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SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECURITY ACT AND OTHER INTERNAL SECURITY LAWS

TO THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

JANUARY 23, 1968

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

88-493

WASHINGTON : 1968

PURCHASED inas

DOC. EX. PROJEC

COMMITTEE ON THE JUDICIARY

JAMES 0. EASTLAND, Mississippi, Chairman JOHN L. MCCLELLAN, Arkansas

EVERETT MCKINLEY DIRKSEN, Illinois SAM J. ERVIN, JR., North Carolina

ROMAN L. HRUSKA, Nebraska THOMAS J. DODD, Connecticut

HIRAM L. FONG, Hawaii PHILIP A. HART, Michigan

HUGH SCOTT, Pennsylvania
EDWARD V. LONG, Missouri

STROM THURMOND, South Carolina
EDWARD M, KENNEDY, Massachusetts
BIRCH BAYH, Indiana
QUENTIN N. BURDICK, North Dakota
JOSEPH D. TYDINGS, Maryland
GEORGE A. SMATHERS, Florida

SUBCOMMITTEE TO INVESTIGATE THE ADMINISTRATION OF THE INTERNAL SECURITY ACT AND OTHER INTERNAL SECURITY LAWS

JAMES 0. EASTLAND, Mississippi, Chairman

THOMAS J. DODD, Connecticut, Vice Chairman JOHN L. MCCLELLAN, Arkansas

ROMAN L, HRUSKA, Nebraska SAM J. ERVIN, JR., North Carolina

EVERETT MCKINLEY DIRKSEN, Illinois BIRCH BAYH, Indiana

HUGH SCOTT, Pennsylvania
GEORGE A. SMATHERS, Florida

STROM THURMOND, South Carolina
J. G. SOURWINE, Chief Counsel
John R. NORPEL, Jr., Acting Director of Research

RESOLUTION

Resolved, by the Internal Security Subcommittee of the Senate Committee on the Judiciary, That the attached report entitled “Legislative Recommendations” is hereby authorized to be reported favorably to the full committee, to be printed and made public.

Approved: January 23, 1968.

REPORT OF THE INTERNAL SECURITY SUBCOMMITTEE TO THE

COMMITTEE ON THE JUDICIARY

During two sessions of the Congress the Internal Security Subcommittee held open public hearings on the general subject of gaps in our internal security laws. In all, 10 separate hearing sessions were held ? and testimony was received from 19 witnesses. In addition to this testimony, the committee received for the record a number of letters from law professors and law school deans, and various other communications with respect to the subject matter of the hearings. These hearing records have been previously published. 3

This report recommends legislative action which the subcommittee considers desirable in the interest of national security. It is based on the hearings referred to above, on some 3 years of hearings respecting security in the Department of State, and on analysis of developments subsequent to the referenced hearings. Especially noteworthy in this category of recent developments is the ruling of the U.S. Supreme Court in United States v. Eugene Frank Robel, decided December 11, 1967, which invalidated subsection 5(d) of the Internal Security Act prohibiting members of Communist-action organizations from working in designated defense facilities.

Various other decisions construing, limiting, impairing, or invalidating provisions of internal security laws also have been studied by the subcommittee and its staff in view of the fact that "Whenever any law for the protection of our national security is stricken down by a court decision, Congress has the responsibility of deciding how to meet the problem that law was intended to deal with.” 4

It is not necessary for the purposes of this report to discuss in detail the long series of Supreme Court decisions affecting national security. Various listings of such decisions and discussions of the problems they present are available from authoritative sources.5

The recommendations in this report are not comprehensive of all the suggestions made to the subcommittee or considered by it, and do not even include all of the possible legislation which individual members of the subcommittee may favor, but have been limited to

1 89th Cong., second sess.; 90th Cong., first sess. : June 23, 24, 27, July 29, 30, 1966; May 2, 9, 10 (two sessions), 24, 1967. * In 1966 and 1967. * Quoted from statement by the chairman at the opening of referenced hearings on gaps in internal security laws.

Inter alia: Annual Report of the National Association of State Attorneys General, June 1957; Report of the Conference of State Chief Justices, July 13, 1957; Reports of the American Bar Association Committee on Communist Tactics, Strategy and Objectives, 1956 and 1957, Aug. 21, 1958, and Feb. 24, 1959 (see Annual Report, vol. 84, at p. 607); Annual Report of the Internal Security Subcommittee for 1955 issued Jan. 15, 1956, sec. 12; Reports of the County Counsel of Los Angeles, "United States Supreme Court Decisions Favorable to Communists Have Harmed Management, Labor and the American People.” August 1965; vide also, from the same office September 15, 1966; "The Bill of Rights, Rights for All--Not the Few;" ibid., Feb. 15, 1957: "United States Supreme Court Decisions Favorable to Communists.” See also: "Is the Supreme Court Really Supreme?" July 1967 issue of Reader's Digest, Eugene H. Methvin; Congressman Edwin E. Willis (Louisiana), July 25, 1967: (reference to Subversive Activities Control Board)--"This Board was established by the Internal Security Act of 1950 to perform an important quasi-judicial function. * * Through a variety of suits and motions, the Communists succeeded in having the effectiveness of various SACB proceedings nullified and, in other cases, tremendously delaying the Board's work.", Congressional Record, July 25, 1967, p. H-9314.

those proposals with respect to which the subcommittee is in general agreement as to the need for legislative action.

Though many of the recommendations here presented deal with matters which have been the subject of Supreme Court decisions, none of them is intended, or should be regarded, as a challenge to the Court. There is no attempt here to reverse any decision of the Court; nor, indeed, could Congress do this if it wished.

In all its deliberations underlying these recommendations, the subcommittee has sought to deal with various internal security problems as they exist. The fact that previous legislative efforts by the Congress to deal with some of these problems have been found by the Supreme Court to be ineffective or unenforceable, or have been construed or limited in such a way as to make them less than adequate solutions to the problems with which they sought to deal, does not change the fact that the problems did exist and do exist. It is the problems, and not the decisions, upon which the Congress must focus in order to discharge effectively its responsibility for the preservation and protection of the internal security of the United States.

During the first session of the 90th Congress, faced with an emergency situation as a result of invalidation of the Subversive Activities Control Act requirements for registration by Communist-action organizations and members thereof, the Internal Security Subcommittee on March 20, 1967, recommended meeting the emergency by eliminating these registration requirements from the act, and reported to the full committee the text of an original bill designed to accomplish this purpose. This led to enactment of Public Law 90–237, approved January 2, 1968.

Contrary to the procedure followed in that emergency situation, the legislative proposals in this report do not constitute recommendations for specific legislative language, and the subcommittee does not propose to report an original bill or bills to implement the proposals made here. It is contemplated that the chairman of the subcommittee, in collaboration with other Senators, will introduce a bill proposed for enactment as the Internal Security Act of 1968. Other Senators may well have proposals of their own to offer in this field. The subcommittee hopes to hold open public hearings on all such proposed legislation beginning before the end of February and will try to conclude these hearings and report a bill to the full committee before the end of March 1968.8

The subcommittee recommends enactment by the Congress of appropriate legislation to accomplish the following:

I

Create a Central Security Office to handle all personnel security evaluations in the executive branch (except with respect to members of the Armed Forces and employees of the Defense Intelligence Agency, National Security Agency, Central Intelligence Agency, Federal Bureau of Investigation, Atomic Energy Commission, and the White House Staff), and all personnel security investigations (except such investigations as are now handled by the Federal Bureau of Investigation). Provide that this Central Security Office shall be 6 These are to be considered as target dates rather than firm commitments. No attempt has been made to arrange

these recommendations in any particular order; and the numbering of individual paragraphs is only for convenience of reference.

staffed with professional security officers under civil service, and headed by an official appointed by the President for a term of at least 10 years, subject to Senate confirmation. Continue authority in the FBỈ to handle all personnel security investigations involving subversive activity. Avoid giving the new Central Security Office authority to grant or deny security clearances, since such authority should remain, as at present, in the heads of the respective departments and agencies of the executive branch.

II

Make it a felony for any person owing allegiance to the United States to give aid or comfort to an adversary of the United States (defined as a foreign nation or force engaged in open hostilities against the United States or against Armed Forces of the United States).

III

Extend to 15 years the term of the statute of limitations with respect to prosecution under any criminal statute dealing with treason or espionage.

IV

Amend the first paragraph of the Smith Act so as to prohibit without regard to the immediate effect thereof, the willful and knowing teaching or advocacy of the duty, necessity, desirability, or propriety of overthrowing or destroying, by force or violence, or by assassination of any officer thereof, the Government of the United States or the Government of any State, territory, district, or possession thereof, or the government of any political subdivision therein.

V

Amend the Smith Act so as to redefine the word "organize," as used in subsection 2(a)(3) thereof, as including recruitment of members for, and formation or reorganization (at any level) of any unit of, an existing organization.

VI

Make it a crime for any person having the purpose of helping to bring about the overthrow of the Government of the United States or of any political subdivision thereof, to urge, advise, or solicit the use of force or violence by another or others for the advancement of

such purpose.

VII

Provide statutory underpinning for the industrial security program of the Department of Defense.

VIII

Make a legislative declaration that it is per se a clear and present danger to the national security to have employed in a defense facility an individual who, after the expiration of 90 days following an order of the SACB designating an organization as Communist in nature, has elected to remain or become a member of such organization.

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