Paragraph (4) of the bill would insert a new Section 5A after Section 5 of the Act. The proposed Section 5A would provide statutory authority for the Industrial Security Program of the Department of Defense by authorizing the President to issue appropriate regulations to protect classified information furnished to industry. Additionally, it would authorize procedures for denial of employment in defense facilities to persons who, if given the opportunity, might engage in sabotage, espionage, or other activities which would impair the military effectiveness of the United States. It is assumed that this statutory authority and the criteria provided would authorize the Department to continue its Industrial Security Program substantially as administered at present, with a corresponding broadening of Departmental powers over those contained in Sections 4 and 5 of Executive Order 10865, and to institute a stronger Industrial Defense Program for the protection of defense facilities by authorizing the President to extend many of the provisions of the Industrial Security Program to the protection of such facilities. However, it would require security checks of certain employees of several thousand "defense facilities." Additional monetary and manpower resources would be necessary to meet this requirement. 11 The Bureau of the Budget advises that, from the standpoint of the Administration's program, there is no objection to the presentation of this report for the consideration of the Committee, but that it has not yet had the benefit of the views of the Department of Justice and other interested agencies on H.R. 15626. Sincerely, Miederlehne L. Niederlehner Acting General Counsel Reference is made to your request for the views of the Department of Defense with respect to H.R. 15018, 90th Congress, a bill "To amend the Subversive Activities Control Act of 1950 to authorize the Federal Government to bar the employment in defense facilities of individuals believed disposed to commit acts of sabotage, espionage, or other subversion." The Department of Defense is deeply concerned with the security of facilities determined to be essential to the national defense and generally supports the broad objective of H.R. 15018. Certain of its provisions, including those regarding the effect to be afforded mere membership and beliefs in Communist organizations, may raise constitutional questions and we would defer to the Department of Justice in this regard. However, the following technical comments are offered concerning Section 1 of the bill. We welcome the additional criteria to define the term "defense facility." The criteria are essentially the same as the Department has been using administratively. In view of recent court decisions, we consider it important that these or similar criteria be adopted by the Congress. Paragraph (2) would repeal Section 5(a)(1)(D) of the Subversive Activities Control Act. We are of the opinion that many of the individual situations are subject to being handled on a case by case basis under criminal sanctions. Therefore, the Department of Defense considers that it would be desirable to retain criminal sanctions, but under more narrowly drawn legislation in line with the guidance furnished in the Robel case. with We are in agreement with paragraph (3), which authorizes the Secretary of Defense to engage in rule-making for the designation of defense facilities. Paragraph (4) adds a new Section to the Subversive Activities Control Act. The proposed subsection (b) of this new Section authorizes the President by regulation to make "reasonable inquiries directed to an individual regarding his affiliations, memberships, beliefs, or activities, past or present, which are relevant to a determination of whether there are reasonable grounds to believe that he may engage in sabotage, espionage, or other subversive acts as an employee of a defense facility.' A screening program to identify persons to whom such inquiries should be directed seems necessary to any effective implementation of this provision. In order to establish an effective screening program, the subsection should be expanded to authorize the Executive Branch to obtain personnel security questionnaires and fingerprint cards from employees and applicants for employment in defense facilities and to require the management of such facilities to submit these to the Government. It should be recognized that this provision of the bill would require security checks of the employees of several thousand defense facilities. Additional monetary and manpower resources would be necessary to meet this requirement. It is recommended that the proposed new subsection (b) be further amended by deleting therefrom the following words appearing on page 4, in lines 11 and 12, "if there is no reasonably available alternative source of the information, sought. Retention of this provision may require substantive proof that there is no reasonably available alternative source of the information sought; it may invite refusals to answer questions on personal history statements on the premise that the Government has the information; it could conceivably be used by subversive-minded persons to ascertain whether the Government has investigative information concerning them; and it would partially destroy one of the Government's objectives in asking for the information, which is to ascertain whether the individual was truthful in executing his application. It is recommended that a new subsection (c) be added to the proposed new Section 5a and that the present subsections (c), (d), and (e) be relettered. It is recommended that the new subsection (c) authorize the administrator of the program to investigate employees and applicants for employment in defense facilities where such persons would have an opportunity by reason of their employment to engage in sabotage, espionage, or other subversive acts. The Bureau of the Budget advises that, from the standpoint of the Administration's program, there is no objection to the presentation of this report for the consideration of the Committee, but that it has not yet had the benefit of the views of the Department of Justice and other interested agencies on H.R. 15018. Sincerely, Miederlehner L. Niederlehner Acting General Counsel Reference is made to your request for the views of the Department of Defense with respect to H.R. 15336, 90th Congress, a bill "To amend the Subversive Activities Control Act of 1950.' The Department of Defense supports the broad objective of the bill to provide new statutory authority to replace Section 5(a)(1)(D) of the Act found unconstitutional by the United States Supreme Court in the case of United States v. Robel. The Department defers to the Attorney General on the question of constitutionality. Our comments are directed to that part of the bill which amends 11 At present, paragraph 3 (7) of the Subversive Activities Control Act defines a "facility. In our opinion, the revision to this paragraph proposed in paragraph (1) of H.R. 15626 is more desirable and is recommended for adoption. Paragraph (1) of the first part of the bill would designate as a defense facility "any plant, factory, or other manufacturing or service establishment designated by the Secretary of Defense. It omits the word "producing," but more importantly, it also omits the comprehensive listing found in the present law. We believe that these omissions would considerably restrict the scope and discretion of the Secretary in making his determination. 11 We also believe that the phrase "for the use of the Government" in describing the production or service of a defense facility constitutes a serious additional restriction not found in the present law. We recommend that this phrase be deleted because it would be a major impediment to the present scheme of operating the industrial defense program. Many of the products and services in defense facilities are not necessarily for the use of the Government or are only remotely intended for Government use. In addition, the fact that an item is for the use of the Government might be difficult or impossible to establish. The bill requires the Secretary of Defense, in designating a defense facility, to determine that it is of such character as to affect the "military security of the United States. Under the present law the "security of the United States" is the basis for his determination. It is our opinion that the term found in the present law gives the Secretary broader discretion by not restricting him to purely military considerations. Accordingly, we recommend that the word "military" be deleted in paragraph (1) of the first part of the bill. In regard to the criteria to be used by the Secretary of Defense in designating defense facilities, we believe that the adoption of criteria by the Congress is desirable. In paragraph (2) of the proposed amendment to Section 3 of the Subversive Activities Control Act, the definition of a "sensitive position" would limit such positions to those requiring access to classified information. This is too narrow a definition inasmuch as a large majority of the approximately 3,500 facilities now designated as defense facilities by the Secretary of Defense under Section 5(b) of the Subversive Activities Control Act is not engaged in activities which require access to classified information. The primary reason for protection of defense facilities, as they are now defined, is to assure that these facilities which are essential to the national defense are not seriously damaged or destroyed by sabotage. It is recommended that the definition, in addition to including positions which require access to classified information, be broadened to include those positions in which the incumbent would have the opportunity to engage in sabotage, espionage, or other acts adversely affecting the security interests of the United States by reason of an employment position in such a defense facility, or by reason of his access to designated restricted or critical areas. The definition of a "sensitive position" in the bill defines classified information as Secret or Top Secret and eliminates the Confidential category. It is our view that a reduction from the three categories established by Executive Order 10501, (3 CFR, 1949-1953), would impose a degree of inflexibility which would hinder the safeguarding of official information requiring protection in the interest of national defense, and would also be in conflict with |