On December 4, 1981, President Reagan signed Executive Order 12333 on United States Intelligence Activities. Bypassing Congress.and severely limiting public debate, the President unilaterally enacted sweeping change in the guide lines governing intelligence activities with in the United States and as they affect U.S. persons overseas.
The order distinguishes between “law enforcement purposes” and “intelligence gathering purpose,” and is limited to the latter. Ironically, it is bottomed on the premise that persons not suspected of committing a crime are entitled to less constitutional protection than traditional suspect. Most noticeably, the Fourth Amendment’s prohibition of unreasonable searches and seizures and its warrant requirements are dispensed with in “intelligence-gathering” cases.
While the superseded Carter order was itself quite deficient, the Reagan one goes well beyond it in minimizing any concern for the rights of individual. The Carter order required the “proper balance between protection of individual rights and acquisition of essential information.” The Reagan order states that the collection of such information “is a priority objective.” The Carter order required (in theory, at least) respect for “established concepts of privacy and civil liberties;” this provision has been stricken from the Reagan order.
The old order allowed physical surveillance of an American traveling overseas, only if there was reason to believe that the person was acting on behalf of a foreign power. The Reagan order authorizes such surveillance merely if it is deemed necessary to obtain “significant” intelligence. There are many such changes created by the new order. Perhaps the most ominous one allows the CIA, for the first time, to engage in dirty tricks (“special activities”) within the United States. Provision allowing the FBI and the CIA not merely to infiltrate but also to manipulate domestic organization have been enhanced.
As an understanding of the dangerous ramifications of the executive order developed, the Center helped coordinate several meetings of political activists, international support organizations, church groups and other anxious to challenge the Reagan Administration’s latest unleashing of the intelligence agencies. On June 30, 1982, we filed suit on behalf of thirty-six plaintiffs, including major church denominations, journalists and publications, international support groups and one member of Congress. All the plaintiffs can show the likelihood that they will be targets under this executive order; many can demonstrate a history of governmental harassment and surveillance in the past.
The major claims of the lawsuit are as follows: Constitutional challenge allege that the order authorizes unlawful activity, though the executive is supposed to enforce and uphold the law; that the warrantless surveillance violates the Fourth Amendment; and that various provisions violate the Fifth Amendment, th First Amendment and rights of privacy and the right to travel. The complaint also argues that the executive order contravenes an existing act of Congress, the National Security Act of 1947 which specifies that the CIA shall not have any police or internal security functions. In addition it is argued that there is no existing law authorizing this order, the usual predicate for an executive order.
The complaint also alleges numerous violations of international law in that, contrary to the previous version, the Reagan order does not prohibit destabilization, mercenarism, torture, weather modification or, in fact, anything except direct involvement in assassinations. It is expected that the government will challenge the standing of all the plaintiffs to bring such a suit, and move to dismiss the complaint. Even if the constitutional infirmities in the order are apparent, it will be necessary to clear this hurdle before the substantive arguments can be aired.
Frank Deale, Michael Ratner, Morton Stavis and CCR cooperating attorney William Schaap