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1 such agency, for or on account of the nature of such infor

2 mation or documentation so furnished or the fact of his

3 having so furnished it, is hereby prohibited.

4

(b) Any person who violates subsection (a) of this 5 section by (1) ordering, initiating, or otherwise causing, or 6 (2) approving, or (3) urging, advising, or otherwise at7 tempting to bring about, or (4) conspiring to cause or to 8 bring about, any reprisal prohibited by such subsection shall 9 be guilty of a misdemeanor, and upon conviction thereof shall 10 be punished by imprisonment for not to exceed one year or 11 by a fine of not to exceed $1,000 or by both such fine and 12 such imprisonment.

13

14

19

ACCELERATED CONSIDERATION OF SUBVERSIVE CASES

SEC. 303. In the application of rule 50 and rule 39 (d) 15 of the Federal Rules of Criminal Procedure and of rule 20 of 16 the Rules of the Supreme Court of the United States, the 17 United States district courts, the United States courts of 18 appeals, and the Supreme Court of the United States, respectively, shall give preference in time of hearing and deter20 mination to criminal proceedings involving offenses described 21 in chapter 37 (relating to espionage and censorship), chap22 ter 105 (relating to sabotage), and chapter 115 (relating to 23 treason, sedition, and subversive activities) of title 18 of the 24 United States Code and subsection 10 (b) of the Atomic 25 Energy Act of 1946 (42 U.S.C. 1810 (b)), and to criminal

20

16

1 proceedings involving an attempt or a conspiracy to commit

2 any offense described in such chapters or such subsection.

PURPOSES OF H.R. 15626 AND CERTAIN COURT DECISIONS PERTINENT THERETO

The principal purposes of the bill are:

(1) To restore vitality to section 5(a) (1) (D) of the Subversive Activities Control Act of 1950 which made it unlawful for members of Communist-action organizations to engage in employment in a defense facility. This provision had been voided by the Supreme Court in United States v. Robel, decided December 11, 1967.

(2) To give express congressional sanction for the institution of measures and regulations establishing a security clearance program for employment in or access to defense facilities, for the purpose of safeguarding such facilities against sabotage, espionage, or other subversive activity. See Greene v. McElroy, 360 U.S. 474 (1959).

(3) To give express congressional sanction for the institution of measures and regulations establishing an industrial security clearance program for the protection of classified information released to United States industry or any facility in the United States. See Greene v. McElroy, supra; Shoultz v. Secretary of Defense, United States District Court, Northern District of California, decided February 9, 1968.

(4) To give express congressional authorization for the institution of measures and regulations establishing a personnel security clearance program for access to vessels, harbors, ports, and waterfront facilities under the Magnuson Act, to remedy a deficiency revealed by the Supreme Court in Schneider v. Commandant, United States Coast Guard, decided January 16, 1968.

(5) To establish procedures strengthening the administration and enforcement of the foregoing security programs by authorizing specific investigation, hearing, and review procedures, including the subject matter of inquiries, the cross-examination and confrontation of witnesses, the issuance of compulsory process for attendance of witnesses, the granting of immunity for compelled testimony, the regulation of jurisdiction of courts in certain proceedings, and authority for reimbursement to persons under certain circumstances for loss of earnings.

UNITED STATES V. EUGENE FRANK ROBEL

UNITED STATES SUPREME COURT, DECIDED DECEMBER 11, 1967

The decision

The opinion for the Court was delivered by Chief Justice Warren. Justice Brennan in a separate opinion concurred in the result. Justice White, with whom Justice Harlan joined, filed a dissenting opinion. Justice Marshall took no part in the consideration or the decision of the case.

In this case, the Supreme Court held section 5(a) (1) (D) of the Subversive Activities Control Act of 1950 to be void on its face for "overbreadth," unconstitutionally abridging the "right of association" protected by the first amendment. Section 5(a)(1) (D) made it unlawful for any member of a "Communistaction organization," with knowledge or notice that such organization is registered or that there is in effect a final order of the Subversive Activities Control Board requiring such organization to register, "to engage in any employment in any defense facility."

The term "defense facility" is defined in sections 3(7) and 5(b) of the act as any facility designated by the Secretary of Defense "with respect to the operation of which he finds and determines that the security of the United States requires the application of the provisions" of section 5(a).

Pursuant to the provisions of the act, the Secretary of Defense designated the Todd Shipyards Corporation of Seattle, Washington, as a "defense facility." Eugene Frank Robel, a member of the Communist Party of the United States, an organization which had been found by final order of the Board to be a "Communist-action organization," was employed at that shipyard as a machinist and was indicted under the provisions of section 5(a) (1) (D), charged with a violation of its provisions.

The district court granted Robel's motion to dismiss the indictment. The Supreme Court affirmed, although on a basis differing from that of the district

court, declaring the provision under which the indictment was found to be, as previously stated, in violation of Robel's first amendment "right of association." In affirming the dismissal of the indictment, Chief Justice Warren, for the majority, said:

"That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed. It is made irrelevant to the statute's operation that an individual may be a passive or inactive member of a designated organization, that he may be unaware of the organization's unlawful aims, or that he may disagree with those unlawful aims. It is also made irrelevant that an individual who is subject to the penalties of §5 (a) (1) (D) may occupy a nonsensitive position in a defense facility. Thus, § 5(a)(1) (D) contains the fatal defect of overbreadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. * * *”

Mr. Justice Brennan, concurring in the result, said that he was "not pursuaded" that section 5(a) (1) (D) was fatal for "overbreadth" as he had agreed was the case in other contexts, particularly in Aptheker v. Secretary of State, 378 U.S. 500, by which the Court struck down section 6 (passport prohibitions) of the act on the same ground now applied by it to section 5(a)(1) (D). He pointed out that "Congress often regulates indiscriminately, through preventive or prophylactic measures" and that such regulation has been upheld even where fundamental freedoms are potentially affected. He said that we may assume that Congress may have been justified in its conclusion that alternatives to section 5(a) (1) (D) were inadequate for the safeguarding of essential defense facilities against espionage and sabotage, and therefore the Congress could constitutionally exclude all party members from employment in them.

Mr. Justice Brennan said that his quarrel with the provision was based on the fact that the Congress gave the Secretary of Defense no meaningful standard to govern his designation of defense facilities, thus creating a danger of an arbitrary application of criminal sanctions in an area of protected freedoms. The absence of adequate standards, he said, reflected the failures of Congress (1) to make a legislative judgment on the extent to which the prophylactic measure should be applied, (2) to assure respect for constitutional liberties because of the absence of any type of administrative hearings, public or private, on the Secretary's designation, or the review thereof, and (3) to give adequate notice to persons affected by criminal sanctions as to whether the Secretary is acting within his authority, so that they may determine whether or not to risk disobedience. Relevant provisions in H.R. 15626

The bill so narrows the type of facilities which may be designated as such by the Secretary of Defense that all positions of employment therein may reasonably be said to be sensitive. Moreover, section 5(a) (1) (D), which establishes criminal sanctions, has been amended so as to require (1) proof of membership in a Communist-action organization, plus (2) proof of such member's actual knowledge or notice of the final order of the Board determining it to be an organization of that type,' plus (3) such member's actual knowledge or notice of the designation of the facility as a defense facility.

In addition, the bill remedies the objections raised by Mr. Justice Brennan in his concurring opinion, by establishing a meaningful standard for the designation of defense facilities by the Secretary of Defense, with provisions reflecting (1) a legislative judgment as to the extent to which the prophylactic measure is to be applied, (2) procedural safeguards assuring respect for constitutional liberties, and (3) adequate notice to persons affected by the criminal sanctions as to whether the Secretary is acting within his authority.

1 The bill amends section 13 (k) of the act by repealing clauses imputing ("constructive") notice to members of Communist organizations on publication of the Board's final orders in the Federal Register. In Aptheker v. Secretary of State, supra, Mr. Justice Goldberg, for the majority, noted that section 13(k) of the act provided that publication in the Federal Register of the fact of the Board's final order "shall constitute notice to all members of such organization that such order has become final,'" pointing out that the terms of section 6 (passport prohibitions) applied whether or not the member actually knew or believed that he was associated with a Communist organization.

The opinion for the Court was delivered by Chief Justice Warren. Concurring views were expressed by Justices Frankfurter, Harlan, and Whittaker. Justice Clark filed a dissenting opinion.

In this case the Court struck down that portion of the industrial security program established by the Department of Defense under which a person's fitness for clearance was determined on the basis of fact determinations in which individuals were denied "traditional procedural safeguards of confrontation and cross-examination." The Court did so on the ground that the regulations were not specifically authorized by the President or the Congress, without deciding whether the President or the Congress has inherent authority to create such a program.

Greene, who began his employment in 1937 with the Engineer and Research Corp., a business devoted mainly to the development and manufacture of mechanical and electronic products, was first employed by that corporation as a junior engineer and at the time of his discharge in 1953 was vice president and general manager. He had been credited with the development of a complicated electronic flight simulator and with the design of a rocket launcher, produced by this corporation and long used by the Navy. The corporation was engaged in classified contract work for the various armed services and had entered into a security agreement or contract by which the corporation agreed, in the performance of this work, to provide and maintain a system of security control, and that it would not permit any individual to have access to classified matter unless cleared by the Government. During the World War II period, Greene had received security clearance, but in 1951 information came to the attention of the Government, including evidence of his maintenance of a close and sympa. thetic association with various officials of the Soviet Embassy, which showed clearly that Green was a security risk, if not actually disloyal to the United States.

A letter of charges was delivered to Greene, and he was informed that he could seek a hearing before the Review Board. He appeared with counsel, was questioned, and in a series of hearings was given an opportunity to present his witnesses and his case. Greene's own admissions would seem to establish what the Government had reasonably concluded, namely, that he was a security risk, although the Government presented no witnesses and, relying largely on confidential reports, did not give Greene the opportunity to confront and crossexamine confidential informants whose statements reflected on him. Greene's security clearance was finally withdrawn and, as a result, his services were no longer useful to his corporation. He was forced to resign from his offices in the corporation and was discharged.

Greene appealed to the district court asking for a declaration that the revocation of his security clearance was unlawful and void on the ground that he was denied liberty and property without due process of law in contravention of the fifth amendment. The district court and the court of appeals upheld the revocation. The Supreme Court reversed.

Conceding that the President in general terms had authorized the Department of Defense to create procedures to restrict the dissemination of classified information and that even in the absence of a specific delegation the Department was authorized to fashion and apply a clearance program which would afford affected persons the safeguards of confrontation and cross-examination, the Court held, however, that in the absence of explicit delegation by either the President or the Congress the Department could not fashion and apply the program which it did in revoking Greene's security clearance.

The decision left several basic questions unanswered, which is evident in the opinion of the Chief Justice who said:

"Whether those procedures under the circumstances comport with the Constitution we do not decide. Nor do we decide whether the President has inherent authority to create such a program, whether congressional action is necessary, or what the limits on executive or legislative authority may be. We decide only that in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination."