If You Liked ''1984,'' You'll Love 1973

In New York, a 22-year-old woman has been fighting a Civil Service Commission order that she be fired from her job as a substitute postal clerk. The commission had learned from FBI files that this woman---exercising her First Amendment rights---had taken part in a campus demonstration at Northwestern University in 1969. She was also, according to the FBI, a member at that time of Students for a Democratic Society---a legally constituted organization.

In Philadelphia, former mayors James Tate and Richardson Dilworth have charged that the present mayor, ex-police chief Frank L. Rizzo, is tapping their telephones. And Kent Pollock, an investigative reporter for The Philadelphia Inquirer, claims that his private life has been investigated ever since he wrote a story on police corruption. Greg Walter, on the staff of the same paper, has also been critical of Rizzo and of the police department. As a result, Walter charges, ''Persons who are close to me, persons who were contacts of mine in . . . Philadelphia have been questioned extensively about my sex life, my drinking habits and God knows what all. And this information is all filed away.''

In Cleveland, a recent issue of Point of View, a local investigatory publication, quotes a police officer who was sympathetic to the administration of Carl Stokes when the latter was mayor of Cleveland. According to the officer, Stokes's staff knew that the mayor's private office was bugged and that its phones were tapped by the Cleveland police, many of whom were quite hostile to the city's first black mayor. But Stokes's staff felt, the maverick cop explained, ''that if they brought the Cleveland police intelligence unit in to remove the bugs, they would have removed five and put in ten.'' The staff also decided that hiring a private firm to do the bug-clearing and wire-tap-removing job wasn't worth it, since the cost would persistently recur. I checked out the story with a source very high in Stokes's administration and he confirmed it. ''I will authorize you to say,'' my source added, ''but without revealing my name, that while Carl Stokes was mayor of Cleveland, he never held any really important meetings in his private office. He always used rooms in different hotels, and he would call those hotels at a moment's notice, just prior to the time the room was needed for the meeting. That way, the Cleveland police didn't have time to bug that particular room or put taps on its phones.''

In Milwaukee, a letter from an ordinary, apolitical citizen appeared in the letters column of the July 1, 1971, Milwaukee Journal:

I never used to look at our country from the political aspect, for I have always felt secure. But now I do, and I am confused. . . . I have been involved in a situation which tends to make me raise grave doubts. Recently, a friend and I were walking down Brady Street around midnight. While stopping for a Don't Walk sign, we heard a series of clicks. Looking around, we saw an unmarked police car with one officer inside. He had his camera aimed at us and was taking pictures. I rather believed in the law, but this action caused me to wonder. Why was it done? Does someone have an answer?

In October 1972, The New York Times, in a lead editorial, tried to provide part of the answer by describing the chilling atmosphere that the Nixon Administration has created not only on the Federal level but also through the encouragement its practices give to state and local officials. ''The President and his men,'' the Times pointed out, ''have injected into national life a new and unwelcome element---fear of Government repression, a fear reminiscent of that bred by the McCarthyism of 20 years ago. The freedom of the press . . . the right to privacy, the right to petition and dissent, the right of law-abiding citizens to be free of surveillance, investigation and harassment---these and other liberties of the individual are visibly less secure in America today than they were four years ago.'' The Times, accordingly, supported McGovern. You know who won and by how much.

One explanation for the indifference of the majority of the electorate to the danger that we are approaching what former New Jersey Democratic Congressman Cornelius Gallagher has called ''postconstitutional America'' is that many Americans have come to accept such ominous phenomena as the precipitous rise in dossier collecting and spying by local, state and Federal secret police. The majority has surely not welcomed the prevalence of secret surveillance, but the practice is considered a normal fact of late-20th Century life in the U. S.

In view of the lack of public concern about the rise of secret surveillance, along with the increasing sophistication of surveillance technology, Justice Louis Brandeis' 1927 dissent in Olmstead us. United States---the first time the Supreme Court declared judicially authorized wire tapping to be constitutional---is all the more powerful today. ''The makers of our Constitution,'' he wrote, ''conferred, as against the Government, the right to be let alone---the most comprehensive of rights and the right most valued by civilized men.''

The extent to which our right to be let alone has been eroded has been made appallingly clear by Michael Sorkin, an investigative reporter for The Des Moines Register, in a detailed account that appeared in the September 1972 issue of Washington Monthly. The FBI, he writes, is well into the process of compiling ''the largest single depository of information ever gathered about U. S. citizens by their Government.'' The FBI's data bank is fed by a computerized network designed to receive and store information from all 50 states through 40,000 Federal, state and local agencies. The raw material is coming in with increasing speed and, by 1975, some 95 percent of the nation's law-enforcement agencies will be hooked into the mammoth privacy-shredding machine.

The National Crime Information Center in Washington is the central depository of such information, with the names of millions of Americans---many of them never charged with a crime---neatly filed away. It is likely to contain the names and records of all those ever arrested for any cause, since the master computer is not required to show if an arrest led to indictment or trial, let alone to conviction. Since an estimated 50,000,000 Americans now have arrest records of one sort or another, you have one chance in four of being in the data bank once it's fully hooked up across the country. And since the probability of a black urban male's being arrested at least once before he dies is estimated to be as high as 90 percent, the data bank is going to be exceptionally well integrated.

In this respect, it's essential to realize that in 20 to 30 percent of arrests, the police never bring charges; they drop cases for a diversity of reasons, such as lack of evidence and mistaken identification. Furthermore, according to the 1969 FBI Uniform Crime Reports, of 7,500,000 people arrested that year for all kinds of criminal acts, excluding traffic offenses, more than 1,300,000 were never prosecuted or charged and 2,200,000 were acquitted or had the charges against them dismissed. Yet in those millions of cases in which an arrest doesn't lead to conviction, only eight states have statutes providing for expungement of records of arrest without conviction. And of those eight, only one provides for the expungement of records for a person with a previous conviction.

The harm of having arrest records centrally available for checking by government and private employers is incalculable. As a 1971 study by the President's Commission on Federal Statistics has emphasized, ''An applicant [for a job] who lists a previous arrest faces at best a 'second trial' in which, without procedural safeguards, he must prove his innocence; at worst the listing of the arrest disqualifies him per se.'' One recent study of employment agencies in the New York area, for example, revealed that 75 percent would refuse an applicant with an arrest record, even though the arrest hadn't led to a conviction.

But much more than arrest records are in the national data bank and in the burgeoning files of state and local police. First of all, thanks to a decision made by the late J. Edgar Hoover and by John Mitchell, when the latter was Attorney General, there is no requirement that any of the raw materials in the electronic surveillance network be evaluated for accuracy. This means that even if you haven't been arrested, derogatory information about you can be supplied to the data bank with no check as to its reliability.

A 1971 study by the Law Enforcement Assistance Administration, which provides Federal funds for the FBI data bank, noted that half of the 108 computer projects already in existence at that time were collecting data on ''potential troublemakers.'' (The Justice Department keeps copious records on persons who are ''violence prone'' and on other ''persons of interest'' for national security reasons.) The LEAA study recommended legislation to restrict and monitor the use of such information, but not a single copy of that study was given to Congress.

Since the FBI's computer network now operates without legislative restraint concerning privacy, each state decides what kind of information it will put into the network, and many states are alarmingly permissive as to what they allow cities to supply to state data banks---information that is then forwarded to the National Crime Information Center.

''Kansas City,'' Washington Monthly points out, ''is feeding its computer the names of area dignitaries such as councilmen, judges and other municipal leaders; parolees; adults and juveniles with arrest records; people with a history of mental disturbance (would Thomas Eagleton have been listed?) or who have confronted or opposed law-enforcement personnel in the performance of their duties; college students known to have participated in disturbances; suspects in shoplifting cases; and people with outstanding parking-ticket warrants.''

Welcome to Washington, all ye who would exercise your First Amendment right ''to petition the Government for a redress of grievances.'' During the first week of May 1971, nearly 13,000 people, (continued on page 156) You'll love 1973 (continued from page 148) protesting the killings of students at Kent State by the National Guard, were swept up in dragnet arrests by Washington police with the enthusiastic support ---and direction---of the Nixon Justice Department. It was the largest mass bust in American history, and only 128 of those arrested were found guilty after trial. Nonetheless, Administration officials have said that such mass arrests will take place again, under similar circumstances; and, in that event, the arrest records of all those caught in the net will be included in the national data bank.

On the state level, some states say they may limit access to their computer files to law-enforcement officers only. Other states may decide to make the information available to anyone willing to pay a fee, a course Iowa is now contemplating. It must be emphasized, moreover, that unless legislation is enacted to the contrary, each state can determine whether its raw files will include data going beyond criminal matters---into such areas as records of applicants for Civil Service jobs.

Let us suppose, however, that somehow you don't end up in the FBI's computerized central files, with its circuits to and from state data banks. You're not safe yet. There are many other data banks in the process of interfacing---that is, exchanging information with one another. As of this writing, Federal investigators already have access to 264,000,000 police records, 323,000,000 medical histories, 279,000,000 psychiatric reports and 100,000,000 credit files. Among their sources are the files of the Secret Service, the Civil Service Commission, the Department of Health, Education and Welfare (hospitals are required to forward to HEW the confidential records of patients receiving Medicare and Medicaid benefits), the Department of Housing and Urban Development, the Census Bureau and the Internal Revenue Service.

If you've been under the illusion that your Federal tax returns are held in strict confidence, you may be disquieted to learn that they are available not only to state tax officials but to any select committee of the House or the Senate--- and to anyone else authorized by Executive order. The University of Missouri's Freedom of Information Center reports that ''between 1953 and 1970, 53 of those orders were issued, two of the chief beneficiaries being the old House Un-American Activities Committee and the Senate Committee on Internal Security.''

A statement of dissent, even by a prominent American, can lead to his harassment through release of his income-tax returns to investigatory agencies. A distinguished professor of government, long a critic of the war in Vietnam, was puzzled and disturbed when, over a period of years, his income-tax returns were intensively reviewed by Internal Revenue agents, while evidence accumulated that other agencies of the Government were privy to those returns. Finally, a former White House assistant, whose conscience had been bothering him about the dogging of the professor, admitted to the victim that it had all come about on direct order from Lyndon Johnson.

Nor, by any means, are dossiers and data banks a creation only of the Government. In a 1971 report for the American Civil Liberties Union, Ralph Nader focused on how very private information about you can be collected even if you're not a dissenter or a freak of one kind or another, and even if you escape the various Federal data banks. By way of illustration, Nader wrote, ''When you try to buy life insurance, a file of . . . intimate information about you is compiled by the 'inspection agency.' The insurance company not only finds out about your health, it also learns about your drinking habits (how often, how much, with others or alone, and even what beverage), your net worth, salary, debts, domestic troubles, reputation, associates, manner of living and standing in the community. The investigator is also asked to inquire of your neighbors and associates whether there is 'any criticism of character or morals.' The 'inspection agency' that obtains this information puts it into a dossier and saves it. The agency may later make another investigation for an insurance company, or for an employer, a prospective creditor or a landlord. In fact, the agency will probably make this personal information available to anyone who has five dollars and calls himself a 'prospective employer.'''

Private credit bureaus have similar masses of data on individuals and they, as well as insurance companies, will open their files to agents of the Federal Government. In January 1972, Edward Brennan, Jr., vice-president of TRW Credit, a completely computerized national credit-reporting company, admitted on an ABC special, Assault on Privacy, that the Fair Credit Reporting Act ''now makes it mandatory that we supply information to . . . police departments and any Governmental agency that has a legitimate reason for accessing.'' All told, the more than 2500 credit-reporting companies in the country have files on at least 110,000,000 Americans. Some files are limited only to credit information; others contain more about your personal habits, finances, medical history and life style than your closest friends may know.

With all these private and Government computers exchanging information about millions of Americans---probably including you---we may be approaching a time when, as former Attorney General Ramsey Clark has warned, ''a person can hardly speak his mind to any other person without being afraid that the police or someone else will hear what he thinks. Because of our numbers and the denseness of our urban, society, it will be difficult enough in the future for us to secure some little sense of privacy and individual integrity. We can trap ourselves, we can become the captives of our technology, and we can change the meaning of man as an individual.''

Why do we stand by as our privacy is raped? Why do we acquiesce as the rapidly growing quantity of information being fed to and distributed by the FBI data bank threatens to become what Senator Charles Mathias, a liberal Republican from Maryland, calls ''the raw materials of tyranny''? Part of the answer is fear: a national fear, born in the late Sixties, of demonstrators, of blacks, of students, of muggers. The national desire, an almost desperate desire---as Richard Nixon accurately reads it---is for order. In this kind of climate, the majority of the people are much more concerned with their safety than with civil liberties ---not only those of others but their own.

A seminal Congressional reaction to the fears of the populace was the Omnibus Crime Control and Safe Streets Act of May 1968. The bill, with only four Senators and 17 Representatives voting against it, sharply limited the rights of criminal defendants and greatly broadened the permissible use of bugging and wire tapping by the Government. During debate on the measure, then-Senator Ralph Yarborough, who later was not one of the four to vote against the bill, declared that ''the Senate has opened a Pandora's box of inquisitorial power such as we have never seen in the history of this country.'' Senator Hiram Fong, who did vote against the bill (together with Philip Hart, Lee Metcalf and John Sherman Cooper), added: ''I am fearful that if these wire-tapping and eavesdropping practices are allowed to continue on a widespread scale, we will soon become a nation in fear---a police state.''

Two years later, in an amendment to the Organized Crime Act, Congress au-thorized the FBI to keep centralized criminal records, thereby leading to the establishment of the FBI's data bank. During the same year, Congress passed a drug bill permitting police to break into any place without warning if they had a court order and if they believed that a preliminary knock on the door might result in the destruction of evidence. Commenting on this ''no-knock'' bill in The New York Times, columnist Tom Wicker asked: ''How long will it be before agents come bursting without warning into the houses of political dissidents, contending under this law that any other (continued on page 178) You'll Love 1973 (continued from page 156) procedure would have resulted in the destruction of pamphlets, documents and the like, needed by society to convict?''

As Congress yielded to the fear of its constituents, the Supreme Court---ultimate protector of our privacy, along with our other constitutional rights and liberties---became markedly less sensitive to the need for safeguarding the Bill of Rights. As Nixon began to appoint new Justices---there are now four Nixon selections on the Court---the egalitarian spirit of the Warren Court began to be reversed.

A significant, though little noted, decision by what can now be called the Burger Court was handed down in December 1970. By a 5--4 majority, the Court ruled that state courts could use, in criminal proceedings, hearsay evidence that would not be admissible in Federal courts. If fear in this country---including fear of dissenters---intensifies, state criminal charges of conspiracy can. under this ruling, be brought against political defendants on the basis of secondhand testimony from secret police agents who don't want their identities publicly revealed.

As The New Yorker made clear, ''The Sixth Amendment to the Constitution gives defendants in criminal cases the right to confront witnesses against them, and, by extension, this (with a few exceptions) rules out hearsay evidence, since the person who makes the accusation, not the person who heard it secondhand, is the one to be confronted.'' This Burger Court ruling narrows every citizen's liberties, particularly since, as New Yorker emphasized. ''93 percent of all criminal cases are tried in state courts. . . . The decision places 93 percent of all defendants, guilty and innocent alike, at a severe disadvantage.''

During its 1971--1972 term, the Supreme Court handed down an equally dangerous decision, maintaining that it was no longer necessary in state criminal trials to have a unanimous jury verdict. As Melvin Wulf, legal director of the American Civil Liberties Union, has pointed out: ''The decision ... effectively abolishes the need for a jury to agree that the prosecution has proven guilt beyond a reasonable doubt.''

Another Burger Court decision that is disheartening to civil libertarians allows police to stop and frisk people on the street under circumstances that, as Wulf points out, ''come nowhere near satisfying the Fourth Amendment's 'probable cause' standard for arrest.'' It is now, therefore, much easier for the police to intimidate dissenters---and ''possible'' dissenters---by literally putting them against the nearest wall.

Yet another ominous ruling by the Burger Court has made further inroads on the right to refuse to testify before a grand jury or a trial jury on the Fifth Amendment ground of possible self-incrimination. This right has been steadily eroded in recent years as witnesses have been compelled to accept immunity from prosecution and thereby testify or be held in contempt of court. Under the Burger Court decision, that kind of pressure from the Government has been considerably strengthened. The forced witness used to be given transactional immunity, which meant that the Government couldn't prosecute him for anything connected with his compelled testimony. Now a witness can be forced to testify in return for only use immunity, which means that though the Government can't use his own testimony or any leads from it to build its case against him, he can still be prosecuted. But how will it be possible to prove that a subsequent lead that the Government does use against a witness wasn't developed, however obliquely, from something he said under forced testimony?

It used to be that dissenters, whether under grand-jury pressure or not, had recourse to the press to reveal information they believed to be in the public interest or to give their side of a case in which the Government was prosecuting them or associates of theirs. In such cases, the dissenting source often didn't want to be identified, for fear of Government retaliation, and he would talk only to a reporter whom he trusted not to reveal his identity. This way for dissenters and others to get information to the public has been seriously limited by another Burger Court decision. In the case of New York Times reporter Earl Cald-well, the Court declared---with all four of the Nixon appointees in the majority---that a reporter does not have a constitutional right to protect his sources.

The effect of the Caldwell decision is already evident. In Caldwell's own case, he has burned the tapes and notes he had collected for a book he was preparing on the Black Panther Party. This material, which had not appeared in the Times, had been obtained by a pledge of confidentiality, and Caldwell didn't want to take the chance that, under repeated threats of being jailed, he might finally break that pledge. The burning of his tapes and notes is both a loss to history and a denial of the public's First Amendment right to get information about public issues.

Another illustration of the increasing willingness of Government to subvert the Bill of Rights has been the pressure against Beacon Press and its parent church organization, the Unitarian Universalist Association. On October 22, 1971. Beacon published the so-called Senator Gravel edition of the Pentagon papers. These were public documents that Senator Gravel had inserted into the records of a Senate subcommittee he heads. Seven days after publication, FBI agents, acting for the Justice Department's Internal Security Division, appeared at the bank in which the Unitarian Universalist Association has its accounts. The agents had a Federal grand-jury subpoena calling for delivery of all of the church's records---not just those of Beacon Press---including copies of each check written and each check deposited by the church group between June first and October 15, 1971.

Every church member throughout the country who sent a check to the Unitarian Universalist Association during that time is now in the FBI files, and I have information that donations to the church have declined following the news of the FBI's collection of its bank records. The experience of this church group indicates that we may be coming closer to a state in which, as Justice William O. Douglas has warned, ''our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages [it] will have vanished.''

Meanwhile, as Government pressure against the press and against dissenters intensifies, with Justice Douglas increasingly among the minority in Supreme Court decisions concerning basic civil liberties, the technology to make this a pervasively watched society continues to advance. There are the inviting possibilities, for instance, of closed-circuit TV. Last year, the Committee on Telecommunications of the National Academy of Engineering prepared a study about which you might not have been informed on television or in your local paper. The study, paid for by the Justice Department, recommended 24-hour television surveillance of city streets.

It's already happening. Among the cities that now have or soon will have 24-hour uninterrupted surveillance of a downtown area are Hoboken, New Jersey; Mount Vernon, New York; Saginaw, Michigan; and San Jose, California. Any city, if it has the money, can do it, because so far there are no laws against electronic surveillance of large public areas. The immediate purpose of keeping watch in this way on the citizenry is to cut down street crime. But among other consequences of having the police department's unblinking eye on certain parts of a city is that demonstrators converging in those areas can be photographed and their identities filed for future use---all from police headquarters.

The psychological effects---and the dangers to the Bill of Rights---of increasing police surveillance of public areas (continued on page 182) You'll love 1973 (continued from page 178) have been analyzed in a probing and disturbing article in the winter 1972 issue of Columbia Human Rights Law Review, published by students at the Columbia University School of Law: ''To begin with,'' says the Review, ''police can use a . . . surveillance system to read a pedestrian's lips or to read documents in his possession. More generally, police can direct the cameras to observe . . . people in their apartments, in cars or on the streets. . . . One might reasonably fear that police abuse of the system would lead to increased dossier building. In a way not presently practicable, the police could use wide-scale surveillance systems to track associational ties and mark the day-to-day habits of revolutionaries, activists, homosexuals and other people of police interest. . . . To the extent that America adopts the ethic of a watched society, we inevitably lose the sense of participatory democracy and trust that privacy nourishes.''

Among other coming surveillance attractions in the watched society is spying by helicopter. New York City recently completed a two-year test of this avantgarde way of bypassing the Bill of Rights. The cost was $490,000. But the wonders of surveillance by helicopter aren't limited to the police departments of such big cities as New York. Kettering, Ohio, a suburb of Dayton, has a population of 70,000 who can occasionally see two police helicopters equipped with siren, public-address system, searchlights, radio---and a portable video-tape camera.

With the market for police visual-surveillance equipment booming---or, rather, zooming---manufacturers are zestfully promoting their spying wares. In a characteristic sales pitch. Eugene G. Fubini. former vice-president for research at IBM and now a private consultant, told those attending a National Law Enforcement Symposium: ''Wouldn't you like to be able to frisk every citizen without him knowing he is being frisked? . . . You can put multidimensional magnetometers in turnstiles and movie theaters and lots of other places. Let me try another one: You could put on all bridges and parkways a device which reads license plates and automatically matches them against a list.''

We are well into what the Lawyers' Committee for Civil Rights Under Law calls a ''police-industrial complex'' that will serve ''to increase an already extensive, easily abused police capability for surveillance, harassment and interference with noncriminal activities.'' And what the police see and record will be filed and then hooked into local, state and Federal data banks. In September 1972, conservative columnist James J. Kilpatrick wrote: ''For many years, politically active Americans have been wondering: Were they suffering a kind of paranoia, or was Big Brother really watching them? Answer: He was watching.''

Now, every year, Big Brother watches and puts into dossiers more and more of what we're doing and saying. A grimly reasonable case can be made that University of Michigan Law School Professor Arthur R. Miller was being prescient rather than fanciful in 1971 when he speculated in his book The Assault on Privacy: ''The identification number given to us at birth might become a leash around our necks and make us the object of constant monitoring through a womb-to-tomb computer dossier.''

Most of us already have such an identification number. It's on our Social Security card. As Senator Sam Ervin has noted, although the Social Security card states on its face that it's not to be used for identification purposes (except for Social Security and income-tax needs), citizens have to submit their Social Security numbers on job applications, voter-registration affidavits, credit applications, telephone records, arrest records, military records, driver's licenses and many other forms. In fact, there is a move in Congress that would make Professor Miller's prophecy come true. On March 2, 1972, the Senate Finance Committee voted to require that every child be issued a Social Security card upon entering the first grade. Not to be outdone, Representative Martha Griffiths. Democrat from Michigan, proposed that it be assigned at birth.

Widespread use of a single number of identification, Senator Ervin adds, can hasten Government maintenance of extensive computerized data banks of information on all of us. The Social Security number alone, he points out, could be the single, common key required ''to link computers, enabling them to talk among themselves, promiscuously combining accurate, inaccurate and incomplete information about nearly all Americans. . . . Decisions affecting a person's job, retirement benefits, security clearance, credit rating or many other rights may be made without benefit of a hearing or confrontation of the evidence.''

Despite such omens of 1984, it would be foolish and foolhardy to simply allow postconstitutional America to come into being without fighting to keep and to regenerate this Constitution. There are ways to do more than privately keen over the drifting away of the Bill of Rights. One way is through the courts. With regard to political surveillance by secret police, for example, at least 30 suits have been brought by the A.C.L.U., as of January 1973, that challenge spying on political activities by the FBI, the National Guard, state anti-subversive agencies and both state and local police departments. More will surely be filed by the A.C.L.U. and other civil-liberties organizations in the months ahead.

The main thrust in most of these court actions is to force disclosure of how dossiers on individuals and organizations are opened and nurtured, on whom they are kept and to whom their contents are distributed. A corollary request for relief is that the secret police be forbidden from then on to gather information for political dossiers and be required to destroy those they already have.

A characteristic suit of this nature has been brought by the Civil Liberties Union of Southern California against the Los Angeles Police Department. The C.L.U. charges in its complaint that the police keep files on a variety of organizations---church, political, educational---and on individuals associated with these groups, even though neither the police department nor any police officer ''has any information that such group or person has committed, will commit or intends to commit any criminal offense.''

That case and others like it are still in the courts. There has been one significant triumph in this area, along with one seeming victory that turned into a defeat because of what Nixon has done to the Supreme Court. The defeat, which is not terminal (other cases can still be brought, despite this particular Supreme Court decision), concerns a case brought against then-Secretary of Defense Melvin Laird by Arlo Tatum, a Quaker, and other plaintiffs who charged that the United States Army had been secretly keeping track of their lawful civilian political activities. Tatum and his associates in the suit had long and publicly opposed the war in Vietnam, and that made them fodder for Army spies, who, according to Senator Ervin, had kept tabs until at least 1969 on more than 100.000 civilians and organizations.

In April 1971, a U.S. Court of Appeals sent the case (Laird vs. Tatum) back to the lower Federal district court that had denied relief to Tatum and his associates. The Court of Appeals disagreed with the lower court's findings, declaring that the plaintiffs did have a case and that it ought to be heard. The Court of Appeals, moreover, stressed the danger to the country of Army political surveillance of civilians and went on to order that the following facts be determined: ''The nature of the Army domestic intelligence system . . . specifically the extent of the system, the methods of gathering the information, its content and substance, the methods of retention and distribution, and the recipients of the information. . . . Whether the existence of any overbroad aspects of the intelligence-gathering system . . . has or might have an intimidating effect on appellants or others similarly situated.''

In sum, just what the hell was the Army up to by spying on civilian political activity? Did all those dossiers really have any relationship to the Army's responsibility for handling such massive civilian disorders as might arise? Or was the Army just collecting whatever it could find about potential troublemakers, even though they had done nothing unlawful? After all, said the Court of Appeals, ''To permit the military to exercise a totally unrestricted investigative function in regard to civilians, divorced from the normal restrictions of legal process and the courts, and necessarily coupling sensitive information with military power, could create a dangerous situation in the Republic.''

But, we have been told, the Army no longer spies on civilians, so why stir up a dead issue? Yet, as Senator Ervin noted in May 1972, ''It's going to be impossible to destroy all the information the Army has gathered. Our investigations show that while the Army was engaged in spying on civilians, it interchanged information that it collected with the FBI and with local law-enforcement agencies throughout the United States, and there is no way we can run that down and get it out of their files.''

Therefore, the issues raised in Laird vs. Tatum are hardly dead. Accordingly, the Court of Appeals decision could have been a stunning breakthrough toward letting the citizenry see some of the inner workings of the total national political surveillance system, of which the Army secret police is one branch. Most unfortunately, the Supreme Court thought otherwise. The Government having appealed the Court of Appeals decision, the High Court dismissed Laird vs. Tatum in June 1972. The vote was 5--4 and in the majority were all four of Nixon's appointees, including the redoubtable William Rehnquist, who participated in the decision even though he had been directly involved in the issues at the core of this suit while he was in the Justice Department. Rehnquist, moreover, had made perfectly clear, when he was in the Justice Department and testified before Senator Ervin's Subcommittee on Constitutional Rights, that he opposed any limitation on Government surveillance of any citizen.

The majority of the Court, in Laird vs. Talum, declared that it isn't enough to claim that being spied on has a ''chilling effect'' on the exercising of your First Amendment rights. You have to be more specific and show palpable injury directly resulting from political surveillance---loss of a job or loss of income, for example. In his vehement dissent, Justice Douglas wrote: ''This case is a cancer in our body politic. It is a measure of the disease which afflicts us. Army surveillance, like Army regimentation, is at war with the principles of the First Amendment. Those who already walk submissively will say there is no cause for alarm. But submissiveness is not our heritage. The First Amendment was designed to allow rebellion to remain as our heritage. The Constitution was designed to keep Government off the backs of the people. The Bill of Rights was added to keep the precincts of belief and expression, of the press, of political and social activities free from surveillance. The Bill of Rights was designed to keep agents of Government and official eavesdroppers away from assemblies of people. The aim was to allow men to be free and independent and to assert their rights against Government. There can be no influence more paralyzing of that objective than Army surveillance. When an Intelligence officer looks over every nonconformist's shoulder in the library or walks invisibly by his side in a picket line or infiltrates his club, the America once extolled as the voice of liberty heard around the world no longer is cast in the image which Jefferson and Madison designed, but more in the Russian image.''

Several lower Federal court decisions since Laird vs. Tatum, fortunately, indicate that the door is far from closed to attempts, through the courts, to expose Government ferrets gnawing at the Bill of Rights. In Philadelphia, a Federal judge refused to dismiss a suit against the local police department for keeping files on all known demonstrators in that city. And on October 25, 1972, a Federal judge in the state of Washington settled a suit by ten antiwar demonstrators against the police of the city of Longview who had taken pictures of antiwar marches in the fall of 1969. That court order requires destruction of all police photographs of the plaintiffs, who in turn have agreed to drop their claim for damages.

So the court route to protect our Constitution---and ourselves---from the secret police is being used. Future suits will focus on specific harm---direct or indirect---resulting from police surveillance, such as the disruption of lawful organizations by police infiltrators. Some of these cases will be lost; but there is reason to believe that others can be won. Even a losing case may produce a dissenting opinion that later guides both lawyers and judges in other jurisdictions.

In addition to continuing the battle in the courts, the campaign against the secret police can also be waged by legislation. Among a number of bills now pending in Congress to stem the assault on privacy is New York Congressman Edward Koch's Federal privacy act, which requires that each Government agency maintaining records on any individual must: notify the person that such a record exists; disclose such records only with the consent of the individual; maintain an accurate record of all persons to whom any information is divulged and the purposes for which it was given to them; permit the individual on whom there is a record to inspect it, make copies of it and supplement it; remove erroneous information of any kind and notify all agencies and persons to whom the erroneous material has been transferred that it has been removed.

Although it's a useful start, there are weaknesses in the Koch bill---a basic flaw being its exclusion from the privacy safeguards of records ''specifically required by Executive order to be kept secret in the interest of national security.'' The Government cannot safely be allowed to simply pronounce the words ''national security'' and thereby seal off whatever it wills. At the very least, in any court case under a privacy act, the burden of proof has to be on the Government to justify any attempt to keep secret the records maintained on an individual or a group.

Another fundamental weakness in the Koch bill is its exclusion from privacy protection of ''investigatory files compiled for law-enforcement purposes, except to the extent that such records have been maintained for a longer period than reasonably necessary to commence prosecution.'' As I have indicated, that clause would leave unprotected the swiftly growing mass of data being collected by Federal agencies and states and cities for the FBI data bank at the National Crime Information Center. And Koch's attempt to mitigate that clause in his bill by the term ''reasonably necessary'' is so broad and vague as to be useless.

The intent behind the bill, nevertheless, is commendable---as is Congressman Koch's recognition that ''most types of surveillance and data collection should be forbidden absolutely.'' Again, at the very least, no Government agency should have the right, for one example, to engage in political surveillance of lawful activities. But other kinds of legislation---state as well as Federal---will be necessary, along with persistent court actions, to safeguard privacy against the myriad secret police. Even so limited a Federal privacy act as the Koch bill, however, could become a catalytic force in creating public pressure for stronger legislation.

If the Koch bill, or one similar to it, can be passed, the provision that everyone on whom records are kept must be so informed might well startle at least some of the populace from sleep as their liberties are being computerized away. Under such a law, huge numbers of Americans would have to be informed that dossiers with their names on them are in some agency's files (and thereby, through computer interfacing, are likely to be in many agencies' files). Accordingly, a tougher Federal privacy act might conceivably follow the passage of a relatively mild bill if enough citizens were stirred to anger on finding out that they, too---not just extremists and other freaks---are in the secret police files.

It is also important to provide, by law, for the erasure of a considerable amount of material now in state and Federal files that has no business being there---ranging from the names of dissenters who have lawfully used their First Amendment rights to information gathered by credit bureaus about the private lives of citizens applying for charge accounts. Absolute erasure is impossible, because some Federal agencies and police departments are likely to squirrel away some files for vague future use. But at least the doctrine in law that certain information harmful to an individual should be erased will place the secret police on notice that their retention of illegal raw files can subject them to a court suit if a citizen finds out about it.

A strong rationale for erasure is provided by privacy expert Alan Westin: ''Look at the way the property system has established rights in our capitalist system.'' he writes. ''You wipe out records of bankruptcy, for example, and it is part of the commercial system that after a certain period of time we simply do not continue to record certain kinds of commercial failures because we want to encourage people to come back into business. The same thing should be true of our personal records and our personal privacy.''

I believe that no state or local agency, whether supported by Federal funds or not, has the constitutional right to invade any individual's privacy---at the very least without his knowing about it and then being able to take action against it. Furthermore, since private agencies---such as credit bureaus---exchange information with Government agencies, they, too, should be included in laws regulating their collection and distribution of information.

An even stronger supplementary safeguard has been proposed by attorney Richard Miller, as reported in the University of Missouri's Freedom of Information Bulletin: ''He would like to see state laws providing that public agencies, private firms and agents in the business of gathering and distributing personal data be liable to injured parties for passing out false information or knowingly disseminating true information for a defamatory purpose.''

This liability, I would emphasize, should also extend to Federal agencies and personnel in the data-collecting and data-distributing business. The liability, moreover, should consist of money damages for the injured party and sanctions against those, whether public or private agents, who are found to have caused the injury. When private citizens start collecting damages because they've been abused by secret police and other information gatherers, and when some of these secret agents are demoted or otherwise punished for mugging the Bill of Rights, the zeal to snoop may well be markedly diminished.

Finally, on Federal, state and local levels, there should also be independent commissions to make sure that new laws safeguarding privacy are being enforced. The Lawyers' Committee for Civil Rights Under Law restricts its recommendation to a national independent commission that would conduct audits and spot checks and would report to Congress. But independent state and local commissions also ought to be functioning in a similar way, and they should report to state and local legislative bodies. These commissions, as the Lawyers' Committee recommends, ''should include constitutional lawyers, representatives of citizens' groups and other civilians.''

In the meantime, even children are no longer immune to the omnipresent eye of surveillance. An unintentionally chilling press release was issued by Eastman Kodak Company last year. It concerns the Polk County, Florida, school system, which has an enrollment of 60,000 students and, according to Kodak, ''operates more schools in more towns than any other system in the United States. It controls 58 elementary schools, 14 junior highs, ten senior highs and one vocational-technical school.'' If we don't do something to stop the national drift, here is an augury of what may be ahead for more Americans than just these Polk County students:

Surveillance Cameras Help Administrators Maintain Order In Florida Schools

Bartow, Florida----Smiles and friendly greetings now far outnumber scowls and random left hooks among junior and senior high school students throughout Polk County, Florida. That's because their actions are being recorded on film, and if anyone does anything to seriously disrupt school routine, the odds against establishing an alibi are far from even.

W. W. Read, superintendent of the Polk County School Board, emphasizes that this is by no means a snooping operation. Although the cameras operate . . . during school hours, the film is processed and viewed only when disruptions have occurred. Although the super-8 surveillance cameras have been in use only a short time, Read reports that their psychological impact already has reduced disruptive incidents, and they already have had a definite effect on the total tenor at the schools.

You bet.

Liberation News Service asked some of the kids how they felt about the era of smiles, friendly greetings and surveillance cameras that had come upon the Polk County school system. Said a subversive senior high school student, who probably reads Jefferson and Thoreau on the sly: ''In any type of trouble, everybody the camera photographs is sent to the office. After all, they can't tell who caused the trouble, because they don't have sound cameras. They don't know who said what to whom, and anyway, the instigation of trouble might just happen to fall during the 30 seconds [per minute] that the camera isn't photographing.'' Said another student: ''Nothing has changed but the amount of subterfuge and fear. It's like being in jail for six hours a day.''

But school, after all, is supposed to be preparation for adult life. And the Polk County school system may already be shaping the subdued citizens of postcon-stitutional America.