lawfully advocating the commission of acts of force or violence to deny others their rights" under federal or state laws or constitutions, and those who seek "to overthrow the government of the United States or any state or subdivision thereof by unlawful means." No sane American wishes to see fascism, Communism or any other movement advocating violent overthrow rampant in the country, but most Americans have assumed that these dangers were being dealt with by the FBI, the CIA, the Secret Service and various state and municipal law-enforcement bodies. The broad language in the executive order, Sen. Ervin believes, opens the way for the harassment of any group whose ideas do not exactly coincide with those of the SACB members. This nation has no need of a return to McCarthyism. [From The Valley News, Lebanon, N.H., Aug. 25, 1971] "The Founding Fathers never contemplated that the Congress of the United States would set up a board and give it jurisdiction to finger individuals or groups of individuals who had committed no crime, saying that their thoughts and their words were unpopular or displeasing to government .. Thus Sam Ervin (D-N.C.) admonished his colleagues two weeks ago not to uphold the President's attempt to expand the authority of the nearly-defunct Subversive Activities Control Board (SACB). For more than an hour, Ervin eloquently cited 20 years of chapter and verse on SACB-an investigatory board of dubious purpose established in 1950, but later stripped of virtually all powers by federal and Supreme Court decisions. Ervlin almost won his case. Even in losing, 46 to 44, his oratorical tour de force would have earned the admiration of a Daniel Webster. If Webster had been watching the Senate proceedings, however, his delight in Ervin's defense of civil freedoms might have been muted by the Senators from New Hampshire whose votes in favor of SACB's new powers mocked "Live Free or Die." Ervin branded these powers-contained in the President's July 2 executive order widening SACB's responsibilities—as alien to the American system of government, an abridgement of the first amendment, and usurpation of Congressional prerogative. SACB until now has existed largely on paper. Its only legal function has been to "register" Communist and Communist-related organizations. In 21 years it has "registered" just one organization-the Communist Party of the U.S.A. The President, however, decided to give SACB a new mandate lest its staff perish from ennui. The executive order extends the board's jurisdiction to determining whether an organization is fascist, totalitarian, subversive, "unlawfully advocates" force or violence to deprive others of their constitutional rights, or seeks to overthrow the government. The definitions of "fascist," "totalitarian," "subversive" and "Communist" are sufficiently broad to embrace any group or activity which the board chooses to consider actually or conceivably harmful to the government. Ervin challenged before the Senate the veracity of an administration statement justifying SACB's rejuvenation which implied that non-Soviet Communist groups and revolutionary organizations are mounting an infiltration of government agencies, the Pentagon included. With words that might have been directed 17 years ago to Sen. Joseph McCarthy's vague utterings of traitors in government, Ervin said: "If anybody has any knowledge that any disloyal personnel are working in the Department of Defense or in any other department or agency of this government, all he has to do is report that to the heads of those departments or agencies and they can be removed." Ervin quoted Congressional testimony from an official of the Civil Service Commission that only 16 applicants for government service had been disqualified on grounds of questionable loyalty between 1956 and 1970. Could those lonely 16. Ervin asked the Senate, topple a nation of 200 million? Who, then, needs SACB? 70-655-72-21 Certainly not the government, which already deploys the FBI, the Civil Service Commission, the House Internal Security Committee and who-knows-what other bodies to safeguard the nation against darkly-hinted subversion. The Senate vote would have been slightly more palatable if some Senators had not intimated that they were voting on the side of security for reasons of legislative and political expediency-knowing that the Supreme Court may well invalidate SACB's new powers in any case. No Senator rose to refute Sam Ervin's assertion that SACB and the President's executive order are affronts to the Constitution. There were mumblings, "Let the courts decide." The vote was taken and the buck passed. Some U.S. Senators, evidently unwilling to trust their own judgment on an issue of constitutionality, would rather abdicate to the "strict constructionists" of the Supreme Court who need answer only to the law, not-as our Senators must-to the people. [From The Boston Globe, Sept. 3, 1971] A WELCOME CHALLENGE The Subversive Activities Control Board, which has had its powers of investigation and exposure severely cut back by congressional and court decisions, is fighting for a new lease on life. Mr. Nixon last month issued an executive order purporting to empower the SACB to determine whether a domestic political group may be described as "totalitarian," "Fascist" "Communist," or "subversive." This may have been an effort to turn back the clock to the witch-hunting days of the late Sen. Joseph McCarthy. Certainly, it would have had the much more pragmatic effect of giving the five members of the board a semblance of an excuse for receiving $36,000 apiece every year from the public treasury. Now, fortunately, the American Civil Liberties Union, representing nine organizations, has challenged the Presidents order in Federal Court. The organizations contend that, once subject to proceedings of the SACB, their members "will be punished, penalized, burdened, deprived of government employment, and suffer irreparable injury solely because of their political beliefs and associations." The perniciousness of the President's order is underscored by the fact that the leading Senate opponent of making any further funds available to the SACB is Sen. Sam J. Ervin, Jr. (D-NC), who can scarcely be characterized as a radical. But even he failed to stop the SACB appropriation before the Senate started its current vacation. The very existence of the board, of course, is an affront to the US Constitution's protections of free speech, assembly and petition to the government for the redress of grievances. May the Civil Liberties Union's action against the President's order be speedily approved by the courts. [From The Washington Post, Sept. 6, 1971] GOVERNMENTAL BLACKLISTS With Sen. Sam Ervin getting ready to challenge it in Congress, the President's recent Executive Order 11605 expanding the scope of the Subversive Activities Control Board has just been challenged by the American Civil Liberties Union in the courts. Both lines of attack seem to us justified and, indeed, imperative. The executive order would empower the SACB, in effect, to blacklist any group or association of Americans by deciding that it is "totalitarian, fascist, communist, subversive" or otherwise offensive to the powers that be. What the order does, specifically, is to revive that ancient dragnet, the so-called "Attorney General's list," and confer the power to continue it on the idle and virtually defunct SACB. Senator Ervin's attack is primarily concerned, as it naturally should be, with the executive order's intrusion on the legislative functions of Congress. The SACB was created by Congress to do one thing; the President, without so much as a by-your-leave or a request for an amendment of the law, has told the SACB to do something quite different. If the President can devise agencies and assign them duties without reference to any legislative authorization, he really doesn't have any need of a Congress at all. He could just let the Department of Justice write the nation's laws-or the SACB-and let the Congress write its songs. The ACLU attack also deals with this disregard of the tripartite nature of the American government but aims more directly, as one would expect, at the incursion of the executive order on rights guaranteed by the First Amendment. The executive order is unconstitutional, the ACLU contends because it abridges freedom of speech, freedom of assembly and freedom of association. Who could feel free to join an organization if an agency of the United States Government has branded it "totalitarian, fascist, communist or subversive?"—and especially if anyone belonging to it is automatically ineligible for a government job or a job in any plant doing defense work for the government? The power to blacklist, if we may paraphrase an old legal axion-is the power to destroy. But the government of a free country doesn't destroy voluntary associations of citizens because of what they believe or what they advocate. It attacks them only if they break the law; and then it does so through the normal processes of indictment and trial in a court of law. What the President has authorized the SACB to do under his executive order amounts, in truth, as the legal director of the ACLU has charged, to a "scheme of political thought control." What makes an organization "subversive?" The term is so vague as to enable the SACB to blacklist any group it doesn't like, any group which advocates ideas disapproved by the administration. If individuals acting singly or collectively commit sabotage or espionage or arson or any other crime, they ought to be prosecuted, of course, to the full extent of the law. But to let the government proscribe them for their aims and ideas is to undermine the very foundation of freedom. [From The Miami Herald, Oct. 6, 1971] ERVIN SCORES PROBERS OF SUBVERSIVES WASHINGTON.-John W. Mahan, chairman of the Subversive Activities Control Board, told a Senate committee Tuesday that the board had the authority to investigate organizations even if their members were not seeking federal jobs. Under questioning by Sen. Sam Ervin (D., N.C.), Mahan said President Nixon's executive orders broadening the powers of the board permitted it to hold hearings to decide whether any group should be labeled subversive-so long as the Atttorney General asked for it. And Mahan said testimony on membership in the groups it was scrutinizing would be available to the public, regardless of whether the groups were found to be subversive. Ervin charged that Nixon had usurped the power of Congress and given the board "vast power to harass and stigmatize Americans." Ervin has introduced bills to prevent board members from performing their jobs. Sen. Edward Gurney (R., Fla.) defended the board and its new powers, which he said he did not view "as a prelude to out-and-out witchhunting." Gurney asserted that taxpayers were "entitled to have the background and character of good employes thoroughly investigated." [From The Miami News, Oct. 6, 1971] GURNEY HITS SUBVERSION, SEEKS ACTION WASHINGTON.— -Florida's Sen. Edward Gurney made a strong and emotional plea for expansion of the activities of the controversial Subversives Activity Control Board. Last July 7 the President issued an executive order expanding the board's authority. However, Sen. Sam Ervin (D-N.C), chairman of the Senate judiciary subcommittee on the separation of powers has charged that the executive order is unconstitutional. Ervin maintained that Nixon's order gave the board "new sweeping powers far in excess of those Congress sought to give it . . . In his attempt to expand the power of the board, President Nixon undertook to make law." Gurney said that the critics of the board were using the guise of social concern while sharing "the desire and intention to destroy this government and its institutions." He said that the time has come to cut through what he called the difference between peaceful and lawful expressions and "the violent seditious activities of those who would clutch the mantle of social concern in one hand and a Molotov cocktail in the other." "What infuriates me more than anything else, perhaps, is that we are told that society cannot protect itself. We are told that society must permit those actively engaged in its destruction free reign. This is absurd. [From the New York Daily News, Oct. 6, 1971] ERVIN CALLS NIXON ORDER ILLEGAL (By David Breasted) WASHINGTON, October 4.-President Nixon's executive order delegating extensive new powers to the Subversive Activities Control Board violates both the First Amendment and the limits to the authority that Congress has granted to the President, Sen. Sam Ervin charged today. Nixon's July 2 order transferred from the attorney general to the board authority to hold hearings to determine whether any organization is "totalitarian, fascist, communist . . . (or) subversive" and set down four guidelines for such determination. The order specified that knowing membership in, or affiliation "or sypmathetic association with" subversive organizations or groups advocating violence should be taken into account as a factor in considering an individual for government employment. "A DIFFERENT KETTLE OF FISH" Ervin, chairman of the Senate separation of powers subcommittee, which opened hearings on the presidential order today, said that the Nixon order was "a different kettle of fish" from the 1953 order of President Eisenhower setting forth the functions of the board. Ervin said: "In his attmept to expand the power of the board, President Nixon undertook to make law." Several Supreme Court and appellate court decisions over the years have left the board with virtually nothing to do, but Congress still renewed its budget this year for $450,000. SPEAKS UP FOR NIXON Assistant Attorney General William H. Rehnquist, citing previous executive orders as precedent, insisted that "there is complete and adequate legal basis" for Nixon's order. Ervin charged that the "real objective of the order is to empower the board to brand the organizations and groups specified in it as intellectually or politically dangerous to the established order," and that it flies in the face of the First Amendment and due process rights of the Fifth Amendment. Rehnquist said that if the President has the right to delegate the authority to investigate subversion to the attorney general, he has the authority to transfer it to the board. [From The New York Times, Oct. 6, 1971] ERVIN DENOUNCES NIXON REVIVAL OF SUBVERSIVES BOARD (By Dana Adams Schmidt) WASHINGTON, October 5.-Senator Sam J. Ervin, Jr., denounced today President Nixon's order reviving the Subversive Activities Control Board, terming it unconstitutional and illegal. Assistant Attorney General William H. Rehnquist and the chairman of the control board, John W. Mahan, defended the order as an excellent contribution to national security, contending that it safeguarded the rights of individuals more fully than previous orders regulating the board. The exchange took place at the opening of hearings on the order before the Senate Judiciary Committee's Subcommittee on Separation of Powers. President Nixon's order on July 2 amends an order issued by President Eisenhower in 1953 to establish loyalty and security requirements for Government employment. The Eisenhower order was based on the Internal Security Act of 1950, which had created the S.A.C.B. and required compulsory registration of individuals belonging to organizations designated as subversive. The Internal Security Act and successive attempts by Congress to revive it were struck down by Supreme Court rulings, or violations of the self-incrimination clause of the Fifth Amendment. Senator Ervin, Democrat of North Carolina, is chairman of the subcommittee and one of the Senate's leading authorities on constitutional law. He argued that the White House effort to breathe new life into the nearly defunct control board was unconstitutional because it violated First Amendment freedoms and illegal because it usurped the rights of Congress. It invaded the Congressional domain, he said, by expanding the functions of the control board, a creation of the Congress, without any authority from Congress. Beyond these points the Senator maintained that the President had rescued the control board from oblivion for a political reason that went far beyond the Federal Government's need to screen job applicants and thus made the order a fraud. It would, the Senator said, "empower the board to brand the organizations and groups specified in it as intectually or politically dangerous to the established order." In so doing, he continued, the order would "place a political or social stigma" on thousands of individuals who were not seeking Federal employment but who happened to be members of or merely to have associated with the stigmatized groups. The hearings represent a second attempt by Senator Ervin to block the Presidential order. A rider that would have had this effect was attached to the appropriations bill and was accepted in the Senate but rejected in the House. When the conference report of the two houses came back without this rider Senator Ervin moved to reject the report and lost by only two votes. Senator Edward J. Gurney, Republican of Florida, argued that far from infringing on the constitutional rights of Americans the Presidential order offered notable new safeguards. He said that under the new regulations affiliation or membership in a subversive group must be "knowing" (aware the group is subversive before it constitutes a negative factor in considering a person's fitness for employment). Another improvement, he said, would bar the Attorney General from placing any organization on the list unless the control board found, after public hearing, that such organization fell within precise definitions. Finally, he said that the new executive order insured the accused the right to counsel. [From The Jewish Bulletin, San Francisco, Calif., Oct. 8, 1971] ONE MAN'S VIEW (By Robert Segal) WHAT CONSTITUTES SUBVERSION? Perhaps acutely aware that the U.S. Subversive Activities Control Board, a relic of the fearful times of Senators Patrick A. McCarran and Joseph R. McCarthy, may be on its last legs, the Senate Internal Security Subcommittee has perked up lately. In a study called "The Human Cost of Communism In China," the subcommittee, chaired by Senator James O. Eastland of Mississippi, declares that the rise of Chinese Communism has cost anywhere from 34,000,000 to 63.000,000 lives. This is a dreadful toll. Surely, President Nixon will have that human cost in mind when he meets with China's top leaders soon. Senator Eastland and his committee are, in effect, cautioning the President to beware. And so the Security Subcommittee's report may serve a purpose. But it would be even more effective if it were accompanied by that kind of report the committee could produce were it to review the ravages of fascism. To be sure, such a report would not sit well with those who publish articles insisting that 6,000,000 were not put to death by Hitler (see The American Mercury, for example) and those who still fawn upon General Franco or long for the bad old days of Mussolini. It is helpful to learn that the Senate Internal Security Subcommittee report is the work of Dr. Richard L. Walker, a University of South Carolina specialist in international studies. If those Senators and Congressmen who make a business of tracking down "subversives" intend to continue that politicallyproductive hobby, we are all better served when the raw and refined material |