Professor MILLER. Well, are you going to give the people who are brought before you on the motion of the Attorney General the right to confront the witnesses, to give adverse testimony? Mr. MAHAN. Correct. Professor MILLER. These would include not only the agents of the Department of Justice, the FBI, the people who gave information to the FBI; is that correct? Mr. MAHAN. I will read you the rules. I think that is better: Each party to a proceeding should have the right to present its case with the assistance of Counsel, to offer oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. A stenographic transcript shall be taken of all testimony given and oral statements made during a hearing. Copies of the stenographic transcript may be purchased. Professor MILLER. This does not tell me whether or not there is a right of confrontation of adverse witnesses. Is this contemplated by the Board? Mr. MAHAN. Yes. Professor MILLER. So, anyone who makes a statement to an FBI agent could be cross-examined by the attorney before your Board? Mr. MAHAN. I cannot rule on that until the case appears. I think you understand that. Professor MILLER. What would be-as a hypothetical and abstract question? Mr. MAHAN. I do not believe that I should give a hypothetical answer. Professor MILLER. Let me ask just one other thing, then. You stated that it applies to Government employees only? Mr. MAHAN. That is right. Professor MILLER. How about employees of Government contractors? Mr. MAHAN. I do not disseminate the list. All we do is issue our findings to the Attorney General. You will have to ask him. The Executive order says to those people that hire personnel in the Govern ment. Professor MILLER. Is it a fair statement to say this list could be used by any organization within the United States, any company, labor union, church, university, whatever, that wanted to employ a person? Mr. MAHAN. I really do not know who is going to use it. I know it is going to be public hearings. So if the press is there, I know people will know Professor MILLER. So it could be used, and it is at least theoretically possible that adverse action, failure to employ, could be based upon some finding that you made? Mr. MAHAN. It is not a bar under the Executive order. It is only one of the criteria to take into account by the security officer. Professor MILLER. So it is wider than Federal employment? Mr. MAHAN. It is a public hearing. Right of counsel, right of crossexamination, right of press. Professor MILLER. But it has just as wide an impact on public employment as on Federal employment? Mr. MAHAN. I would not say that; no. Professor MILLER. Why not? You just said it, Mr. Mahan. Mr. MAHAN. I just said the man, the organiation, that comes before the Board, has a right to open trial, with the right of lawyer, the right to confront the witnesses, and we will issue our report to the Attorney General as the Executive order says. How they disseminate it, is not in my jurisdiction. Professor MILLER. All right, then, would it be a fair inference for the subcommittee to draw that it could be used by other than Federal organizations seeking to employ people? Mr. MAHAN. That could be your inference, but I am not going to say I agree with it one way or the other. Professor MILLER. I have no further questions. Senator GURNEY. Just on that point, your Board has nothing to do with the hiring of people by the X church or Y foundation or Z corporation, does it? Mr. MAHAN. No, sir. Senator GURNEY. It is ridiculous to even think or raise the question, is it not? Mr. MAHAN. Right. It is for the people in the government hire. Professor MILLER. I would like to have you explain, Mr. Mahan, why it is ridiculous. Mr. MAHAN. I agree with Senator Gurney. Senator GURNEY. I really think, Mr. Chairman, we have belabored that point long enough. It was a red herring around here. Senator ERVIN. I am not so certain about that. I have done a lot of investigations, and I find that when people get a record made against them, or an organization they belong to, a lot of people use it. It is the same as when people get a "general discharge" from the Army and it follows them all through life and curses them. Senator GURNEY. That may be true, but the question of the witness down here is does he know if that information is going to be used by somebody else and, obviously, he does not. Senator ERVIN. It would be a public record, the adjudication. Mr. MAHAN. That is right. Congress passed the Freedom of Information Act. Senator ERVIN. I believe this completes the last witness. The only other statement is by Professor Miller. I do not know whether you want any further hearings or not, Mr. Mahan. I have to go to North Carolina this afternoon. I expect Professor Miller could come back some other day? Mr. MILLER. At your pleasure, sir. Senator ERVIN. I know you probably have some questions to ask, Senator Gurney. Senator GURNEY. Yes, I do. Professor MILLER. I understand you do, sir. Senator ERVIN. Until Thursday at 10? Mr. MILLER. Yes, sir. Senator ERVIN. The subcommittee will stand in recess until Thursday at 10 a.m. (Whereupon, at 2:05 p.m., the hearing adjourned to reconvene on Thursday, October 7, 1971, at 10 a.m.) PRESIDENT NIXON'S EXECUTIVE ORDER 11605 RELATING TO THE SUBVERSIVE ACTIVITIES CONTROL BOARD AND S. 2466 AND SENATE RESOLUTION 163 THURSDAY, OCTOBER 7, 1971 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS OF THE COMMITTEE ON THE JUDICIARY, The subcommittee met, pursuant to notice, at 10:10 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin (chairman of the subcommittee) presiding. Present: Senators Ervin and Gurney. Also present: Rufus L. Edmisten, chief counsel and staff director, and Joel Abramson, minority counsel. Senator ERVIN. I believe we have just one other scheduled witness. Counsel, please call the next witness. Mr. EDMISTEN. Mr. Chairman, our witness this morning is Prof. Arthur S. Miller of the National Law Center, The George Washington University, who is also a consultant to this subcommittee. Senator ERVIN. I wish to welcome you to the subcommittee in this capacity, and you may proceed to present your views in your own way. Professor MILLER. Thank you, Mr. Chairman. I have a prepared statement, as you know, and I would like to read it if I might. I hope that it is not too long for your patience. STATEMENT OF ARTHUR S. MILLER, NATIONAL LAW CENTER, GEORGE WASHINGTON UNIVERSITY, WASHINGTON, D.C. Professor MILLER. The constitutional questions, Mr. Chairman, involved in Senate Resolution 163 and S. 2466 relate to the manner in which Executive Order 11605 was promulgated and to its contents. In my judgment, the Executive order is faulty on both counts. In my formal remarks here, I should like to concentrate on the question of the "inherent" powers of the Executive; but some attention will also be paid to the authority that the Exeuctive order attempts to allocate to the Subversive Activities Control Board (SACB). At the outset, I think it is important to note what the Executive order is not: 1. It is not an exercise of the emergency powers of the President, whatever they may be in a given circumstance. Even though the Nation has lived under a declaration of national emergency since December 1950, there is no apparent attempt here to call upon that nebulous congeries of powers to buttress the Executive order. All that is cited as authority by the President is that catch-all phrase, invented, I believe, by Attorney General Robert Jackson, "*** the Constitution and statutes of the United States***". Then certain sections of title 5 of the United States Code are mentioned, not one of which refers to emergency action. The President, furthermore, makes a talismanic incantation of ". finding such action necessary in the best interests of national security," but surely that cannot and does not add to his constitutional and statutory powers. No matter how fast or how often that particular phrase may be repeated, it is emphatically not a reason for given governmental action. Rather, it merely restates the question-to which I refer below-of whether Government, executive or congressional, can act in the first instance in the delicate area covered by the Executive order. Let me be very clear about this: Of course, the national security must and should be protected through governmental action. I know of no one who dissents on that position. In the final analysis, however, the responsibility is in the Congress, not the Executive-although I hasten to add that it is beyond argument that the two branches must cooperate. As Woodrow Wilson once put it, "Warfare between the two may be fatal." 2. Despite the reference to national security, this is not a question of the exercise of foreign affairs. In that area, there is a situation of shared power between the Congress and the Executive. This involves domestic affairs, purely and simply, and any reference to Supreme Court cases dealing with the foreign affairs powers of the National Government-such as the Curtiss-Wright, Belmont, and Pink cases— is irrelevant. 3. This is not an area involving congressional silence. Congress has spoken; it established the SACB. That the Federal courts have largely eliminated any function of the Board is also irrelevant to the question of power. That they have done so argues, it seems to me, for abolition of the Board rather than for investing it with powers of doubtful constitutionality through a bald assertion of raw Executive power. The subcommittee-the American people-have witnessed a number of examples of such assertions of power in recent years. It is not, however, an invention of this administration. Others have taken actions in the past which are similar and which are sometimes used to justify present-day activities. But during this calendar year, the subcommittee has considered, among other matters, (a) what seems to be a misuse of the pocket-veto power; (b) the "impoundment" by the Executive of more than $12 billion in funds appropriated by Congress; and (c) "executive privilege." In not one of these does there seem to be a valid constitutional basis for executive action. In addition, the Attorney General has asserted that the Executive has an "inherent" power to wiretap in internal security matters without judicial or legislative sanction. I will come back to some of these matters, particularly the wiretap problem, in a few minutes. In sum, there is growing evidence of a direct confrontation between the Executive and the Congress. The challenge is clear; the Executive is acting in the field of congressional responsibility. I feel that it is long past time for the Congress to redress some of the imbalances that have appeared and halt the further aggrandizement of power in the executive branch. Enactment of Senate Resolution 163 and S. 2466 would certainly further that end. THE PROBLEM OF POWER Although the basic question toward which my remarks will be addressed is that of Presidential legislation, it is appropriate to discuss briefly the even more fundamental question of the power of the Federal Government to enact such legislation, even by the Congress. The question is difficult, for the Executive order raises some crucial constitutional problems. Certainly there is no expressly granted power for such "legislation;" nowhere does the Constitution set it forth. Accordingly, if valid—however promulgated-it must be implied under the necessary and proper clause of article I, section 8. Permit me to set forth a few propositions concerning the constitutional power to act. 1. There can be little doubt about the power of Congress to legislate minimum standards for Government employment, including loyalty and security. But here, as elsewhere, constitutional principles come into collision. The right to insure loyalty among employees runs into the first amendment right of freedom of expression, which all individuals have. By the very nature of things, neither right is an absolute. The Government cannot demand loyalty to the point of stifling all dissent; and freedom of expression has its limits. I consider this to be self-evident, beyond argument, so to speak. 2. The Executive order makes all persons within a group responsible for the actions of the group, if found by the SACB to fit within the categories of "totalitarian, Fascist, Communist, subversive," et cetera. Although purporting to speak only about Government employment, that is about as damning a label as anyone can have pinned upon him. With the computerization of dossiers, this type of conclusion about organizations and their members will be widely dispersed. What that means is that a person will be considered "guilty" by association. I do not speak of guilt in the criminal sense but in the sense that sanctions can and will be imposed upon him for belonging to an organization. Guilt in this country has always been personal, although there have been some nasty episodes in American history where guilt of a type was both group-based and racial. I refer here particularly to the forcible exclusion of American citizens of Japanese ancestry from the west coast during World War II, upheld, it must be noted, by the Supreme Court. Noteworthy also is the fact that the initial exclusion orders were by Executive order, although Congress did ratify the Presidential action subsequently. That massive deprivation of civil liberties is a blot on our history; it should not be repeated now in another form by continuing Executive Order 11605 in existence. 3. In effect, the Order allows sanctions, which might be considered a form of punishment, without the procedural safeguards of the Bill of Rights. In this connection, may I invite your attention to Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1962). There, the Supreme Court, speaking through Mr. Justice Goldberg, held that statutes imposing forfeiture of citizenship for certain acts, without prior court or administrative proceedings, were penal in nature and deprived the two appellees of their citizenship without due process of law and without according them their fifth and sixth amendment rights. I believe there is a similar circumstance here. The groups are given a hearing but not individually. The analogy is clear; and, in my judgment, applicable to Executive Order 11605. Individuals may be deprived of jobs because of innocent associations, not only with the Government but |