Filegate May Be Good For Us
                                     
     For civil libertarians who have long been concerned about the
proliferation of investigative files in the control of government
agencies, filegate may well have a silver lining.
     For the first time, the politically conservative heirs of J.
Edgar Hoover and Richard Nixon have come to realize how dangerous
it is for public agencies to be allowed to gather and maintain
information on the private activities of political adversaries.
     This could be like the Nixon-to-China gambit.  Just as it was
only possible for a rabid anti-communist like Nixon to recognize
Red China, it may be that Republican outrage over political
surveillance files will finally put a stop to the whole process.
                                   * * *
     Back in 1969 and 1970, I brought the first two law suits on
behalf of the ACLU against police and military agencies challenging
the widespread practice of building dossiers on anti-war and civil
rights activists.  It was taken for granted at the time that
Hoover's FBI and a host of state and local police agencies
maintained extensive files on such individuals' lawful political
activities -- attendance at public meetings, gathering petitions,
writing letters to editors, marching in parades and demonstrations,
distributing flyers and leaflets.  
     The general response to such challenges was a shrug and a
yawn.
     Some public interest was finally stirred by the revelation
that the Army had gotten into the act, having set up a Domestic
Intelligence Program to gather information and build dossiers on
civilian activists with no connection to the military.  The Senate
Constitutional Rights subcommittee, chaired by Sam Ervin of North
Carolina, conducted well publicized hearings into the military's
surveillance activities in the spring of 1971.  But the Nixon
Administration sent an Assistant Attorney General named William
Rehnquist to defend the program and to argue with Senator Ervin
over whether the federal courts had any business considering a
legal challenge to the program under the First Amendment.
     By the time that case reached the Supreme Court, President
Nixon had made the same attorney Rehnquist a member of the high
court, allowing him to cast the decisive vote dismissing the ACLU's
challenge.
     Interestingly, not a single Republican opposed Justice
Rehnquist's elevation to Chief Justice by president Ronald Reagan
in 1986, despite a spirited attack on Rehnquist's role as both a
defender of and an advocate for the military's political
surveillance program a decade and a half earlier.  Apparently,
Republicans in neither the Seventies nor the Eighties found
anything to be upset about in such a system of political spying on
American civilians, even when it was carried out by the military.
     Actually, in the mid-Seventies -- as a consequence of
Watergate and some of the seamier revelations about J. Edgar's
Hoover's misuse of FBI files for his own political purposes --
Congress did get around to passing the Federal Privacy Act, which
was supposed to restrict the untrammeled collection and
dissemination of data on Americans' political activities by federal
agencies.  But that legislation has been honored mostly in the
breach by the FBI, and has been all but gutted by narrow
interpretations handed down by federal judges appointed, in the
main, by Republican Presidents.
     That's why it is suddenly so wonderful to see the light bulb
of recognition going off in the minds of Republican legislators,
many of whom, like Bob Dole, never expressed the slightest concern
over political surveillance files so long as they didn't target
Republicans.
     Let us now see if conservative politicians will put their
votes where their rhetoric is and really do something about
restricting the FBI (and other police agencies) from gathering and
disseminating private information about individuals just because
they take an active part in our nation's political processes.
     For years Rep. John Conyers, Jr. and former Rep. Don Edwards,
who was chair of the House Judiciary Subcommittee on Constitutional
Rights, sponsored legislation to just that end.  It seldom
generated much support.  If Bob Dole and Newt Gingrich were to take
up its cause, maybe filegate will do some good after all.

(An edited version was printed on the New York Times Op Ed Page,
July 6, 1996)