and the Army and Navy and Air Force can better answer these questions, although I believe if they had had any complaints they would have registered them with the Department of Justice, I think the proper procedure would be to bring these various agencies in here and then get their direct testimony on it because he has already answered quite positively "no" in reference to all of these things.

Mr. CULVER. The only thing I am trying to suggest, Mr. Watson, is that if Mr. Yeagley does consider himself in a position to make a response to the questions you directed to him, that certainly responding to a hypothetical question concerning his posture on the recommendations regarding the veto message in 1950 I don't think is any reflection on his fine integrity or indeed the memory of one of the greatest Presidents we have had.

Mr. YEAGLEY. I naturally don't want to sit in judgment on any President. I don't want to completely duck the answer to your question, Congressman Culver. As I indicated in my earlier testimony, I think the law has had a good effect from the standpoint of the U.S. Government in relation to the Communist Party, the nature of its operation, the extent of its influence, and the number of its members. As you have pointed out, we encountered constitutional difficulties in enforcing several of the provisions of the law. I was not in the Department when the veto message was written or issued, nor when the Attorney General prepared his recommendations, so that I can't help in that area.

Mr. CULVER. On this business about hurting the Communist Party, again I think we have had some discussion on that point before. But it seems to me that it has been of great value to the Communist Party to have the United States Government for 18 years before the Supreme Court, with a poor batting average, dramatically propagandizing to the world that the United States does not live up to the high example in the Bill of Rights and judicial due process, and so forth.

It seems to me that the leadership of the Communist Party in making a decision to vigorously combat legally every possible challenge to the statute are certainly not insensitive to the worldwide propaganda value of such an exercise and it seems to me that before the eyes of world opinion the United States can't say that this statute has necessarily put us in an attractive light.

The fact that some other governments have adopted far more stringent, far more narrow, far more sweeping statutes regarding internal security doesn't surprise me in the least.

What concerns me is whether or not the United States, the leader of the free world, whether or not the United States, who I think and I hope represents a standard to mankind in the area of individual freedom, can make an effort to reconcile the national security interest consistent with individual freedom in a much more refined way with less consequences to individual liberties.

So that it seems to me that the question here is with regard to how much it hurt the Communist Party. I can't see where, standing and viewed from their vantage point, this has been such a disastrous exercise to take the United States Government through the courts for 18 years and win most of the important substantive decisions.

Mr. Tuck. You have just made a long speech, and, if you have some questions, ask a question. He has already answered the question.

Mr. CULVER. I would like to hear his response to that.

Mr. Tuck. What did you ask? He has already answered and said that it not only has not helped the Communist Party, but hurt the Communist Party.

Mr. CULVER. He said that?

Mr. Tuck. He has answered the question and given the committee his opinion.

Mr. CULVER. I don't think that is exactly the sequence of events. He has suggested that this has hurt the Communist Party more than it has helped it, without a great deal of elaboration other than the suggestion you made 2 weeks ago that there was a disclosure value in the Subversive Activities Control Board hearings. I have tried to suggest that possibly this assessment is not a valid one. And I would be interested in his response to my suggestion.

Mr. YEAGLEY. It is obviously a matter of personal opinion and judgment as to what the effect has been. I don't have any hesitancy at all in my own view that the disclosure that resulted from the evidence and the testimony at these proceedings was very useful. In reference to the constitutional problems, I might reiterate that the basic disclosure requirement of the law was upheld by the Supreme Court in its 1961 opinion.

It was our enforcement efforts in the face of fifth amendment claims later on in which we encountered the bulk of the trouble.

Mr. WATSON. In fact, Mr. Yeagley, if I may interject here, you have had a lot of constitutional problems to arise and difficulties to arise over the past few years, not only in relation to this, but as to many other acts; haven't you?

Mr. YEAGLEY. We have constitutional issues raised in practically all of the areas of security enforcement, whether criminal or civil, because we are of necessity in an area involving the first amendment and very frequently in an area involving the fifth amendment.

Mr. TUCK. As a matter of fact, the plan of the Communists is to raise a constitutional question wherever they can and at the same time they wish to destroy the Constitution of the United States and shatter our Bill of Rights; isn't that true?

Mr. YEAGLEY. Yes, sir.

Mr. TUCK. As I understand, both you and Mr. Liebling favor this bill within the limitations of the suggestions that you make; is that correct?

Mr. YEAGLEY. I am sorry. I didn't hear the question.

Mr. TUCK. I said, as I understand it, you favor the amendments which are proposed in this bill within the limitations of the suggestions which you have made?

Mr. YEAGLEY. Yes. I might mention one thing that bears on earlier testimony here and that is as to extending the screening program to defense facilities. I think in my testimony earlier I indicated, "assuming that the program is needed" or "assuming that it is desired by Defense," that we would make the following suggestions, or something to that effect, because we have not endeavored to assess the need for extending the program to defense facilities which Mr. Liebling said may involve 3,500.

Our comments largely in that area were an effort to suggest language or point our problems we saw from the legalistic standpoint.

Mr. WATSON. Mr. Chairman, since apparently much of the discussion is centered around the necessity under this act of divulging the names of informants and otherwise, Mr. Yeagley, could you give us a rough estimate of the number of informants, FBI or otherwise, who have had to be surfaced in order to implement this particular act over the past 18 years?

Mr. YEAGLEY. To do it now from memory would be a very loose and general figure. It would be well over 100, I suppose, but I wouldn't know right now the exact number.

Mr. WATSON. Of course, Mr. Yeagley, many of these same informants especially in the major case of the Communist Party were defected Communist Party members and were FBI informants who had already been previously exposed or surfaced in order for your Department to make the prosecutions under the Smith Act; is that not true?

Mr. YEAGLEY. Well, to some extent. I was thinking in terms of the informants that were released for the purposes of these particular cases. I said well in excess of 100. It may not be that many. Maybe it is roughly 100. I don't know.

Mr. WATSON. But many of them would have been already surfaced in order for you to prosecute under the Smith Act?

Mr. YEAGLEY. Some. You see, the problem there is that if they had been surfaced 2 years before, their value as witnesses is limited. We would still have to update their testimony to the time of filing the petition, or close to it.

We did use some of them I know. We used Louis Budenz in the Communist Party case and some others as experts. We tried to use them wherever we could for the very purpose of saving others.

Mr. WATSON. In fact, they were a large part of the prosecutions, under the Internal Security Act, of the Communist Party?

Mr. YEAGLEY. In the Communist Party case itself.

Mr. WATSON. That is a major one. May I make one final observation, and you might comment on it.

The purpose of informants is ultimately to either expose the operations of subversives or Communists or to prosecute them. It is not just merely to have someone watching somebody all the time and for the Justice Department to do nothing about it ultimately. Isn't the basic purpose of informants to get information in order that a case might be prosecuted?

Mr. YEAGLEY. That observation might be true from my standpoint, but I am not so sure that it is from the standpoint of the FBI. As far as they are concerned, it is basically an intelligence operation. They primarily want to have the intelligence of what is going on, how extensive the activity, and secondarily to determine what can or should be done about it.

Mr. WATSON. Finally, we can conclude from Mr. Hoover's earlier testimony in never complaining about the operations of the Internal Security Act that this matter of surfacing informants has not presented any particular problem to him?

Mr. YEAGLEY. I wouldn't speak for Mr. Hoover in that regard. I think the facts speak for themselves. I do know what he has testified to, as you have indicated, but of course I do know, too, that we have had some problems of how many informants to use and which ones.

Mr. CULVER. I didn't hear the last.

Mr. YEAGLEY. We have had, of course, in the past some problems of how many informants to use and which ones should be used, but I should note the Bureau has been most cooperative in producing informants for our lawyers to interview.

Pursuant to Congressman Willis' request, I submit herewith a letter from the Department of Justice expressing the Department's views on H.R. 15828.

Mr. Tuck. The letter will be inserted in the record at this point.
We thank you, gentlemen.

(The letter dated May 20, 1968, follows:)

DEPARTMENT OF JUSTICE,

Washington, May 20, 1968.

Hon. EDWIN E. WILLIS,

Chairman, Committee on Un-American Activities,
House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on H.R. 15828 designed to strengthen the internal security of the United States.

Since the proposed legislation to be cited as the "Internal Security Act of 1968" embodies several distinct amendments to the United States Criminal Code (Title 18 U.S.C.) and the Subversive Activities Control Act of 1950, as amended (Title 50, U.S.C., Section 781 et seq.), we shall comment seriatim upon each section to facilitate our discussion of this rather broad Bill.

Title I of H.R. 15828 is composed of amendments to the national security provisions of Title 18 of the United States Criminal Code.

Section 101 (a) of the Bill would amend the definition of "war premises" as found in Section 2151 of Title 18, U.S.C., dealing with the crime of sabotage. Under existing law, the term "war premises" includes all buildings, grounds, etc., wherein war material is being produced, manufactured, stored, mined, etc. Under the amended definition, "war premises" would include those premises wherein war material is being "or may be produced, manufactured, . . .". Subsection (b) would amend the definition of "national defense premises" to include all buildings, grounds, mines or other places wherein national defense material is being "or may be produced, manufactured, etc."

The foregoing amendments to the existing law would substantially enlarge the scope of the sabotage statutes. If enacted, they would require the Federal Bureau of Investigation to investigate charges of "sabotage" whenever an industrial accident occurred in almost any industrial facility, since such facilities could probably produce "war material” under the broad definition afforded that term by Section 2151 of the sabotage statute.

In addition to the investigative and consequent enforcement problems indicated above, there also appears to be a constitutional question as to vagueness in the proposed amendment. For it is not clear whether the amendment is intended to cover all premises wherein it is possible to produce, store, etc., war materials or is intended to apply only to those premises planned or intended to be so utilized. In light of the broad scope of the existing sabotage statutes defining premises, wherein war material and national-defense material is being produced, manufactured, stored, etc., there would appear to be little reason to doubt that the amendment would apply to all premises in which it is possible to produce or store such materials.

Therefore, we are opposed to the enactment of Section 101 (a) and 101(b) insofar as they seek to expand the definition of the terms "war premises" and "national-defense premises."

Section 101 (a) and (b) would also amend the existing phrase "or other installations of the Armed Forces of the United States, or any associate nation," as contained in Section 2151 to read as follows "or other military or naval stations of the United States, or any associate nation." Inasmuch as the existing language is broader in scope than the proposed change, we are opposed to its enactment. Section 102 (a) of the Bill would amend the initial provision of the Smith Act, (Title 18, U.S.C., Section 2385), which punishes the knowing or willful advocacy or teaching of the duty or desirability of overthrowing the Federal Government or

the government of any state by force or violence, by adding at the outset the phrase, "Without regard to the immediate provable effect of such action".

While the meaning of this proposed amendment to the Smith Act is not entirely clear, it would appear to be an attempt to escape or mitigate the consequences of the "clear and present danger test" or its equivalent. This test, as you may know, has been applied by the Supreme Court in practically all cases involving the punishment or curtailment of speech commencing with Schenck v. United States, 249 U.S. 47. The "clear and present danger" test was utilized in the first Smith Act case involving the top echelon of the Communist Party, Dennis v. United States, 341 U.S. 494, and in Yates v. United States, 354 U.S. 298. Chief Justice Vinson stated in Dennis, "The doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts" (341 U.S. 513).

In the cases involving freedom of speech such as Schenck and Dennis, the Supreme Court has imposed the "clear and present danger test," or its legal equivalent, as a means of determining whether the words spoken or written are outside of the area of constitutionally protected speech, as guaranteed by the First Amendment to the Constitution. To circumscribe or eliminate the "clear and present danger test," as is apparently attempted in the proposed amendment, would appear to constitute an attempt to eliminate the very mechanism the courts have created to assist them in determining what speech has gone beyond the protection of the First Amendment. We are therefore opposed to the enactment of Section 102 (a) of the Bill.

Section 102(b) of the Bill would further amend Section 2385 of Title 18, United States Code, by inserting immediately after the first paragraph thereof a new paragraph:

Whoever with intent to cause the overthrow or destruction of any such government, in any way or by any means advocates, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying any such government by force or violence; ...

The foregoing is an apparent attempt to bring the Smith Act expressly into conformity with the holding of the Supreme Court in Dennis v. United States, 341 U.S. 494, 499. The Dennis case held that even though the Smith Act in paragraphs one and three did not expressly require the specific intent to cause the violent overthrow of the government, it was the purpose of Congress to require such an intent and that the structure and purpose of the statute demanded the inclusion of intent as an element of the crime. The amendment, however, would have no effect on paragraphs one and three since intent has been judicially declared as an element of the crime in these sections. Since this amendment does not appear to meet any genuine need in the Smith Act, we are consequently opposed to its enactment.

Section 102 (c) amends the last paragraph of Section 2385 to provide that the term "organize" with respect to any society, group, or assembly of persons, includes encouraging recruitment or the recruiting of new and additional members and the forming, regrouping, or expansion of new or existing units, clubs, classes, or sections of any such society, group, or assembly of persons.

The final paragraph in the Smith Act defining the terms "organize" and "organizes" was amended by Congress in 1962 to obviate the effect of the decision of the Supreme Court in the Yates case, supra, where the Court held that the term "organize" meant the organization of the Communist Party, as such, and not the recruiting of new members and the forming of new groups. The new amendment would delete the word "organizes," and adds the phrase "encouraging recruitment" and the words "recruiting of new or additional members."

While the proposed amendment would not appear to alter the purpose and the effect of the existing provision of Section 2385, except in a minor way, we have no objection to its enactment, if deemed desirable.

Section 103 would amend Chapter 115 of Title 18 of the United States Code dealing with treason, sedition and subversive activities by adding a new section 2392. The new section would punish anyone owing allegiance to the United States who gives aid or comfort to an adversary of the United States by an overt act within the United States or elsewhere. The term "adversary" of the United States would include a foreign nation or armed group which is engaged in open hostilities against this country or with which the Armed Forces of the United States are engaged in open hostilities.