5 U.S.C., Sec. 3301. Civil service; generally. 5 U.S.C., Sec. 3571. Reinstatement or restoration; individuals suspended or removed for national security__ 5 U.S.C., Sec. 7301. Presidential regulations_ 5 U.S.C., Sec. 7313. Riots and civil disorders.. 5 U.S.C., Sec. 7501. Cause; procedure; exception. 5 U.S.C., Sec. 7512. Cause; procedure; exception. OTHER PERTINENT STATUTORY PROVISIONS American Servicemen's Union, et al. v. John N. Mitchell, et al., U.S. District 178 259 189 SUPPLEMENTAL MATERIAL Hruska, Hon. Roman L., a U.S. Senator from the State of Nebraska, Countryman, Vern, professor of law, Harvard University; vice chairman, New England Region, National Committee Against Repressive Legisla- tion, "An Analysis of President Nixon's Executive Order 11605 Regard- -Report, "Executive Orders; A Brief History of Their Use and the -American Law Division memorandum, "Executive Orders, Issued During 1959-69, which are Vulnerable to Challenge_as_Entailing an Encroachment upon the Legislative Powers of Congress,' -American Law Division memorandum, "Bibliography on the Library of Congress, Congressional Research Service: -Report, "The Present Status of the Subversive Activities Control Board," April 21, 1969; revised July 2, 1970, and August 10, 1971-- -American Law Division memorandum, November 29, 1971. NEWS ARTICLES Baltimore Evening Sun, "Sadly, SACB Survives," July 20, 1971---- Boston Globe, Boston, Mass., "A $450,000 Boondoggle," July 21, 1971--- Boston Globe, Boston, Mass., "A Welcome Challenge," September 3, 1971- Breasted, David, Daily News, New York, N. Y., “Ervin Calls Nixon Order 169 Columbian, Vancouver, Wash., "A Tougher Stance?" July 21, 1971--- Constantine, Gus, The Evening Star, Washington, D.C., "Subversives Unit Showdown Near," July 18, 1971- Edwards, Willard, Chicago Tribune, “Debate in Senate Inconsistent," Enquirer and News, Battle Creek, Mich., "No Need for SACB, Leave It 313 The Evening Star, Washington, D.C., "No Time for Witch Hunts," 308 Greensboro Daily News, Greensboro, N.C., editorial, "Funeral for a Fossil," Houston Post, Houston, Tex., "SACB's New Challenge," August 23, 1971- Kilpatrick, James J., The Evening Star, Washington, D.C., "Nixon's Bold Matthews, Curt, The Post-Dispatch, St. Louis, Mo., "Subversive Unit's 311 Miami Herald, Miami, Fla., "Ervin Scores Probers of Subversives," Octo- 317 Miami News, Miami, Fla., "Gurney Hits Subversion, Seeks Action,' 317 Patriot Ledger, Quincy, Mass., editorial, "Hanging On," July 22, 1971- The Roanoke Times, Roanoke, Va., "SACB-Back in Business," August Roberts, Archibald E., Lt. Col., AUS, ret., Borger (Tex.) News Herald, "State of National Emergency Legalizes the Executive Orders: The Sheboygan Press, Sheboygan, Wis., "Executive Authority," July 23, 1971__ Strout, Richard L., The Christian Science Monitor, "Antisubversion The Washington Post, Washington, D.C., editorial, "Curbing Freedom of 295 PRESIDENT NIXON'S EXECUTIVE ORDER 11605 RELATING ΤΟ THE SUBVERSIVE ACTIVITIES CONTROL BOARD AND S. 2466 AND S. RES. 163 TUESDAY, OCTOBER 5, 1971 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to notice, at 10:25 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding. Present: Senators Ervin (presiding) and Gurney. Also present: Rufus L. Edmisten, chief counsel and staff director; Joel Abramson, minority counsel; Prof. Philip B. Kurland, University of Chicago Law School, chief consultant; Prof. Ralph K. Winter, Jr., Yale Law School, consultant, and Prof. Arthur S. Miller, The George Washington University National Law Center, consultant. Senator ERVIN. The committee will come to order. Today, the Subcommittee on Separation of Powers begins hearings on Executive Order 11605, issued on July 2, 1971, which undertakes to grant to the Subversive Activities Control Board new, sweeping powers to investigate various organizations and groups in America to determine if they are intelligently or politically dangerous to the security of the Nation. There are many of us who feel that the promulgation of this Executive order was beyond the constitutional power of the President. To my mind, it flies directly in the face of article I, sections 1 and 8, of the Constitution, which quite plainly places "all legislative powers" in the Congress. To remedy the damage done to the doctrine of separation of powers by Executive Order 11605, I have introduced two pieces of legislation, both of which are subject to our consideration at these hearings. The first is S. 2466, which provides that it "shall be unlawful for any employee of the Department of Justice or any employee of the Subversive Activities Control Board to carry out or attempt to carry out any of the additional functions, duties, or powers which Executive Order 11605 *** purports or undertakes to confer on the Board." The bill also provides that no appropriated moneys "shall be made available to the Department of Justice or the Board to execute or implement any of the additional functions, duties, or powers" under Exêcutive Order 11605. The second is Senate Resolution 163, a sense of the Senate resolution which would disapprove of Executive Order 11605 as "an attempt to usurp the legislative powers conferred on Congress by the Constitution" and "as an infringement of the first amendment rights of all Americans." The resolution calls on the President to revoke the order or "to amend or revise it to bring it into conformity with article I, Section 1 and the first amendment to the Constitution." THE FIRST AMENDMENT To discuss Executive Order 11605 and its ramifications, it is necessary first to examine the first amendment. This is so because the order obviously is inspired by a lack of faith in the first amendment freedoms and a fear of their exercise by persons whose thoughts and words are understandably offensive to the established order. The first amendment outlaws governmental action which abridges freedom of thought, or freedom of speech, or freedom of the press, or freedom of association, or freedom of assembly, or freedom of petition, or freedom of religion. These freedoms embrace and nourish a kindred freedom, the freedom of dissent. These freedoms, which may be called first amendment freedoms, were created to make Americans politically, intellectually, and spiritually free. The novelist Thomas Wolfe, sensed this when he said: So, then, to every man his chance to every man, regardless of his birth, his shining, golden opportunity-to every man the right to live, to work, to be himself, and to become whatever thing his manhood and his vision can combine to make this, seeker, is the promise of America. I do not believe ✶ ✶ ✶ that the ideas represented by "freedom of thought," "freedom of speech," "freedom of press," and "free assembly" are just rhetorical myths. I believe rather that they are among the most valuable realities that men have gained, and that if they are destroyed men will again fight to have them. The first amendment grants its freedoms to all persons within the boundaries of our country without regard to whether they are wise or foolish, learned or ignorant, profound or shallow, brave or timid, or devout or ungodly, and without regard to whether they love or hate our country and its institutions. Consequently, the amendment protects the expression of all kinds of ideas, no matter how antiquated, novel, or queer they may be. In the final analysis, the first amendment is based upon an abiding faith that our country has nothing to fear from the exercise of its freedom as long as it leaves truth free to combat error. I share this faith. To be sure, the exercise of first amendment rights by others may annoy us and subject us at times to tirades of intellectual or political rubbish. This is a small price to pay, however, for the benefits which the exercise of these rights bestows on our country. THE NATURE OF FIRST AMENDMENT FREEDOMS The first amendment protects the expression of ideas, not the commission of acts, and for this reason cannot be invoked to justify criminal or violent deeds. It is explicit in the first amendment that the freedom of the people to assemble to petition for the redress of grievances must be exercised peaceably; and it is implicit in it that the other freedoms it secures must be exercised in like manner. |