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existing international commitments.

Consequently, it is recommended that the three categories of classified information contained in Executive Order 10501 be continued.

The Bureau of the Budget advises that, from the standpoint of the Administration's program, there is no objection to the presentation of this report for the consideration of the Committee, but that it has not yet had the benefit of the views of the Department of Justice and other interested agencies on H.R. 15336.



L. Niederlehner

Acting General Counsel

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Reference is made to your request for the views of the Department of Defense with respect to H. R. 15828, 90th Congress, a bill "To strengthen the internal security of the United States."

The Department of Defense supports many of the broad objectives of the bill. Many of the provisions of the bill are within the purview of other agencies of the Executive Branch and the Department of Defense defers to such agencies for comment on those provisions. Our comments are limited to those provisions which are of direct concern to the Department of Defense.

Section 101 of the bill amends the existing statutory definitions of "war premises" and "national defense premises" now contained in Section 2151 of Title 18, United States Code. The proposed change in the definition of war premises would expand the definition to include premises where war materials may be produced, as distinct from actually being produced, and hence would broaden the impact of the statute to include almost any industrial facility, regardless of its existing production or service capability. While the Department of Defense does not object to a broadening of the statute, we do raise a question as to the efficacy of a statute so demonstrably broadened.

In contrast to the broadening effect of the language just mentioned, we note that, in another respect, the definition has been narrowed,

perhaps inadvertently. This occurs because of the addition of a new phrase, "or other military or naval stations of the United States." This change is susceptible to an interpretation which would exclude a few military entities, such as naval activities which are neither navy yards nor navy stations. To preclude a technical narrowing of the two definitions, it is recommended that both be changed to reflect the broader coverage now provided by 18 United States Code 2151 wherein it provides "other installations of the Armed Forces of the United States or any associate nation."

Section 204 of the bill would make it a crime for an active member of a Communist-action organization who knows and subscribes to its unlawful objectives to be employed in a position which may affect the national security in a defense facility designated by the Secretary of Defense. On the question of the constitutionality of this provision, we yield, of course, to the views of the Attorney General. However, if constitutional, this provision would be of assistance to the Department of Defense by providing new statutory authority to replace that found unconstitutional by the Supreme Court in the case of United States v. Robel. We note that the proposed amendment is designed to meet the objections which the Supreme Court observed with respect to Section 5(a)(1)(D) in the Robel case in that it expressly requires three elements indicated by the court to be essential in new, more narrowly drawn legislation. These are: active membership, the subscribing or assenting to some unlawful objective, and employment in a position where the incumbent could affect the national security.

With specific reference to that part of Section 204 which would add a
new subsection (b)(1)(C) to Section 5 of the Subversive Activities
Control Act, making it unlawful for any officer or employee of a
defense facility to contribute services to a Communist organization,
it is recommended that a proviso be added which would exclude
lawful commercial service performed at ports and airports for
Communist countries or any of their agencies pursuant to treaties
or international agreements.

Section 301 would make it a felony for any officer of the United States to discipline an officer or employee of the United States because of

testimony given or because of official papers or records furnished the Congress or any Congressional Committee, and Section 302 would make it a misdemeanor in any case not covered by Section 301 where an officer of the United States takes reprisal against any witness who furnishes information or documents to the Congress, Congressional Committees or Subcommittees thereof, the Chairman or members of Committees or Subcommittees, or the head of any committee staff; or who initiates, approves, advises, or conspires to bring about a reprisal. We note that the exception for classified information or unconfirmed derogatory information in Section 301 is not included in Section 302. The purpose of this legislation is understood but the Department of Defense is concerned with its impingement on the responsibility of the Executive Branch. Moreover, the provision that demotion, suspension, dismissal, or retirement of any such witness within a year shall be prima facie evidence that it was a reprisal against the witness, and the proposed criminal penalties would have undesirable effects on discipline within the Department of Defense. This provision appears unnecessary and undesirable and should be deleted.

The Bureau of the Budget advises that, from the standpoint of the Administration's program, there is no objection to the presentation of this report for the consideration of the Committee.



L. Niederlehner

Acting General Counsel

The CHAIRMAN. Charlie, will you come forward?


Mr. BENNETT. Yes, sir. I have a very brief statement, which I will read.

My assistant has copies, which I guess he has given out or he is giving them out at this point.

Mr. Chairman, I appreciate your giving me this opportunity to appear before the committee in support of legislation to fill recognized gaps in our internal security laws.

As you know last December the Supreme Court declared an important section of the Subversive Activities Control Act unconstitutional. The Court told us that we could not make it unlawful that a member of a Communist organization be employed in a defense facility. This decision-U.S. against Robel-brought to the public's attention the urgent new need for effective legislation to combat subversives in our defense plants, and 13 members of the House Armed Services Committee joined me in introducing H.R. 15018 on February 1, 1968, to do just this. I am happy to know that so many other Members have also expressed their concern over the need for effective legislation in this field by the introduction of similar legislation.

Under my bill the Secretary of Defense is authorized and directed to designate certain industrial plants or facilities "defense facilities," and the employees of such a faciliity will be required to sign a statement that they know the facility is so designated. The President is then authorized to institute such measures or regulations as may be necessary to bar from employment in such facilities any person concerning whom there is reasonable grounds to believe that he is disposed and has the opportunity by reason of his employment to engage in sabotage, espionage, or other subversive acts against his employer, and therefore against the United States.

The legislation would authorize reasonable inquiries directed to an individual regarding his affiliations, membership, beliefs, or activities, which are relevant to determine whether there are reasonable—and I stress reasonable-grounds to believe that he may engage in sabotage, espionage, or other subversive acts as an employee in the defense facility. Before a person could be deprived of employment he would be notified of the reasons for the action proposed against him and given a reasonable opportunity to present information in his behalf and defend himself against such action.

This bill would also give the President authority to seek a temporary or permanent injunction, restraining order, or other order against the management of defense facilities in accordance with the act to prevent the employment of a person found to be disposed toward and having the opportunity to engage in sabotage, espionage, or other subversive acts against his employer.

I believe this legislation meets the test of "fairness" as applied by the Supreme Court. This bill does not infringe upon full freedom of association, yet it provides that important protection our defense. facilities need against those who would seek to disrupt or impair the productive capabilities and military effectiveness of our country by sabotage, espionage, and other subversion.

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