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Mr. YFAGLEY. No, I don't claim that we are that precise or perfect by any manner or means. We may have missed some. All I am saying is very likely the answer to your question is that we did not have two witnesses to any one person's membership and if we did that at the time we had it, it was no longer current and could not be updated to the time of filing the petition.
Mr. WATSON. I am still at a loss and I conclude with this because it seems we are not going to get the answer. I am amazed that you could bring these cases earlier and you have not been able to bring one single case since the passage of this amendment and the signing of it by the President on January 2.
That is the thing that disturbs me. You did a good job earlier, and I am just amazed as to why we cannot continue it and you have the responsibility under the law whether we agree with it or not. It is essential to disclose the members of the Communist Party for the protection of the national welfare. That is the law.
Mr. CULVER. Mr. Yeagley, I am interested in this question with regard to the proliferation of Communist-front organizations and, as suggested by Mr. Watson, the diminution in the actual numbers in the Communist Party relatively in the United States today and whether this has been brought about because of their increased activities and front action.
As I recall in President Truman's veto message, he predicted this legislation would have this consequence, the actual enactment of the Internal Security Act, at least to the extent that the SACB would operate, because once a petition was filed and a hearing called by a Board, certainly any Communists behind these activities could just change the name of these front organizations and initiate a new group under a new label and go right ahead, and it would only serve to stimulate and make more sophisticated the nature of their operation internally in this country.
It seems to me that we have seen this great outpouring of names of groups and organizations and to the average American I can see where it represents a bewildering kaleidoscope of subversive activity, but I wonder to what extent that has been brought about as a result of the creation of this Board and it stimulated this development and in fact has brought about the very danger it seeks to oppose.
Mr. YEAGLEY. I don't know that I agree with your assumptions. I am afraid possibly I don't.
Mr. CULVER. Have you seen any evidence to suggest that once these groups are earmarked as being of a subversive nature and so on, they go underground and set up another group under another name?
Mr. YEAGLEY. The FBI has had pretty good coverage of the Communist Party, Mr. Congressman.
Mr. CULVER. I hope and pray they do. I have no doubt that they are extremely effective and I hope and pray they are and continue to be with regard to the problem of internal subversion. My only question with regard to you is the extent to which the very existence of this legislation has served to make more difficult this whole problem of public education and awareness concerning those particular organizations or groups of the type and nature which the average American does not wish to be associated with.
That is my question.
Mr. YEAGLEY. I am sure that there must be Communists underground that are not identified. That is the nature of their operation worldwide. But as far as I know, from information I have had, I would have to repeat that I believe that, all in all, the proceedings filed before the Board and the hearings held have been useful and outweigh the detriments.
There are some adverse factors admittedly.
Mr. CULVER. I was interested in the educational value of the Subversive Activities Control Board. When considering this legislation in December I don't think outside the immediate membership of this committee that there were probably five Members of the entire Congress, out of a total membership of 435, who had ever even heard of the SACB, and I think in the Senate of the United States it is equally true.
As far as general awareness of their activities, even among a sophisticated and well-informed American public, I think that is a very remote speculation. It is certainly true that the methods and nature and operation of the Communist Party are extremely important to be known, and the fact that they operate fronts in their approaches. However, being out in the marketplace a little bit myself and not having spent my whole life in a very important role as you now occupy; I wonder if you are not perhaps overestimating the general level of enlightenment among the public as a result of the 18-year activity of the SACB.
Mr. YEAGLEY. That may be. I can't claim I am always right. It is just a matter of opinion.
I might point out one other factor for what it is worth: There have been, and probably always will be, claims on the part of certain people that so-and-so is a Communist.
Sometimes it is rightfully so and sometimes not. Unfortunately, there may have been some claims made that were not in such good faith.
When we file a petition we use the word Communist as referring only to one who is an actual member of the CPUSA, that is Communist with a capital "C.” To prove a person is a Communist with a capital “C” it is not sufficient to prove that he is a Marxist, or even a Trotskyite, or some sort of follower of Marx or Lenin; even a person who said, “I believe in and support the CPUSA” is not necessarily a member of the Communist Party within the meaning of this act. We deal with precise terms when we are dealing with sworn evidence and documents to prove membership.
I would hope to some extent official proceedings with technical treatment of the terminology used regarding membership in the Communist Party serves to minimize the making of loose claims of other people and organizations as being Communist with a small “c.”
Mr. Tuck. You are familiar with the provisions of the amendments recently passed, are you not?
Mr. YEAGLEY. Yes, sir, I am.
Mr. Tuck. Under those provisions, could you not call in one of these Communists and get information from him as to these activities?
Mr. YEAGLEY. Yes.
Mr. Tuck. For instance, you could call in Gus Hall. You may not be able to prosecute him as a Communist, but you could prosecute him for refusing to answer questions; couldn't you?
Mr. Y EAGLEY. Yes, we could.
Mr. Watson. The act signed by the President early this year for you to file these petitions and prove your case before the SAČB, does it not actually make it easier ?
Mr. YEAGLEY. I am not so sure, but I would like to comment on this.
We have been talking to our lawyers about this and we have worked on what the immunity provision offers. Our experience has been that the person will refuse to become a witness—our experience with Communist Party members, when we have given them immunity in the past under other laws is that they have not testified.
Mr. Tuck. We have asked you a lot of questions here this morning. I know that you have a formal statement and I think the time has come probably for us to permit you to make that formal statement.
We will recognize you for that purpose.
Mr. YEAGLEY. I am here today in response to the request of the chairman for the views of the Justice Department with respect to H.R. 15626.
Generally speaking, we are in agreement with the bill's objective to provide a statutory basis for the safeguarding of classified information that must be released to industry, even though we do not suggest there is a compelling need for such legislation in view of the satisfactory operation of the present industrial personnel security program under Executive Order 10865.
In the United States v. Robel, 389 U.S. 258, the Court said that the Government has the power to safeguard its vital interests and that Congress has the power under narrowly drawn legislation to keep subversives from sensitive positions in defense facilities.
We do not believe, however, that the programs authorized here should be made a part of the Subversive Activities Control Act. That law is limited to the activities of the Soviet-controlled Communist movement in the United States. As the bill recognizes, in proposed section 5A (d), not all subversives are Communists, nor do they all have Communist ties or affiliations. As you well know, Peking Communists and Castro Communists do not come within the act, nor do the various Communist splinter groups still active on the American scene. And, of course, other non-Communist subversives such as anarchists do not come under the act. We believe that amendments to the Subversive Activities Control Act should be limited to the purposes originally contemplated by that act and that legislation such as this should be kept separate from it.
H.R. 15626 is drafted in terms of barring subversives from all employment in defense facilities, even if they are privately owned. The Court in Robel struck down legislation which imposed a criminal penalty on Communists employed in defense facilities, but that law was not specifically restricted to employees in sensitive positions.
This bill would authorize the President to deny employment in any defense facility to any person who has the opportunity, by reason of his employment in or access to such facility, to commit subversive acts such as sabotage or espionage. Since the Government is not the employer I have some reservation about an authorization which gives the
Government the right to deny employment even though it be in private industry. I would prefer language authorizing a denial of access to particular sensitive positions in defense facilities.
În view of the decision of the Supreme Court in Robel, it is clear that a statute designed to make employment of Communists in defense facilities unlawful must require more than a showing that an employed member of that class knew the facility had been designated under the act and that the organization had been found to be a Communist organization. Court decisions indicate that an individual cannot be held criminally liable for engaging in such employment without also some showing at least that he is a current active member who participates with knowledge of the organization's illegal purposes. Section 1 (2), page 2, of the bill would be subject to the same objections the Court found to section 5 of the Internal Security Act in the Robel case.
The Supreme Court has indicated that legislation which has an impact on first amendment rights must be as narrowly drawn as possible to achieve the legitimate governmental function desired by the Congress. In this instance the governmental interest is to deny access to classified defense information and to sensitive areas of defense facilities to potential spies and saboteurs or to persons who are otherwise untrustworthy. This purpose, we believe, can be accomplished best through a personnel security screening program related to sensitive positions instead of by means of a statute such as that involved in Robel, which made a criminal offense of the status of holding a job in a defense facility while concurrently being a member of a Communist organization. Although a screening program places a much heavier administrative burden on the Government than the Robel-type criminal statute, it can be more "narrowly drawn" and therefore would have a better chance of withstanding constitutional attack.
If defense facilities are to be protected, I would favor the approach of a screening program authorization which would establish a procedure for keeping persons like those described in section 1(4) of the bill out of sensitive positions in defense facilities. However, we would defer to the views of the Department of Defense as to the necessity of such legislation.
The bill provides in section 5A (d) authority to permit a determination of the extent and the nature of an individual's subversive memberships, associations, and activities. However, 5A(d) (1) (C) of the bill authorizes consideration of memberships and affiliations in organizations whose subversive character is not to be arrived at under the strict due process procedures required by the courts for such determinations. Accordingly, we recommend the deletion of that portion of the bill.
Similarly we believe section 5A (e) should be deleted for presuming under certain circumstances the existence of probable cause for the characterization of other organizations and individuals.
Section 5A (h) generally codifies the provisions of section V.B. of DoD Industrial Personnel Security Directive and seems to permit the investigator who propounds the questions to be the final arbiter of the relevancy of each question. Provisions should be made for a ruling on any objections to relevancy by a hearing officer or board prior to any adverse action under this section for failure to respond.
We believe it necessary to strike the period at the end of the first sentence of subsection (q) of section 5A of the bill, which subsection defines "classified information," and to add the words "pursuant to law or Executive order.” This would make the definition less broad by limiting its scope to information officially classified pursuant to the detailed criteria of Executive Order No. 10501, or as otherwise expressly provided by statute.
In section 1(3) of the bill, page 3, we suggest the insertion of the words "which he determines” after the word “subversion" on line 15 so as to ease the burden of proof.
We recommend omitting from section 5A (d), page 6, lines 1 and 2, the following language, “with any Communist, Marxist, Fascist, totalitarian, or subversive organization, and such other associations” since at least one of those adjectives may be deemed vague and appropriate criteria are later set forth beginning at line 8. Also in regard to lines 4, 5, and 6 we believe the inquiries should be related to the ultimate finding. We suggest this part of the bill be changed to read as follows beginning on line 24, page 5: to authorize by regulation reasonable inquiries directed to an individual regarding his memberships, affiliations, associations, beliefs, habits, and activities, past or present, which are relevant or material to a determination whether his holding of a sensitive position in a defense facility or his access to classified information is clearly consistent with the national interest, including but not limited to consideration of such criteria and inquires of one or more of the following categories:
You will note this suggestion uses the criteria "clearly consistent with the national interest” instead of the criteria "national defense or security interests" used in the bill, page 5, lines 8 and 9. We favor continuing the criteria of the Executive order which has not as yet been questioned.
We would also change the phrase in subsection (f) (3) of section 5A, page 12, which reads, “publicly designated by the Attorney General, the Director of the Federal Bureau of Investigation, or any Federal agency as totalitarian, Fascist, Communist, or subversive, to read, “designated by the Attorney General pursuant to law or Executive order," to conform with proposed section 5A (d)(1)(B).
The provisions of subsection 5A (k), line 18, page 16, to line 17, page 17, establish procedures that differ from present procedures under E.O. 10865. We prefer the provisions of the Executive order to meet requirements of due process. Accordingly, after the word "applicant” in line 18, page 16, we would delete all of the remainder of subsection (k) of proposed section 5A except for lines 18 through 20 on page 17 and substitute, instead, the present provisions of sections 4 and 5 of Executive Order No. 10865. This would continue in effect the present sa feguards which provide that before an adverse determination is made against an applicant in a proceeding in which he is deprived of either the opportunity to cross-examine persons or to inspect classified documentary evidence, that (1) the reliability of the information be assessed, (2) a determination be made, in certain circumstances, that failure to receive such information would be harmful to the national security, (3) appropriate consideration be accorded to the fact that the applicant did not have the opportunity of cross-examination, and (4) where full confrontation is not given an adverse determination can