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party of the right to judicial review results in the passage of considerable time before the appeal is decided.
The courts have held that they will consider the merits of an appeal only where the record is reasonably current. They have remanded cases to the Board for findings as to the current status of organizations when, through no fault of the Board, the cases lingered in the courts for a considerable time. This “staleness doctrine" seems to imply that the Board must perform the impossible duty of determining what the status of an organization will be a year or more in the future. It puts a premium on dilatory tactics during judicial review of Board determinations.
The existing statute contains ample safeguards, through redetermination proceedings, for any group that bona fide changes its status following a Board de termination. We favor the proposal to require the appellate courts to decide the validity of an order of the Board at the time the order was issued by the Board.
Section 203, line 19, page 6, contains proposed Congressional findings of fact on the danger to the national security which reasonably can be said to exist if members of Communist-action organizations continue as employees of a defense facility after the organization has been determined by the Board to be of such type and the individuals have knowledge or notice thereof and elect to remain members.
Findings of fact are, of course, a matter for Congress. The proposed findings seem warranted from conclusions drawn by the Board in formal proceedings and from decisions and opinions of the courts. Your committee may wish to consider inserting the word "final" between the words "an" and "order" in line 8 at page 7.
Section 204, beginning at line 13 of page 7, contains a number of provisions aimed at preventing the employment in defense facilities of knowing and intentional Communists. We agree with the inherent principle that Communists operating in this country under foreign control and direction should not have access to any national security information.
It is clear under the Supreme Court's decision in the Robel case that there must be adequate standards in order legally to bar Communists from employment in defense facilities. The proposed provisions contain standards which were lacking in the provision declared unconstitutional in the Robel case. We have no opinion on whether the factors supplied by the provisions of H.R. 15828 are adequate in all respects. The provisions seem to us to be worthy of enactment so as to have them tested in the courts.
The Bureau of the Budget has advised by telephone that there is no objection to the submission of these views. Sincerely,
John W. MAHAN, Chairman.
SUBVERSIVE ACTIVITIES CONTROL BOARD,
OFFICE OF THE CHAIRMAN,
Washington, D.C., April 26, 1968. Hon. EDWIN E. WILLIS, Chairman, Committee on Un-American Activities, House of Representatives, Washington, D.C.
DEAR CONGRESSMAN WILLIS: This is written in response to your request for our views or comments on H.R. 15626, 30th Congress, which contains provisions aimed at protecting the security of defense facilities. We note that H.R. 15828, which was also introduced in the 90th Congress, contains provisions having the same basic purpose.
We certainly agree with the purpose of barring active, knowing Communists and other security risks from access to classified national security information. We agree that in the light of court decisions express legislative authorization and specific standards are necessary in order to carry out this purpose.
H.R. 15626 takes a quite comprehensive approach to the problem. Much thought and effort was obviously given to drafting the proposed legislation. We have not attempted a line-by-line study of the procedures, standards, and criteria set forth in the bill. We defer to the Departments of Justice and Defense and the other departments and agencies which have been closely involved with the present industrial security program.
The proposed new section 5(a)(1)(C) would make it unlawful for any member of a Communist-action organization to engage in any employment in any
defense facility (lines 12–15 at page 2). H.R. 15828, on the other hand, applies only to "active members" who have "subscribed or assented to any unlawful objective of such organization” (page 8 beginning at line 13). The application to all members as is done in H.R. 15626 is of questionable legality under the Supreme Court's decision in the Robel case and cases like Dombrowski. We recommend consideration of modifying the H.R. 15626 provision along the lines of the provision in H.R. 15828.
The procedures, standards, criteria and guidelines set forth in the bill seem to take care of the points covered by the various, applicable court decisions. While some are perhaps rather broad, we do not have any informed basis for suggesting changes.
The Bureau of the Budget has advised by telephone that there is no objection to the submission of these views. Sincerely,
JOHN W. MAHAN, Chairman.
STATEMENT OF DANIEL J. O'CONNOR, CHAIRMAN, NATIONAL AMERI
CANISM COMMISSION OF THE AMERICAN LEGION, ON H.R. 15626 (A BILL TO AMEND THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 19.50 TO ACTHORIZE THE FEDERAL GOVERNMENT TO DENY EMPLOYMENT IN DEFENSE FACILITIES TO CERTAIN INDIVIDUALS, TO PROTECT CLASSIFIED INFORMATION RELEASED TO UNITED STATES INDUSTRY)
Mr. Chairinan and Members of the Committee, The American Legion appre ciates the opportunity to testify in support of H.R. 15626, a bill which would authorize the Federal Government to deny employment to certain subversive individuals in defense facilities of the United States. Certain provisions 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 industry were nullified by the Supreme Court in United States v. Robel, decided December 11, 1967. The Supreme Court held that those provisions were void for "overbreadth," unconstitutionally abr ing the “right of association," protected by the first amendment to the Constitution.
In order to protect the internal security of the United States, the Congress must adopt legislation which will meet the Supreme Court's objection or take the drastic position of preempting the authority of the United States Supreme Court to rule on any legislation related to the national security. Today, we recommend enactment of new law to meet the Court's fiat on overbreadth, its references to limitations on executive or legislative authority and, specifically, its invalidation of United States Coast Guard regulations on permits to merchant seamen. H.R. 15626 will accomplish these objectives.
Personnel engaged in security work find it most difficult to protect the United States because of the infiltration and subversive tactics of world communism. It is especially discouraging to law enforcement officials and others charged with preserving our internal security to see their efforts vitiated by Court decisions of this nature. Reasonable men find the burden placed on them so intolerable they are tempted to abandon the battle against subversion and simply go through the motions because their efforts are stymied repeatedly by Court decisions which have overstretched reasonable bounds in an effort to make the individual's rights the “sacred cow" of liberal interpretation at the expense of the Nation as a whole. The American Legion cannot agree with certain decisions of the Court, such as this one, which allows Communists to remain employed in defense plants. Nowhere in these decisions do we find an expression of confidence, faith, and trust in public and private officials to evaluate the evidence and make findings based thereon which are fair, equitable, and consonant with the national interest.
Mr. Chairman, who and what is a passive Communist? What man or woman joins the Communist Party for the sake of joining? Who joins the Communist Party and then states he disagrees with the aims and objectives of the Communist Party? The Court majority has proclaimed that guilt by association is an infringement of the first amendment and proceeds to protect the rights of the so-called passive Communist. the commie who joins the party, but perhaps disagrees with its aims and purposes.
Mr. Chairman, we commend you and the committee for providing specific authority for the President to institute a personnel screening program to secure the objectives of the Magnuson Act even though we believe sound reason would
dictate the President already has the inherent power to effectuate a program to accomplish this purpose. We appreciate, too, your setting of specific standards to meet the objections relating to associational activities and are particularly pleased to note the provision regulating the jurisdiction of the Courts in certain proceedings. Your sincere effort to establish procedures to authorize specific inrestigation, hearing, and review procedures; cross-examination and confrontation of witnesses; and the issuance of compulsory process, all attest to your good faith in providing the constitutional safeguards for all persons coming within the orbit of this legislation.
The American Legion has, since its founding, fought communism and what it stands for and we find it difficult to accept the tortuous reasoning which allows enemies of this Nation to be employed in defense industries. It follows, therefore, that your remedial action should be approved by the Congress of the United States if we are to protect our beloved country.
Another important section of this bill covers the refusal to testify upon the grounds of self-incrimination in any authorized inquiry relating to subversive activities conducted by any congressional committee, Federal court, Federal grand jury, or any other duly authorized Federal agency, as to any question relative to subversive activities of the individual involved or others. We believe Congress has not only the right but the duty to enact legislation to safeguard defense facilities from acts of espionage and sabotage and to set up personnel and industrial security clearance programs to protect classified information as well as the actual facilities, whether it be vessels, harbors, or docks.
Representing the members of The American Legion, numbering 2.600.000, and 1,000,000 members of the American Legion Auxiliary, I urge this committee to report favorably on H.R. 15626. If ever there was a time in our Nation's history when we should be concerned about communism, it is now. We have seen this ideology spread throughout the world and we would be “sad sacks" to stand idly by while judicial fiat allows Communists to be employed in our defense industry. I urge you to give the internal security of our Nation top priority, and pass this bill on to the floor of the House for consideration.
Thank you for allowing me to appear here today.
The CHAIRMAX. Our last witness this morning is Mr. Speiser, with the American Civil Liberties Union.
Mr. Speiser, you may come forward, sir.
If you wish, you can file your statement at this point and speak from it.
STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON,
D.C., OFFICE OF AMERICAN CIVIL LIBERTIES UNION
Mr. SPEISER. Very well, Mr. Chairman. I would like my statement included in the record in its entirety.
I will not read it. In order not to keep members of the committee in suspense, I will state at the outset that we are opposed to the enactment of H.R. 15626, H.R. 15018, and the related measures, which are attempts to overturn the Supreme Court's decisions in United States v. Robel, and Schneider v. Smith.
We go into the constitutional arguments in some detail in our testimony. I am quite willing to answer questions of the committee, based on the submission that we have made.
(Mr. Speiser's prepared statement follows:)
STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OF
FICE, AMERICAN CIVIL LIBERTIES UNION, OX H.R. 15626, H.R. 15018, AND RELATED MEASURES, APRIL 30, 1968
I am Lawrence Speiser, director of the Washington, D.C., office of the American Civil Liberties Union. For almost a half century the ACLU has existed with the sole purpose of protecting and extending the liberties and rights contained in the Bill of Rights of the United States Constitution. Our continued
dedication to that purpose demands that we strongly oppose H.R. 15626, H.R. 15018 and similar measures being considered by this Committee today.
Each of these measures has as its avowed purpose authorizing the Federal Government to deny employment in defense facilities to certain individuals. More candidly, however, it might be said that each has as its purpose an attempt to overturn the recent Supreme Court decision in United States v. Robel, 389 l'.S. 258 (1967), holding that mere membership in the Communist Party is an insufficient basis to bar an individual from work in a defense related industry. Indeed, most of these measures would go beyond the employment restriction held unconstitutional in Robel. They attempt not oniy to bar an individual from work in such industry on the basis of membership in the Communist Party, but also to extend that bar to participants in many other activities, organizations or associations, none of which are in themselves unlawful.
We fully recognize the seriousness and importance of the Government's interest in national security. Likewise, we are fully aware of the Government's ability, under the "war power" of Article I of the Constitution, to enact legislation to protect and promote that interest. Nevertheless, that interest must be defined and that power exercised at all times within the bounds of the specific guarantees of Bill of Rights. In the recent words of the Supreme Court, “... the phrase 'war power' cannot be invoked as a talismanic incantation to support any exercise of congressional power which can be brought within its ambit ... [T]his concept of 'national defense' cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term 'national defense is the notion of defending those values and ideals which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties ... which makes the defense of the Nation worthwhile." United States v. Robel, supra.
It is because the measures before this committee today would, in our view, subvert "those liberties ... which make the defense of this nation worthwhile” that the ACLU urges their complete and unequivocal rejection.
The provisions of these bills often overlap, and our objections to them often apply to provisions in several of the bills. Therefore, I will discuss first, H.R. 15626, the broadest of the bills.
I. H.R. 15626
A. COMMUNISTS BARRED FROM DEFENSE FACILITIES
This Bill has three main provisions. The first of these would reinsert in the Internal Security Act of 1950, the specific provision found unconstitutional in Robel. Section 5(a) (1) (D) of the Internal Security Act as amended, had provided that "it shall be unlawful" for a member of a Communist-action organization, “to engage in any employment in any defense facility.” The Robel decision struck down this provision as "an unconstitutional abridgement of the right of association protected by the First Amendment.”
H.R. 15626 attempts to evade that decision by adding to the original proscription the clause "with knowledge or notice of its designation as a defense facility." This addition utterly fails to revalidate the original provision for a number of reasons. Chief among these is the fact that the element of “knowledge" found lacking in the original provision was not knowledge of the fact that a facility had been designated as a defense facility for purposes of the Internal Security Act.
In Robel, the Court specifically called attention to Aptheker v. Secretary of State, 378 U.S. 500, in which $ 6 of the Subversive Activities Control Act, 16 C.S.C. $ 2385 was held unconstitutional. That section provided that “when a Communist organization is registered or under a final order to register, it shall be unlawful for any member thereof with knowledge or notice thereof to apply for a passport.” (Emphasis added.] United States v. Robel, supra.
Section (2) (c) of H.R. 15626 would rewrite $ 5(a) (1) (D) of the Internal Security Act so that it is exactly analogous to the provision found unconstitutional in Aptheker. This is hardly a way to save a provision already held unconstitutional for other reasons.
While knowledge of a facility's designation under $5 (a) (1) (D) would undoubtedly be required by due process, as a necessary element of the offense for
1 H.R. 15649 and H.R. 16613 are identical b?!'.
violation of the section, it is, in itself, not sufficient to salvage the section. The "knowledge” which, among other things, the section failed to require, is knowl. edge of the Communist-action group's unlawful aims and purposes. The Court stated, in Robel, with regard to 8 5 (a) (1) (D), that: "It is precisely because that statute sweeps indiscriminately across all types of associations with Communist-action groups, without regard to the quality and degree of membership, that it runs afoul of the First Amendment." In this respect, the proposed new provision of H.R. 15626 retains all the constitutional defects of the one which was stricken.
We are convinced that no such sweeping attempt to bar members of Communist organizations, merely on the basis of such membership, from any and all employment in defense facilities, can withstand constitutional scrutiny. The Supreme Court requires that congressional enactments which impose disabilities upon individuals for membership in organizations which advocate unpopular ideas must contain each of four elements: (1) the organization must have goals which are illegal and which Congress can constitutionally proscribe; (2) the individual member of the organization must know of these illegal goals; (3) the member must have the specific intent to further or accomplish such goals; and (4) the individual must be “active” and “not merely ‘a nominal, passive, inactive or purely technical member.” See, e.g., Scales v. United States, 367 U.S. 203 (1961). As the Court has stated :
"Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat, either as citizens or as public employees. Laws ... which are not restricted in scope to those who join with the 'specific intent to further illegal action impose, in effect, a conclusive presumption that the member shares the unlawful aims of the organization. ... [Such laws rest] on the doctrine of 'guilt by association' which has no place here.” Elfbrandt v. Russell, 384 U.S. 11, 17 (1966).
Section (2) (c) of H.R. 15626 which would impose a substantial disability on individuals for membership in such organizations fails to comply with the above stated tests of constitutionality. It fails, for example, to require that the individual member have the specific intent to further the unlawful purposes or goals of the organization, or that he has participated in unlawful activities of the organization. The member in question, may know of the organization's illegal goals, but may, himself, have had no specific intent to further these goals in any way. In fact, the member may actually disapprove of the organization's goals, yet continue his membership in the hope that he might change the ideological direction of the organization. While such a person would constitute the very opposite of a “clear and present danger" to any national interest, he might nevertheless be subject to criminal penalties.
Clearly, this kind of provision suffers from “the fatal defect of overbreadth ..."
.” United States v. Robel. Because it is "irrelevant 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 ... that he may disagree with those unlawful aims," or that he may "occupy a nonsensitive position in a defense facility," (United States v. Robel, 36 U.S.L.W. at 4062; see also Cole v. Young, 351 U.S. 536, 546 (1955), it lacks that “[p]recision of regulation (which) must be the touchstone in an area so closely touching our most precious freedoms," NAACP v. Button, 371 U.S. 415, 438 (1963); see Aptheker v. Secretary of State, 378 U.S. 500, 512–13 (1964); Shelton v. Tucker, 364 U.S. 479, 488 (1960). It draws within its scope an overly broad range of associations, indiscriminately penalizing membership which can be constitutionally punished (see Scales v. United States, 367 U.S. 203 (1961)), and membership which cannot (see Elfbrandt v. Russell, 384 U.S. 11 (1966)).
B. DENIAL OF EMPLOYMENT IN DEFENSE FACILITIES
The second major provision of H.R. 15626 continues along the path blazed by the first provision, wreaking further devastation upon fundamental freedoms. Section (4) of H.R. 15626 would add a new section to the Internal Security Act, authorizing the denial of employment in, or access to, any defense facility to any person on the “basis of findings that such person's employment in or access to such facility is not clearly consistent with the national defense or security interests." Guidelines, as to how to arrive at such findings, are provided. The de