PERSONNEL SECURITY IN THE NATIONAL SECURITY AGENCY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP65B00383R000300080010-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 23, 2016
• Document Release Date: February 19, 2014
• Sequence Number: 10
• Publication Date: May 9, 1963
• Content Type: OPEN SOURCE

Declassified and Approved For Release @ 50-Yr 2014/02/19: CIA-RDP65B00383R000300080010:15
1463 CONGRESSIONAL RECORD ? HOUSE 76'51
that all Members may have 5 legislative
days in which to extend their remarks
on the life and character of Mrs. Gore.
The SPEAKER. Is there objection to
the request of the gentleman from
Oklahoma?
There was no objection.
DAVIDSONVILLE, MD., NIKE SITE
(Mr. DANIELS asked and was given
permission to extend his remarks at this
point in the RECORD.)
Mr. DANIELS. Mr. Speaker, I, with
four of our colleagues, recently traveled
by helicopter to the nearby U.S. Army
Nike site at Davidsonville, Md. This
visit proved interesting, informative, and
reassuring.
We were met at the site by Brig. Gen.
Stephen M. Mellnik, commanding gen-
eral of 1st Region, Army Air Defense
Command, and Brig: Gen. John D.
Steven, commanding general of the 35th
Artillery Brigade. In their concise brief-
ings these gentlemen explained how
Army air defense units, composed prir
manly of a multitude of Nike-Hercules
missile site - nationwide, combine with
elements of the U.S. Air Force, the U.S.
Navy, and the Canadian Armed Forces to
form a virtually impregnable shield
against enemy aerial attack on the
United States. I wonder how many of
our citizens understand the true magni-
tude of this great system which extends
from the Arctic Circle to the Gulf of Mex-
ico. I wonder, too, how many compre-
hend the depth with which our long-
range radars penetrate, and the number
of layers of smaller radars which are
capable of triggering into action hun-
dreds of interceptor aircraft; area type
antiaircraft missiles, and pinpoint type
missiles, of which the Nike-Hercules is
the principal one.
A demonstration of the Nike-Hercules
In action by members of Battery B, 71st
Artillery Regiment, commanded by Capt.
Charles Nash, impressed upon us the'
great efficiency of the system, and par-
ticularly the high caliber of personnel
who operate it 24 hours a day. The
American people have every reason to be
proud of the dedication, alertness, and
proficiency of these men who man our
air defense installations. It is comfort-
ing to see first hand the validity of their
boast that the odds for blasting an
enemy aircraft from the skies are "closer
to 100. percent than a certain brand of
soap is to purity."
COMMI .1.1.LE ON RULES
Mr. COLMER. Mr. Speaker, I ask
unanimous consent that the Committee
on Rules may have until midnight to-
night to file certain privileged reports.
The SPEAKER. Is there objection to
the request of the gentleman from
Mississippi?
There was no objection.
r="----""imSONNEI7SECURITY IN THE NA-
TIONAL SECURITY AGENCY
Mr. COLMER. Mr. Speaker, by direc-
tion of the Committee on Rules, I call up
House Resolution 334 and ask for its
immediate consideration.
The Clerk read the resolution, as
follows:
Resolved, That upon the adoption of this
resolution it shall be in ,order to move that
the House resolve itself into the Committee
of the Whole House on the State of the Union
for the consideration of the bill (H.R. 950)
to amend the Internal Security Act Of 1950.
After general debate, which shall be confined
to the bill and shall continue not to exceed
one hOur, to be equally divided and con-
trolled by`the chairman and ranking minor-
ity member of the Committee on Un-Ameri-
can Activities, the bill shall be read for
amendment under the five-minute rule. At
the conclusion of the consideration of the
bill for amendment, the Committee shall rise
and report the bill to the House with such
amendments as may have been adopted, and
the previous question shall be considered as
ordered on the bill and amendments thereto
to final passage without intervening motion
except one motion to recommit.
Mr. COLMER. Mr. Speaker, I yield
the usual 30 minutes to the gentleman
from California [Mr. Sivimi] and pend-
ing that I yield myself such time as I
may consume.
Mr. Speaker, this is a resolution pro-
viding for an open rule _ and 1 hour of
general- debate on the bill, HR. 950.
Mr. Speaker, the purpose of the bill
briefly is to establish a legislative base
for ,enforcing a strict security standard
for the employment and retention in
employment of persons of the National
Security Agency and to achieve maxi-
mum security for the activities of the
, Agency, to strengthen the capability of
the Secretary of Defense and the Direc-
tor of the Agency and to provide for such
by authorizing the Secretary of Defense
summarily to terminate the employment
of any officer or employee of the Agency
wherever he considers that action to be
in the interest of the United States, and
by expressly excepting appointments to
the Agency positions from the Civil
Service Act of 1883 and from provisions
of the Performance Rating Act of 1950.
Now, Mr. Speaker, that in brief is the
purpose of the proposed legislation. I
might add that this bill was passed by
the House late in the last session of the
Congress by a vote of 351 for and 24
against.
Mr. Speaker, I should, also like to add
-further that this bill is sponsored by the
distinguished gentleman from Pennsyl-
vania, [Mr. WALTER], the chairman of
the Committee on Un-American Activi-
ties of the House. Unfortunately, the
gentleman from Pennsylvania [Mr.
WAITER] is unable to be here because of
certain physical handicaps at this time
to present the bill and explain it at the
proper time. But I understand that my-
distinguished and also very capable
friend, the gentleman from Louisiana
[Mr.WILLIS], will handle the matter at
the proper time.
"Mr. Speaker, I am sure that we all
deeply regret the infirmities that have
beset our great leader, the gentleman
from Pennsylvania [Mr. WALTER], as
chairman of the House Un-American Ac-
tivities Committee, who has served in
this House for now in excess of 30 years,
and who is one of the highly respected
Members of this House.
I am sure that I express the wish and
fervent hope of the membership of the
House, the entire membership, that our
friend, the gentleman from Pennsylvania
[Mr. WALTER], may soon recover and be
back with us to continue rendering Yeo-
man service for the welfare of his coun-
try, to which he is so devoted.
Mr. ALBERT. Mr. Speaker, will the
gentleman yield?
Mr. COLMER. I am happy to yield
to the distinguished majority leader.
Mr. ALBERT. Mr. Speaker, I want to
join the distinguished gentleman from
Mississippi in his remarks. I visited
"TAD" WALTER in the hospital last week.
I would like to report that he was in
fine spirits. He had all of that courage
and determination that has always char-
acterized that great and fighting Ameri-
can. He had confidence that he would
soon be back with us. I assured him
that every Member of the House was -
praying for his speedy recovery.
Mr. COLMER. I am sure the House
appreciatee this message from the ma-
jority leader.
Mr. FULTON of Pennsylvania. Mr.
Speaker; will the gentleman yield?
. Mr. COLMER. I yield to the gentle-
man from Pennsylvania.
Mr. FULTON of Pennsylvania. We in
Pennsylvania, regardless of party, are
proud of "Tim" WALTER who has been a
wonderful servant of the people and a
fine Congressman. We are glad to hear
that he is getting along well and will
soon be back.
Mr. ALGER. Mr. Speaker, will the
gentlema?n yield?
Mr. COLMER. I yield to the gentle-
man from Texas.
Mr. ALGER. Mr. Speaker, I thank
the gentleman from Mississippi for yield-
ing to me. I realize that this subject
will come up in debate and be discussed
thoroughly, but during the debate on the
rule, I wonder if the gentleman can tell
us if attention was directed to this bill
as it relates to the termination of em-
ployment and the protection that is ac-
corded a person who is summarily dis-
missed. Last year, _since I was one of
those who, surprisingly enough to my
colleagues, opposed the passage of the
bill, I - raised this question, because of
mistaken identity or other problems,
could not the Secretary of Defense, as
a dictator in this instance, summarily
fire anyone, never give the reason for it,
never give an accounting of it. There is
no board of appeal, as I understand, un-
less the bill has been changed, to con-
sider these matters. I see on page 5 of
the report, this statement:
Such a determination of the SecretarV
shall be final and the basis for the determi-
nation will not be subject to review in any
administrative or judicial proceeding. This
authority is to be exercised circumspectly,
and only when removals should not, because
of the paramount national security interests,
be carried out under Public Law 733 of the
81st Congress with respect to security ground
cases, or under section 14 of the Veterans'
Preference Act with respect to suitability
ground cases.
In directing this inquiry I want to
make it perfectly plain that I, like every
Member of this body, do not believe we
should help fellow travelers or Commu-
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7652 CONGRESSIONAL RECORD ? HOUSE May *9
nists, but I am struck with the thought,
what about mistaken identity and a Sec-
retary of Defense, who being a man of
action summarily dismisses somebody in
error; this person could not be heard nor
his good name cleared. I wonder if the
gentleman took this matter up in con-
sideration of granting a rule?
Mr. WILLIS. Mr. Speaker, will the
gentleman yield to me?
Mr. COLMER. I yield to the distin-
guished gentleman from Louisiana, from
the committee that reported the bill.
Mr. WILLIS. Mr. Speaker, in answer
to the question of my good friend from
Texas I would Say this. The bill does
establish boards of appraisal to assist
the Secretary of Defense in the discharge
of his personnel responsibilities. I think
possibly I should preliminarily mention
the basic provision in the first part of
the bill. The bill requires a full field
investigation of all employees of the Na-
tional Security Agency in whatever ca-
pacity employed. It requires a more
careful screening than has been the prac-
tice up until a year or so ago when we
were faced with the defection of Martin
and Mitchell from that Agency: It will
compel a thorough examination of a per-
son's background before he is hired.
Now, that procedure would certainly
reduce the possibility of someone facing
an exercise of the ultimate power of dis-
charge under this bill.
In addition, any charge against an em-
ployee is so thoroughly checked out that
the possibility of mistaken identity is,
for all practical purposes, nil.
I have never heard of a single case in
which an employee of any U.S. security
agency has ever been discharged be-
cause he was mistakenly identified as
someone else, or vice versa.
So actually very few persons, if any,
may be involved. I understand that for
the purposes of due process of law, when
applicable, one would be too many. I
am talking about the practicality of this
bill. When an employee undergoes in-
vestigation, with the assistance of our
security people, the FBI and others, and
reports are made with reference to the
particular activities of that person, there
is little likelihood that an exercise of the
summary power will be necessary. More-
over, of course the bill does not bar de-
partmental hearings. The Secretary of
Defense will under the bill promulgate
rules and regulations, and there will be
departmental proceedings, including, in
most cases, testimony and statements of
the persons involved. But ultimately
there may and can be exceptional cases
when, upon the certificate of the Secre-
tary of Defense, in person, and because
of the national interest and security,
n'ormal procedure cannot be followed._
Then it is possible summarily to dismiss.
But to assume that the Secretary of De-
fense will capriciously and arbitrarily
exercise this power is, I think, to assume
a course of action that no person in that
high station in life will take.
Finally, talking in terms of due pro-
cess, let me advise the gentleman that
there are other statutes on the books
similar to the provisions of the bill?
particularly the statute granting simi-
lar power to the CIA. They have been
on the books for many, many years.
These specific provisions of the bill have
been tested by the courts. Let me sug-
gest to the gentleman that he read a
passage in a decision by the Circuit
Court of Appeals in the case of Bailey
vs. Richardson, affirmed by the Supreme
Court, involving a situation exactly along
the lines of this bill on the issue of due
process. The Court said this:
In the absence of statute or ancient cus-
tom to the contrary, executive offices are
held at the will of the appointing authority,
not for life or for fixed terms. If removal
be at will, of what purpose would due pro-
cess be? To hold office at the will of a su-
perior and to be removable therefrom only
by constitutional due process of law are
opposite and inherently conflicting ideas.
Due process of law is not applicable unless
one is being deprived of something to which
he has a right.
No person has a right to be hired in
the National Security Agency. Despite
all the precautions we have taken to see
to it that there Will be investigations,
boards of appraisal, or a careful'screen-
ing, the Secretary of Defense may be re-
quired to exercise that power ultimately,
to -fire someone without court tests or
litigation.
Mr. ALGER. I appreciate the state-
ment of the gentleman from Louisiana.
I understand the problem involved.
Without developing that further at this
time, let me ask another thing. Is the
reason that there cannot be a review
of this decision by the Secretary, whose
decision is final, because of the security
natui:e of the material? My next ques-
tion would be of the gentleman, Would
a man who is fired or summarily dis-
missed for good reason, but whose name
is Bill Jones or Jack Smith, as a case of
mistaken identity, then he appeals, the
Secretary does not have to give an ac-
counting because of the security nature?
I think that was the answer last year.
Mr. WILLIS. Not only because of the
security nature, but the Secretary of
Defense must make a specific determi-
nation before he can act. He must cer-
tify that those procedures and laws au-
thorizing termination of employment
normally applicable cannot be followed,
because it is against the national inter-
est and security so to do.
So far as the termination of employ-
ment is concerned, the bill does pro-
vide that termination of employ-
ment under the bill shall not affect
the right of the officer or the employee
involved to seek or to accept employ-
ment with- any other department or
agency of the United States, if he is de-
clared eligible for such employment by
the U.S. Civil Service Commission.
Mr. ALGER. If I understand the gen-
tleman, it means, therefore, and I am
certainly not arguing the point because
I see the problem, the SecretarY when he
terminates such employment must say
so in writing but he does not need to say
anything except that it is in the interest
of the U.S. security; is that correct?
Mr. WITJJS Exactly.
Mr. ALGER. And he does not have
to give the grounds for such removal?
Mr.- WILLIS. Exactly, because to do
o would be to make disclosures not in
the national interest. This authority
resides in the Secretary alone. For him
to say more would be for him to dis-
close things that some people Would like
to know but are not entitled to know.
Mr. ALGER. One final question then.
We are up against the hard fact that
we are in a free country with self-im-
posed security measures and there could-
be the case where the Secretary on the
one hand could be an arbitrary dictator
and on the other, hand a person could be
summarily dismissed who is innocent,
yet we are up against the hard fact that
there is an irreducibile minimum in se-
curity matters. But that clearly is the
situation we -are in. A dictatorship is
possible on the one hand and dismissial
without recourse or reevaluation of the
grounds of dismissal on the other hand;
is that not correct?
Mr. WILLIS. Well, I do not assume
the possibility of a dictatorship. It is
inconceivable to me that the Secretary of
Defense would be capricious or arbi-
trary and would exercise that power
simply to be a dictator and to do harm
to anybody.
Mr. ALGER. If I may ask my col-
teague one further question. Does the
gentleman know if there is any other
procedure without violating security
measures, discussed in your committee
deliberations, that could be imposed after
the decision in the bill which is called
final and from which no appeal is pos-
sible, is there any further protection to
American citizens against the case of
mistaken identity. For example, where
the Secretary knowing-that a man's rec-
ord is subversive accidentally transfers
that file to another Man with the same,
name. Does the gentleman see any pos-
sibility of that?
Mr. WILLIS. Of course, if the gentle-
man insists on that narrow possibility,
that a person who is an employee, whose
life has been checked and is in the rec-
ords of the Department, who has been
under surveillance, where they see him
every day, and he is in fact the person
involved?if despite that, the gentleman
feels there can be a case of mistaken
identity, then we must reach a point
which I cannot conceive happening.
I would say to the gentleman, this is a
situation, which to me is inconceivable.
Should it arise, I feel certain that some-
how redress could be found for this
wrong. I believe the Secretary, of course,
on his own motion would redress this
wrong and on his own motion he could
say, "I made a mistake." But I do not
think such a mistake as that could hap-
pen.
Mr. ALGER. Mr. Speaker, I thank
the gentleman from Louisiana and the
gentleman from Mississippi for yielding.
I wanted to develop this situation. I
know that the gentleman in his own mind
believes that such a comedy of errors is
impossible.
I am inclined to share his view, but I
think this is the time and place to thrash
it out, because no man here intends that
any harm be done anyone, and this gen-
tleman does not in this instance.
Mr. WILLIS. I know very well that
the gentleman addressing the question
to me feels as I do about what would
happen.
Mr. WATSON. Mr. Speaker, I should
like to associate myself with the remarks
of my distinguished colleague from Mis-
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1 9.6 3 CONGRESSIONAL RECORD ? HOUSE 7653
sissippi in giving my wholehearted sup-
port for this amendment to strengthen
the Internal Security Act. This meas-
ure meets a long overdue need in the se-
curity posture of America, and I
commend the Un-American Activities
Committee and its able charman for its
Introduction.
Too long we have coddled those who
are wittingly and unwittingly seeking to
subvert the security interests of our Na-
tion. It is fitting that Congress face
squarely up to this matter with the sum-
mary discharge method as proposed in
this bill. We can no longer rely upon
the courts for during recent years they -
have demonstrated a dangerous propen-
sity for ignoring the best, interests of
national security in favor of the protec-
tion of Communists and their fellow
travelers.
Some of the opponents of this measure
are critical because it provides for the
immediate removal of any employee of
the National Security Agency when that
employee is deemed by the Secretary of
Defense to be a security risk. I submit
that we cannot move too quickly in re-
moving a traitor from accessibility to top
secret information involving our na-
tional security. There can be no toler-
ance for the Communists.
When the national security or our very
survival is at stake we cannot afford to
take a chance with any security risk.
Not only should we ferret out subversive
agents who are conspiring with the God-
less Communists but it is unconscionable
to think that we would tolerate for one
moment any Communist sympathizer
within the ranks of our Federal em-
ployees.
Frankly, Mr. Speaker, this bill could
very well be strengthened by the addi-
tional mandatory forfeiture of all sal-
aries which may be due the discharged
security risk as well as a permanent pro-
hibition against future employment in
the Federal service. In this measure we
have the opportunity to choose between
the best interests of America and that of
a Communist sympathizer. As for me
and other loyal Americans the choice -
should not be a difficult one.
Finally, as drastic as the provisions of
this measure may be in the discharge of
any security risk I must reiterate that
we have too long coddled and overly
protected those who are seeking to un-
dermine our democratic way of life.
Mr. COLMER. Mr: Speaker, I yield
to the gentleman from California.
Mr. ROOSEVELT. Mr. Speaker, may
I say to the gentleman from Texas that
while he and I have not agreed on too
many things that have come up in the
House, I want to congratulate him on his
interest in the preservation of the rights
of individual American citizens, whether
they are in Government by appointment
or by right or by whatever it may be. I
grant the fact no one has the right to
be employed by the Federal Govern-
ment, but if you are employed by the
Federal Government and you lose that
employment under some kind of a cloud,
I am sure the gentleman will agree that
could be detrimental if not fatal to the
entire career of that individual.
I would like to ask the gentleman
whether he. will reserve his opinion, his
final opinion, until he has listened to
the debate on the floor. There is a very
good part of the bill, the part that re-
quires more careful screening of people
to be hired by the agency. There is no
question but what that part of the bill
is well written and well conceived. But
before we come to final action, I hope
the gentleman will reserve his opinion,
because I think we have an answer to
the arguments made by the distinguished
gentleman from Louisiana.
Mr. COLMER. Mr. Speaker, I yield to
the gentleman from Illinois [Mr. SPRING-
ER] .
? Mr. SPRINGER. I direct this ques-
tion to the chairman of the committee
handling the bill, the gentleman from
Louisiana [Mr. WILLIS]
Does this bill cover only the Depart-
ment of Defense?
Mr. WILLIS. It does not cover all of
the Department of Defense. It covers
the National Security Agency in that
Department.-
Mr. SPRINGER. Over what does the
National Security Agency have jurisdic-
tion for security purposes?
Mr. WILLIS. I will come to that in
general debate right soon.
Mr. SPRINGER. The reason I ask
that question is 'this: Some of our se-
curity problems in the past 20 years have
come not from the Department of De-
fense but from the State Department.
The reason I raise this question is
that just before I came to the Congress
I went down to talk to the Chief Coun-
sel for the State Department, and I found
out they did not make a full home and
background investigation. Will-the gen-
tleman tell the House whether or not the
State Department now makes such an
investigation?
Mr., WILLIS. To be perfectly frank
about that, I am not completely familiar
with the practices in the State Depart-
ment. We did not look into that. This
bill has to do only with the National
Security Agency.
Mr. SPRINGER. This last question:
Who drew up this bill, the Department
of Justice, the gentleman's committee, or
some individual on the committee?
Mr. 'WILMS. _ This is the handiwork
of our committee and committee coun-
sel after hearings. This is not a down-
town bill. Of course the Department
of Defense has collaborated. This bill,
by the way, has the recommendation of
the Department of Defense, it has the
approval of the Department of Justice
and the Civil Service Administration,
and appropriate agencies to which we
normally refer legislation of this kind.
Mr. SPRINGER. At the present time,
is a field investigation, including home
and background, required by the Na-
tional Security Agency?
Mr. WILLIS. By the National Secu-
rity Akency?
Mr..SPRINGER. Yes.
. Mr. WILLIS. I know- improvements
have been made since the hearings, and
I will come_ to that in general debate.
Reforms have been made. The type of
full field investigation that this bill con-
templates is now fully made .bY the
Agency.. _
Mr. SMITH of California. Mr.
Speaker, I yield 2 minutes to the gentle-
man from Illinois [Mr. SPRINGER].
Mr. SPRINGER. I do not want to
take up any more time than is absolutely
necessary, but so that you will under- -
stand what I mean, in the case of Wil-
liam T. Martin, who attended the Uni-
versity of Illinois, from my own knowl-
edge of the background of the case, may
I say that had a full investigation, in-
cluding home and background investi-
gation, been made of William Martin
before he was employed by the Defense
Department or the NSA, all of the weak-fl which this man had would have
been revealed, and I think that any
security check made by the judgment of
any qualified officer would have shown
that he could not be employed for either
classified or security information of this
kind.
Mr. WILLIS. May I say this, that I
agree with the gentleman, and that is
the purpose of the bill. A while ago the
gentleman asked me whether a full field'
investigation was now required by NSA.
Counsel now reminds me that since our
hearings, yes, a full field investigation
is now being conducted and required and
has been for the last 2 years. We have
not heard of any adverse results from it.
But, this bill would give a legislative
sanction and mandate for ,thorough
investigations.
Mr. SPRINGER. If this is so true-of
this agency, may I say to the distin-
guished gentleman from Louisiana why
is not the same thing required of every
other service agency having jurisdiction
over matters which vitally affect us in
the world? Has this committee gone
into what is being done in the State be-
partment or the other agencies? In fact,
there are other agencies that need it
even worse than this one.
Mr. WILLIS. I will say to the gentle-
man that the comparable agency to this
one is the CIA. The statute established
for that agency, is the pattern of this
bill. As to other agencies, we will have
to take thtm one at a time.
Mr. SMITH of California. Mr. Speak-
er, I yield 1 minute to the gentleman
from Michigan [Mr. JOHANSEN].
Mr. JOHANSEN. Mr. Speaker, if I
may have the attention of the gentle-
man from Illinois, in response to one
comment that he made?I forget whether
it was Martin or Mitchell.
Mr. SPRINGER. Martin.
Mr. JOHANSEN. The very informa-
tion that the gentleman referred to was
developed fully in the hearings. I asso-
ciate myself with the gentleman from
Louisiana, and I am in agreement with
him, and I will say to the gentleman
from Illinois that one of the reasons for
this requirement and provision of this
bill is the outgrowth of the information
developed in the hearings.
Mr. SMITH of California. Mr. Speak-
er, I yield 1 minute to the gentleman
from New Hampshire [Mr. WYMAN].
Mr. WYMAN. Mr. Speaker, I would
like to ask the gentleman from Louisi-
, ana whether or not this bill is something
the Department of Defense wants to
have and says it needs to.. have for the
security of the country?
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7654 CONGRESSIONAL RECORD ? HOUSE May 49
Mr. WILLIS. The answer is "Yes."
\Mr. WYMAN. Has the Department
taken the position that as to those peo-
ple about whom the gentleman from
California spoke, that were already in
the agency, and to whom this formula
will apply, that as to those people it is
' necessary that in the public interest and
for the national security they should be
able to be removed without notice and
hearing?
Mr. WILLIS. Yes, definitely. ?
(Mr. SMITH of California asked and
was given permission to revise and ex-
tend his remarks.)
Mr. SMITH of California. M.
Speaker, House Resolution 334 provides
for an open rule with 1 hour of general
debate on H.R. 950. - The gentleman
from Mississippi [Mr. COLIVIER] has de-
scribed the purpose of this bill and, in
my opinion, absolutely correctly. '
I concur in the statement he has made
and I associate myself with his remarks,
particularly do I associate myself with
his remarks regarding the distinguished
gentleman from Pennsylvania [Mr.
WALTER], a fine friend of mine, and one
of the most distinguished Members of
this body, and I certainly wish him well
and hope he will return very shortly.
We have covered this-rule quite thor-
oughly here in the discussion.
Mr. Speaker, I do have a request for
time, but I know of no objection to the
rule. However, there will be opposition
to certain parts of the bill, I under-
stand.
Mr. ROOSEVELT. Mr. Speaker, will
the gentleman yield?
Mr. SMITH of California. I yield to
the gentleman from California.
Mr. ROOSEVELT. I would like to say
that I wish to join in the comments of
the gentleman from California . [Mr.
Sums], and ' the gentleman from
Mississippi concerning our distinguished
colleague, the gentleman from Pennsyl-
vania [Mr. WALTER], and join in the
hope that he may have a very speedy re-
covery and rejoin us soon. .
Mr. Speaker, may I also say one word
to the gentleman from New Hampshire
[Mr. Wymm], who asked whether or not
this had been requested and was con-
sidered necessary by the Department of
Defense, implying that any time the De-
partment of Defense requested some-
thing that that automatically would
make it desirable. I believe that there
will be some gentlemen on the other side
of the aisle who will think at times the
Department makes decisions, whether
they are in the national interest or other-
wise, which may not be completely 100-
percent correct just because they make
them. _
Mr. Speaker, I think we should not,
therefore, take the position that the De-
partment of Defense and particularly
the Secretary of Defense, as one man,
can always be infallible. I think that
will be well brought out in the debate.
Mr. SMITH of California. Mr..
Speaker, I have no further requests for
time. .
Mr. COLMER. Mr. Speaker, much of
the discussion of the bill has already
taken place here on the rule, which is
very well. But I just wanted to say,
supplementing my remarks, that I am
very strong for this -bill. The fact of
the business is that it is one of the few
bills that has been reported out by my
committee, the Committee on Rules,
which I felt any interest in handling
at this session of Congress.
Mr. Speaker, I think this bill should.
pass. I think it will pass. I would like
to express my agreement with the gentle-
man from Illinois [Mr. SPRINGER] that
we should have somewhat similar legis-
lation?or that was the implication, at
least, of the gentleman's remarks?cov-
ering other departments. I think the
security of this Nation should be fore-
most in all of our deliberations.
Mr. Speaker, I urge the adoption of
the resolution.
The SPEAKER pro tempore. Without
objection, the previous ?question is or-
dered.
There was no objection.
The SPEAKER pro tempore. The
question is on the resolution.
The resolution was agreed to.
A motion 'to reconsider was laid on
the table.
Mr. WILLIS. Mr. ? Speaker, I move
that the House resolve itself into the
Committee of the Whole House on the
State of the Union for consideration of
the bill (H.R. 950) to amend the Internal
Security Act of 1950."
The SPEAKER pro tempore. 'The
question is on the motion offered by the
gentleman from Louisiana.
The motion was agreed to.
Accordingly, the House resolved itself
into the Committee of the Whole House
on the State of the Union for the con-
sideration of the bill H.R. 950, with Mr.
DAVIS of Georgia in the chair.
The Clerk read the title of the bill.
By unanimous consent, the first read-
ing of the bill was dispensed with.
? Mr. WILLIS. Mr. Chairman, I yield
myself 10 minutes. ?
(Mr. WILLIS asked and was given
permission to revise and extend his re-
marks.)
Mr. WILLIS. Mr. Chairman, I would
like the great privilege of reading to you
a short statement of our colleague from
Pennsylvania, the Honorable FRANCIS E.
WALTER, distinguished and capable chair-
man of the House Committee on Un-
American Activities:
Mr. Chairman, I deeply regret that I can-
not be on the floor today to speak in behalf
of H.R. 950, a bill which I consider so vital
to our. national security, and to personally
cast my vote for it.
Our security rests primarily and essentially
on the loyalty to this country which resides
in the hearts of the overwhelming majority
of our citizens. But it does not rest on that
alone. It also rests on the procedures, meth-
ods and techniques we devise to prevent
employment by our Government?particu-
larly in those agencies dealing with highly
classified information?of persons who are
knowingly disloyal, or who, for a variety of
other reasons, constitute a threat to the secu- ?
rity of all.
Effective security, insofar as it depends
upon such procedures rather than on loyalty.
must begin with and be most highly devel-
oped in the intelligence agencies of our
country.
.We know that NSA is one of the most sensi-
tive of our intelligence agencies. We know
that effective security has not prevailed in
that agency in the past. We know that it is
our duty to see that it prevails in the future.
I trust that the House, most of whose
Members have previously weighed the merits
of this bill, will vote overwhelmingly for it,
as it did for an identical bill in the last
Congress.
Mr. Chairman, I would like to address
myself to three questions relating to H.R.
950.
First. What are we dealing with in this
bill?
? Second. Why are we concerned with
the subject matter of the bill?
- Third. What will we do through this
bill?
First. What are we dealing with?
We are dealing with the National Se-
curity Agency, successor to the Armed
Forces Security Agency, an element of
the Department of Defense which ranks
, with the Central Intelligence Agency in
the sensitivity of its operations. The
National Security Agency plays so high-
ly specialized a role in the defense and
security of the United States and its
operations are so highly sensitive that
no outsider can actually describe its ac-
tivities. They are guarded not only from
the public but from other Government
agencies as well. The Civil Service Com-
mission, which audits all Government
positions, is not allowed to know what
NSA employees do. By section 6, Public
Law 36, of the 86th Congress, no law is
Ito be construed to reqfiire the disclosure
f any NSA functions or activities.
This is what the Department of De-
fense, which administers the NSA, says
of that Agency:
The Agency is faced with enormous secu-
rity responsibilities. The missions ,assigned
to the Agency seek to fulfill basic require-
ments of our national security. All activi-
ties conducted by NSA to carry out these
missions are highly classified. Disclosure of
the nature of these activities or portions of
them could seriously impair the success of
the Agency's efforts. Despite separation of
tasks into work compartments and other pre-
cautions, the large majority of personnel of
the Agency by virtue of their duties are ex-
posed to, or have access to, uniquely sensi-
tive information. The improper use, han-
dling, or disclosure of this information could
have adverse effects upon the national secu-
rity."
These facts speak for themselves, Mr.
Chairman. There can be no doubt in
anyone's mind that the National Security
Agency, which is dealt with in H.R. 950,
carries out the most delicate type intel-
ligenCe operations of our Government.
This being so, there is unqualified need
for the best' possible security in that
Agency.
The second question: Why are we con-
cerned with NSA security procedures?
On August 1, 1960, the news broke that
two NSA mathematicians had disap-
peared. They had not returned from a
supposed vacation trip they were taking
together: few days later, the ,Depart.L,-
ment of Defense reluctantly admitted in
a press release that "it must be assumed
that there is a likelihood that they have
gone behind the Iron Curtain."
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19.63 CONGRE-SSIONAL RECORD ? HOUSE ? , 7655
On September 6, 1960, these two men
appeared at a carefully staged press con-
ference in Moscow. In the course of this
conference, they reviled their country
and gave full support to a Soviet propa-
ganda attempt to discredit this Nation in
all parts of the world.
These two men; Bernon F. Mitchell
and William H. Martin, had access to
highly classified information. There
could be little doubt in anyone's mind, in
view of their behavior, that they had
told everything they knew to intelligence
officials of the Soviet Union.
The Committee on Un-American Ac-
tivities undertook an investigation to
determine what was wrong at the Na-
tional Security Agency?why and how
these two men, who never should have
been given access to any classified infor-
mation, were employed by so sensitive an
intelligence arm of the U.S. Government.
The committee's investigators spent
2,000 man-hours and covered 15 States
and the committee held 16 separate ex-
ecutive session hearings in getting at the
facts of NSA security procedures.
'When the committee's report was pub-
lished in August of 1962, the Director of
Personnel for NSA had been dismissed,
the Director of Security and two others
in its Office of Security Services had "re-
signed," and 26 other employees had been
dropped for reasons of sex deviation. ?
In issuing its report, the committee
stated that it was "amazed and shocked"
by the results of its investigation which
revealed that extremely lax security ,
measures were in effect when Mitchell
and Martin were hired 'and even at the
time the investigation was undertaken.
The most important part of the in-
vestigation, however, was the after-
effects of it?the fact that 22 reforms
were instituted by the NSA to correct the
weaknesess and failures uncovered by the
committee's investigation.
This, Mr. Chairman, is why we are
dealing with the National Security Agen-
cy today, why we have before us H.R.
950. We are considering this bill be-
'cause, beyond all question, the commit-
tee's investigation revealed that there
was a need to do something to perma-
nently correct the deplorable security
conditions that had existed in the Agen-
cy, to see that such conditions will never
develop again.
- The third question: What does H.R.
950 do?
Its major purpose is to provide a legis-
lative base for continuing permanent en-
forcement of strict personnel security
standards in the National Security
Agency.
The bill has five main provisions:
First. It provides that no one shall be
employed in, or detailed or assigned to
NSA and given access to classified in-
formation unless such employment, de-
tail or access is "clearly consistent with
the national security."
Second. It prohibits the employment
of any person in the Agency unless he
has been cleared, for access to classified
information after a full field investiga-
tion.
Third: It establishes boards of ap-
praisal to be appointed by the Director
?of the Agency to assist him in discharg-
ing his personnel security responsibili-
ties. The Director will refer to such
boards doubtful cases which, in his opin-
ion, warrant further inquiry as to the
suitability of the employee's appointment
to, or retention in, employment.
No one at NSA may be given access to
classified information, contrary to the
recommendations of these boards, unless
the Secretary of Defense or his designee
states in writing that such access is "in
the national interest."
Fourth. It gives to the Secretary of
Defense the summary power, when
needed, to terminate the employment of
any employee of the Agency. However,
he will exercise this summary power only
"in the interests of the United States"
and -after determining that procedures
prescribed in other laws governing
termination of Government service can-
not be invoked "consistently with the
national security."
Fifth. It excepts appointments to the
Agency from the provisions of the Civil
Service Act of 1883 and from provisions
of the Performance Rating Act of 1950.
These exceptions are now administra-
tively executed but it-is deemed neces-
sary to give statutory exemption to pre-
Alude the withdrawal of the authority.
Other sensitive agencies are already ex-
cepted by statute from the requirement
of similar disclosures.
Before concluding my remarks, there
is one other important point about this
bill that I want to stress. It is this:
From the practical viewpoint, all these
provisions speak for themselves. It is
apparent to every reasonable person that
they are desirable elements in establish-
ing effective security for any highly
sensitive agency.
The only question then is that of
whether or not these provisions are con-
stitutional. On this most important
point, I wish to stress the fact, Mr.
Chairman, that there is nothing new or
untried in this bill from the constitu- ?
tional angle. Every one of its provisions
exists in legislation previously adopted(
by the Congress and tested in the courts
of this land. This bill does not give the
Secretary of Defense, the ultimate boss
of the National Security Agency, any
power that has not already been given to
other officials of the Government and
which, as I indicated a moment ago, has
not been tested and upheld by the
courts.
An identical bill, H.R. 12082, passed
the House in the 87th Congress, under
suspension of the rules, by the over-
whelming vote of 351 to 24. In the
course of the slebate on the bill on that
occasion, every single objection to it cen-
tered on the provision granting summary
dismissal power to the Secretary of De-
fense. It has been publicly announced
that an amendment will be offered to
-slrike this provision, contained in sec-
tion 303, from the present bill. For that
reason, I will address myself now to the
constitutional issues contained in this
section. Because we are dealing with a
sensitive intelligence agency, there can
be no question, I believe, of the practical
value and desirability of summary dis-
missal power.
In the National Security Act of 1947,
Public Law 253 of the 80th Congress, in
section 102(c), the Congress gave the
same summary dismissal power to the Di-
rector of the Central Intelligence Agency.
We have checked the House and Senate
debates on that bill, and the House and
Senate reports on it. Nowhere did we
find a single objection or a single ques-
tion raised about the grant of summary
dismissal power. Both the House and
the Senate apparently were in unanimous
agreement that such power was not only
desirable in an intelligence agency, but
also that it would meet the test of con-
stitutionality. I might add that to the
best of my knowledge, since that time,
repeal of this summary dismissal power
granted to the Director of the Central
Intelligence Agency has never been rec-
ommended by a single Member of Con-
gress.
The CIA Director has since exercised
his summary dismissal power on a variety
of occasions. That power has been chal-
lenged. Last year, in the case e of Torpats
against McCone, the Court of Appeals
for the District of Columbia upheld this
summary dismissal power, and the Su-
preme Court subsequently denied certio-
rari in the case.
- More important, in the case of Bailey
against Richardson, the courts of our
land went directly to the question of due
process in the dismissal of Federal em-
ployees?the question of whether a hear-
ing, confrontation or cross-examination
of witnesses were necessary before a Gov- ????
ernment employee could be dismissed.
In this case, the Court of Appeals for
the District of Columbia, in 1950, after
giving full and comprehensive consid-
eration to the principle of due process,
held that a hearing, confrontation or
cross-examination of witnesses were not
required by due process and that a Fed-
eral employee could be dismissed without
them. On April 30, 1951, the Supreme
Court affirmed this decision.
That decision stands today as the law
of this land. It has not since been re-
versed. For this reason, we can only
conclude that claims that the summary
dismissal power is a violation of due
process are completely lacking in judi-
cial support and are no more than a new
? and novel interpretation of due process.
In this respect, it fs interesting to note
when the Commission on Government
Security found in 1957 after the most
thorough review of U.S. security proce-
dures ever undertaken in the history of
our Nation. Its report, issued in pursu-
ance to Public Law 304 of the 84th Con-
gress, as amended, states:
Proceedings for screening out, transferring,
or discharging employees necessary in the
inaintenance of national security are not
judicial, or adversary in character. They do
not establish guilt or mete out punishment.
They merely -determine suitability from a
security viewpoint.
In the interests of justice and fairness,
however, the proceedings must be such as will
secure, as far as it is humanly possible, that
decisions are reached which are in accord'
with the facts and that these be no arbitrary,
IU founded, or capricious denials of employ-
ment, transfers, or discharges in the name of
security.
I know of no court holding which con-
tradicts this statement.
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7656 CONGRESSIONAL RECORD ? HOUSE May ?.9
The issue before us, Mr. Chairman, 'is
very clear. Do we want to provide secu-
rity procedures in the National Security
Agency or do we not? ,By our votes, we
will each give our answer to this question.
Mr. Chairman, the following are syn-
opses and discussions of four or five court
decisions dealing with the kind of cases
covered by this bill:
\First. Torpats against McCone, de-
cided March 23, 1962, in the Court of
Appeals for the District of Columbia;
certiorari denied by the U.S. Supreme
Court, November 5, 1962?this case ap-
plicable.
Torpats was employed by the Central
Intelligence Agency from 149 to 1958.
He was in conflict with his superiors.
The decision does not give further facts.
On January 30, 1961, Torpats received
notice that his employment was "termi-
nated pursuant to authority contained in
section 102(c) , National Security Act of
1947. This termination does not affect
your right to seek or accept employment
in any other department or agency of
the U.S. Government if you are declared
eligible for such employment by the 'U.S.
Civil Service Commission."
The National Security Act of 1947 gives
a summary power of dismissal similar to
that provided in section 303 of the bill,
H.R. 950. Pursuant to this statute the
CIA adopted regulations calling for an
impartial review by the director of all
pertinent information upon which he re-
"lies in terminating "to the extent that
is consistent with the interests of the
United States." The Court held that the
termination of employment was within
the authority of the director conferred
upon him by Congress and in accordance
with his own regulations. The court
said that this termination was to be
distinguished from- a so-called security
discharge such as was involved in Service
v. Duties, 354 U.S. 363 (1957) , and related
cases. The Supreme Court denied certi-
orari.
? Second, Greene v. McElroy, 360 U.S.
474 (1949) , not applicable.
This case related to a security program
in connection with classified Government
contracts in private industry. A security
program was established by the Secre-
tary Of Defense, regulating access to
classified information by employees in
private industry who were engaged in
working on Government contracts. The
decision was limited to the holding that
such regulations were invalid because
they had not been authorized either by
Congress or the President.
In H.R. 950, we are seeking to estab-
lish congressional authorization for pro-
cedures relating to employment in a
highly sensitive agency of the U.S. Gov-
ernment.
Third, Service v. Dulles, 354 U.S. 363
(1957) , not applicable.
The statute, commonly referred to as
the McCarran Rider provided:
Notwithstanding 'the provisions of ? ? ?
any other law, the Secretary of State may, in
his absolute discretion ? ? ? terminate the
employment of any officer or employee of the
Department of State or of the Foreign Serv-
ice of the United States whenever he shall
deem such termination necessary or advis-
able in the interests of the United States.
Under the authority of this rider, the
State Department issued regulations for
dismissal from employment relating to
first, loyalty and second, security cases.
The regulations set up a hearing and re-
view procedure. Under the regulations
the Secretary of State . had no right to
dismiss an employee unless and until the
Deputy _ Undersecretary, acting upon
findings Of the Department's Loyalty-
Security Board, had recommended dis-
missal.
The Secretary dismissed Service with-
out compliance with the requirements of
his own regulations. The holding of the
court was limited to the single point that
the discharge of Service was invalid be-
cause it violated the regulations of the
Department of State which were binding
upon the Secretary. The court expressly
stated that its holding was limited to this
single conclusion.
Fourth. Bailey v. Richardson, 182 F.
2d 46, decided in the Court of Appeals
for the District of Columbia, March 22,
1950; affirmed by the Supreme Court on
certiorari by an equally divided court,
Justice Clark not participating?appli-
cable.
Miss Bailey was employed in the Fed-
eral Security Agency, now abolished,
which was a grouping of agencies whose
major purposes related to promotion of
social and economic security, educational
opportunity and health. The Govern-
ment notified her that it had received in-
formation to the effect that she was a
member of the Communist Party and
affiliated with subversive organizations.
She was given a hearing and the proce-
dures before the Loyalty Boards con-
formed with the requirements of the Ex-
ecutive Order 9835, which required that
the names of confidential informants be
kept confidential. As a result of the
hearing, the Loyalty Board found that
on all the evidence reasonable grounds
existed for the belief that Miss Bailey was
disloyal to the Government of the United
States, and she was discharged from em-
ployment. While Miss Bailey was given a
general statement of the charges, she
claims that this information did not in-
clude the names of informants against
her or the dates or places of her alleged
activities, and that her constitutional
rights had been.violated. The court said:
In the absence of statute or ancient cus-
tom to the contrary, executive offices are held
at the will of the appointing authority, not
for life or for fixed terms. If removal be
at will, of what purpose would process be?
To hold office at the will of a superior and
to be removable therefrom only by constitu-
tional due process of law are opposite and
inherently conflicting ideas. Due process of
law is not applicable unless one is being
deprived of something to which he has a
right.
- Constitutionally, the criterion for reten-
tion or removal of subordinate employees is
the confidence of superior executive officials.
Confidence is not controllable by process.
What may be required by acts of the Con-
gress is another matter, but there is no re-
quirement in the Constitution that the ex-
ecutive branch rely, upon the services di
persons in whom it lacks confidence.
To the argument of Miss Bailey that
even if the executive had power to dis-
miss her without a judicial hearing, they
had no power to call her *disloyal while
doing so, the court said:
If Miss Bailey had no constitutional right
to her office and the executive officers had
power to dismiss her, the fact that she was
injured in the process of dismissal neither
invalidates her dismissal nor gives her right
to redress; this under a rule of law estab-
lished long ago.
The court quoted from Judge Learned
Hand and pointed out that, as is so often
the case, the answer must be found in a
balance between the evils inevitable in
either alternative. The reason for the _
rule is the same as that which permits
a person to be publicly stigmatized by ut-
terances on the floor of the Congress
without any opportunity in any estab-
lished forum to deny or to refute. The
court said that these harsh rules "have
always been held necessary as a matter
of public policy, public interest, and the
unimpeded performance of the public
business."
Mr. jOHANSEg. Mr. Chairman, I
yield myself 10 minutes.
(Mr. JOHANSEN asked and was given
permission to revise and extend his re-
marks.)
Mr. JOHANSEN. Mr. Chairman, we
are on notice that an amendment will be
offered to strike section 303 from the
bill, H.R. 950.
This is the section which grants to the
Secretary of Defense the power of sum-
mary dismissal of a National Security
Agency employee , "whenever he?the
Secretary?considers that action to be in
the interest of the United States, and
he determines that the procedures pre-
scribed in other provisions of law that
authorize the termination of the em-
ployment of that officer or employee can-
not be invoked consistently with the na-
tional security.
The issue of the retention or elimina-
tion of this section is the principal, if
not sole, matter in controversy here this
afternoon?as it ? was last September
when a similar bill passed the House by
a vote of 351 to 24.
I might add that this provision is also
one of the most vital features of H.R.
950 from the standpoint of safeguarding
both the security of this agency and the
security of the United States. Make no
mistake about that.
Let us 'see first of all precisely what
H.R. 950 and section 303 does not do:
It does not bar or ban hearings, con-
frontation and cross examination for
NSA employees generally.
It does not alter the fact that NSA, as
a part of the Department of Defense, is
generally subject to overall Defense De-
partment regulations controlling dismis-
sal of employees and is also generally
subject to Executive Order 10450, the
security directive issued by President
Eisenhqwer which provides for notifica-
tion, hearing, right of counsel, and so
forth, for an accused employee. This is,
and under H.R. 950 'will continue to be,
the procedure normally followed by
NSA in terminating employment of per-,
sonnel judged to be security risks. -
The truth is that, broadly speaking,
H.R. 950 provides a legislative basis for
administrative regulations which im-
.
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1963 - CONGRESSIONAL RECORD ? HOUSE 7601
prove and strengthen these normal pro-
cedures in terminating employment of
personnel judged to be security risks.
It provides a legislative basis for pro-
mulgation of regulations granting hear-
ings and related rights to NSA employees
insofar as such procedures are consistent
with the agency's security responsibili-
ties. ,
Indeed, the boards of appraisal pro-
vided for in section 302(b) represent an
additional protection of the interests and
rights of NSA employees as well as an
additional protection of the security of
our country., The fact that all doubtful
cases will be referred to these boards of
appraisal is, itself, a guarantee against
hasty, ill considered, or abitrary dismis-
sals based on unsubstantiated, deroga-
tory information.
The truth is that in view of the court ,
decisions referred to by the gentleman
from Louisiana [Mr. Wn,Lis] this bill
gives NSA employees more protection
than the law requires.
To allege that H.R. 950 or section 303
gives the Secretary of Defense power,
willy nilly, to fire any NSA employee at
all on the basis of gossip, hearsay, sus-
picion, or anonymous accusations, is to
grossly distort the meaning and import
of this bill. .
1 ' Now as to precisely what section 303
does do. It provides only that in ex-
ceptional cases, when hearings cannot
be granted without injury to our coun-
try, the Secretary will have power to
deny such hearings and to exercise sum-
mary dismissal.
It provides that this power is to be
exercised only when the Secretary "de-
termines that the procedures prescribed
in other provisions of law that authorize
the termination of the employment of
an officer or employee cannot be in-
voked consistently with the national se-
curity."
Without this minimum reservation of
discretionary authority on the part of
the Secretary of Defense, he could, and
would be, confronted with a choice of
disclosure of confidential sources or even
, exposure and destruction of our own vital
espionage activities, on the one hand, or
the retention by NSA of an employee
known to be a security risk and the con-
tinuation of access on the part of that
known security risk to the most highly
classified information of the U.S. Gov-
ernment.
This, of course, is an intolerable di-
lemma. Is is unthinkable that in one of
the two or three most sensitive intel-
ligence agencies of our Government, the
top official of that agency?the Secretary
of Defense?should be denied the means
of avoiding and resolving such a dil-
lemma.
I know of no other way of so resolving
the dilemma than is provided in section
303. The Members of this House who
oppose section 303 propose no alternative
means of resolving this dilemma. By
proposing to eliminate this section they
underwrite and insure the perpetuation
of the possibility of such a dilemma.
I cannot believe that this House will
go along with such a proposal as this.
No. 69-2
Now let Me address myself to the main
argument and claim of opponents of sec-
tion 303. In substance it is that this sec-
tion "vests the Secretary of Defense with
the summary and unreviewable" power to
discharge any employee of the National
Security Agency with no hearing what-
ever." In other words it is charged that
this is a violation of the due process
rights of the -employee.
I would point out that due process is no
more an absolute right than are the first
amendment rights to free speech, as-
sembly and religion. Repeatedly the
courts have held that no right is absolute
and unlimited.
Recently Dean Griswold of Harvard
Law School, lecturing at the University
of Utah Law School, offered some pene-
trating criticism of the absolutist ap-
proach in the field of law. In this lec-
ture Dean Griswold said:
The absolutist approach. involves, I sub-
mit, a failure to exercise the responsibili-
ties?and indeed the pains?of judging. By
ignoring factors relevant to sound decision
it inevitably leads to wrong results.
Mr. Chairman, we must avoid the ab-
solutist approach to the question of due
process because we must avoid thewrong
results which, as Dean Griswold pointed
out, flow from such an approach.
The absolutist approach is a species
of fanaticism as opposed to the approach
of reason. Justice Oliver Wendell
Holmes once observed that a man is
correct in extending his private prop-
erty rights to the air above his plot
of ground to build, for example, a house
100 feet high. But it is an absolutist
absurdity to argue that his property
rights to the air reach all the way to
outer space.
In this present argument it is an ab-
solutist excess to argue that a valid pen-
cil* such as the confrontation of cross-
examination elements of due process
extends to the preposterous length of
claiming that there can never be any
limitation on those rights.
The question then becomes, When and
to what extent is it proper to limit this
right or these elements of due process?
In my humble judgment the answer
Is when and to the extent that such limi-
tation is dictated by considerations of
the basic security and indeed survival of
the Government and of the freedom of
188 million people.
Freedom cannot survive if it is to in-
clude the freedom of enemies of freedom
to destroy freedom.
One final and extremely important
point.
As I remarked during the debate on
this bill last year it seems to me the gen-
tlemen Who are opposing section 303 of
this bill are attempting to refight a 16-
year-old battle and issue.
Section 102(c) of the National Secu-
rity Act of 1947 provided that notwith-
standing the provisions of any other law,
"the Director of Central Intelligence--
Agency?may, at his discretion, termi-
nate the employment of any officer or
employee of the Agency whenever he
shall deem such termination necessary
or advisable in the interest' of the United
States."
As with section 303 of this bill, the 1947
act provided that such termination shall
not affect the right of the person involved
to seek or accept employment with any
other department or agency of the
United States if he is declared eligible
for such employment by the U.& Civil
Service Commission.
The summary dismissal authority
granted in the 1947 act was sustained by -
the Court of Appeals for the District of
Columbia in Torpats against McCone
March 23 of last year, and certiorari was
denied by the U.S. Supreme Court No-
vember 5 of-last year.
I do not believe it can be claimed with
any validity that the National Security
Agency is any less sensitive than the
CIA.
Unless the opponents of section 303 are
disposed to argue this point, I must con-
clude that the logic of their opposition to
section 303 is that they advocate the re-
peal of section 102(c) of the 'National
Security Act of 1947.
I do not see how they can have it any
other way.
I do not see how they can deny that
they are, in effect, asking that we turn
;the clock back with respect to the per-
onnel security of CIA by repealing the
1947 provision for summary dismissal.
And to do this would be to enthrone an
Interpretation of the constitutional guar-
antees of due process which the court of
appeals and the U.S. Supreme Court re-
fused to acknowledge or enthrone by vir-
tue of the decision in Torpats against
McCone.
I am sure that this House will not com-
mit itself to such a course of action. I
am confident the House will retain sec-
tion 303 and overwhelmingly approve
H.R. 950.
Mr. SCHADEBERG. Mr. Chairman,
will the gentleman yield?
Mr. JOHANSEN. I am glad to yield'
to the distinguished gentleman from
Wisconsin.
Mr. SCHADEBERG. I would like to
associate myself with the remarks which
have been made by the gentleman from
Michigan, [Mr. JOHANSEN].
The CHAIRMAN. The time of the
gentleman has again expired.
Mr. JOHANSEN. I yield myself 2 ad-
ditional minutes, Mr. Chairman."
Mr. SCHADEBERG. If the gentle-
man will yield, I would like to ask a few
questions of the gentleman from Michi-
gan.
Is it true that an applicant for a job
in any agency of the U.S. Government
does not have a right to know why he was
not hired by the Government agency in
which he sought employment? In other
words, there is no opportunity for him to
have a hearing to give him the right to
furnish information as to why he was not
hired?
Mr. JOHANSEN. To my knowledge
there is no provision which guarantees
such an alleged right. Certainly there
is no provision which guarantees that
right, if in compliance with the request
for that information a violation of the
security or the national interest of the
country is involved.
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7658 CONGRESSIONAL RECORD HOUSE May 9
Mr. SCHADEBERG. If the gentleman
will yield further, the second question is
this: This holds true, does it not, with
reference to the National Security
Agency?
Mr. JOHANSEN. Certainly.
Mr. SCHADEBERG. And if a person
applies for a position with this agency
and investigation reveals there is rea-
sonable doubt as to his loyalty or his
character or his ability or whatever
might cause him to be a security risk,
and after having been given a job with
this agency, he has no recourse, has he,
but to accept the fact that he was not
given employment?
Mr. JOHANSEN. Precisely.
Mr. SCHADEBERG. Permit me to
propound a hypothetical question to the
gentleman:
Suppose that John Doe is hired by
this very sensitive security agency, the
NSA, on, say, May 1, 1963, and he has
successfully concealed information about
himself which if it had been revealed
would be sufficient for him, not to be
hired, and this information which he
withheld comes into the possession of
NSA on the 10th of May, 10 days later,
is there any legitimate reason that the
agency should not have the right to dis-
charge him because he is a security risk
if it has a right not to hire him?
Mr. JOHANSEN. That question could
not be answered in my judgment with '
a simple yes or no, because of the rights
or privileges or however you wish to
define them, which have been spelled out.
There are restrictions, very definite re-
strictions, as to arbitrary dismissal.
The CHAIRMAN. The time of the
gentleman from Michigan has again
expired.
Mr. JOHANSEN. Mr. Chairman, I
yield myself 2 additional minutes.
The facts of the matter are that not
only rights but the procedures are es-
tablished by law which must be complied
with and are complied with in the over-
whelming instances of termination of
employment. The thing that this pro-
posed legislation does is to spell out that
in one situation, to wit: where it is de-
termined that the exercise of those
normal procedures, would be violative or
potentially violative of the national secu-
rity, then the right of the responsible of-
ficial of the Department of Defense to
dismiss summarily is underscored and
affirmed
Mr. SCHADEBERG. Mr. Chairman,
I want to thank the gentleman from
Michigan for his, comments and to add
this observation. In an agency so vitally
important to the security, of our Nation
_ as is the NSA, if seems to me that em-
ployees should, like Caesar's wife, be be-
yond reproach. Should we by mere
technicalities deny this Nation the right,
the opportunity, and the responsibility to
adequately defend itself from those who
would destroy freedom, we who represent
the people would be derelict in our duty.
Mr. JOHANSEN. I thank my colleague
on the Un-American Activities Commit-
tee.
Mr. COHELAN. Mr. Chairman, will
the gentleman yield?
Mr. JOHANSEN. I yield to the
gentleman.
Mr. COHELAN. I thank the gentle-
man for yielding to me. I should like to
get right at the heart of the dilemma
that he describes and which may sepa-
rate us on one portion of this bill. I
ask the gentlemari to tell me what hap-
pens if the Secretary of Defense makes
a finding under the provision that is in
the law and then subsequently the per-
son who has been separated as a secu-
rity risk?remember, we have used this
term "security risk"?the individual
separated, and properly under this bill,
as a security risk, seeks remedy in the
courts of this land and is found not to
be a security risk. Where do we stand
then?
Mr. JOHANSEN. Let me say first of
all that I think we stand as was pointed
out in the colloquy during the debate
on the rule, that the effect is to find
that a miscarriage of justice or a wrong
was dorie. I would assume, therefore,
that it would be the responsibility of
the Secretary of Defense and he would
respond to that responsibility by cor-
recting that wrong.
? Mr. COHELAN. But I would ask the
gentleman, would it not be better if we
could incorporate these procedures into
this bill? The gentleman has a good bill.
I think the committee is to be com-
mended, particularly in the terms of the
field investigation. But the question of
working out administrative due process
procedures?and at the appropriate
time I shall argue this?it seems to me
we would avoid this business of the pos-
sibility of separating a person who claims
to be innocent and who might subse-
quently prove himself to be innocent.
Mr. JOHANSEN. I shall respond very
briefly to that, because there will,be the
opportunity to pursue this further.
This procedure, this' right of recourse,
some kind of right of review, has got to
terminate somewhere. The action of the
Secretary of Defense is the termination
point, not the beginning, of the proce-
dures under this bill.
Mr. COHELAN. Mr. Chairman, will
the gentleman yield further?
Mr. JOHANSEN. Mr. Chairman, I de-
cline to yield further out of fairness to
other gentleman who are on their feet.
Mr. ALGER. Mr. Chairman, will the
gentleman yield?
Mr. JOHANSEN. I yield to the gen-
tleman from Texas. ?
"Mr. ALGER. The good , sense of the
gentleman's remarks is quite apparent.
In order to get away from the possibility
of dictatorship on the one hand and mak-
ing sm error on the other, what would
the gentleman think of an amendment
of this nature to section 303? I would
also ask for better language than this.
Under section 303, subparagraph' (a), at
the end of that paragraph it says:
Such a determination is final.
? Suppose we said something like this,
"reviewable only by a three-man appeals
board should the person dismissed ap-
peal the decision, such appeals board de-
signated by the President"?
Does the gentleman not feel that this
would clear the Secretary of Defense pos-
sibly of being a dictator on the one hand
and making an error on the other, and
throw this into an appeal level, in this
case a board? It does not have to be
public. It can be secret and the man?
would have a chance to be heard. What
does the gentleman think of such an
amendment?
Mr. JOHANSEN. The gentleman
thinks he would have to think about that
amendment a few moments before re-
sponding to the suggestion. I will say
to the gentleman from Texas I will pro-
ceed to do same.
Mr. ALGER.' I thank the gentleman.
Mr. ASHBROOK. Mr. Chairman, will
the gentleman yield? -
Mr. JOHANSEN. I yield to my col-
league on the Committee on Un-Ameri-
can Activities.
Mr. ASHBROOK. I would ask the
ranking member of our Committee on
Un-American Activities two questions:
First, is it not true that the two NSA
employees, Bernon F. Mitchell and Wil-
liam H. Martin, who defected to the So-
viet Union with valuable secrets, had a
questionable record of conduct up to the
time of their defection but, while they
had this record, which merited their
discharge in the national interest, this
could not be accomplished because the
law protected their right, ,in effect, to
engage in traitorous activity against
their own Government, because of the
proceedings that would be necessary?
Mr. JOHANSEN. Yes.
Mr. ASHBROOK. Secondly, is it not
true that had legislation of the type
which is contained in H.R. 950 been on
the statute books at that time, Mitchell
and Martin could have been summarily
fired by the appropriate officials, and
there would not have resulted the loss of
secrets in this sensitive area?
Mr. JOHANSEN. I think that is true,
but I think more my point in connection
with this legislation is that they would
not have gotten on in the first place be-
cause of the provisions for investigation
under section 302.
Mr. ASHBROOK. I certainly asso-
ciate myself with ? the ranking minority
member of the House Committee on Un-
American Activities in his remarks. I
only want to add that the National Se-
curity Agency is supersecret in its op-
erations. It is not inconsistent that hir-
ing and firing practices should be cov-
ered with the same cloak of secrecy to
protect Ofir national interest. This is an
awesome grant of power, I agree, and
should be granted only with evidence
that indicates an overpowering need. I
suggest that the evidence so indicates,
and I support H.R. 950. I supported
H.R. 12082 last fall when it passed this
body by a vote of 351 to 24, and I trust
it will get the same resounding support
today.
Mr. DINGELL. Mr. Chairman, will
the gentleman yield?
Mr. JOHANSEN. I yield to the gentle-
man from Michigan.
Mr. DINGELL. I want to commend
my friend for his sincere interest in pro-
tecting the United States, but I should
like to have him tell me very briefly
where there is any limitation in this bill
on the absolutely untrammeled and un-
restricted, absolute discretion of the
agency and the agency head to discharge
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1263 CONGRESSIONAL RECORD ? HOUSE 7659
' any individual without hearing or the
right of review, and without any super-
intendence or supervision over that
course. ,
Mr. JOHANSEN. Certainly there is a
limitation, No. 1, in the establishment of
the boards of appraisal.
Mr. DINGELL. I am talking about
discharges, now. Because our time is
scarce, and I know the time of the gen-
tleman is limited, I would like to ask him
not to state that on the floor but put it
in the record of the debate, to tell this
House where in this bill there is language
or anything which would authorize any
individual in construing this legislation
to say there is a limitation on the dis-
charge authority. I 'do not think there
is any limitation on the absolute discre-
tion of the agency head to discharge.
Mr. JOHANSEN. I cannot yield fur-
ther to the gentleman. I will say this,
there is very specifically stated the ex-
press limitation that there must be a
finding, and certification by the Secre-
tary of Defense. There is a specific re-
quirement provided that the- Secretary
must certify with respect to the require-
ments of national security.
Mr. WILLIS. Mr. Chairman, I yield 2
- minutes to the gentleman from Cali-
fornia [Mr. ROOSEVELT].
Mr. ROOSEVELT. Mr. Chairman, in
2 minutes it is rather obvious I cannot
be too specific.
I want to get back -to the argument of
my good friend from Michigan, which i
is fundamental in what we are talking
about. I want to emphasize that so,
far as I know there is nobody opposing .
the sections of this bill that deal with
trying to make sure that we hire the
proper personnel in the first instance.
What we are talking about?is, after they
are hired, after they have gone through
- the screening process, then, as my friend
from Michigan [Mr. DINGELL] says, I can
find nothing in section 303 that requires
that anywhere there be a written de-
cision, anywhere there is anything said
that there be a determination that the
Secretary shall not suspend every other
kind of normal procedure and fire the
individual.
. Now this individual has been carefully
screened?remember. I will say to my
friend, the gentleman from Louisiana
[Mr. WILLIS] the very reason that he
gave, that this will not happen often, is
the very reason I want to be sure about
this. We have already done all we can
to see that the right kind of people are
hired. Then here we would turn around
and give to the Secretary, without any
provision for notifying the individual, the
right to fire that individual and to say
that somewhere they have found some-
thing that makes that employee a secu-.
rity risk and that then the employee can
be fired without ever knowing what kind
of charges were made against him.
4, I want to say ' to my friends in all
honesty, do you really believe, even if it
is a privilege to work for the Govern-
ment, that you should hire somebody in
this kind of sensitive Position and then
put one person in the position to fire
that employee without letting the em-
ployee know what he is charged with,
and to just simply state that the em-
ployee is fired without Tilaving to explain
why?all the Secretary has to do is say
that this is a man who is dangerous to
the security of the country.
Suppose that happens to an individ-
ual? Where is that individual ever
again going to get a job in our United
States?
- The CHAIRMAN. The time of the
gentleman from California has expired. ?
Mr. WILLIS. May I say to my col-
league, the gentleman from California,
on checking my schedule here I find that
I can yield him 1 more minute.
Mr. ROOSEVELT. I am very grate-
ful- to my colleague.
? Mr. Chairman, there is a provision in
this bill in section 302(a) which provides
that persons can be-employed by the
agency prior to their full field investiga-
tion so long as they, do not have access
to sensitive or cryptological information
or material. Then why cannot you just
take this person away from any sensitive
information if he is already there? You
cannot remove from him what he already
knows. That is already in his mind, and
when you fire him you are not going to
be able to blank out his mind. He has
that information. But if you want to
protect yourself in the future, then tare
him away from any kind of work having
to do with that kind of sensitive informa-
tion and give him a fair chance to know
what he is accused of and give him a fair
opportunity then to present his case at
least.
In section '303 you do not even make
any attempt to do that.
Lastly, Mr. Chairman, because the
time is so limited, let me point out that
in 5 U.S.C. 22 the Secretary now has the
authority to fire somebody out of the
National Security-Agency. We are not
taking away his right to fire people who
he finds are disloyal to the United States.
It seems to me all we are asking for is
a reasonable opportunity not to do an
injustice to somebody unreasonably. We
must ask where can that employee who
is discharged go? How can be possibly
rectify the record when there is no
record to rectify?
Mr. Chairman, I do not think that 'is
the way we operate in the United States.
Mr. WILLIS. Mr. Chairman, I yield
2 minutes to the gentleman from New
York [Mr. RYAN]..
(Mr. RYAN of New York asked . and
was given permission to revise and ex-
tend his remarks.)
Mr. RYAN,of New York. Mr. Chair-
man, I rise in oppositionto H.R. 950. On
September 4, 1962, I objected to an
identical bill when it appeared on the
-Consent Calendar, and on September 19,
1962, I voted against the measure when
it passed the House under Suspension of
the Rules. My opposition to the bill on
those occasions and at present is based
on the fundamental denial of constitu-
tional rights involved in any procedure
which would give the power of summary
dismissal to the Secretary of Defense.
Under section 303(a) of H.R. 950 the
Secretary nf Defense would have the au-
thority to terminate the employment of
any officer or employee of the National
'Security Agency whenever he considers
"that action to be in the interest of the
United States, and he determines that
the procedures prescribed in other pro-
visions of law that authorize the termi-
nation of employment of that officer or
employee cannot be invoked consistently
with national security." Under the pro-
visions of the bill, such action by the
Secretary of Defense would be final.
This bill violates basic constitutional
concepts and is totally inconsistent with
the principles of Anglo-Saxon jurispru-
dence. It gives the Secretary of Defense
the authority to fire any employee of the
National Security Agency without a
hearing, without the right of cross-ex-
amination, without the right to have any
information against him, without the
right of appeal, and without even the
right to know why he is being fired.
An employee who is fired tinder the
provisions of the bill has the right to go
to the Civil Service Commission and pre-
sent himself for other Federal employ-
ment. This provision is ludicrous. It is
inconceivable that the drafters of this
bill seriously thought that a person fired
for unknown "security reasons" would
have a chance -of getting other Federal
employment. In fact, a person whose
employment was terminated under the
provisions of this bill would hardly have
a chance to obtain private employment.
Because he is denied his basic right to
know why he is fired, it would be impos-
sible to explain the loss of employment
to a prospective employer.
Mr: Chairman, Andrew J. Biezniller,
director of the Department of Legisla-
tion of the AFL-CIO, has sent the fol-
lowing telegram to our colleague, Con-
gressman ROOSEVELT, of California, who
will offer an amendment to strike sec-
tion 303(a) :
Urge you vote in favor of the Roosevelt
amendment to H.R. 9,50 to strike the au-
thorization for summary dismissal of Gov-
ernment employees. Experience shows no
need for this-drastic denial of fair procedure:
Mr. Chairman, the provisions of this
measure are inconsistent with the due
process provisions of the Constitution.
The measure is a product of cold war
hysteria and should be rejected. In our
fight for liberty, let us not lose our
liberty.
Mr. JOHANSEN. Mr. Chairman, I
yield 2 minutes to the gentleman from
Texas [Mr. ALGER].
Mr. ALGER. Mr. Chairman, I would
like to direct some questions, if I may, to
the gentleman from Louisiana and other
members of the committee to help my
understanding, recognizing that we have
the double ;problem of maintaining se-
curity and not giving aid and comfort to
the enemy, and at the same time not
defame the character of any person with-
out appeal.
I submit this amendment to the gentle-
man from Louisiana for his comment,
his counsel, or such other advice as he
may choose to give me.
If you will look at the bill on page 5,
after the word. "final," I suggest the
following:
Except any employee whose employment
Is so terminated, shall have the right of ap-
peal to an Appeal Board, such Appeal Board
shall consist of three persons, appointed by
the President, and who are cleared by the
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7660 . CONGRESSIONAL RECORD ? HOUSE
Director of the National Security Agency for
access to classified information.
My intention in this language is that
the President may designate the man
with the highest security clearance. It
would be perfectly all right if the Beare-
tary of Defense appointed these men.
It would not be public. They would go
into it if the person demands an appeal.
It witaild not violate security, but it would
give the man a chance to be heard and
remove from the Secretary the onus of
the charge of being a dictator or of mak-
ing an error singlehandedly.
What does the gentleman think of
such an amendment?
Mr. WILLIS. I think it bad, for this
reason:
As the gentleman from Michigan [Mr.
JOHANSEN] has said, you must have fi-
nality at some point. A Review Board
of three is designated by the amendment
proposed. Conceivably, that Board can
also make a mistake if the Secretary can
make a mistake. Then shall the dis-
charged employee have the right to go
to court? The court may make a mis-
take. Do you go to the next highest _
court? The question is, What is to be
final?
The CHAIRMAN. The time of the
gentleman from Texas has expired.
Mr. WILLIS. Mr. Chairman, I yield
2 minutes to the gentleman from Cali-
fornia [M. COHELAN].
(Mr. COHELAN asked and was given
permission to revise ahd extend his
remarks.)
Mr. COHELAN. Mr. Chairman, ob-
viously in 2 minutes one cannot begin to
argue this very, very difficult question.
I am very pleased that our colleagues;
the gentleman from Louisiana [Mr.
WILLIS], and the gentleman from Mich-
igan [Mr. JOHANSEN], have drawn the
issue as well as they have; and, if I may
have the attention of the gentleman from
Texas, I am delighted to hear this gesture
in terms of an amendment, because what
7 will talk about when I have a chance
to speak more extensively is that some
type of administrative due process must
be provided.
Those of you who were here last year
will remember that I argued the ques-
tion, and I want to refer you to the
RECORD of the 87th Congress, beginning
on page 18509, where I discussed this
point. You will recall I pointed out at
that time that this argument was not
made lightly; that it was made in con-
sultation with some of the most dis-
tinguished lawyers in my State, and the
University of California. I inserted an
article in the RECORD by Prof. Frank
Newman, the very learned dean of the
Boalt Hall Law School at the University
of California, which goes into the ques-
tion of due process and the question of
rights and privileges in this specific kind
of problem.
One of the things I want to say, if I
have time, is this: The distinguished
chairman of the committee has pointed
out and made a great fuss about the two
NSA employees who defected. The sim-
ple fact of the matter is and the record
has proven the point, that these men
should not have been hired in the first
place.
Mr. JOHANSEN. Mr. Chairman, I
yield 2 minutes to the gentleman from
Maryland [Mr. MATHIAS].
(Mr. MATHIAS asked and was given
permission to revise and extend his
remarks.)
Mr. MATHIAS. Mr. Chairman, I
have a special interest in this legisla-
tion. I doubt if any Member of this
House represents more Federal em-
ployees than I do. I know these em-
ployees to be dedicated public servants.
They deserve better of the Congress than
this bill.
Now, I am particularly interested by
two of the supporting letters which ap-
pear in the report on this legislation.
One Of these letters is from the Justice
Department. In that letter the _Deputy
Attorney General, Mr. Katzenbach, gives
his full approval to the bill. He approves
its passage, but in his letter he does not
mention in any way the unusual sum-
mary termination procedures provided
in the bill. He apparently has no con-
cern whatever about the fact that em-
ployees can be summarily dismissed
without an iota of information of the
reason for their dismissal. Likewise, the
Chairman of the Civil Service Commis-
sion devotes his attention in his letter
to other parts of the bill, and there is
no mention whatever of the summary
termination provisions.
The Congress must consider carefully
the unusual and drastic provision in this
bill for summary termination of em-
ployment which can work untold injus-
tic ' to Federal employees. I think the
fact that the Justice Department has
chosen not to deal with the termination
Pkovision is in itself an indication of the
unsavory nature of the provision. I
think the fact that the Justice Depart-
ment does not want to talk about it in-
dicate's that it is something that it feels
ought to be swept under the rug, and I
do hope we sweep it under the rug by
defeating this bill, unless it is amended
to provide some reasonable form of due
process prior to summary termination of
employment by the Secretary of Defense.
Mr. JOHANSEN. Mr. Chairman, I
yield 3 minutes to the gentleman from
Indiana [Mr. BRAY].
Mr. BRAY. Mr. Chairman, I hesitate
to speak on this bill because I am not on
that committee, and the knowledge I
have of the bill is what I heard in debate
last year and the debate today and in-
formation I received by reading the re-
port and the bill. But, I did have some
experience in the study Of the Martin-
Mitchell case of the two defectors from
the National Security Agency to Russia
which has been mentioned here earlier.
Matters coming before the National
Security Agency are very supersecret,
about as secret as you can get. A high
degree of security is demanded, and there
should not be the slightest suspicion on
anyone connected with the Agency. No
one is forced to go into it. They know
the background when they go in.
" The very slightest suspicion, or any
grounds for such suspicion, should cer-
tainly preclude that person from han-
dling supersecret matters, so secret we
do not want to discuss them here.
In studying the Martin case, evidence
May-9
developed before his disappearance that
would have justified his dismissal but,
frankly, there was not sufficient evidence
developed to have been able to make a
good case before a board. I do not know
whether there was any consideration of
dismissing Martin but there was enough
evidence to have justified such consid-
eration. In the Army, as many of you
know, an officer can remove from com-
mand anyone under him summarily at
any time. He makes no excuse. Later
he may have to defend his action, but
that authority in the commander must
exist. The same reasons exist for having
such authority in such a secret organiza-
tion as the National Security Agency.
Mr. Chairman, I 'do not believe there
is a Member in this body who has shown
any more interest in defending the rights'
of civil service employees from being un-
fairly dismissed than I have. Time after
time I have taken a personal interest in
specific cases. But let us realize first
that this is a very secret?I want to re-
peat again?supersecret organization on
which the very security of America may
depend. Many times the person in
charge can become aware of a deteriora-'
tion in a subordinate. There isn't'
enough evidence to make a case but in
a supersensitive organization as the Na-
tional Security Agency we cannot always
safely set up the same safeguards to job
retention that we do in the regular civil
service. There are many people in
America, honest people, who have traits
in their character or background who
should never be employed in the Na-
tional Security Agency or in the CIA.
Mr. WILLIS. Mr. Chairman, I yield 4
minutes to the gentleman from Louisiana
[Mr. WAGGONNER].
(Mr. WAGGONNER asked and was
given permission to revise and extend his
remarks.)
Mr. WAGGONNER. Mr. Chairman
and Members of the House, I rise in
support of this legislation much the same
as I did last year.
Mr. Chairman, there seems to be two or
three points of discussion here. First of
all there seems to be a point of view that
we can no longer delegate authority to
any of our Secretaries because they can-
not be trusted. However, it seems the
least we could possibly, do in this .par-
ticular case would be to be consistent,
because I do not assume to begin with
that our Secretaries are a bunch of
scoundrels and are not going to give
anyone fair and equitable treatment.
Mr. Chairman, the other is that peo-
ple are going to be dismissed without
being in formed of what their crimes
might possibly be. It is my firm opinion
that a man guilty of subversion need not
be told because he knows full well to
begin with for what he is being dismissed.
Again, Mr. Chairman, there is the idea
and I will ask- the chairman of the corn-
mittee, my colleague, the gentleman from
Louisiana [Mr. Wmus] , about this_
that there is a constitutional right which
is inherent and guarantees the right to
work for the Government or for some
such agency as this for all individuals,
and that due process is involved. I
would like to ask the gentleman from
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- CONGRESSIONAL RECORD ? HOUSE 7661
Louisiana if he would clarify this par-
ticular point.
Mr. WILLIS. I am delighted that the
gentleman has made the inquiry. That
very issue was decided by the Supreme
Court of the United States in the case of
Bailey v. Richardson, 182 F. 2d 46, first.
decided in the Court of Appeals for the
District of Columbia, March 22, 1950;
and affirmed by the Supreme Court on
certiorari by an equally divided court,
Justice Clark not participating.
Miss Bailey was employed in the Fed-
eral Security Agency, now abolished,
which was a grouping of agencies whose
major purpose related to promotion of
social and economic security, education-
al'opportunity and health. The Govern-
ment notified her that it had received
information to the effect that she was
a member of the Communist Party and
affiliated with subversive organizations.
She was given a hearing and the pro-
cedures before the loyalty boards con-
formed with the requirements of the
Executive Order 9835, which required
that the names of confidential inform-
ants be kept confidential. As a result
of the hearing, the loyalty board found
that on all the evidence reasonable
grounds existed for the belief that Miss
Bailey was disloyal to the Government
of the United States, and she was dis-
charged from employment. While Miss
Bailey was given a general statement of
the charges, she claims that this infor-
mation did not include the names of
informants against her or the dates or
places of her alleged activities, and that
her constitutional rights had been vio-
lated. The court said:
In the absence of statute or ancient cus-
tom to the contrary, executive offices are
held at the will of the appointing author-
ity, not for 'life or for fixed terms. If re-
moval be at will, of what purpose would
process be? To hold office at the will of a
superior and to be removable therefrom only
by constitutional due process of law are op-
posite and inherently conflicting ideas. Due
process of law is not applicable unless one
Is being deprived of something to which he
has a right.
Constitutionally, the criterion for 'reten-
tion or removal of subordinate employees is
the confidence of superior executive officials.
Confidence is not controllable, by process.
What may be required by acts of the Con-
gress is another matter, but there is no re-
quirement in the Constitution that the ex-
ecutive branch rely upon the services of per-
sons in whom it lacks confidence.
To the argument of Miss Bailey that
even if the executive had power to dis-
miss her without a judicial hearing, they
had no power to call her disloyal while
doing so, the court said:
If Miss Bailey had no constitutional right
to her office and the executive officers had
power to dismiss her, the fact that. she was
injured in the process of dismissal neither
invalidates her dismissal nor gives her right
to redress; this under a rule of law estab-
lished long ago.
The court quoted from Judge Learned
Hand and pointed out that, and is' so of-
ten the case, the answer must be found
in a balance between the evils inevitable
in either alternative. The reason for
the rule is the same as that which per-
mits a person to be publicly stigmatized
by utterances on the floor of the Con-
gress without any opportunity in any es-
tablished forum to deny or to refute.
The court said that these harsh rules
"have always been held necessary as a
Matter of public policy, public interest,
and the unimpeded performance of the
public business."
Mr. WAGGONNER. I thank the
gentleman.
Mr. JOHANSEN. Mr. Chairman, I
yield myself the remaining time on this
side of the aisle, just to point but and
to underscore what seems to me is the
very much overlooked provision of this
legislation and the provision of the law
governing CIA, that termination under
this summary dismissal procedure does
not affect the individual's right to seek
or accept employment in any other
department or agency Of. the U.S. Gov-
ernment.
This is a major safeguard against
stigmatizing a person unfairly or de-
priving him unfairly or improperly of
Government employment. ? But at the
same time it provides that flexibility
which in certain cases is essential if the
Secretary of Defense and the head of
the CIA are to meet their very heavy
responsibility.
Mr. Chairman, I offer one other obser-
vation. As the gentleman from Louisi-
ana [Mr. WILLis] has- pointed out, of
course there is possibility of error.
There is possibility of error in judicial
process. Does that argue therefore that
trial by jury, judicial process, and the
courts are to be abolished because the
power inherent in them has a potential
of human fallibility?
Mr. WILLIS. Mr. Chairman, I yield
the gentleman from Virginia [Mr. Tucx] ,
a member of this committee, 5 minutes.
At this time I ask unanimous consent
that, following the presentation of the
gentleman from Virginia [Mr. TUCK], all
Members who so desire may extend their
remarks in the RECORD.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Louisiana?
There was no objection.
Mr. TUCK. Mr. Chairman, I thank
my friend, the gentleman from Louisi-
ana, for yielding to me at this time. I
want to say, too, that I am in whole-
hearted accord with the statements the
gentleman has made relative to this bill.
I favor the passage of the bill as reported
to the House from the Committee on
Un-American Activities. This bill
passed the House of Representatives in
the last Congress, during the latter part
of the session, but was not acted upon
on the other side, supposedly because
they did not have 'time in which to act.
Mr. Chairman, security and freedom
are the bedrock upon which our liberty
is based. Our Government was estab-
lished for the purpose of guaranteeing to
our citizens both freedom and security.
They constitute what we call our Ameri-
can way of life. Each is dependent upon
the other and without both we have
neither.
Among the most important weapons
we have to protect our security and
freedom are those laws designed to pre-
vent infiltration of our Government by-
enemies of the Nation. Exiles from
Czechoslovakia tell us that their country
lacked both effective security laws and
the will to employ them. That is the
one reason why thee was a takeover of
the Czech Government in 1948 by these
despicable Communists.
The jugular vein of every nation is the
government. The bureaus and ? the
agencies of the government constitute
the principal target of Communist. in-
filtration. We have a great democratic
Government here. We must preserve it.
In order to do so, top priority must be
given to securing that Government from
infiltration by the enemy.
Mr. Chairman, I have always con-
tended that it is a privilege for a citizen
to be employed by the U.S. Government.
It is not a right. A person so. occupied
and employed is indeed a servant of the
people. The least that can be demanded
of that person is that he will not betray
the trust of his fellow citizens.
It is the right and the duty of the Gov-
ernment to take firm and resolute action
to assure that it employs only individuals
who are loyal and who continue to be
loyal to the form of government which
we enjoy here in America today.
Despite all its imperfections, our sys-
tem of Government under which we are
privileged to live has provided more gen-
uine freedom to a greater number of
people over a longer period of time than
any other system in the history of the
world. We in this House have a
bounden duty today to keep it that way.
This may sound like flag waving, but
If it is, I would rather wave the flag
of my country than to be guilty of con-
tributing to a wavering of that flag. Our
flag, the Stars and Stripes, has never
trailed in the dust of defeat and it never
will, as long as we produce men and
women who are determined to protect
the best interest of this country. Not
only in civil life and in our Government,
but on the battlefields and battle seas of
the world.
Let me remind you that, in the name
of the people, the House of Representa-
tives helped to create the National Se-
curity Agency as a vital and necessary
part of a $50 billion a year defense pro-
gram to preserve this Nation. ' It is our
duty to take such further action now as
may be necessary to assure the people
that the National Security Agency will
be used in their behalf and will not be
infiltrated and utilized against them by
the enemies of the United States, such
as was done not long ago by Martin and
Mitchell.
The issue before us is a clear one. If
there is a conflict between the Govern-
ment of the United States and the indi-
vidual, then I say it is more important to
preserve the freedom and the security of
America than it is to guarantee a job
to some faithless, perfidious person em-
ployed by that Goverment and who can-
not be trusted as a security risk.
I have no concern for the protection
of the so-called rights of such persons as
Martin and Mitchell. They have no
rights other than to be punished as crim-
inals and traitors.
I am reminded, in conclusion, of the
story that was one of the favorite stories
of the late distinguished Senator from
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7662 CONGRESSIONAL RECORD? HOUSE May .9
Kentucky, Senator Barkley. He said
that out in one of the legislative districts
of Kentucky a young man was a candi-
date for the Democrtaic nomination for
the House of Representatives of Ken-
tucky. He was down in one of the coun-
ties where they were raising sheep, where
the dogs had killed almost all the 'sheep
there were in that county. Of course,
the 'dogs were quite unpopular there.
This young man was making his speech
before his constituents there in that
county and he said, '!Gentlemen, I favor
a strong dog law. I am in favor of a
dog law so strong it will exterminate
dogs and thus save the sheep."
The farmers liked that.
? The next 'day he went on to the ad-
joining county, which was the fox hunt--
ing- country where they rode behind the
dogs and where they had no sheep but
plenty of beautiful and expensive dogs.
So he was getting along pretty Well, un-
til finally one of the men over there got
up and said: "Let me ask you a ques-
tion, sir? Will you tell the people here
what sort of dog law it is that you favor?
What are you going to do to the dogs to
protect the sheep?"
, He said, "Oh, my friends, lam glad you
asked me that question. I am in favor
.of, a dog law. I ani in favor of a strong
dog law. But I am in favor of a dog law
that will protect the sheep and not hurt
the dogs."
Mr. Chairman, if in this case it is
necessary to hurt a few persons of ques-
tionable security risk in order to protect
the people of the United States of Amer-
ica, I am in favor of America first.
Mr. ROGERS of Florida. Mr. Chair-
man, I rise in support of this legislation.
The bill offered by the distinguished
chairman is the result of extensive hear-
ings and examination by the House Un-
American Activities Committee.
The legislation under consideration
has the support of the Department of
Defense, the Civil Service Commission,
the National Security Agency, and the
Department of Justice, all of which pre-
sented their views to the Committee dur-
ing formulation of this legislation.
One of the purposes of this bill is to
allow the Secretary of Defense to re-
cruit and terminate employment of NSA
personnel, with the counsel of an advi-
sory board. Such machinery is neces-
sary in governmental agencies which
have been exempted from normal civil
service procedures because of the classi-
fied nature of their functions.
Careful note has been made in the
committee report to state that the advi-
sory board is not established for the pur-
pose of protecting the employees of this
particular agency as much as to provide
mature disposition of doubtful security
cases.
I am advised that similar personnel
procedures are prescribed for the Cen-
tral Intelligence Agency, an agency
charged with even more critical and sen-
sitive functions than NSA.
The defection of NSA employees, Ber-
non F. Mitchell and William H. Martin,
both of whom had been employed in
highly sensitive areas, in 1960 gave rise
to the investigation which produced the
. bill before us now. What precautions
have been taken to prevent future occur-
ences involving CIA personnel?
Mr: Chairman, when Congress estab-
lished the Central Intelligence Agency
in 1947 it exempted that agency from
virtually all normal controls applied to
other governmental operations. As we
see here today, Congress is providing for
procedural changes in the NSA some 11-
years after this agency was established
in 1952. Time has run its course on the
CIA, and the Congress would improve
the tole of that agency through the
establishment of a joint House-Senate
watchdog committee on CIA.
Such a committee is proposed in Hotise
Joint Resolution 211, and would be sim-
ilar to -the present Joint Committee on
Atomic Energy, which was established
in 1946 to give' congressional review to
the highly sensitive operation of the
Atomic Energy. Commission. A watch-
dog committee as proposed in House
Joint Resolution 211 would also improve
communications between Congress and
CIA, lessening the possibilities of mis-
understanding and undue criticism of
that agency. ?
I commend the efforts of this commit-
tee, and am pleased to support its work.
Mr. GILL. Mr. Chairman, I am sure
that most of us who will vote against this
bill do so without any particular dis-
agreement with those provisions requir-
ing full field investigation and appraisal
of persons to be assigned to or employed
by the National Security Agency.
However, I emphatically join my col-
leagues who oppose that portion of the
bill which would eliminate any and all
rights of -appeal or hearing for an em-
ployee whose employment-is terminated.
The failure of the Committee on Un-
American Activities, and this House, to
accept the various amendments offered
which 'Would have in some degree pre-
served the constitutional right to due
process of law for terminated employees,
makes the total bill defective and unac-
ceptable.
The processes established under exist-
ing law (5 U.S.C. 22-1 and 863) make
ample provision for the protection of the-
security interests of the United States;
to eliminate even these restricted rights
of due prOcess, as H.R. 950 would do, goes
far beyond the limits of reason. It opens
the door, as even some of our conserva-
tive Republican colleagues have pointed
out, to arbitrary and capricious action
on the part of Government administra-
tors.
There has been much said about dan-
ger to the national security. Democracy
itself is a dangerous form of government
and in its very danger lies its strength.
The protection of individual rights by
the requirement of due process of law,
which has long endured in this Nation of
ours, is a radical and dangerous idea in
most of the world today. This danger-
ous concept is outlawed in the Soviet Un-
ion, in Red China, in Castro's Cuba, in-
deed, in all of the Communist bloc and
many of those countries alined with it.
_ I think we might well ask: How does
one destroy his enemy by becoming like
him?
Mr. O'HARA of Illinois. Mr. Chair-
man, from the experiences of mankind in
?
many unhappy centuries have come les-
sons that guided the thinking of our fore-
fathers when they gave to the world the'
Constitution of the United States as the
most perfect political doctrine within the
power of man to create.
It recognizes the frailty of the wisest
and the best of human'kind. Even the
most prudent and the most dedicated of
men can go astray in the exercise of pow-
er unlimited and unchecked. So under
our Constitution we have a government
of checks, a check by one branch of
government upon another branch and as
well a check upon each individual citizen
by other citizens. Unless there be that
check men of the warmest hearts and of
the best of intentions may trespass upon-
the rights of other men.
The principle that no man shall be de-
prived of his reputation, his goods, his
job,, or of any possession that gives sus-
tenance, substance, some measure of con-
tentment and of dignity to his existence, '
shall be taken from him without the op-
portunity of -facing his accusers is deeply?
rooted in our law and in the American'
concept.
No man is infallible. All men --have
their friends and their acquaintenances,
and all men at times find themselvesqn-
fluenced by things that have been whis-
pered into their bars and on which they
have had no opportunity of making their
own investigations. This is true of men
on all levels of intelligence and of posi-
tion and men of the highest moral moti-
vation as well those of the lowest.
All of this our forefathers envisioned
when they referred to the frailties of
human nature, and sought by words that
they placed into the Constitution of the
United States to guard against by con-
stitutional guarantees and by laws.
The bill we have under discussion is a
good bill in intention. No one should
have access to secrets vital to the secu-
rity of this Nation that is not entirely
trustworthy. Certainly no one should
have access to secrets the divulgence of
which could do harm to the security of
our Nation unless in every sense he had
the same loyalty to and love of country
that fills the very being of a man willing
to give his life for his country.
I think we all agree that the Secretary
of Defense and the Director of the Secu-
rity Agency, responsible for the safekeep-
ing of the Nation's secrets, should have
every reasonable means of-replacing per-
sons of questionable loyalty, of question-
able dependability, of questionable dis-
cretion.
I think it is possible to obtain the ob-
jective sought by this bill if it were
amended to preserve the principle, so
precious to our American concept of the
right of the accused always to face his
accusers. I do not think it is possible to
do that by amendments offered from the
floor. I do not think that ever a bill, rea-
sonably acceptable to everyone seeking
the same objective but by conflicting
means, can be written on the floor of the
House.
I read on page 5 of H.R. 950, subsec-
tion b of section 301, and I find here a
meritorious effort to protect one dis-
charged from the sensitive National Se-
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1 $163 CONGRESSIONAL RECORD ? HOUSE
curity Agency from prejudice in search
for employment in other departments of
the Federal Government. It provides
that termination of employment by the
Security Agency shall not affect the right
of the officei or employee involved to
seek or accept employment with other
department or agency of the United
United States if he is declared eligible
for .such employment by the U.S. Civil
?
Service Commission. I take it that the
intention of this subsection is to protect
the person discharged, without a trial or
a hearing or the opportunity of confront-
? ing his accusers, when he seeks employ-
ment elsewhere in the Federal Govern-
ment. -But the fact is that the person so
discharged would find himself ' fatally
handicapped. He might have been dis-
charged without there being in anyone's
mind the slightest suspicion of his loyal-
ty. He may have been discharged for
what would have seemed a good and suf-
ficient reason to his superiors because he
did not have the temperament of one
entrusted with confidential matters.
Yet the fact that he had been discharged
by the Security Agency without any ex-
planation of the reason, without any rec-
ord on which ohe could check, would
naturally raise a serious doubt with other
governmental agencies or departments to
which he might apply.
I think it is possible to write a bill
that will attain in full the objectives of
H.R. 950, the right of a sensitive agency
to transfer an employee who is not fitted
temperamentally or otherwise for serv-
ice in the sensitive area. I think this can
be done without violation of the Ameri-
can concept of justice that every man
shall be protected from divestment of his
life or possessions without having the
opportunity of facing his accusers. But,
Mr. Chairman, I repeat I do not think
it can be done by rewriting the bill here
on the floor of the House.
I am in full sympathy with the ob-
jectives of the bill, but I shall be one
of a minority voting against it with the
hope that when the measure reaches the
other body, it will receive further study
to the end that the National Security
Agency will have the fullest means of
protection and at the same time there
will be the fullest possible protection
against the possibility of a good and
loyal American citizen becoming the vic-
tim of gossip, whispers, and charges
from an unnamed and unidentified
source.
When in the expediency of the mo-
ment and in our reaching out for the
easy means of attaining desired objec-
tives we wander from the spirit, and as
well, the letter of the Constitution, we
are entering the uncharted wilderness
from which our forefathers sought to
protect us.
Mr. MATSUNAGA. Mr. "Chairman,
the purpose of H.R. 950 is to establish a
legislative base for enforcing a strict se-
curity standard for the employment and
retention in employment of persons in
the National Security Agency, to achieve
maximum security for the activities of
the Agency, and'to strengthen the capa-
bility of the Secretary of Defense and
the Director of the Agency to provide for
such by authorizing the Secretary of De-
fense to terminate the employment of
any officer or employee of the Agency
whenever he considers such action to be
in the best interests of the United States.
This purpose, I believe, will not in any
way be jeopardized by the amendments
proposed by the gentleman from Cali-
fornia [Mr. ROOSEVELT], by the gentle-
man from Pennsylvania [Mr. MOORHEAD],
and by the gentleman from Texas [Mr.
ALGER]. The proposed amendments
would have merely given an employee,
once he has been hired, the right of ap-
peal and the right to be heard in his own
defense upon being discharged for al-
leged misconduct.
I have no objection Co any other pro-
vision of the bill, but I do believe that
without the proposed amendments the
bill Violates a fundamental American
right of fair play. One of the most cher-
ished rights in our great democracy has
been the right of due process of law. We
have long believed in and practiced the
principle that no one shall be found guil-
ty of any misconduct without being given
"a day in court." Without the proposed
amendments, the bill denies an officer or
employee of the Agency this fundamental
American right. .
The amendments would not littve ef-
fected any lowering of the standard of
security because the S"ecretary would still
have retained the right to discharge an
employee for good cause. The, amend-
ments would have merely extended to
such employee the right to defend his
reputation and future livelihood.
Through capriciousness and arbitrary
action, a faithful and loyal employee
could be summarily discharged under the
provisions of the bill as it now stands and
have his whole life ruined.
In all good conscience, therefore, I
cannot support the measure in its pres-
ent form.
The CHAIRMAN. The time of the
gentleman from Virginia has expired.
All time has expired.
The Clerk will read. ?
The Clerk read as follows:
He it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled, That the
Internal Security Act of 1950 is amended by
adding at the end thereof the following new
title:
"TITLE IU?PERSONNEL SECURITY PROCEDURES
IN NATIONAL SECURITY AGENCY
"Regulations for employment security
"SEC. 301. Subject to the provisions of this
title, the Secretary of Defense (hereafter in
this title referred to as the-'Secretary') shall
prescribe, such regulations relating ,to con-
tinuing security procedures as he considers
necessary to assure?
"(1) that no person shall be employed in,
or detailed or assigned to, the National Secu-
rity Agency (hereafter in this title referred
-to as the 'Agency') , or continue to be so
employed, detailed, or assigned; and
"(2) that no person so employed, detailed,
or assigned shall have access to any classified
information; unless such employment, de-
tail, assignment, or access to classified infor-
mation is clearly consistent with the national
security.
"Full field investigation and appraisal
"Sac. 302. (a) No person shall be employed
in, or detailed or assigned to, the Agency
unless he has been the subject of a full field
investigation in connection with such em-
7663
ployment, detail, or assignment, and is
cleared for access to classified information
in accordance with the provisions of this
title; excepting that conditional employment
without access -to sensitive cryptologic infor-
mation or material may be tendered any
applicant, under such regulations as the Sec-
retary may prescribe, pending the completion
'of such full field investigation: And pro-
vided further, That such full field investiga-
tion at the discretion of the Secretary need
not be required in the case of persons as-
signed or detailed to the Agency who have
a current security clearance for access to
sensitive cryptologic information under
equivalent standards of investigation and
clearance. During any period of war de-
clared by the Congress, or during any period
when the Secretary determines that a na-
tional disaster exists, or in exceptional cases
in which the Secretary (or his designee for
such purpose) makes a determination in
writing that his action is necessary or ad-
visable in the national interest, he may
authorize. the employment of any person in, ?
or the detailor assignment of any person to,
the Agency, and may grant to any such per-
son access to classified information, on a
temporary basis, pending the completion of
the full field investigation and the clearance
for access to classified information required
by this subsection, If the Secretary deter-
mines that such action is clearly consistent
with the national security.
"(b) To assist the Secretary and the Di-
rector of the Agency in carrying out their
personnel security responsibilities, one or
more boards of appraisal of three members
each, to be appointed by the Director of the
Agency, shall be established in the Agency.
Such a board 'shall appraise the loyalty and
suitability of persons for access to classified
information, in those cases in which the
Director of the Agency determines that there .
is a doubt whether their access to that in-
formation would be clearly consistent with
the national security, and shall submit a
report and recommendation on each such a
case. However, appraisal by such a board is
not required before action may be taken
under section 14 of the Act of June 27, 1944,
chapter 287, as amended (5 U.S.C. 863) , sec-
tion 1 of the Act of August 26, 1950, chapter
803, as amended (5 U.S.C. 22-i), or any other
similar provision of law. Each member of
such a board shall be specially qualified and
trained for his duties as such a member, shall
have been the subject of a full field investi-
gation -in connection with his appointment
as such a member, and shall have been
cleared by the Director for access to classi-
fied information at the time of his appoint-
ment as such a member. No person shall.
be cleared for access to classified information,
contrary to the recommendation's of any such
board, unless the Secretary (or his designee
for such purpose) shall make a determina-
tion in writing that such employment, de-
tail, assignment, or access to classified in-
formation is in the national interest.
"Termination of employment --,
"SEC. 303. (a) Notwithstanding section 14
-of the Act of June 27, 1944, chapter 287, as,
amended (5 U.S.C. 863) , section 1 of the Act
of August 26, 1950, chapter 803, as amended
(5 U.S.C. 22-i), or any other provision of
law, the Secretary may terminate the employ-
ment of any officer or employee of the Agency
whenever he considers that action to be in
the interest of the. "United States, and he
determines that , the procedures prescribed
in other provisions of law that authorize
the termination of the employment of that
officer or ? employee cannot be invoked con-
sistently with the national security. Such
a determination is final. '
"(b) Termination of employment under
this section shall not affect the right of the
officer or employee involved to seek or accept
employment with any other department or
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7664 CONGRESSIONAL RECORD ? HOUSE
agency of the United States if he is declared
eligible for such employment by the United
States Civil Service Commission.
"Definition of classified information
"SEc. 304. For the purposes of this section,
the term 'classified information' means in-
formation which, for reasons of national se-
curity, is specifically designated by a United
States Government agency for limited or re-
stricted disemination or distribution.
"Nonapplicability of Administrative
Procedure Act
"SEc. 305. The Administrative Procedure
Act, as amended (5 U.S.C. 1001 et seq.), shall
not apply to the use or exercise of any au-
thority granted by this title.
"Amendments
"SEc. 306. (a) The first sentence of section
2 of the Act of May 29, 1959 (50 U.S.C. 402
note) , is amended by inserting `, without re-
gard to the civil service laws,' immediately
after 'and to appoint thereto'.
"(b) Subsection (b) of section 2 of the
Performance Rating Act of 1950 -(5 U.S.C.
2001(b)) is amended?
(1) by striking out the period at the end
of paragraph (13) and inserting in lieu there-
of a semicolon; and
"(2) by adding at the end thereof the fol-
lowing new paragraph:
" ' (14) The National Security Agency.'."
Mr. WILLIS (during the reading of
the bill) . Mr. Chairman, I ask unani-
mous consent that the further reading
of the bill may be dispensed with, and
that the bill be open to amendment at
any point.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Louisiana?
, There was no objection.
Mr. ROOSEVELT. Mr. Chairman, I
offer an amendment which is at the
Clerk's deak.
The Clerk read as follows:
Amendment offered by Mr. ROOSEVELT :
On page 4, strike out line 18 and all that
follows down through page 5, line 4 and re-
number the sections as necessary.
Mr. ROOSEVELT. Mr. Chairman, I
ask unanimous consent that my amend-
ment be amended to include on page 5,
line 5, the words "under this section" be
eliminated in order to make that sub-
section (b) conform to the amendment.
? The CHAIRMAN. Without objection,
the amendment will be so modified.
There was no objection.
The Clerk read as follows:
Amendment offered by Mr. ROOSEVELT:
On page 4, strike out line 18 and all that
follows down through page 5, line 4, and
the words "under this section" on page 5,
line 5, and renumber the following sections
.as necessary.
Mr. ROOSEVELT. Mr. Chairman, I
think we have debated this basic subject
rather fully this afternoon. I do not in-
tend to take the full 5 minutes but I
would like to make a few remarks, if I
may, to my good friend, the gentleman
from Louisiana [Mr. WiLias].
The gentleman has pointed out it is
possible even when we have judicial re-
view that sometimes we send someone
to the electric chair who later proves to
, be not guilty. The gentleman uses that
possibility as a reason that we shbuld
abolish any kind of review in these cases.
I admire my colleague as a lawyer as
well as a wonderful friend, but I cannot
see any logical sequitur in that line of
argument because we know that the
reasons we have our judicial procedures
set up is to try to mete out justice to all.
Here we do not even take the elemental
step?we do not even take the first step
to mete out justice. It is true that even
if we did give some kind of review that
we still might make mistakes, but cer-
tainly I can see no reason why that
should be used as an argument for giv-
ing no judicial review at all. Of course,
the fact might be that in the end there
is still finally a chance for mistake. In
this agency today there can be no case
Which is not covered by appropriate law
which gives all power to the Secretary
to remove any individual that he is afraid
of away from a sensitive area and to
give that individual a hearing and give
it to him in secret? That is done over-.
and over_again. There can be absolutely
no question of security violation. I
cannot see any reason why in this in-
stance we would be endangering the se-
curity of our country when we are trying
to do something to preserve the rights
of an individual?even if he is a dog.
Now, I do not like to call people dogs,
but I do not think we should assume
that he is a dog. He might be a pretty
good person who for some reason or an-
other has incurred the wrath of some-
body through a personality conflict?
and in this kind of work personality
conflicts arise, perhaps, more quickly
than in any other kind of work. It seems
to me, all we are saying and all we are
asking of the committee is?let us be
sure that we hire the right kind of
people.
Let us be sure we can remove them,
but at least give the person who is ac-
cused the right to know what he is ac-
cused of, even if you do it in secret, and
give him the right to enable him to proc-
ess an appeal.
Incidentally, if the gentleman from
Texas will look on page 3, section 302 (b) ,
he will find there are boards of compe-
tent people set up. I would even go. so
far as to suggest one of those boards
should be given the responsibility for
some kind of appeal. But there is no
appeal. How can you in the times in
which we exist do this to an American
citizen, who was carefully picked to
serve his Government, after all kinds of
rigidity tests were given to him, and then
blacken him without giving some as-
surance he will get his fair day in court?
I leave it on that basis. I hope my
friends will believe that we as everybody
else are as strong for the security of our
country as anyone can be. You cannot
accuse us of less loyalty to our country
beettuse we want to stand for the rights
of individuals. We believe we are try-
ing to strengthen and maintain basic
American ideals and principles.
Mr. ALGER. Mr. Chairman, will the
gentleman yield?
? Mr. ROOSEVELT. I yield to the gen-
tleman from Texas.
Mr. ALGER. Mr. Chairman, I would
like to agree with my colleague from
California, but since I do not feel we
should strike that section, I ask the gen-
tleman. to consider an amendment which
May
I shall propose at the proper time that
would give the protection he seeks. I
ask him to consider an amendment I
proposed earlier relative to the Appeal
Board. I do not want to water the
gentleman's amendment at the moment,
but should it not prevail I have an
amendment.
Mr. ROOSEVELT. I will have to say
there are always more ways than one
to do a job. It seemed to me this was
the best and simplest way. If it is
turned down and the gentleman has an
amendment, perhaps I shall support his
amendment. But the gentleman from
Louisiana is not going to accept that
either.
Mr. COHELAN. Mr. Chairman, I
move to strike the last word.
(Mr. COHELAN asked and was given
permission to revise and extend hiS
remarks.)
Mr. COHELAN. Mr. Chairman, I
have not much time, and I hope you will
listen very closely to what I have to say,
and particularly you lawyers in the
House who may not have followed the
argument last year.
I am going to put this article in the
RECORD again, and you may refer to it
later. But I want to refer to the perti-
nent sections here, because it deals with
everything we have been talking about.
Professor Newman, dean of the Cali-
fornia Law School, states:
Our presumption is that modest reforms
may be practicable, that the process of pre-
scribing due process could be bettered.
He goes on to say:
Yet without? soaring into semantics or
political theory, could we not shun one view
of life, liberty, or property that has caused
much chaos? I refer to the hundreds,
maybe thousands, of cases that protect rights
but not privileges, declaring that due pro-
cess of,law is not applicable with respect to
Government employment, for instance, un-
less one is being dsprived of something to
which he has a right.
He goes on to say:
The due-process clauses say nothing of
right versus privilege. The chief vice of the
privilege doctrine is that it has insulated us
from a body of law, highly reputable, that
seems designedly apt for protecting the free-
doms that life, liberty, or property seem to
imply.
Finally, he goes on to say:
To pronounce that "liberty or property"
includes, say, reputational and emotional
interests would not mean that governments
no longer could deprive people of those in-
terests, or that deprivations could be ef-
fected only by judicial trial. The -require-
ment would merely be that due process be
accorded.
That is what I have been referring to,
and we are not talking strictly about
criminal due process.
We are talking about administrative
due process, and we can develop proce-
' dures which will protect the so-called in-
former, and the security requirements
can be met.
Again, as Professor Newman so clearly
points out:
The kind of precise portrayal of harm that
may crucially affect a lawsuit is exemplified
by petitioner's brief in Peters v. Hobby.
"We, of course, concede," said counsel, "that
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1-9 63 CONGRESSIONAL RECORD ? HOUSE 7665
the Constitution. does not limit the power
of the Executive summarily to terminate
employment on secret information or for any
other reason. The question before this
Court is only whether the Government has
the right to accompany a discharge with a
finding of disloyalty which tuins the reputa-
tion and career of the accused, without a
full hearing. In other words, the protested
harm was not to job security but to one's
repute as a prospective jobholder."
Now, where the present bill before us
goes astray, in my judgment, is in
jumping from the proven necessity of
tightening up security measures in the
preemployment stage to the unproven
assumption that national security de-
mands giving authority, to the Secretary
of Defense to terminate summarily
without any hearing whatsoever.
As Justice Tom Clark said in the Su-
preme Court's unanimous opinion in
Wieman v. Updegraff (344 'U.S. 183
(1952) ) :
There can be no dispute about the con-
sequences visited upon a person excluded
from public employment on disloyalty
grounds. In the view of the community, the
stain is a deep one; indeed, it .has become a
badge of infamy.
When we realize the'tremendous dam-
age which is visited on any Government
employee who is dismissed on loyalty or
security grounds, we want to be sure
that the dismissal is not done unjustly.
This bill would permit possible unjust
summary dismissal based on the word of
nameless accusers.
It denies to Government employees the
most elementary features of due
process?namely, the notice of charges
and the right to confront and cross-ex-
amine the accusers.
(Mr. LINDSAY asked and was given
permission to revise and extend his re-
marks.)
Mr. LINDSAY. Mr. Speaker, I move
to strike out the last word.
? Mr. Chairman, I rise in support of the
amendment offered by the gentleman
from California [Mr. ROoSEvELT]. I
think it has to be made clear exactly
what the amendment does.
First of all, it has to be stated once
again that this bill before us abolishes
hearings; it abolishes the normal right
of an employee to have stated to him
the reason he is being fired. The bill
abolishes an employee's normal right to
submit a statement on his own behalf,
whether it be in secret or whether it be
in - public hearings. The bill before us
waives all of the existing provisions of
law contained in the United States Code
designed to give an employee minimum
safeguards in the Government service.
Further, the bill abolishes any right
of court review. And there is another
deficiency which has not been mentioned
in the debate. There is power to the
Secretary to delegate this vast power to
any subordinate employee of the entire
Federal apparatus that happens to be
under his jurisdiction. I hope Members
are aware of the trouble that this can
cause lesser bureaucrats very often take
the safe course.
- I think Members should be conscious
of what we are doing here today. We
No. 69-3
must view this unusual procedure in the
context of the great power that is lodged
today in the Central Government. The
Central Government is given total arbi-
trary power to willy-nilly fire a person,
with all of the problems of stigma and
stain and reputation that go with it.
There has been some discussion about
past laxity in the National Security
Agency. This has nothing to do with
questions of laxity. This has to do, as
the gentleman from California [Mr.
COHELAN] said, with due process. You do
not have an absence of firm control, or
the presence of laxity, because you have
provided a, minimum measure of due
process.
Mr. Chairman, it has to be understood
that procedure is just as importantas
substance when you are dealing with the
central power of the Government. My
friend, the gentleman from Texas [Mr.
ALGER] has put his finger on it when the
gentleman talks about central power and
the dangers of central power. when you
collect this amount of arbitrary power
with no review, no hearing, no check, no
appeal, then you 'have got something to
be afraid of. I would urge the gentle-
man from Texas, however, 'to support
this amendment that is now pending.
That amendment seeks only to reinstate
the hearing procedures contained in title
5 of thaUnited States Code. These pro-
cedures do not require direct confronta-
tion. The Government does not have to
give up any secrets. Title V of the Code
provides that when an employee receives
notice of dismissal, he has it right to a
written statement summarizing the
charge. He has an opportunity to reply
in writing within 30 days and he is given
a hearing. He has a right to appeal to
the head of the Agency.'
Mr. Chairman, the gentleman from
Texas [Mr. ALGER] asks that there be a
review board. There is already a pro-
vision in title V that there be a review by
the Agency head. This is all that we
ask. Is it too much to ask for minimum
due process in this regard? I think in
order to save the bill which is now pend-
ing before the House and which has been
brought forth by the gentleman from
Louisiana?because I feel sure it will be
struck down by the courts as being un-
constitutional under the fifth amend-
ment otherwise?this amendment should
be adopted.
Mr. COHELAN. Mr. Chairman, will
the gentleman yield?
Mr. LINDSAY. I yield to the gentle-
man from California.
Mr. COHELAN. Mr. Chairman, the
gentleman from New York has stated the
case well. The gentleman is a distin-
guished lawyer, and I wish the gentle-
man would explain to the members of
the committee?particularly for the ben-
efit of us nonlawyers?just what the
difference is between criminal due proc-
ess and administrative due process. I
would ask the gentleman to tell us how it
will affect the security of the agency.
Mr. LINDSAY. Within the limited
time I have left I will state to the gentle-
man from California that the gentlethan
has already alluded to that body of law
known as administrative due process.
It is something substantially less than
the process is a criminal trial. It is a
body of law, largely built -up by the
courts, which states that people' who work
for or deal with the Federal Government
cannot be treated arbitrarily and sum-
marily. They have to be accorded fair
and decent treatment.
Mr. JOHANSEN. Mr. Chairman, I
move to strike out the last word.
(Mr. JOHANSEN asked and was given
permission to revise and extend his
remarks.)
Mr. JOHAItSEN. Mr. Chairman, I
rise in opposition to the amendment. If
I understood the gentleman from New
York [Mr. LINDSAY] correctly?and I
know the gentleman will correct me if I
am misstating him?he expressed the
belief that this provision might be struck
down by the courts.
Mr. WILLIS. Mr. Chairman, will the
gentleman yield?
Mr. JOHANSEN. Surely.
Mr. WILLIS. Mr. Chairman, I ask
unanimous consent that after the time
which has been allotted to the gentleman
from Michigan [Mr. JOHANSEN] has ex-
pired debate on this amendment and all
amendments thereto close in 15 minutes.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Louisiana?
Mr: ALGER. Mr. Chairman, reserv-
ing the right to object, do I understand
that would apply also to other amend-
ments to this section, or just to this
amendment?
Mr., WILLIS. All debate on this
amendment and amendments to this
amendment.
Mr. ALGER. Mr. Chairman, I with-
draw my reservation.
The CHAIRMAN. Is there objection
to thd request of the gentleman '-from
Louisiana?
Mr. HOLIFIELD. Mr. Chairman, re-
serving the right to object?and I shall
not object?I should like to ask the
distinguished Chairman if he would re-
quest sufficient time to give each of us
at least 3 minutes. I think there were
six Members standing; that would be
18 minutes.
The CHAIRMAN. The Chair observes
eight Members standing at this time.
Mr. WILLIS Mr. Chairman, I ask
unanimous consent that all debate on
this amendment and. all amehdments
thereto close in 20 minutes.
The CHAIRMAN. Is there objection
to the, request of the gentleman from
Louisiana?
There was no objection.
Mr. JOHANSEN. Mr. Chairman, if I
understood the gentleman from New
York [Mr. LINDSAY] correctly he ex-
pressed the view that it would be desir-
able to delete section 303 in order to save
the bill which otherwise the gentleman
regards as excellent because, if I under-
stood him correctly, he believed this pro-
vision would be struck down by the
courts.
Mr. Chairman, let us start facing the
facts. Let us not -be led down some
primrose path by a statement of that
ow"
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7666 CONGRESSIONAL RECORD ? HOUSE ?
kind. The truth of the matter is that a
provision almost word for word identical
to this one in section 303 is included in
he National Security Act of 1947 with re-
spect to the CIA. The facts of the mat-
ter are that it has been before the courts.
The -facts of the matter are that when
the case, as I mentioned in general de-
bate, of Torpats against McCone was
brought before the Court of Appeals in
the District of Columbia a year ago last
March the court sustained this type of
provision. And again I say it was al-
most word for word?identical. The
court held that the Nation's.' Security Act
of 1947 gives summary power of dis-
missal, similar to that, I will add, pro-
vided in section 303 of this bill, which the
amendment of the gentleman from Cali-
fornia would delete; and that pursuant
to this statute the CIA adopted regula-
tions calling?and I invite particular at-
tention to this phrase "for an impartial
review by the Director."
Now, about all this talk about review.
The review under section 303 would be
vested in the Secretary of Defense and
the authority that is vested in him is the
review of the recommendations or find-
ings of these boards of appraisal.
Not only did the U.S. Circuit Court of
Appeals sustain this similar legislation
that relates to -CIA, but the attempt was
made to secure a review of the decision
by the U.S. Supreme Court and certiorari
was denied.
I just cannot let stand unchallenged
the kind of an argument evidently, ad-
vanced by my very good friend from New
York, that in order to save this bill you
have to gut it and you have to gut it to
save it because of what the courts are go-
ing to do to.it, when the courts have not
done anything of the kind in a totally
parallel situation.
Mr..' Chairman, I oppose the amend-
ment. I urge my colleagues not to be
misled as to its necessity or its import.
The CHAIRMAN. The Chair recog-
nizes the gentleman from California
EMT. HOLIFIELD].
Mr. HOLIFIELD. Mr. Chairman, I
asked for this time to ask a question of
the distinguished chairman of the sub-
committee. I am concerned about sec-
tion 304 of the bill. I notice that it
states:
For the purposes of this section, the term
"classified information" means information
which, for reasons of national security, is
specifically designated by a United States
Government agency for limited br restricted
dissemination or distribution.
There are a number of documents that
cross -my desk almost every day, as vice
chairman of the Joint Committee on
Atomic Energy. Some of those are
marked "Confidential," some "Secret,"
some "Top Secret," and some, "For
Official Use Only." The question I want
to ask is, Would these "For. Official Use
Only" documents, for limited distribu-
tion,? be chara-cterized as classified
information?
Mr. WILLIS. There may 'be other
usage of the words in the Atomic Energy
Commission. -
? Mr. HOLIFIELD. No. It happens in
the defense committees and other com-
mittees, too. "For 'Official Use Only"
documents frequently come across our
desks. These are restricted in distribu-
tion, but they are not necessarily classi-
fied information.
Mr. WILLIS. Let me read to the gen-
tleman a letter which contains the infor-
mation he is seeking.
Mr. HOLIFIELD I am afraid my time
will not allow that.
The CHAIRMAN. The Chair recog-
nizes the gentleman from Missouri [Mr.
Corms].
Mr. CURTIS. Mr. Chairman, I think
the committee has brought out a good
bill, except the one section that is under
dispute in this particular amendment.
I do not believe I would like to see us go
as far as the Roosevelt amendment, be-
cause I think that in this area there is
need for a great deal more power in the
Secretary of Defense. Actually, if we get
the power of dismissal too far removed
from the Secretary, there is doubt that
he would use this power as he should.
On the 'other hand, I am deeply con-
cerned about the committee's failure to
put in an interinetliate kind of power of
review to ;eplace the normal procedures
of review.( I do not like to have amend-
ments on the -floor of this type without
committee study. However, the amend-
ment the gentleman from Texas [Mr.
ALGER] is going to propose and it seems
reasonable. Certainly it could be worked
out in detail. In this way this item
that concerns me, and I think many
people, of giving all power to any one
man, I do not care who he is, would be
corrected. I am really more concerned
about the effect on the individual who
has that power. If I were Secretary ,of
Defense, I am sure I would establish some
sort of review board in this kind of case.
Therefore, I hope this amendment will
be defeated, and that an amendment
such as the one proposed by the gentle-
man from Texas [Mr. ALGER] will be ac-
cepted, and that the Committee will
think a little more deeply on this sub-
ject that concerns us.
The CHAIRMAN. The 'Chair recog-
nizes the gentleman from Ohio [Mr.
ASHLEY].
Mr. RYAN of New York. Mr. Chair-
man, will the gentleman yield?
Mr. ASHLEY. I yield to the gentle-
man. _
Mr. RYAN of New York. Mr. Chair-
man, I ask unanimous consent that the
time allotted to me .may be granted to
the gentleman from Ohio [Mr. ASHLEY].
The CHAIRMAN: Without objection,
it is so ordered.
There was no objection.
Mr. ASHLEY. Mr. Chairman, I rise
in support of the Roosevelt amendment.
I would like especially to commend the
gentleman from New York [Mr. LINDSAY]
for making it clear that under existing
law a security risk can be dismissed but
still have appeal and review rights which
in no way jeopardize national security.
What section 303 does- in the bill under
consideration is to strip those rights of
appeal and review. The question has
been raised, and I think very interest-
ingly, as to whether or not due process
in fact applies to a situation of thiskind.
The chairman has suggested that a
Supreme Court decision, Bailey against
May ,9
Richardson, is relevant, particularly the
statement:
e Due process of law is not applicable unless
one is being deprived of something to which
he has a right.
Perhaps so, Mr. Chairman, but I am
reminded of a case which although not
on all fours or completely analogous,
perhaps, has significance.
A former constituent of mine applied
some 7 or 8 years ago for prisoner-of-war
compensation under a Federal law which
granted $3 a day for each day in prison
to Korean prisoners of fgar who did not
collaborate with the enemy.
This man's application, Mr. Chair-
man, was denied. It was denied by. the
Foreign Claims Settlement Commission
without an adequate hearing and with-
out the veteran?who had received the
Bronze Star for gallantry and the Purple__
Heart for wounds?having the opportu-
nity, to confront his accusers or the right
to cross-examine them. Eight years
later?after the authority of the Foreign
Claims Settlement Commission had run
out, this man's reputation was salvaged.
It was salvaged by the Congress and by
the President, not by the Foreign-Claims
Settlement Commission. The reputation
of an American citizen was restored be-
cause this legislative body exercised its
right of review, because the House Com-
mittee on the Judiciary held a hearing?
two, really?the first of which deter-
mined that this man had been denied
a hearing within the meaning of the law
and the second finding that as a matter
of substance he did not collaborate with
the enemy. Only at this point?only at
this point after 7 long years?was his
reputation saved. It was not done by the
Foreign Claims Settlement Commission.
That Commission's finding made the
man a traitor. There was no right of
review under the law. The administra-
tive procedures act did not apply. There
was no due process because the benefits
involved were not a matter of right, they
were a matter of grace. But what about
his reputation? What about his repu-
tation? If it had not been for a body
other than and higher than the Foreign
Claims Settlement Commission, that
man would be a traitor today to every-
one in the United States?except himself.
Mr. Chairman, this is what we are
concerned with when we consider a bill
such as the one before us. When we put
the authority in the hands of one man
to determine with finality whether a man
is loyal or not, without proper opportu-
nity for defense or review, that is going
too.far. ?
(Mr. ALGER asked and was given per-
mission to revise and extend his re-
marks.)
Mr. ALGER. Mr. Chairman, I want
to compliment the committee for what I
consider generally to be a good bill. I
do not join my colleague from California
[Mr. ROOSEVELT] in his amendment to
strike out section 303, although I believe
the bill as it stands is not a proper pro-
tection to the citizens of the United
States on the one hand, and on the other
hand puts the Secretary of Defense, no
matter how well intentioned a many he
may be?and we have had good Secre-
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1963 CONGRESSIONAL RECORI?--HOUSE 7667
taries of Defense ? in the past?in the
position of being a dictator. ?
In order to correct the situation, I
shall submit to the membership of the
House an amendment, which I will pre-
sent at the riga time; and because I
oppose the amendment of the gentleman
from California, I should like to read the
language of the amendment, which is as
follows:
On page 5, line 4, after the word "final"
insert "except that any employee whose em-
ployment is so terminated shall have the
right of appeal to an appeal board, such
appeal board shall consist of three persons,
appointed by the President, and who are
cleared by the Director\ of the National Se-
curity Agency for access to :classified infor-
mation,
I must say to the chairman of the
committee, trho has done a fine job in
this area, this would not divulge the Sen-
sitive material that we are all aware we
must protect in this Nation, if we are to
have security. Yet it would give the
man the right of appeal so he is not
summarily dismissed by another human
being who can make a mistake, as can
the Secretary of Defense, in summarily
dismissing a man who has not such ap-
peal.
The CHAIRMAN. The Chair recog-
nizes the gentleman from Michigan
[Mr. NEDzil.
Mr. NEDZI. Mr. Chairman, I have lis-
tened to the debate this afternoon, and
have the feeling that the membership
is hot fully advised of what the law is as
it stands now with reference to the area
about which we are talking.
I would like to take a moment to read
as has been presented to me-, chapter
803, Public Law 33. 'this law inciden-
tally was e'xtended in 1953 to all agencies
of the Federal Government.
The law is as follows:
Notwithstanding the provisions of any
other law, Secretaries of State, Commerce:
Attorney General, Secretary of Defense; Sec-
retaries of Army, Navy and Air Force; Secre-
tary of Treasury; Atomic Energy Commis-
sion; Chairman, National Security Resources
Board; or Director of National Advisory Com-
mittee for Aeronautics. may, in his absolute
discretion and when deemed necessary in
the interest of national security, suspend,
without pay, any civilian officer or employee
in the mentioned Departments: Provided,
That to the extent that such agency head
determines that the interests of the national
security permit, the employee concerned
shall be notified of the reasons for his suspen-
sion and within thirty days after such noti-
fication any person shall have an oppor-
tunity to submit any. statements or affidavits
to the official designated by the head of the
agency concerned to show why he should be
reinstated or restored to duty. The agency
head concerned may, following such investi-
gation and review as he deems necessary,
terminate the employment of the suspended
employee whenever he shall determine such
termination necessary or advisable in the in-
terest of the national security of the United
States, and such determination by the
agency head concerned shall be conclusive
and final: Provided further, That any em-
ployee having a permanent or indefinite ap-
pointment, and having completed his pro-
bationary or trial period, who is a citizen
of the United States whose employment is
suspended under the authority of this Act,
shall be given after his suspension and be-
fore his employment is terminated under
the authority of this Act (1) a written
statement within thirty days after his sus-
pension of the charges against him, which
shall be subject to amendment within thirty
days thereafter and which shall be stated
as specifically as security considerations per-
mit; (2) an opportunity within thirty
days thereafter (plus an additional thirty
days if the charges are amended) to an-
swer such charges and submit affidavits;
(3) a hearing, at the employee's request,
by a duly constituted agency authority-
for this purpose; (4) a review of his
case ?by the agency head, or some official
designated by him, before a decision ad-
verse to the employee is made final; and (5)
a written statement of the decision of the
agency head: Provided further, That any
person whose employment is so suspended
or terminated under the authority of this
Act may, in the discretion of the agency
head concerned, be reinstated or restored to
duty with compensation.
Approved August 26, 1950.
(5 U.S.C.A. 652; 42 U.S.C.A. 1801 et seq.;
42 U.S.C.A. 1812; 5 U.S.C.A. 652 note,
U.S.C.C.S. 1949, p. 451, U.S.C.C.S. 1949, p.
1032; E.O. 10450, Apr. 27, 1953; 18 P.R. 3183,
extends coverage of Public Law 733 to all
agencies of the Federal Government and all
departments.)
The CHAIRMAN. The Chair recog-
nizes the gentleman from California
[Mr. EDWARDS].
[Mr. EDWARDS addressed the Com-
mittee. His remarks will appear here-
after in the Appendix.]
Mr. HOLIFIELD. Mr. Chairman, will
the gentleman yield?
Mr. EDWARDS. I yield to the gentle-
man from California.
Mr. HOLIFIELD. I am greatly con-
cerned over section 304. I believe it
widens the scope of documents which
can be classified, such as "For Official
Use Only." We know that many hun-
dreds of people are given the authority
to classify in the' different departments,
something like over 593 in the Depart-
ment of Commerce and several thousand
in the Department of Defense. Now,
we also know that many times news re-
leases are marked "Confidential" to hold
them until a certain time. I fear that
we are really broadening the field of clas-
sification of documents to the point
where it will, under this bill, become a
menace to the rights of the individual.
The CHAIRMAN. The Chair rec-
ognizes the gentleman from New
Hampshire [Mr. WYMAN].
(Mr. WYMAN asked and was given
permission to revise and extend his
remarks.)
Mr. WYMAN. Mr. Chairman, I rise in
opposition to this amendment, and would
like to say one or two things that may be
helpful in this regard.
The gentleman from California-has
offered an amendment here in whic he
raises the point that it is unfair to the
. people who work in this Agency to have
summary dismissal procedures apply to
them. It seems to me that we are look-
ing aside from the real issue. The secu-
rity of the country is involved here, and
the Secretary of Defense has deemed.it
necessary to ask the Congress for relief.
Now, the committee report says that the
Secretary shall be authorized summarily
to terminate the services of employees
of the National Security Agency when
such action is deemed necessary in the
interests of the United States. In the
security interest of the Nation the De-
fense Department does not want this
record. They do not want the written
record that is implicit in the appellate
process that would expose the procedures,
activities, and goings on within this
highly Classified Government Agency.'
Under the amendment an employee
given notice of termination could go to
the Circuit Court of Appeals, or to the
Supreme Court itself. Surely there can
be no quarrel for summary dismissal for
those who come into the Agency after the
effective date of the legislation, because
they will be forewarned of the situation
prevailing in this Agency.
But, that is not the argument of the
gentleman from California. His amend-
ment would strike out the entire, power
Of termination itself. As to the consti-
tutional requirements of due process
either civil or criminal due process, all
I can say is that the matter of Govern-
ment employment as a privilege has been
settled at this point by the courts. It is
not a right, and to this point in our
jurisprudence being a privilege only, it
lacks the status or the sanctuary the
judiciary has conferred on rights. I will
agree, though, with the gentleman that
what is going to happen if this question
should go to the Supreme Court is
problematical. This we have seen from
its decisions over the last 6 or 8 years.
? The CHAIRMAN. The Chair recog-
nizes the gentleman from Louisiana [Mr.
WILLIS].
Mr. WILLIS. Mr. Chairman, I have
listened to the arguments made in favor
of this amendment. They all proceed on
the assumption that the Secretary of
Defense is a man who is inclined to be
arbitrary and capricious and insists on
having czarist and dictatorial powers,
and further, that nothing has been done
about the employee's case prior to the
time that the papers reached the desk of
the Secretary of Defense. As a matter
of fact, if you read every part of this
bill you will see that the action of the
Secretary of Defense is itself in the na-
ture of a review action. The bill pro-
vides for boards of appraisal whose
duties will be to look into all aspects of
these cases, gather all the facts, evaluate
all the evidence, and submit a report in
writing along with a recommendation as
to what action should be taken in each
case.
Then after that evaluation is made,
the matter goes to the Secretary of De-
fense for final action.
The CHAIRMAN. The time of the
gentleman from Louisiana has expired.
All time on this amendment has expired.
The question is on the amendment
- offered by the gentleman from California
[Mr. ROOSEVELT].
The question was taken; and on a divi-
sion (demanded by Mr. ROOSEVELT) there
were?ayes 39, noes 132.
So the amendment was rejected. ?
Mr. ALGER. Mr Chairman I offer an
amendment.
The Clerk read as follows:
Amendment offered by Mr. ALGER : On page
5, line 4, strike the , period after the word
"final", insert a semicolon, add as follows:
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7668 . CONGRESSIONAL RECORD HOUSE May #
"excep"-t that any employee whose employ-
ment is so terminated, shall have the right
of appeal to an appeal board. Such appeal
board shall consist of three persons, ap-
pointed by the President, and who are
cleared by the Director of the National Se-
curity Agency for access to classified ,infor.;
mation."
- Mr. ALGER. Mr. Chairman, I know
of no reason to explain this ainendment
further. I have had the privilege of
presenting it to my colleagues earlier
during the debate. It has just been read
by the Clerk. Unless there are some
questions of me, I will let the amendment
stand for a vote.
Mr. ROOSEVELT. Mr. Chairman, will
the gentleman yield?
Mr. ALGER. I yield to the gentleman
from California.
Mr. ROOSEVELT. I would like to ask
the gentleman, if this board should be
established would the individual who
,was concerned have some information
so that he could come prepared before
the board tinder the gentleman's amend-
ment?
Mr. ALGER. That would certainly be
my understanding. But I have kept the
amendment as simple as possible. I
think we know what needs to be done -to
protect the individual on the one hand
and to remove this' dictatorial power
from one man in our Government on the
other hand. ?I think that is the nature
of an appeal board. I do not believe that
by having such an appeal board there
would be released security information
or vital information that we do not in-
tend to divulge under the security
processes of. this country with which I
know the gentleman agrees.
Mr. ROOSEVELT. If the gentleman
Will yield further, as long as it is under-
stood that there is implicit in the gentle-
man's amendment the right of the in-
dividual to prepare a case to defend him-
self, I certainly agree with the latter part
of the gentleman's amendment.
Mr. ALGER. That would be my
understanding.
Mr. CURTIS. Mr. Chairman, will the
gentleman yield?
Mr. ALGER. I yield to the gentleman
from Missouri.
Mr. CURTIS. I think implicit in the
use of the word "appeal" would be some-
thing along that line, and I agree with
the gentleman from Texas. The whole
purpose is not to have the usual formal-
ity in this kind of a record which would
be in the nature of a reasonable appeal.
Mr. POOL. Mr. Chairman, will the
gentleman yield?
Mr. ALGER. I yield to my colleague,
the gentleman from Texas [Mr. Pow. ].
Mr. POOL. In the amendment which
has been offered by the gentleman from
Texas [Mr. ALGER], does the gentleman
have anything in the amendment about
what happens to the employee while his
case is on appeal? Does the appellee
have access to this secret information in
this very secret branch of the Govern-
ment?
Mr. ALGER. No. You see, I do not
Intend to throw out this bill. I repeat,
I believe this is a good bill, but this
would provide a little bit of additional
protection, however, -and remove this
decision from one man's dictatorial p01-
.icy.
Mr. POOL. You have not answered
my, question.
Mr. GROSS. Mr. Chairman, will the
gentleman yield?
Mr. ALGER. I yield to the gentleman
from Iowa.
Mr. GROSS. May I say to the gentle-
man from Texas that the amendment
says, "except that any employee whose
employment -is so terminated, has the
right of appeal to this board, or the
appeal board is created."
Mr. POOL What happens to the man
during appeal? ?
Mr. GROSS. What happens to him?
He is out.
Mr. LINDSAY. Mr. Chairman, will
? the gentleman yield?.
Mr. ALGER. I yield to the gentle-
man.
Mr. LINDSAY. I think the gentle-
man's amendment is worthy of support.
It does exactly what - the Roosevelt
amendment was trying to do. They are
very close together. I do not understand
why the opposition came to the other
amendment; but I am perfectly delighted
to accept this amendment.
Mr. ALGER. I thank? the gentleman.
I, myself, feel it is a better bill if we
do not . delete the entire section. .
Mr. JOHANSEN. Mr. Chairman, will
the gentleman yield?
Mr. ALGER. I yield to the gentle-
man.
Mr. JOHANSEN. Mr. Chairman, I
wonder if the gentleman can tell me
whether he" is able to define by this sim-
ple, hastily conceived-on-the-floor
amendment, precisely what right of ap-
peal means with reference to this board
of three.
Mr. ALGER. If the gentleman thinks
that I know .what it may mean in the
minds of some of the people who are
administering our law today, he is wrong.
I can assure the gentleman I do not
know. But I think this does tighten it
a little bit.
Mr. JOHANSEN. Does not the gentle-
man feel that if our friends on the other
side whose anendment was defeated see
in this the possibility of accomplishing
precisely what the committee voted
down, that it is a dangerous proposition?
Mr. HOLIFIELD. Mr. Chairman, will
the gentleman yield?
Mr. ALGER. I yield to the gentleman.
Mr. HOLIFIELD. Mr. Chairman, I
look with favor on the gentleman's
amendment and I shall probably vote
for it. But there is one thing that does
concern me and that is, will the accused
Individual or the discharged individual
have enough information furnished him
to allow him to prepare his appeal and
to make his case or is this just a refer-
ence to a board to review the action
already taken?
Mr. ALGER. I would say to the gen-
tleman that any appeal that did not
go to the heart of what the gentleman
has suggested would be no appeal at all.
Mr. HOLIFIELD. Then I shall sup-
port the gentleman's amendment.
Mr. ALGER. I thank the gentleman.
Mr. WYMAN. Mr. Chairman, will the
gentleman yield?
Mr. ALGER. I yield to the gentleman.
Mr. WYMAN. Mr. Chairman, I would
like to ask this. In the earlier debate
the gentleman suggested that his amend-
ment would not involve publicity, that
the appellate proceedings would be sec-
ret; is that correct?
Mr. ALGER. That is my understand-
ing, because the people designated by
the President would have the highest
security classification. It is my intention
that the security information of this
country be not divulged. -
Mr. WILLIS. Mr. Chairman, I ask
unanimous consent that debate on this
amendment and all amendments thereto
close in .10 minutes, the last 5 minutes
to be reserved to the committee._
The CHAIRMAN. Is there objection
to the request of the gentleman from
Louisiana?
Mr. COHELAN. Mr. Chairman, I ob-
ject.
Mr. WILLIS. Mr. Chairman, I ob-
served only a few Members standing.
I ask unanimous consent that all time on
this amendment and all amendments
thereto close in 15 minutes, the last 5,
minutes to be reserved to the opposition.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Louisiana?
Mr. DINGELL. ? Mr. Chairman, I ob-
ject.
Mr. WILLIS. Mr. Chairman, I SO
move.
The CHAIRMAN. The question is on
the motion Offered by the gentleman from
Louisiana.
The motion was agreed to.
Mr. WILLIS. Mr. Chairman, a par-
liamentary inquiry.
The CHAIRMAN. The gentleman will-
state it.
Mr. WILLIS. Mr. Chairman, I ask for
a clarification of the motion just voted
on. The time was limited to 15 minutes,
but was the last 5 minutes ? reserved to
the committee?
The CHAIRMAN. The Chair did not
understand that the motion included the
reservation of the last 5 minutes to the
committee. The Chair therefore rules
that the motion ,agreed to by the Com-
mittee simply limits the time to 15 min-
utes without that reservation.
The CHAIRMAN: The Chair recog-
nizes the gentleman from New Hamp-
shire [Mr. Wymiul].
Mr. WYMAN. Mr. Chairman, I ad-
dress my remarks to the question I asked
the gentleman from Texas, who said that
the three persons appointed to the board
were to be cleared by the Director of
the National Security Agency for classi-
fied information, and that the report of
the appellate proceeding, if there were
an appeal, would be -secret. I submit in
addressing these remarks in opposition
to this amendment that, although he
says it will be secret, if this amendment
is adopted, then we are going to have
a situation applied to the National Secu-
rity Agency of this country which will
be. the same as applies to any other
agency. We do not need that and do
not want it. This is contrary to the
policy of this bill itself. It is against
the best interest of this country to have
such a required public record. So I
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1963 ' CONGRESSIONAL RECORD ?HOUSE 7669
suggest, if it is in order to have appellate,
decisions at all here, that at some point
along the road there might be an amend-
ment offered that will make it very clear
that the proceedings shall be secret and
shall apply only to persons employed
.after the applicable effective date of this
act. Otherwise, the ? House should vote
down this amendment.
The CHAIRMAN. The Chair recog-
nizes the gentleman from Michigan [Mr.
DINGELL].
Mr. DINGELL.- Mr. Chairman I
should like to ask the distinguished gen-
tleman from Texas, the author of the
amendment, some questions to ascertain
, just how much review he contemplates
by reason of the amendment. Does the
gentleman contemplate that a confiden-
tial transcript from the agency head
shall be available to the receiving board
of three members? ?
? Mr. ALGER. The gentleman does not,
but at least there is an element of dis-
cretion at the direction? of the Secretary
of Defense and the Director of the Na-
tional Security Agency.
Mr. DINGELL': I am speaking to the
gentleman, I say, of the review that will
be held by the appellate board, the three
men who will serve as a review board.
Does the gentleman contemplate they
will have a transerfpt for their informa-
tion from the Secretary in order for him
to make their determination?
Mr. ALGER. I cannot imagine an ap-
pellate board doing anything unless they
knew the facts.
Mr. DINGELL. Does the gentleman
expect the appeal board to confer on the
employee the right to produce documents
and cross-examine witnesses as fully as
possible, while protecting- the Secretary
of Defense and the security of the United
States?
Mr. ALGER. I do not feel that the
gentleman and I have the same feeling
about an appellate board. This would
not be an appellate board in the sense
that the term is ordinarily used.
Mr. DINGELL. Does the gentleman
feel there would be opportunity to have
the production of documents and the ex-
amination of evidence as fully as pos-
sible in connection with the security of
the United States?
Mr. ALGER. I feel the gentleman is
forgetting what the original bill is. He
must realize he will have more in the
bill than he has now.
Mr. DINGELL. The gentleman will
concede that in the bill an employee of
NSA has only the right to be summarily
discharged without appeal. This is pre-
cisely what the bill does. It authorizes
the employee concerned to be discharged
by the Secretary without information as
to why.
The CHAIRMAN. The Chair recog-
nizes the gentleman from North Caro-
lina [Mr. BROYHILL]. '12*
Mr. BROYHILL of North Carolina.
Mr: Chairman, I, along with the gentle-
man from Texas [Mr. ALGER], am con-
cerned that the committee did not pro-
vide some type of review board. This
is the reason for this amendment. We
must recognize that mistakes can be
made, there might be an error. It would
be my feeling that this board would hold
these reviews in complete secrecy in
order -to uphold the national security
of our country.
Mr. ALGER. Mr. Chairman, will the
gentleman yield?
Mr. BROYHILL of North Carolina.
I yield to the gentleman from Texas.
Mr. ALGER. I should like to compli-
ment the gentleman, if I may, for his
help and the language that he provided
for this amendment, because I really be-
lieve it does go to the heart of the prob-
lem. We are' talking about two things,
on the one hand, the dictatorial power
that is placed in the hands of one man,
no matter how fine a man he may be.
? Secondly, denial of review for a per-
son whose character may indeed be de-
famed where he cannot have any review
whatsoever, this. may not be as far as
we ought to go, but certainly it is better
than what we would have under the bill.
Yet, I think the bill goes to the heart of
the problem with which we are concerned
and that is the security of essential and
vital information. At the same time,
we must not defame character without
reco3n?se for the accused. That is the
reason I am for the amendment and I
thank the gentleman for his help.
Mr. BROYHILL- of North Carolina.
Mr. Chairman, I Compliment the com-
mittee on bringing out this bill and I say
the bill has my complete support, but
do urge the adoption of this amendment
so that employees who are discharged
will have some protection and still pre-
serve our national security.
Mr. WYMAN. Mr. Chairman, will the
gentleman yield for a question?
Mr. BROYHILL of North Carolina. I
yield to the gentleman.
Mr. WYMAN. I would just like to ask -
the gentleman if he has made reference
here to the fact that these proceedings
would be secret and there would be no
transcript and no publicity. I am sure
the gentleman knows what happens when
defense counsel get into these things
even though the mattermay not involve
actual criminal charges, when defense
counsel asks to have this held in public,
and there is nothing in the legislation
that requires it to be secret, that may be
reversible error and it is going to throw
a monkey wrench into the whole pro-
ceedings. This amendment does not
require secrecy and this amendment is
fatally defective in this respect alone.
The -CHAIRMAN. The Chair recog-
nizes the gentleman from Ohio [Mr.
Asnattooal.
Mt. ASHBROOK. Mr. Chairman, the
gentleman from New Hampshire [Mr.-
WYMAN] put his finger exactly on the
point I want to raise. We have one of
the leading attorneys in this body, the
chairman of the jurisprudence commit-
tee of the American Bar Association and
his observations are very timely. In ad-
dition, in my 2 years in this body, I do
not believej have ever heard of a case
of a legislative record being more mud-
dled on a point than it has been on this
particular issue. I say that with no
reflection either on the gentleman from
Texas or anyone else. I think if we look
at the legislative record as we have
established it here, it would be -very in-
teresting for anyone to try to interpret
IN
just what we mean. The gentleman's
amendment in the first instance is a
laudable effort at limiting this absolute
delegation of power. It is recognized on
one hand the necessity of having rigid
laws and regulation because of the
supersecret nature of the agency. He is,
in effect, saying that there should be a
board of three looking over the shoul-
ders, so to speak, of the Secretary of De-
fense to review what was accomplished.
I think the legislative record, as it is
being developed, shows that much more
than this has been read into the RECORD
and for that reason I would suggest that
it be turned down. Chaos might well re-
sult from the passage of this amendment
although the gentleman from Texas
clearly had a very admirable idea in
mind.
Mr. ALGER. Mr. Chairman, will the
gentleman yield?
Mr. ASHBROOK. I yield to the
gentleman.
Mr. ALGER. I would suggest to the
gentleman, without really disagreeing
with: what he has just said, that he
makes my point. It may be that this
does not go far enough, but it does give
the discretion both to the Secretary of
Defense and the President, if you please.
If they do not take action or do not feel
an appeal should be put in, then what
the gentleman is suggesting is right. It
would be helpful. But, on the other
hand, it does give the individual protec-
tion that he does not have now under the-
bill. I think it is a good bill going to -
the heart of the problem of protecting
classified material in the National
Security Agency.
Mr. ASHBROOK. I think the gen-
tleman for his contribution.
The CHAIRMAN. The Chair recog-
nizes the gentleman from California
[Mr. COHELAN].
(Mr. COHELAN asked and was given
permission to revise and extend his
remarks.)
Mr. COHELAN. Mr. Chairman, I ,
want to say I am delighted with the
amendment Of the gentleman from
Texas, but not because I believe it is
sufficient. On the contrary, I think it
is insufficient in many particulars, but
It does strike at the problem we are try-
ing to solve. I know there will be?
another amendment forthcoming.
However, I am going to vote for the
gentleman's amendment because I thinkl
at least it is a modifying amendment.
But, as I say, I think it is insufficient.
Like every other Member of this
House, I have a deep concern that effec-
tive security standards are provided and
maintained at NSA, as well as at all other
sensitive agencies. At the same time we
must be certain that in this process we
do not forget that there are other im-
portant values to be considered?that a
proper adjustment has to be made be-
tween the rights of American citizens
and the National Security. As the dis-
tinguished attorney, Eleanor Bontecou,
stated in her book "The Federal Loyalty-
Security Program."
They (speaking of U.S. courts) may then
decide that the maintenance of our tradi-
itional freedoms and our traditional respect
for fairness is as necessary to our safety as
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7670 CONGRESSIONAL RECORD -- HOUSE
a free nation as are the forging of secret
- weapons and the raising of armies.
My concern is not only that innocent
people may be unjustly aCcused and dis-
missed, but that the Agency itself may
not be able to make an intelligent de-
cision without some form of hearing.
Due process does not have meaning
and value alone to the unjustly accused.
It is also essential- to the institution or
the individual that makes the
determination.
The CHAIRMAN. The Chair recog-
nizes the gentleman from Michigan
[Mr. JOHANSEN].
(Mr. JOHANSEN asked and was given
permission to revise and extend his re-
marks.)
?Mr. JOHANSEN. Mr. Chairman, I
strongly urge the defeat of this very
dangerous amendment. I regret find-
ing Myself in opposition. to my very
esteemed friend, the gentleman from
Texas [Mr. ALGER].
There is nothing in this amendment?
this effort to write an appellate provision
into the bill?that defines the basis of an
appeal, that defines the scope of the
appeal, or that defines the_ appellate
procedures.
The legislative intent of this amend-
ment is, as one of my colleagues on the
committee, the gentleman from Ohio
[Mr. ASHBROOK], observed, completely
muddied and completely obscured.
I would suggest, in all frankness, to
my good friend from Texas that he ought
to take caution from the eagerness of
those who offered the amendment to gut
the bill, deleting section 303?by the
eagerness they displayed to adopt his
Child, and he should in consequence dis-
own the child, because if this is adopted
you are going to throw into jeopardy
the basic purpose and intent of this sec-
tion 303. You are going to not only do
that but you are going to jeopardize this
procedure as it relates to the CIA, a
procedure which has been established for
18 years.
If the gentleman from Texas feels
this is so fundamental, and I respect his
sincerity completely, there is a course to
be followed, and that is toIntroduce cor-
rective legislation with respect not only
to this bill, this agency, but with respect
to the CIA, and permit hearings to be
held on the matter, and act on it in
proper fashion.
I plead with the Members not to accept
this type of amendatory process.
The CHAIRMAN. The Chair recog-
nizes the gentleman from Louisiana [Mr.
Mr. WILLIS. Mr. Chairman, I com-
pletely agree with the gentleman who
just spoke and the gentleman from New
Hampshire [Mr. WYMAN], who made a
very brilliant explanation of the situa-
tion we are in.
This amendment starts out by recog-
nizing the power given to the Secretary
of Defense in the bill. The amendment
says except that any employee whose ,
employment is so terminated." So the
amendment recognizes the power of the
Secretary of Defense to terminate em-
ployment. We do not know what kind
of procedure the appeal board will fol-
low, whether there is to be confronta-
tion or cross-examination; we do not
know what kind of record will be made.
The right of appeal is given, but it does
not say whether after the appeal the
man is to be reingtated and under what
conditions. That is what comes out of
presenting an amendment of this type
in this sensitive area on the floor with-
out hearings.
I -respectfully urge its defeat.
The CHAIRMAN. All time has ex-
pired.
The question is on the amendment
offered by the gentleman from Texas
[Mr. ALGER].
The question was taken, and on a di-
vision (demanded by Mr. ALGER) there
were?ayes 46, noes 111.
So the amendment was rejected.
Mr. MOSS. Mr. Chairman, I move to
strike out the last word. .
Mr. Chairman, I take this time to di-
rect a question to the distinguished
chairman of the committee regarding
the intent of the conimittee on section
304 of the bill.
As I read it, it defines "classified in-
formation" as information which, for
reasons of national security, is specifi-
cally designated by a U.S. Government
agency for limited or restricted dissemi-
nation or distribution.
Now, for 8 years I have studied the
field of classified information. Much
information is classified strictly in ac-
cordance with law. Much is classified
really on a claim, I guess one of privi-
lege within an agency, having no sanc-
tion in law, statutory, or through any
Executive order of the President.
Is it, therefore, Mr. Chairman, the in-
tention that these different three cate-
gories of information, top secret, secret,
and confidential, authorized under Exec-
utive Order 10501, which became effee-
tive on December 15, 1953, with the ad-
ditional category, "Used only in this
-agency" of "sensitive cryptologic infor-
mation," will apply? Is that the inten-
tion and that alone?
Mr. WILLIS. I would say to the gen-
tleman that is the intention, as is evi-
denced by a letter from the Assistant
Secretary of Defense addressed to the
chairman of our committee on August 8;
1962. In it he gives a very short defini-
tion of "cryptologic information." He
says:-
Sensitive cryptologic information is a spe-
cial type of classified information which re-
quires special clearances,
And so on.
It consists of any classified information?
A. Concerning the nature, preparation, or
use of any code, cipher, or cryptographic 'sys-
tem; or
B. Concerning the design, construction,
use, maintenance, or repair of any device,
apparatus, or appliance used or prepared or
planned for use for cryptographic or com-
munication intelligence purposes; or
C. Concerning communications intelli-
gence activities.
Mr. MOSS. I thank the' gentleman
again for clarification. In addition to
the one classification of cryptologic in-
formation, the other three are only those
authorized under Executive Order 10501
May ,9
and the guidelines and definitions of that
Executive order. are applicable in this
instance.
Mr. WILLIS. Although the Executive
order is not mentioned in the letter, a
sentence agreeing with what the gentle-
man says reads as follows:
It includes three categories of informa-
tion depending uPon the degree of protec-
tion required?confidential, secret, and top
secret.
Mr. MOSS. And that is the intention
of the committee?
Mr. WILLIS. That is the intention of
the. committee.
Mr. MOSS. I thank the gentleman.
Mr. MOORHEAD. Mr. Chairman, I
offer 'an amendment.
The Clerk read as follows:
Amendment offered by Mr. MOORHEAD:
On page 4, line 24, immediately after -
"Agency" insert the following: "in accord-
ance with the provisions of this subsection".
Page 5, strike out all of line 4 after "secur-
ity." and insert in lieu thereof the follow-
ing:
"Any officer or, employee of the Agency
shall, before his employment is terminated
under the authority of this subsection, be
given a 30-day suspension without pay and
during that'time he shall be given=
"(1) a written statement of the charges
against him, which shall be stated as specifi-
cally as security considerations permit;
"(2) an opportunity within 10 days after
receipt of the statement of charges against
him to answer such charges and to submit af-
fidavits; and
"(3) a written statement of the final de-
cision of the Secretary".
"Any -action taken by the Secretary under
authority of this subsection shall be final,
however, the Secretary shall submit to the
chairmen of the Committees on the Judiciary
of the Senate and the House of Representa-
tives a written report with respect to any
such action."
Mr. WILLIS. Mr. Chairman, will the
gentleman from Pennsylvania [Mr.
MOORHEAD] yield?
Mr. MOORHEAD. I would be glad to
yield to the distinguished chairman of
the subcommittee. '
Mr. WILLIS. Mr. Chairman, I ask
unanimous consent that following the
remarks of the gentleman from Penn-
sylvania [Mr. MOORHEAD], on his amend-
ment, that debate on this amendment
and all amendments to this bill close in
10 minutes.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Louisiana?
Mr. DINGELL, Mr. COHELAN, and
Mr. O'HARA of Michigan objected.
The CHAIRMAN. Objection is heard.
Mr. WILLIS, Mr. Chairman, I move
that following the presentation under
the usual 5-minute rule all debate on
the amendment which has been offered
by the gentleman from Pennsylvania
[Mr. MOORHEAD], and all debate on all
amendments to, the bill close -in 15
minutes. -
The motion was agreed to.
The CHAIRMAN. The gentleman
from Pennsylvania [Mr. MOORHEAD] is
recognized for 5 minutes.
(Mr. MOORHEAD - asked and was
given permission to revise and extend
his remarks.)
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1263
Mr. MOORHEAD. Mr. Chairman, in
the various amendments that we have
been considering this afternoon we are
trying to hit a middle ground between
protecting absolutely the security of the
United States and at the same time
giving the maximum degree of protec-
tion to the individual.
This amendment which I propose is
an adaptation of the basic law regarding
the discharge of employees from the
Department of State, Department of
Commerce, and so forth.
Mr. Chairman, I believe that the
amendment does the fundamental job
of protecting the national security of
the United States. It does so, because
what does it require? It requires a
written statement of the charge against
the employee discharged. But it care-
fully points out only as specifically as
security considerations? permit. There-
fore, if there is a question of security
involved in the written charge the secu-
rity takes precedence over the individual.
Secondly, Mr. Chairman, it gives the
employee a chance to state his own case
so that we can be as sure as we can that
the final deciding officer has both sides
of the question.
Finally, Mr. Chairman, the amend-
ment requires a written decision on the
part of the Secretary. It provides spe-
cifically that the action of the Secretary
under this subsection shall be final.
Thus it cannot be tied up in litigation
in the courts. However, it does this: It
says that the Secretary must submit
reports of what he has done under this
section to the chairmen of the Judiciary
Committees of the House and the Senate.
What is the purpose of this provision?
If the Secretary finds himself reporting
five or more cases in a year, he is going
to be concerned that the chairmen of
these committees will check on whether
he has been- arbitrarily using this- sec-
tion in cases when he should properly
use the general law. This will be a
brake on the Secretary. I submit that
it is consistent entirely with our primary
concern, which is the national security.
The CHAIRMAN. The Chair recog-
nizes the gentleman from Michigan [Mr.
JOHANSEN].
Mr. JOHANSEN. Mr. Chairman, I
oppose this amendment as I opposed
the previous amendment. First of all it
is an effort to write a fundamental
change into this legislation on the floor,
in the closing minutes of debate and
under a sharp limitation of time. /
I oppose it also because the very pur-
pose of section 303 is to provide, and it
does provide, that where security pre-
vents the disclosure of the reasons, pre-
vents even acquainting the employee
with the reasons for termination, then
it shall rest_with the Secretary to act
summarily.
In other words, this amendment is
either on the one hand meaningful, and
if it is meatiingful then it is dangerous,
because it reverses the very purpose of
section 303, or else it is meaningless, be-
cause it is essentially self-defeating by
reason of this security provision.
There are circumstances, Mr. Chair-
man, under which the Justice Depart-
ment will not prosecute a known spy
CONGRESSIONAL
RECORD ? HOUSE 7671
or agent or Communist because the na-
tional interest and security are better
served by preserving the security of the
espionage system by which that infor-
mation was secured. Here we are trying
to deal with a situation in which, as I
pointed out in general debate, the choice
is between exposing those sources of in-
formation and that espionage operation
or on the other hand tolerating the con-
tinued employment of the individual in
a sensitive area.
This again is a dangerous amendment
? and I strongly urge its defeat.
The CHAIRMAN. The Chair rec-
ognizes the gentleman from Michigan
[Mr. DINGELL].
(Mr. DINGELL asked and was given
permission to revise and extend his re-
marks.)
Mr. DINGELL. Mr. Chairman, like
all of my colleagues in the House I am
intensely interested in seeing the strong-
est possible security measures erected for
the protection of the National 'Security
Agency. I am keenly aware of the im-
portance of this agency to the United
Sthtes and to our struggle against the
Communist conspiracy.
I feel, however, that we can have se-
curity consistent with a real measure of
protection of the individual liberties of
our people and that unnecessary sacrifice
of individual liberties of American citi-
zens at the altar of national defense is
not only unwise but will lead to tyranny
and dictatorship. I support the first two
sections to H.R. 950 which are as follows:
SEC. 301. Subject to the provisions of
this title, the Secretary of Defense (here-
after in this title referred to as the "Secre-
tary") shall prescribe such regulations relat-
ing to continuing security procedures as he
considers necessary to assure?
(1) that no person shall be employed in,
or detailed or assigned to, the National Se-
curity Agency (hereafter in this title referred
to as the "Agency") , or continue to be so
employed, detailed, or assigned; and
(2) that no person so employed, detailed,
or assigned shall have access to any classified
information; unless such employment, de-
tail, assignment, or access to classified in-
formation is clearly consistent with the
national security.
SEC. 302. (a) No person shall be employed
in, or detailed or assigned to, the Agency un-
less he has been the subject of a full field
investigation in connection with such em-
ployment, detail, or assignment, and is
cleared for access to classified information in
accordance with the provisions of this title;
excepting that conditional employment with-
out access to sensitive cryptologic informa-
tion or material may be tendered any appli-
cant, under such regulations as the Secretary
may prescribe, pending the completion of
such full field investigation: And provided
further, That such full field investigation
at the discretion of the Secretary need not
be required in the case of persons assigned
or detailed to the Agency who have a current
security clearance for access to sensitive
cryptologic information under equivalent
standards of investigation and clearance.
During any period of war declared by the
Congress, or during any period when the
Secretary determines that a national disaster
exists, or in exceptional cases in which the
Secretary (or his designee for such purpose)
, makes a determination in writing that his
action is necessary or advisable in the na-
tional interest, he may authorize the em-
ployment of any person in, or the detail or
assignment of any person to, the Agency,
and may grant, to any such person access to
classified information, on a temporary basis,
pending the completion of the full field
investigation and the clearance for access to
classified information required by this sub-
section, if the Secretary determines that such
action is clearly consistent with the national
security.
(b) To assist the Secretary and the Direct-
or of the Agency in carrying out their per-
sonal security responsibilities, one or more
boards of appraisal of three members each, to
be appointed by the Director of the Agency,
shall be established, in the Agency. Such a
board shall appraise the loyalty and suitabil-
ity of persons for access to classified infor-
mation, in those cases in which the Director
of the Agency determines that there is a
doubt whether their access to that informa-
tion would be clearly consistent with the na-
tional security; and shall submit a report
,and recommendation on each such a case.
However, appraisal by such a board is not re-
quired before action may be taken under sec-
tion 14 of the Act of June 27, 1944, chapter
287, as amended (5 U.S.C. 863) , section 1 of
the Act of August 26, 1950, chapter 803, as ,
amended (5 U.S.C. 22-1), or any other similar
provision of law. Each member of such a
board shall be specially qualified and trained
for his duties as such a member, shall have
been the subject of a full field investigation
in connection with his appointment as such
a member, and shall have been cleared by the
Director for access to classified information
at the time of ,his appointment as such a
member. No person shall be cleared for ac-
cess to classified inuformation, contrary to
the recommendations of any such board, un-
less the Secretary (or his designee for such -
purpose) shall make a determination in writ-
ing that such employment, detail assign-
ment, or access to classified information is in
the national interest.
I oppose, however, the Unwise provi-
sions of section 303(a) dealing with ter-
mination of employment. The House
has witnessed a curious spectacle today.
We have a strong statute on the books
dealing with termination of employment
of individuals for security reasons within
the Department of Defense and a num-
ber of other Government agencies which
is as follows:
SEC. 303. (a) Notwithstanding section 14 of
the Act of June 27, 1944, chapter 287, as
amended (5 U.S.C. 863) , section 1 of the
Act of August 26, 1950, chapter 803, as
amended (5 U.S.C. 22-1) , or any other pro-
vision of law, the Secretary may terminate
the employment of any officer or employee
of the Agency whenever he considers that
action to be in the interest of the United
States, and he determines that the pro-
cedures prescribed in other provisions of law
that authorize the. termination of the em-
ployment of that officer or employee cannot
be invoked consistently with the national
security. Such a determination is final.
Note that the statute specifically
provides:.
That to the extent that such agency head
determines that the interests of the national
security permit, the employee concerned
shall be notified of the reasons for his
suspension and within 30 days after such
notification any person shall have an op-
portunity to submit any statements or af-
fidavits to the official designated by the head
of the agency concerned to show why he
should be reinstated or restored to duty.
The agency head concerned may, following
such investigation and review as he deems
.necessary, terminate the employment of the
suspended employee whenever he shall de-
termine such termination necessary or ad-
visable in the interest of the national se-
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7672 CONGRESSIONAL RECORD HOUSE
curity of the United States, and such de-
termination by the agency head concerned
shall be conclusive and final.
This morning I had my office call the
Un-American Activities Committee for
a copy of the transcript of the hearings
on this legislation. At first I was advised
It was available and would be forthcom-
-ing. Subsequently my office was advised
that copies of the transcript were not
available. We are faced today with the
problem of considefing a piece of legisla-
tion on which hearings held, if any, were
conducted behind closed doors. Infor-
mation which would normally and which
should normally flow to Members of Con-
gress is denied to all of us in our vote
except for a list of witnesses who testi-
fied indicating generally that All con-
curred in the necessity for this legisla-
tion. It is indeed stfange that in the
light of existing statutes and so slight a
record before the 'Congress, that we
should feel such a pressing, desperate,
and crying need ? for this legislation.
There is, moreover, and abundantly clear
Executive order on the subject of dis-
charge of Federal employees where there
is question as to either the security of
the United States in continuing the em-
ployment, or in the loyalty of the em-
ployee in question. I refer to Executive
Order 10450 dated April 27, 1953-18
Federal Register 2489.
How are we to determine that the
committee has legislated well in this
matter since the grist of the legislative
mill, the printed report of the hearings,
is unavailable to us?
The alleged ground for stampeding
this legislation through the Congress is
supposedly the case involving the defec-
tion of the National Security Agency em-
ployees, Vernon F. Mitchell and William
H. Martin. It is highly questionable
whether legislation of this kind would
have prevented defection of these indi-
viduals. It appears abundantly plain
that the evil of their defection and their
ability to betray their trust to the United
States lay in failure to apply adequate
and sufficient clearance procedures to
their hiring and not in any absence of
authority to discharge these defectors.
Indeed under the existing statute cited
above it is plain that the Agency head
could have discharged them without re-
vealing any information which he felt
Involved the national security or the
public interest by reason of discretion
already vested in him.
There is no language in this bill requir-
ing the Secretary of Defense to afford
any information to an employee whatso-
ever before his discharge as to the nature
of the charges against him. The langu-
age of section 303 authorizes absolute
discretion to terminate the employment
of any officer, or employee of the Na-
tional Security Agency, whenever he con-
siders that action to be in the interest of
the United States and where the Sec-
retary in his absolute and untrammeled
discretion determines the waiver of other
provisions of law to be in the interest
of national security. The bill says "such
termination is final."
I, for one, do not propose to be stam-
peded into enactment of legislation so
destructive of individual rights and so
inconsistent with our traditional consti-
tutional practices without a more real
showing than the flimsy record upon
which we act today and upon the abund-
ant misinterpretation of the existing
strong security measures to protect the
interest of the United States.
The CHAIRMAN. The Chair recog-
nizes the gentleman from California [Mr.
COHELAN] .
(Mr. COHELAN asked and was given
permission to revise_ and extend his re-
marks.)
Mr. COHELAN. Mr. Chairman, I rise
in support of the amendment. I think
it is pretty clear that all of the objectives
that we have been seeking in terms of
maximizing protection, both for the in-
dividual and for the Government, are
inherent in the amendment advanced by
the gentleman from Pennsylvania [Mr.
MOORHEAD]. I urge its adoption. How-
ever, if it is not adopted I would think
that the bill by itself is insufficient be-
- cause I do not think that there is ade-
quate protection in it.
Mr. Chairman, I wan_t to complete the
statement I was making when I left the
floor previously, because I think it is
terribly important, as we close.
You will all remember, and particu-
larly those of you familiar with the law,
that Mr. Justice Jackson had quite a rep-
utation for being tough on these ques-
tions. But in a paper he wrote before
he died, entitled "The Task of Maintain-
ing Our Liberties?The Role of the Judi-
ciary," which was published in the Amer-
ican Bar Journal of November 1953, this
great American protested:
We cannot approve any use of offldal pow-
ers or position to prejudice or condemn a
person in liberty, property or good name
which does not inform him of the source
and substance of the charge and give it time-
ly and open-minded hearing as to its truth?
safeguards without which no judgment can
have a sound foundation.
Mr. Chairman, I believe this statement
of Mr. Justice Jackson speaks eloquently
to this point, to the danger inherent in
section 303 without amendment. I trust
that we will all bear this firmly in mind
as we vote on this provision, and if it is
not amended appropriately, that it will
be defeated as a dangerous and unwar-
ranted infringement on the basic consti-
tutional rights of American citizens.
Mr. Chairman, I have referred exten-
sively in my remarks to the thoughtful
and pertinent article by Dean Frank
Newman. I believe this full article de-
serves the careful consideration of the
entire House for it goes to the heart of
this very difficult and important issue we
have been discussing.
THE PROCESS OF PRESCRIBING DUE PROCESS
(By Prank C. Newman, professor of law,
University of California School of Law,
Berkeley)
Recently we were told that the dueness of
government procedure is not tested by "doc-
trinaire conception" or "loose generalities or
sentiments abstractly appealing." Instead,
"Whether the scheme satisfies those striv-
ings for justice which due process guarantees,
must be judged in the light of reason drawn
from the considerations of fairness that re-
flect our traditions_ of legal and Political
thought, duly related to the public interest
Congress sought to meet ? ? * as against
the hazards of hardship to the Individual
May, 9
that the ? ? ? [attacked] procedure would
entail." 1
That is quite a mouthful. And no sooner
were the words pronounced than a dissent-
ing Justice retorted, "When we turn to the
cases, personal preference, not reason, seems,
however, to be controlling." Further, "Due
process under the prevailing doctrine is what
the judges say it is; and it differs from judge
to judge, from court to court * ? *. []t is]
a tool of -activitists who respond to their
own visceral reactions in deciding what is
fair, decent, or reasonable." 2
Sanford Radish has dissected the view-
points those excerpts reflect,* and we will not
refurbish his findings here. The intent of
this article is to examine method rather than
theory or result. We do not survey the rules
of due process or query their correctness.*
We do look at the process of lirescribing
those rules. We assess the prescribers' pro-
cedure, testing it for capacity to help insure
correct rules. Our presumption is that
modest reforms may be practicable, that the
process of prescribing due process could be
bettered.
Many of the ideas discussed here relate
to Hannah v. Larche, decided by the Supreme
Court in June 1960.6 It deals with the due
process rights of subpenaed witnesses. The
U.S. Commission on Civil Rights, having'
received accusations that certain Louisiana
registrars had deprived citizens of the right
to vote, subpenaed those registrars to appear
at a hearing and testify regarding the ac-
cusations. The registrars learned that the
Commission would deny rights of apprisal,
confrontation, and cross-examination; so
their lawyers obtained a court order en-
joining the Commission "from conducting
the proposed hearing in Shreveport,
whereby plaintiff registrars, accused of de-
priving others of the right to vote, would be
denied the rights of -appraisal, confrontation,
and cross-examination."6 The Supreme
Court then vacated the injunction, ruling
that in this kind of proceeding due process
does not require that subpenaed witnesses
be given those rights.
The opinions in Hannah V. Larche are a
mine of information on the theory and'
practice of due process. They concern not
merely an injunction. in Louisiana and the
subpenaed registrars whom it protected.
Subpenaed witnesses generally are dis-
cussed?not only civil rights witnesses, but
those called by all other executive and ad-
ministrative officials, by grand juries, by
legislative investigating committees, Federal
and State. Specifically, the opinions have.
helped inspire these questions as to the
process of prescribing due process.*
I. Should not the words of the due process
clauses be reexamined for plain meaning?
II. Should not due process rights more
consistently be classified and distinguished
from other constitutional rights?
1 Frankfurter J., concurring in Hannah v.
Larche, 363 U.S. 420, 487 (1960).
2 Douglas, J., id. 505-506.
Radish, "Methodology and Criteria in Due
Process Adjudication?A Survey and .
cism," 66 Yale L. J. 319 (1957).
4 "While Justice Cardozo in 1937 felt able
to find the 'rationalizing principle' which
gave 'proper order and coherence' to the de-
termination made up tOlhat time, the array
of apparently disordered determinations
since that date would no doubt give pause
to one contemplating a similar effort today."
Radish, "A Case Study in the Signification of
Procedural Due Process Institutionalizing
the Mentally Ill," 9 W. Pol., Q. 93 (1956).
6 363 U.S. 420 (1960); 74 Harv. L. Rev. 120
(1960) .
6 363 U.S. at 429n. 11.
*The opinions are criticized in Newman,
"Due Process, Investigations, and Civil
Rights."
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CONGRESSIONAL RECORD ? HOUSE 7673
III. Would not an analytical checklist aid
the deciding of eases?
IV. Who could spearhead reform, how?
I. THE WORDS OF THE DUE PROCESS CLAUSES
SHOTTLD BE REEXAMINED FOR PLAIN MEANING
The fifth amendment declares, "No person
shall * ? * be deprived of life, liberty, or
property, without due process of law." The
14th amendment (for our purposes here) is
the same: "No State shall * * * deprive any
person of life, liberty, or property, without
due process of law." Those words are spongy
and by themselves solve no problems. Quite
a few problems might be eased, though, if
the words were given full content. We pose
two illustrations: (1) the privilege doctrine;
(2) the too-pervasive criminal trial analogy.
" A. The privilege doctrine
How should we read "life, liberty, or prop-
erty"? "Liberty" has attracted probably
the most attention, and no doubt needs
more.,. We are not even near the brave new
world that might inhere in "life." (Does it
mean only freedom from death? How about
"the good life," or what for some people "be-
gins at 40"?) Yet without soaring into
semantics or political theory could we not
shun one view of "life, liberty or property"
that has caused much chaos? I refer to the
hundreds, maybe thousands, of cases that
protect "rights" but not "privileges," declar-
ing that "due process of law is not applicable
[with respect to government employment, for
instance] unless one is being deprived of
something to which he has a right." I refer
also to Hannah v. Larche, where the Court
stated that the Civil Rights Commission
"does not make determinations depriving
anyone of his life, liberty, or property * ? *
and cannot take any affirmative action which
will affect an individual's legal rights." 1,
When the facts that were before the Court
are examined, when we see that the Commis-
sion?pursuant to congressional command?
can and does sponsor publicity that may
defame, degrade, and incriminate people,
what the Court seems to have said is that
governments, by derogatory publicity, do
not affect "liberty, or property."
The due process clauses say nothing of
right versus privilege. The chief vice of
the privilege doctrine is that it has insulated
us from a body of law, highly reputal5le,
that seems designedly apt for protecting the
freedoms that "life, liberty, or property" ap-
pears to imply. I refer now to the law of
torts, and the successful handling there of
all legal interests. The torts cases teach us
that "property" means more than land and
chattels and choses-in-action; "liberty,"
more than freedom from physical harm and
imprisonment. Why should those cases
have outpaced due process cases? Why in
private suits for damages or an injunction
should legal interests be protected that due
process leaves helpless? Examples are 'the
interest in freedom from interference with
8 E.g., see Nutting, "The Fifth Amendment
and Privacy," 18 U. Pitt L. Rev. 533 (1957);
Shattuck, "The True Meaning of the Term
'Liberty' In Those Clauses in the Federal and
State Constitutions Which Protect `Life,
Liberty, and Property," 4 Harv L. Rey. 365
(1891); Hand "The Bill of Rights" 51 (1958)
("Liberty not only includes freedom from
personal restraint, but enough economic se-
curity to allow its possessor the enjoyment of
a satisfactory life.") ; Pa/lco v. Connecticut,
302 U.S. 319, 327 (1937) ("liberty of the mind
as well as liberty of action").
Bailey v. Richardson, 182 F. 2d 46, 58
(D.C. Cir. 1950) , affirmed, 341 U.S. 918 (1961).
10363 U.S. at 441; and note the Commis-
sion's use of the quotation in press release
No. 133 (1961).
No. 69-4
reasonable economic expectancies, the in-
terest in personal reputation and in freedom
from disparagement, and the interest in
freedom from emotional upset".
The privilege doctrine should be junked,
and "life, liberty, or property" should be
-treated as a description of all legal interests.
To the question, "Won't you still have to de-
fine that last phrase?" the answer is, "Of
course." But definitions can be guided by
a bulk of precedents that makes far more
sense than have judge's travails as to the
rights of saloon keepers, dancehall operators,
Government employees, and aliens.
To pronounce that ."liberty, or property"
includes, say, reputational and emotional in-
terests would not mean that governments
no longer could deprive people of those in-
terests, or that deprivations could be ef-
fected only by judicial .trial. The require-
ment would merely be that due process be
accorded. With no trial and without a
chance sometimes even to argue, people are
often deprived of their property and liberty
and even their lives; but in emergency cases,
for example, due process is not necessarily
violated.
Recognition of a due process freedom from
disparagement or emotional upset would not
require procedrues the same as those which
now protect a man's employment security,
say, or his land. The nature of the interest
must be taken into account. That is why
we demand special strictness for criminal
proceedings, forfeiture proceedings, proceed-
ings involving citizenship. That "life" and
"liberty" and "property" are constitution-
ally conjoined does not mean that all in-
terests therein merit identical protection.
In Hannah V. Larche the Court may wisely
have decided that a certain civil rights
hearing should not be proscribed, even
though appraisal, confrontation, and cross-
examination were to be denied. The Court's
analysis Would have been sounder, though,
had it discussed differences between (1) a
hearing that injures a witness by publicity
which defames, degrades, or incriminates
him and (2)/a hearing that avoids those ef-
fects. In private law most courts have
proved their fitness boldly to protect liberty
and property interests. The Supreme Court
is not honored by an implication that
' "Whatever procedure is authorized by Con-
gress, it is due process as far as a witness
"The technical terms are from Harper &
James, "Torts," xxi-xv (1956); cf. Prosser,
"Insult and Outrage," 44 Calif. L. Rev. 40
(1956); Prosser, Privacy, 48 Calif. L. Rev. 383
(1960). See also Greene v. McElroy, 360
U.S. 474, 493 n. 22 (1959) ; Anti-Facist
Comm. V. McGrath, 341 U.S. 123, 139 (1951);
Rothbard, "Human Rights Are Property
Rights," The Freeman, April 1960, p. 23;
note, 65 Harv. L. Rev. 156 (1951); cf. Parker,
"Administrative Law," 36 n. 36 (1952) ("The
meagerness with which our problem?viz.
what rights are protected by due process??
has been dealt is astounding"). 'the best
and most complete discussion of the privilege
doctrine is 1 Davis, "Administrative Law
Treatise," secs. 7.11-7.20 (1958). Professor
Davis concludes, "Instead of 2 categories
[right and privilege] we could have 6 or 20,
for the weakest privilege or absence of privi-
lege to the strongest constitutional right."
Id. at 508. I prefer three categories: life,
liberty, and property. Many interests are
not legal interests and thus are not life, lib-
erty, or property interests. Those that are,
however (and I suggest the torts cases as
guides), merit due process protection.
That does not mean that the processes fit for
allegedly subversive employees or allegedly
knowledgeable' witnesses must be the same
as those for allegedly imniora aliens or the
defendant in a criminal case. Cf. id. at 462.
who is merely defamed, degraded, or incrim-
inated at a hearing is concerned." 1,
B. The too pervasive criminal trial analogy
The majority Justices in Hannah are to
be commended for the breadth of their in-
quiry. Though the Louisiana registrars had
been accused of crime, the Court in seeking
analogies did not limit itself to criminal pro-
ceedings. It considered also the investiga-
tory traditions of administrative agencies
and of legislative committees.
Generally, judges (and scholars) assume
too often that the criminal process is a
model for other processes. We say, "Due
process of course must be observed in civil
as in criminal trials, but since civil defend-
ants are not alleged criminals some guaran-
tees (e.g., proof beyond a reasonable doubt)
do not apply." Similarly, licensees merit
still lesser protection; and even less than
that need be granted to prospective licensees,
conscientious objectors, people who are men-
tally ill, Government contractors, and pa-
rolees?all because they are not the accused
in a criminal trial.
Consider the dictum that we test for due
process by seeing whether procedures "of-
fend those canons of decency and fairness
which express the notions of justice of Eng-'
lish-speaking peoples even toward those
charged with the most heinous offenses."10
Consider the recent cataloging of the values
involved in procedural due process as (1)
"Insuring the reliability of the guilt-deter-
mining process," and (2) "insuring respect
(for the dignity of the individual." 1, The
I isolation of that second value is a major
contribution to our understanding of due
process, and may bring us great profit (see
below). The first value,.. however, never
should have been characterized as one cir-
cumscribed by "guilt-determining." What
due process aims for is reliable truth-deter-
raining or, broadly, the reliability of the
determining-making process. (We cannot
use "decisionmaking" because it may im-
ply adjudication, broader than "criminal" but
still too narrow.)
The due process clauses do not restrict all
determination-making by Government.
The, do apply whenever determination-mak-
ing deprives a person of life, liberty, or prop-
erty. The word "deprive" needs emphasis.
It has no kinship to guilt. It does not imply,
"No person shall be deprived [in the way
alleged criminals in medieval England often
were deprived] of life, liberty, or property
Without due process." It rather must be
read, "No person shall be deprived [in any
manner whatsoever] of life, liberty, or prop-
erty without due process."
One gain might be that we no longer would
measure public utilities, TV networks, social
security beneficiaries, schoolteachers, and
juvenile delinquents on the scale of pro-
cedural rights that gives 100 points to alleged
murderers and zero points to an unwanted
12I have thus paraphrased a dictum in
United States ex. rel. Knauff V. Shaughnessy,
338 U.S. 537, 544 (1950) For criticism of
the analysis in the Hannah case see New-
man, supra, note 7.
13Mcdinski V. New York, 324 U.S. 401, 417
(1945).
14 See Kadish, supra, note 3, at 346-347;
supra, note 4, at 99. My criticism of Profes-
sor Kadish's ideas are meant to be tributes,
not complaints. .The process of prescribing
due process might be aided immensely if
scholars were more conscientious in building
on the foundations occasionally laid by out-
standing writings such as the articles of his
I have cited.
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7674 CONGRESSIONAL RECORD ? HOUSE-
Cabinet officiaLls A related gain might be an
awareness that due process sometimes should
give people more rights than criminal pro-
ceedings insure. The fact that pretrial dis-
covery may be narrow in criminal cases, for
example, hardly means that it should be no
broader in hearings on license applications.
Subpenaed civil rights witnesses should not
be estopped from making a case for limited
cross-examination merely because suspects
before a grand jury may. be -denied that
right?,
DUE PROCESS RIGHTS SHOULD BE CLASSIFIED
AND DISTINGUISHED FROM OTHER CONSTITU-
TIONAL RIGHTS
It is difficult to justify a brief filed in the
Supreme Court that begins, "The question
presented is * * * the right of Congress or
the [Civil Rights] Commission to violate un-
der the 14th amendment the rules of fair-
play and the traditional forms of fair pro-
cedure without explicit action by the Na-
tion's lawmakers even if it is possible that
the Constitution presents no inhibition." 17
Literate lawyers at least ought not suggest
that Federal officials are ruled by the 14th
amendment rather than the 5th.
It is also difficult, though, to censure
illiteracies that could well be the result of
the courts' 5th and 14th Amendment con-
fusions. Due process of the 14th amend-
ment includes some Bill of Rights, non-5th
amendment procedure rules and some 1st
amendment substantive rules, but not all of
them. Fifth amendment due process in-
cludes some but perhaps not all of "equal
protection of the law." Both cover void-for-
vagueness; but that doctrine has a unique
role regarding the "preferred" freedoms, and
we never have decided whether it is really
sprocedural or substantive.18
Overlaps are inevitable. . But would it not
help if rights claimed as constitutional were
always, to the extent practicable, wrapped
in the words that are most apt? Thus, if
we seek a right not to be exposed by Con-
gress or a right to be silent or to be let alone,
15 "The discharged Cabinet officer may have
a property interest in his job and in his
reputation, but we want the President to
have an unrestricted power to discharge
him." 1 Davis, "Administrative Law Trea-
tise," 454 n.7 (1958). Do Premier Ben-Gur-
ion's recent struggles re Israeli Defense Min-
ister Lavon suggest that Professor Davis may
go too far? Should a Cabinet officer be de-
fenseless against findings of bribery or sexual
Immorality? If he could show there was no
evidence against him, or no evidence other
than the charges of a confessed liar, relief by
way of declaratory judgment might well be
appropriate. Cf. Gardner, "The Great Char-
ter and the Case of Angilly V. United States,"
67 Harv. L. Rev. 1 (1953) .
10 There are many reasons why grand jury
hearings are more protective than civil rights
hearings. Cf. note, 74 Harv. L. Rev. 590
(1961). On the pretrial point, the Govern-
ment argued in Hannah that "prehearing no-
tice of the contents and sources of allegations
made against them?which plaintiffs claim
is their constitutional right?is not even pro-
vided on the issue of guilt or innocence in
Federal criminal prosecutions." Brief for
appellants, p. 40. Civil rights witnesses,
however, do not benefit from pleading and
trial traditions that protect alleged criminals.
Also, they have not been indicted; and would
it be wrong to assume that there would be
less risk of their fabricating false evidence
than of an indictee's?
17 Appellee's brief in Hannah v. Larche, pp.
1-22; and see p. 85 of the transcript of oral
argument ("the 14th amendment because
they are denying them due process of law").
18See Hand, "The Bill of Rights" (1958);
cf. McWhinney, "The Power Value and Its
Public Law Graduations: A Preliminary
Excursus," 9 J. Pub. L. 43 (1960) .
we need very sophisticated analyses of article
I and the first amendment and the privilege
against self-incrimination, as well as of resid-
ual due process. Relations between due
process and the sixth and seventh amend-
ments ("criminal prosecutions" and "suits
at common law") need. clarification too, as
does the impact of the fourth amendment as
well as due process on "compulsory extor-
tion of a man's own testimony," 10 Even
within the fifth, what is due for grand jury
proceedings may differ, from the implications
of "No person shall be held * * * unless on a
presentment or indictment." And have we
not learned enough about the privilege
against self-incrimination to enable us to
concede that we need not force a man to
forfeit other protections (e.g., procedural
protections) merely because he is about to
be incriminated and -thus may claim the
privilege? 22
To suggest that doctrine and arguments
should be solidly based is far from startling,
and I hope readers will not infer that next
on the agenda is to be a criticism of the
West Digest outlines. Are we not startlingly
ignorant, though, as to the panoply of rules
of due process? Have reasonably adequate
summaries ever been constructed? Has any
judge, scholar, or practitioner ever mastered
those rules in the way that other 'law has
been mastered (evidence, contracts, torts,
and tax, for example) ? Mere wishing for a
summary or a Wigmore or Williston gains
us little, but more imaginative building of
large and small blocks of due process law
could indeed be useful.
A-distinction noted above illustrates the
point. Some due process rules aim to insure.
the reliability of the determination-making
process (e.g., rules requiring cross-examina-
tion and an unprejudiced tribunal). Others
aim at respect for the dignity of the indi-
vidual (e.g., rules against stomach pumping
and cruel punishment). That classification
could vitally affect due process semantics.
"Fairness," for instance, must have an ingre-
dient of efficiency when we test the first
kind of rule (reliability) that normally could
be absent in rules aimed at personal dignity.
And judicial standards such as "hardship so
acute and shocking that our policy will not
endure it" 20 and "protection of ultimate
decency-in a civilized society" 22 seem to fit
the second value better than the first.
The recent Davis "Administrative Law
Treatise" supplies a more than ample base
for classification. If its teachings as to the
administrative process could now be inte-
grated with comparable studies of court
processes (including analyses of contempt
procedure, for example, as well as police,
mental health, and family court procedures,
etc.) the prescribers of due process would
gain immensely.
III. AN ANALYTICAL CHECKLIST MIGHT AID
THE DECIDING OF CASES
Appellate courts are not an audience of
law students. Yet their handling of due
process cases might benefit from the kind of
issue-finding checklist that has helped many
law students analyze difficult examinations.
For when the procedure of government offi-
cials is measured for compliance with due
process, are not these questions relevant?
19 Boyd v. United States, 116 U.S. 616, 630
(1886).
2? See the discussion on pp. 112-113 of the
transcript of oral argumeht in the Hannah
case ("There might not be the necessity for
pleading the fifth amendment if we were
given the opportunity of presenting wit-
nesses."). But cf. In re Groben, 352 U.S.
330 (1957). -
21Palko v. Connecticut, 302 U.S. 319, 328
(1937) .
22 Adamson V. California, 332 U.S. 46, 61
(1947) . ,
May ,9
A. Apart from alleged procedural error,
exactly how did officials harm (or threaten
to harm) complainant in this case?
We have seen that much may hinge on
"deprive"- and "life, liberty, or property."
However interpreted, though, those words
must be tailored to proved facts. Assume
that courts do construe "liberty, or property"
to include freedom from reputational harm.
The precise interests jeopardized still must
be identified in each case, as must the official
conduct that caused the jeopardy.
In Hannah v. Larche the phrase "defame,
degrade, or incriminate" was critical. Yet
whether the registrars truly did risk defama-
tion or degradation was pretty much left to
inference, and the attorneys never did dram-
atize the ways in which the Commission
threatened to deprive the registrars Of the
interests that inhere in freedom from def-
amation and degradation. Similarly, though
the registrars had been subpenaed and thus
risked injury required to be self-inflicted,22
language of the Court implies that subpenaed
witnesses are no different from other people
whom the Commission's activities might
harm.24
The kind of precise portrayal of harm that
may crucially affect a lawsuit is exemplified
by petitioner's brief in Peters v. Hobby.25
"We of course concee," said counsel,. "that
the Constitution does not 'limit the power
of the executive summarily to terminate em-
ployment on secret information or for any
other reason. The question before this
Court is only whether the Government has
the right to accompany a discharge with a
finding of disloyalty which ruins the reputa-
tion and career of the accused, without a
full hearing."24 In other words, the pro-
tested harm was not to job security but to
one's repute as a prospective jobholder.22.
B. Exactly what procedural rights were
granted, available, denied?
Phrases like "notice," "summary proce-
dure," and right to be heard" are -of de-
creasing value in due process litigation.
Sometimes because of their fuzziness they
are provably misleading. Procedural rights
- are bands on a spectrum, and courts ..are led
astray if they have to hazard a guess or ex-
amine the record microscopically to ascer-
tain' which bands merit attention. Too many
briefs and opinions never tell us exactly
What rights were granted the complainant;
to offset those denied, or what rights might
have been available had he made a timely
request.
Hannah v. Larche is disturbingly illustra-
tive. Appraisal, confrontation, and cross-
examination are rights the Court held may
be denied to witnesses. But with respect
to cross-examination was it relevant that
complainants could have submitted to the
Commission questions to be put to their
accusers? With respect to confrontation was
it relevant that all, accusers who were sched-
23 F an example of Commission-sponsored
harm to reputation that had its origins in
compulsorily self-inflicted injury see p. 5 of
the Commission's NPR-44 (Dec. 12, 1958) :
"The election officials recited their excuse
for not testifying in a halting manner, rb-
quiring coaching and prompting from their
attorneys every four or five words."
24363 U.S. at 443. I think this explains
why the Court misconstrued the words of
the injunction. Id. at 429 n. 11 and 444 n. 20.
22349 U.S. 331 (1955).
26 Brief for petitioner, p. 10, Peters v. Hobby,
349 U.S. 331 (1955). Approval of counsel's
concession should not be inferred from its-
quotation here.
27 Cf. Gardner, "The Great Charter and the
Case of Angilly v. United States," 67 Harv. L.
Rev. 1, 21 (1953) ("the circulation of adverse
opinions about Angilly's character was no
part of the duty of the collector's job").
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1963 CONGRESSIONAL RECORD ? HOUSE
uled to testify could, have been confronted?
And with respect to appraisal what really do
we learn from the Court's language: Were
the subpenas sufficient? Was their vague-
ness illuminated by "315 written interroga-
tories"? Is a chairman's "opening state-
ment [of] the subject of the hearing"
enough? Could complainants have been de-
nied the right to hear or read what their ac-
cusers who testified had to say? 23
All conceivable rights need not be sep-
arately arrayed in each case, for red pencil-
ing or blue penciling as to grant, availability,
and denial. A general arraying is useful,
however, and for border zones helps compel
the tougher analyses that too often are
shunned. With an array, judges might even
be able fa. unravel some three-dimensional
complications. In Hannah, for instance,
what should the Court have pronounced as
to secret hearings (which in fact were pre-
scribed by Congress)? If freedom from def-
amation and degradation is "liberty, or
property," should due process for secret hear-.
ings require less severe rules than those for
public hearings (as to appraisal, confronta-
tion, cross-examination, and right, to coun-
sel, for example) ? We are miles from solv-
ing that problem," and by overlooking the
complainants' right to a secret hearing the
Court in Hannah probably has made the so-
lution more difficult.
Finally, an accurate charting of rights
granted, available, and denied would assure
cognizance of some worthy ideas that relate
to the timing of judicial redress. In Hannah
all the judges chose to avoid a holding as
to ripeness and exhaustion of administrative
remedies. But the fact that some issues may
have been ripe 3? does not mean that all
procedural rulings were fixed. Secrecy ver-
sus publicity; the Commission's use of non-
testifying accusers; the value of submitting
questions for the Commission to put to testi-
fying accusers; those are sample issues the
Court never faced. Yet its opinion will en-
courage too many readers to infer that due
process requires none of the rights that
proper analysis of those issues might ensure.
C. To decide the case is it necessary to apply
the Constitution?
A settled doctrine requires that judges
look critically at all statutes and regula-
tions which allegedly permit a process that
allegedly violates due process. "Traditional
forms of fair procedure [must] not be re-
stricted by implication or without the most
explicit action by the Nation's lawmakers,
even in areas where it is possible that the
Constitution presents no inhibition."
There are some traps for the unwary, but
we shall not discuss them here because the
matter ? involves statutory interpretation
rather than due process.
Other doctrines that seem to be less used
in due process cases could have a like impact.
2s For discussion, see Newman supra, note
7.
"Cf. the dissenting opinion in Hannah v.
Larche, 363 U.S. 420, 496 (1960).
= There are not many cases where, for
threatened procedural irregularities, an
agency hearing has been enjoined. .3 Davis
"Administrative Law Treatise," chs. 20 and
21 (1958). The attack in the Hannah case
was directed at procedural rules. They were
"final agency action" within sec. 10(c) of
the APA, 60 Stat. 243 (1946), 5 U.S.C. sec.
1009 (1958); but query whether there was
"no adequate remedy in any court." Cf.
sec. 105(g) of the Civil Rights Act of 1957,
71 Stat. 636 (1957), 42 U.S.C., sec. 1975d ( g)
(1958) . The Solicitor General did not dis-
cuss this issue even though the Department
of Justice had pressed it at the trial level.
3, Greene v. McElroy, 360 U.S. 474, 508
(1959); Clancy v. United States, 81 S. Ct. 645
(1961).
Do they merit more use? The doctrine of
prejudicial error, for example, has a respect-
able history that Congress honored in-the
Administrative Procedure Act." It can be
twisted by compelling a complainant to prove
too much, and a concern for decent gov-
erning may require that it not affect certain
cases (death penalty cases, say). But would
not due process law generally profit from the
kind of precise identification and measure-
ment of procedural harm that we recomz
mended above for substantive harm? Little
damage can result from "Whatever the
bounds of due process, complaint here has
not been prejudiced." 33
Another set of nonconstitutional inquiries
pertains to cases where courts are not the
aggressors against government (as when they
enjoin hearings), but are rather the dispen-
ers of power (as when their aid is sought
to enforce subpenas or other agency com-
mands). In Hannah it was held that due
process did not authorize the enjoining of a
civil rights hearing. ? Might the court have
been more solicitous of witnesses' rights had
the appeal resulted from a lower court's
refusal to enforce a civil rights subpena,
rather than an order which made the lower
court an aggressor? 3?
D. If it is necessary to test for due process
[and again note the need for checking, too,
other clauses of the Constitution], what
authorities have approved,"disapproved, or
proscribed the questioned procedure?
We need not fret here about stare decisis:
Locating all the precedents may be trouble-
some (because of the stunted progress on
classification we mentioned above), but the
course of due process precedent does not
vary from what seems set for most consti-
tutional litigation:
What may distinguish due process cases
is the density of nonjudicial precedent. At
times, the quest for what courts have done
seems almost incidental. That quest is now
complemented by the inquiry, "What pro-
cedures have governments actually used in
matters like this?" The Brandeis brief has
a noble history, and its utility for subjects
other than economic regulation is estab-
lished.= When it is launched full blown
into the fray of due process, however, it
sometimes seems more akin to Stephen Pot-
ter and his gamesmanship than to a dis-
tinguished jurist and his drive for social
reform.
The main trouble with noncourt prece-
dents in procedure cases is that they ap-
proach infinity. An important argument
can begin, "In the FTC, CAB, NLRB, and De-
partment of Interior, for example." Or, "In
23 States public utilities commissions." Or,
"In the juvenile delinquency proceedings
surveyed by the editors of the Indiana Law
Review." Or, "In Queensland, Northern
"Supra, note 30, ? 10(e).
= Cf. Market St. By. v. Railroad Comm'n,
324 U.S. 548, 562 (1945). A prejudicial error
doctrine would not be contrary to the Karl
Llewellyn rule that "once there is a clearish
light, a court should make effort to state an
ever broader line for guidance." Llewellyn,
"The Common Law Tradition: Deciding Ap-
peals," 398 (1960). Does his rule, prescribed
for appellate work generally, apply to all due
process cases? I submit that the potential
harm to government of cases that say "This
and like procedures are had" is much less
than the potential harm to citizens of "This
and like procedures are permissible." (Cf.
the Hannah case.) The reason is that offi-
cials tend to push the borderlines to the citi-
zen's disadvantages in both situations.
3? Cf. United States v. Kleinman, 107 F.
Supp. 407, 408 (D.D.C. 1952).
= See 2 Davis, "Administrative Law Trea-
tise," 354 (1958); cf. Doro, "The Brandeis
Brief," 11 Vand L. Rev. 783 (1858). .
7675
Ireland, and Pakistan." Or, "Compare [or
contrast] the long-established practices as to
allegedly insane criminals in France, Norway,
Nazi Germany, and/or Soviet Russia." And
historical inquiry adds a vast dimension of
time to that of geography.
The Court in Hannah v. Larche thought it
"highly significant that the Commission's
procedures are not historically foreign to
other forms of investigation under our sys-
tem."03 We are then invited to consider:
1. "The first full-fledged congressional in-
vestigating committee. * ? * The develop-
ment and use of legislative investigation by
the colonial governments. ? ? ? The Eng-
lish origin of legislative investigations in this
country. ? * ? The English practice [now]."
2. A "vast majority of instances * * ?
[where] congressional committees have not
given witnesses detailed notice or an op-
portunity to confront, cross-examine and call
other witnesses."
3. "The history of investigations con-
ducted by the executive branch of the
Government."
4. Processes of the FTC, SEC, AEC, FCC,
NLRB, OPS, OPA, FDA, Department of Agri-
culture, Tariff Commission, and "many of
the most famous-presidential commission.
5. "The oldest and perhaps, the best known
of all investigative bodies, the grand jury."
That is an impressive list?though more
agencies could have been added, of course,
as well as , State and Commonwealth
precedents.
What causes pause is that the research
required to document that kind of survey
can be quite taxing. And there is evidence
that the lawyers and clerks who aided the
Court in Hannah did not tax themselves
sufficiently." Public administration research
and historical and comparative research de-
mand a scientific method; and findings that
are accurate, complete, valid, and reliable
are not easily assured.
The decade of the 1960's is hardly a time
for arguing that tough due process cases
should be decided without reference to the -
practice of other tribunals, other govern-
ments, other eras. We must recognize,
nevertheless, that the data collected will
tend to be anecdotal even if they are trust-
worthy. "[T]he considerations of fairness
that reflect our traditions of legal and polit-
ical thought." 3? are often elusive, and the
amassing of citations which purport to il-
lumine those traditions sometimes adds little
light indeed.33
" 363 U.S. at 444.
"See Newman, supra, note 7.
3? Frankfurter, J., concurring in Hannah v.
Larche, 363 U.S. 420, 487 (1960).
33 Professor Kadish perceptively describes
and evaluates the "criteria for interpreting a
flexible due process." Kadish "Methodology
and Criteria in Due Process Adjudication?A
Survey and criticism," 66 Yale L.J. 319, 327,
344 (1957). He concludes, "the Court has
[regarded] * * * its' function as one of
passively applying moral judgments already
made, rather than as one of actively making
new moral decision." Id. at 344. He does
not fully explore "whether the Supreme
Court is institutionally equipped to ascer-
tain and evaluatethe complex factual data
necessary for rational decisionmaking." Id.
at 359. But his inquiries into "the data
of comparative legal systems" (p. 354) and
"the use of knowledge outside the record" (p.
359) lead me to wonder, Are mountainsof
data ever likely to be truly as enlightening,.
as an insistent focus on good sense? He
searches for "the effect of an added risk of
misdeterminations if certain procedures are
sanctioned, and * * the effect of not per-
mitting an attenuation of those procedures."
(p. 353). That is a -scholarly definition of
what I have loosely labeled "efficiency."
In the Hannah ease, I believe, the Court was
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E. Exactly how would efficiency be affected,
in this and similar proceedings, if com-
plainant's request were allowed? (herein
of deference)
Even if "traditions of legal and political
thought" have been revealed, they need be
"duly related to the public interest Congress
sought to meet ** * as against the hazards
or hardship to the individual that the * * *.
[attacked]procedure would entail." 4? Gos-
pel truths are that due process shields us
from other public interests and that the
other interests give way whenever "the
hazards or hardship to the individual" loom
too large.
This article will not explore the issues of
deference and balancing that perplex judges
When they apply first amendment due
process, or aim to ensure "respect for the
dignity of the individual." Instead, we
ask if those issues demand the same artic-
ulation when judges seek to preserve what
? we labeled above "the reliability of the de-
termination-making process.!' If the public
interest, for example, is to keep movies clean
and to imprison dope addicts, prior censor-
ship and stomach pumping may or may not
be constitutional, given a court's view of
fundamental rights and individual dignity.
But prior censorship and stomach pumping,
per se, are not unreliable. They can be effi-
cient truth-determining techniques, whether
or not lawful.
When we permit censorship and testing of
the human body, however, the procedures
often must be checked for reliability. Thus;
each exhibitor ought to be allowed to argue
that his movie should not be censored, and
the questioning of physiologists' techniques
(e.g., on blood tests) should be permitted, be-
cause we know that arguing and questioning
may well expose error arising out of those
procedures.42
'What truly is the public interest in proce-
dure itself (or more precisely, in the pro-
cedures that may lead to depriving people
of their life, liberty, or property)? Is it not
to insure that correct determinations will
be made (and thus only the deserving de-
privations be effected) , except where some
margin of error seems eskntial to avoid ills
that inhere in procedure (e.g., cost and de-
-,? lay) ?
To illustrate: The public interest in cen-
soring dirty movies might be jeopardized if
the only available procedure were trial by
jury; and too few drunk drivers might be
so bogged in data that its members never
did exploit their own good sense on how
complainants' requested rights might have
affected the efficiency of the Civil Rights
Commission. Another example is Anony-
mous v. Baker, 360 U.S. 287 (1959). Since the
investigator there "expressed his readiness
to suspend the course of questioning when-
ever appellants wished, to consult with coun-
sel" (id. at 28), exactly how would efficiency
have been hurt if counsel had been allowed
to observe the proceedings?
45Frankfurter, J., concurring in Hannah
v. Larche, 363 U.S. 420, 487 (1960) .
41 See Hand, "The Bill of Rights" (1958).
450n blood tests, compare the court of ap-
peals opinion in United States ex rel, Lee
Kum Hoy v. Shaugnessy, 237 F.2d 307, 308
(2d cir. 1966) ("the data * * established
conclusively that Lee Ha could not be the
father"), with the Supreme Court's per
curiam notation that remand was necessary
because "the blood grouping tests made
herein were in some respects inaccurate and
the reports thereof partly erroneous and con-
flicting," 355 'U.S. 169, 170 (1957) . Cf. In re
Newbern, 175 Cal. App. 2d 862, 1 Cal. Rptr.
80 (1959); and see Littel.and Sturgeon, "De-
fects in Discovery and Testing Procedures:
Two Problems in the Medicolegal Application
of Blood Grouping Tests," 5 U.C.L:A.L. Rev.
629 (1958).
punished if every government breath-test-
er could be subpenaed and cross-examined as
to the conditions surrounding his breath-
test. Yet censors and testers err, as do all
government officials; and centuries of rev-
olution and war warn us that too much
error is intolerable. The problem is to set
the margin of tolerable error, given the ills of
too much procedure. (That margin is usual-
ly minimized, of course, by the inventiveness
of lawmen who demonstrate that devices
such as preliminary injunctions can avoid
the harm of dirty, movies, pending a truth-
seeking trial, and that allowing a man's own
doctor to repeat a health official's test is a
check on accuracy that raises hardly any of
the questions which trouble us as to cross-
examination of health officials.)
In due process cases there are these critical
questions: (1) Exactly how would ':efficien-
cy" be affected, in this and similar proceed-
ings, were complainant's request for pro-
cedural rights allowed? (2) Should courts
make that determination or should other
officials?
The Civil Rights Commission's assignment
is to submit reports to the President and
the Congress. Those reports are to "appraise
the laws and policies of the Federal Govern-
ment with respect to equal protection of the
laws," and the Commission is directed to
"study and collect information concerning
legal developments constituting a denial of
equal protection of the laws." The public
interest is manifest; and efficiency would
suffer if the Commission, after it had studied
sociological and statistical reports and law
review articles, say, were required to notify
interested citizens of a grand hearing to be
convened at which the authors of those re-
ports and articles could be cross-examined.
The band of Commission error that thus
might be exposed is far less significant than
the obvious ills of that procedure; and the
right to petition the Government (as well as
advising one's legislators, participating in
congressional hearings, etc.) seems sufficient
for keeping the margin of error low.
The Commission is further directed, how-
ever, to "investigate allegations in writ-
ing * ? * that certain citizens of the United
States are being deprived of their right to
vote and to have that vote counted by rea-
son of their color, race, religion, or national
origin; which writing, under oath or affirma-
tion, shall set forth the facts." The public
interest implied in that directive relates to
evildoing?the kind of evildoing that may
first, persuade Congress to enact law; and
second, persuade the President that he should
either (A) encourage Congress to enact law,
or (B) advise his Attorney General or other
subordinates of a possible need for appropri-
ate action. Quite clearly, Congress no longer
was satisfied with the type of informal ac-
cusations that normally are adequate for
legislating. Apparently too, Congress was not
satisfied that the Attorney General and other
policemen knew enough about existing viola-
tions of law. So sworn accusations were
called for, setting forth "the facts"; and the
Commission was directed to investigate
them. As LYNDON JOHNSON said on the floor
of the Senate, "It can gather facts instead
of charges; it can sift out the truth from
the fancies." 45
What of efficiency? During the year end-
ing in August 1959, the Commission received
approximately 240 accusations involving 29
? counties in 8 states.44 By February 1960, at
least 86 more had been filed, involving 4
additional counties.45 The Commission
43 103 CONGRESSIONAL RECOFtD 126637 (daily
ed., Aug. 7, 1957).
441959 Report of the Comtaission on Civil
Rights, 55.
45106 CONGRESSIONAL RECORD 3405 (daily
ed., Feb. 27, 1960).
favors "full investigations," 46 which ap-
parently means careful study, field inter-
views, and?on rare occasions?hearings.
This seems clear: To advise every accused
evildoer that he has been accused, to tell
him who accused him, and/or to permit him
to cross-examine his accusers might be too
complicating, too delaying, too costly.
What if the accused is subpenaed, how-
ever, to testify regarding an accuser's testi-
mony at a public hearing? Would it be in-
efficient to let him know generally what the
Commission was after, what kind of examina-
tion he would be expected to face, what evi-
dence he should be ready to produce? Would
it be inefficient before he testifies to let him
sit with the public as a spectator? Would
it be inefficient to allow him a limited right
of cross-examination, or to submit questions
for the Commission to nut to his accusers?
Those are questions Hannah v. Larche did
not answer, and they illustrate a variety of
questions that ought to have been answered.
They relate to the reliability of the deter-
mination-making process. One can ask
whether the margin of error that might have
been minimized by the rights postulated,
for that kind of civil rights hearing, would
truly have been offset by the ills that some-
times might accompany such rights.
That weighing of procedures' efficiency
leads to the question, Who decides? When
should courts defer to the judgment of the
legislature? Of the Chief Executive? Of
Cabinet officials? Of policemen, prosecutors,
prison wardens, psychiatrists? If we sought
only "the considerations of fairness that re-
flect our traditions of legal and political
thought, duly related to * * * the hazards
or hardship to the individual that the * * *
[attacked] procedure would entail," judges
ought to be paramount.47 When we also
seek "the public interest," however, so that
it too can be balanced With the traditions
and the individual's interest, efficiency is the
new ingredient. The play between proce-
dure and the goals of government becomes
crucial, and the epic of administrative law?
in New Deal years especially?resounds with
reminders that courts' views of efficiency are
often believed to be heedlessly frustrating.
Even so, the case for deference by judges is
weakest when procedural due process is at
stake; and these observations seem note-
worthy:
First, the legislature is often the antag-
onist in litigation that involves economic
controls, equal protection, censorship, and
other substantive questions. In procedural
due process cases, contrastingly, courts
hardly ever have to declare a statute un-
constitutional. For legislatures rarely say,
"This is the procedure we want used." In-
stead they broadly delegate procedure-
making authority, and the result is that
courts then war with lesser bodies than the
legislature itself. Even when a statute is
voided that says to an agency, "You may
if you wish deny the right to cross-examine,"
the effect is different from the voiding of a
statute providing, "Cross-examination must
not be allowed, for the public interest then
would suffer." That latter statute is atyp-
ical. ?
46 1959 Report of the Commission on Civil
Rights, 55.
41 But cf. Norwegian Nitrogen Prod. Co. v.
United States, 288 U.S. 294, 321 (1933) :
"Since a hearing is required, there is a com-
mand by implication to do whatever may be
necessary to make the hearing fair. A duty
so interdeterminate must vary in form and
shape with all the changing circumstances
whereby fairness is conditioned. The appeal
is to the sense of justice of administrative
officers, clothed by the statute with discre.
tionary powers. Their resolve is not subject
to impeachment for unwisdom without more.
It must be shown to be arbitrary."
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1963 CONGRESSIONAL RECORD ? HOUSE ? 7677
Second, administrators (and investigating
committees, grand juries, and in fact all
lesser officials with jobs to do) have demon-
strated, I think, that they are less trust-
worthy with respect to procedure than are
judges. I refer not merely to the abuses
of loyalty-security, the pillorying of peoples'
reputations, illegal police practices, or other
histories of arbitrary action. Nor ?would I
add only the reminder of Justice Douglas
In Hannah that "Men of good will, not evil
ones only, invent, under feelings of urgency,
new and different procedures that have an
awful effect on the citizen." I am more
Influenced by the fact that administrators
too often have cried, "Wolf, wolf." Too
often, for example, have government attor-
neys pleaded that to grant rights requested
by the complainants would wreck ?their
agency's program?when, following defeat in
court, it becomes obvious that the threats
were posh. Even in the Supreme Court,
where governments have such great resources
for winnowing out their borderline cases, is
it not astonishing that the Solicitors Gen-
eral (and their State counterparts) so fright-
eningly often have been wrong on what fun-
damental fairness requires? And how in-
adequate, empirically, have been their hun-
dreds of awful-consequence predictions re-
garding the efficiency and effectiveness of
government business.
Judges are sometimes wrong, too. And it
. may be that a few decisions are making a
few criminals' lot a happy one, or that ap-
pellate judges as a group still are too eager
to impose court rules on agencies whose tasks
call for a modified process and a freedom to
experiment. In bulk, though, the sins of
judges who aimed to insure due process
surely have- been overbalanced by the sins
of bureaucrats who?conscientiously, vigor-
ously, in good faith we assume?seek means
that at first glance appear the least disrup-
tive to their immediate ends.- Too few ad-
ministrators have acknowledged that "due
process of law is not for the sole benefit of
an accused ? ? ? rand] is the best insurance
for the Government itself against those
blunders which leave lasting stains on a sys-
tem of justice."
IV. WHO COULD SPEARHEAD REFORM, HOW?
The people who prescribe due process are
nearly always adjudicators?administrative
or judicial. In their adjudications they ex-
amine procedure to see if it is constitutional.
On occasion, agencies and trial judges set the
law of due process (e.g., when a body like the
NLRB declares, "No less than this does due
process require."). But appellate courts are
paramount, of course; the Supreme Court,
preeminent. Inevitably this article treats
45 363 U.S. at 507.'
" Shaughnessy v. Meiei, 345 U.S. 206, 224-
225 (1953) (dissenting opinion); cf. Gell-
horn, 'Changing Attitudes Toward the Ad,'
ministrative Process," in "Individual Freedom
and Governmental Restraints," ch. 1 (1956) .
For further comment on deference and due
process see Kadish, "Methodology and Cri-
teria in Due Process Adjudication?A Survey
and Criticism," 66 Yale L.J. 319, 358-359
(1957; cf. id. at 337 n. 114 ("In the area of
procedural due process " ? [Justice Frank-
furter] seems to be asserting a doctrine that
increases, rather than decreases, the latitude
of discretion open to the Court in adjudicat-
ing constitutional issues.") . Learned Hand,
who recently admonished that the court's
duty of deference must not be denigrated,
seems to categorize procedural due process
separately. Hand, i`The Bill of Rights," 44-
45 (1958) . It is significant that the widely,
distributed pref act to Davis, "Administra-
tive Law Treatise" (1958) , which documents
Supreme Court misfeasances by citing chap-
ter and verse, complains of no procedure
cases? Cf. 2 id., sec. 16.10; 1 id. 471 (discusses
efficiency without mention of deference) .
of that Court's problems. Its process for pre-
scribing due process is emulated by other
prescribers, and the target of reform is there
if the process be deficient.
Whether legal writings point the way to
reform is not always a test of their utility.
Some of the best do not aid reformers but
rather contribute to knowledge, understand-
ing, or their readers' enjoyment. Yet aid to
reform is a valued goal, and provides an
interesting test for what Erwin Griswold has
'called "the current chapter in the long his-
tory of criticism of the Court." 5?
The message in most of the newer criti-
cism is that the nine Jnstices who comprise
the Court themselves bear responsibility for
its ills. If we imagine, for instance, a con-
scientious, newly appointed Justice who is
?eager to fashion the image toward which he
should strive, he would learn from careful
study of the recent critiques that he and his
colleagues should be wiser, more lawyerlike,
more statesmanlike, more perceptive, more
efficient, less dilettante, less opinionated,
more or less worldly, more or less consistent,
more or less unanimous, etc. (He would also
learn that the mere reading Of all those books
and articles probably fouled up his time
chart.) '
? Here we deal only with procedural due
process, and that topic is not how the Court
should manage its business or how the Court
should handle constitutional law. But we
have considered reforms, and an identifying
of possible reformers seems fitting. What is
clear is that we will delude ourselves if we
,assume the Court alone has the burden of
Improvement.
Questions this article has posed relate, for
example, to "good lawyering." Is not that
attribute one which in the Court is far more
institutional than personal? Are not crafts-
manship and understanding far less depend-
ent on the conscience and will of nine Jus-
tices than on the presented product of coun-
sel, trial courts, law clerks, other
participants? In Hannah, for instance,
though the case was terrifically complex, the
opinions and the Justices' comments in oral
argument show an awareness of issues and
of law that was nowhere near matched by
counsels' briefs or arguments. Who, then,
Is to blame for missing some of the subtle
points discussed above (particularly when
we see that Hannah was announced the same
day as Aquilino, Durham, Locomotive Engi-
neers, Annheuser-Busch, Metlakatla, three
Steelworkers cases, Flemming v. Nestor,
Miner v. Atlas, Schilling, American-Foreign
Steamship, Hudson, and Cory Corp. v. Sau-
ber 51) ?
Thruman Arnold's comment that the Su-
preme Court opinions "rank higher than the
articles which appear in the Harvard Law
Review" is worth pondering.52 Do not cur-
rent attacks on the Court, even when "based
on understanding and respect and designed
to assist the aourt with its great and difficult
task in our constitutional system," 55 tend to
reach for a perfection that no nine Justices,
law professors, Wall Street lawyers, or men
or angels could ever attain? Improved
lawyering and sounder analyses and new
lines of inquiry and efficient procedures must
be institutional goals. Our worst sin as
critics has been an unscholarly premise that
some outstanding men named Warren,
Frankfurter, Black, et al., somehow should
take on an assignment that in -fact must
largely be ours and many others'.
The problem of court reform is reminis-
5? Griswold, foreword, "Of Time and Atti-
tudes?Professor Hart and Judge Arnold," 74
Harv. L. Rev. 81, 82 (1960).
" See 363 U.S. 509-721 (1960).
52 Arnold, "Professor Hart's Theology," 73
Harv. L. Rev. 1298 (1960).
"Griswold, "Foreword: Of Tome and Atti-
tudes?Professor Hart and Judge Arnold,"
74 Harv. L. Rev., 81(1960).
cent of problems of influence peddling.
There the initial cry was for improved ethics
in the regulatory agencies. Then it became
clear that the issues were really quite com-
plex and that some of the boldest critics?
Congressmen and lawyers?were themselves
deeply involved. Influence peddling prob-
lems still are mostly unsolved; but we have
learned that agencies' codes of ethics are only
piecemeal solutions, and that self-reform
within Congress and the bar may be much
more critical.
Consider similarly the aches of investigat-
ing - committees. We first pitted the good
guys against the bad and hoped that sensible
middlemen (Senators George and MCCLELLAN
say) would restore law and order. Then
we discovered that voters and newspapermen
and thus politics were involved, and that fair
committee procedure called for sophistica-
tions which only members of the bar could
supply. The response of lawyer-planners
and lawyer-draftsmen Was excellent; and if
more lawyer-statesmen had responded com-
parably (with the kind of lobbying campaign
that is now being waged for professional
men's tax benefits, say), we might have
achieved for investigating conamittees a more
impressive code than the House of Repre-
sentatives' fair play rules." (And who knows
what impact that victory might have had on
Hannah v. Larche? 0)
The influence peddling and investigating
committee analogies show what can be done
when less attention is given to "Here is what
you the commissioners (or you the Congress-
men) should do" than to "Here is what we
the lawyers must do." The procedures of
Congress provide a model too where critics
finally 'realized that "Here is what we the
professors must do." The Legislative Reor-
ganization Act of 1946 is in large part a prod-
uct of political scientists, after years of
learned but unheeded scholarship as to legis-
latures' organizational deficiencies."
Institutionally what might be done to im-
prove the process of due process? As noted
above we need a superior literature, which
presses for precise definitions and what Karl
Llewellyn calls "the structuring of whole
fields and ? a a the sweating of clarity out
of tangled lumps of 5. or 15 or 50 or
a hundred and fifty cases. * * * [For] it is
the scholar who must carry the load first of
stumppulling and then of dreaming of sweat-
ing up intelligible tentative drafts of sound
design." 57 The need for that literature (and
for efficient guides to its use, instead of our
self-deceiving "Index to Legal Periodicals")
should help keep us humble. No one can
pretend, however, that the need is likely to
inspire any foundation-sponsored or other
project that in the foreseeable future could
bring us closer to a better due-process
process.
For measurable gain we must seek less re-
mote proposals, such as Dean Griswold's sug-
gestion that "the bar should take the lead in
developing legislation which will reduce the
burden on the Supreme Court" 58 The pro-
posal I discuss now relates to the bar, par-.
ticularly to traditions of advocacy that seem
fixed for due process litigation (and, I sup-
pose, most Court litigation).
54 See, Newman, "Some Facts on Fact-Find-
ing by an Investigatory Commission," 13
Admin. L. Rev.?(1961).
55 Cf. Newman, supra, note 7.
See Galloway, "The Operation of the
Legislative Reorganization Act of 1946," 45
Am. Pol. Sei. Rev. 41 (1951).
LleWellyn, "The Common Law: Deciding
Appeals," 346 (1960).
55 Griswold, "Foreward: Of Time and Atti-
tudes?Professor Hart and Judge Arnold," 74
Harv. L. Rev. 81, 85 (1960); cf. Arnold, "Pro-
fessor Hart's Theology," 73 Harv, L. Rev.
1298, 1300 (1960) ("How Professor Hart pro-
poses to reform the bar he does not say.").
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7678 CONGRESSIONAL RECORD ? HOUSE
If we must identify the mortal sinners in
the due-process prescribing process, I nom-
inate the lawyers for plaintiff and defendant.
Their time chart is less compulsive than the
Justices'; and they surely are most at fault
when items on the checklist are unchecked,
when exact harms, exact procedures, exact
precedents are unidentified. A choice ex-
cerpt from one of the Hannahs briefs (con-
fusing 5th and 14th amendment due process)
was quoted.above. A score or more other ex-
cerpt from one of the Hannah briefs (con-
argument why was the Court misled, for in-
stance, as to the practices of congressional
committees, the understanding of the Corn-
missicin as to its duties re executive sessions,
the Commission's interpretation of "defame,
degrade, or incriminate"? "
The plain truth is that the Court does not
benefit from what excellent advocacy could
insure, just as it does not benefit from what
excellent scholarship could insure. The
temptation, therefore, is to conclude that
lawyers must study-the facts and law more
carefully, write better briefs, prepare more
painstakingly for _oral argument. Unhap-
pily, that has the same unreality as does
telling scholars.that the quality of texts and
articles ought to be improved. Of course we
need superior advocacy, but recognizing the
need does not make the prospects of improve-
ment less remote.
So, again, are we reduced to pontification
that the true call is for a better bench, a
better bar, better law schools?just as some
critics argue that to control influence ped-
dling and investigating committees we must
elect better legislators and hire better men
in Government? One hopes that less radical
cures might be developed; and it Is with
respect to advocacy that one cure might be
practicable, I believe.
When due process is prescribed, law is
made?procedure law. Facts and arguments
which influence that lawmaking are in part
the same facts and arguments which would
have influenced noncourt lawmakers?legis-
latures, agencies, judicial conferences, other
groups that reform procedure law. The
techniques for presenting facts and argu-
ments, however, are phenomenally dis-
similar. For in the process of prescribing
due process we rely almost entirely on the
talents and resources of two parties' lawyers.
To the comment, "Isn't that true for all
judicial lawmaking?" I must reply, "Yes."
And perhaps the process of all judicial law-
making needs reforming, so we could bring to
judges the wisdom and insights that are the
product of procedures in statute making
and rule making. I stress, though, three
facts that may call for accelerated action on
due-process process.
First. In due-process cases most private
lawyers do not enjoy the competence that
may mark their presentation of other cases.
As a result, courts. do not benefit from the
high-quality lawyering that can aid tax law,
labor law, criminal law, the law of the press,
other subjects. Even civil liberties lawyers
tend to be better informed on first amend-
ment rights than on most due-process rights.
Second. Government lawyers, on the other
hand, are able to acquire due-process ex-
perience; and the fee and expense limits
that in many cases confine private lawyering
are not paralleled in Government. The two
teams of lawyers, therefore, are not evenly
matched; and the courts suffer. If Govern-
ment advocates were statesmen, lit to guide
judges wisely through labyrinths of right-
eousness, their competence would be a bless-
ing. The facts, sadly, show that solicitors
general and their counterparts are not per-
mitted such a role. For their counsel is
sought not when other officials wish to design
a procedure, so that. the lessons of "the
"See pp. 43-45, 50-58, and 93 of the tran-
script.
very essence of a scheme of ordered liberty"
may be put to good use. Rather.they answer
calls of alarm. They are shock troops to be
rushed in when %a lawsuit impends. Their
job, with awful consistence, is to demon-
strate that a procedure already set is really
legitimate, though they and other lawyers
(and people who designed the procedure,
even) might now concede that de novo a.
more fair procedure should have been de-
signed.** One shudders at the thought of the
arbitrary governing that now might be our
heritage if judges, year after year, decade
after decade, had been overly impressed by
the due-process expertness of Governments'
advocates.
Third. Procedure (the kind of procedure
that is used to deprive people of life, liberty,
and property) is peculiarly a lawyer's topic.
In other fields there are businessmen and
churchmen and doctors and engineers for
whom lawyers speak. Those people can be
concerned with procedure, but even when
substance is deeply affected (as in the com-
mitment of juvenile delinquents or the men-
tally ill, say) the legal profession does not
forfeit its eminence.
In typical cases, however, lawyers for the
man deprived of life, liberty, or property
may share too little of their whole profes-
sion's lore; lawyers for the Government, too
much. Should not courts insure a better
balance by seeking from the profession aids
to wisdom that the bar as a whole (lawyers
and professors) could provide?
The best discussion of extra manpower
that I know is Karl Llewellyn's; and his com-
ments on the lower courts and counsel, the
judge's law clerk, and outside experts merit
attention." I wish he himself had given
more, attention to the amicus brief. "IR] e-
questing or inviting, on occasion, an amicus
brief ? * * has been little institutional-
ized," he says, "and if institutionalized un-
wisely it could turn into an abuse,; but the
idea has much merit, for occasional use, espe-
cially when light is needed on situations
technical and relatively unfamiliar to the
court."
He wrote mostly of private law. With re-
gard to due-process law, for which thefl bar
has a unique bent, should we be so cautious?
A flood of amicus briefs might rub rawly too
many sensitive issues in commercial law, per-
haps, or all constitutional law. But one of
these days we will have to face up to the
arbitrariness and need for a right to petition
and right to be heard in judicial lawmak-
ing," -and is not due process a fertile first
field for experiment and expansion?
Why should not lawyers and law profes-
sors?individually, for clients, for ABA, AALS,
ACLU, and other groups, for governments?
articulate via amicus briefs a concern with
**I have been advised that the Government
lawyers responsible for arguing the -Hannah.
case were so set on victory that they sought
out potential amid (who were contemplating
the filing Of a brief possibly like the Douglas-
Black dissent) and persuaded them not to
file.
"Llewellyn, "The Common Law: Deciding
Appeals," 317-332 (1960). Some of the most
objectionable language in the Court's Han-
nah opinion was inspired by pp. 18 and 35
of the Government's brief.. See text preced-
ing note 10, supra.
"Llewellyn, "The Common Law: Deciding
Appeals," 323 (1960). .
"See Weintraub, "Judicial Legislation,"
N.Y.L.J., Mar. 19, 1959; cf. Mitchell v. Trawler
Racer, Inc., 362 U.S. 539, 571-572 (1960) (dis-
senting opinion); Wyat-' v. United States, 362
U.S. 525, 535 (1960) (dissenting opinion);
NLRB v. E. & B. Brewing Co., 276 F. 2d 594
(6th Cir. 1960); George R. Currie, "Appellate
Courts Use of Facts Outside of the Record
by Resort to Judicial Notice and Independent
Investigation," 1960 Wis. L. Rev. 39.
May: 9
due process procedure law that matches their
variously demonstrated concerns with all
other forms of procedure law? We have
taught ourselves that committee reports and
scholarly writings, alone, do not sufficiently
influence lawmakers and that reform activ-
ity, to be fruitful, has to be packaged effi-
ciently. For courts is not the best package?
comparable to appearance at a legislative or
rulemaking hearing or an office conference
with legislators or administrators?the ami-
cus brief?
What would such briefs add? The writers
could be lawyers whose interest was not con-
fined to (1) this particular case, or (2) en-
suring victory for the Government in this
and similar cases. 'Their contribution
could reflect some of that maturing of col-
lective thought which perhaps cannot be as-
sured by the Bench itself." They could test
counsels' arguments for compliance with the
checklist (which thereby would become
sharper, more complete, more useful) . They
could supply the breadth of view we need to
expose privilege doctrines, too pervasive
criminal trial analogies, and other doctrinal
dead ends. Their ideas would not be molded
to victory or defeat," and their grand strat-
egy less likely would involve aims extrane-
ous to due process." They could also focus
for courts' attention some rather good ideas
In legal writings that now, too often, are
entombed. (In Hannah the opinions cite
none of the leading texts or articles on cross-
examination, and only one of the scores of
recent articles that discuss investigating
committee procedures.)
Those are potential gains, speculative but
not insignificant. They might call for some
management planning, though by no means
do I recommend any souped-up, centrally
?controled, amicus brief filing body." Free
enterprise and sometimes even brashness are
to be encouraged (which, incidentally, may
require for academic life a vigilance to be
sure that young teachers do, not write ar-
ticles instead of briefs merely to get their
publish-or-perish credits).
CONCLUSION
In short, the due-process process calls for
altertness as to the deficiences of both doc-
trine and mechanics. It calls for awareness
that the job of whittling away at those defi-
ciencies is too vast for nine Justices. Re-
forms that a thousand others of us must
effect are needed, and an expanded amicus
tradition might be one useful reform.
The Justices bear some responsibility.
When parties' briefs are insufficient post-
ponements can be ordered; and there are
many precedents where the attorneys have
been directed to discuss Court-framed ques-
tions, where agencies have been asked to in-
terpret documents or describe their practices,
Where comments of independent counsel
have been sought. The Court might even
Impose some minimum standards for -due
" Cf. Hart, foreword, "The Time Chart of
the Justices," 73 Harv. L. Rev. 84 (1959) .
" While preparing a mock petition for re-
hearing in the Hannah case I discovered that
my avowed "concern for rationality in the
law of due process" was consistent with
neither appellants' nor respondents' aims.
Both sides would have opposed my suggested
conclusion. See Newman, supra, note 7.
"In the cold war now being waged on
desegregation and other racial issues, what
really are the stakes in a dispute regarding
technicalities of the procedure of one not
very powerful Federal investigatory agency?
"Cf. Freedman, "Promoting the Public
Welfare: A Proposal for Establishing a Peo-
ple's Advocate," 43 A.B.A.J. 211 (1957) ; Kad-
ish, "Methodology and Criteria in Due Proc-
ess Adjudication?A Survey and Criticism,"
66 Yale L. J. 319, 363 n. 198 (1957) (references
to "a research body which would make de-
termination of constitutional facts").
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1963 " CONGRESSIONAL RECORD ? HOUSE 7679
process advocacy, to insure that lawyers do
not ignore items on a checklist or that they
detail their quarrels regarding fact (adjudi-
cative and legislative) as well as the law
theories they espouse. Especially, the Court
should not jeopardize its own due process
by restrictive application of its amicus rules."
It is not a committee of Congress, and it
owes no duty of graciousness to all advocates
who may wish to file or read statements. It
is part of "the Government," nonetheless,
and "to petition the Government" for better
due process (whether or not a first amend-
ment right) is a right the Court surely should
encourage when its own work might profit.
A final word relates to social significance.
With respect to procedure law in general, it
can be argued that appellate courts are not
the best forum for reform and that reform-
ers' limited energies,- therefore, should be
aimed at revised statutes, revised regulations,
revised court rules. That is certainly true
as to civil procedure and a- great deal of
criminal and administrative procedure. The
big regulatory agencies, for example, rarely
have any due process troubles; and a whole
new Administrative Procedure Act can be
drafted with only minor reference to the
rules of due process.
There are immense areas of government,
however, 'where much law, is due process
law?where crucial statutes, regulations, and
rules are either nonexistent or unconstitu-
tional. Many criminal proceedings, loyalty-
security proceedings, mental health proceed-
ings, traffic court, juvenile court, and family
court proceedings illustrate the point. The
officials engaged in those activities are not
constantly perturbed by due process opinions,
but there is ample evidence that those opin-
ions do have an enormous impact."
? Yet even more critical than an impact
on administration is the impact on reform
itself. We tend to regard due process opin-
ions mostly as warnings to policemen or
trial judges or agency officials?telling them
what appellate courts won't let them do.
Those warnings themselves effect many re-
forms. (E.g., "We'd better change the rules,
because Olympus says we're not supposed to
do that anymore.") The greater effect,
though, pertains to statutes, 1;egulations, and
rules that are new and more comprehen-
sive!" Reformers of -those less explored pro-
ceedings I just mentioned (loyalty-security,
traffic court, juvenile court, etc.) do not only
Inquire "What must we avoid to keep the
new procedures constitutional?" They also
68 Cf. Knetsch v. United States, 81 S. Ct.
132, 137 (1960) ("Some point is made in an
amicus curiae brief of the fact that ? ? ?
[petitioner] in entering into these annuity
agreements relied on individual ruling let-
ters issued by the Commissioner to other tax-
payers. This argument has never been ad-
vanced by petitioners in this case. Accord-
ingly, we have no reason to pass upon it.").
Would more flexibility on rehearings be de-
siderable? Cf. Louisell and Degnan, "Re-
hearing in American Appellate Courts," 44
Calif., L. Rev. 627 (1956). Generally, see
Swisher, "The Supreme Court and the 'Mo-
ment of truth,'" 54 Am. ? Pol. Sci. Rev. 879,
884 (1960).
e? Two years ago, reviewing the Davis "Ad-
ministrative Law Treatise," I stated that
"Agency rule makers and adjudicators do
pay considerable attention to statutes, but
if Professor Davis believes they are regularly
influenced by Supreme Court opinions I be-
lieve he is mistaken." Newman, "The Lit-
erature of Administrative Law and the New
Davis Treatise," 43 Minn. L. Rev. 637, 642
(1959). I now believe that I was mistaken,
assuming that (1) we do not overly stress
the word "regularly," and (2) administratiie
law includes the whole sweep of government
and not merely those proceedings that are
the focus of most law practice before agen-
cies.
ask, "For ideas as to procedure why don't
we consider the due process precedents?"
And often they add, "Why as a matter of
policy should we require more than due proc-
ess requires?? For the cases tell us what is
'fair,' and who are we to seek more than
fairness?" 7?
Hannah v. Larche, for example, reminds us
that "due process embodies the differing
rules of fairplay, which through the years,
have become associated with differing types
of proceedings." The proposals there re-
jected, we are told, "would make a shambles
of the investigation and stifle the ? ? ?
gathering of facts." "[T]he investigative
process could be completely disrupted. ? ? *
Factfinding agencies * ? ? would be diverted
from their legitimate duties and would be
plagued by the injection of collateral issues
that would make the investigation inter-
minable."n Should reformers disregard
those prestigious predictions? Or is it pos-
sible that the Court's inquiry in this single
case may have greater effect on the whole
course of investigatory reform than will a
vigorous decade of scholarly research and
writing?
The process of prescribing due process
thus may even dominate reform. Efforts to
improve its effectiveness could be widely re-
warding indeed.
The CHAIRMAN. The Chair recog-
nizes the gentleman from California
[Mr. ROOSEVELT].
Mr. ROOSEVELT. Mr. Chairman, if
the amendment of the gentleman from
Pennsylvania is not adopted it will be-
come very obvious that we have been
unable to improve this bill on the floor
this afternoon. In that case, I think
it becomes imperative that all those who
feel deeply about this American prin-
ciple vote against the bill, because if the
bill has a strong negative vote in the
House today and still passes, we have a
hope that it may be improved in the
other body. I hope we may have a sub-
stantial vote to show how important we
believe the improvement of this bill is
as far as section 303 is concerned.
The CHAIRMAN. The Chair recog-
nizes the gentleman from Michigan [Mr.
O'HARA].
Mr. O'HARA of Michigan. Mr. Chair-
man, the parliamentary situation is such
that I cannot offer my amendment at
this time. However, after the Moor-
head amendment is disposed of, I will
offer an amendment which will have to
be voted upon without explanation or
debate. I have therefore taken this time
to explain my amendment.
The amendment offered by the gen-
tleman from California [Mr. ROOSE-
VELT], the amendment offered by the
gentleman from Texas [Mr. ALGER], and
the amendment offered by the gentleman
from Pennsylvania [Mr. MOORHEAD],
have all been directed to the right to
a hearing and to the right of appeal.
Whatever might be said in favor of such
provisions, I doubt that the Committee
will prove to be willing to consider the
right of appeal\ and hearing in these
cases.
My amendment is directed, not to the
right of hearing and appeal, but to an-
7? For a suggestion that officials sometimes
are afraid to recognize more rights than due
process demands see Rourke, "Law Enforce-
ment Through Publicity," 24 U. Ch. L. Rev.
225, 253 n. 108 (1957).
0 363 U.S. at 442-444.
other aspect of section 303, the absolute
authority of the Secretary to terminate
the employment of any employee under
certain prescribed circumstances. Un-
der the bill he could delegate that au-
thority to any employee of the Depart-
ment of Defense. He probably will
delegate that authority if he follows
precedent. I am very much afraid we
will end up with some obscure employee
of the Department of Defense actually
making these decisions. Since it is al-
ways a lot easier, simpler, neater, and
cleaner to avoid the time-consuming and
cumbersome procedures of a formal
hearing the tendency_ will be to use the
summary procedure whenever it can
possibly be justified.
My amendment attempts to limit the
use of such procedure to cases involving
the gravest consequences to the national
security. It requires that the Secretary
of Defense personally make the decision
to tefininate an employee's employment
on security grounds without hearing, and
that in this personal decision he obtain
the personal concurrence of the highest
legal officer of the United States, the At-
torney General of the United States.
The adoption of my amendment will give
us at least some assurance that this au-
thority granted in section 303 will not be
used arbitrarily or capriciously. I think
that is the least we can do.
The CHAIRMAN. The Chair recog-
nizes the gentleman from Louisiana-[Mr.
Mr. WILLIS. Mr. Chairman, I regard
this amendment as the most devastating
of all those offered heretofore, because it
would require giving to the employee?
(1) a written statement of the charges
against him, which shall be stated as speci-
fically as security considerations permit?
Whatever that may mean?
(2) an, opportunity within 10 days after
receipt of the statement of charges against
him to answer such charges and to submit
affidavits; and
(3) a written statement of the final deci-
sion of the Secretary.
In other words, everything would be
in writing. The charge against him
would have to be in writing, and it would
violate all security measures. I know.
the gentleman is highly motivated about
this amendment. I told him I could not
go along for the reason I have stated.
This actually goes far beyond anything
that has been proposed. It would re-
quire giving everything in writing, writ-
ten charges and countercharges, and a
copy of the written decision, so that
everything would be in the open. It
wolud violate all our security measures.
Mr. Chairman, I urge the defeat of
the amendment.
Mr. MOORHEAD. Mr. -Chairman,
will the gentleman yield?
Mr. WILLIS. I yield to the gentle-
man from Pennsylvania, and may I say
I have great respect for my friend.
Mr. MOORHEAD. The gentleman re-
fers to the phrase, "as specifically as se-
curity considerations permit." That
means so long as you are not endanger-
ing the sucurity of the United States.
That would be sufficient. If anything,
more would be a danger to the national
security. '
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. 7680 CONGRESSIONAL RECORD ? HOUSE " May 9
Mr. WILLIS. Of course, I do not
know what the result would be, but let
me repeat, what I said earlier under
this bill, you -have three steps. First,
the Board of Appraisal passes on the
. evidence. That is step No. 1. Step No.
2,- the conclusion of the Board goes to
the Director of the National Security
Agency. Step No. 3, the final papers go
to the Secretary of Defense, who has
the power ,to discharge an employee.
So you do have a 3-step review pro-
cedure here, but you must have finality
to the procedure. The final authority is
the Secretary of Defense.
The CHAIRMAN. The time of the
gentleman has expired.
All time for debate has expired.
The question is on the amendment of-
fered by the gentleman from Pennsyl-
vania [Mr, MOORHEAD].
The amendment was rejected.
Mr. O'HARA of Michigan. Mr.phair-
man, I offer an amendment, and ask that
it be voted on.
The Clerk read as follows:
Amendment offered by Mr. O'HARA of Mich-
igan: On page 5, after line 4, insert the
following:
"(b) The authority to terminate employ-
ment under this section may be exercised by
the Secretary only after he obtains the con-
currence of the Attorney General. Neither
the authority of the Secretary to terminate
employment, nor the functions of the At- ?
torney General with respect to concurrence,
under this section May be delegated."
On page 5, line 5, strike out "(b) " and
insert in lieu thereof "(c)",
The CHAIRMAN. The question is on -
the amendment offered by the gentleman
from Michigan [Mr. O'HARA] .
The amendment was rejected. "
The CHAIRMAN. Under the rule, the
The yeas and nays were refused.
The SPEAKER. The question is on
the motion to recommit.
The motion was rejected.
The SPEAKER. The question .is on
the passage of the bill. .
Mr. WILLIS. Mr. Speaker, on that I
demand the yeas and nays.
The yeas and nays were ordered.
The question was taken and there
were?yeas 340, nays 40, answered "pres-
ent" 1, not voting 54, as follows:
[Roll No. 431
YEAS-340 %
Abbitt Fallon Lesinski
Abele ' Fascell Libonati
Abernethy Feighan Lipscomb
Adair Findley Lloyd
Addabbo Flood . Long, La.
Albert Flynt McClory
Andrews Ford McCulloch
Arends Foreman McDade
Ashbrook Fountain McDowell
Ashmore Frelinghuysen McFall
Aspinall Friedel McIntire
Auchincloss Fulton, Pa. McLoskey
Avery Fulton, Tenn. McMillan
Baker Fuqua Macdonald
Baldwin Gallagher ' Madden
Barry Garmatz Mahon
B888 Gathings Mailliard
Bates Gavin - Marsh
13attin Giaimo Martin, Calif.
Becker Gibbons Martin, Mass.
Beckworth Glenn -Martin, Nebr.-
Belcher Goodell Matthews
. Bell Goodling May
Bennett, Fla. Gray Meader
Berry Green, Pa. Michel
Betts Griffin - Miller, Calif.
Boland Griffiths Milliken
Bolton, Gross Mills
Frances P. Grover Minish
Bolton, Gubser Minshall
Oliver P. Gurney Montoya
Bonner Hagen, Calif. Moore
Bow . Haley Morgan
Braderaas Halleck Morris
Bray Halpern Morrison
Brock Hanna Morse
- Bromwell Hansen Morton
Brooks Harding Murphy, Ill.
Broomfield Hardy Murphy, N.Y.
Brotzman Harris Murray
Brown, Ohio Harrison _ Hatcher
Broyhill, NC. Harsha Nelsen
Broyhill, Va. Harvey, Ind. Nix
Burke Harvey, Mich: Norblad
Burkhalter Hays Nygaard
Burleson . Healey O'Brien Ill.
Burton Hebert O'Brien, N.Y.-
Byrne, Pa. Hechler O'Hara,-Mich.
Byrnes, Wis. Hemphill O'Konski
Cahill Henderson Olsen, Mont.
Cannon Herlong O'Neill
Carey Hoeven Osmen3
Cederberg Hoffman Ostertag
Chamberlain Holland Passman
Chelf Horan ' Patman
Chenoweth Horton Patten
Clancy Hosmer Pelly
Clark Huddleston Pepper
Clausen Hull Perkins
'Cleveland Hutchinson -Philbin
Collier Ichord Pike
- Colmer Jarman Pillion
Corbett Jennings Pirnie
Cramer Jensen Poage
Cunningham Johansen Pod
Curtin Johnson, Calif. Pool
Daddario Johnson, Wis. Price
Dague Jonas ? Pucinski
Daniels Jones, Ala. Purcell
Davis, Ga. Jones, Mo. Quie
Davis, Tenn. Karth Quillen
Dawson Keith . Randall
Delaney Kelly Reid, Ill.
Denton Kilburn Reifel
Derounian Kilgore Rhodes, Ariz.
Derwinski King, N.Y. Rhodes, Pa.
Devine Kirwan Rich
Diggs ' Kluczynski RiehlMan
Dole Knox Rivers, Alaska
Donohue Kornegay Rivers, S.C.
Dowdy Kunkel 'Roberts, Ala
Downing Kyl Roberts, Tex.
Dwyer Laird Rodin? .
Elliott Landrum Rogers, Cola
Ellsworth "Langen Rogers, Fla.
Everett Latta Rogers, Tex.
Evins Lennon Rooney
Committee rises.
Accordingly the Committee rose; and
the Speaker having resumed the Chair,
Mr. DAVIS of Georgia, Chairman of the
Committee of the Whole House on the ?
State of the Union reported that that
Committee, having had under consider-
ation the bill (H.R. 950) to amend the?
Internal Security Act of 1950, pursuant
to House Resolution 334, he reported the
bill back to the House. ?
The SPEAKER. Under the rule, the
previous question is ordered.
The question is on the engrossment
and third reading of the bill.
The bill was ordered to be engrossed
and read a third time and was read the -
third time.
The -SPEAKER., For what purpose
does the gentleman from Texas [Mr.
ALGER] rise?
Mr. ALGER. Mr. Speaker, I offer a
motion to recommit.
The .SPEAKER. Is the gentleman
opposed to the bill?
Mr. ALGER. I am, Mr. Speaker.
The SPEAKER. The gentleman
qualifies.
The Clerk will report the motion.
The Clerk read as follows:
Mr. ALGER moves to recommit the bill, H.R.
950, to the House Committee on Un-American
Activities. ?
The SPEAKER. The question is on
the motion to recommit.
Mr. ALGER. Mr. Speaker, on that I
ask for the yeas and nays.
Rostenkowski
Roudebush
Roush
Rumsfeld
Ryan, Mich..
St. George
St Germain
St. Onge
Saylor
Schadeberg
Schneebeli
Schweiker
Schwengel
Secrest
Selueu
Senner
Shipley
Short
Shriver'
Sibal
Sikes
Smith, Calif.
Smith, Iowa
Smith, Va.
Snyder
Springer
Stafford
Staggers
Alger
Ashley
Brown. Calif.
Cameron
? Celler
Cohelan
Corman
Curtis
Dingell
Dulski
Duncan .
Edwards
Farbstein.
Fraser
Stephens Wallhauser
Stinson Watson
Stratton Watts
Stubblefield Weaver
Sullivan Weltner
?Talcott Westland
Taylor- Whalley
Teague, Calif. Wharton
Teague, Tex. White
Thomas Whitener
Thompson, La. Whitten
Thompson, Tex.Wickersham
Thomson, Wis. Widnall
Thornberry Williams
Willis
Wilson, Bob
Wilson,
Charles H.
Wilson, Ind.
Winstead
Wright
Wydler
Wyman
Young
Younger
Zablocki
1011
Tolief son
Trimble
Tuck
Tupper
Tuten
Udall
Ullman
Ott
Van Deerlin
Vanik
Van Pelt
Vinson
Waggonner
NAYS-40
Gilbert
Gill
Gonzalez
Green, Oreg.
Hawkins
Holifield
Karsten
Kastenmeier
King, Calif.
Lindsay
Long, Md.
Matsunaga
Moorhead
Moss
PRESENT?I
Nedzi
O'Hara, Ill.
Olson, Minn.
Reuss
Robison
Roosevelt
Rosenthal
Roybal
Ryan, N.Y.
Sickles
Sisk
Staebler
Mathias
NOT VOTING-54
Anderson
Ayres
Baring
Barrett
Beermann
Bennett, Mich.
Blatnik
Boggs
Bolling
Bruce
Buckley
Casey
Conte
Cooley
Dent
Dorn .
Edmondson
Finnegan
Fino Multer
Fisher Pilcher
Fogarty Powell
Forrester
Gary
Grabowski
Grant
Hagan, Ga.
Hall
Joelson
Kee
Keogh
Lankford
Leggett
MacGregor
Miller, N.Y.
Monagan
Mosher
So the bill was passed.
- The Clerk announced
pairs:
On this vote:
Mr. Walter for, with Mr. Multer against.
Mr. Hall for, with Mr. Mosher against.
Mr. Bruce for, with Mr. Mathias against.
Mr. Siler for, with Mr. MacGregor against.
Until further notice:
Mr. Keogh with Mr. Ariderson.
Mr. Boggs with Mr. Miller of New York.
Mr. Casey with Mr. Conte,
Mr. Dorn with Mr. Schenck.
Mr. Edmondson with Mr. Bennett of Mich-
igan.
Mr. Fisher with Mr. Skubitz.
? Mr. Monagan with Mr. Fino.
Mr. Grabowski with Mr. Beerman.
Mr. Hogan of Georgia with Mr. Reid of
New York.
Mr. Thompson of New Jersey with Mr.
Ayres.
Mr. Steed with Mr. Taft,
Mr. Blatnik with Mrs. Kee.
Mr. Shelley with Mr. Baring.
Mr. Sheppard with Mr. Powell.
Mr. Joelson with Mr. Buckley,
? Mr. Fogarty with Mr. Dent.
Mr. Rains with Mr. Finnegan.
Mr. Gary with Mr. Lankford.
Mr. Scott with Mr. Cooley.
Rains
Reid, N.Y.
Schenck
Scott
Shelley
Sheppard
Slier
Skubitz
Slack
Steed
Taft
Thompson, N.J.
Walter
the following
Declassified and Approved For Release @ 50-Yr 2014/02/19: CIA-RDP65B00383R000300080010-5
Declassified and Approved For Release @ 50-Yr 2014/02/19: CIA-RDP65B00383R000300080010-5
:19'63 CONGRESSIONAL RECORD ? HOUSE 7681
Mr. Slack with Mr. Pilcher.
Mr. Barrett with Mr. Forrester.
Mr. Leggett with Mr. Grant.
Mr. MATHIAS. Mr. Speaker, I have
a live pair with the gentleman from
Indiana [Mr. BRUCE]. If he were.pres-
ent, he would have voted "yea." I voted
"nay." I withdraw my vote and vote
"present."
The result of the vote was announced
as above recorded.
A motion to reconsider was laid on the
table.
LEGISLATIVE PROGRAM FOR WEEK
OF MAY 13
(Mr. HALLECK asked and was given
permission to address the House for 1
minute.)
Mr. HALLECK. Mr. Speaker, I take
this time to inquire of the majority lead-
er as to the program, if any, for the bal-
ance of the week, and the program for
next week.
Mr. ALBERT. If the gentleman will
yield, the legislative program for this
week has been completed. It will be my
intention following the announcement
of the program to ask unanimous consent
that when the House adjourns -today it
adjourns to meet on Monday next.
The prr*ram for next week is as fol-
lows:
Monday is District Day. There are
four bills to be considered:
H.R. 3191, to exempt life ,insurance
companies from the act of February 4,
-1913, regulating loaning of money on se-
curities in the District of Columbia.
H.R. 4273, authorizing suspension or
dismissal of students in District of Co-
lumbia public schools.
HR. 4274, authorizing the reasonable
use of force by principals and teachers to
maintain order in District of Columbia
public schools.
H.R. 4276, Horizontal Property Act of
the District of Columbia.
Tuesday, House Resolution 314, to
grant additional travel authority to the
Committee on Education and Labor.
Wednesday and the balance of the
week, H.R. 6009, to provide, for the pe-
riods ending June 30, 1963, and August
31, 1963, temporary increases in the pub-
lic debt limit set forth in section 21 of
the Second Liberty Bond Act. This bill
will be considered under a closed rule,
with 4 hours of general debate.
This announcement, of course, is sub-
ject to the usual reservation that confer-
ence reports may be brought up at any
time and that any further program or
any change in the program may be an-
nounced later.
Mr. HALLECK. I thank the gentle-
man.
ADJOURNMENT UNTIL MONDAY,
MAY 13
Mr. ALBERT. Mr. Speaker, I ask
unanimous consent that when the House
adjourns today it adjourn to meet on
Monday next. -
The SPEAKER. Is there objection to
the request of the gentleman from Okla-
homa?
There was no objection.
No. 69-5
CALENDAR WEDNESDAY BUSINESS
Mr. ALBERT. Mr. Speaker, I ask
unanimous consent that the business in
? order under the Calendar Wednesday
rule on Wednesday next be dispensed
with.
The SPEAKER. Is there objection to
the request of the gentleman from Okla-
homa?
There was no objection.
RUMANIAN INDEPENDENCE DAY
(Mr. BRAY asked and was given per-
mission to address the House for 1 min-
ute and to revise and extend his re-
marks.)
Mr. BRAY. Mr. Speaker, the 10th of
May is the traditional national holiday
of the Rumanian people. Unfortunately
it cannot be openly celebrated in their
land, which is currently under Soviet
domination.
? This date is celebrated because it is
the anniversary of three great events in
the history of Rumania.
First was the proclamation in 1866 that
Charles would be Prince of Rumania.
Fifteen years later Charles I was crowned
King of Rumania. On this date in 1877
_Rumania proclaimed her independence
and freedom from the outmoded Otto-
man Empire.
Now, however, the Rumanian people
.are living again under the repression
of a foreign ruler. The Soviets have
changed the traditional celebration from
the 10th of May to the 9th of May, which
is the anniversary of the Soviet victory.
But although the official celebration
takes place on the 9th of May, it is the
traditional allegiance to independence
celebrated on the 10th of May which
warms the hearts of many Rumanians
and keeps alive the hopes for restored
freedom in the future.
All real Americans are looking to the
day when Rumania and the Rumanian
people will again be free.
Mr. McCORMACK. Mr. Speaker,
RumanianS are the largest ethnic group
in the Balkan Peninsula, and these 17
million productive and courageous peas-
ants occupy one of the largest and most
? fertile lands in the whole region. They
have lived in their historic homeland
since time immemorial, and they have
had to defend their homes for centuries
against invaders and conquerors. They
had also to struggle hard and constantly
for their freedom and independence.
Since the end of the Middle Ages they
had faced some formidable and fearless
adversaries, and, considering the forbid-
ding, unfavorable conditions under which
they faced these adversaries, they did
very well. Then early in modern times
the invincible steamroller of the Otto-
man Turks overran their country. Thus
conquered, they were subjected to the
oppressive Turkish rule which they en-
dured for 400 years. But they never lost
sight of their national goal, their_free-
dom and independence. In the first part
of the 1800's they staged several upris-
ings and revolts, but each time they fell
short of their goal, and were ruthlessly
punished for their attempts to free
themselves. But in the middle of the
century the Crimean War provided them
with a welcome oppbrtunity.
At the conclusion of that war in 1856
European powers pressed the Sultan of
Turkey to allow the Rumanians auton-
omy by setting up two autonomous prin-
cipalities there. Later these two prin-
cipalities were united under the rule of a
prince. But mere autonomy was not the
goal of the Rumanian people; they
wanted independence. So even under
autonomy they continued their struggle,
and on May 10, 1877, they again-raised
the banner of revolt against the Turks
by proclaiming their independence. In
the Russo-Turkish War of 1877-78 of
course they fought on the -side of Rus- ?
sia, and the successful conclusion of that
war assured their-independence.
Since those days Rumanians have had
their ups and downs. Their country be-
came prosperous at times, and at other
times it was poverty-stricken. In the
course of the two World Wars it was in-
vaded by enemy forces and ravaged be-
-yond recognition. All these the Ruman-
ians endured, hoping that in the end
of World War II they would have their
rewards in freedom. Even before the
end of the last war, however, they experi-
enced the terrible misfortune of losing
not only part of their country, but also
their freedom and independence. The
_Soviet Union robbed them of these in-
alienable rights. Today Rumanians
have become the Soviet Union's captive
-subjects, a helpless satellite nation be-
hind the Iron Curtain. On the 86th an-
niversary of their -Independence Day I
am. glad to echo their genuine patriotic
sentiments and speak for their undying
love for freedom and for an early
emancipation from Soviet and Commu-
nist domination.
Mrs. FRANCES P. BOLTON. Mr.
Speaker, each year it is a distinct pleas-
ure for me to extend my best wishes and
hopes to the many Americans of Ruma-
nian descent who are this day celebrating
the Rumanian traditional Independence -
Day. Our continued devotion to the
cause of freedom for Rumania also
serves to strengthen the cause of free-
dom at home and everywhere in the
world.
In the Royal Proclamation of August
23, 1944, King Michael I, stated, "the new
government marks the beginning of an
era in which the rights and liberties of
all citizens will be respected." Such
promising beginnings were soon halted
by the Soviet Communist government
when, on March 6, 1945, in violation of
its solemn undertakings, it intervened in
Rumanian affairs and installed the first
of a series of puppet governments which
have existed in that nation until today.
The travesty which the Communist
regime seeks to perpetuate cannot de-
ceive the people of Rumania nor blind
the free world to the true meaning of this
day or prevent our paying tribute to the
fortitude and" deep love of liberty of the
Rumanian people. I join with all free-
dom-loving Americans in keeping alive
the aspirations and dreams of a free
Rumania under God.
Mr. DINGELL. Mr. Speaker, May 10
is a day of great importance to the Ru-
manian people and her friends through-
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