STATEMENT OF ERNEST ANGELL, ESQ., CHAIRMAN OF THE BOARD OF DIRECTORS, AMERICAN CIVIL LIBERTIES UNION, RE SENATE JOINT RESOLUTION 21

My name is Ernest Angell. I am appearing today on behalf of the American Civil Liberties Union. I have been a member of its board of directors for 11 years, and the chairman of its board of directors since 1950. I am a New York attorney and have had considerable experience in the problem of screening out Communists, since I was chairman of the Loyalty Review Board of the Second District (Civil Service Commission) from 1948 to 1950.

The organization of whose board I am chairman is a national nonpartisan organization of some 30,000 members, which welcomes the support of all thoseand only those whose devotion to civil liberties is not qualified by adherence to Communist, Fascist, KKK, or other totalitarian doctrine. We recognize that the sole purpose of our work, the preservation of civil liberties, is anathema to the Communists. We are violently opposed to Communist totalitarianism, as well as all other forms of totalitarianism. May I now hand to you a copy of our statement dealing with the issue of communism, which I ask to be inserted in the record. The committee might also be interested in knowing that so far as we are aware, we were the first organization to exclude members of the Communist Party from its governing bodies and staff, a step we took 15 years ago.

The ACLU gives its enthusiastic support to Senate Joint Resolution 21, which would establish a commission to study the methods used to protect our security and the effectiveness of these measures.

This resolution should rank high on the list of priority legislation now before the Congress.

Since 1945, when the conflict between the Communist and the free world was joined, the Nation has been exposed to a plethora of security action. There is no quarrel with the purpose of such action, to preserve our national security, for there is amp e historical evidence to emphasize the need for our free society to remain on guard against Communist infiltration and subversion. But the question raised by this resolution is the ways and means that have been employed to achieve security, and equally important, an evaluation of the danger that faces us. In the haste of those months when the peril of Communist infiltration was first raised, there was little opportunity fully to weigh the danger. Security and loyalty programs of all kinds were adopted, which stemmed from our national preoccupation with and fear of Communist subversion. There was a general assumption that the line of clear and present danger had been reached, and that unless drastic action was taken, our country and its free institutions would be lost. In the light of our experience with these programs, in which we have seen abuse of individual rights and our traditional liberties, I think it is safe to say that if the Nation could start fresh we would plan our security programs more carefully, and utilize wisdom and commonsense to prevent these errors.

For example, there might be serious question about the proliferation of programs created and which have gone off in several different directions at the same time. There is supposed to be one program for all Federal employees, but, in fact, different agencies in the Government have different programs. There is one program for industrial personnel, another for contract employees, a third for the Coast Guard, and still different programs for military and civilian personnel in the Armed Forces, for ROTC enrollees, etc.

Considering that the Nation may have to live with security programs for a long period of time, it is vitally important now that somebody in our Government should ask: Where does the real Communist danger life? Do the security programs meet this danger? How have the programs been working? What have the programs done to our civil liberties, the freedom we are determined to protect against Communist tyranny?

While the evaluation of the danger is an essential element of this study, it might not be necessary to create the Commission recommended in the resolution if that were its sole function. But there is more that must be done. A commission must discover if our security programs have really accomplished their purpose and if they have aided or harmed national security and individual liberties. The answer to all these questions can be supplied by the Commission, and the ACLU ventures the comment that its efforts would be a national service of the highest order.

To point up the ACLU's firm belief that such a commission review is long overdue, I should like in the limited time available to me, to analyze the major security programs, to indicate the inconsistencies, and to mark the abuses, which from our civil liberties vantage point, clearly demonstrate the need for revision.

As the very outset I desire to make it clear that the ACLU is not opposed to personnel security programs in principle. We realize that the Government quite properly seeks to protect itself against the presence in sensitive positions of persons who are disloyal, or of those of complete loyalty where other reasons might make their presence in a sensitive position a real danger to our national security. We have urged, however, that in all the various Federal security programs, the basic fifth amendment right of due process of law must be strictly preserved, that all hearings must comport with our age-old traditions of fairness. We will have more to say later in some detail on those aspects of present security programs which we believe violate due process.

We urge, as we have urged since the inception of the first Federal loyalty program for employees in 1947, that any security or loyalty program designed to protect our national security must actually be designed to do just that-and no more. The cry has been for these many years that all Communists, all persons suspected of disloyalty must be removed from the Federal payroll, whether or not they receive Federal moneys as employees, as grantees of awards, or as contract employees, and whether or not the positions they hold may really render them a danger to the national security. We submit that this emotional reaction to the Communist threat, understandable as it is, has fogged the atmosphere and actually endangered our security. The emotions which lead many Americans to cry for the exclusion of disloyal persons everywhere can also lead us to strike out somewhat blindly, without judging the situation as it should be judged, on the basis of facts and reason. And what are the facts?

The fact is that the Federal loyalty program prescribed by President Truman's Executive Order 9835 required screening for loyalty of all persons employed by the Federal Government. Several million employees had to be screened, whether or not their positions would give an opportunity to a disloyal person to commit acts dangerous to national security by virtue of that position. The result was that the FBI and other Federal investigative agencies had to spread too thinly their resources, which are not unlimited. Had such resources been concentrated upon investigating persons in positions offering an inherent possibility of practical misuse, a much more prompt and thorough investigation might have been done. True, the emotional desire of the American people to oust disloyal persons wherever they may be found would have been less fully satisfied, but we would have had equal comfort in the knowledge that the FBI and other investigative agencies were more effectively protecting our national security by concentrating on those in sensitive positions where the real danger lies. The restriction of the program to these positions would have avoided the dragnet system which is now employed and which has struck such fear in the hearts of Government employees. We noted that side by side with the old loyalty program, there existed an administrative security program for actually investigating persons who held sensitive positions in certain departments. We were pleased when Congress enacted the famous Public Law 733, which for the first time gave certain procedural protections of due process to those who had to undergo security checks in these particular departments. We were pleased, too, when we found that the Eisenhower administration apparently agreed with our position on the loyalty program, when it terminated that program and instituted a security program in Executive Order 10450. This was done by an extension of the provisions of Public Law 733 to all Government agencies, and we had hoped that in accordance with the spirit of that order, investigations of loyalty would be limited to persons occupying sensitive positions. We are pleased to report that in the Executive order itself, there were provisions which, even though cumbersome in operation, would have permitted the transfer of a person found to be a security risk in a sensitive position to a nonsensitive position. But we have found in practice that this provision has just not worked, and individuals have not been granted transfers even in cases where they asked for them and when no question of disloyalty was involved. Let me add here that everything we say is backed by material in our files. We are avoiding referring to specific cases in order not to embarrass any of the individuals involved. Should this subcommittee wish to examine any of the individuals involved or secure their names so that the committee may get the files of these cases from the Government, we should be more than willing to cooperate with it by getting in touch with the individuals concerned or their attorneys to see whether they would be agreeable to this procedure. In such an event we would suggest that the hearings to be held should be secret, unless the former employee wishes otherwise, so as to avoid embarrassment.

Because of the problems arising under Executive Order 9835, we supported in 1951 the appointment of a commission to study the operations of the loyalty and security programs, as proposed by President Truman. We believe that a commission to study the problem is now even more important, for the various security programs have reached such absurd heights that only a thoroughgoing study of them with legislative remedies to follow can really cure the situation. We will attempt in the next several minutes to refer to the high points of some of these abuses.

A. FEDERAL EMPLOYEES

1. There is still a loyalty program.—We applauded what seemed to be the abolition of the old loyalty program when President Eisenhower terminated it in Executive Order 10450. Therefore, we were later completely astonished—and we think that this committee will be astonished, too-to learn that a loyalty program is still going on, though it lacks authority in law and though it is contrary to the entire purpose of Executive Order 10450 which formally eliminated loyalty programs. We learned that the Civil Service Commission, notwithstanding the abolition of the old loyalty program, had nonetheless been carrying on a loyalty program for certain individuals. The Attorney General's office was consulted in 1954, and as a result of a letter from it to the Civil Service Commission early last fall, the Commission did drop its loyalty program for appointees, but it still continues to carry on a loyalty program for applicants for Government employment and for transferees. This has resulted in an even worse situation than under the old loyalty program. For under Executive Order 9835, applicants for employment and transferees had a right to a hearing on the question of their loyalty, while under the Commission's present loyalty program, there is no right to such a hearing. Thus, persons are marked as disloyal without any hearing whatsoever, and indeed without any jurisdiction in the Commission to make such a determination. The program has operated largely in the dark. There is probably no legal means of attacking it in the courts, for applicants and transferees probably have no standing to sue. We have protested this to counsel for the Commission, but to no avail. We plan shortly to take up this problem-as well as the other problems we will refer to hereinafter re Federal employees-with the Attorney General's office but We urge that the Congress set this situation right immediately, if the Attorney General's office does not promptly act to correct it.

2. There is no uniformity in procedures from agency to agency.-The various personnel security programs have differed greatly from one to another. The reason for this is that the Executive order setting up the security program does not provide for any minimal procedural guaranty, nor does it spell out the criteria to be applied in determining whether a person's retention in employment poses a threat to national security. Each agency has the right to set up its own procedures, its own criteria. Indeed, we have learned to our great astonishment that the FOA until a few days ago administered a security program for contract employees, but had no criteria to guide it, nor did it have any procedures whatsoever for giving a contract employee an opportunity to be heard in his own defense. But more on contract employees later.

3. The problem of suspension.-Section 6 of Executive Order 10450 requires that an employee must be suspended immediately if suspension is deemed necessary in the interest of the national security. We have found in many cases that persons have been suspended who have been accused of the most trivial matters, and are in positions where they could not pose any threat to the national security. Indeed, the Defense Department has recntly publicly admitted that when the same standard was used to require suspension of those individuals working on defense contracts who needed security clearances, far too many individuals were suspended. Indeed, in its new regulations, to become effective within the next couple of weeks, that Department now permits suspension by security officers only when they would otherwise be an immediate "threat" to the national security. The adoption of this reform would limit the number of hardship cases that have been publicized in the newspapers, in which life savings and other resources have been expended before the case was decided.

We are pleased that Attorney General Brownell in an exchange of letters with the President under date of March 4, 1955, has established that "meticulous care should be exercised" before suspension. A personal interview prior to suspension is suggested, for it is recognized that "the final decision as to suspension should not be delegated below the Assistant Secretary level." This is a step forward indeed, but a commission might study all the other programs to determine why

similar measures cannot be instituted in the other security programs. And in any event, even the exchange of letters does not tighten up the criteria which can be used for suspension, thus permitting an employee to be suspended even on trivial grounds so long as the suspension is made by a higher authority.

4. Definition of sensitive positions.-While we applauded the 1953 definition of a sensitive position as one having a "material adverse effect on national security," we have been dismayed to note that all positions in several departments or agencies have been arbitrarily labeled as sensitive without any reference to the sensitivity of the particular position. Persons have been removed on grounds which can hardly be called serious from positions which can only have a remote effect upon national security.

5. The use of the Attorney General's list.-Under the old loyalty program, organizational membership could not be considered as derogatory information unless the particular organization in question had been listed on the Attorney General's so-called subversive list (though disloyal activities in connection with any organization could be considered). But there was no such restriction in the security programs under Public Law 733, and unfortunately, the present security program also fails to contain any such limitation. The result has been that security officers have arbitrarily decided for themselves that certain organizations are Communist or subversive. Indeed, at one point, one agency drew up for itself a list of subversive organizations which included all organizations on the Attorney General's list, and those listed by the House Committee on UnAmerican Activities, any State committee investigating subversive activities, any private organization, and those which were ever mentioned as Communist or subversive in correspondence between Government officials. Fortunately, this practice was immediately stopped when we called it to the attention of the appropriate authorities in Washington. The result has also been that, on several occasions, thoroughly loyal patriotic organizations have been considered as Communist by certain security authorities. We know of at least four organizations which have had their attention called to this problem several times. While in each case the matter has been satisfactorily settled by a representation to the head of the agency concerned in Washington, no one in these organizations knows how many times this has happened to other groups which are thoroughly loyal, nor do they know how many times it has happened to members of their own organization who have not reported it to the organization. The inevitable tendency of this failure to limit consideration of organizational membership to those listed by the Attorney General is to discourage people from joining organizations. How does anyone know today which organizations will be considered Communist by some security officer who sets his judgment above that of the chief law-enforcement officer of our country? And so, freedom of even nonCommunist association is threatened. We have conferred with the Attorney General's office on this problem; we plan to attempt to see the Attorney General himself together with delegates from other organizations, including those who have been in such difficulties, but in the meanwhile, we point out that this is another facet of the excesses which the present preoccupation with security has caused.

There are several other problems in connection with the Attorney General's list. While recognizing that the existence of the list tends to inhibit free association, without this guide security officers would have no defined basis for judging an employee's origanizational associations. But this does not mean that the list as constituted is good. (a) The whole list should be reevaluated, and only those organizations kept on the list in which membership might be really relevant in determining whether an individual's employment constituted a security risk. For example, membership in the Ku Klux Klan may well be irrelevant to national security in most sensitive positions. Similarly, while membership in the Socialist Workers Party might be some indication of measurable disloyalty, membership in this Marxist but vehemently anti-Soviet organization, would indicate little or no threat to security at the present time. (b) Another problem of the Attorney General's list is one of administration. We believe that public notice should not be given of proposed designation; the organization should be given notice privately unless, of course, service by publication must be resorted to The hearings should be public or private at the option of the organization. Anything else may result in severe hindrances to freedom of speech and association arising from public notice that an organization may become listed, even though the organization may after hearing clear itself of all charges. (c) We are also unhappy at the fact that, while the Attorney General has commendably instituted the practice of hearings, the

regulations which he has set up for the hearings, while not necessarily resulting in unfairness, do permit unfair methods to be used with impunity. (d) In fact, no hearings have as yet been held. (e) An additional evil has resulted from these procedures by the listing of defense committees; this interferes with legitimate fund raising for proper defense purposes and thus constitutes a violation of a right to fair trial. Moreover, publicity about the official designation or intended designation of any such group on the eve of court argument in a case for which the fund is raising money, as occurred a few years ago in the Bridges case, may especially impair the rights to a fair trial because it cuts down on fund raising abilities at a time when the fund raisers may achieve the greatest publicity. Of course, these comments do not extend to any group which is not a bona fide defense committee.

We know of one case, for example, in which a young man who applied for a job admitted that when in high school he had been a member of American Youth for Democracy. He was not asked to explain his membership, nor apparently was any consideration given to his present anti-Communist beliefs. He was merely not hired. He was applying for a job which could hardly have been considered sensitive.

At the present, a man who wishes to hurt someone he dislikes may with impunity advise the FBI that his enemy admitted to him once that he was a member of the Communist Party. And if the enemy should apply for Federal employment, he doubtless would not have been hired. It would be only by the greatest good fortune that he could find out the name of the informant and sue him for libel-even then he would have to prove malice to be successful. Doubtless he would not be prosecuted for perjury, for we know of no case in which a man has ever been prosecuted for giving false information about another's loyalty to the FBI. Thus, a man today can be denied Federal employment purely as a result of malicious false statements about him. This is a monstrous perversion of security protections.

6. The lack of hearings.-Under Executive Order 9835, all employees and all those applying for employment were given hearings on the question of their loyalty. But today there is absolutely no provisions for hearings for probationary employees or applicants. Indeed, virtually every Federal agency-except the Air Force and Atomic Energy Commission-will refuse to even tell an employee of the charges against him and give him an opportunity to reply in writing. The results are ridiculous.

This may be as appropriate a point as any to emphasize that applicants for Government employment, probationary employees and transferees, have no right whatsoever to a hearing. They are treated as State Department contract employees are treated and as FOA contract employees had been treated until several days ago. Thus, a substantial part of Government workers or potential workers who serve the Government either directly as employees or through private employers who contract with the Government, have no rights whatsoever to a hearing. Any charge against them, no matter how invalid or preposterous, no matter how minor a part of the total picture, operates to deprive them of jobs. The applicant and the potential employee, who have to pass the hurdles of security, must also pass the hurdles of a Civil Service Commission loyalty test-and here they have no hearings either. There may have been some excuse for this when the Executive Order 10450 was instituted, since there was a huge influx of new employees, but even if improper conduct could be excused on pragmatic grounds-which we do not admit for a moment-surely there is no excuse for such a procedure today.

In this connection, we should also note that the Air Force and the Atomic Energy Commission do grant hearings to applicants for potential employment. We can see no reason why all other agencies of the Government should not be required to grant such hearings. Executive Order 10450 requires equal treatment for all Government personnel, but in practice almost every agency has treated its potential employees and applicants less fairly than have the Atomic Energy Commission and the Air Force. The Commission may well inquire as to the reasons for this and make recommendations to insure uniformity and to insure fairness.

7. The need for centralized review.—Under the old loyalty program, an employee or an applicant has the right to have an adverse decision by a local board reviewed by the Loyalty Review Board. This was composed of eminent private citizens who, as judges sitting in appeal, had nothing to fear from political reprisals should they make an unpopular decision. However, under the present security program, there is no such right of appeal. Moreover, while the various