RECORD OF THE BOARD Let us consider the record of the Board during the 21 years of its existence. During these 21 years, the Board has found only one Communistaction organization in all America, and that was the Communist Party itself. It was not even able, by constitutional methods, to impose registration upon it. During these 21 years, the Attorney General filed petitions alleging that 22 other organizations were Communist-front or Communistinfiltrated. Eight of these petitions were dismissed by the Board, and the other 14 came to naught because the organizations had ceased to exist or the Board was unable for other reasons to compel their registration. During these 21 years, the Attorney General filed petitions alleging that 66 individuals-that is, 66 persons out of about 200 million Americans were members of Communist-action organizations. These petitions were frustrated in large measure by the Boorda case and other decisions. As one who loves America and hates communism, I take much comfort from the ineffective record of the Board. It corroborates my conviction that despite its enormous efforts to peddle its shoddy ideas, communism had made few sales in America. PRESIDENT NIXON'S ATTEMPT TO REVIVE THE BOARD On July 2, 1971, President Nixon issued Executive Order No. 11605, which attempts to confer on the Subversive Activities Control Board vast power to harass and stigmatize Americans. President Nixon's order purports to amend Executive Order No. 10450, which was issued by President Eisenhower on April 27, 1953, to establish loyalty and security requirements for Government employment. Hence, we must understand what power the executive department has in this area. As Justice Frankfurter declared in his concurring opinion in Garner v. Los Angeles Board, 341 U.S. 716, 324-25: The Constitution does not guarantee government employment. City, State and Nation are not confined to making provisions appropriate for securing competent professional discharge of the functions pertaining to diverse governmental jobs. They may also assure themselves of fidelity to the very presuppositions of our scheme of government on the part of those who seek to serve it. No unit of government can be denied the right to keep out of its employ those who seek to overthrow the government by force or violence, or are knowingly members of an organization engaged in such endeavor. President Eisenhower's Executive order applies only to persons presently enjoying or presently seeking employment in Federal executive departments and agencies, and requires the Civil Service Commission, the employing department or agency, or the FBI, to investigate matters relating to them as individuals, including their individual memberships in subversive organizations, which are relevant to the determination of whether the employment or retention in employment of each of them is clearly consistent with the interests of national security. Hence, the Eisenhower order establishes forthright and circumscribed procedures for insuring the loyalty of Federal civil servants. Moreover, it merely implements powers vested in the President by the Constitution and Acts of Congress relating to Government employment. President Nixon's Executive order is a different kettle of fish. To be sure, it professes itself to be a mere amendment to the Eisenhower order, and it does alter that order in one or more insignificant respects. The major provisions of his Executive order represent, in reality, an attempt on the part of President Nixon to amend the Internal Security Act of 1950 by bestowing upon the Subversive Activities Control Board new, sweeping powers far in excess of those Congress sought to give it. To this end, the Nixon order declares in express terms that the Board shall henceforth possess and exercise the power to conduct, on petition of the Attorney General, hearings to determine whether any of the innumerable organizations which claim the membership of millions of Americans who do not enjoy or seek Federal employment are (a) totalitarian, (b) Fascist, (c) Communist, or (d) subversive organizations, or (e) organizations which have the policy "of unlawfully advocating the commission of acts of force or violence to deny others their rights under the Constitution or laws of the United States or of any State," or (f) organizations "which seek to overthrow the Government of the United States or any State or subdivision thereof by unlawful means." The Nixon order further declares that in making its determinations, the Board shall have power to investigate the activities and objectives of every group in America which commits acts of force or violence; or unlawfully damages or destroys property, or injures persons; or violates laws "pertaining to treason, rebellion or insurrection, riots or civil disorders, seditious conspiracy, sabotage, trading with the enemy, obstruction of the recruiting and enlistment service of the United States, impeding officers of the United States, or related crimes or offenses." The Nixon order provides that the Attorney General will transmit to each Federal executive department or agency the names of all organizations condemned by the Subversive Activities Control Board, for its use in determining whether persons enjoying or seeking employment by it should be employed or retained in employment. It is manifest, however, 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. It is equally as manifest that such branding of these organizations and groups will place a political or social stigma on their members, and tend to minimize their exercise of freedom of speech, association, and assembly. I submit that the provision of the Nixon order which purport to confer new powers on the Board have no legal force for these reasons: 1. Their promulgation was beyond the constitutional power of the President; it is a direct violation of the doctrine of separation of powers. 2. They are void for overbreadth. 3. They violate the first amendment and due process rights of all the members of the organizations or groups designated except those who share the illegal aims of the organizations or groups. What was said by the Supreme Court in respect to President Truman's Executive order in the steel-seizure case, Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579, 588, makes it plain that in his attempt to expand the power of the Board, President Nixon undertook to make law: The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress-it directs that a presidential policy be executed in a manner prescribed by the President. It necessarily follows that the major provisions of the Nixon order are void under sections 1 and 8 of article I of the Constitution, which give Congress all the lawmaking power of the Federal Government and deny any of it to the President. I do not question the power of the President under the Constitution and acts of Congress governing Federal employment to establish by Executive order procedures to assure the loyalty of Federal civil servants. But I do assert with confidence that even if it were a bona fide effort to accomplish that objective, the Nixon order would be void for overbreadth. The order brings within its coverage the organizational memberships of millions of Americans who neither enjoy nor seek employment in the Federal establishment. Besides, it applies to the activities and objectives of groups past numbering which have no relationship whatever to the loyalty of Federal civil servants. The President has no power to subject the organizational memberships, activities, or objectives of all Americans to the scrutiny of the Subversive Activities Control Board because some of them may be employed by the Federal Government or some of them may hereafter seek employment by it. The Nixon order also violates the first amendment and the due process clause of the fifth amendment by applying the theory of guilt by association and stigmatizing politically and socially all the members of all the organizations or groups branded by the Subversive Activities Control Board, including those who may be passive or inactive members of such organizations or rs, or those who may be unaware of the unlawful aims of such o itions or groups, or those who may disagree with those unlawful a While I do not care to belabour the point, a pretty good case can also be made for the proposition that some of the powers the order attempts to allot to the Board trespass upon areas the Constitution reserves to the States, and others offend the first amendment principle that Government cannot touch the mere advocacy of ideas, no matter how reprehensible they may be. MY FAITH Apart from its constitutional infirmities, President Nixon's Executive order is to be deplored because it has no rightful place in our land. It is not the function of government in a free society to protect its citizens against thoughts or associations it deems dangerous, or to stigmatize its citizens for thoughts or associations it thinks hazardous. Yet that is exactly what the Executive order undertakes to empower the Subversive Activities Control Board to do. 1 United States v. Robel, 389 U.S. 258; Scales v. United States, 367 U.S. 203. If America is to be free, her Government must permit her people to think their own thoughts and determine their own associations without official instruction or intimidation; and if America is to be secure, her Government must punish her people for the crimes they commit, not for the thoughts they think or the associations they choose. In closing, I affirm my faith in the sanity and steadfastness of the overwhelming majority of all Americans. I shall not fear for the security of my country as long as love of liberty abides in their hearts and truth is left free to combat error. As we open these hearings, I would like again to welcome our distinguished professional consultants who have contributed so much to the subcommittee's successful studies of the separation of powers. With us today are Prof. Philip B. Kurland of the University of Chicago School of Law, our chief consultant; Prof. Ralph K. Winter, Jr., of the Yale Law School, and Prof. Arthur S. Miller of The George Washington University National Law Center. Senator GURNEY. Mr. Chairman, I have a statement. Senator GURNEY. Thank you, Mr. Chairman. I would like to make a few comments as we begin these hearings on Executive Order No. 11605, and the pending legislation pertinent to the functions of the Subversive Activities Control Board. The general scope of our subcommittee allows an unusual advantage in studying problems of this nature, and I have noticed this during previous hearings this year. In other words, although our primary point of interest is a specific action on the part of one branch of the Government, that action relates directly or indirectly, to some broader situation or issue which may increase the scope of the hearings considerably. In the matter at hand, we shall discuss the Presidential use of the Executive order, but more particularly we are talking about Executive Order No. 11605, signed by the President on July 2. This action amends previous Executive orders issued by President Roosevelt, President Truman, andesident Eisenhower in 1943, 1947, and 1953, dealing with the loecurity criteria for Government personnel employment. As a of this most recent amendment, the Subversive Activities Control Board will assume new responsibilities in relation to updating the Attorney General's list of "subversive" organizations. Generally, Executive Order No. 11605 makes the following major changes in the compilation of this list. First, definite criteria are established as bases for finding that a group falls into one of the six kinds of organizations on the list. Second, affiliation or membership in any group must include "knowing" about the purposes of the group before it constitutes a negative factor in considering a person's fitness for employment. Under previous Executive orders, mere affiliation of any kind, knowing or not, was considered. Third, it bars the Attorney General from placing any organization on the list unless the SACB finds, after a public hearing, that such organization falls within one of the six categories. This section conforms with a Supreme Court decision in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). 70-655-72- -2 Furthermore, a stricter definition is provided for the sixth type of group on the list. Previously, groups which sought to "alter the form of government" of the United States by "unconstitutional" means were covered. Now, the organization must actually seek to "overthrow" the U.S. Government by "unlawful" means. Furthermore, I think it is well to note that two distinguished members of our full committee, Senator Eastland and Senator Hruska, the chairman and ranking minority member, respectively, have introduced legislation to complement the Executive order and further insure the accused due process by providing the right to counsel, who can call witnesses, cross-examine adverse witness, and so forth. Also, any finding of the Board could be appealed to the U.S. Court of Appeals for the District of Columbia, and, in certiorari proceedings, could be reveiwed by the Supreme Court.. I think it should also be pointed out that on July 6 of this year, Assistant Attorney General Robert Madian, in testimony before the Senate Appropriations Committee, said that approximately 260 organizations presently listed should, for various reasons, be reconsidered and possibly removed from the list. At least 25 of these groups have been under study in the Justice Department. The history and procedures involving use of Executive orders are lengthy and complicated. Unfortunately, the law is neither black nor white about this question, and I certainly look forward to the testimony of the witnesses who will comment on this question. Aside from, and at the same time contiguous with, this issue is the matter of the Subversive Activities Control Board itself and, ultimately, the Attorney General's list. I am sure these matters will receive careful scrutiny. I, personally, favor continuation of the Board, and I do not view these latest amendments to EO 10450, the previous one, as a prelude to out-and-out witch-hunting, or an attempt to abrogate rights granted under the first amendment. As a matter of fact, from the standpoint of constitutional rights and due process, it seems to me that these protections are included to a far greater degree under the new Executive order than under the previous ones. I should like now to direct my attention for a few moments to what appears to be the underlying rationale for these hearings. It occurs to me that what has caused the questioning of this particular Executive order is the fact that it is directed toward the investigation and identification of organized activities which, while spread across a broad philosophical spectrum, share the desire and intention to destroy this Government and its institutions and, indeed, American society as we know it. I believe that the time has come to cut through the progressively blurred distinction between peaceful and lawful expressions of grievances, within the organized social structure, 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. Legitimate and necessary libertarian concepts have been distorted and perverted by embittered individuals, isolated by their ideology from the realities of day-to-day life, to the point where the victim is cast aside and the praise is for the violator. |