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The proposed requirement that each employee or applicant for employment be required to sign a statement that he knows that such facility has been so designated as a defense facility is particularly good—that is page 4 of the bill. May I suggest that this provision would be strengthened if it were required that such signing be witnessed by a representative of management who must also sign with a statement that he made certain that the employee or applicant fully understood the term "defense facility.” Many applicants and employees have a language or other barrier to a complete understanding of Federal defense procedures, problems, and need.

The proposed new section to be inserted after section 5-page 4 of the bill-is a much-needed provision as it makes the legislative intent very clear as to the authority being given to the President. This is the section entitled "Protection of Defense Facilities and Classified Information.” With reference to subsection (5) on page 8 of the bill, it is suggested that the word "known" be inserted in line 10, so as to read: "establishing or continuing sympathetic association with a known saboteur, spy, traitor, seditionist *** *."

The Supreme Court has reversed a number of cases on the ground that a statute is vague in its wording.

It is suggested that subsection (3) on page 12 of the bill be amended by deleting in lines 16, 17, and 18, the words: “the Director of the Federal Bureau of Investigation, or any Federal agency.” As a subordinate bureau, the FBI does not make such determinations, nor does any other Federal agency, other than the Department of Justice itself.

It might be well to add the words “or found to be such by a committee of the Congress or a Federal court.” In the event the Congress authorizes by legislation a central security agency, such an agency might be given such authority in addition to the Attorney General.

It is also suggested the subsection (6) on page 13 of the bill be amended by deleting the words "at common law,” in line 18. Or, substitute the words "in fact” for the words "at common law.” The State of Louisiana, for example, inherited its legal system from the civil law of continental Europe rather than from the common law.

It is suggested that subsection (1) on page 17 of the bill, lines 21-25, and page 18, lines 1-5, be amended to read:

In cases where the President, or his designee, at any time personally determines that the procedures authorized by other subsections of this section cannot be employed with respect to any individual consistently with the national security, the President may authorize his designee to determine the facts and deny, suspend, or revoke such individual's employment in or access to any defense facility engaged in classified military projects or access to classified information released to any facility if the facts in his opinion so justify. An appeal on the record may be made to the President whose decision shall be final.

If an appeal were denied in such an instance, I personally feel that the Federal appellate courts, and especially the Supreme Court, would hold that due process had been denied.

The provision that no court of the United States shall have jurisdiction of any action or proceeding on the complaint of any person except after exhaustion of the administrative remedies is a splendid goal, but I would like to see a further provision to the effect that decisions of the Federal circuit courts of appeal shall be final. Surely, one appellate review is sufficient, and the Congress has the authority to set such a limitation. The President bears the responsibility for the

preservation of our Nation from enemies, foreign and domestic, and the further responsibility for the protection of life and property of all citizens and residents. In the exercise of these responsibilities, he should not be handicapped by unnecessary or prolonged appeals.

The decision of the Supreme Court in the case of United States v. Eugene Frank Robel is cause for great concern. This decision of December 11, 1967, held that a known member of the Communist Party may not be barred from employment in defense industries which are important to the national security and based its decision on the first amendment.

The bill under consideration today will, I hope, meet the test of constitutionality, because the country desperately needs protection internally from the Communist conspiracy dedicated to force and violence.

I call attention to the words of Mr. Justice White and Mr. Justice Harlan in the Robel case:

The constitutional right found to override the public interest in national secu. rity defined by Congress is the right of association, here the right of respondent Robel to remain a member of the Communist Party after being notified of its adjudication as a Communist-action organization. Nothing in the Constitution requires this result. The right of association is not mentioned in the Constitution. It is a judicial construct appended to the First Amendment rights to speak freely, to assemble, and to petition for redress of grievances. * * *

The majority opinion completely ignores the fact that individual rights and the right of association are not absolute. For example, freedom of petition, formerly unregulated, has been severely restricted to insulate legislators from improper influence.

Freedom of association must pay obeisance to the antitrust laws, labor laws, and other laws.

A citizen or resident must register with the Attorney General if he is acting as the representative of a foreign principal, yet the Communist Party, U.S.A., acting as the agent of a foreign principal cannot be forced to register by courtesy of the Supreme Court. The dissenting opinion in the Robel case pointed out, and I quote: “The law of criminal conspiracy restricts the purposes for which men may associate and the means they may use to implement their plans.”

Is the Communist Party, U.S.A., not a criminal conspiracy to destroy the United States by force and violence. The Congress so determined when it passed the Subversive Activities Control Act of 1950 (64 Stat. 987). A Federal district court, a circuit court of appeals, and the Supreme Court itself so determined in the decision of 1961 in the case of Communist Party, U.S.A. v. SACB (367 U.S. 1). The Court determined that the party was directed and controlled by a foreign government or organization.

Mr. Justice Brennan, voting with the majority in the Robel case, said his quarrel with the provision of the law 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 arbitrarv application of criminal sanctions in an area of protected freedoms. This is indeed tortured reasoning when applied to a criminal conspiracy such as the Communist Party.

Justice Brennan does have a good point with reference to memberships and associations other than the Communist Party. The Commission on Government Security in its report of June 1957 did recommend

a legislative base for an industrial security program. The text of its proposed legislation is to be found on pages 702 through 704 of the report.

It was pointed out in the report that the operation of the Department of Defense Industrial Security Program rested upon Government regulations and upon contractual obligations (Report pp. 249, 250), but these did not constitute a legal basis. No statute or Executive order was found by the Commission which expressly authorized the Department of Defense to establish such a program. Implied authority can be found in 5 U.S.C. 22, which states:

The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it. * * *

The Armed Services Procurement Act, 41 U.S.C. 151, et seq., authorizes each of the three military departments to negotiate procurement contracts of "any type" which in the opinion of the agency head will promote the best interests of the Government.

Congressional policy is clearly set forth in 18 U.S.C. 793 and 798 and supplies indirect authority for an industrial security program. Congress said that it is illegal for any person having defense or classified information to disclose the same to unauthorized persons or with intent to injure the United States.

The President, under Article II, section 3, of the Constitution, is directed to take care that the laws are faithfully executed by his subordinates, and the Industrial Security Program now in effect has as its objective the safeguarding from disclosure of defense or classified information.

In addition, Executive Order 10501, November 5, 1953, states that "it is essential that certain official information affecting the national defense be protected uniformly against unauthorized disclosure:”

The authority for this Executive order may be found in Article II, section 2 of the Constitution which provides that:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States * *.

The majority opinion in the Robel case contains an astounding statement :

Section 5(a) (1) (D) denies significant employment rights under threat of criminal punishment to persons simply because of their political associations.

The Communist Party, U.S.A., is not a political association; it is in fact a criminal conspiracy and so determined by the Supreme Court itself. I sincerely hope that the Congress will some day soon pass legislation denying employment rights to members of the Communist Party for any job in the Federal Government, sensitive or nonsensitive. The taxpayers

of this Nation should not have to finance those who would destroy our form of government by force and violence. The first duty of any government is to preserve itself.

Since H.R. 15626 was introduced in the House of Representatives on February 27, 1968, a new procedure has been placed in effect as of May 1, 1968, by the Secretary of Defense which I feel is contrary to

the intent of the Congress as expressed in many laws passed. I feel it is contrary to the intent of the bill under discussion here today.

This procedure concerns the handling of personnel and is called the Privacy Personnel Security Questionnaire. I submit herewith for the record a copy of the Department of Defense Industrial Security Letter of February 29, 1968.

I quote from this letter:

The personal information which is considered of a privacy nature and warrants special handling in the clearance program includes: arrest records ; type of discharge from military service; prior security clearance suspension, denial or revocation ; history of mental or nervous disorders; drug addiction; excessive use of alcohol; and membership in organizations cited by the Attorney General. Under the revised policy the employee will provide this information to the Government as a privileged communication. * * *

I submit that this is a most astounding procedure, for an agency of Government to deny essential information to over 13,000 cleared contractors of private industry. These employees are not Federal employees. Surely private industry has the right to know the background of the employees it hires and to determine whom they will or will not hire. Only a dictatorship has the power over the private sector to the extent inherent in this procedure now in effect as of yesterday.

The Department of Defense in negotiating defense contracts only needed to make it a part of a defense contract that personnel records be given the same protection as is required for classified documents and that is to limit access to those employees of a contractor who have a “need to know.”

No additional cost would have been incurred, whereas under the procedure now in effect there will be a significant cost. But cost is not as important as the handicap to the private sector employer in not knowing essential information. How can a contractor intelligently supervise employees or determine to what jobs they shall be assigned if he does not know the information now to be withheld from him?

Contractors have been granting "confidential” clearances at time of initial employment, and effective performance on classified contracts assumes a capability on the part of industry to employ honest, decent, and reliable employees who are capable of doing the job for which they are hired. Contractors have a right to all information, derogatory or not, in order to determine suitability for employment.

On page 6 of the Industrial Security Letter of February 29 appears this astonishing statement: At the same time, the individual employee who requires access to classified information will be assured that his constitutional right to enjoy privacy on privileged or personal matters remains inviolate.

Mr. Chairman, may I ask that this letter be made a part of today's hearing record ?

Mr. Tuck. It is so ordered.1

Mr. Tracy. When an individual has had a public trial, been convicted, and served time in a prison, it is a matter of public record and he has no constitutional right to enjoy privacy, and there is no constitutional bar to any citizen examining the public record or of asking him about it. If the Department of Defense can bar such information

1 Department of Defense Industrial Security Letter of Feb. 29, 1968. See appendix, pt. 2, pp. 1807-1813.

to an employer, it can deny such information to the press and to the Congress.

This is a most dangerous precedent. We live in an open society, and I think it should be kept that way. The intent of the Congress as set forth in the bill we are discussing today is to protect our national security, but if employers do not know their employees' backgrounds, how can they work with Government intelligently in that effort?

I sincerely hope that the Congress will hold hearings on this matter and demand that the Department of Defense prove its right to institute the privacy security personnel procedure, in private industry.

This committee is concerned about the security of our ports, and the bill under discussion expressly authorizes the President to set up a personnel screening program in view of the decision of the Supreme Court in the case of Schneider v. Smith, decided January 16, 1968.

The privacy security questionnaire does not apply to the Coast Guard as it is under the Transportation Department. In the case of a declared national emergency, however, it would come under the Department of Defense and private employers would be denied essential information. Perhaps this bill could be amended to provide that private employers may not be denied information that is a matter of public record.

The protection of our ports and waterways is a vital necessity in times of peace or war. There is ample justification for a port security program.

President Wilson recognized the need when he issued a proclamation in 1917 (40 Stat. 1725, Dec. 3, 1917) and ordered the Secretary of the Treasury to issue such rules and regulations as would put into operation title II of the Espionage Act (40 Stat. 217).

Prior to World War II, Congress clearly defined Coast Guard jurisdiction in an act passed June 22, 1936, vesting the service with full law enforcement powers on the high seas and navigable waters, but excluding certain inland waters (40 Stat. 1820).

In 1941 Congress eliminated the restriction on inland waters (55 Stat. 585) and also enacted legislation providing for a Coast Guard Reserve and a Coast Guard Auxiliary to utilize the owners and their boats in certain operations (55 Stat. 9, 11). In 1955 Congress expanded the Auxiliary to include aircraft and radio (58 Stat. 759).

By Executive order in 1942, the Navy was assigned full responsibility for protecting vessels, harbors, ports, and waterfront facilities not directly operated by the War Department (E.O. 9074, Feb. 25, 1942). The President recognized the danger from loss or injury by accident, sabotage, subversion, or other causes. The job was assigned to the Coast Guard, which since 1949 has been a branch of the Armed Forces officially, by an act of this Congress (63 Stat. 496).

Communist infiltration into the maritime unions became manifest by 1934. Party participation in the San Francisco dock strike of that vear attested to the growing Communist influence in the West Coast unions. As to the East Coast infiltration, the party measured its own successes and expectations in the following words:

First, a number of strikes have taken place aboard ship. These struggles are beginning to take on a mass and national character. For instance, the strike of 14 coal ports in Boston is an example. We have been able to initiate these strug

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