United States v. Robel – Oral Argument – November 14, 1966

Media for United States v. Robel

Audio Transcription for Oral Reargument – October 09, 1967 in United States v. Robel

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Earl Warren:

United States, appellant, versus Eugene Frank Robel.

Mr. Maroney.

Kevin T. Maroney:

Mr. Chief Justice, may it please the Court.

This is a criminal case which arose in the United States District Court, the Western District of Washington.

The indictment in the case charged the appellee with unlawfully from November 1962 to the date of the indictment, engaging in employment in a defense facility designated as such by the Secretary of Defense, while at the same time, being a member of the Communist Party, a Communist Action Organization.

The defendant having knowledge of the designation of the defense facility and also having knowledge of the Communist Parties having them finally found to be a Communist Action Organization within the meaning of the statute the Subversive Activities Control Act of 1950.

I’m going to the statute in more detail in a moment.

On appellees motion to dismiss in the District Court, the trial judge relying on this Court’s opinions in the Scales case, Noto case, Brown and Aptheker held that in order for the statute here to be constitutional which post grabs of course, membership in the party while concurrently engaging in employment in a defense facility that the statute would have to be interpreted in such a way as to require active membership, knowledge of the unlawful purposes of the organization, and specific intent to bring about such unlawful purposes.

Based on that construction, the Court dismissed the indictment, and the government filed a Notice of Appeal in the Court of Appeals with Ninth Circuit.

Subsequently on the basis of the direct appeal statute and following our unopposed motion in the Ninth Circuit, that Court certified the case to this Court.

The pertinent parts of the statute, the Subversive Activities Control Act which are involved in the appeal are set forth in our brief beginning at page 3.

First of all the term Communist Action Organization is defined.

Of course, the Court is fully familiar with the definition which was involved in the Communist Party Case.

The term “facility” as used in the statute, means any plant, factory, or other manufacturing, producing, or service establishment, airport facility, vessel pier, waterfront facility, mine, railroad, public utility, laboratory, station, or other establishments or facility, or any part, division or department of any of the foregoing.

The term “defense facility”, as defined in the statute, means a facility designated by the Secretary of Defense, pursuant to Section 5 (D).

Section 5 (D) authorizes the Secretary of Defense to designate facilities with respect to the operation of which he finds and determines that the Security of the United States requires the application of the provision of subsection (a).

Subsection (a) Section 5 (a) which was the basis for the indictment in this case, provides that when a Communist Organization is registered or there is an effect to final order of the board requiring registration.

It shall be unlawful in the particular part we’re here concerned with.

For any member of such organization, with knowledge or a notice that such organization is so registered or that there is an effect to final order of the Board.

It’s unlawful for such a member, subsection (b), if such organization is a Communist Action Organization as it is here, to engage in any employment in any defense facility.

Now, I might also point out before going further that the Section 5 (D), as it was originally enacted in 1950, required that the Secretary of Defense promulgate a list of defense facilities which had been designated by him for purposes of the statute.

Statute of course, was passed in 1960.

This section did not become operative, meaningfully operative until 1961 when the final — when the order against the Communist Party to register as a Communist Action Organization became final.

After that order did become final in October 1961, the Defense Department based on its determination that the publication of a master list of defense facilities would be very highly undesirable since such a master list of our strategic and vital facilities could be used as a guidebook for sabotage or espionage operations.

Because of that determination, the Executive Branch recommended to Congress and Congress adopted an amendment which provided the procedure which is contained in present Section 5 (D).

That is instead of a publication of a list in the federal register, the Secretary advises the defense facility and there is the requirement that such determination be posted conspicuously in the defense facility.

This posting requirement is contemplated to be done in such a way as to ensure that actual notice of the designation and of the status of the Communist Party will be brought home to each employee.

We have outlined in our brief the background to the Internal Security Act and the concern which was shown by Congress for the adequacy of the existing loyalty security procedures.

We submit that the manner in which the District Court contrude this statute defeats the intent of Congress in enacting the statute.

As construed by the District Court and in the words of Judge Wyzanski in the vendor case, regards the arsenal, only against those and who satchels, bombs have already been found.

Kevin T. Maroney:

We submit that it was the intent of Congress to bar those whose loyalty is in doubt and not those of proven disloyalty.

The question of the adequacy of existing loyalty security program was really presented to Congress when it was considering various bills which led to the enactment of the Internal Security Act in 1950.

One bill which was submitted and being considered by Congress would have imposed penalties on any federal employee or person employed in the performance of any national defense project, who became or remained a member of the Communist Party while so employed, or a member of any other organization designated by the attorney general.

The Department of Justice opposed that legislation on the basis that it would constitute a bill of attainder that the bill contained no legislative findings, and in any event that the existing procedures concerning the control of the industrial personal security program were adequate.

Congress met the first two objections by defining the class more narrowly than by reference to the Communist Party or to any other organization designated by the attorney general, defining the class as a Communist Action Organization within the meaning of the statute.

And in addition, the bill which was adopted contained extensive legislative findings to support the legislation.

So that despite the objections voiced by the Department of Justice concerning the adequacy of existing loyalty security procedures in the industrial security field Congress —

Earl Warren:

Did the defendant of the Department of Justice, the Act eliminate those constitutional problems that it objective to–?

Kevin T. Maroney:

Well it did of course eliminate the bill of attainder, Your Honor.

And also it did meet the department’s objection on the lack of legislative findings.

Thurgood Marshall:

Would you mind telling us how it eliminated the bill of attainder issue, please?

Kevin T. Maroney:

Well, it didn’t apply.

Congress did not use or did not make it applicable to members of the Communist Party by name or any other organization thus to any body attorney general.

It made it applicable to members of a Communist Action Organization within a meaning of the statute.

Of course, Congress set forth in the statute the general definition of Communist Action Organization as being any organization within the United States that is dominated and controlled by the Soviet Union, the leader of the International Communist movement, and which is operated primarily to advance the objectives of the International Communist movement.

So that its objective standard was to establish as to what is a Communist Action Organization.

Any member who is a member of – any person who is a member of such organization is under the section disqualified from engaging in defense facility employment.

Abe Fortas:

Suppose the person otherwise is subject to the statute belongs to an organization that’s been proved from picking, picking and orienting in the Communist Group, would the statute cover?

I wondered about that as I look at the language in that.

And I noticed if you just prospected your statement of the Soviet Union.

Kevin T. Maroney:

Yes, sir.

I think that the Subversive Activity’s control board in making its findings in the Communist Party case, made the determination that the foreign government controlling the International Communist movement which is referred to in the Internal Security Act is in fact the Soviet Union.

This Court in reviewing those findings agreed that it was the Soviet Union, that the Soviet Union was the foreign country referred to in the statute.

Abe Fortas:

So that —

Kevin T. Maroney:

It would not cover, I think, an organization dominated and controlled by the taking —

Abe Fortas:

I’ve seen a little point today when the —

Kevin T. Maroney:

Yes, of course, the time the statute was passed; it was only one clearly defined leader of the International Communist movement.

In fact, there has been a splintering, I think, doesn’t affect this particular statute, the question of whether or not, there should also be coverage in another area.

Abe Fortas:

And whether or not, that has legal or constitutional implications.

I don’t know.

Abe Fortas:

I think your adversary addresses an argument to that effect.

Kevin T. Maroney:

I think it would not have any insofar as this case is concerned, the findings with respect to The International Communist movement and the leadership of the Soviet Union, I think, are still valid.

The nature of a Communist Action Organization in this case, the Communist Party and its ideological attachment and control, and domination by that foreign dominated conspiracy is still as valid as it ever was.

Abe Fortas:

Suppose a question might be raised as to suppose John Jones belongs to Moscow Dominated Communist Organization, he’s subject to criminal punishment under this Act.

And Joe Doug belongs to a Chinese Communist; a peaking a Communist dominated organization.

And I guess he’s not subject to criminal penalties under the Act of law to at least argue of all that danger exist same danger except to the standings, that’s what we respect about that.

Kevin T. Maroney:

Yes, Your Honor.

But I think that because Congress has legislated to cure — I think it’s the old proposition that because like Congress they legislated to cure one evil and possibly has not covered another evil.

I think that does not militate against the validity of the present provision.

Despite the disagreement between the executive and the legislative branch, as to the adequacy of the then existing security programs as I indicated earlier, Congress was of the contrary view and clearly intended by the statute to extend the coverage to employees of defense facilities.

Now, at that time and today of course, there is an industrial personnel security program which does cover employees of private contractors who are working on classified government information under government contract.

But that security program does not cover or did not cover 1950.

Employees of important defense facilities which were vital to our defense effort, who we’re not engaged in working on government contracts.

And this provision was designed to extend the security program to cover that open space.

Certainly, there was no disagreement between the Executive Branch and the Legislative Branch on the substantial dangers from the possibility of espionage and sabotage wherein members of Communist organizations we’re concerned.

President Truman, although he vetoed the entire Act and specifically referred to this section in his veto message had this to say and except within our brief of page 24.

He said the dangers of communism come not from normal political activity but from espionage and sabotage in the building up of an organization, dedicated to the destruction of our government by violent means.

The president in his veto message stated that this bill would prohibit the employment of communism defense plans.

The fact is that it would be years before this goal would have any effect of this nature, if it ever would.

Fortunately he said, this subjective is already being substantially achieved under the present procedures of the Department f Defense.

In subsequent years, the Defense Department strongly pointed out to Congress the dangers in these important and vital, and strategic facilities of persons who were members of the Communist movement.

Abe Fortas:

Well, do I — am I correct, I think I recall you note one of these briefs that this particular fellow had been working at a shipyard, the same shipyard for ten years before the criminal proceeding and then after he was indicted, he went back and he’s been there since for a couple of years.

Kevin T. Maroney:

That’s right, Your Honor.

He’s still employed.

Abe Fortas:

Isn’t there some procedure by which he can be removed from his position?

Kevin T. Maroney:

No, sir.

The only — the only procedure or the only recourse provided for by Congress was by way of criminal prosecution in the event the person maintains his defense facility —

Abe Fortas:

So you get to follow like this under the statute suppose he’s a saboteur, he can be indicted then he goes back to work in the — and then he gets out on bail, and goes back to work in the defense plant which is apparently what happened here and he continues until this goes through the courts.

Kevin T. Maroney:

Yes sir.

Of course this is —

Earl Warren:

There’s a lot of distinction and principle between this case and the Cafeteria case where the woman who worked there for years in the cafeteria, I think that was a federal facility.

But she worked there for years and then was removed because it was said that she had a security risk although it was never disposed to her what the reason was.

What is the difference in principle insofar as getting rid of them from the job?

Kevin T. Maroney:

Well, of course in the Cafeteria Workers case the — that was, Your Honor indicates a federal facility of the naval base, this is a private facility.

However, deemed by the Secretary of Defense to be vital to our —

Earl Warren:

I suppose this were defied but was a federal establishment, we’re not the same section?

Kevin T. Maroney:

Well, this — I think other security programs, I don’t think that there are any federal establishments that by designating under this particular section.

The purpose of this section was to permit the Secretary to designate private facilities.

There’s already adequate control and adequate authority for controlling federal military bases and other sensitive federal bases.

And in a federal base, I think that under the Cafeteria Workers’ decision, there could be an absolute bar of course.

Earl Warren:

You don’t think this would apply to any federal facility here.

Kevin T. Maroney:

No sir, I don’t think this statute does apply to a federal facility.

Thurgood Marshall:

I was wondering Mr. Maroney if there’s any limitation at all on the Secretary in his determination of what is the defense plan.

Does he have any hearings?

Does he make any determination of that thing?

Or does he just list it as he chooses?

Kevin T. Maroney:

Well, at the statute vested in him, the discretion to make the determination and I think —

Earl Warren:

Absolute discretion?

Kevin T. Maroney:

Well, I would have to say that if I can qualify absolute discretion by the saying that I assumed that a defendant in a case such as this could defend by showing a clear abusive discretion or showing mistake but not I think quarrelling with the reasonableness of the Secretary’s determination.

Earl Warren:

Does he put — does the statute for any limitations of any kind on the —

Kevin T. Maroney:

No, sir.

The statute best the Secretary with discretion to make this determination —

Earl Warren:

His language is pretty broad that the term “facility” means any plant, factory, or other manufacturing, producing or service establishment, airport, airport facility, vessel, pier, water-front facility, mine, railroad, public utility, laboratory, station, or other establishment or facility, or any part, division, or department of any of the foregoing.

I suppose that if we listed everything in that category, you’d have the major part of our economy, wouldn’t you?

Kevin T. Maroney:

Well, he has to make the determination.

In addition to that though, Your Honor, that —

Earl Warren:

I beg your pardon?

Kevin T. Maroney:

I say that he has to make an additional determination and that particular facility is necessary to the security of the United States.

Earl Warren:

Well, I suppose that any of the 10,000 — thousands of plants in this country that produce materials for the government and there, I supposed ten to thousands of them that where within the Act.

And I suppose all of our public utilities could come on this.

Earl Warren:

And it’s same to me that that would take pretty large segment of our whole economy that the Secretary could with some unbridled discretion that determine.

Kevin T. Maroney:

Well, I don’t think it’s unbridled discretion, Your Honor.

It has to be —

Thurgood Marshall:

What is the limitation if any?

I just — that’s what I’m trying to find out if you could tell me that.

Kevin T. Maroney:

Well, let me say this, that the Secretary has in point of fact setup five categories or facilities which have been placed on the list.

And I will enumerate those in a moment.

But I think that it’s also highly relevant that those five categories were specified and were before Congress in 1962 at the time of the amendment of Section 5 (D), so that Congress at that time at least was fully appraised and approved of the particular right categories which had been adopted by the Secretary.

And those were, of course, considered by Congress both the House and the Senate, in fact, passing the 1962 Amendment.

The five categories are; facilities engaged in important classified military projects.

This is page 27 — they are set forth in page 27 of our brief, facilities producing important weapon systems, sub-assemblies and their components, facilities producing essential common components, intermediate basic materials, and raw materials, important utility and service facilities, and research laboratories whose contributions are important to the national defense.

Now, the Department of Defense has advised us, and as we have set forth in the brief that less than 1% of all manufacturing production facilities in the United States have been designated under this program.

Less than 1% of the utility in service facilities has been designated under this program.

Abe Fortas:

What does that mean?

Kevin T. Maroney:

Sir?

Abe Fortas:

What does that mean 1% on what basis?

Number of people employed?

Kevin T. Maroney:

They based it on the 1% of the number of facilities.

Abe Fortas:

Number of facilities.

Kevin T. Maroney:

Total number of facilities in the United States.

Abe Fortas:

Number of census establishments.

Would be probably be a lot greater in terms of the percentage of people employed.

Kevin T. Maroney:

Well, I understand that, Your Honor.

I ask this specific question of the Department of Defense official involved in this.

And at least, it was his view that there would not be a greater, tremendously greater disproportion as far as the number of jobs actually involved.

Because on this list there are small facilities and there are very large facilities, and of course, eliminated from the list, or not on the list at all are likewise many, many very large facilities.

Earl Warren:

Would you say then that under the legislative history, this in accordance with the legislative history, this Act is confined to these five categories or can the Secretary go beyond these?

Kevin T. Maroney:

I think at least with respect to these five categories, there’s clear indication that these particular types of facilities are intended by Congress to be embraced by the statute now —

Earl Warren:

What I’m trying to find out —

Kevin T. Maroney:

— I think that there —

Earl Warren:

— is if there is any limitation on the Secretary or whether he can declare anything at any place for their any goods manufactured, and anything of that kind, or any utility which carries these products, that is a defense operation?

Kevin T. Maroney:

It would have to be limited by being found to be unnecessary to our security here from a defense standpoint.

Earl Warren:

How can a man who is charged with a crime finds out?

And how can he establish in a criminal trial whether the Secretary of Defense acted within his discretion or beyond it?

Kevin T. Maroney:

I think he has a rather great burden to show that he was acting without his discretion if the Secretary has designated a particular facility.

I think he can show if he can that there was a clear abuse of discretion.

But unless he can do that then I think that the determination by the Secretary, if it’s within, certainly if it’s within these five categories, is to be presumed reasonable.

Earl Warren:

Without any proceeding of any kind just he’s stated it’s within.

Kevin T. Maroney:

Yes sir.

Hugo L. Black:

I don’t see how that finds so-called barred category, isn’t it?

It’s anything but everything.

Kevin T. Maroney:

Well, I think it’s broad, Your Honor.

Hugo L. Black:

Anything to be used in military defense or any components of this.

That’s everything.

Kevin T. Maroney:

Well —

Hugo L. Black:

I don’t see how it can be used as discretion if we decided anything, any component of anything that’s useful to the military or whatever that’s worth.

Kevin T. Maroney:

I think the Secretary has to make a determination that these are facilities in which are —

Hugo L. Black:

Determination looks to me like it’s boundless proportion.

I don’t see any limitation that’s all isn’t it, except everything?

Kevin T. Maroney:

Well, I certainly don’t think it would embrace everything.

Hugo L. Black:

What could it exclude?

Those are pretty broad words.

Kevin T. Maroney:

Well, of course, in the sabotage statutes themselves, the reference to war materials, things which are conducive to being used in —

Hugo L. Black:

What?

Kevin T. Maroney:

I said sabotage statute themselves are broad and I think that they are intended to protect —

Hugo L. Black:

That’s the characteristic of such statutes.

Kevin T. Maroney:

The particular installation involved in this case is the Todd Shipyards, Seattle Division.

It’s a — the purpose of the designation in the Todd Shipyards situation is its capacity to repair and to build ships including ships on navy contract.

As a matter of fact I understand in ’62 and ’63, the Todd Shipyards Company was working on a contract to build two guided missile destroyers.

Of course, that was a classified project and those two ships were in a special part of the yard where if the person did not have access for classified information, he could not get into the piers that were right adjacent to those ships being built around the ships, of course.

Kevin T. Maroney:

But the other part of the yard were of course, any employee would be able to go or have access to — the importance of that, is of course, the ability of the facility to carry on as a repair yard for navy vessels and to build navy vessels.

(Inaudible)

Kevin T. Maroney:

Not in the insulation generally, no, sir.

But there is a — I understand that it is a fenced facility.

There are — the company maintains its own guards.

The company controls ingress and egress of its employees, and a lot of persons coming in, but no clearance from the government is necessary.

Now, of course, that wouldn’t be true with respect to the more secured area at the time these missiles destroyers were being built.

That particular area of the yard, there would have of course, have to be an access clearance.

William O. Douglas:

The designations that are made whether the statute could (Inaudible).

Kevin T. Maroney:

That’s right, sir.

William O. Douglas:

Does the contract meant to be designated?

Kevin T. Maroney:

Well I don’t think there is a requirement of a government contract involved.

Although of course, many of these facilities do have government contracts.

One of them for example, I understand is a producer of jet engines.

However, there are some facilities for example certain facilities in Niagara Mohawk Power area.

Some of those facilities which are being vital to our defense posture are included in the list.

And of course, the rationale behind that is that if certain parts of those facilities could be not down of course, we still have an example just a year ago where, in fact, we all knew of New England was not that of power worth $24 or $36.

So the facility of that nature is designated because of its importance not only from standpoint of paralyzing a current community, but possibly having an adverse effect if it were knocked down on our defense communication systems and radar systems.

(Inaudible)

Kevin T. Maroney:

Figures, I think, it’s approximately 3000.

(Inaudible)

Kevin T. Maroney:

Yes, sir.

(Inaudible)

Kevin T. Maroney:

This was a designation that was made shortly after October 1961 after this amendment, the list was began to be prepared at about the time the decision in the Communist Party case was coming to a close.

(Inaudible)

Kevin T. Maroney:

That’s right, sir.

The total — on the list today and I think that would be a norm since 1961 is approximately 3000.

I better confirm that figure and I would advice the Court if I’m off by —

William J. Brennan, Jr.:

This list, were revised periodically in this amendment?

Kevin T. Maroney:

The statute requires that it be revised periodically, yes, sir.

William J. Brennan, Jr.:

So that 3000 would have been of the 3000 today designated and made it more or less from time to time?

Kevin T. Maroney:

I think there may have been some change.

And I think some facilities are added from time to time.

William J. Brennan, Jr.:

Some eliminated —

Kevin T. Maroney:

Some should be eliminatedfrom time to time.

But the facilities as I understand that which are on this list — it’s not a list anymore really which are designated, most of them I assume for the foreseeable future will remain pretty much standard.

William J. Brennan, Jr.:

Something like Mohawk Power, doesn’t it?

Kevin T. Maroney:

Mohawk Power and Airplane Manufacturing, Airplane production, shipyards, important overseas communication facilities, and things of that kind.

William J. Brennan, Jr.:

Tell me, Mr. Maroney, where one of these facilities has a government contract.

If they’re reserved any longer with the kind of provision we had in Greene and McElroy it would go the right (Voice Overlap)?

Kevin T. Maroney:

Industrial Personal Security Program?

William J. Brennan, Jr.:

Yes, in other words, this gets back to something to Chief Justice to get supporters of that earlier.

I just wonder, aren’t those incriminate these — well, they actually have a contract with one of these facilities.

Kevin T. Maroney:

It was classified information.

William J. Brennan, Jr.:

Don’t they reserve some right to say that you must not allow particular employee to be in —

Kevin T. Maroney:

That’s right, sir.

If it’s classified information, it’s part of the contract as I understand it, that the contractor has to get clearance from the Department of Defense.

William J. Brennan, Jr.:

Well, now they have told us that this yard about the time Ms. Chapp was employed, do I understand it?

Kevin T. Maroney:

Yes sir.

William J. Brennan, Jr.:

Had government contracts to build those guided missile destroyer?

Kevin T. Maroney:

I understand they did do ’62 and ’63 when they were building those two guided missiles.

Where they did that day, I’m not sure.

William J. Brennan, Jr.:

Was he working there at that time?

Kevin T. Maroney:

He was working in the facility but he did not have access to the adjacent area to these two destroyers.

William J. Brennan, Jr.:

And the only control goes to those who may have access, is that it?

Kevin T. Maroney:

He would have to — in order to get to those two destroyers, he would have to get a security clearance from the Department of Defense.

William J. Brennan, Jr.:

Yes, from the government agency.

Kevin T. Maroney:

Right, sir.

Earl Warren:

Is there any — do you have any idea how many members involved in those plants?

Kevin T. Maroney:

No, I don’t, Your Honor.

Kevin T. Maroney:

Well, as I say, it’s 1%, approximately it could be two or two-and-a-half or three.

It’s a 2% or 3% of the total workforce in this kind of manufacturing production plants and utilities, service facilities, laboratories, and so forth.

Earl Warren:

I read somewhere in these papers, I don’t know where that these orders involved about three million men, is there any, I read that someplace else or not?

Kevin T. Maroney:

You mean the designation here involved three million men?

Earl Warren:

Yes.

Kevin T. Maroney:

I really wouldn’t be sure, Your Honor, if I could try to find from the defense —

Earl Warren:

If you don’t remember, it’s all right.

William J. Brennan, Jr.:

Mr. Maroney, one other question.

Suppose this yard, in addition to the work that he gave at the designation of the defense system, also the general repair and construction works say in private yachts and —

Kevin T. Maroney:

It does that as I understand under the private yachts but it does do general repair on private ships.

William J. Brennan, Jr.:

And if this respondent I gather were employed exclusively whatever work he does on those private yachts, nevertheless the statute would — could send him to jail for five years, isn’t that right?

Kevin T. Maroney:

That’s right, sir.

And —

William J. Brennan, Jr.:

Why?

Why is that?

Kevin T. Maroney:

As I indicated, part of the reason for the designation of this facility is not so much — or not certainly, completely that it was working on two-guided missile destroyers in a year or two.

It is the capability of this particular yard to handle in an emergency situation navy ships for repair.

William J. Brennan, Jr.:

Does that suggest that if there were a time when this yard did absolutely nothing except work on private ships.

Let’s say they’re all private yachts, they never did anything else and hadn’t for years.

It might, nevertheless, be designated as a facility because maybe someday, it might be useful to have that as a repair ship.

Kevin T. Maroney:

I think that if it had special facilities for repair work, which would be — in other words, if it was a small yard that couldn’t take anything but a cannon cruiser then of course I don’t think that would —

William J. Brennan, Jr.:

Let’s take this yard, Mr. Maroney.

Kevin T. Maroney:

This yard?

William J. Brennan, Jr.:

And it had nothing — never for years done anything except private (Voice Overlap).

Kevin T. Maroney:

As I understand, the basis of the designation with respect to this yard, that is true Your Honor, that it’s because of the capability —

William J. Brennan, Jr.:

I see.

Kevin T. Maroney:

— of this yard, to do — to handle repair work which would be essential in connection with our naval ships in an emergency —

William J. Brennan, Jr.:

Regardless of whichever use and so on, for that sole purpose.

Kevin T. Maroney:

Well, I’m sure the fact that it — I mean if it were used, I would doubt that they would have the facilities to do this.

But —

William J. Brennan, Jr.:

But nevertheless, theoretically this could be so.

Kevin T. Maroney:

Theoretically, I think.

William J. Brennan, Jr.:

Designated this way and never used and so on.

And this man go to jail for five years —

Kevin T. Maroney:

Five, I think theoretically that’s true, Your Honor, but I think it is a practical matter if a shipyard such as this has facilities that are important and are vital or would be vital in an emergency situation, those facilities would be used, time to time.

Hugo L. Black:

What category is it?

Kevin T. Maroney:

Sir?

Hugo L. Black:

These were the five categories that come into?

Kevin T. Maroney:

Well, I guess this particular one would — or at least going far at this time would come within the one, first category.

Hugo L. Black:

That’s bad news here probably?

William J. Brennan, Jr.:

This is the situation I put Mr. Maroney, where they never had any — and hadn’t for years had any of it, but it’s designated only because of its potential capacity, which on of the five would come in to that case?

Kevin T. Maroney:

Four?

Hugo L. Black:

You could put it under four, that’s utility —

Kevin T. Maroney:

I don’t think it would come under four, no (Voice Overlap).

Four, is subdivided into four subcategories, communications, electric power, transportation and water supply.

Now —

Hugo L. Black:

I don’t find anything in the past that that has been interpreted administratively.

That would cover Justice Brennan’s hypothesis.

Kevin T. Maroney:

Well.

Hugo L. Black:

One, to your projects; two, it is important with defense systems; three, production, that’s not repair; four utilities; five is research.

Kevin T. Maroney:

I think that possibly there would be four that would be a justification for that kind of determination, certainly one —

Hugo L. Black:

But your Footnote 11 wouldn’t say that?

It says communication, electric power, transportation.

What is left in saying repair?

And there’s only 1% there you say, that the military’s reported to you?

Kevin T. Maroney:

That’s right, there’s only 1% of both utility and service and manufacturing and production projects.

Earl Warren:

Suppose a man — suppose this defendant, this petitioner here wanted to raise a question as to whether he came under any of these five specifications how would he do it in the criminal case?

What was the burden — what burden would be applied to establish that he didn’t come within any of these?

I asked that question because you yourself have such difficulty in determining what section it comes under.

Kevin T. Maroney:

Well, I — I think he would — these five categories, I think there are clearly ones that are clearly approved by Congress.

Kevin T. Maroney:

And now I think he could defend on as I indicated earlier, if he could show or make it show to the Court that the placing of a particular facility was a clear views of discretion and wouldn’t come within any of the possible standards for the Secretary of Defense in making this designation.

Earl Warren:

Well, what would he — what would he attack here if he have to attack here and establish —

Kevin T. Maroney:

Of course here in this — in this particular instance, since the statute concerns 1962 and 1963, of course, number one, it’s a clear support for the designation of Todd Shipyards as of the time of the indictment period in this case.

You know, that facility was engaged that time in a classified military project working on these two destroyers.

Now, the District Court relied on four cases to make the determination that these elements of activity and knowledge of unlawful purposes and specific intents should be read into the statute in order to hold it to be constitutional.

The Scales case and Noto case I think are clearly inapposite since they — those were prosecutions which, under a statute, which made membership in an organization advocating overthrow, a criminal offense.

It was a direct prohibition against membership in such organization.

And since it was a direct partial abridgement of First Amendment activities, this Court felt it reasonable to include and to read in the elements of activity and knowledge of unlawful purposes and specific intent.

Here, of course, it is not Congress’ desire and it was not ongress’ purpose in passing the statute to punish membership in a Communist-action organization.

The purpose of this statute is strictly prophylactic purpose, and it punishes only the combination of the element of membership in a Communist-action organization while at the same time being an employee of a defense facility.

And in that respect, we think that it’s quite similar to the Banking Act provision which this Court upheld in Board of Governors v. Agnew which was, of course, basically a conflict of interest statute.

Abe Fortas:

Well, could Congress constitutionally provide that Secretary of Defense may notify, in this case, a shipyard and the shipyards shall terminate the fellow services and if they don’t then there would be some penalty on the shipyard?

Kevin T. Maroney:

I think it might be able constitutionally to do that Your Honor.

Abe Fortas:

It bothers me — I’m not suggesting it bothers me permanently, and at the moment what bothers me is sort of anomaly in this statute that it doesn’t seem really to go the evil to which its addressed.

Let’s say you think that the government’s subject here would be to get the fellow out of the shipyard, excepting all of the premises and have his employment terminated and they have a scheme with respect to classified facilities that does that.

But here, he get outside of the category of classified facilities and get into what — my hypothesis is less dangerous or less sensitive type of employment, and the commerce has employed a criminal sanction instead of a similar administrative sanction.

Kevin T. Maroney:

Well, of course, it’s somewhat similar provision with respect to government employment is provided for in hijacks, which makes it a criminal offense for a person.

And as a matter of fact, another part of the this section also makes it a criminal offense for a person to be an employee of the government while at the same time being a member of an organization that advocates the overthrow of government.

Abe Fortas:

But isn’t there a procedure which respect to government employees so that the person has an opportunity to get out of the government once he — once — doesn’t he have an opportunity to know the government’s concern about as being an employee and isn’t he given an opportunity to get out?

Kevin T. Maroney:

Well, I think so.

But I think he has the same opportunity here.

This statute requires that he’d be put on notice that this facility has been designated as such by the Secretary of Defense.

And that notice also advises him that the Communist Party has been designated as a Communist-action organization within the meaning of the statute.

Abe Fortas:

I know but suppose — suppose he thinks he’s not a member, membership in the Communist Party is not, as I understand it, is not always as easy of ascertainment as it is to find out what you have for breakfast.

Kevin T. Maroney:

Well, I think that under the standards of membership which this Court laid down in Killian.

Of course, the government would have to prove — will have the burden of proving that he considered himself to be a member of the Communist Party as of the time that he was also an employee of the defense facility.

In other words, I don’t think there’s any question what the government, in a trial of this kind, has to prove that the man himself knew that he was member of the Communist Party and considered himself to be a member of the Communist Party.

Abe Fortas:

Was that legislated in the indictment here?

Kevin T. Maroney:

Oh yes, the indictment charges that —

Abe Fortas:

Not only that he was a member but that he knew that he was a member and considered himself as such?

Kevin T. Maroney:

Well, charges that he unlawfully maintained employment while at the same time being a member of the Communist Party.

Abe Fortas:

Thats a little different, isn’t it?

Kevin T. Maroney:

Well, I don’t think it’s any different as far what the government has to show in the file.

I think the government certainly is required to prove that the man knew that he was violating the statute.

He had to know that this was a defense facility, he had to be put on notice in that effect, he get to be put on notice that the Communist Party had been designated as — or had been found to be finally a Communist-action organization and that he himself was a member of the Communist Party.

I think the government has the affirmative burden of showing every one of those elements.

Abe Fortas:

Well then there isn’t may not be a great deal in difference between the government’s point of view and the point of view of the District Court here.

I don’t know whether Communist Party still issues embossed membership certificates or whatever it is.

But, as to that I suppose a knowledge is proved — then we would have to prove knowledge of Communist Party membership by showing some activities on the private fellow, isn’t that right?

Kevin T. Maroney:

I think we would have to certainly show probably attendance of meetings or maybe payment of dues, submitting to some instructions from a party, carrying out instructions from the party.

Abe Fortas:

And how different is that from what District Court here said you have to do?

Kevin T. Maroney:

Well, I don’t think for example that we are obligated as a District Court, feels that we would have to — in order to have the statute be constitutional.

We don’t feel that we’re obligated to show by evidence of — thought this man’s own activities or a member’s own activities that he had knowledge through those activities of the unlawful purposes of the Communist Party.

He does have to, of course, be fully aware that the party has been found to be, after a board proceeding, a Communist-action organization and therefore as being an organization whose objectives may not be wholly lawful.

We have to show that.

We don’t have to show thru his — I mean, in other words we wouldn’t have to have to show that they attended schools where they talked, where they discussed Marxism, Leninism, and so forth.

We don’t feel that we have to show that he had this specific intent to bring about the overthrow.

Now, in a particular case, in the course proving membership, it may be that some of these elements would also be justifiable conclusions from the activities which would prove membership.

But our point is that that affirmative burden of proof as to those elements, it was not intended by Congress and it we don’t think are appropriately elements of the offense.

Abe Fortas:

How many prosecutions have they been?

Kevin T. Maroney:

This is the only case.

This is —

Earl Warren:

When was this started, Mr. Maroney?

Kevin T. Maroney:

In May of 1963 Your Honor, the motion to dismiss was subsequently filed and the District Court held its decision pending this Court’s determination of the Archie Brown case and the Aptheker case.

Now, I’d just like to take one minute and possibly save a couple of minutes for rebuttal.

I think, Scales is another as I indicated, I don’t believe apply here at all, Aptheker which of course invalidated the Section 6 provisions of the same Act relating prohibition of a member of a Communist-action organization applying for using a passport.

I think an important difference or several important differences between this situation and the Aptheker situation is, first of all, the gravity of the danger that’s involved here.

Secondly, in Aptheker, the Court is construing the statute on its face held that only constructive notice through publication the Federal Register was necessary in that case.

And that it was not necessary that the individual who was a member of the party at the time he applied for passport would actually have knowledge that the organization had been designated as a Communist-action organization.

In this case, I think it’s different.

Kevin T. Maroney:

He does have to be put on notice that the organization is under a final order to register.

The sweep of the statute here is not nearly so broad as it was in Aptheker.

Aptheker barred all travel, by all members of the Communist Party outside the western hemisphere.

This statute of course affects a small number of the members of the Communist Party and it affects in only insofar as to bar him from working in 1% of our entire manufacturing plants.

The Archie Brown of course which the District Court also relied on, I think, is strictly a bill of attainder decision and I think this is clearly the distinction.

I like to save a few minutes, Your Honor.

Earl Warren:

Mr. Abt.

John J. Abt:

Thank you Mr. Chief Justice, may it please the Court.

I’d like to make it perfectly clear that the outset, something that I think Mr. Maroney said, but — is at the heart of this case and that is that this statute Section 5 (a) (1) (D) makes it a crime for a person to work in a facility that the Secretary of Defense has designated as a defense facility solely because of the bare fact that he holds membership in a Communist-action organization that has been designated as such by the Secretary of Defense.

Now, Judge Lindberg, the District Judge thought and I think quite properly that the statute of this time applies in the face of this Court’s decisions in the Scales case and more pertinently in the Aptheker case.

And in order to get around what he considered to be that constitutional infirmity in reluctant to declare a federal statute unconstitutional, he reinterpreted the statute by reading into it elements that the statute doesn’t have.

That is to say the element of knowledge on the part of the accused that the organization of which he is a member has an unlawful purpose, an intent to effectuate that purpose and activity looking to that entity.

And it’s so construed, he said, the statute might be constitutional and he therefore dismissed the indictment because it doesn’t contain these allegations.

Now, we agree with the government that the District Court was wrong in its interpretation of the statute.

The statute doesn’t bear the construction, but Judge Lindberg gave it.

And on that question, it’s your decision in Aptheker’s controlling, that the Aptheker said that’s exactly the same thing about Section 6 of the Act.

Section 6 makes the bare fact of membership in an organization that has been order to register as a Communist-action organization, a disqualification for obtaining a passport.

The Court said you can’t cure this statute by reading the elements of knowledge and intent and activity into it.

And that decision with respect to Section 6, I submit, is applicable with equal force to the section we have here today.

Now, in the absence of these elements, knowledge — guilty knowledge activity and intent, I submit that the section is unconstitutional in the first place because it violates the due process principle that the government may not arbitrarily and unreasonably interfere with the right of an individual to hold specified private employment.

Mr. Maroney defends the statute as a reasonable measure in the interest of protecting the national security.

But if the government had deliberately setout to find a case which would most strikingly illustrate the fallacy of that claim, it couldn’t have done better than to pick this one.

Earl Warren:

We’ll recess now.

John J. Abt:

Yes sir, it’s the union out there.

Abe Fortas:

So which one is it, do you know?

John J. Abt:

The Machinist Union.

To send Robel to prison, under this indictment, would not only deprive him of his personal liberty, and Todd, a good machinist, that it would chip away at the freedom of every American and for no conceivable or discernable purpose.

Because Robel and others like him who as the government’s brief concedes and I quote from it, “Would never consider committing either espionage or sabotage, post no conceivable threat to our national security”, or would there conviction and sentenced under this statute served any legitimate governmental interest.

The invalidity of this indiscriminate restraint of the right to work is established by the decision in Aptheker which invalidated the similar indiscriminate restriction of Section 6 of the Act on the right to travel.

And I must say that I consider it a real feat on Mr. Maroney’s part to have talked about this case for 55 minutes before he mentioned the Aptheker case.

John J. Abt:

Because the two are, from a legal point of view on this question is like this two-piece in a pod, Section 5 like Section 6 applies to members who do not know that the Communist Party has any unlawful purpose and who believed that the finding of the Subversive Activities Control Board that the Communist Party is a Soviet agent, he spoke on truthful and unwarranted.

The section is therefore invalid because in Aptheker’s words, and I quote from it, it sweeps within its prohibition both knowing and unknowing members.

Furthermore, Section 5 like Section 6, again to quote Aptheker, also renders a relevant, the member’s degree of activity in the organization and his commitment to its purpose.

Furthermore, Section 5 as Aptheker said of Section 6, excludes consideration of additional relevant factors.

It applies to every job in an establishment that’s been designated as a defense facility even to jobs which from a security point of view are completely insensitive.

And it applies to all members of the organization who hold these jobs, even though in doing so, they are motivated by nothing more dangerous than the common desire of all us to earn a living.

Section 6 like — or Section 5 like Section 6, therefore, is an extreme example of the imputation of guilt from associations.

It established an irrebuttable presumption that every member of the Communist Party merely because of the fact of his membership is likely to endanger the national defense every time he has given access to a defense facility, to the premises of the defense facility.

This presumption is invalid because as Aptheker stated and again I quote, “it is supported only by a tenuous relationship between the bare fact or organizational membership and the activity Congress sought to prescribe.”

Furthermore, as in the case of Section 6, Congress could have accomplished it’s objectives by less drastic because more discriminating means.

These are exemplified, these means, in the first place by the industrial security program that Mr. Maroney mentioned a program administered by the Department of Defense and presently applicable to the employees of the defense contractors.

Congress could of course, very readily have extended it, if it wanted too, to all employees of defense facilities.

Earl Warren:

Is it your belief that under this defense program, that they could get rid of Mr. Robel now and not resort to the criminal –?

John J. Abt:

No, they could not because (Voice Overlap) Mr. Chief Justice, no they could not because I’m just going to say in a moment that program is less drastic and more discriminating that this statute.

But I’ll come to that in just one moment.

This industrial security program and its predecessors date back to World War II and there is nothing to indicate and Mr. Maroney said nothing to indicate that the program hasn’t proved entirely adequate as an internal security measure.

The program is less drastic than Section 5 (a) (1) (D) in two respects.

First, it makes membership in a Communist organization, only one factor to be considered in connection with all of the surrounding circumstances in determining whether an employee is a security risk.

And second, persons are denied security — who are denied security clearance, aren’t barred from all employment in the plant, they are only barred, from access to classified information and to jobs of course, which require such access.

This approach reflects the common sense view that there is no danger in applying a security risk in a job that’s completely insensitive.

Abe Fortas:

Well, that is — that isn’t necessarily so, is it Mr. Abt, that id to say it’s conceivable that in a place like Todd Shipyards somebody who is employed in a non-sensitive part of it could disrupt the activities throughout the shipyard?

John J. Abt:

It’s conceivable but anybody can — I suppose, could disrupt the activities of any employee, of the immediate job that he’s on by some kind of conduct.

But as Mr. Maroney told us, he’s fired, removed from these — from a sensitive work that’s going out in the plant.

He doesn’t have access to the parts of the shipyard where they’re building destroyers or engaging in other sensitive activity.

And it’s hard to conceived what he could do that would be disruptive.

And I call your attention Mr. Justice Fortas to Cole versus Young in which the Court, because of this consideration, interpreted the security statute — or not the security statute, in that case with the President’s Executive Order, as applying only to security sensitive jobs.

The 1957 Report of the Commission on Government Security, similarly to the industrial security program, opposed the exclusion of security risks from non-sensitive employment, labeling such a measure, and I quote, “objectionable and unnecessary.”

The same report also recommended that in determining the significance for security purposes of membership in a Communist organization, consideration should be given to the factors of actual knowledge of the purpose of the organization, the member’s own intent in joining it and the degree of his participation in its activities, factors which —

William J. Brennan, Jr.:

Mr. Abt, may I ask you, do you think that 5 (a) (2) (B), that’s the one authorizing the designation of facilities invulnerable to charge of excessive congressional delegation?

John J. Abt:

Well, we don’t — we don’t argue in terms of excessive congressional delegation Mr. Justice Brennan because this Court has approved some pretty broad delegations.

John J. Abt:

We do argue it in terms of the denial of procedural due process.

William J. Brennan, Jr.:

I appreciate that.

I know that you believe that it doesn’t argue.

John J. Abt:

Right.

William J. Brennan, Jr.:

But I wonder, do you think it is?

John J. Abt:

I would have thought so before I’ve read some of your decisions in which you’ve authorized some awfully broad delegation.

William J. Brennan, Jr.:

And what about Schechter’s —

John J. Abt:

Well, Schechter is kind old fashioned these days, I think Your Honor.

William J. Brennan, Jr.:

Still in the books, isn’t it?

John J. Abt:

Still of the books, we might well have argue that —

William J. Brennan, Jr.:

If this is — if this is, then I guess the question you are now arguing, we wouldn’t have to reach, would we?

John J. Abt:

There are about four constitutional questions —

William J. Brennan, Jr.:

I know, but if this is excessive delegation within Panama and Schechter and the others, then I take it, that would be the end of this case.

John J. Abt:

That would be the end of this case, no doubt about it.

But I think this case is ended by Aptheker before you reach this sticky a question as a delegation question.

William J. Brennan, Jr.:

Aptheker did involve constitutional questions.

John J. Abt:

Pardon?

William J. Brennan, Jr.:

Different constitutional questions.

John J. Abt:

Yes, the constitutional questions I’m now arguing, that is to say the unreasonable and from substantive due process point of view.

William J. Brennan, Jr.:

But I don’t suppose that it concerned you too much that this one off in Schechter language.

John J. Abt:

Well, with the — except in the decision that the Court rendered, obviously.

Potter Stewart:

It has always been on your favor.

John J. Abt:

Pardon?

Hugo L. Black:

Excuse me.

I just thought you would say I was surprised if you had indicated that Schechter had been impaired, I do not recall whether it has been.

John J. Abt:

I can’t cite the cases to you offhand.

I can’t cite all of the cases to you offhand, Justice Black but my — our research brought us to the conclusion that delegation substantially has brought us the delegation of power in this case had been improved by the Court and perhaps I’m wrong, perhaps.

In any case, it seems to me that —

Hugo L. Black:

Well, I have not agreed to it and I that I thought and then it overruled the Schechter.

John J. Abt:

No, Your Honor.

John J. Abt:

I think that your views on delegation adhere much more closely to Schechter than that of some of the members of the Court.

Again, while the Act was in debate — it is being debated in the Congress, the Department of Justice as Mr. Maroney has indicated, to the position that — or opposed rather a proposal to bar persons from federal employment solely in the basis of their organizational membership.

Now, he stated and answered I think to a question from the Chief Justice that this statute cures the objection that the Department then found to that statute.

Of course, this statute doesn’t cure the Department’s objection, the Department changed its position.

The letter from the Department to the Committee of Congress which was considering that measure is quoted at page 513 of the Aptheker case and here’s what acting Attorney General Ford said to that bill.

“The bill would brand the member of a listed organization a felon, no matter how innocent his membership; the loyalty program enables the member to respond to charges against him and to show, in a manner consistent with American concepts of fairness and justice, that his membership is innocent and does not reflect on his loyalty.”

Now that’s exactly the kind of a showing that this statute denies to Robel in this case.

There is no substance to the government’s attempts to distinguish this case from Aptheker and let me address myself to the distinctions that the government urges in its brief, since Mr. Maroney spoke only very briefly on the question during his portion of the argument.

First, the government says that Section 6 is broader than Section 5 (a) (1) (D), the section were dealing with here because Section 6 supplies to Communist-fund organizations while this section applies only to member of Communist-action organization.

But Aptheker, invalidated Section 6 as applied to members of the Communist Party and to leading members of the Communist Party or persons characterized as top-ranking party leaders at that.

Second, the government says that the right to travel is more basic than the right to work.

This belies what it said in its brief in Aptheker case that the denial of passports and I quote “is a considerably milder disability than the loss of employment.”

Of course both rights are basic.Section 5 and Section 6 are, and they were intended to be complementary and together to make life intolerable for Communists.

As Justice Black put it in his dissent in the Party Registration case and I quote, “The Act makes it extremely difficult for a member of the Communist Party to live in this country and at the same time, makes it a crime for him to try and get a passport to get out”.

Furthermore, this Court in Wieman versus Updegraff and on the last term in Elfbrandt versus Russell, applied the rule invoked in Aptheker to invalidate a statute making membership in a Communist organization, a disqualification for employment.

The Arizona statute involved in Elfbrandt was narrower than Section 5 because it at least applied only to members having knowledge of the unlawful purpose of the organization.

The Court nevertheless invalidated the statute because it reached members who did not themselves subscribed to this unlawful purpose or engaged in unlawful organizational activities.

The government says this case is distinguishable from Elfbrandt because Elfbrandt involves state employment and less grave public interest or a more grave public interest is at stake here in the case of defense facility employment.

But certainly, some jobs in state governments, to which Section 5 applies are more security sensitive than many of the non-sensitive jobs to which this statute applies.

To give you only one example, only last week, up in New York, a member of the New York State police who was a minuteman was arrested, a minuteman who used his job in the New York State Police to filter all arsenal weapons for the use of the minuteman.

Elfbrandt invalidated the Arizona statute as to all state employment, sensitive or non-sensitive.

Because as it’s stated at page 17 and I quote, “Those who join an organization but do not share its unlawful purposes and who do not participate in its unlawful activities, surely pose no threat either as citizens or public employees.”

Such persons surely pose no threat, these Elfbrandt words as defense employees either.

Next, the government argues that Congress had no less drastic means available than the means used in Section 5.

Says, that are being impractical to apply the screening technique of the industrial security program to defense facilities in view of the greater number of employees involved.

But — and here’s where the three million figure came from Mr. Chief Justice, the government says in its brief that way back as of 1956, 10 years ago, they had already screened three million employees under the industrial security program.

And Mr. Maroney said here this morning that he was advised that the defense facilities designated by the Secretary of Defense involved only about 1% of total employment in the United States.

Well, if you take the total figure of 70 million that would give us seven million employees of defense facilities of whom three million had already been screened way back in 1956.

William J. Brennan, Jr.:

I don’t understand this, wonder why it’s argued at that way, Mr. Abt, I thought that he said was that the 1% of 3000 was the facilities that he did not know the number of employees.

John J. Abt:

No.

John J. Abt:

At one point in his argument Mr. Justice Brennan, he did said that 1% of the number of facilities.

Mr. Justice Fortas asked him whether wasn’t it true that there were great many more employees involved, and Mr. Maroney said, “No, I think not.

I’ve been advised by some of the defense department that the ratio is about the same”.

Besides which if practicality is a consideration, a more impractical measure than Section 5 would be hard to imagine.

Here it is, 16 years after the Act was passed and Section 5 hasn’t yet even got off the ground.

If our security depended on its effectiveness, we would in pretty bad shape here 16 years after the Act was passed.

Finally the government says that the Aptheker was distinguishable because there is less risk in permitting Communists to venture abroad than in allowing them access to a defense facility.

This argument conveniently overlooks a lured picture of the travel menace that the government painted for the benefit of the Court in the Aptheker case.

But more to the point, the government can’t cite a single instance in which a Communist employee of a defense facility was even suspected of espionage or sabotage during the whole 16 years that the Act has been on the books.

And the only instance it cites prior to the passage of the Act is based on the report of the House Committee on Un-American Activities, and as our brief shows has since been completely discredited.

The government also relies on the findings of Congress in Section 2 of the Act that Communist-action organizations seek to accomplish their ultimate political objective by espionage, sabotage, and other unlawful means.

But this finding is contradicted by the report of a Board which your company that’s ordered, that’s the Communist party register under the Act.

The report reviewed the party’s activities at great length for the full period from its organization in 1919 to 1952.

It found by way of conclusion that the party operates primarily to advance the objectives of the World Communist movement but it doesn’t find a single instance of espionage, sabotage or the use of any other unlawful means in this entire period under review and the report says there of any findings of unlawful party advocacy as it is of a finding of any other unlawful activity.

At most, the Board found that the party advocated violence only as a abstract and therefore protected political doctrine and this Court so viewed the findings in its 1961 decision upholding the registration order.

The decisions in the Aptheker and Wieman cases teach that the scienter required to disqualify a person from employment or travel because of membership in a Communist organization has actual knowledge that the organization has an unlawful purpose.

Mere knowledge of the organization has been officially condemned as insufficient for this purpose.

But even if the rule were otherwise, a member’s knowledge of the registration ordered against the Communist Party couldn’t supply the necessary scienter since the order was not accompanied by any finding of any unlawful party purpose of party activity.

A majority of the Court in the 1961 case held that such a finding of unlawful purpose or activity wasn’t essential to the validity of the registration order because as Mr. Justice Frankfurter put it in his opinion, registration is a regulatory rather than a prohibitory statute.

We disagree with that view for the reasons that Chief Justice stated in his dissenting opinion in that case.

But however that maybe, the section we have here today, Section 5 (a) (1) (D) is clearly prohibitory.

As a result under the logic of your 1961 decision, the findings with respect to the Communist Party are insufficient to support the application of Section 5 (a) (1) (D) to members of the party.

Both the findings of the board and the showing of the government is made in this case demonstrate that the deprivation of liberty imposed by Section 5 of the Act has no real, rational, reasonable relation to the national security.

Simply another manifestation of what Senator Fullbright has characterized and I quote “As our morbid preoccupation with the danger of Communist subversion, a disease which has proved so costly to our personal freedom and perhaps more important to our national dignity.”

The lack of any rational basis for the statute leads the government in its brief to justify it as a war measure and to dismiss the lack of any declaration of war against the Soviet Union as a mere technicality.

After reading the President’s recent speeches on the necessity of improving Soviet-American relations, I can only conclude that there has been breakdown in communications between the White House and the Department of Justice, on this phase of the case and one wonders what might not have been wiser to appoint it under Secretary of State as Attorney General rather than to have made the Attorney General under Secretary of the State.

Abe Fortas:

Did you feel the same way if this involved picking?

John J. Abt:

I’m going through the picking question a little bit later Justice Fortas if I may.

Pardon me?

Abe Fortas:

In this connection?

John J. Abt:

Well, I don’t quite understand the connection because the statute has no application to —

Abe Fortas:

I say if it then — if it then would you feell, is it unreasonable to exclude from defense facilities persons who belong to organizations supposedly by hypothesis dominated by who were peaking action organization —

John J. Abt:

I certainly would, yes, on the basis of mere members in the organization everything that I’ve said about the statute applies irrespective of the nature of the organization.

We got to prove something more than organizational membership, that’s what you said in Wieman, that’s what you said in Aptheker, that’s what you said in Elfbrandt.

I turn now to the First Amendment.

By punishing members of a radical or political minority for engaging in specified private employment, Section 5 (a) (1) (D) restrains the freedom of political association which the First Amendment protects.

The validity of the section must therefore be judged by First Amendment standards.

The applicable standard is that the legislation must be narrowly drawn so as not in the words of Scales versus United States and I quote “to cut deeper into the freedom of association and as necessary to deal with the substance of evils that the Congress has a right to prevent.

Both the blunderbuss impacts of Section 5 (a) (1) (D) on its face and its application to members of the Communist Party, an organization which has not been found to engage in unlawful activity invalidates the section under this standard.

The government’s brief argues that Congress was justified in enacting the section in preference to a narrowly drawn screening program because you and I quote, “it has an immediate interim effect and requires no bulky administrative machinery to carry it into practice.”

But as this Court has so often held considerations of administrative convenience and efficiency that might be persuasive in other context can never justify the infringement of First Amendment freedoms.

And the interim effect of the section, a feature which the government seems to believe to be so desirable and advantageous is enough alone to invalidate the section because as this Court has said and I think it was in NAACP versus Button.

These are — these First Amendment freedoms are delicate and vulnerable and the fact of sanctions is often sufficient to inhibit their exercise even if the sanctions are not applied.

The statute’s chilling effect on the First Amendment freedoms of all Americans, Communists and non-Communist was depicted by President Truman in his veto message in which he said after reviewing the effect of a statute, the inevitable — and I quote, “The inevitable tendency would be to express null obvious uncontroversial subjects.”

I’d like now to turn to three questions which haven’t been touched on the government’s brief and only one of which was touched on in request of Mr. Maroney’s argument.

The first of these involves a question of statutory construction.

It is that the indictment is defective because it alleges only if the Communist Party has been ordered to register as a Communist-action organization but not that the Communist Party is in fact such an organization.

And I think Mr. Maroney inadvertently misdescribed the indictment when I was opening remarks and said the indictment charges that the Communist Party is a Communist-action organization.

There is no such allegation.

The only allegation is that it’s been harder to register as a Communist-action organization.

His latter allegation that is to say the fact, the allegation that the party is a Communist-action organization was omitted because the government interpret Section 5 (a) (1) (D) as making the registration order against the Communist Party conclusive as to its character for the purposes of a prosecution under the section.

This interpretation is contrary to the text of the statute.

The introductory clause of Section 5 provides, and I quote, “When a Communist organization” and I interject to say that means under the statute either a Communist action or a Communist front organization, “When a Communist organization is registered or there is in effect a final order requiring such organization to register then it becomes unlawful for the members to do certain things.”

Section 5 (a) (1) (D), the subsection of that section which is immediately involved here provides and I quote, “If such organization referring back to a Communist action or Communist fund organization that has been ordered to register.

If such organization is a Communist-action organization then it is unlawful for the members to hold defense facility employment.

I think it’s clear from this wording that Section 5 is applicable to the members of an organization which both is a Communist organization or in the case of Section 5 (a) (1) (D), a Communist-action organization and which is either registered or been ordered to register as such an organization.

In other words, Congress in this section made the existence of the fact and not only of the Board’s finding as to the fact an element of the offense.

The wording of other criminal provisions of the Act cited in our brief showed that this result was deliberate.

Or one of them unlike Section 5 (a) (1) (D) and Section 6 (a) makes the fact as well as the findings an element of the offense.

Others like Section 6 (b) of the act, Section 10, Section 15 (a) clearly predicates the criminal liability only on the existence of a registration order and the finding by the board that the organization is that a Communist organization and not on its actual character.

John J. Abt:

The construction of Section 5 in accordance with its text as I’ve indicated it is required by the rule of strict construction of criminal statutes and as compelled, we think by three constitutional considerations that I’d like to indicate very briefly here.

First, the government’s construction of the section denies appellee procedural due process because it precludes him from challenging in the criminal proceedings the validity of the Board’s 1953 determination that the Communist Party was a Communist-action organization, a determination made in a proceeding to which it was not a party.

Moreover, even if it could be said that the appellee is bound by the Board’s determination taken in his absence could still be entitled to litigate the current character of the organization or the current validity of the Board’s determination which is now 13 years old and as the Chief Justice pointed out in his dissenting opinion in the 1961 case is based on evidence that’s far more than 13 years old.

We — our position is that the appellee is not accorded due process by Section 13 of the Act which permits a registered organization to apply periodically to the board for a redetermination of the status.

In the first place, this procedural is available only to organizations and not to individuals.

Therefore, it’s not available to the appellee.

Furthermore, it’s not available to the Communist Party.

Because under Section 13, an organization must first register in a Communist-action organization before it can apply to the Board for a redetermination of its status.

Now, the Communist Party hasn’t registered under the Act.

It’s still litigating the constitutionality of enforcement of that provision against it under the questions that are litigating the questions which is quite held premature in the 1961 case.

Obviously, it’s got a right, a constitutional right to have those questions determined and the appellee can’t be denied these constitutional rights because the Communist party is asserting its own.

The government’s interpretation of the section would also invalidate it as a bill of attainder.

In the 1961 case, a majority of the Court held that the Act’s registration requirement didn’t obtain the organization.

This conclusion was based on the few that Section 13 would permit the party to secure a periodically determination of its status and hence that observance of the obligations, have registration and impales is made to turn on what the Court in its opinion called and I quote, “Continuously contemporaneous fact in this effect.”

But as I have shown the party can’t secure a redetermination of its status so long as it resists the effort to enforce the registration requirement against it.

Nor paradoxically will that ever be able to secure a redetermination of it’s status, if it’s successful in the pending litigation and the registration order is found to be constitutionally unenforceable.

In any event, a Section 13 proceeding isn’t available to the appellee.

Under the government’s interpretation of the statute therefore which doesn’t give the appellee to the right to contest the validity of the determination on the criminal trial, he has no possible escape from the effect of a Board’s determination that the Communist Party is a Communist-action organization even if that determination no longer has any validity.

His position that is the appellee’s position today is exactly the same as all of the Communist Party has been named in the Act.

The Board’s determination that the Communist Party isn’t a Communist-action organization, it has that effect as to him and that being so the statute as the government would interpret is invalid under the Court’s decision in United States versus Brown.

The final constitutional difficulty that the government’s interpretation of the section entails is that it deprives the appellee of the rights of indictment by grand jury, a trial by petty jury and proof of guilt beyond reasonable doubt.

This is so because Section 5 can’t be constitutionally applied to him unless at least the Communist party is of characteristics which the Act attributes to a Communist-action organization.

Yet under the government’s construction of statute this issue affect was withdrawn from the grand jury that returns the indictment and the petty jury that deprives the case and is confided to an administrative agency, the Subversive Activities Control Board which moreover is told to make its determination on the basis of the preponderance of the evidence and not on proof beyond reasonable doubt.

If this procedure were permissible, Congress could frame almost any offense in terms that would provide for the determination of essential facts by an administrative agency and thus bypass the jury trial of the most controversial factual issues on which criminal liability depends.

To cite, give you only one example, Congress to pass a statute saying that it’s a crime for a taxpayer to refuse to pay, fail to pay a deficiency which the Bureau of Internal Revenue has determined because the taxpayer failed to report income which he earned making the Internal Revenue Services determination that taxpayer earn income and failed to report it are conclusive for the purpose of (Voice Overlap) cases.

Certainly —

Abe Fortas:

That suppose instead of a criminal sanction here, the — and all of these procedures this doesn’t spell down in the Act then it handed a notification to the employer and to the employee that the man is no longer suitable for employment and the employer has an obligation to discharge him.

Would that cure your problems?

John J. Abt:

It would cure of the particular point that I’m now discussing Justice Fortas because we no longer have been talking about a criminal statute.

It wouldn’t cure of the invalidity of the statute under Elfbrandt, under Wieman, under Aptheker, that the state’s invalidity which resides in a fact that statute makes a the bare fact of membership without consideration of these other essential elements, a disqualification for employment.

Abe Fortas:

Let’s suppose that instead of talking about the Communist Party here, you were targeting that the society to blow up defense facilities of the United States and its so-called and that there is a finding to the fact that that was in truth and in plan and purposes as the organization.

Now, is it still your contention that such a case the person concerned will have to be given an opportunity to have a trial and prove that this society didn’t really mean what it said?

John J. Abt:

Not that society didn’t mean what it says but that the member didn’t endorse the use of the society when it became a member; it may have become a member to reformat, it may have become a member because the FBI send them in there as a (Inaudible) agent, an informant.

It may have become a member for a lot of different purposes and you can wreck my view by changing the name of the outcome Mr. Justice Fortas because there is something much more essential involved here.

Abe Fortas:

Well, that’s what I’m trying to get at by this extreme example that it’s like that I thought a few moments ago you we’re expressing as one of your points here that the individual did not have an opportunity to challenge the determination made and applied in this case as to the purposes and character of the Communist Party.

John J. Abt:

That’s correct.

Abe Fortas:

Well, then I ask you the in the case of the society for the purpose of blowing up to the defense plants would you say that the structure would be defective unless the individual had an opportunity to litigate everything?

John J. Abt:

Every case, that’s what the Court held in the twin cases of Scales and Noto.

Abe Fortas:

And even if that were — even if the sanction were a civil one rather than it is termination of employment rather than a criminal one.

John J. Abt:

Now, you’re asking me a very easy question.

Abe Fortas:

Where — this is a nifty business.

John J. Abt:

Right.

I have to think about it if you put it in terms of a civil sanction.

I still think my first reaction would be yes.

Under Elfbrandt, under Wieman, under — which your civil cases, which involved only a disqualification, they’re not a criminal penalty.

Abe Fortas:

Well, I supposed as a cleared variant on this, we were talking about not about defense facilities in general but about top secret past be jobs where the person cannot work on top secret classified job if he belongs to this kind of a society.

John J. Abt:

Best answer I can give you on that Justice Fortas is what the Court of the Commission on Government Security said in 1957 and they would know that as fire out lifters I believe as I recall that as under the chairmanship of the President of the American Bar Association that was a tripartite commission, I think Senator Eastland former Chairman of the Un-American Activities — pardon — were both members of it and they said that — they proposed the statute — a model statute on government security which is printed as an appendix to their report.

And that statute proposal provides that mere membership in the organization is not sufficient that the body considering the security question must consider the purpose that the member had in joining it, his actual knowledge of the purpose of the organization and the degree of his participation in these activities.

And I go along with that.

Abe Fortas:

You would apply this even to the sanction of severing the person from the top secret job.

John J. Abt:

Yes, I would.

Abe Fortas:

That makes any kind of a security system very difficult.

John J. Abt:

It’s a kind of a security system that we’ve had during and ever since World War II with reference to defense contractors in the most secret jobs there are.

That the government, the industrial security programs sets up a screening system.

Abe Fortas:

I know, but supposed (Voice Overlap) the state?

John J. Abt:

And under the Department of Defense’s regulations, mere membership is not disqualifying for security clearance in the access to the most secret work.

Abe Fortas:

That’s because they’ve been able to litigate those very well.

John J. Abt:

No, it hasn’t been a question of litigation —

Abe Fortas:

Suppose that follows at hand and then he — the government later thinks he ought to be removed for the reasons we’ve been discussing, do you believe that the government’s without power to device any kind of a system to remove him without proof of — to remove them on the basis of his — the organizations to which he belongs?

John J. Abt:

Merely, on the basis of the bare effective organizational membership?

Abe Fortas:

I’m not going to the assumptions you want to about findings as to the organization.

John J. Abt:

Yes.

Abe Fortas:

Let’s take my — the organization which I’ve referred about defense installations.

John J. Abt:

Mere, their membership isn’t enough.

You got to show something more about the individual, personal qualities of the individual.

Otherwise, you’re — this is pure guilt by association and let me say well, a man is a fool to join such an organization that he doesn’t believe in it.

But the fact that the man is a fool doesn’t make him a security risk.

The government says that if they’re required to prove the character of this organization in each prosecution under Section 5 that Section 5 would be unenforceable.

But as I noted in answering one of Justice Fortas’ questions that’s a precisely what this Court held that the government has to do in cases under the Membership Clause of the Smith Act in its decision in Noto versus United States.

Besides that, you have Section 5 is unenforceable.

It will be because the Act as a whole was unenforceable, as 16 years of ruthless litigation should by this time pretty well have established.

It’s unenforceable because it attempts to do the impossible, to accomplish an unconstitutional purpose, the outlawry of a political party in a constitutional manner.

Any Congress surprised to accomplish this is bound to stumble.

The statute is bound to be unenforceable either because it’s unworkable or because it’s unconstitutional or both, as President Truman held or stated in his veto message was the case with this statute.

William J. Brennan, Jr.:

Mr. Abt, is it your position the government would also have to prove that the shipyard is a defense facility?

John J. Abt:

Yes, that’s the next point that I was going to simply state.

We’ve argued it in our brief.

We didn’t make the delegation point that you raised Mr. Justice Douglas — Justice Brennan.

We do say that there’s a violation of procedural due process here because of the Act affords no hearing whatsoever that the person’s affected before a defense — a plant is declared to be a defense facility —

William J. Brennan, Jr.:

Merely, a government-proof limited to the fact of the Secretary of Defense.

It designated that way, that as such.

You say it would not be sufficient.

John J. Abt:

That’s’ not sufficient.

William O. Douglas:

(Voice Overlap) delegations.

John J. Abt:

Well, we argued at the point of procedural due process that before a man’s hurt by a designation, he’s got the right to be heard as to the validity of the designation.

William O. Douglas:

Now when someone said it might be a delegation to draw a one year period because there had been a point, wouldn’t it?

You got to prove that the jury was —

John J. Abt:

That’s not an issue of the trial.

And the indictment doesn’t allege that the plant is a defense facility within the meaning of the Act, it only alleges a designation.

William O. Douglas:

Your position is they would have to allege and prove, isn’t that right?

John J. Abt:

At a minimum.

I think even that would be insufficient because I think before a man’s indicted for working in a defense facility, he’s got a right to have a hearing as to whether the designation was a proper one or not.

And he can’t have that hearing only in connection with a criminal trial.

He doesn’t have to take a risk of violating a statute in facing a criminal trial before he can make that point.

My final point deals with the question that Justice Fortas raised.

We say that the section is unconstitutional as applied because the registration order against the Communist Party has been invalidated by facts of which this Court can and should take judicial notice showing at the world Communist movement described in Section 2 doesn’t exist.

By definition there can’t be a Communist-action organization unless there’s a World Communist Movement that meets the Section 2 description.

This is so because the definition of a Communist-action organization is tied in with the findings of Section 2.

Section 33 defines a Communist-action organization as an organization which is controlled by the foreign government controlling the World Communist Movement described in Section 2 and which operates to advance the objectives of the movement described in Section 2.

Section 2 finds that there exists a World Communist Movement made up of Communist-action organizations which are not free and independent but are national sections of the World Communist Movement and are controlled by and subject to the discipline of the Communist dictatorship of an unnamed foreign country.

The Board found that this country was the Soviet Union.

Now on affirming the Board’s order against the Communist Party, the Court in its 1961 decision held that the characteristics of the World Communist Movement and the source of its control as found in Section 2 are not subject to proof or disproof in the registration proceedings.

It regarded the finding of the Board that the Soviet Union was the unnamed foreign power referred to in Section 2 as a matter of law – question of law, a matter of statutory construction which it affirmed.

The Court recognized that a change in the world situation would invalidate this construction and that the time might come when in its words and I quote, “The board or a reviewing court will be able to say that the World Communist Movement as Congress meant in the term in 1950 no longer exists.”

Well, as Mr. Justice Fortas’s question implies, the future world situation which the opinion envisaged has materialized.

Whatever may have been said about the Section 2 findings in 1950 when they were made, the description of Communism as a monolithic world movement under iron Soviet control dedicated to the overthrow of all free governments by a criminal means applies in the face of the facts of contemporary political life as everybody knows.

Yet for the reasons that I’ve indicated, neither the appellee nor the Communist Party can secure Board consideration of these facts nor could the appellee litigate the issue in this criminal trial since the Court in the 1961 case held the issue as one of statutory construction.

Accordingly, it’s incumbent on the Court, this Court, to take judicial notice of the self-evident fact that in the words of your 1961 decision, “The World Communist Movement as Congress meant to term in 1950 no longer exists.”

Abe Fortas:

You may get it — what do you do with the point that let’s take it — let’s assume your argument is correct and but let’s assume that the change in facts is that they’re now two world dominant Communist organizations, are Communist governments which dominate the World Communist Movement, does that make any difference to your argument?

That is to say and I don’t personally happen to know of any facts which of I would be willing to take notice in a way to effect that there is no Communist government in the world.

John J. Abt:

No, of course not.

I’m not suggesting that.

Abe Fortas:

There is some evidence to the effect that there are now two powerful Communist organizations or what they had call both the dominant and not depends upon how you construe the word.

Does that make any difference?

William O. Douglas:

I don’t think it makes any difference Justice Fortas for this reason, what — once they get beyond the fact or once we agreed that as everybody knows there’s no single boss of the World Communist Movement anymore.

The whole premise of the Act is fictitious and the finding of the Board is fictitious.

Abe Fortas:

Alright, I then say — and all they say — the difference that it makes is that you got to look to two Communist governments instead of one.

William O. Douglas:

Yes, but not.

But if you say that then you’re a legislating.

You’re no longer applying your statute as this statute is based on the existence of only one.

William O. Douglas:

And I submit in conclusion that declaration that this statute as drawn now.

It’s based on a fictitious premise in the light of what’s, we all know that that is overdue and moreover, that would have the wholesome effect of relegating not only Section 5 but this entire Act to where it belongs in a museum of antiquities along with the alien sedition laws, the Dred Scott case, the (Inaudible) as reminders of path transgressions of civil liberties in this country at times of national crisis and as a warning against the repetition of such horrors in the future.

Thank you.

Earl Warren:

Mr. Maroney

Kevin T. Maroney:

Mr. Chief Justice may it please the Court.

I would just like to bring to the Court’s attention in connection with these categories under the delegation of authority.

The five categories that we were quoting this morning were from the Defense Department’s release that was made at the time these listings were placed into effect.

The similar criteria, frankly identical criteria which were before Congress are set forth at pages 443, 444 of the hearings on HR 9753 which is quoted in our brief — cited in our brief.

There are very slight changes of a few phrases

For example, the first criteria stated to Congress was top secret projects, facilities engaged in top secret projects and then it was explained that that was meant to include top secret, secret and class — and confidential which is the same really as important classified military projects.

Earl Warren:

Is that a recommendation in the Committee Report?

Kevin T. Maroney:

Yes, this is an explanation to the committee as part of the Defense Department statement that a tentative list had been prepared which fell into these categories.

Abe Fortas:

Well, this is from the Department of Defense?

Kevin T. Maroney:

Yes.

Abe Fortas:

To the committee?

Kevin T. Maroney:

To the committee, yes.

Now, I would also just like to address myself for a minute to the question raised by Justice Fortas as to whether or not it might have been appropriate or let’s say more appropriate for Congress to have provided that a government agency could notify an employer and have the result of the employee being dismissed.

We think it’s quite clear that Congress did intend the statute have an interim effect.

The purpose of course was to get these people who insisted on remaining members of the Communist-dominated, foreign-dominated group out of these places where in an emergency situation that they could do substantial damage.

If the alternative suggested were adopted, the person who is then a member of an organization such as this could merely continue his employment.

It could be that he would never be found out and he would have nothing to lose by doing so.

This way, Congress really puts him to making a choice of either remaining in the organization or giving up his defense employment for the purpose of getting him out there if he is going to remain associated with the organization.

Thank you.