires--like racial "indoctrination" lectures, sensitivity training sessions, and required off-duty activities in support of the administration's civil rights goals--represented preferential treatment of African Americans and an unconstitutional extension of governmental power. As was always the Senator's practice, he claimed that he was not attacking these practices because they promoted racial justice, but because he believed that they endangered another constitutional right, in this case government workers' right to privacy.[33]

It was not the first time the right to privacy had served as a weapon in the South's defense against civil rights. During debates over the Civil Rights Act of 1960, the southern bloc argued that the constitutional right to privacy prevented the federal government from interfering with an individual's ability to discriminate in his or her selection of marital partners, family members, or friends. According to Senator Russell Long of Louisiana, the right to privacy "includes the right to join private clubs which admit as members only persons of one's own race, the right to send one's children to private schools which admit as students only persons of one's own race, and the right to instruct and urge one's children with whom to associate."[34] In 1965 Senator Allen Ellender of Louisiana posited that the right of privacy precluded HEW from interpreting the Civil Rights Act of 1964 as a mandate to force the racial integration of the public schools: "The far-reaching implications of such an interpretation are indeed frightening. Federal power can be used in this manner to coerce private clubs, any fraternal organization, any religious or social organization--and gradually creep into one's own home."[35] In this context it is difficult not to conclude that Ervin's new interest in the right to privacy was, in part, related to his ongoing defense of the racial status-quo in North Carolina.

Both the national and North Carolina press corps questioned Ervin's motivations for choosing to fight against government intrusions into government workers' privacy. Responding to the controversy over the minority identification questionnaires, John Cramer of the Washington Daily News wondered "how much of the resentment springs from race bias on the part of the protesters, from an honest conviction that the Equal Employment Opportunity drive in Government is evolving into a program of discrimination-in-reverse, or from a belief that the questionnaire involves an unwarranted invasion of privacy?" He observed that Ervin had publicly emphasized the latter point, but even reporters in the Senator's home state suggested that he had been "attracted to his crusade by a fear that the Civil Service Commission was moving toward the establishment of a quota system for the employment of Negroes."[36]

As in most aspects of Ervin's career, race played a significant role in shaping the Senator's beliefs and behavior. It is impossible to determine the extent to which his racial prejudice generated his interest in the right to privacy, yet is naive to dismiss its influence altogether. Ervin built his emerging civil libertarian ideology upon a constitutional philosophy that had been designed by generations of southerners to rationalize and defend Jim Crow segregation. As the concept of privacy became the primary expression of his civil libertarian ideology, the Senator naturally made sure that it harmonized with his opposition to civil rights.[37]

Ervin's new crusade for privacy may have grown out of a rural, southern, and conservative civil-libertarian tradition, but it earned accolades from both sides of the political spectrum. Conservatives, who had long considered the Senator as their constitutional champion, interpreted Ervin's attacks on Big Brother as attacks on big government, and they understood his civil liberty rhetoric as shorthand for opposing welfare, labor unions, and civil rights. Liberals, who had long distrusted Ervin, began to offer their grudging respect for his surprising, if somewhat confusing, civil libertarian record. Many of Ervin's old ideas about the rights of individuals against government power began to take on a new relevance for liberals in an age of huge bureaucracies, computers, electronic surveillance, and, of course, military domestic intelligence.[38]

The President

Ervin's workload as a crusader for privacy increased dramatic­ally with the advent of the Nixon Administration. A few months after Nixon's inauguration in 1969, Ervin learned that officials in the Treasury Department checked library lending lists to discover which books certain Americans read.[39] Soon after, he heard that the Secret Service was trying to predict who might harm public officials by asking all government employees to report anyone who insisted on personally contacting high government officials or who attempted to embarrass the President‑‑a description which would fit Ervin and many Democratic congressmen![40] Also in 1969, Ervin discovered that HEW maintained a blacklist of U.S. scientists who the agency would not hire because of their opposition to the Vietnam war.[41] There were also rumors that the Post Office Department opened and read the overseas mail of American citizens.[42] In each case, Ervin responded with a vigorous protest and demanded a full report, but he seldom received a satisfactory answer. By the end of Nixon's first year in office, Ervin's crusade for privacy had retreated into a defense against the Administration's attacks on civil liberties.

By far the biggest battle between Nixon and Ervin prior to the Army spying scandal dealt with the threat to privacy of the President's "law and order" proposals, many of which foreshadowed George W. Bush's anti-terrorism programs of 2001. In 1969, Nixon sent the D.C. Crime Bill to Congress as a model for the fifty states to follow. As it progressed through the legislative process, it picked up more and more provisions, most of them proposed by the Justice Department to serve as weapons in the President's "war on crime."[43] When the Omnibus Crime Bill, as it came to be called, emerged from committee in the summer of 1970, it contained measures to: Make jury trials optional for juveniles; increase police wiretapping powers; allow "preventive detention" of persons accused of dangerous crimes; and authorize "no‑knock" searches by police. Ervin attacked the "ominous" crime bill, as he named it, with a four‑hour speech in which he said the measure was "as full of unconsti­tutional provisions, unjust provisions, and unwise provisions as a mangy hound dog is with fleas." He called the bill "a garbage pail of some of the most repressive, near­sighted, intolerant, unfair, and vindictive legislation that the Senate has ever been presented."[44] Despite his spirited opposition, the bill passed overwhelmingly with most conservatives voting for it, and only a handful of liberals standing with Ervin against it.

Ervin's battle against Nixon's "law and order" proposals marked the turning point in the evolution of his new public image. Although he lost the vote, he renewed his reputation as a defender of individual rights. Ervin's privacy crusade was emerging in the press as a battle between an old country lawyer who was concerned for civil liberties, and an expedient President who was willing to put necessity above constitutional principles.[45] The coalition of liberal and conservative admirers that would rally around Ervin during the Watergate hearings was first brought together during his opposition to the Omnibus Crime Bill in 1970. His fight against the Army's intelligence abuses, which began the same year, strengthened that coalition even more, and directed its attention to the issue of domestic surveillance.

Yet, in spite of what he viewed as the President's repeated attacks on the right to privacy, Ervin did not see a direct connection between the Nixon administration and the Army's intelligence abuses when Pyle first broke the story in January 1970. It seemed that the military intelligence apparatus had grown out of control during the presidency of Lyndon Johnson, and that the present Republican administration had little to fear from a full disclosure of the facts. The first hint that the White House might be more directly involved came when Robert Jordan vaguely implied in his February letter to Ervin that the Army might transfer the responsibility for gathering intelligence on civil disturbances to the Justice department.[46] Ervin was frustrated in his attempts to learn more about the proposal.

The Nixon administration's lack of cooperation troubled him, especially in light of the President's recent moves against individual rights in so many other areas. Several years later during the Watergate hearings, after listening to all the descriptions of political wire­tapping and illegal surveillance, Ervin recalled his investigation of the Army's domestic spying and remembered his puzzlement at that time: "I would expect the Republicans to be glad for the committee to bring out this evidence of how the Democratic administration permitted the Army to spy on civilians. I could not understand it. But now I do, since the revelations of these [Watergate] things were right in harmony with the spirit of these plans of 1970."[47]

The Senator's misgivings continued to grow in April, 1970, when key officials in the White House told The New York Times that the President feared the rising tide of bombings and violent anti‑war demonstrations represented a severe internal security risk, and he planned to meet this threat by expanding the Justice Department's domestic surveillance apparatus. The plans included stepping up the use of informers, undercover agents, and wiretaps in order to monitor militant left‑wing groups and individuals. There was little doubt that real danger did exist. A survey conducted by the FBI of 776 bombing and arson attacks during the period from September 1, 1968 to March 15, 1970, revealed total property damages of nearly $24 million. Eleven deaths were directly attributable to these incidents, six of them being self-inflicted through premature or accidental explosion. In a single two-week period in March, 1970, the New York City Police Department recorded more than 2,200 separate bomb scares. The Nixon administration cited these and other troubling statistics to argue that the government must increase its ability to keep track of dangerous radicals and subversives. One Nixon aide dismissed the threat to civil liberties posed by domestic spying as a "hangup in the question of snooping," and he argued that "the greatest safeguard to the rights of individuals is to have good information on what the [radical fringes] are doing."[48]

Attorney General John N. Mitchell provided the legal basis for the increased domestic surveillance soon afterward. According to the Attorney General's spokesman, the Administration had the right to collect and store information on civilian political activity because of "the inherent powers of the federal government to protect the internal security of the nation. We feel that's our job." Thus, the Administration claimed a virtually unchecked power‑‑not subject to Congressional oversight --to carry out unlimited domestic surveillance on anyone it wished.[49]

Ervin was outraged. When both the army and the Justice Department failed to provide the senator with a full accounting of their new domestic intelligence systems, Ervin decided to make good on his threat to hold public hearings in his Subcommittee on Constitutional Rights.[50] In a speech on the Senate floor he blasted the army for maintaining "a deterrent power over the individual rights of American citizens."[51] But for the first time Ervin aimed his verbal assault at the White House as well by linking the military's domestic spying with the Nixon administration's nebulous new surveillance plans. He charged that the army's intelligence data‑banks "appear to be part of a vast network of intelligence­‑oriented systems which are being developed willy‑nilly throughout the land, . . . [representing] a potential for political control and intimidation which is alien to a society of free men."[52]

To combat this danger Ervin announced that his Subcommittee on Consti­tutional Rights would hold hearings on "Federal Data Banks, Computers, and the Bill of Rights."[53] For the first time since the Cold War began, a congressional committee launched a public investigation on the executive branch's domestic intelligence agencies. The Senator planned to include the sensational issue of military domestic spying in his larger crusade for privacy and use the hearings as a means of generating public pressure against both the Army and the President. Ervin elaborated this strategy in his autobiography: "Some of the evils I opposed were substan­tially alleviated when they were exposed to public view in committee hearings and on the Senate floor. After all, sunlight is a powerful purifier."[54] It would not be the last time Ervin would use hearings to focus sunlight on the suspicious practices of the Nixon administration.

The Hearings

Senator Ervin chose the old Senate Caucus Chamber as the setting for his confrontation with the administration. It was a room filled with history. The Teapot Dome hearings, the Army‑Mc­Carthy hearings and other scandalous dramas of the past had been acted out there. Its Corinthian pillars, high chandeliers, and marble walls provided just the backdrop Ervin wanted for his hearings on the military's domestic spying. The Senator would return to this same room two years later to hold his hearings on Watergate.[55]

When Ervin entered the chamber on the morning of February 23, 1971, and took his seat at the committee table, reporters clicked on their tape recorders and the television cameras zoomed in on the Senator. Sitting there in the blinding light Sam Ervin must have felt a sense of victory. Finally he had attracted the media attention he had lacked during all of his previous hearings on the right to privacy. Finally his warnings about the danger of unchecked executive power would be heard by a national audience. Some observers detected a triumphant gleam in the Senator's eye.[56]

One of the traditional high‑points of a congressional hearing is the chairman's opening statement, and Ervin was well aware of the significance of the moment. Since his priority for the hearings was to highlight the issue of privacy, he began by attacking the government's expanding "infor­mation power" which threatened civil liberties. "These hearings were called," he declared, "because Americans in every walk of life are concerned about the growth of government and private records on individuals. . . . They are concerned that they are constantly being intimidated, coerced, or pressured into revealing information to the wrong people, for the wrong purpose, at the wrong time."[57]

Then, playing to the crowd and the cameras, Ervin lifted a heavy, leather‑bound Bible and explained: "This particular family Bible weighs eleven pounds. Contrast it to this piece of microfilm, two by two inches, which contains on it 1,245 pages of a Bible, with all 773,346 words of it. This means a reproduction of 62,500 to one." Ervin paused briefly before continuing, "Someone remarked that this meant the Constitution could be reduced to the size of a pinhead. I said I thought maybe that was what they had done with it in the Executive Branch because some of those officials could not see it with their naked eyes." The audience laughed, the Senator smiled, and the television cameras captured it all. As expected, Ervin was sharpening his message with some down‑home country humor.[58]

When Ervin chose to fight the Army's domestic surveillance system by holding public hearings, he was drawing a powerful weapon from the congressional arsenal, but it depended upon the cooperation of the news‑media for its effectiveness. If issues raised in hearings were sensational enough to sustain media interest then the subcom­mittee's power would be enhanced tremendously. But if the hearings failed to catch the public's attention, they often fell short. The Army-McCarthy and Watergate hearings are outstanding examples of how collaboration between a congressional committee and the media can shape public opinion. As these examples suggest, public hearings are strongest when they uncover corruption or expose wrongdoing. Ervin intended his hearings on "Federal Data Banks, Computers, and the Bill of Rights" to offer the same kind of dramatic revelations when they opened in the spring of 1971.[59]

To Ervin's delight, journalists filled the newspapers and airwaves with reports taken from the hearings of the military's domestic surveillance abuses. He had scheduled several days for Christopher Pyle and other intelligence officers to share their stories. While many of the specific episodes had been reported in the months leading up to the hearings, the former agents's testimony made a compelling case for an intelligence system running wild. In Colorado Springs the Army infiltrated a church youth group because its leader had once attended a peaceful protest against the Vietnam War.[60] In Kansas City Army agents requested the local high schools and colleges to supply the names of students who were con­sidered "potential trouble makers" and "too far left or too far right in their political leanings." It appeared that classroom statements by students and teachers were filed in police and Army data‑banks.[61] Among the "dangerous" individuals in the CONUS files were Mrs. Martin Luther King Jr., Georgia State Representative Julian Bond, folk singer Arlo Guthrie, and two former military officers who had opposed the Vietnam War.[62]

Some of the Keystone Kops surveillance was almost as humorous as it was unsettling. One agent reported that he had been assigned to keep an eye on Martin Luther King's funeral for signs of violence and communist infiltration. He snapped pictures of the dignitaries at the funeral that were dutifully stored away at Ft. Holabird. When Mrs. King made a speech recalling that her husband "had a dream," an Army analyst asked the reporting agent to find out to which dream she was referring![63]

Other revelations, however, were more disturbing. Plain­clothes military intelligence agents worked undercover at both the Democratic and Republican conventions in 1968 and sent secret reports back to Ft. Holabird. The Army had also spied on elected officials, "targeting" for surveillance critics of the Vietnam War such as Senator Stevenson from Illinois and congressman Abner Mikva. Judge Otto Kerner, the former Governor of Illinois and chair of the Kerner Commission which investigated the race riots of the 1960s, became a subject for military surveil­lance after the Commission Report had concluded that there was no communist conspiracy behind the urban violence in the 1960s. It became increasingly clear that the Army was guilty of practicing purely political surveil­lance on American citizens whose actions and statements could in no way be construed as likely to incite a riot or endanger national security.[64]

The ranking Republican on the subcommittee, Senator Roman L. Hruska from Nebraska, led the administration's defense during the hearings. After listening to several days of testimony detailing the Army's misuse of its computer-based surveillance system, Senator Hruska interrupted to ask "But is this so new? When printing was invented, it was thought to be a radical new propaganda device. But it hasn't been such a terrible step forward in the development of civilization. The same might be said for computerized data banks. . . . I think on balance they may be very beneficial."[65] Hruska argued that the administration's computer systems were both well-managed and necessary. He referred to "increases in skyjackings," "organized crime," and "the recent rash of dynamiting," and chided Ervin and the subcommittee by concluding, "I know you wouldn't want to impair the ability nor the efficiency and effectiveness of anyone who wants to investigate a dynamiting."[66]

The battle lines of the debate became clear as Hruska and Ervin sparred over the issues for the next half of an hour. Senator Hruska argued that increased threats to national security mandated the computerized surveillance, and he proposed that Americans trust the self‑restraint of the executive branch. Ervin countered that the government's recording of citizen's political statements in computers had a chilling effect on their exercising their First Amendment rights, and he insisted that recent surveillance abuses proved that the executive branch could not be trusted to police itself. It was the classic debate between national security and civil liberties, between the needs of the state and the rights of the individual.

The following week an unknown terrorist detonated a bomb in the rotunda of the Capitol building. No one was hurt and the damage was minimal, but when the hearings resumed on March 2, 1971, the day after the explosion, the atmosphere in the Old Senate Caucus Room was quite different. Extremely tight security greeted the spectators as they entered the hearing room. Capitol police inspected brief cases and double-checked press passes.[67]

Senator Hruska took full advantage of the new climate in his opening remarks. "I am somewhat disturbed by the imbalance of the testimony presented last week," Hruska complained, "and the interpretation which has been placed upon it by certain segments of the media and of the public. . . . I support the Chairman and others in the notion that there must be proper safeguards, but the people must receive every protection possible against those elements who consider even the United States Capitol Building as a legitimate object of their violence." Hruska argued that no one would ever know how many potential dangers were deterred by the Army's surveillance, and he reminded the audience that "burning buildings, bomb explosions, and mob violence also have their own chilling effect."[68]

Undeterred by Hruska's criticism, Ervin continued the hearings, making headlines that afternoon by blasting the army for maintaining an "illegal" surveillance system that threatened ordinary citizens' First Amendment rights.[69] The Senator also rejected the idea that the executive branch had learned its lesson and could now be trusted to respect civil liberties. If anything, he thought that the Nixon administration had demonstrated a consistent lack of respect for the Constitution. Even after the bombing, Sam Ervin refused to accept the arguments that Americans should surrender their basic constitutional rights or alter the traditional balance of power between Congress and the President in exchange for the government's dubious promise of greater security.

To strengthen its case, the Nixon administration sent Assistant Attorney General William H. Rehnquist (later Chief Justice of the Supreme Court) to testify before Ervin's subcommittee. Following a strategy very similar to the Army's earlier ploy of limited confessions and promises to sin no more, Rehnquist admitted that isolated examples of an abuse of government power had occurred, but insisted that while these abuses were regrettable they did not represent an actual legal infringement of any individual's constitutional rights. Still, he pledged that the Justice Department would take all appropriate steps to prevent any further mistakes from occurring. And, as had all other administration witnesses, he refused to divulge any more information about either the Army's previous domestic spying or the Justice Department's newest domestic security programs. Rehnquist concluded his testimony by promising that "self‑discipline on the part of the Executive branch [would] provide an answer to virtually all of the legitimate complaints against excesses of information gathering."[70]

Senator Ervin did not like what he heard. The old southern constitutionalist challenged Rehnquist's argument that the Army's spying on law-abiding citizens was legal, and he found little comfort in the suggestion that executive self‑discipline was sufficient to prevent abuses of government power. In light of the army's abuse of its CONUS system--as well as the administration's repeated privacy violations, the President's radical new "law and order" program, and the Attorney General's recent claim of an inherent presidential power to expand its domestic intelligence capacity--Ervin was shocked that Rehnquist would still offer assurances that governmental self-restraint would protect the civil liberties of the American people.[71]

For the most part, the press sided with Ervin in his confrontation with the Assistant Attorney General. The Washington Post chided Rehnquist for his lack of cooperation and agreed with Ervin that executive self‑discipline was not a sufficient protection against possible abuses of privacy.[72] Other newspapers were more critical. Tom Wicker of the New York Times said Rehnquist's self‑discipline argument was similar to "asking a goat to guard a cabbage patch," and other editorialists described it as "audacious" and "ludicrous."[73] The Albany Times‑Union called Rehnquist's statement that government surveillance of law‑abiding citizens was not prohibited by the Constitution "an insult to the millions of Americans who are listed in the dossiers of federal agencies."[74]

But even as Ervin won another round in the battle for public opinion, he lost his fight to continue the hearings. When he adjourned the subcommittee soon after Rehnquist's testimony, Ervin planned to return to the Caucus Room in the near future with a new lineup of Defense and Justice Department officials who he hoped would finally reveal the whole truth about the administration's domestic spying programs. But he had run out of time. A host of other issues demanded his attention, the press was losing interest, and the Army stubbornly refused to allow the generals who had actually supervised the CONUS system to testify. Furthermore, to reconvene the hearings without new sensational stories of government abuses would accomplish little, and no such information had surfaced. The Army's cover-up, now strengthened by the support of the Nixon White House--which had its own domestic surveillance programs to keep hidden from Congress—-had worked. Ervin's hearings, which had opened with much fanfare, ended without a dramatic closing scene.[75]

Photo courtesy of The Charlotte Observer


Senator Ervin never did get to the bottom of either the Army's CONUS system or the Justice Department's new surveillance plans during his hearings in 1971. Nor could he muster enough votes to pass legislation restricting the military from spying on American citizens, although he tried every year until his retirement from the Senate in 1974. Still, his sunlight strategy of focusing the public's attention on the Army's excesses had forced it to reign in its runaway domestic intelligence system, at least temporarily. Ervin's hearings had far less impact on the Nixon White House that ignored the lessons of the Army Spy Scandal and proceeded without hesitation down the road to Watergate.

Actually, Ervin had come very close to stumbling upon the formative stage of the Watergate scandal in 1970 when his inves­tigation carried him into the Justice Department's newly formed Internal Security Division. Regrettably, the more he questioned this department the less cooperation he received, and his inves­tigation stalled. The Internal Security Division was tied into the Nixon administration's network of domestic intelligence agencies and was connected to the notorious "plumber's unit" which carried out a whole range of political espionage projects, including the break‑in and bugging of the Democratic National Committee Office in the Watergate building.[76] The strategy behind these illegal activities evolved from the "Huston Plan," first discussed in the Internal Security Division in 1970‑‑the same year Ervin began his investigation.[77 Tom Charles Huston, the plan's author, received his training in the army's intelligence school at Fort Holabird and served as a domestic spy for the army before joining Nixon's staff.[78]

Even if Ervin's investigation did not reveal the beginnings of the actual Watergate scandal in 1970 and 1971, he had discovered the basic issue at its heart.[79] The Army Spy Scandal demonstrated how easily a secret domestic surveillance system, such as the Army's CONUS program, could grow beyond constitutional limits. During the hearings Ervin repeatedly warned that the Nixon administration's continuing expansion of its national security programs, lack of concern for civil liberties, and disregard for constitutional limits on executive power would inevitably lead to abuses of power. Of course, Watergate proved the Senator correct.

In many ways the army spy scandal serves as a cautionary tale for Americans in the aftermath of the terrorist attacks of September 11, 2001. Once again, the United States is engaged in a debate over the proper balance between preserving our national security and protecting our civil liberties. Today the same arguments of necessity, security, and executive self-discipline are being advanced to justify unprecedented expansions of domestic surveillance and unchecked extensions of executive power.

Throughout his career Sam Ervin served as one of the most articulate, and effective, opponents of such arguments. His ability to make old-fashioned American notions about individual freedom and constitutional government come alive earned him praise as "the last of the founding fathers."[80] Time and again he responded to urgent appeals for emergency government powers by reciting his favorite historical admonitions from memory:

Benjamin Franklin: "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Daniel Webster: "Good intentions will always be pleaded for every assumption of authority--it is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions."

William Pitt, the younger: "Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves."[81]

To these bits of inherited wisdom, Ervin added his own words of caution during the Army Spy Scandal:

"When people fear surveillance, whether it exists or not, when they grow afraid to speak their minds and hearts freely to their government or to anyone else, then we shall cease to be a free society."[82]

As the United States pursues its new war on terrorism, it would be wise to remember Sam Ervin’s admonitions about the inherent danger of increasing national security at the expense of civil liberties. During the Army Spy Hearings he tried to warn Americans that their government was starting down a dangerous road that would inevitably lead to some kind of Watergate. Perhaps if we head his warning we will travel a different road today.

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