« PreviousContinue »
While it would seem constitutionally permissible to punish citizens who, for example, furnish financial or other material aid to the Viet Cong or North Vietnam or to similar adversaries, the amendment in question appears to resemble the Treason Statute, (Title 18, U.S.C., Section 2381), and would consequently be subject to the same constitutionally imposed evidentiary criteria required by that statute. Under Article III, Section 3 of the Constitution defining treason, the Government is required to allege specific overt acts of treason upon the part of the accused and to prove each of these acts by the testimony of two eyewitnesses to the particular act. Treason requires both adherence to the enemy and giving aid and comfort to that enemy.
Section 2392 utilizes the terms of the treason statute, including “aid" or "comfort" and "overt act” but leaves out the term "adheres" and seeks to expand the term "enemy" to include, in addition to foreign nations, armed groups engaged in open hostilities against the United States.
The proposed amendment, in our view, bears too close a resemblance to the treason statute and might well appear to the judiciary to involve an attempt to, in effect, try a person for treason without meeting the constitutional standards of proof for such a conviction. In addition to the constitutional problems raised by this proposal, the actions made punishable are in substantial measure proscribed by the Foreign Assets Control regulations issued pursuant to the Trading With the Enemy Act (31 C.F.R. 500.01, et seq.-50 App. U.S.C., Section 5(b)).
In view of the foregoing reasons we are opposed to the enactment of Section 103 of H.R. 15828.
Title II of H.R. 15828 involves amendments to the Internal Security Act of 1950 (50 U.S.C., Section 781, et seq.).
Section 201 of the Bill would amend Section 12 of the Subversive Activities Control Act by extending the term of a member of the Subversive Activities Control Board to seven years. Section 201 also makes the Chairman of the Board the chief executive and administrative officer with respect to personnel and Board funds. We have no objection to its enactment, if desired.
Section 202 amends Section 14 of the Subversive Activities Control Act, entitled "Judicial Review," by adding a new sentence at the end of subsection (a), “In any appeal or review pursuant to this subsection, the sole question to be decided would be the validity of the decision and order of the Board at the time of its issuance.” This proposal would limit appellate review of Board orders to the conditions existing at the time of the order and not at the time of appellate review and could eliminate the remand of a Board case for "staleness," where such “staleness” resulted from appellate delays. We have no objection to the enactment of Section 202 of the Bill.
Section 203 is a finding by the Congress that it is per se a clear and present danger to the national security to have employed in a defense facility individuals who wilfully and knowingly remain members of a communist organization more than 90 days following an order of the Subversive Activities Control Board against such organization.
This is an addition to present law, and we have no objection to the enactment of such legislation.
Section 204 would amend Section 5 of the Subversive Activities Control Act by inserting immediately after subsection (a), a new subsection (b). Subsection (b)(1)(A) would make it unlawful for any member of a Communist organization, knowing or having reasonable grounds for believing such an organization to be a Communist organization, in seeking, accepting, or holding employment in any defense facility, to conceal or fail to disclose the fact that he is a member of such an organization. Subsection (B) makes it unlawful for any individual. who is an active member of an organization which he knows to have been the subject of a final order by the Subversive Activities Control Board, determining it to be a Communist-action organization and having subscribed or assented to any unlawful objective of such organization, to engage in any employment which may affect the national security of the United States in a facility which is designated as a defense facility.
Subsection (C) forbids any officer or employee of a defense facility from contributing funds or services to a Communist organization, knowing or having reason to believe that it was such an organization, or from advising, counseling or urging any person, knowing or believing that such a person is a member of a Communist organization, to perform or omit to perform any act if such an act or omission would constitute a violation of subparagraphs (A) and (B).
Section 2 of the proposed amendment defines the term Communist-action organization as used in the subsection in substantially the same language as that contained in Section 782 (3) (a) of Title 50, U.S.C. Section 204 also defines the term Communist organization to include a Communist-action organization and any organization in the United States which is substantially directed, dominated or controlled by a Communist-action organization or is substantially directed, dominated or controlled by one or more members of a Communist-action organization and operated primarily for the purpose of giving aid and support to a Communist-action organization.
With respect to the employment of Communists in defense facilities, Section 204 would appear to be subject to the same objection the Supreme Court found in the case of United States v. Robel, 389 U.S. 258, in that there is no need to establish that the individual poses the threat the Government seeks to prevent.
In the Robel case, the Supreme Court held that Section 5(a) (1) (D) of the Internal Security Act established guilt by association alone, without any need to establish that an individual's association posed the threat feared by the Government in proscribing it. The Court also pointed out that the statute made it irrelevant whether an individual might be a passive or inactive member of an organization designated by the Board, or that he may be unaware of the organization's unlawful aims, or disagree with those unlawful aims.
The proposed amendment seeks to meet the objections which the Supreme Court noted with respect to Section 5(a) (1) (D) in the Robel case. Thus, the proposed amendment would prohibit defense facility employment of those members of Communist-action organizations who are active members and who subscribe or assent to some unlawful objective of the organization. It is noted that the term "any unlawful objective" of the amendment is quite broad and is not confined to the commission of acts of sabotage or related subversive acts. Although we support the purposes of Section 204, we note that the measure of proof required under this amendment would be quite difficult to obtain.
In any event, there are substantial questions as to whether the proposed amendment would meet the criteria of constitutionality expressed by the Supreme Court in the Robel case and related cases dealing with the imposition of criminal sanctions as a result of a person's membership in the Communist Party, Consequently, we object to the enactment of Section 204 as presently drafted.
Title III of the Bill deals with reprisals against congressional witnesses,
Section 301 would amend Section 1505 of Title 18, U.S.C. by making it a felony for any official of the Executive Branch of the Government to cause an employee to be demoted, suspended, dismissed, retired or otherwise disciplined as a result of his attendance at any inquiry being held by a committee of Congress or as a result of his testimony before any committee unless such testimony discloses misconduct on his part. Adverse action taken against an employee within a year of his attendance or testimony shall be considered prima facie evidence that such action was taken as a result of the employee's testimony.
Section 301 would also amend Section 3486 of Title 18, U.S.C., which deals with immunity as a result of incriminating testimony by adding a new subsection (e). This provision would prevent the demotion, suspension, etc., of any witness who is a member of the Armed Forces or an officer or employee of the Executive Branch as a result of testifying or furnishing official papers or records before a congressional committee, unless such testimony is given or official papers or records are produced in violation of law or they disclosed misconduct on the part of the witness.
Section 302 forbids any reprisal by the Executive Branch through its officials in any manner or by any means not prohibited by Section 1505 of Title 18, U.S.C., against any witness who testifies before a congressional committee or any officer or employee of the Executive Branch who furnishes any congressional committee, chairman or member thereof, any information or any document disclos ing any wrongdoing or breach of security in such agency. Persons who violate this section by ordering or initiating such a reprisal or urging, advising or attempting to bring it about are punishable by imprisonment not to exceed one year or a fine not to exceed $1,000. It is noted that the punishment for violating Section 301 consists of imprisonment of not more than five years or a fine of not more than $5,000, or both. The penalty under Section 301 appears excessive, particularly in view of the one year penalty under Section 302 of the Bill.
In our view these sections present several problems. First, it might be noted that the provision regarding attendance at hearings is extremely broad and is not limited to attendance upon congressional request or at hearings relating to
the employees official duties. Read literally, it would prohibit charging an employee leave without pay for attending any hearing which may interest him without taking annual leave and without agency permission. We doubt that the provision is intended to permit federal employees to be spectators at hearings whenever they wish and regardless of their duties.
Section 301 also raises a presumption which seems somewhat unreasonable, for there is no necessary connection between disciplinary action and the appear: ance within a year of an employee at a congressional hearing. The bill wouli even seem to apply even though the preliminary disciplinary proceedings were commenced prior to the testimony if the disciplinary action should follow the testimony. In our view, this provision would adversely affect effective personnel management.
Similarly, the prohibition on disciplinary action against employees furnishing records to congressional committees may have a serious effect on records management. If an agency is unable to regulate the custody and care of its records, it will be unable to keep any systematic filing system. If any employee is permitted to take any records without permission and furnish them to committees, whether or not requested, agencies will be unable to keep track of them or to furnish them when formally requested by courts, the Congress or other agencies.
Furthermore, Section 301 (e), pertaining to the production of documents, does not exempt material classified pursuant to Executive Order 10501 and such legislation would also effectively prohibit administrative or criminal action against any Government employee who may unlawfully disclose or comprise information in violation of the espionage statutes and the Atomic Energy Act. It is manifest that the protection of classified information dictates that its disclosure be made only when authorized by the proper authority.
We strongly oppose enactment of these proposals.
Section 303 of the Bill would require the courts to give preference to criminal proceedings in cases under Title 18, Chapter 37 (espionage), Chapter 105 (sabotage) and Chapter 115 (treason, sedition, etc.) as well as prosecutions under the Atomic Energy Act of 1946.
Our experience in the prosecution of cases involving subversive activities has not been such as to indicate a necessity for the enactment of Section 303. For many of the enumerated offenses requiring acceleration are capital offenses for which bail is not normally granted. In those instances where bail is granted, it is generally of a high amount and more often than not the defendant remains incarcerated. Since the defendant is jailed the courts give priority to such cases. In the circumstances, we perceive no need for this provision.
The Bureau of the Budget has advised that there is not objection to the submission of this report from the standpoint of the Administration's program. Sincerely,
/s/ J. Walter Yeagley,
J. WALTER YEAGLEY, 188istant Attorney General.
STATEMENT OF THE AMERICAN FEDERATION OF LABOR AND
CONGRESS OF INDUSTRIAL ORGANIZATIONS
Mr. Tuck. In response to the committee's request, the AFL-CIO has by letter dated May 17, 1968, through its associate general counsel, submitted its views on H.R. 15626. Without objection, I therefore ask that the letter of views of the AFL-CIO be included in the record at this point. (The letter follows:)
AMERICAN FEDERATION OF LABOR
Washington, D.C., May 17, 1968.
DEAR CONGRESSMAN WILLIS: In response to the Committee's invitation, the American Federation of Labor and Congress of Industrial Organizations (AFL
CIO) takes this opportunity to submit a statement of its views on H.R. 15626, and to request that this statement be made part of the record of the hearings on said bill. We recognize that the Committee has been favored with a number of comprehensive and meticulous section-by-section analyses of this proposed legislation. This statement will therefore be brief and will deal mainly with the Federation's views on the basic thrust of the bill.
The AFL-CIO's relentless opposition to Communism, and its sympathetic appreciation of the security problems caused by Communist subversive activities is beyond question and is, we are sure, well known to this Committee. Thus the ultimate goal of H.R. 15626 is one with which the Federation is in accord. Nerertheless, the AFL-CIO cannot support the bill in its present form. It cannot do so because H.R. 15626 is overbroad in two respects—in the number of workingmen and women it covers and in the criteria for denying clearance that it sets out. The AFL-CIO's Second Constitutional Convention, held in 1957, set out the essence of organized labor objections to overbroad security programs in the following terms:
"The American labor movement has a great heritage as a foremost champion of the preservation and extension of individual civil liberties in our land. We rededicate ourselves to the task of keeping inviolate the fundamental freedoms guaranteed to every American by the Constitution and the Bill of Rights.
"The AFL-CIO stands not only as a bastion of freedom but also as a bulwark against the threat of International Communism to our way of life and to the entire free world. In the face of this ever-present danger there is a need to maintain an effective security system against espionage and subversive activities by our totalitarian foes. This danger requires the maintenance of effective counterintelligence for vigorous enforcement of criminal laws and for an effective security system administered with full safeguards of the individual liberties guaranteed by our laws."
“RESOLVED, that the AFL-CIO welcomes the recent decisions of the U.S. Supreme Court dealing with loyalty and security. These decisions served to strengthen the individual liberties of all Americans.
"Properly, the application of the necessary security measures should be limited to persons having access to secret or highly classified information affecting national security. To go beyond this limit and to subject to security screening thousands of individuals employed in defense facilities and in the government establishments but having no access to security information is not only unnecessary but objectionable. We, therefore, are opposed to legislative proposals which would apply security screening wholesale to employees in such plants, establishments or facilities without regard to the access of such employees to top-secret and secret security information.
"We reaffirm our determination to preserve and defend American democracy from any and all enemies, within or without.
“We call on Congress and the public to be alert in opposition to any infringements of civil liberties in the administration of the security programs and in the conduct of congressional investigations." The Federation has never deviated from this view and the intervening years have provided ample support for its position.
The reach of H.R. 15626 is such that it could cover all airline and railroad employees, a very high percentage of those in the aerospace, utility and educational fields, and a significant number of the employees engaged in general manufacturing and mining. The vast scope of the program threatens its efficient functioning. The volume of the work it entails tends to require cursory checks which would not be a source of discomfort to the dedicated subversive who has planned his life with the end in view of committing acts of sabotage. And the very size and scope of the assigned task is sure to engender bureaucratic errors, omissions and oversights which could make it possible for a dedicated subversive to slip through the security net and gain access to truly secret information. There is, in addition, a further potential loss to the smooth and efficient functioning of the government inherent in this bill. The United States needs skilled and intelligent people to man its defense establishment and to work in its defense industries. Many of the most able of these will assuredly look elsewhere for employment rather than run the gauntlet of checks provided for in H.R. 15626.
The authorization to run checks on so many workers also creates a serious and unwarranted threat to the right of privacy. As Mr. Justice Brandeis stated in his famous dissent in Olmstead v. United States, 277 U.S. 438, 478, which has
since carried the day, the right of privacy is “the most comprehensive of rights and the right most valued by civilized men." See also e.g. Warden v. Hayden, 387 U.S. 294. The creation of voluminous files of "raw" unanalyzed data concerning the intimate details of the lives and beliefs of a significant proportion of our population is a specter so incompatible with the basic tenants of a free society that it should incline this Committee to a sober reconsideration of the scope of this bill. The right of privacy is not, of course, an absolute. But intrusions into the private lives of American citizens should be permitted only where the expected benefits can be shown to be of a very high order. No such showing has or can be made here. Today the Communist movements appeal to the working men and women of this country is at its nadir. For this reason we are not aware of any information which would suggest that sabotage has been a problem of any proportion in the prosecution of the war in Vietnam. Thus H.R. 15626 takes insufficient account of this fact that the period since 1950 has proved a point that should never have been in doubt—that the vigilance, good sense, innate loyalty of the American working man provides the firmest possible defense against Communist subversion. Whatever the felt needs of the late 40's and early 50's might have been recent history should give us the courage to free ourselves from the excesses of that period and to return to our historic traditions in which we place our trust in the responsibility and loyalty of free men.
The threat to the right of privacy we have noted is intensified by the fact that H.R. 15626 requires the perpetuation, and probable enlargement, of a bureaucracy charged with the monitoring of the private lives and thoughts of American citizenscharged in other words with a task that aligns the Federal Government far too closely with the government of Big Brother in Orwell's 1984. The Statement of Joseph J. Liebling, Director for Security Policy of the Department of Defense, indicates that this bureauracy comprises over 11,000 people and spends over $45 million per year. A Congress as concerned with economy as the present one, which is seriously considering cutting $6 billion from the Federal Budget should, we submit, cut down the size of this swollen security force, whose very existence is a danger to our free institutions, not enlarge it.
The problems we have noted thus far are exacerbated by the excessively broad grounds for disqualification from employment set out in H.R. 15626. In this regard, Sections 5A (d) 15–17 are the most objectionable. The notion that a security force should inquire into the mental health, alcoholic intake and sexual habits of railroad conductors, utility workers, etc., is an ominous one in a society built on freedom and respect for the inviolate nature of the individual. Consideration of the processes that would have to be used to secure reliable evidence as to such matters is enough to require that these provisions should be reconsidered. In addition, it hardly appears self-evident that it is proper to place in the hands of the Executive Department the power to bar every citizen who has relatives in Russia, Eastern Europe, or China from such a high proportion of the blue collar jobs available in this country. Yet that is the precise effect of Section 5A (d) (10). And while the AFL-CIO and the vast majority of its membership has given unstinting support to the Administration's prosecution of the war in Vietnam, it seems to us to be unsound to place the job rights of those who oppose that policy peacefully, and out of a sense of loyalty, in jeopardy. Yet that is a probable effect of Section 5A (d) (3). In addition to these specific points, which could be expanded, there is another danger inherent in Section 5A (d). It gives the Executive a broad discretion which could be used as a cloak to further objectives other than the exclusion of potential saboteurs and subversives from defense positions. This discretion could, for example, be used as a mechanism to allow anti-union employers to rid themselves of workers who hold the "subversive" idea that representation by a labor union is a good idea.
The overbreadth of the bill is not the only reason why the AFL-CIO cannot support H.R. 15626. The Federation also objects to the fact that the pro posed legislation does not go far enough in assuring fair procedures to those who wish to challenge an adverse security determination. The exceptions contained in Section 5A (k) to the right to cross-examine witnesses and to secure relevant documentary material are of such potential magnitude that they threaten to engulf those rights. We submit that the minimum improvement that is necessary is to provide that the hearing officer in charge of a particular case, rather than those who have investigated and decided to prosecute the matter, decide whether the national security requires deviation from these essential rights. Moreover, the bill should make it clear that a refusal to produce a witness under 5(a) (k) (B) or (C) should be sustained only if the informant is an undercover agent. The present wording is far too vague. Since the hearing officer will,