Schneider v. Smith – Oral Argument – December 13, 1967

Media for Schneider v. Smith

Audio Transcription for Oral Argument – December 12, 1967 in Schneider v. Smith

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Earl Warren:

— versus Willard J. Smith, Commandant, United States Coast Guard.

Mr. Schroeter, you may continue your argument.

Leonard W. Schroeter:

With the Court’s permission, Mr. Caughlan is before you.

Earl Warren:

Very well.

John Caughlan:

Mr. Chief Justice, may it please the members of the Court.

Mr. Schroeter yesterday outlined the basic societal values which we believe are at stake in this case.

First, the primacy of the individual embodied in concepts, including the First Amendment; secondly, the fairness of governmental procedures embodied in concepts in the Constitution which include the Fifth Amendment.

One additional one should be added to that and that is the guarantee of governmental integrity which is embodied in the concept of the separation of powers in the Constitution.

We feel that this is based upon fundamentally the societal understanding that man is fallible, that power corrupts, and consequently includes basic principles such as the division of the three branches of government and specific provision of the Constitution including bills of attainder, a prohibition against them, recognizing that judicial process should govern any question of punishment.

The civilian control of the military because men trained in authority can sometimes to be insensitive to the relationship of the individual in exercise of their rights that we cherish.

And finally, that the power of the governments may not be delegated one to another and that legislative enactments and administrative rules carrying out those enactments must have the clarity and precision particularly in relations in touching upon these other fundamental rights, so that the individual can understand and that the democratic values of society maybe preserved.

With respect to the last, we believe that the regulations in the Act which is before the Court fails in every particular and has the fatal vice of vagueness which this Court has spoken off in many recent decisions.

The regulations which I wish briefly again to refer to Mr. Schroeter did yesterday, the regulations, first of all, and these appear in our brief on page A14, the ones that I’m about to refer to, provide that at every stage of the proceeding in determination of an applicant to a Coast Guard whether he can receive special validation, the Commandant must be satisfied, that his character and habits of life justify beliefs that he will not be inimical to security.

That’s — an additional regulation provides that if the inquires that the Commandant makes of any applicant are in any way incomplete, that the Commandant may obtain under oath additional information.

And finally on page A14 Regulation 12105 (d) (2) that if any applicant fails to furnish such additional information that the Commandant may require, he may hold the application totally in abeyance.

This is the situation which we have here that no further action would be taken and in each case that the mandatory criteria which may preclude satisfaction includes the satisfaction of the Commandant, the absolute authority in him to determine that the individual is not inimical.

Now, under this procedure Mr. Schneider was submitted a questionnaire which was referred to yesterday which required him in effect to construct his own loyalty oath, that is to set forth in detail his association with every organization on the Attorney General’s list, to set forth in detail his activities, his reading, in connection with the People’s World, and to detail his present attitude to —

Hugo L. Black:

May I ask you, [Inaudible] what is the People’s World?

John Caughlan:

It’s a west coast newspaper, a daily newspaper, or was at one time I don’t know whether it’s a daily newspaper or not.

It’s a west coast newspaper.

The —

Earl Warren:

Was it published by the Communist Party?

John Caughlan:

I do not believe that it was officially sponsored by the Communist Party.

I think generally, it is regarded as expressing the Communist Party point of view.

His present attitude towards the Communist Party was one of the things it would require and their principles, his attitude or the principles and objectives of that party, his attitude towards the form of the government of the United States.

For the reasons that are already been stated to this Court, Mr. Schneider having and feeling it was impossible to have an idea of what was required, refused under penalty of perjury to construct in effect this loyalty oath.

Hugo L. Black:

I understood — maybe I am wrong, but I understand from the records of [Inaudible] that he was asked in his reply, telling what he had read, and this is — you said it’s a daily paper?

John Caughlan:

Yes.

Hugo L. Black:

What he had read in — what he had to read then and what he had read there?

How long to answer it when that is required? How many months —

John Caughlan:

I couldn’t imagine Your Honor.

It seem to me that it would be impossible for anyone who read a paper to set this forth in any reasonable length of time especially during periods of daily paper and even after that.

So, I would believe Mr. Justice Black that this wouldn’t virtually be impossible for anyone to answer.

Hugo L. Black:

How many volumes, do you think [Inaudible]

John Caughlan:

The Paper itself has 15 to 20 volumes, of thick ones and I just can’t imagine how long it would take it, I believe it would be impossible.

Although this question — these inquiries appeared in the guise of a questionnaire, we feel that they are indistinguishable in the inner impact and effect from the construction of a loyalty oath.

And indeed a loyalty oath that is far broader than anything has ever come before this Court which has been considered in the teacher-public-employee cases, the oath required public workers and has been denounced in the line of decisions which extend from Cramp to Shelton, although that is a slightly different type of oath, to Baggett, to Elfbrandt, to Keyishian, and the case decided this term Whitehill versus Elkins.

The underlying purpose, it seems to us of each of these procedures, the questionnaire we have in this case, the teachers and public employee oath that we have in the other cases is an attempt on the part of perhaps well meaning that we believe misguided public officials and legislatures to weed out dissidents, persons who disagree or wish to disagree with the status quo.

It’s no accident, we think that in each one of the cases that have come before the Court, these had been answered previously, the actions had been instituted by teachers who are sincere and thoughtful people and have opportunity and time and consideration to understand the full implications of this oath.

And perhaps it’s no accident that this comes up before — this case come before the Court from a seaman who we believe is unquestionably sincere also, but who is not in the status of a teacher who wished to sail and who therefore attempted his best to meet the initial procedures until he has submitted the questionnaire which is before the Court.

But as this pointed out by Mr. Justice Douglas in the Elfbrandt case, it is the sincere, the persons of integrity who do bring these cases who needs oath to effect because others can construct their answer false oath or they do not have the sort of integrity and sincerity which is required, or which persons who present the issue for public consideration and consideration by this Court.

But it’s precisely the same compelled conformity which is before the Court in every instance, and here we have clearly a situation where the interrogatory procedure takes the place of the oath procedure in the teacher cases, where the determination here is whether, if I can put it this way, the applicant to the Coast Guard’s point of view has what we would call a bad First Amendment character because of his associations, because of his reading, and because of his attitudes.

Therefore, we feel that the statement ultimately made by this Court last Monday, in the decision to the Robel case, is particularly applicable here that it would be ironic if the name of National Defense, we would sanction subversion of those liberties which we cherished and which make the defense of the nation worthwhile.

And these points to the origin of the vagueness which is before this Court which is found in the Magnuson Act itself because the Magnuson Act authorizes, in it’s principle amendment to previous legislation, was to authorize rules and regulations, to authorize procedures by the President when he found that the country was endangered by subversive activity or subversion.

This word itself as indicated by its use in the Robel decision is a word of the widest meaning, generally it means bad politics, bad from who’s point of view, bad in that it may subvert constitutional principle, bad in someone else’s mind because subversion may mean refusal to conform to the status quo.

Potter Stewart:

You have [Inaudible] am I correct in my recollection that this Court has, at least once, and perhaps as I recollect more than once, declined to review cases arising under the Magnuson Act in which, I think one case a radio operator was declined the certificate because he was member of the Communist Party?

John Caughlan:

That is correct Your Honor.

There, I believe, have been three cases — the Barrow case and the two others involving, in each case, (Inaudible) in which petition for certiorari or yes each case was petition for certiorari has been filed in this Court.

They are cited in the government’s brief Your Honors.

We believe the fact —

Hugo L. Black:

[Voice Overlap] to what extent the government is relying in the Attorney General’s list in this case?

John Caughlan:

The government relies on the position that the — Mr. Justice Black that the — basically, that the applicant must answer the questions, but under the regulations, the questions must include answers to membership in each one of the 280 and more organizations that are on the Attorney General’s list.

And in this amplified by the interrogatories which require the applicant to explain in detail his relationship to any organization which he belongs and I might add in this case, this includes on the Attorney General’s list which had promulgated long after some of the organizations to my knowledge had become defunct such as the Washington Common Law Federation which in the State of Washington if one were to include sympathetic associates of that, would include most of the public officials during one period of time or many of them, most of the democratic officials that included such organizations as the labor schools, the Seattle Labor School, the North Pacific Northwest Labor School which was facultied by numerous teachers at the University of Washington, it includes the Harry Bridges’ defense committee which presumably ceased to exist after his defense became unnecessary.

But these all appear on the list along with many, many other organizations and I would assume that in most of these cases, the applicant in this case who is an alert person and was aligned during the period of time when this happen, must have had not only membership, but sympathetic association, affiliation or even sympathetic association with these organization which is also included.

Hugo L. Black:

What was the ground of your objection with the use of the Attorney General’s list?

John Caughlan:

Well, we — in addition Your Honor to the vagueness argument which we’re making at the present time, we also wish to discuss the list as used in this case and on its face as a plain bill of attainder which we believe was the position that Your Honor took about in the Joint Anti-Fascist case.

We believe that it’s used here, it is a bill of attainder.

Hugo L. Black:

Do you think the Brown case has any relevance?

John Caughlan:

Indeed we do.

Hugo L. Black:

With this being a bill of attainder in the Attorney General’s list?

John Caughlan:

Indeed we do.

If I may anticipate at that moment, the argument we intend to make then I would say this.

With respect to this case, this isn’t all — we see it, always, as if this had come before the Court, if the power to construct these regulations at all exists, this case comes before the Court as though the Congress had written the Commandant of the Coast Guard is authorized to deny the application of any person who is or has been a member, sympathetically associated or affiliated with any of the organizations on that list.

If the powers are delegated to do that, this appears before the Court in that respect.

Now the only difference that we see here is that instead of saying he must deny the application, it says he may deny the application, but in the context of these regulations we feel that it is most unlikely that an administrative official would approve an application of someone who didn’t disclaim present sympathy or association or sympathetic attitude toward any of these organizations.

We feel that the Commandant would feel impelled that he must ask the question under the regulations, would feel that any sympathetic relation to these organizations would atomically preclude denial.

That would be argued no doubt that he may approve, but we believe he would only approve if the applicant had somehow disclaimed knowledge or repudiated the organizations.

Hugo L. Black:

Is that one of the questions you would have to answer, that this Court should [Inaudible] or in some other way hold, that you’ve got to wait for a so called administrative proceedings?

John Caughlan:

Precisely, because the regulations say if you don’t answer these questions we postpone any further consideration of your case until you have answered the questions.

So administrative remedies simply do not exist unless you throw away your constitutional rights before you start and that’s the reason that we cannot believe, that the government can seriously argue that there can be any problem, exhaustion in the administrative remedies in this case Mr. Justice Black.

Earl Warren:

So, if we find — we’re to find that the regulation is over broad would it be necessary for us to reach the executive order and the statute itself?

John Caughlan:

We believe that the Executive Order in effect sets forth the basis for the regulations.

Of course the regulations are over broad.

We will present arguments since we’ve discussed about bill of attainder, I will talk about it this time Mr. Chief Justice.

We think that this statute, though clearly vague on its face because of the importation into it of this concept of subversive activity, and giving authority for the Executive Order only on the basis of subversive activity that the statute itself doesn’t authorize the procedures which the Coast Guard has here instituted in these regulations.

Now, let me spell it out on some detail.

The Magnuson Act enacted in 1950 is simply an additional two paragraphs to an already existing Act, the Act of June 15th, 1917 enacted two months after the commencement of World War I.

This — the first two — the first paragraph which appears as appendix A1 of our brief authorizes the President, in case of war or national emergency with proclamation, declaration of war, disturbance of international relations to take full possession of all foreign or domestic vessels and remove there from members of the crew who aren’t especially authorized to go aboard.

It is clearly and unmistakably a war power.

It’s one of some 13 titles in what in effect is the War Powers Act of 1917 and applies only in case of a national emergency or in cases of a proclamation based on disturbance of international relationships.

The Magnuson Act adds to this power which the President has under emergency or war situations, the provision that whenever the President finds security endangered by reason of subversive activity, he maybe do two things; part A, with respect to foreign-flag vessels only, he may place guards there on, take full possession of the vessels that he wishes, and remove all persons not especially authorized by him to go aboard those foreign-flag vessels.

Secondly, and as the second part of the Act and independent from this and separate from it, it gives the President the power to safeguard against destruction, loss or injury from sabotage, subversive acts, accidents or other causes of similar nature.

The maritime facilities of the United States, and it was indicated by Senator Magnuson and no doubt of course, that the government has a very direct interest in protecting these facilities, just pointed out that no authority existed to protect docks and so forth in time of danger and in the argument before the Congress which is set forth in — which is referred to in our briefs, this was the principal basis for this addition of the Magnuson Act.

It says nothing about removing members of crews and we believe there is nothing in the history of the Act.

Abe Fortas:

May I ask you this question?

I therefore by the referent of the word such, you have the statute before you.

John Caughlan:

Yes.

Abe Fortas:

The President is authorized to institute such major – institute such rules and regulations, such as what?

John Caughlan:

I have the same the puzzle with that Your Honor.

I have read this a dozen times, but I can’t make it [Voice Overlap].

Abe Fortas:

This is not an error, that you have omitted any thing from printing?

John Caughlan:

No.

We have been puzzled over that Mr. Justice Fortas that we just can’t make it come out to [Voice Overlap].

Abe Fortas:

It’s surely an incomplete sentence, isn’t it?

John Caughlan:

Yes it is, yes Sir.

But on the basis of we believe the emergency war powers which do — which existed before the Magnuson Acts and which do authorize, we could say screening with respect to domestic vessels, this Act does not, the new part of the Act does not apply to the removal of crews in vessels except under the old Act in national emergency and we believe that the government’s argument in this respect really is misleading and misleads occur.

I’ll refer to what is said in the government’s argument on pages 15 and 16 of their brief in which they imply directly that the Act provides, if the President finds it necessary, in order to protect any vessel at harbor for damage or injury, he may take full possession of such vessel and remove them from — the officers and crews from it.

Now, this applies only under the national emergency Sections so that as far as our reading of this Act is concerned, no authority whatever exists for the program which the Coast Guard have used.

Potter Stewart:

I’m looking at the statute which is reproduced in the appendix to your brief on A-1, what part of that is the 1917 legislation, what part of it is the Magnuson Act?

John Caughlan:

The first full paragraph is the 1917 legislation.

Potter Stewart:

But that not all of the 1917 legislation?

John Caughlan:

Oh, this is the only one of 13 titles, Mr. Justice Stewart.

Potter Stewart:

Yes.

John Caughlan:

That is all there is on this subject.

There isn’t anything more that refers to the control of maritime facilities and vessels.

Potter Stewart:

And then under the first paragraph, it’s the 1917 —

John Caughlan:

That is correct.

Potter Stewart:

And then, does the 1950 legislation begin with — within the territory and the waters of the Canal Zone?

John Caughlan:

That represents two little amendments, but the basic 1950 legislation that —

Potter Stewart:

Whenever the President [Voice Overlap]

John Caughlan:

— begins whenever the President finds the security, that’s the Magnuson Act.

Potter Stewart:

That’s the 1950 legislation?

John Caughlan:

Yes, Mr. Justice Stewart.

Potter Stewart:

Now, is that all of it, right?

(a) and (b) —

John Caughlan:

And that is all of it.

Now there is —

Potter Stewart:

Now, there is an additional paragraph and then subparagraph (e) and subparagraph (d), and that is all of it?

John Caughlan:

But there is one additional paragraph which we haven’t included which provides criminal penalties for persons who go aboard vessels in violation of the national emergency provisions of the first paragraph.

In other words the original Act does not —

Hugo L. Black:

[Inaudible]

John Caughlan:

That’s correct.

May we reserve the balance of our time Your Honor.

Thank You.

Earl Warren:

Mr. Martin.

John S. Martin, Jr.:

Mr. Chief Justice and may it please the Court.

I think in view of the war and varied attacks which the appellant here has launched against the statute, executive orders and regulations involved, it’s important to know that the outset, the exact procedural posture of this case at the administrative level because I think this makes it clearer, the government’s position as to which issues are really ripe for consideration at this time and which we consider are premature.

In October of 1964, the appellant applied for special validation of his mariner’s documents.

At that time, he filled out and submitted to the Coast Guard an application and in an answer to the question concerning his activities in the organization which had been listed by the Attorney General, each of which was set forth in the application form, he responded as follows.

The answer appears at page 5 of our brief, “And I have been a member of many”, — answer, “I have been a member of many political and social organizations including several named on the list.

I cannot remember the names of most of them” and could not be specific about any.

To the best of knowledge, I have not been a member or participated in the activities of these organizations for 10 years.”

That was the extent of his answer on this question.

Thereafter, the Commandant acting in conformity with the regulation which provide that when an application does not provide sufficient information upon which he can make a determination.

Potter Stewart:

You’re talking now about the Commandant on regulations?

John S. Martin, Jr.:

That’s correct.

And he requested additional information in the form of interrogatories.

Those interrogatories are set forth at page 34 and 35, 36 of the joint appendix.

The interrogatories asked him specific questions, referred first to his answer on the original application and asked him that’s set forth to list the names of the organizations on the list to which he belonged, to furnish the dates of membership, and the particulars concerning his membership in that organization.

Hugo L. Black:

What organization?

John S. Martin, Jr.:

These are organizations that were listed on the questionnaire, organizations which have on the Attorney General’s list Mr. Justice Black.

Hugo L. Black:

Of what?

John S. Martin, Jr.:

The organizations that were listed on the questionnaire, organizations that have been listed by the Attorney General —

Potter Stewart:

About how many organizations? It looks like a couple of hundred at least?

John S. Martin, Jr.:

Yes, there are a substantial number.

But, again I point out that these were organizations — he was not — the organizations were set forth for him so that he could go through them to determine which organizations he might have belonged to that were on that list.

Potter Stewart:

But have counted how many there are?

I just see it them here —

John S. Martin, Jr.:

I have not, I believe somebody figured — 280 or 290 is I think —

Potter Stewart:

More like 300?

John S. Martin, Jr.:

Correct.

Hugo L. Black:

How long do you think it would have taken him to answer these interrogatories [Inaudible]

John S. Martin, Jr.:

I don’t think very long Mr. Justice Black for this reason.

I have no idea at this time how many of these organizations he belonged to.

I think in answer to your question — to Mr. Schroeter before or to Mr. Caughlan concerning the People’s World he was not asked to give his opinions on the articles that appeared therein.

He was asked only — if you look at page 35 to state, “Have you ever subscribed to that paper?”

If he answer is yes, give the dates.

Then he was asked, “Have you engaged in any activities of behalf of that paper?”

I take it and I think it’s the only reasonable way to read that question means did you ever work for it, did you ever write for it, did you ever act someway on behalf of the paper.

This is not an answer that calls for him to say what he thought on what appeared in it.

Now, it was at this point that —

Abe Fortas:

Mr. Martin, excuse me.

These organizations are all on the Attorney General’s list and there’s no organization here that is not on the Attorney General’s list or that has been removed from the Attorney General’s list, is that was you’re telling us?

John S. Martin, Jr.:

That is my understanding Mr. Justice Fortas.

Now, —

Earl Warren:

Well, Mr. Martin, I thought one of the questions was, are you now or have you ever been a member of, or affiliated, or associated with, in anyway any of the organizations on the Attorney General’s list that proliferates to a very great degree, doesn’t it, to say or associated with in any way —

John S. Martin, Jr.:

Well, that is — excuse me Mr. Chief Justice.

Earl Warren:

Yes.

John S. Martin, Jr.:

That is one of the reasons why I think at the outset it’s very important to get what we’re involved with here because the question to which you refer sir is the one that is set forth in the original questionnaire and that is, are you now or have you ever been, it’s question six at page 27 — “Have you ever been a member or affiliated with in any way any of the organizations set forth below?”

Earl Warren:

Doesn’t it also say or associated with?

John S. Martin, Jr.:

It does not sir.

Earl Warren:

Well, he was asked once about this, wasn’t he?

John S. Martin, Jr.:

Well, as I read the question, it says, “Are you now or have you ever been a member of or affiliated with in any way any of the organizations set forth below?”

Then when he answered that as he did in the answer that I read to you Mr. Chief Justice, the interrogatories that came back called for him to list the names of the political and social organizations to which you belonged using the word “belonged.”

He wasn’t asked at this point whether he was affiliated with any of these.

So, that is — these are the questions that we were dealing with.

These are the questions that he refused to answer, the one set forth in the interrogatories.

Not — he had answered the question on the questionnaire.

The Commandant felt that those answers did not give him enough information and he then set forth the interrogatories.

Those are the questions t which the appellant refused to answer.

William J. Brennan, Jr.:

[Inaudible]

John S. Martin, Jr.:

Yes, I believe that if you read these interrogatories the outset referred back to the application that he made and he’s being asked in connection with those organizations to list the names.

Now, I think the other thing that it is important to recognize at the outset here is the response that was made to this.

The response was not I find these questions vague and I cannot answer them.

The response was not that I feel these questions would tend to incriminate me under the Fifth Amendment of the Constitution of the United States.

William J. Brennan, Jr.:

May I ask [Inaudible]

John S. Martin, Jr.:

Certainly.

William J. Brennan, Jr.:

The fact that it is considered a [Inaudible] I have been a member of many political and social associations included in the Attorney General’s list?

John S. Martin, Jr.:

That’s right.

William J. Brennan, Jr.:

And as he is being asked, not only [Inaudible] those mentioned on the list [Inaudible] going to break if it’s not answered?

John S. Martin, Jr.:

No, I think that the question called — the original question called only for his answer to —

William J. Brennan, Jr.:

Well, I couldn’t tell [Inaudible] member of many political and social organizations, including [Inaudible]

John S. Martin, Jr.:

Well, I do think Mr. Justice Brennan that what the Commandant was interested in obtaining and what he meant and I think the interrogatories indicate, they’re referring back to question six, and that that’s the type of information that they’re looking for.

William J. Brennan, Jr.:

Well, where is the [Inaudible]

John S. Martin, Jr.:

They appear only in his answer.

It says, are you — question six says only, “Are you now, have you ever been a member or affiliated with the organization?”

He chose to answer that by referring to the fact the political and social — they apparently —

William J. Brennan, Jr.:

[Inaudible]

John S. Martin, Jr.:

The interrogatories, yes.

These were sent out in response to —

William J. Brennan, Jr.:

[Voice Overlap] the interrogatories, they —

John S. Martin, Jr.:

My understanding is that they were — these were sent out after his application have been screened and they determined they want to find out this additional information and it was —

William J. Brennan, Jr.:

[Voice Overlap] But were they professionally [Inaudible] for his case and like of his [Inaudible]

John S. Martin, Jr.:

I believe that is correct Mr. Justice Brennan.

Abe Fortas:

Well, on page 35 of the joint appendix on their response to – the Commandant’s response to his answer, he’s asked to list the name of the political and social organizations to which he belonged that does not — but it is not limited to the Attorney General’s list.

John S. Martin, Jr.:

Well, —

Abe Fortas:

And then he’s asked to make a contribution, to list his contributions – contributions, didn’t he?

John S. Martin, Jr.:

Mr. Justice Fortas, I — all I can say to that is that I believe that since these all refers back to the original question that he was asked which was strictly limited to that —

Abe Fortas:

But then you say that Mr. Martin, it says, with respect does your statements involve, that’s on page 35 of the joint appendix, his statement above said, I have been a member of many political and social organizations including several that is on this list and then the Commandant says, “With respect to your statements above, list the names of the political and social organizations to which you belong, et cetera”.

John S. Martin, Jr.:

Well, Mr. Justice Fortas I would certainly agree with you that there is an ambiguity perhaps present in the question as to whether or not they are now going outside the Attorney General’s list.

John S. Martin, Jr.:

I think that their intention was to referring to the organizations that they had referred to in the original question, and that was really all their interested in.

William J. Brennan, Jr.:

Do you think you have read that part?

John S. Martin, Jr.:

Yes, I think — I do think I would have read that one Mr. Justice Brennan.

But I don’t think that — again I don’t think this is the issue because the response to this was not to the Commandant.

I don’t understand your question.

I find it vague, the response was as was pointed out yesterday, if Mr. Schroeter’s lawyer would said, “I have advised Mr. Schneider that it is possible for him to answer the interrogatories you have sent him.

So, the question was not one, of whether or not the interrogatories were vague, they would put this man in jeopardy to answer.

The question was essentially this and I think this is the issue that is certainly we do not intend that anything other than right to consideration by this Court.

That is when the government adopts a program, a screening program for an area which it considers to be essential to the national defense effort, does the government at that time have the right to ask an applicant for such position about his past associations.

Do they have a right to inquire?

Now, I think in treating this question, the entire regulatory scheme does become important because he is not — these questions are asked not obtain answers which will then per se exclude him from employment.

They are the starting point of an investigation.

This is the same as with any application for any type of employment, for any type of clearance, this is —

Abe Fortas:

But let’s say are we really — are we talking here about government employees?

John S. Martin, Jr.:

We are not talking about government employees in this case but I do think —

Abe Fortas:

Let me ask you another question? Apart from this procedure, the certificates for — a mariner’s certificates for — where does this fall, an engineer?

John S. Martin, Jr.:

He was a second assistant engineer.

I think that was — he was qualified for that.

Abe Fortas:

Are those issued by the Coast Guard?

John S. Martin, Jr.:

That is correct Mr. Justice Fortas.

Abe Fortas:

And this was a special requirement and added to the usual certification procedures?

John S. Martin, Jr.:

That is correct.

The mariner’s document is basically one that relates to technical ability [Voice Overlap] that he is — that is right Mr. Justice Stewart, he is qualified as a second assistant engineer.

Abe Fortas:

But now these men were working for private employers and privately owned vessels?

John S. Martin, Jr.:

That is correct, but I think —

Abe Fortas:

And the United States says — passed the Magnuson Act, currently passed the Magnuson Act, that said that in order to work on a private vessel, you’ve got satisfy these requirements and subject for [Voice Overlap]

John S. Martin, Jr.:

That is correct.

That is basically what we were involved in here a determination by Congress that our maritime industry is a vital part of our national defense effort.

I don’t think that — I think our experience in the two world wars we’ve had clearly indicates how important the maritime industry is to the free flow of raw materials in time of national emergency.

I don’t think that can be doubted.

John S. Martin, Jr.:

I think —

Abe Fortas:

Well, do you think there are any limitations on what can be asked of a man to represent under oath as a condition of private employment in any industry in which is vital to the national defense?

John S. Martin, Jr.:

I think that what can be asked of an individual for employment of any industry which is determined to be an industry which is involved into our national defense are questions that are relevant to a determination as to whether or not this individual is going to use that position in a way that will be inimical to the interest of the United States.

Abe Fortas:

You said there are no First Amendment limitations on that whatever?

John S. Martin, Jr.:

I think that the question has to be a standard of relevance.

I think that is the determination that has to be made.

I think that certainly — in Monday’s decisions in the Robel case that this Court recognized that the government does have the right to exclude from sensitive areas, those who would use their positions in those areas — adverse to the interest of the United States.

Abe Fortas:

What —

John S. Martin, Jr.:

The question then —

Abe Fortas:

Well, at the moment — what’s bothering me is a question of how — that is to say whether there are some limitations, procedural or substantive upon how the government may go about it and I hear what they asked this man, it seems just offhand — it seems kind of impossible to answer, and they required him to answer it under oath, as they require him to say or list under oath his political and social organizations and how much money he gave to them, what his contributions had been, et cetera, et cetera, et cetera and they give him a form to be filled out before a notary public under oath.

Now, there is some [Inaudible] What I’m really going to ask here is — do you think there are any — do you think there are any limitations on the power of the government, either in terms of the method that it requires for disclosing information or in terms of the substance of the information that it requires to be disclosed?

John S. Martin, Jr.:

I certainly would agree with you that there are limitations.

I think that there are limitations in the questions that can be asked and the procedures that must be followed.

I think this Court made that clear in Robel.

You cannot just adopt the rule that says, some particular membership of a particular organizations going to exclude you from such a job.

You have to have a procedure which will as you have here which will allow the party to see what the charges are against him, to confront the witnesses against him, and to have an opportunity to explain, to indicate what the extent of his membership was.

But I do think that a relevant starting a point for this type of investigation is membership in organizations which has been listed by the Attorney General according with — in accordance with the procedures set forth in the Securities Activities Control Act.

Abe Fortas:

[Voice Overlap] it seems to me you’ve got similar thing as to establish — I know your position on it, I am not suggesting spending a time on it — establish that the Commandant may communicate it to this applicant about what he’s talking about, and certainly I think we all agree that there is an ambiguity in the question stated by the Commandant in response to the first filing by this applicant.

John S. Martin, Jr.:

Well —

Abe Fortas:

And the second — of course, the second thing you have to establish is it seems to me is that the — these questions as stated not merely listing membership, not merely listing whether you are or have been a member in these organizations but also listing contributions and all the rest of this stuff that’s in here as a reasonable way — a reasonable part of a procedure which let us assume that is permissible in its objective?

John S. Martin, Jr.:

Well, with regard to your first question Mr. Justice Fortas I think that there are two answers to the question of whether or not this ambiguous and I think that that was not the response that was made.

Two, if that is the case, the remedy here is not the remedy that this petitioner asks for, but to remand the case with directions for the Commandant to limit his questions to organizations on the Attorney General’s list.

With regard to your second part of your question, I do think that contributions and number of meetings are relevant considerations.

This Court has said in a number of cases that people can innocently belong to such organizations without knowing the full extent of the organizations activities.

How do you determine what person belongs innocently and what person belongs with full knowledge of the organization’s activities.

You have to determine the extent of his participation.

Did he only attend one or two meetings?

What do you know — what does the government know about the meetings that he attended?

Maybe that there were a number of meetings held by these organizations that did not reveal their illegal purposes.

There maybe certain meetings of this organization that did reveal fully in which the participants at those meetings set forth the full extent of the organization’s purpose and activities.

John S. Martin, Jr.:

The government can’t make a reasonable determination as to whether or not this fact of membership should preclude this man from the employment which he seeks unless they know the full extent of his participation in the organization, and how he feels and felt at the time about that organization’s activities.

Did he subscribe to the purpose of the Communist Party to overthrow the government of the United States by force and violence?

If he did, then I think that that is a fact on which you’d certainly exclude him, if he still retains that position.

Abe Fortas:

But, let me ask you one more your question, I know I’m taking more of your time?

Section 121.07 on page A14 of the appellant’s brief, that the Commandant is satisfied that the character and habits of life of the applicant are such as to warrant the belief that his presence on board the vessels of the United States would not be inimical to the spirit of the United States, on directive of special validation endorsement of the issue.

Now, that is the ultimate standard, isn’t it?

John S. Martin, Jr.:

That is correct.

Abe Fortas:

So that it’s the standard that says that a Commandant has to believe that the presence of the person affirmatively, that the presence of the person on board the U.S. vessels would not be inimical to the security of the United States, is that right?

John S. Martin, Jr.:

That is correct

That is the [Voice Overlap]

Abe Fortas:

And to ascertain that, he looks at the character and the habits of life of the applicants, is that right?

John S. Martin, Jr.:

Those are the language, that is the language.

Abe Fortas:

— to you, those standards are — don’t raise any First Amendment problems?

John S. Martin, Jr.:

Well, I think that those standards have to be read in conjunction with the standards set forth in Section 121.03 which relate to the information that maybe considered which are listed and advocacy which give the nature of the information that they’re concerned with, advocacy of the overthrow, or alterations of the government of the United States by unconstitutional means, commission of or attempts or preparations to commit an act of espionage, sabotage, sedition — sedition or treason, or conspiring with, or aiding or abetting another to commit such an act.

Abe Fortas:

Well, I guess the least we could say is that — it is really sad, but this area dealing with the man whose livelihood and with his liberty that there has been a certain — we’re falling quite far and short of — for the position that might be desired.

John S. Martin, Jr.:

Well, to that Mr. Justice Fortas, getting there is this.

I think the standards do clarify what is meant by inimical as the Second Circuit said in the case involving the same statute, inimical is not a word that does not have meaning as back — a word which this Court used in Aptheker, in referring to the activities that could be governed.

Here again I think the — another important consideration that goes into this entire consideration of this case is the fact that this is a standard which is to be used in conjunction with a procedure that provides for a hearing to the applicant at which he will be given the right to confront — first to be notified for the reasons why the Commandant feels he should be denied an application, a hearing at which he will be entitled to be present, to be represented by a counsel, he will be entitled to cross-examine the witnesses against him, confront the witnesses against him.

Now, in this connection it is our position [Voice Overlap]

Hugo L. Black:

Can I ask you if the Attorney General gave any of those privileges to those who were put on the list?

John S. Martin, Jr.:

My understanding Mr. Justice Black is that those — that after the decision of this Court at the Anti-Fascist Refugee case —

Hugo L. Black:

[Voice Overlap] whether this list was made up?

John S. Martin, Jr.:

This list does not contain any organization that has not been listed according to the procedures adopted after the Anti-Fascist Refugee case, and that these procedures were designed to comply what this Court said in that case, that they would provide procedures which gave the organization an opportunity to be heard.

William J. Brennan, Jr.:

The remaining list [Inaudible]

John S. Martin, Jr.:

I’m not really sure as — I believe that is correct [Voice Overlap], but the procedures were made available to the organization.

William J. Brennan, Jr.:

[Voice Overlap] affirmatively gets in the list, otherwise you stayed on the list and [Inaudible] and you can answer Mr. Justice Fortas, [Inaudible] He was talking about those [Inaudible] associations with.

And they think Mr. Brown is maybe a member of an affiliate division, as he pointed out in the question six that the original application speaks of being a member of or an affiliate with [Inaudible] Mr. Justice Fortas the standards which govern whether one is inimical and so forth are those in 121.03 and I noticed that he said membership in or affiliation or sympathetic association with any organization on the list, [Inaudible] haven’t really had sympathetic association with.

John S. Martin, Jr.:

I admit that isn’t in the standard, I’m sorry if I — if there was any confusion on that.

I was responding to a question that asked him about —

William J. Brennan, Jr.:

[Voice Overlap] as you pointed out [Voice Overlap] that the question six on the application is still talking about associations with [Inaudible] Now you tell us that the Commandant makes his determination on the basis of the standards of 121.03 — there is sympathetic association with.

John S. Martin, Jr.:

Well, I think that that — what it means I think is that a party associates himself with an organization, knowing its purposes and —

William J. Brennan, Jr.:

Well then, it has to mean something different on membership in or affiliations with?

John S. Martin, Jr.:

That is correct.

William J. Brennan, Jr.:

The third thing is about sympathetic association with.

John S. Martin, Jr.:

That is correct, and I think that it has to refer to some type of association with the organization.

But again Mr. Justice Brennan, I think the important thing is that this is a determination that is made and it can be made in conjunction with a hearing.

And I want to point out that this is a question which I think should not — as this Court said, Monday in the Dubois Club case, it should not be decided in a vacuum.

It should be decided in a context where there has been a hearing at which the evidence has been produced and which the — the Court can then judge on a factual record such exited in the case of the Boyd v. Roland which was taken to the Courts and we do not contend for a moment that when this hearing is held this man will have an opportunity to take the case to the Court and having the action of the Commandant reviewed judicially.

William J. Brennan, Jr.:

[Inaudible] out under oath, there is no [Voice Overlap]

John S. Martin, Jr.:

That is correct, that is I definitely would stress again.

I mean that is the real question here for decision.

William J. Brennan, Jr.:

That is not the case of Dubois.

He doesn’t have to fill out, making a hearing on [Inaudible] by a complaint?

John S. Martin, Jr.:

That is correct.

William J. Brennan, Jr.:

This man doesn’t?

John S. Martin, Jr.:

That is correct.

And that is the issue I think that is really before the Court, it’s does the government, when a man comes to apply for position which the government believes is a position in an industry vital to the national defense, in which some effort should be made and taken to protect that industry against sabotage, what can they inquire of that individual for the position? Can they ask him about his past association?

Can man present himself for such a position and say, my name is John Martin and I want a job?

And —

Abe Fortas:

I think the question is little more refined than that.

The question is can they do it this way?

John S. Martin, Jr.:

Well —

Abe Fortas:

Can they do it this way?

Let me ask you this Mr. Martin?

Do you know whether a person applying for a position with let us say the Atomic Energy Commission, has to go through a procedure that is comparable to this and yet he has to fill out this kind of a questionnaire with reference to organizations and associations?

John S. Martin, Jr.:

Yes.

This is, I think, a fairly standard form.

I think it’s a form very similar to one filled out when I came to the department — I came to the Department of Justice —

Abe Fortas:

Alright, are the regulations comparable to these, does the word sympathetic — the phrase sympathetic association?

John S. Martin, Jr.:

That I could not be sure of.

John S. Martin, Jr.:

That I could not be sure of Mr. Justice Fortas, exactly what the standards are in the various programs and how they are administered.

I do know that there are any number of screening programs in various departments of the government, in the industrial screening programs that are used by the defense department in connection with defense related contracts.

William J. Brennan, Jr.:

When you went to Justice, Mr. Martin, did you have to fill out something with direct reference to the Attorney General’s list?

John S. Martin, Jr.:

Yes.

William J. Brennan, Jr.:

You did?

John S. Martin, Jr.:

Yes.

Hugo L. Black:

Had they ask you any of these questions?

What is your present attitude towards the principles and objectives of communism?

John S. Martin, Jr.:

[Voice Overlap] No —

Hugo L. Black:

How did you answer?

John S. Martin, Jr.:

No Mr. Justice Black. [Laughter]

They didn’t nor did I inform them that I’d, at any time, been a member of the Communist Party.

So they had no occasion to inquire further as to —

Hugo L. Black:

[Voice Overlap] have you asked Mr. Kosygin what are the principles and objectives?

You probably get a little different answer, what you would get from the head of un-American activities, wouldn’t you?

John S. Martin, Jr.:

I’m sure that’s correct and I think that that is an important reason why the applicant should have become —

Hugo L. Black:

May I ask you?

What is his present attitude towards it?

His principles and objectives, in other words, you know what their principles and objectives are, you have to start off with that premise.

Do you think that’s fair question to ask?

John S. Martin, Jr.:

I think that it is a fair question and I think that the —

Hugo L. Black:

About the principles and objectives of communism?

John S. Martin, Jr.:

Well, I think that —

Hugo L. Black:

How many people would you get to give the same answer?

John S. Martin, Jr.:

I don’t think the question is whether or not they give the same answer.

I think that the question is, if the man has belonged to the Communist Party and he has admitted that, the Commandant is faced with the determination, “Should I make that fact that he belonged to the Communist Party, something that will exclude him from employment or should I not?”

Now, the only way I can make that determination is to know — have some idea as to what the man’s participation was, what is the nature, and what is his adherence to their beliefs?

Hugo L. Black:

[Voice Overlap] what are his thoughts about and attitudes towards the principles and objectives of a Democratic Party, A and the Republican Party, B?

John S. Martin, Jr.:

Do I think —

Hugo L. Black:

Who could tell?[Laughter]

John S. Martin, Jr.:

That I wouldn’t — that I don’t think he should be required to answer certainly.

Earl Warren:

Mr. Martin I’d like to refer back to the question I asked you and I’m going to read just a few lines from the appellant’s brief.

He says, “Appellant applied to the Coast Guard for the required special validation that was existing merchant mariner documents.

As a part of this application for this special validation, appellant was required to answer under oath the question, “Are you now or have you ever been a member of or affiliated or associated with in anyway any of the” and the rest of the — concerning the approximate 280 organizations named by the Attorney General is subversive which organizations were listed in the application JA 27 to 33?” He answered, “Yes” and that would an explanation, I have been a member of many political and social organizations and so forth.

Now, I told — I thought you told me that that wasn’t true?

John S. Martin, Jr.:

I think that my answer to you is correct and I’m sure that is probably just an error that was made in printing because I thought — now this is what is the questionnaire which is set forth and perhaps the counsel might —

Earl Warren:

You say this is wrong?

John S. Martin, Jr.:

I think that there might have been some type of error.

I think that the — as Mr. Justice Brennan pointed out, there is some language to that nature [Voice Overlap]

Earl Warren:

Now, why do we get JA 27 to 33?

John S. Martin, Jr.:

Well, that’s the joint appendix here and that is where the answer I read to you, in the joint appendix which is brown covered volume.

That’s not the appendix to the brief.

Byron R. White:

Yes, the actual questions at page 27 item six, isn’t it?

John S. Martin, Jr.:

That is correct.

Byron R. White:

It is not phrased the way that it is phrased in the appellant’s brief.

John S. Martin, Jr.:

That’s correct.

Byron R. White:

[Voice Overlap] but is there really much difference between association and affiliation?

John S. Martin, Jr.:

Well, I don’t think there is a —

Byron R. White:

Not a major difference?

John S. Martin, Jr.:

A substantial difference —

Byron R. White:

And so he was asked about affiliation.

John S. Martin, Jr.:

That is correct.

But I think here again, it is important to point out that when he answered that question, the question that was then subsequently posed to him when the Commandant of the Coast Guard decided the additional information is to list the question — the organizations to which he belonged.

Byron R. White:

That’s right.

John S. Martin, Jr.:

And it is that question which he refused to answer.

It’s that question which he says, they have no right to ask.

Byron R. White:

That’s right.

John S. Martin, Jr.:

And I think —

Earl Warren:

Well, I supposed that of these 280 organizations, all having them proscribed because they were affiliated in some way with the communist movement in the opinion of the Attorney General that many of these organizations could in some way be affiliated with each other, and now without a member of one of them having any idea perhaps of what that affiliation might be or whether there was any affiliation.

Still you require — you require this man to say under oath what affiliation any of those organizations might have? [Voice Overlap]

John S. Martin, Jr.:

No, Mr. Chief —

Earl Warren:

And in the days when this was initiated there was a great danger of a man going to the penitentiary if he misstated any of those things?

John S. Martin, Jr.:

Well, Mr. Chief Justice that — his answer indicated that he had some problem with the question.

The reply to that was not the answer to that question.

It was, tell us those to which you belonged.

That is the question which he did not answer.

That is the question that the Commandant is waiting to have answered.

Earl Warren:

Oh, yes I understand.

John S. Martin, Jr.:

Well, I — you know I — all I’m saying [Voice Overlap]

Earl Warren:

I understand that, I’m talking about the over breadth of this regulation as it was applied to this man.

And let me ask you this also, you cited that the — our action in the Dubois case yesterday.

There is some difference between the two cases in there because in the Dubois case, they were trying to avoid all the entire administrative process and wanted us to take the case and decide it on the merits of it.

In this case, a man was demanding a hearing and he wasn’t given a hearing?

John S. Martin, Jr.:

That is correct.

I agree with you Mr. Chief Justice entirely on that preposition that the question is in this man has every right to bring this question to the Court, is does the Commandant have the right to require him to answer the questions before he passes on the application.

I’m not saying that the Dubois has anything to do with that question.

What I am directing myself to is that the appellant make several contentions that the hearing maybe inadequate because witnesses against him may not be produced.

That the standard — the burden is going to be cast on him to prove that he has a bad Fifth Amendment — a good Fifth Amendment character.

I think that these questions, the other question is, that he raised which I think also is going to be effective only by a hearing is the extent to which membership in the Communist Party or any other organization may preclude granting of a special validation because all of these questions were going to be developed at the hearing, I think you’ll find that after a hearing has had that many of these questions are going to drop out of the case.

I have been informed by the Coast Guard that they now take the position that four witnesses will be produced at the hearing.

So that question of whether or not you could — the question left open in other case in this Court — whether you can at any time rely on information not produced, will not be a factor in this case because I feel that this is an advice, that this goes to a hearing, or witnesses will be produced.

Mr. Martin, I wonder if you [Inaudible]

John S. Martin, Jr.:

Certainly, Mr. Justice Harlan.

[Inaudible]

John S. Martin, Jr.:

I certainly intended to do that, but before I do, I just would like to point out one other fact in relation to the hearing and that is that we — the question of burden of proof, I do think that again this is something that will — if there is a hearing in this case that will prove to be no issue because it is my understanding that the Commandant has taken the position that it is the government’s burden of proof to establish that a special validation should issued so that — I just — these problems those —

William J. Brennan, Jr.:

But it’s never [Inaudible] too, is it Mr. Martin, that there’s no hearing at all until he finally answer some of these questions.

John S. Martin, Jr.:

That is correct, that is absolutely correct and I think that this is [Voice Overlap] —

William J. Brennan, Jr.:

And one that cites me that we haven’t thought of yet, at page 35 and I’m speaking of the interrogatory being — this is question two at page 35, “Are you now or have you ever been a member of or affiliated with in anyway the Communist Party, its subdivisions, subsidiaries, or affiliates?”

And how the heaven would think can one know of how to answer that?

John S. Martin, Jr.:

Well, I think that certainly man knows whether or not he has been —

William J. Brennan, Jr.:

How can one know about [Inaudible] How does one know that a particular organization is or isn’t affiliated with the Communist Party?

If he himself is merely affiliate, was an affiliate —

John S. Martin, Jr.:

I think the answer to that question is, I’ve been a member of the Communist Party to the best of my knowledge.

I have not been a member to any other organizations which is affiliated with it.

William J. Brennan, Jr.:

But he didn’t ask whether he’s been — I’m asking only whether he’s been a member of.

He’s asked whether he’s been affiliated with an affiliate of the Communist Party.

I don’t know how long you would answer that factor.

John S. Martin, Jr.:

Well, I think that if there is problem with the particular question, the answer is perhaps to attack a particular question to say that I cannot answer that and I think if that have been the answer you’d be dealing with a different problem.

This man has said according to his attorney’s letter that he could’ve answered the questions, but the government has no right to inquire.

So, that’s why I think we’re not concerned here so much with specificity of the question because had there been a challenge to the specificity of the question, then yes the Commandant should have come back and been specific as he was with the organization to which he belonged.

That is certain with something that can be handled administratively at that point.

This is a man who just said you have no right to know.

That’s the issue.

Do we have a right to know?

Earl Warren:

Did he say that?

John S. Martin, Jr.:

Yes.

He said that in his letter — Mr. Schroeter’s letters —

Earl Warren:

[Voice Overlap] did he say it in the — in his application answering the questions that they were propounded to him, did he say, “You have no right to know?”

John S. Martin, Jr.:

He said nothing to those.

Earl Warren:

Well?

John S. Martin, Jr.:

The answer came —

Earl Warren:

— then he is complaining that he wasn’t given a hearing.

Now, do they have a right to compel him to give all these answers to the extent that they can deny him, convict him on what he says before they give him a hearing or is he entitled to have a hearing at which witnesses will determine the truth or falsity or the relevance of the questions that are asked to him so he can have a record upon which to obtain judicial review?

John S. Martin, Jr.:

Well, I do think Mr. Chief Justice before he is entitled to a hearing, I think that the Commandant does have a right to ask him to provide information about himself which will enable the Commandant under take an investigation to lead to the determination initially whether or not the special validation should be issued.

Earl Warren:

Then in your opinion, could he make the investigation and determine that he was not entitled to it and deny it?

John S. Martin, Jr.:

He could initially deny it, at which point if he took that action this man would be entitled to the hearing.

The man will always be entitled to a hearing and always be entitled to judicial review except in the cases where he refuses to supply information which is relevant.

That is question before the Court, here again, I want to stress —

Earl Warren:

Why can’t he then deny it?

Why could he deny this man on his application and that let him — let him demand a hearing if he wanted?

John S. Martin, Jr.:

Well, I think the position of the Commandant is that he cannot — the Commandant cannot bring himself to a position where he has enough information about the man to present at a hearing until certain factors or certain answers that are given by the applicant.

To use the example I used before Mr. Chief Justice, if I were to show up that the Coast Guard station, ask for a special validation and they — let’s say, “My name John Martin and I want a special validation”, and they say well, you know, they started asking me some questions, I said, “No, I will not answer any of your questions.”

Earl Warren:

But he didn’t say that.

He didn’t say that here.

He filed answers to all of the questions that were asked.

They might not have been sufficient.

They might not have satisfied the Commandant.

Why couldn’t the Commandant say, “I deny your certification” and then the man as you say is entitled to demand a hearing and he would be given a hearing, but why shouldn’t they do that instead of saying, “No you never can have a hearing until you give us answers to questions that are not in regulations that are propounded by us and until you answer that we won’t give you a hearing”.

John S. Martin, Jr.:

Well, I think the reason for that Mr. Chief Justice is I think because before the Commandant can participate meaningfully in a hearing, he has to know something about the individual which will enable him to determine to make some findings, to gather evidence as to the nature of this man’s character.

Earl Warren:

Well, why couldn’t he say?

Why couldn’t he say, “Your answers to our questions are not sufficient for us to determine whether you are qualified for this position or not.

Your application is denied.”

Then as you say, if it’s denied in that way he has a right to demand a hearing.

Now, why couldn’t that be done in order that the man could get his judicial review?

John S. Martin, Jr.:

Well, the question is then what would happen at the hearing.

This man would come in and he would testify that I am a person, his counsel has represented, that Mr. Schneider, I’m a loyal person in the United States.

The Commandant is in no position at that point, having no information about the man to contest that fact this purpose of this —

Earl Warren:

Would say he wanted to deny him, deny him the right to have that hearing?

John S. Martin, Jr.:

He does not want to deny — he does not want to deny the man the right to have that hearing.

But he does feel and I think reasonably that before the Commandant can participate meaningfully in the hearing as a represent to the government they have to have some information about the individual because all the hearing would come out to as this man coming in and say, “I’m a person loyal to the United States”.

Earl Warren:

How do you know?

How do a Commandant know that that’s all that will happen?

John S. Martin, Jr.:

Well, it has to be assumed that if he is not going to answer questions about his — this is the assumption in which the regulations have based, that if a man is not going to furnish the information that they need to make the determination —

Earl Warren:

Suppose he would come in and say, “Well, now I’m not a member of the Communist Party or I was a member of the Communist Party and I resigned a long time ago and I’m no longer interested in it.

But I think what I read in the newspapers is my personal business and I don’t propose to answer that because they’re invasion of my First Amendment rights, I don’t propose to answer this question and that question because I believe it’s an invasion of my rights,” then they could take whatever action they wanted and the man is entitled to judicial review, but when the Commandant says, “Well, [Inaudible] we won’t give you a hearing until you answer all the questions that we want to propound to you”.

The man is never in the position as you claim here to come in and have any judicial review.

John S. Martin, Jr.:

Mr. Chief Justice I hope — let me try to make myself clear on that.

I do think that this action is properly brought to determine whether or not the Commandant had the right to ask the questions and require this man to answer those questions.

If this Court determines that the First Amendment gives a man a right to refuse to answer any questions about his past associations even when he is applying for a position in National Defense Related Industry, certainly that issue is before the Court, the only thing that I said about the hearing is that certain other arguments which he made concerning what is going to take place at the hearing.

Should he wait the hearing?

John S. Martin, Jr.:

We do not contest the fact that he had absolute right to judicial review of the determination not to proceed further with the application.

Earl Warren:

Well, what is the jurisdictional question?

John S. Martin, Jr.:

We have — we do not contest the jurisdiction of the Court.

In any aspect to hear if the case relating to the question, can the Commandant require a man to answer questions about his past affiliations?

What we said that it is —

Earl Warren:

Can that be the question when they haven’t given him a hearing where he can assert his reasons, why he doesn’t want to ask — answer particular questions?

John S. Martin, Jr.:

Well, —

Earl Warren:

These all to be done and wrapped up and the man convicted before he has a hearing even?

John S. Martin, Jr.:

Well, his answer was contained on his attorney’s letter when he said we had no right — the Commandant had no right to ask the questions.

The Commandant insists that he does have the right.

Earl Warren:

You forced him to – you forced him into those things because you won’t give him a hearing on which he can have a record.

John S. Martin, Jr.:

Well, I would agree that certainly the remedy, if the Court disagrees with this, that this manner is — that the Commandant did not have the right to ask — withhold the action and in receipt of his answer just to order a hearing.

I don’t think it’s to grant him the application which he seeks which is the relief he sought in the District Court, but I do think that would be the proper remedy in that case.

I do —

Earl Warren:

You concede that this man should have been given a hearing and that we should say — sent it back and say that he should be given a hearing?

John S. Martin, Jr.:

I don’t concede that much, no Mr. Chief Justice —

Earl Warren:

How far do you go?

John S. Martin, Jr.:

I do feel that — the question that he dispose is does the Commandant have a right to ask these questions and get these answers?

This man said no.

It’s our position that the Commandant does have a right to ask questions concerning the organizations on this list.

Now, it maybe that a particular question could be more precise, it might be proper to order that a question be made more specific if the Commandant insists on an answer to that.

But if there are certain questions which are quite precise what organizations did the man belonged to?

Now, he just said that we had no right to ask any of these questions.

Earl Warren:

[Voice Overlap] not only what did he belonged to but what organizations that he belonged to that were affiliated with any other organization that was prescribed?

John S. Martin, Jr.:

I would concede Mr. Chief Justice that certainly that particular question is not precise and —

Earl Warren:

Well, isn’t that the basic question of the application?

John S. Martin, Jr.:

No, I think the basic question started with the first one which asked him initially about the organizations on the Attorney General’s list and then the first question on the interrogatory which asked him which organizations he belonged to, I think that’s the basic question.

I think that this is an answer — this is a question to which the Commandant has the right to expect an answer so that he can make the reasonable investigation of this man and to determine whether or not a special validation should be issued.

I think that is the question before the Court.

Now, I would like if I my at this point to turn briefly to the question which Mr. Justice Harlan asked concerning the delegation of a power to the — whether or not the Magnuson Act authorized this type of program that we have here.

John S. Martin, Jr.:

I think the answer to that is that it did.

I think the Congress was acting.

Unfortunately there is not a great deal of legislative history because this was an amendment to existing legislation that was passed during the Korean crises, but there is some history which I think is significant.

This is an Act which was passed amending existing legislation and under to that existing legislation there had been during World War II, screening program from merchant seaman which had been enforced.

At the time the bill was introduced in the Senate, Senator Magnuson informed the Senate that the purpose of this bill was to allow the President to institute security measures similar to those adopted during World War I and World War II.

So I think that fact indicates that Congress contemplated some type of screening procedure similar to that used during World War II.

Second, I think that in the use of the words, the President has delegated the power to make rules and regulations, to prevent sabotage and espionage.

How do you — what rules and regulations do you adopt, why does the common sense meaning of those phrases when put together.

It seems that to prevent sabotage and espionage, you have to do two things.

You have to deny access to those places that maybe subject to those activities; one, to the people who might engaged in it and two; to the materials that might be used to carry out those activities.

So, I think that just on a reading of the language that it contemplates that rules and regulations are going to be adopted to exclude people from areas where sabotage and espionage could be engaged in.

Abe Fortas:

Mr. Martin, why do you make of this incomplete sentence as I see it?

The word ‘such’ is generally a word indicating the limitation is going to follow, that is to say authorizing the President to institute such measures, and issue such rules and regulations, and ordinarily that would be followed by some of these to effect as maybe essential or as maybe necessary in the circumstances and like that, but the statute apparently uses the word ‘such’ and that’s all.

John S. Martin, Jr.:

Well, the only thing I can say to that Mr. Justice Fortas is I do have somewhat difficulty with it.

I think it may come into this statute in view of the fact that again we’re dealing now, a paragraph to which you refer is the beginning of the amending legislation.

They were concerned.

They were adopting an amendment that maybe that they would refer back to types of rules and regulations that could’ve been adopted under the first part, that is the —

Abe Fortas:

[Voice Overlap] Well, that’s what I was asking, further what I had in mind and it’s so would that going in mind whether it was the intention of the Congress in the Magnuson Act to authorize this highly particularized procedure.

John S. Martin, Jr.:

Well, I think that there’s some indication that it was because as I pointed out that this is the type of procedure that have been used during World War II.

That’s what they were driving at.

They’re trying to give the power [Voice Overlap] —

Abe Fortas:

Well, is there anything in the 1917 Act that would indicate this kind of certification of persons as an appropriate procedure regardless of what they would do [Voice Overlap] —

John S. Martin, Jr.:

I don’t think that there’s any —

Abe Fortas:

— such referring to an amorphous course of conduct that says further also feeding them chicken once a week and something like that.

John S. Martin, Jr.:

Well, I do think that it can take on some meaning from the fact that this is what they were doing pursuant to the authority granted in this original Act and it was something that was brought to the Congress’ attention.

I think this also gives meaning and the counsel correctly pointed out, and I will apologize for briefly not making clear enough the fact that — we referred you to the fact that the President was also given a power to exclude people from vessels that was in connection here in subsection (a) which dealt with the foreign vessels in our waters, but I do —

Abe Fortas:

There’s nothing — let me ask you this specifically.

There’s nothing in the bills preceding drafts of the legislation that would indicate what such — what was supposed to follow such or what is the referent to that word “such”?

John S. Martin, Jr.:

To my knowledge there is none.

I’m just — I can’t be sure of — I don’t recall any.

John S. Martin, Jr.:

But I do think that when the President was given the power to exclude persons from vessels of foreign nations in our waters, it’s implicit and that is that Congress recognized that he would certainly have at least that power and draw the powers when dealing with our own merchant marines which is much more vital to our national defense and to which our power is so much greater to regulate.

We must have greater power to regulate our own shipping —

William J. Brennan, Jr.:

Well, Mr. Martin do you suppose going to Mr. Justice Fortas’ question, are we going to interpolate something like after the word ‘regulation’ as he may regard, that is the President, to be necessary, then drop down to be the safeguard against discussion, would it interpolate something like that?

John S. Martin, Jr.:

Well, I think that is certainly the intent of Congress, it’s to give the President the power [Voice Overlap] —

William J. Brennan, Jr.:

[Voice Overlap] would be necessary?

John S. Martin, Jr.:

That’s right, they also think that they —

William J. Brennan, Jr.:

Well, I’m just wondering if that so, then there is a serious question of whether the opinion is sufficiently defined delegation to the President, don’t you think?

John S. Martin, Jr.:

Well, I think that there are again several factors are there on that, Mr. Justice Brennan —

William J. Brennan, Jr.:

I’m getting back to some of the things I thought in the Robel case —

John S. Martin, Jr.:

Yes, I read your — the decision of the Court very carefully in the Robel.

I do think there are many factors that distinguish this case.

The most particular being, if one that — this is not as in Robel case, we’re dealing with the screening program and not a criminal statute itself, but more importantly —

William J. Brennan, Jr.:

You make a distinction that this is not a criminal statute?

John S. Martin, Jr.:

Well, —

William J. Brennan, Jr.:

I didn’t intend any [Voice Overlap] nothing I said to Robel would indicate, I would have just [Voice Overlap] —

John S. Martin, Jr.:

I must say, Mr. Justice Brennan, I find it — although (Inaudible) the opinions favorable to themselves —

William J. Brennan, Jr.:

That was a criminal case, you’re quite right, of course?

John S. Martin, Jr.:

Yes and but I do think that an important consideration is that you don’t have here what you had in Greene v. Mcelroy.

We contend and submit that the procedure is established here, for processing these applications do mean that due process requirements of the Fifth Amendment, to that reason that you are not dealing with the same type of problem that you had in Robel where there are no procedures and I think your opinion makes it clear because you’re feeling there was no review available in any way, whereas here, we do have a hearing procedure which does mean, we submit, that requirements of due process, and the — from which there will be an adequate opportunity before this appellant to pursue his judicial remedies.

Hugo L. Black:

May I ask you one question?

John S. Martin, Jr.:

Certainly, Mr. Justice.

Hugo L. Black:

How far back do you think you’re authorized to go into this man’s life?

I think you mentioned it, but his answer must be relevant to the list given to him?

John S. Martin, Jr.:

Well, I do think that they have a right — certainly, to inquire of a man concerning the activities during his adult life.

Hugo L. Black:

All of his life?

John S. Martin, Jr.:

That is certain now — not to preclude him sir from the activity, but as a starting point for an investigation, these are questions which I think — somebody comes looking for employment and you want to see if he is qualified for that employment for a reason, you have to deal with his past life and what part’s of his past —

Hugo L. Black:

[Voice Overlap] you’d go all the way back?

John S. Martin, Jr.:

I think that the — it certainly goes back for a reasonable time.

Now if the man is 80 years old and maybe —

Hugo L. Black:

In here, it’s not a reason for time like this?

John S. Martin, Jr.:

Well, I don’t think so, I think that the — they have the right to ask what those organizations were so they can pursue the investigation and determine among other things, the truthfulness and [Voice Overlap].

Hugo L. Black:

Now, social organization refers to [Inaudible] doesn’t it?

John S. Martin, Jr.:

That is correct, and I would – again, I just point out that these are our — when you read the question [Voice Overlap] referring back to the —

Hugo L. Black:

[Voice Overlap] that includes the church, isn’t it?

John S. Martin, Jr.:

No, I —

Hugo L. Black:

That includes the church?

John S. Martin, Jr.:

I always considered — I never consider church of a social organization.

Hugo L. Black:

How about the weekly bridge club?

John S. Martin, Jr.:

Well, I think if that term were used in a vacuum certainly Mr. Justice Brennan that would be —

Potter Stewart:

Well, I must say I can’t be persuaded Mr. Martin, that they intended as you suggest, to limit this to organizations on the list?

John S. Martin, Jr.:

Well — that’s a matter of reading the question that might have been — the prime question which I can argue about.

I would suggest that if that is what you think is the defect in this case, again, the remedy is one that the Commandant to correct the form , it’s not to either — you know, to grant him the license — the validation to declare the statute unconstitutional.

Potter Stewart:

Mr. Martin, this is one of those lines, that — I know that you didn’t cite in your brief and I quite understand why Shelton against Tucker case in the 374 – 364 U.S, but I as well surprised to see that the appellants also didn’t cite that name, part of it I suppose is a subjective ego damage of the author of that opinion, but do you think, in your view, if you’re familiar with that case, do you think that decision has relevance here?

John S. Martin, Jr.:

I am having — to be honest Your Honor, I’m having a little difficulty with —

Potter Stewart:

That’s the one in which — in Arkansas they asked the school teachers to list the names of every social — every organization that which the school teachers had belonged over a period of five years, and the Court — now because it was too broad inquiry, even though the governmental purpose of Arkansas was perfectly legitimate.

John S. Martin, Jr.:

Well, I agree that they can be — I certainly agree that they can be broad areas in which you can inquire to our contention in this case that were ruminated to the what we feel and I understand if there was a disagreement in the Court with our reading of that question, that when you’re limiting your inquiry to organizations that on the Attorney General’s list, were that list is being used is not per se to exclude the person, but solely for the purpose of starting an investigation which will lead eventually to determination, whether or not that person is presently qualified, and he presently presents possible danger to the interest of the United States, I think that in those circumstances, certainly the inquiry is reasonable.

I would agree wholeheartedly that if a question that was asked, you know what church do you belonged to, is not a proper matter of inquiry in this.

But I do think, when we’re dealing with the organizations here involved and limited to that, that that is a proper starting point for investigation.

Hugo L. Black:

Well, that’s true of course, fo you suggest that we send it back and limit it to Attorney General’s list, that would be in effect an approval of the Attorney General’s list, obtaining names, as people have had their names put on without any hearing [Voice Overlap], we would have to express an approval of it, wouldn’t we?

John S. Martin, Jr.:

Well, I don’t think —

Hugo L. Black:

What is the objective in using the thing, the Attorney General’s list?

John S. Martin, Jr.:

Well, I do [Voice Overlap] —

Hugo L. Black:

What is the advantage [Inaudible]

John S. Martin, Jr.:

Well, I do believe that that is correct Mr. Justice Black and to a certain extent that you would have to say that this is a reasonable starting place.

The Attorney General has made some investigation.

He has made a determination as an agent of the government, that these organizations are organizations which have engaged in acts which are contrary to the interest of the United States in a manner which would be unconstitutional or they have their purposes for such activity.

Hugo L. Black:

Well, wouldn’t we approving the use of that as indicating the truthfulness of what he has done?

John S. Martin, Jr.:

Well, I think that you have — I can’t say that it doesn’t carry with it some proof of fact that this is a reasonable starting place for investigation.

Hugo L. Black:

We’re getting to starting place, what I’m talking about is putting a man up against answering, whether he has been a member of something that the Attorney General made a list of and said it was a Communist Party organization.

John S. Martin, Jr.:

I don’t think you have to approve the list.

John S. Martin, Jr.:

I think what you have to approve is whether or not it was reasonable for the Commandant to use this list —

Hugo L. Black:

[Voice Overlap] it can be reasonable, can’t it?

If it’s a void list and they were given no hearing.

John S. Martin, Jr.:

Well, I think that it can vary on the use which that information to make —

Hugo L. Black:

But they’ve given the use of even though it was void because nobody gives notice or a hearing on them?

John S. Martin, Jr.:

Well, I think that if the government is going to make a determination that a person is — is or is not someone who would jeopardize the interest of the government, if you’re allowed to be a sensitive position, it has to determine some method and arriving on its conclusion that he is or is not person who would use that position improperly.

It has to look to his past activity and has to make some judgment on —

Hugo L. Black:

You have to look to the past activities?

John S. Martin, Jr.:

That is what —

Hugo L. Black:

What does it have to look?

The past documents, labeling people with something, that they were not given a hearing by the constitutional requirements.

John S. Martin, Jr.:

Well, it has to form certain standards as to what past activities might provide on this person’s present character and if it determines whether or not by means of a published list or anything else, if the government initially determines that certain activities and certain organizations are engaged in activities which are engaged in errands to unconstitutionally overthrow our government, then —

Hugo L. Black:

That’s it.

What you are doing is using the Attorney General’s list to show that they were and I’m asking you how it can possibly be done lawfully if its void because of a lack of due process [Inaudible]

John S. Martin, Jr.:

I don’t think you — Mr. Justice Black, I don’t want to believe in this, but I think the difference between this is to whether or not how there — if they are using it to prove, they’re not.

Our contention is that they are using this as a starting point of an investigation, and when they go through that investigation and come to a hearing, if they say to this appellant that you are a member of the ABC organization which is designated by the Attorney General’s as that being communist action organization —

Hugo L. Black:

[Voice Overlap] designates by un-American activity —

John S. Martin, Jr.:

Fine.

He is still going to have the opportunity at that point.

Hugo L. Black:

That would be just as good, wasn’t it?

John S. Martin, Jr.:

But —

Hugo L. Black:

[Voice Overlap] un-American activity is permitted —

John S. Martin, Jr.:

Well —

Hugo L. Black:

— on the effort of the others, and if that’s true, why not any other organization are labeling somebody?

John S. Martin, Jr.:

But, I think the important thing Mr. Justice Black is that if — when they say to him, because that organization is listed by whoever you wanted to say listed, he’s got the right to commend at a hearing and say —

Hugo L. Black:

[Voice Overlap] they have the right to come in then and object but why does a government have a right to use it, if it’s a void document?

John S. Martin, Jr.:

My — again we’re in — I just don’t believe that the government is using it.

I’m saying they’re taking this as a starting point to the investigation.

Hugo L. Black:

[Voice Overlap] put a name as simple as [Inaudible]

John S. Martin, Jr.:

Well, no — I’m saying that we have made our investigation on this organization and we find that he is engaged in activities which if you were part of would indicate to us that you are not the type of person who can be granted a sensitive position.

Hugo L. Black:

Let’s suppose that’s a bill of attainder, assuming, would you say the government had used it for this purpose?

John S. Martin, Jr.:

I don’t think it’s a bill of attainder.

I can’t assume that Mr. Justice Black.

Hugo L. Black:

I said assuming, assuming it’s a bill of attainder, would you say the government could use it for this purpose?

John S. Martin, Jr.:

I find it impossible to take your assumption.

I don’t think it is because what you’re dealing — I don’t see how you can assume something as a bill of attainder when what you’re doing is trying to make —

Hugo L. Black:

[Voice Overlap] to assume that, you want to answer it on that assumption.

John S. Martin, Jr.:

I can’t answer on that assumption.

Hugo L. Black:

[Voice Overlap] some members of the Court or the whole Court thought it was a bill of attainder.

John S. Martin, Jr.:

The Attorney General’s list is a bill of attainder?

Hugo L. Black:

Yes, should they be permitted to be used in this fashion?

John S. Martin, Jr.:

I think that it’s still can be — could be used because I think that — again, we’re looking towards a present determination of a character of a particular man.

There is no other way you can tell than by looking at his past acts.

Hugo L. Black:

That would be a pretty high value to put on a document that’s a bill of attainder which is twice forbidden by the constitution, wasn’t it?

John S. Martin, Jr.:

Well, I’m saying this.

I’ve find difficulty with your assumption to begin with as I mentioned.

Hugo L. Black:

I understand that.

John S. Martin, Jr.:

I do say that the government has to do something.

The man has presented himself to be issued a special validation.

What is the government to do?

It’s got to investigate the man.

It has got to look to his past activities and —

Hugo L. Black:

Or, this was just a publication in a newspaper?

John S. Martin, Jr.:

Absolutely, I would disagree with you.

I would agree with you that that couldn’t be used, but I think the government has to make —

Hugo L. Black:

[Voice Overlap] then you’re putting value on the Attorney General’s report.

John S. Martin, Jr.:

For this purpose, I think the government has to make its investigation of two things.

One, what activities first, indicate that a man belonged to them and participated in them would be a danger to the government.

Now, whether they do that by a published Attorney General’s list whether they take that action on their own which is circulated to the department — by an agency in government makes an investigation and says that we have determined from our investigation that these organizations are engaged in unconstitutional efforts to overthrow the government.

With that, they had then made the determination that there are certain activities that a man if he’s engaged in unknowingly, make it quite likely, that he is not the type of person who should be granted access to any sensitive position.

John S. Martin, Jr.:

The next part of the investigation is to look — to see if this man belonged to that type of organization and if he did, what was the extent of his participation in them?

Then you can come to the fact where you inform the man that we have come to a determination that you belong to these organizations which we believe are acting in a manner that would — to take unconstitutional action to overthrow our government, and for that reason you should be denied your special validation.

At that point he’s got the right to come back in and say, one of — several things.

One, I don’t belonged; two, I belonged, I did not know of its activities; three, I belonged knowing full well of its activities and you are all wrong because that is not the activity to be engaged in, and if he’s got an act — if they’re not engaged at any unconstitutional activity, and he’s got a right to litigate those issues.

So I don’t think viewing the entire process that the question of where you start is necessarily determined.

I think the government has the right to start at some way.

They have made — the government has made the investigation and has determined in its mind, that at least by face these organizations are engaged to the activities designed overthrow the government.

And I think that they can use that as the starting point to investigate an individual’s activity to determine whether he should be granted the access to any sensitive position that he seeks.

Earl Warren:

Mr. Martin I understood you to say a little while ago that you will not question a man who’s charged with affiliations in this situation.

I notice that the fourth or fifth name on the list of Attorney General says American Christian Nationalist Party.

Now suppose the man did not belong to that organization, but he did belong to the church from which the members that came and from which the organization — the party was organized, would you say that the man have to answer whether he belonged to the church because in other — it might — while he was not a member of, he might be affiliated in some way with it [Voice Overlap] this item six, are you now or have you ever been a member of or affiliated with in anyway, any of the organizations set forth below.

John S. Martin, Jr.:

I don’t think he would have to answer that.

Earl Warren:

Why?

John S. Martin, Jr.:

Because I don’t think that is what is the Court’s question is directed to.

It’s whether you’re affiliated with the organization.

It doesn’t say in that context, are you affiliated with an organization that is somehow affiliated with that, because you were putting it with that organization.

Earl Warren:

Yes, you mean by that they could set up an organization that would include the same members under another name and they’re affiliated closely with it and that if they were not on this list, he wouldn’t have to answer?

John S. Martin, Jr.:

I’m not sure I follow your questions.

Earl Warren:

Well, you say that he would not have to mention the church that was affiliated with this organization and from which this organizations sprang, isn’t that right?

John S. Martin, Jr.:

That is correct.

Earl Warren:

Now, suppose concerning the Communist Party, he didn’t belonged to the Communist Party but he belonged to some other organization called the XY social club, and that was affiliated with the — in some way with the Communist Party, would you say you have to list, that one?

John S. Martin, Jr.:

Well, that is one of the question propounded by the —

Earl Warren:

I know it is, but what I’m trying to get is how do you distinguish these two organizations that I’ve been mentioning to you?

John S. Martin, Jr.:

Well, I think that when you’re talking about — certainly that question is phrased in — if you’re talking about the Communist Party, it’s phrased, “Are you affiliated with an organization?”

I think that the — I think if that question had been asked with respect to the church group, the Christian group that you mention then I suppose of that question would call for the answer, yes.

I think that [Voice Overlap] —

Earl Warren:

[Voice Overlap] belonged to the church?

John S. Martin, Jr.:

That’s right —

Earl Warren:

[Voice Overlap] going right back to Mr. Justice Black’s question.

John S. Martin, Jr.:

Then I think the answer to that is that is a question I do not have to answer, because it deals with my religious affiliation.

Earl Warren:

[Voice Overlap] you don’t have to answer of any of them, Mr. Martin.

John S. Martin, Jr.:

Well, you know I think that there are questions that can legitimately be asked and which a person can be expected to answer, that there are certainly there areas which go beyond, but I don’t think that’s we’re faced within this case, and that is a position that government —

Earl Warren:

Very well.

Mr. Schroeter?

Leonard W. Schroeter:

If I may Mr. Chief Justice, I’d like to briefly answer a couple of questions and then talk explicitly about what really I think is importance suggestion as to methods by which this case may perhaps be disposed of which Your Honors have asked a number of times and Mr. Martin and I have some ideas concerning it.

First, relating to question that — well, I like to first apologize to Mr. Justice Stewart.

I was horrified at the omission of Shelton.

The only apology I have is that, you really cited that fully in Cramp, and we thought we sort to covered the Waterfront by referring to an argument, very [Voice Overlap] —

Potter Stewart:

Of course that was a [Voice Overlap] decision.

Leonard W. Schroeter:

I understand.

Potter Stewart:

And maybe that’s a reason [Voice Overlap].

Leonard W. Schroeter:

No, we are impressed with the reasoning and applicability of it, really.

Secondly, the question that Your Honor, Mr. Chief Justice Warren just asked, is similar to a question that Mr. Justice Brennan asked earlier that I just briefly like to comment upon.

Whatever the Coast Guard’s understanding of the question was, it was Mr. Schneider’s understanding and mine that it included every organization that you ever belonged to.

And part of the problem we had among other things is that — or had affiliations with, Mr. Schneider’s family had come over from the old country.

They were Jewish and they belong to a number of groups that automatically merged into the Jewish People’s Fraternal Order on that list, with the (Inaudible) Society on the list, Mr. Schneider as a child had grown up in this kind of thing which was rather peculiar to Ghetto culture when Jews came over to this country.

Do we list them?

Do we not list them?

Did he belong?

Didn’t he belong to?

We talked about what he belonged to when he was four years old don’t we?

That’s enough to drive a lawyer to drink.

I mean you have no idea what to advice him or not advice him, that was really perfectly horrible.

Mr. Justice Brennan —

Potter Stewart:

— so horrible, [Voice Overlap] Court with the facts where it will be so horrible without telling the Commandant —

Leonard W. Schroeter:

Because that — well, we did say and I call your attention to page 22, in my letter I said look, Mr. Schneider doesn’t — have no objections whatsoever to privately discussing his past or present political attitude, he’s not ashamed of anything.”

I said in the letter, “We offered to go with the Coast Guard and talk to them privately”.

Now, the only thing they could have found out is that he belonged to the American Civil Liberties Union and the Jewish Community Center for the past 15 years, it wasn’t anything we were worried about.

But we’ve done — we’ll work and say it under oath, we just felt that this was an absurd to have to write all these essays under oath, to have to answer questions that were simply not capable of being answered adequately.

If the Coast Guard want — had any real question about this man, they could’ve asked it which goes of course to the total position of the government.

Leonard W. Schroeter:

The government, the helpless United States government has no way to know anything about Mr. Schneider even though for five months, the FBI had had the file, even though whatever of these organizations are still alive, have more FBI Agents than they do people, for heaven’s sake —

Byron R. White:

[Voice Overlap] clan, do you think?

Leonard W. Schroeter:

Probably in the clan too.

I suspect so.

There’s just no question, the government knows more about Schneider than Schneider knows about Schneider.

And for five months, they’ve had ample opportunity to go to their IBM records on him and talking to them, we knew they knew the whole story about him.

I thought the Coast Guard people, they knew everything about Schneider and they come up with this pious nonsense that he has to answer the questions so they have a basis to go ahead, that’s simply factually false.

They knew everything about him.

What they were seeking to do is to make him conform by answering questions under oath that were unanswerable.

And if there’s any question that this is still what they’re up, which is what Mr. Brennan asked, what kind of question do they ask?

I have in my hand a questionnaire that we received two weeks ago from a man in which they say, “In 1949, were you a member of the Progressive Party of Washington in 1950 and 1951 and 1952?

Did you attend a bazaar under the sponsorship of the People’s World for the purpose of raising funds?”

They asked, “Did you attend any meetings?”

Now, listen, “Did you attend any meetings with an official of the Communist Party, you know, give dates and places of such of meetings and what officials?”

Well, who knows whether they attend meetings on and on and on.

And mister — it is suggested by the government that this is relevant by a set of standards that the government adopts that this is relevant to a determination as to whether the character and habits of this man are inimical for the government of the United States.

Hugo L. Black:

What has happened to him?

Leonard W. Schroeter:

This particular man?

Hugo L. Black:

This man.

Leonard W. Schroeter:

Mr. Schneider or the man who got this?

Hugo L. Black:

Is he back in his job?

Leonard W. Schroeter:

Mr. Schneider simply has never managed to go to sea for three years despite his deep desire to do so.

He is —

Potter Stewart:

I thought he hadn’t been to sea for about 25 years?

Leonard W. Schroeter:

That’s right as, I indicated he had decided in 1964, when his children were right on age, so they didn’t mind being away from home so much, that he would ship, he has continued in a land job in which he makes substantially —

Hugo L. Black:

A land job?

Leonard W. Schroeter:

Yes, which he’s had, and he’s some kind of —

Potter Stewart:

A stationary engineer of some kind?

Leonard W. Schroeter:

Yes, thank you.

Hugo L. Black:

For the government?

Leonard W. Schroeter:

No.

On a private industry, just this, this is a private industry.

Hugo L. Black:

Yes, I understand.

Leonard W. Schroeter:

Now, this of course — the relevance of these questions, it seems to me is critical and it really gets to what to me is the heart of the whole case.

The only thing that the government and appellant I think agree about is the high desirability that you look at the entire program.

Now, Mr. Justice Stewart indicated we’ve denied cert in other case that’s similar, have we not, and there are — Mr. Justice Warren has asked questions about, “Well, can we limit this to the regulations?

Can we send it back and say, give the man his hearing?”

I suggest to you that implicit, what I tried to suggest yesterday, implicit in the heart of this program, is its defect.

I cannot believe that the Commandant of the Coast Guard is capable of regulating the program that would deal sensitively with the minds and hearts and feelings of people who had to go through this.

I don’t think he is capable of it.

I don’t think that the separation of powers would permit it.

I don’t think that the government can device reasonably at least they’ve been notoriously unsuccessful, devise a program that could possibly meet the feelings of this Court about such matters.

William J. Brennan, Jr.:

[Inaudible]

Leonard W. Schroeter:

Yes sir.

William J. Brennan, Jr.:

[Inaudible]

Leonard W. Schroeter:

Yes sir, but the vice of the matter and this —

William J. Brennan, Jr.:

[Inaudible] dependent to the Commandant [Inaudible] delegation.

Leonard W. Schroeter:

I don’t know who ultimately rights the regulation.

William J. Brennan, Jr.:

[Inaudible]

Leonard W. Schroeter:

Yes.

William J. Brennan, Jr.:

On the delegation of the [Inaudible]

Leonard W. Schroeter:

Right.

William J. Brennan, Jr.:

Not on any thing related to the delegation of the vital —

Leonard W. Schroeter:

I don’t think constitutionally, we reach beyond that.

Practically what happens, I don’t know —

William J. Brennan, Jr.:

That’s your argument [Voice Overlap]

Leonard W. Schroeter:

Our argument reaches that, yes sir.

And with respect to that particular point, I think this Court can easily decide this question by simply saying and we have read everything in your library, Mr. Caughlan and I, that we can find, there isn’t a shred of a word that suggests that in language or otherwise, a screening program, nothing in the legislative history, nothing in the executive order.

We don’t get a screening —

William J. Brennan, Jr.:

[Inaudible]

Leonard W. Schroeter:

Well, there was not such a program in World War I as far as I can make out.

If there was a program in World War II, it comes from some knowledge that is not found in the Courts of this — the library of this Court.

Now, it is my knowledge from asking people not from this that there was a kind of a program but had nothing to do with the kind of program there is here, nor was it administered by the Coast Guard.

Potter Stewart:

But Schneider apparently survived whatever screening there was in World War II, didn’t he?

It’s not when he was a —

Leonard W. Schroeter:

Yes, right [Voice Overlap], yes, fascinatingly at the time when he was a member of Communist Party.

That’s the time when he was [Voice Overlap] —

Potter Stewart:

Well, of course we were aligned with the USSR at war at that time too.

Leonard W. Schroeter:

Yes.

All I’m suggesting is there were some kind of a very loose form of screening program, but the heart of this is and to me the heart of the issue before this Court and it’s this — that this Court can and has said many things for many years about programs of this kind and I need to reiterate this Court’s decision.

And this Court recognizes they are multiple ways in which you can decide this question, but is this a proper occasion, this kind of a case, for the exercise of judicial limitation?

I suggest not and I suggest not because the central problem of our society it seems to me is not that this Court does not articulate magnificently what the constitution is all about.

That isn’t our problem.

The problem is that it is implemented in Seattle, and Schenectady, and in Albuquerque, and in Albany, we don’t get the views of this Court adequately indicated.

We have here the last vestige really, a full-blown what is I think properly called institutionalized McCartneyism.

This program almost without change, despite 17 years of existence, for 17 years, this Court has more or less articulated points of view which I could spell out extensively, but I think need not which are at war with the program of this kind, yet this program in its heart permits questionnaires such as this, that is still be asked in November 1967, and it does so, not only because a program of this kind violates the concept to separation of powers essentially as it does, because it over delegates, because it may well be a bill of attainder and seeks to punish —

Hugo L. Black:

Have you challenged then the delegation?

Leonard W. Schroeter:

Yes sir.

Hugo L. Black:

On what ground?

Leonard W. Schroeter:

On the grounds that this is an improper delegation to the executive, from an overbroad statute which really causes — necessitates him to answer.

I note that my time is up and I would simply urge this Court to view this as a totality of program, making it clear that programs of this kind — why in the face of dealt needs of our society in terms of the maintenance of values that I think we all share.

Thank you.

Earl Warren:

Would you mind do that submitting to us that questionnaire that you have, with the statement as to where it was — as to where it was used.

Leonard W. Schroeter:

Can I just hand it up to you now?

Earl Warren:

— if there is response needed you may make.

Leonard W. Schroeter:

Alright, thank you.

Earl Warren:

We’ll recess.