SENATOR SAM ERVIN AND THE ARMY
SPY SCANDAL OF 1970-1971:
BALANCING NATIONAL SECURITY AND CIVIL LIBERTIES IN A FREE SOCIETY
Karl E. Campbell
"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.
 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."
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
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.
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
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.
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.
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."
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."
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."
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.
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.
The Senator joined more than a dozen other congressmen from both political
parties in ordering the Army to issue "an immediate explanation."
 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
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.
Behind the scenes intelligence officers at Fort Holabird removed from the
files the embarrassing items to which Pyle had referred in his article.
Officers also telephoned agents across the country telling them to hide, but
not destroy, any files until the controversy blew over.
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."
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.
Intelligence units received orders "to just hide it, get it out of the way,
this will all blow over."
At some bases they destroyed the data but kept the "input" (the computer
keypunch cards), or copied the information onto microfilm before destroying
As one clerk later recalled, "The order didn't say to destroy the
information, just destroy the Compendium [a computer data bank]."
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
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."
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
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.
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
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."
Ervin had always explained his seemingly
inconsistent positions by claiming to be just "preserving the
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
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."
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."
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."
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."
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
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
Photo courtesy The Charlotte
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.
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."
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."
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."
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
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.
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.
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!
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
There were also rumors that the Post Office Department opened and read the
overseas mail of American citizens.
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."
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."
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
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
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."
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."
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.
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.
In a speech on the Senate floor he blasted the army for maintaining "a
deterrent power over the individual rights of American citizens."
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."
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."
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."
It would not be the last time Ervin would use hearings to focus sunlight on
the suspicious practices of the Nixon administration.
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.
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
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."
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
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.
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.
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.
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.
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
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
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.
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
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."
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
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
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.
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."
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.
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.
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"
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
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.
Photo courtesy of The Charlotte
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.
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.
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.
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
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."
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."
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.
The author recommends the following websites as a
complement to this article:
Ervin's papers in the Southern Historical Collection at
the University of North Carolina
of quotes on Ervin from the North Carolina Political Review
An interesting Salisbury Post article about the new
play on Ervin that premiered last year:
Sam Ervin Library at Western Piedmont Community College
To explore Richard Nixon and his presidency
A quick way to explore Watergate, beginning with Sam
Ervin, is through this Washington Post site
Current Civil Liberties Questions:
One article on new domestic surveillance programs:
On the War on Terror see:
A report urging more national security:
A discussion about new laws threatening civil
A very good article on the debate over civil
liberties during wartime, with additional links for teachers:
Christopher H. Pyle, "CONUS Intelligence: The Army Watches Civilian
Politics," Washington Monthly I, January 1970, 4; reproduced in
Congressional Record (hereafter cited as “Cong. Rec.”)
91st Cong., 2nd sess., 2227‑2231. Pyle remains the leading authority on
the military domestic intelligence system in the 1960s. After serving
as a special advisor to the Subcommittee on Constitutional Rights during
Ervin's hearings in 1971, he earned his Ph.D in political science from
Columbia University with "Military Surveillance of Civilian Politics,
1967‑1970," (Ph.D. dissertation, Columbia University, 1974; Ann Arbor,
Michigan: University Microfilms, 1974), hereafter cited as "Military
Surveillance, dissertation". He also published an extensive article on
the topic, "Military Intelligence Overkill," in Alan Barth et al.,
Uncle Sam is Watching You: Highlights from the Hearings of the
Subcommittee on Constitutional Rights (Washington, D.C.: Public
Affairs Press, 1971).
Cong. Rec., 91st Cong., 2nd sess., 26329.
For biographical information on Sam Ervin see: Paul Clancy, Just a
Country Lawyer: A Biography of Senator Sam Ervin, (Bloomington:
Univ. of Indiana Press, 1974), an admiring overview of his life by a
journalist; and, Dick Dabney, A Good Man: The Life of Sam J. Ervin,
(Boston: Houghton Mifflin, 1976), which is slightly more critical.
Dabney's analysis clearly profited from his reading of, Stephen
Klitzman, "Citizens Look at Congress: Sam Ervin, 'Principles not
Politics'," Ralph Nader Congress Project, (Washington D.C.:
Grossman Publishers, 1972). Also of value is, Kenneth Van Sickle, "The
Oral Communication of Senator Sam J. Ervin Jr. In the Watergate
Hearings: A Study in Consistency" (Ph.D. dissertation, Michigan State
Univ., 1976; Ann Arbor, Mich.: University Microfilms, 1976). Also see
Ervin's autobiography, Preserving the Constitution, (The Michie
Company, Charlottesville, VA., 1984).
B. Autry, “Sam Ervin: The Book By and About Him,” Duke Law Review
1985 (December 1985): 1246; Cong. Rec. 83rd Cong. 2nd
sess., pt 11: 14893.
See Karl E. Campbell, “Preserving the Constitution, Guarding the Status
Quo: Senator Sam Ervin and Civil Liberties,” North Carolina
Historical Review LXXVIII, no 4,
(October 2001): 457-483.
The army's domestic intelligence system was actually an ill-defined
collection of information-gathering agencies under several different
titles. Some agencies did not even know they were duplicating the
activities of other military intelligence units. For the sake of
clarity I shall call the system "CONUS" for Continental U.S. For more
information on the breakdown of the various agencies see any of the
above mentioned articles by Pyle, or Frank J. Donner, The Age of
Surveillance: The Aims and Methods of America's Political Intelligence
System (New York: Vintage Books, 1981), 293‑309.
Pyle, "CONUS" Intelligence", 5‑6.
Typical was the North Carolinian who wrote to Ervin: "I hope you will
investigate this situation and bring the power of the Senate to act to
protect the citizens of this nation from further encroachment of their
rights." Cong. Rec., 91st Cong., 2nd sess., 2226. All of the
participants in Ervin's hearings with whom I spoke confirmed Ervin's
frequent claim that the subcommittee received hundreds of letters in
reaction to Pyle's revelations. See U.S., Congress. Senate, Committee
on the Judiciary, Military Surveillance of Civilian Politics, a
report of the Subcommittee on Constitutional Rights, 93rd Cong., 1st
sess., 1973, 2 (hereafter cited as "Military Surveillance Report,
Ervin to Stanley R. Resor, 22 January 1970, Samuel J. Ervin Papers,
southern Historical Collection, Wilson Library, University of North
Carolina at Chapel Hill (hereafter cited as “Ervin Papers”), box 408,
folder 458. This letter and other correspondence between Ervin and the
departments of Defense and Justice concerning military surveillance may
also be found in Cong. Rec., 91st Cong., 2nd sess., 26333‑26350;
and in U.S., Congress, Senate, Committee on the Judiciary, Federal
Data Banks, Computers, and the Bill of Rights, Hearings Before the
Subcommittee on Constitutional Rights, Part II, Documentary Analysis,
92nd Cong., 1st sess., 1971 (hereafter cited as "Documentary Analysis,
Cong. Rec., 91st Cong., 2nd sess., 2227.
Christopher H. Pyle, "CONUS Revisited: The Army Covers Up",
Washington Monthly 2, July 1970, 50. Pyle combined this article
with his January article to form the basis of his testimony before the
committee's hearings in 1971 (hereafter cited as "Pyle Testimony"). See
U.S., Congress, Senate, Committee on the Judiciary, Federal Data
Banks, Computers, and the Bill of Rights, Hearings Before the
Subcommittee on Constitutional Rights, Part I, 92nd Cong., 1st sess.,
1971 (hereafter cited as "Ervin Hearings, 1971").
Military Surveillance Report, 1973, 98; Laird v. Tatum, 408 U.S.
Donner, The Age of Surveillance, 317.
Edward Sohier, Testimony before the Subcommittee on Constitutional
Rights, February 24, 1971, Ervin Hearings, 1971, 278‑279. Sohier's
testimony, along with sections of other ex‑intelligence agents'
testimony, appears in Barth, Uncle Sam is Watching You.
Military Surveillance Report, 1973, 99.
Donner, The Age of Surveillance, note 78, 508.
Joseph Hanlon, "Army Drops Data Banks but Keeps Data Banks,"
Computerworld, 11 March 1970, Documentary Analysis, 1646. Pyle also
cited this in his testimony before the committee, and added that
officials at Fort Holabird destroyed some computer tapes but hid others
and filed some under different names.
Military Surveillance Report, 1973, 100.
Military Surveillance Report, 1973, 99. Also cited in Pyle testimony,
Ervin Hearings, 1971, 209.
Robert Jordan to Ervin, 25 February 1970, Ervin Papers, box 408, folder
The Asheville Citizen, 6 February 1970, Ervin Papers.
Don Merrit, The Charlotte Observer, 10 February 1970, Ervin
A statement Ervin repeated often and made the title of his
autobiography, Preserving the Constitution, (The Michie Company,
Charlottesville, VA., 1984).
Ervin's opposition to government interference in individual rights can
be seen as a shorthand for a conservative position opposing welfare,
taxes, and all those "liberal" programs. Rufus Edmiston and others
comment on this interpretation in Stephen Klitzman, "Citizens Look at
Congress: Sam Ervin, 'Principles not Politics'," Ralph Nader Congress
Project, (Washington D.C.: Grossman Publishers, 1972).
Sam J. Ervin, Jr., Humor of a Country Lawyer (Chapel Hill:
University of North Carolina Press, 1983), 120.
See Ervin, "Privacy and the Constitution," an address delivered at Thiel
College, 5 January 1972, Ervin Papers, box 411, folder 522. Louis D.
Brandeis is quoted from Omstead v. United States, 277 U.S. 438,
478 (1828), dissenting opinion. For a discussion of the legal and
constitutional aspects of the right to privacy, see Alan F. Westin,
Privacy and Freedom (New York: Atheneum, 1967), 330-64; Arthur R.
Miller, The Assault on Privacy (New York: Times Mirror, 1971),
205-220; Gerald Dworkin, "Privacy and the Law," in John B. Young, ed.,
Privacy (New York: John Wiley and Sons, 1978), 113-36; Darien A.
McWhirter and Jon D. Bible, Privacy as a Constitutional Right
(New York: Quorum Books, 1992); and the landmark essay by Samuel D.
Warren and Louis D. Brandeis, "The Right To Privacy," Harvard Law
Review 4 (1890): 193-220.
"Sen. Sam--Nation's Best Trout Catcher," Greensboro Daily News, 2
June 1974, Sam Ervin Newspaper Clippings, North Carolina Collection,
University of North Carolina at Chapel Hill Library (hereafter cited as
Dabney, A Good Man, 235-24; Clancy, Just A Country
Lawyer, 207; Ervin, "In Defense of Individuality," Elon College
Commencement Address, 27 May 1957, Ervin Papers, box 453, folder 27a.
Alan Westin, Privacy and Freedom (New York: Atheneum, 1967),
26-8.; Kermit L. Hall and James W. Ely, Jr., eds., An Uncertain
Tradition: Constitutionalism and the History of the South (Athens:
University of Georgia Press, 1989); 3-59. Ervin also cited the Bible
(Micah), English common law, his reading of the history of the American
Revolution, and the Fourth Amendment as sources for his commitment to
the right to privacy. See Ervin, Preserving the Constitution,
Alfred Friendly, "Protection for Whom?" Washington Post, 11
August 1966; Jerry Kluttz, "Policy on Jobs Stirs Hill Clash," Washington
Post, 4 October 1966; Joseph Young, "Administration Denies It
Plans Job Quota System Based On Race," Washington Star, 4 October
1966, Ervin Notebooks, s-12. The Ervin-Macy exchange over the racial
questionnaires can be found in "Privacy Hearings, 1966," 126-138.
Russell Long, draft of amendment to H.R. 8315, 15 February 1960, box RO
92, Russell Long Papers, Louisiana and Lower Mississippi Valley
Collections, LSU Libraries, Louisiana State University.
Allen Ellender to George R. Heine, 1 July 1965, box 837, folder
"Legislation, 1965, Civil Rights," Allen J. Ellender Papers, Allen J.
Ellender Library, Nicholls State University, Thibodauz, Louisiana.
John Cramer, "Quit Your Kidding Mr. Macy!" Washington Daily News,
9 June 1966, Ervin Notebooks, s-12; Charles Bartlett, "Ervin's Bill Has
Some Non-Jeffersonian Aspects," Greensboro Record, 15 September
1967, Ervin Papers, box 469. Several Tar Heel editorials politely
complained that Ervin's reputation as an ally of "the hardnosed racist
of the Deep South in defense of discrimination" weakened the moral force
of his struggle for privacy. "Ervin is too often identified as a
satellite of the stern, unbending Tories on civil rights and too little
identified with his fine work in behalf of constitutional rights," the
Greensboro Daily News lamented. But the editors also admitted
that while "Senator Ervin's opposition to various civil rights measures
has been definitely more constructive than that of most to the Deep
South spokesmen with whom he chooses to team up, it has been unbroken
and unrelenting all the same." See "Senator Ervin's Niche," Greensboro
Daily News, 12 May 1966, Ervin Notebooks, s-12; "Big Brother
Stalks Capitol Hill," Asheville Citizen, 8 October 1966, Ervin
Notebooks, s-12. A similar debate over Ervin's underlying racial
motivations accompanied his attacks on Thurgood Marshall during the
Justice's confirmation hearings in 1967. The Greensboro Daily News
suggested: "There is prejudice in theory, and there is prejudice in
practice, and there is possibly a condescension far more galling than
naked racism in the virtually insuperable qualifications Senator Ervin
would set up for a new Supreme Court justice." "Pride and Prejudice,"
Greensboro Daily News, 25 August 1967, Ervin notebooks s-12.
 . Karl
Campbell, “Preserving the Constitution, Guarding the Status Quo: Senator
Sam Ervin and Civil Liberties,” North Carolina Historical Review
LXXVIII, no 4, (October 2001):431-456.
Stephen Klitzman, "Sam Ervin: Citizens Look at Congress," Ralph Nader
Congress Project, 1972, 15, 28.
Ervin to Secretary of the Treasury David M. Kennedy, 9 July 1970, Ervin
Ervin's Address to the Wharton School of Finance and Commerce, 6
Ervin discussed the blacklist in his address before the Dickenson
College Public Affairs Symposium, 16 March 1971, Ervin Papers; and it
was reported in the Greensboro Daily News, 16 March 1970, the
Ervin Papers, and in the Winston‑Salem Journal, 8 January 1970,
Dabney, A Good Man, 248‑9.
Nixon's "law and order" program is discussed in, Richard Harris,
Justice: The Crisis of Law, Order, and Freedom in America, (New
York: E.D. Dutton, 1969).
James K. Batten, "Sam Ervin and the Privacy Invaders," The New
Republic, 8 May 1971, 20. For a discussion of Ervin's opposition
see: Erwin Knoll, "Sam Ervin's Thunder and the 'Ominous' Crime Bill,"
The Progressive, September 1970, 19‑22; Clancy, Just a Country
Lawyer, pp. 221‑4; and Dabney, A Good Man, 249‑50.
See: Knoll, "Sam Ervin's Thunder," The Progressive, September
1970, 19‑22; James K. Batten, "Sam Ervin and the Privacy Invaders,"
The New Republic, 8 May 1971, 19‑23; Tom Wicker, "Sen. Ervin and
Individual Rights," New York Times News Service, Winston‑Salem
Journal, 29 March 1970, Ervin Papers; and in retrospect, Tom Wicker,
"The Watergate Committee Chairman's New Clothes," Southern Voices,
March‑April 1974, 7‑8.
Robert Jordan to Sam Ervin, 25 February 1970, Ervin Papers; and
discussed in Kondracke's article "Civilian Data Banks Continue, Despite
Army Disavowal," Chicago Sun‑Times, 27 February 1970.
Clancy, Just a Country Lawyer, 234.
"U.S. to Tighten Its Surveillance of Left‑Wing Groups and Individuals in
an Effort to Prevent Violence," New York Times, 12 April 1970, 1,
69; Memorandum, "Bombing And Arson Attacks in the United States, (n.d.),
H. R. Haldeman Files, Office and Memo Files, Box 70, Folder, "Brown
Follow-up," Richard Nixon Presidential Materials Project, Nixon
Presidential Materials Staff (NPMS), National Archives, College Park,
Jared Stout, "Mitchell Defends Justice Department's Big Brother Role,"
Newhouse News Services, in Staten Island, N.Y. Advance, 19, July
1970. Documentary Analysis, 1971, p. 1660. This claim echoed the
Administration's argument for wiretapping before the Chicago 7 trial one
year earlier. See Pyle, "Military Surveillance," dissertation, 217.
Nixon expanded the questionable wiretapping policies practiced by
previous administrations to a new level of disregard for the law. See
Kutler, Wars of Watergate, 123-25; Theoharis, Spying On
The senator planned to work 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 all of the president's new
surveillance initiatives. U.S., Congress, Senate, Committee on the
Judiciary, Federal Data Banks, Computers, and the Bill of Rights,
Hearings Before the Subcommittee on Constitutional Rights, Part I, 92nd
Cong., 1st sess., 1971 (hereafter cited as "Subcommittee Hearings").
Cong. Rec., 91st Cong., 2nd sess., 26321.
Samuel J. Ervin, Jr., Preserving the Constitution
(Charlottesville, Va.: Michie, 1984), 89.
Pyle, "Unpublished Manuscript," Chapter 9, 1; Samuel Dash, Chief
Counsel: Inside the Ervin Committee (New York: Random House, 1976),
This description of Ervin comes from a telephone interview with Marcia
McNaughton, staff member on the Subcommittee on Constitutional Rights, 9
March 1986, by the author.
Ervin's opening statement, U.S. Congress, Senate, Committee on the
Judiciary, Federal Data Banks, Computers, and the Bill of Rights,
Hearings Before the Subcommittee on Constitutional Rights, Part I, 92nd
Cong., 1st sess., 1971[lvii].,
1 (hereafter cited as "Ervin Hearings, 1971").
On Ervin's use of hearings see Lawrence Leamer, "The Sam Ervin Show,"
Harper's Magazine (March 1972): 80‑86; Tom Wicker, "The Watergate
Committee Chairman's New Clothes," Southern Voices, March‑April
1974, 7‑8; Gladys Engel Lang and Kurt Lang, The Battle for Public
Opinion: The President, the Press and the Polls During Watergate
(New York: Columbia University Press, 1983).
Charlotte Observer, 5 January 1971, Documentary Analysis, 1948;
"Army Doesn't Think So: Ex‑GI Says Local Spy Duty on Civilian Group
Ordered," Colorado Springs Gazette‑Telegraph, 3 May 1970,
Documentary Analysis, 1657.
Michael J. Satchell, Kansas City Times, 22 January 1971,
Documentary Analysis, 1747‑51.
The retired military officers named by Kondracke were Rear Adm. Arnold
E. True and Brig. Gen. Hugh B. Hester.
Another army spy accompanied the Poor People's March in 1968 and was
told to keep a close watch on the rumps of the mules in the march and
record any mistreatment. See Pyle, "Unpublished Manuscript," Chapter 8,
Jared Stout, "Keeping Tabs on Civilians," Nation, 28 December
1970, 681‑3; Pyle, testimony before the Ervin Hearings, 1971, 198‑200;
Cong. Rec., 91st Cong., 2nd sess., 41751‑52; "Army Net to Spy on
War Foes Reported," Washington Star, 3 December 1970, Doc.
Analysis 1769; and Persons of Interest, Life, 26 March 1971,
21‑27. Much of the credit for the press coverage of the army spy
scandal belongs to Christopher Pyle. It was Pyle who contacted NBC,
which paid him $3,500 for his services. Pyle, "Unpublished Manuscript,"
Chapter 8, 5. Pyle later explained that he followed a three-prong
strategy to uncover the full workings of the CONUS system, including
Ervin's subcommittee investigation, the ACLU's court case Laird v.
Tatum, and the investigations and reporting of the press. See Joan
M. Jensen, Army Surveillance in America (New Haven: Yale
University Press, 1991), 250.
The atmosphere in the hearing room was described in the Greensboro
Daily News, 3 March 1971, Ervin Papers, box 470.
Ervin hearings, 1971, 372‑74.
"Ervin Views Army Spying as Illegal," Washington Post, 3 March
Ervin Hearings, 1971, 597‑604.
"Ervin to Quiz Army on Files," Washington Post, 12 March 1971;
Editorial, Washington Post, 17 March 1971.
Tom Wicker, New York Times, 11 March 1971; Chattanooga Times,
21 March 1971, Documentary Analysis, 2007.
"Restraining Big Brother," Albany Times‑Union, 24 March 1971,
Documentary Analysis, 1923.
By the time the hearings ended, Ervin's chief distraction was the legal
brief he was preparing to deliver in the upcoming Swann v.
Charlotte‑Mecklenburg Board of Education busing case. Ervin and the
Defense Department exchanged a series of letters between March and
September of 1971 in which they fought over the testimony of the missing
generals and the declassification of Army documents. See Documentary
J. Anthony Lukas, Nightmare: The Underside of the Nixon Years
(New York: Viking Press, 1973), 35‑40; Clancy, Just a Country Lawyer,
For negative critiques of the Huston Plan see: Donner, The Age of
Surveillance, 265‑268; Theoharis, Spying On Americans, 13‑39;
J. Anthony Lukas, Nightmare, 32‑37, and Kutler, The Wars of
Watergate, 96‑101. For less critical assessments see: Ambrose,
Nixon: Vol. II, 367‑69; and Tom Wicker, One Of Us: Richard Nixon
and the American Dream (New York: Random House, 1991), 629‑32.
Nick Egleson, "The Surveillance Apparatus," in Paul Cowan et al.,
State Secrets: Political Surveillance in America (N.Y.: Holt,
Rinehart, and Wilson, 1974), 14.
For an intriguing but somewhat extravagant hypothesis on how the
military's surveillance of the Nixon White House was at the heart of the
Watergate story see Len Colodny and Robert Gettlin, Silent Coup: The
Removal of a President (New York: St. Martin's Press, 1991.
80. This nickname was first suggested by James
J. Kilpatrick, “Sam Ervin, Founding Father,” Winston-Salem Journal,
29 May 1970.
81. Clancy, Just A Country Lawyer,
statement, Ervin Hearings, 1971, 1.