RELATING TO THE INTERNAL SECURITY OF THE

UNITED STATES

MAY 20, 1949.-Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Mr. WILLIS, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany H. R. 47031

The Committee on the Judiciary, to whom was referred the bill (H. R. 4703) relating to the internal security of the United States, having considered the same, report favorably thereon with amendments and recommend that the bill do pass.

The amendments are as follows:

1. Page 5, strike out lines 15 through 20 and insert in lieu thereof the following:

SEC. 2. (a) The analysis of chapter 213 of title 18, United States Code, immediately preceding section 3281 of such title, is amended by adding at the end thereof the following new item:

"3291. Espionage and security of defense information."

(b) Chapter 213 of title 18, United States Code, is amended by adding after section 3290 the following new section:

"3291. Espionage and security of defense information

An indictment for any violation of section 792, 793, or 794 of this title may be found at any time within ten vears next after such violation shall have been com mitted."

2. Page 7, strike out line 13 and insert in lieu thereof the following:

SEC. 4. (a) The analysis of chapter 67 of title 18, United States Code, immediately preceding section 1381 of such title is amended by adding at the end thereof the following new item:

"1385. Promulgation of security regulations."

(b) Chapter 67 of title 18, United States Code, is amended by adding after section 1384 the following new section:

"1385. Promulgation of security regulations

"(a) Whoever willfully shall violate any such"

H. Repts., 81-1, vol. 3-94

3. Page 8, strike out lines 17 through 21 and insert in lieu thereof the following:

SEC. 5. If any provision of this Act or the application of such provision to any circumstance shall be held invalid, the validity of the remainder of this Act and the application of such provision to other circumstances shall not be affected thereby

4. Page 7, line 8, strike the numeral "8".

EXPLANATION OF AMENDMENTS

1. The amendment to section 2 of the bill is primarily designed for the purpose of incorporating the new material into title 18 of the United States Code in the proper place, in order to obviate further codification at a subsequent date. In addition, the language of the bill reading:

This section shall not authorize prosecution, trial, or punishment for any offense now barred by the provisions of existing law

is intentionally eliminated as surplusage, since the rules of Constitutional law preclude ex post facto laws.

2. The amendment to section 4 of the bill is primarily designed for the purpose of incorporating the new material into title 18 of the United States Code in the proper place, in order to obviate further codification at a subsequent date.

3. The third committee amendment merely converts section 4 (d) of the bill into a new section 5, so that, as a separability provision, it will relate to all sections of the bill and not just to section 4 of the bill. 4. The fourth committee amendment strikes the numeral "8" from the subsection reference in order to conform the amendment designation to the numbering of the sections in the act amended.

GENERAL STATEMENT

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This bill in its original form was drafted by the Interdepartmental Intelligence Committee, a joint group consisting of representatives of the Department of Justice, the Military Intelligence Division of the Department of the Army, the Office of Naval Intelligence of the Department of the Navy, and the Central Intelligence Agency. As drafted, it contained a section permitting the use of evidence in Federal courts secured by means of wire tapping under certain limiting conditions, but this section was deleted prior to the introduction of H. R. 3776, the bill upon which the committee held hearings. though ample notice was given to a large number of organizations active in the field of civil liberties, and although invitations were extended to these organizations to testify at the hearings, none appeared. Certain of these organizations submitted written statements which were considered by the committee. In the course of its hearings the committee saw fit to amend the original bill in a number of technical respects. In the interest of clarity, the committee introduced a clean bill which incorporated the amendments referred to and is reported herewith, amended in certain additional technical respects.

We advocate the passage of this bill because we feel that serious gaps in our present laws permit people, both citizens and aliens alike. opportunities to acquire information vital to our national security and to use that information to the disadvantage and danger of the United

States without fear of prosecution in our courts. Numerous cases have come to light in recent years pointing to the weakness of these laws when they are subjected to attack. There now exists in our midst a threat to our form of government and to the liberties guaranteed to all of us by our Constitution. The magnitude and strength of this threat is something new and strange to America. It is a threat which is most difficult to counteract, particularly when our law-enforcement agencies are hampered by lack of effective laws. In answer to those loyal Americans who say in all sincerity that they fear such a bill encroaches on the rights of Americans, we say that the rights of Americans are fruitless if they are to be destroyed through lack of adequate protection from subversive forces. This bill does not restrict the rights or liberties of any citizen to whom the interests of the United States are paramount. A sovereign state has the right and duty of self-preservation, and this extends to defending itself against enemies from within as well as those from without.

Our armed forces are the primary targets of the agents of espionage, sabotage, and subversion. In their counterintelligence work they are often frustrated by the impossibility of establishing a case under the limitations of present law. We believe that the mere existence of improved security legislation may be sufficient to discourage and prevent a certain amount of espionage. The power of the law can be invoked to control the rest. While military law is adequate to deal with military personnel, most of the troublesome cases of military security violations are by persons not subject to military law. Again, in some cases it may be undesirable for reasons of policy to resort to military law even where the violator is subject to military law, if adequate civil law is available.

This bill will not solve all of the problems of security, but it will be of inestimable assistance to the agencies of the Government charged with responsibility of maintaining national security.

ANALYSIS OF THE BILL

SECTION 1

Section 1 of the bill amends section 793, title 18, United States Code, relating to the gathering, transmitting, or losing of information relating to the national security. Subsections 1 (a), 1 (b), and 1 (c) repeat the first three paragraphs of section 793 with little change. Subsections 1 (d) and 1 (e) of the bill would split the fourth paragraph of section 793 into two parts.

Subsection 1 (d) provides that those having lawful possession of the items described therein relating to the national defense who willfully communicate, or cause to be communicated, or attempt to communicate them to an unauthorized person, or who willfully fail to deliver them to an authorized person on demand, shall be guilty of a crime. No showing of intent is necessary as an element of the offense, provided the possessor has reason to believe that the material communicated could be used to the detriment of the United States or to the advantage of a foreign nation. The absence of a requirement for intent is justified, it is believed, in contrast to the express requirement of intent in subsections 1 (a), 1 (b), and 1 (c), in view of the fact that subsection 1 (d) deals with persons presumably in closer relationship to the Government which they seek to betray.

Subsection 1 (e) provides separately for those who, having unauthorized possession of certain enumerated classes of items, refuse to surrender them to authorized officials regardless of a demand being made. Existing law provides no penalty for the unauthorized possession of such items unless a demand for them is made by a person entitled to receive them. Thus subsection 1 (e) differs from subsection 1 (d) primarily in that a demand for return is a necessary element in making out a case in the latter instance, while it is not required in the former. The term "unauthorized possession" is used deliberately in preference to "unlawful possession." so as to preclude the necessity for proof of illegal possession.

In both subsections 1 (d) and 1 (e) the phrase "or information relating to the national defense" is added as an additional category to the enumerated items to which the prohibitions of the bill extend. In answer to the possible objection that this category is too broad and vague, it is pointed out that the phrase is qualified by "which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation," which are words of limitation subject to definition by the courts in each particular instance. No less a term than that would be sufficient to protect the security of matters which the bill might fail to particularize. The qualification is not intended to qualify the other items enumerated in the subsections.

Subsection 1 (f) amends the existing law which presently provides for the punishment of those who are entrusted with items relating to the national defense and negligently permit their unauthorized removal, by applying the penalty also to such persons who know the material entrusted to them has been illegally removed, or lost, stolen, abstracted, or destroyed, and fail to report it promptly to a superior officer. The danger of such an item as a code book or plan of operation being lost, stolen, or compromised by an enemy or prospective enemy needs no emphasis. For example, it is now public knowledge that our compromise of an enemy coding system was an important factor in our defense and operations against the enemy in the early and vital stages of the recent war. Contemplate the drastic potential consequences to the safety of the Nation were such circumstances reversed and it is clear how vital it is to require the prompt reporting of such knowledge to responsible officials.

The net effect of subsection 1 (g) is to increase the punishment for conspiracy to commit the forbidden acts from $10,000 or 5 years, or both, as is now the case under the general conspiracy statute (sec. 371, title 18, U. S. C.), to $10,000 or 10 years, or both, thereby making a conspiracy to commit the offense as grave as the crime itself. Moreover, section 794 of title 18, United States Code, contains a separate conspiracy provision, and it might be argued, however illogically, that the absence of a conspiracy provision in section 793 is an indication of a congressional intent to sanction conspiratorial violations of the section. Such is certainly not the intention of this committee, but rather, it is to increase the severity of the punishment which would be otherwise allowable under the general conspiracy statute.

Where used in several subsections of section 1 of the bill, the word "matter" refers to physical substances of a classified nature of intrinsic importance to the national defense.