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The CHAIRMAN. The first witness today is Mr. John Mahan, Chairman of the Subversive Activities Control Board.

Mr. Mahan, do you have a prepared statement?
Mr. MAHAN. No, I do not, Mr. Chairman.

Mr. SOURWINE. Mr. Chairman, before Mr. Mahan testifies, may I ask that there be inserted in the record a brief biographical sketch of the witness?

The CHAIRMAN. It will be admitted.

BIOGRAPHICAL SKETCH OF John W. Mahan, CHAIRMAN SUBVERSIVE ACTIVITIES

CONTROL BOARD John W. Mahan is from the State of Montana. He served in the Marine Corps during World War II as a pilot (dive bomber), attaining the rank of Major. He received his LLB. from the University of Montana in 1949. He was admitted to the Montana State Bar in 1949. He was engaged in the private practice of law in Helena, Montana, from 1949 to 1965. Acted on several occasions as Special Assistant to the Attorney General of the State of Montana. He was National Commander of the Veterans of Foreign Wars of the United States from 1958 to 1959. On October 11, 1965, he was appointed to the Subversive Activities Control Board. He was appointed Chairman of the Board on December 27, 1965. Mr. Mahan is a Democrat.

Mr. SOURwINE. I might say, Mr. Chairman, Mr. Mahan is appearing here on short notice. He was advised that he would not be asked for a prepared statement. I respectfully suggest that if the Subversive Activities Control Board wants to submit a prepared statement, a written statement with respect to this bill, sometime before the hearing closes, it might be made a part of the record at the chair's pleasure.

The CHAIRMAN. Yes.

Mr. SOURWINE. Since Mr. Mahan has been advised only generally with respect to the nature of the questions to be asked of him, I would like to ask this preliminary question.

Mr. Mahan, should we assume that you are speaking for the Board, or because of the short notice should we assume that you are speaking only for yourself with respect to questions where an expression of opinion is called for?

STATEMENT OF JOHN W. MAHAN, CHAIRMAN OF THE SUBVER

SIVE ACTIVITIES CONTROL BOARD; ACCOMPANIED BY FRANK R. HUNTER, JR., GENERAL COUNSEL

Mr. Mahan. Speaking for myself, Mr. Sourwine.

Mr. SOURWINE. With respect to questions of fact, Mr. Chairman, the committee can be sure that Mr. Mahan is entirely competent to give the committee the information it wants.

Title II of this bill, which begins on page 9 of the bill, consists of amendments to the Internal Security Act of 1950. We have some questions with respect to this portion of the bill. We will not question Mr. Mahan about other portions of the bill, although, if the Board feels that it is affected by other portions of the bill and wants to make a representation, under the chair's ruling that might be done.

Do you have a copy of the bill there, Mr. Mahan?
Mr. Mahan. Yes, I do, Mr. Sourwine.

Mr. SOURWINE. If you look at page 9, you will find in section 201 a proposed new subsection to be inserted in section 12 of the Subversive Activities Control Act.

This new subsection, Mr. Mahan, would provide that the term of office of each member of the Subversive Control Board who is appointed after January 1, 1969, "shall be for 7 years from the date of expiration of the term of his predecessor.

What is the present term for a member of the Subversive Activities Control Board?

Mr. Mahan. The present term is 5 years.

Mr. SOURWINE. The purpose of the proposal to increase the terms of the Board members is primarily to preserve the expertness which members of the Board acquire by reason of their service. The Board is a quasi-judicial body. The committee would be interested, Mr. Mahan, in your opinion with respect to the desirability of this provision for the extending the terms of Board members.

Mr. MAHAN. Well, I think that the longer terms are desirable. The more experienced the members are, the more our decisionmaking can be expedited. It takes time to become familiar with and have a working knowledge of the many precedents and guidelines developed over the years. Many of the proceedings have been quite protracted. In fact, in the Mine Mill case we had 120 witnesses. Longer terms would lessen the number of instances where a member's term expires after he has read the record, and after the final argument, but before the findings of fact and conclusions of law. And, therefore, I would say it would be desirable to have longer terms.

Mr. SOURWINE. If you look at the top of page 10 of the bill, Mr. Mahan, you will find another proposed new provision, which if the bill should be enacted, will be inserted in the Subversive Activities Control Act.

This provision--perhaps I should read it into the record—is as follows:

The Chairman shall function as a Chief Executive and Administrative Officer of the Board with respect to (1) the appointment and supervision of personnel employed under the Board, except such personnel employed regularly and full time in the immediate offices of members of the Board other than the Chairman, and (2) the use and expenditure of funds, except that the Board shall have the functions of preparing and revising budget estimates and determining upon the distribution of appropriated funds according to major programs and purposes.

Mr. Mahan, if this provision should be enacted, how would it change the present procedure under existing law?

Mr. Mahan. At the present time each member of the Board has an equal vote on all matters, which includes personnel and normal administrative matters. This would change it so that the Chairman would have that duty, and I think it would avoid any need to spend time at Board meetings in relation to personnel or administrative matters.

I personally think it is a desirable matter, and should be enacted in the law.

Mr. SOURWINE. Have you had occasion to discuss this provision or the substance of it with any of the members of the Board?

Mr. Mahan. I did yesterday, and no one objected to it. And I foresee no objection to it.

Mr. SOURWINE. Further along on page 10 of the bill, Mr. Mahan, beginning on line 14, there is a provision for repeal of subsection (i) of section 12 of the Subversive Activities Control Act.

Would you tell us for the record what would be the result of this repeal?

Mr. Mahan. Subsection (i) of section 12 was added by legislation which became effective just last month. In substance, it provides that if the Board has no significant work to do during the present calendar year, the Board shall cease to exist on June 30, 1969. This was commonly referred to as the Proxmire-Dirksen-Mansfield amendment to the bill that passed last year.

I might add that I personally have no quarrel with this provision. The Internal Security Act of 1968 which this committee is now considering will place new and additional duties and responsibilities on this Board. Obviously the Board cannot perform these duties if the work brought before it in the next 10 months under existing law is determined by the Congress to be insufficient to warrant the Board's continued existence.

Mr. SOURWINE. Under existing law, that is the recently passed amendment that you have referred to, is the determination as to whether the Board is to continue an automatic one or will it be left to the discretion of the Congress?

Mr. Mahan. Under the law that was passed, this amendment, on June 30 of this year the Attorney General and the Board report to Congress the progress made in relation to cases brought before the Board. Then on December, at the end of the year, another report is made by the Attorney General and the Board to Congress to determine whether or not the Board has tried any cases, and whether they have conducted proceedings. If no proceedings are conducted, then it is up to Congress to dissolve the Board on June 30, 1969.

Mr. SOURWINE. You say it is up to Congress?
Mr. Mahan. It is automatic, Mr. Sourwine.
Mr. SOURWINE. It is automatic?

Mr. Mahan. If they report the Board has had no cases and has had no proceedings.

Mr. SOURWINE. In other words, the existing provision of law contains a requirement that the Board go out of business if it has had no proceedings before it by the end of this year, is that the termination date?

Mr. Mahan. That is correct.
Mr. SOURWINE. Congress would have no authority in that matter?

Mr. Mahan. No. It would be in the hands of the Attorney General—if no proceedings were filed and no hearings conducted.

Mr. SOURWINE. If the provision on page 10 of the bill for repeal of this new subsection (i) recently added to section 12 should be enacted as part of this bill, it would not prevent Congress from terininating the Board at the end of this year or at any other time if in the opinion of the Congress that should be called for, would it?

Mr. MAHAN. That is correct.

Mr. SOURWINE. But it would take away from the Attorney General the, shall we say, ability or opportunity to terminate the Board by failing to file any cases before it? Mr. Mahan. That is right. Mr. SOURWINE. Do you favor the repeal of subsection (i)?

Mr. Mahan. It seems to me if this bill passes that the economies and uniformity gained by having an existing agency, the Subversive Activities Control Board, handle some of the provisions of this new legislation justifies repealing subsection (i) of section 12.

Mr. SOURWINE. Now, there is a provision in this bill, is there not, which would make the Subversive Activities Control Board a forum to which any person considering himself disadvantaged in his efforts to secure employment in the industrial security program, could appeal for an opportunity to have justice?

Mr. MAHAN. That is correct.

Mr. SOURwINE. If in the judgment of Congress this is a good idea, and these people should be given such a forum, would it make sense to provide the forum and still retain a provision that would delete that forum, wipe it out of existence, a few months after it had been created?

Mr. Mahan. It would be very foolish, I believe, to do such a thing.

Mr. SOURWINE. Beginning on line 15, page 10, Mr. Mahan, are provisions amending the executive pay schedule so as to increase the compensation of the members of the Subversive Activities Control Board? Would you tell the committee for the record what these provisions would accomplish if enacted?

Mr. Mahan. It deals with a salary increase of about $750 a year to the members of the Board. Now we are in level 5 of the Federal executive salary schedule. My understanding is from checking the law that this would place the Board in level 4.

Mr. SOURWINE. Well, in dollars and cents, what does that mean as present salary and what would it mean as increased salary?

Mr. Mahan. Today they receive $28,000 a year. It would mean $28,750 a year.

Mr. SOURWINE. Would this be true of the Chairman also?

Mr. MAHAN. I did not check. I do not believe so. I think that the Chairman is changed to schedule 3. And what that pay is, I do not have before me.

Mr. SOURWINE. Does the Chairman now receive a larger sum than other members of the Board?

Mr. Mahan. No; he does not, Mr. Sourwine.

Mr. SOURWINE. This would create a differential between the Chairman and the other members of the Board?

Mr. MAHAN. That is correct.

Mr. SOURWINE. The reasoning back of this proposal, of course, is that with the substantially increased duties which would be imposed upon the Board through enactment of this bill, positions on the Board will have increased importance, and the compensation of Board members should be increased accordingly.

Do you have any comment on that information? Do you think that is a justified view, a justifiable view?

Mr. MAHAN. I have no particular comment, but I assume that this is designed as a matter of comparability. If this bill is enacted, there will be more work for the Board to do in additional fields.

Mr. SOURWINE. You mentioned comparability. With what other officials of the Government would the Board members be made comparable with respect to pay if this new provision should be enacted?

Mr. Mahan. They would be comparable to the Civil Aeronautics Board, the Federal Communications Commission, the Federal Trade Commission, the National Mediation Board, the Railroad Retirement Board. My recollection from checking the law is that about 70 agencies or titles are covered under level 4.

Mr. SOURWINE. Now, if you look at the top of page 11, Mr. Mahan, there is a provision for striking out items 34 and 92 of the executive pay schedule. So that the record will be clear with respect to this provision, and no one will fall into the error of thinking that something of any substance is being repealed, tell us what are items 34 and 92?

Mr. Mahan. Item 34 merely repeals the pay level of No. 5 for the Board members, and 92 for the Chairman.

Mr. SOURWINE. In other words, the preceding section which we have just discussed set the new pay rates, and this is just to repeal the old ones.

Mr. MAHAN. That is correct.

Mr. SOURWINE. Beginning at line 3, page 11, is a proposed amendment to section 14 of the Subversive Activities Control Act to provide that in any repeal or review of the Board action, the sole question to be decided shall be the validity of the decision and order of the Board at the time of issuance thereof.

Can you explain for the record—and please in layman's language the significance of this provision.

Mr. MAHAN. Well, the statute quite properly gives an absolute right to judicial review of the Board determinations.

If an order of the Board is appealed, the order does not become effective until and unless upheld on judicial review in the Court of Claims.

Mr. SOURWINE. That is under the present law.

Mr. MAHAN. Correct. In some instances a long time elapses during the judicial review process. This comes from the times allowed for briefs, recesses of the courts during the summer months, and other reasons. There have been two cases—the American Committee for the Protection of Foreign Born, and the Abraham Lincoln Brigade cases, where the Supreme Court has declined to consider the merits of the orders issued

by the Board on the grounds that the records had become stale. The cases were sent back to the Board to reopen the records, hold further hearings, and determine the current status of the organizations involved. This staleness doctrine was then followed by the court of appeals in the Mine Mill case, which was a Communist infiltration case, in refusing to rule on a decision and order of the Board after the case had been brought before the court for more than a year. The court had deferred its decision until the Supreme Court ruled in a case that the court of appeals thought would have a bearing on the case before it.

As I understand section 202, this would establish the intent of Congress and assure that the court's rule on the validity of the Board decisions and orders at the time issued by the Board. The courts would be directed to decide the appeals on the merits rather than invoke the staleness doctrine if for some reason judicial review is deferred for a period of time.

It is important to note that no hardship or unfairness could result from this provision. If judicial review takes a long time in a particular case, and the Communist status of the organization or individual as determined to exist by the Board changes, there is a statutory means to obtain relief. The status gives any organization or any individual once found to come within this act the right to petition the Board for redetermination.

Summarized, the decision of the Board does not become effective unless upheld if appealed to the courts. On the other hand, any organization or individual which bona fidely changes its Communist nature can have the earlier determination cease being effective. This

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