purpose of protecting the national security and safeguarding the rights of employees and applicants. The letter recommended that certain changes be implemented for greater efficiency and uniformity of operations, and those changes have been made, but concluded that there were no compelling reasons to make any major modifications in the existing program.

Furthermore, to the extent that this bill is designed to provide statutory authority for a revamped version of the Federal employee security program, it is simply not necessary. Ample statutory authority for the program is provided by title 5, United States Code, sections 3301, 7301, 7531, and 7532.

Finally, as you are aware, Executive Order No. 11605, issued by the President on July 2, 1971, as an amendment to Executive Order 10450, authorizes the existing Subversive Activities Control Board, upon petition of the Attorney General, to make determinations regarding today's new revolutionary organizations, and also empowers the Board to determine that certain designated organizations have ceased to exist or no longer satisfy the criteria for designation.

Although both this bill and the new Executive order seek to deal with the new terrorist organizations which advocate the commission of acts of force or violence to deny others their rights under the Constitution and laws of the United States or which seek to overthrow the Government of the United States or that of a State by unlawful means, the Department considers the Executive order's definition of these types of organizations to be superior to that set forth in section 6(a) (2) of the bill. Additionally, the Executive order encompasses and defines "totalitarian," "fascist," "communist," and "subversive" organizations, which the bill does not.

The Department feels that any additional statutory authority is not required for the assumption by the SACB of the function assigned to it by Executive Order 11605. We do believe, however, that the newly assigned functions of the SACB could be better accomplished by the enactment of H.R. 9669. This bill would rename the SACB, grant it subpena power, make applicable to its proceedings certain due process features, and incorporate it, along with the judicial review provisions of the Subversive Activities Control Act, into the existing personnel security program without legislating major modifications in the pro

Chairman ICHORD. Thank you, Mr. Chairman.

Mr. Maroney, I greatly appreciate your appearance before this subcommittee today and the giving of the views of the Department of Justice.

I would say this, I am not so much disappointed in the Department opposing the bill which Mr. Preyer and I have introduced as I am of the fact that the Department of Justice failed to come up with alternatives to solve some very difficult problems which we have in the whole field of personnel screening.

I am not wedded to any of the particular provisions in this legislation, but I think the existing program is definitely defective. I don't think it is going to serve any point to go over those deficiencies as we

did cover them in the appearance of your Department before the subcommittee a number of weeks ago.

The Internal Security Act of 1950 and the personnel screening program have been severely restricted by numerous court decisions such as U.S. v. Robel, Stewart v. Washington, Cole v. Young Boorda v. Subversive Activities Control Board, and several other cases. But, as I see it, H.R. 9669, which the Department is proposing, doesn't do anything except attempt to give the Subversive Activities Control Board something to do-and certainly they haven't had very much to doby making, in effect, the Subversive Activities Control Board perform the function which, at least a number of years ago, was performed by the Office of the Attorney General and, of course, validating Executive Order 11605.

Is that a correct assessment of H.R. 9669?

Mr. MARONEY. Of course we view H.R. 11605 as being a vehicle by which the so-called Attorney General's list can be updated and made current and more significant than it is today, than it has been in recent years and through the addition of the criteria in the Executive order relating to violent action organizations to permit a determination and designation of some of the new revolutionary terrorist organizations. We feel that through the implementation of that Executive order, through the hearing procedures which can be provided by the Board and could be made much more effective if H.R. 9669 is passed, that the departments and agencies of the Government would then have more significant information upon which to implement their security programs.

Chairman ICHORD. But does it do anything other than give the Subversive Activities Control Board the responsibility of performing the function that at one time was performed by the Attorney General's office of updating and preparing the list of organizations for guidance in the operation of the personnel screening program?

Mr. MARONEY. It adds the additional criteria. The old Executive order related to Communist, Fascist, organizations of that kind. The new Executive order adds the criteria of violent action oriented groups.

Chairman ICHORD. In your statement you have stated that H.R. 11120 repeals certain provisions of the Foreign Agents Registration Act. Prima facie, the bill does appear to repeal those sections, I agree. But I understand, Mr. Chairman, that Mr. Nittle has a different opinion, which is that it does not repeal those sections. Mr. Nittle? Mr. NITTLE. That is correct, Mr. Chairman.

Chairman ICHORD. Prima facie, I would agree with Mr. Maroney. Certainly it could be amended very easily not to repeal those sections. But I don't understand your reasons why it does not repeal. Mr. NITTLE. What they are referring to is Section 20 of the Subversive Activities Control Act. Section 20 of that act amended the penalty provisions of another act, the Foreign Agents Registration Act.

Now, once the Subversive Activities Control Act was adopted in September of 1950, it effected an amendment to the other act, and

1 See app., hearings, pt. 1, at p. 5495. 2 See app., hearings, pt. 1, at p. 5422. See app., hearings, pt. 1, at p. 5375. See hearings, pt. 1, at p. 5203.

when the amendment was made, the result was a merger of section 20 with the Foreign Agents Registration Act, so that a subsequent repeal of the amendatory act does not affect the other act which had been amended by it.

Now, that is a canon of statutory construction that is fairly wellknown and I have cited for that general statement volume 82, Corpus Juris Secundum.

So I do not agree with the Department of Justice on that point. Further, on the same principle, I do not agree with them that a repeal of Section 18 of the Subversive Activities Control Act, which amended section 793 of title 18, would repeal the amendment made to section 793 of title 18.

Now, with respect to the other argument, that a repeal of section 4 of the Subversive Activities Control Act would repeal certain provisions in relation to espionage contained therein is true, because there you do not have provisions which are purporting to amend another act. So that if you repeal the whole of the Subversive Activities Control Act, you are necessarily repealing an included provision in that act which is section 4.

However, I do say that section 4 is essentially duplicative of existing espionage provisions in title 18.

Chairman ICHORD. Mr. Maroney, do you care to reply for the record to the merits of that argument?

Mr. MARONEY. To first address myself to the question of the duplication of section 793 to the other provisions of the Espionage Act, we would certainly disagree. One of the points that was in issue in Scarbeck's case was the extent to which the Government had to prove in a criminal trial that the information that was classified did in fact relate to the national defense.

The position we took with respect to that was that under the provisions of 783 all we had to show was that it was a document classified under the authority of the President and that it had been properly classified by an official authorized to do so and that we did not have to substantiate that the material itself was of such a nature as to make it information relating to the national defense within the meaning of the decided cases.

Now the latter standard is the standard that we are required to meet under the Espionage Statutes and it is a fact question for the jury to determine, albeit the fact that it was classified, whether the information itself was of such a nature as to relate to the national defense within the meaning of the statute.

So that in that respect at least we feel there is a significant difference between section 783 of title 50 and 793 and 794 of title 18.

Now, on the other aspect of Mr. Nittle's observation, while there may be room for argument with respect to the statutory interpretation that would be placed on this bill, we certainly think that at the very least the bill should be amended so as to make it explicity clear that it is not the intention of the committee to bring about the result which we fear would be brought about under the present bill.

Chairman ICHORD. There is no intention on my part to repeal those particular sections and I would certainly agree that the matter should be cleared up by amendment and it can easily be done.

Of course, where I am still very much worried, Mr. Maroney, is when

we get into the various provisions of law that are not being enforced in title I. I think that the failure to enforce the law breeds only disrespect for the law. This is where I believe that it is encumbent upon us to face these difficult issues and repeal the law if it isn't going to be enforced.

For example, title I has one provision that members of the Communist Party shall not be eligible for Federal employment. Now that provision has not yet been passed upon by the Supreme Court. It is true that the Supreme Court has held that membership in the Communist Party per se will not restrict one from holding state employment but they have never decided the question as to Federal employment.

We have that law on the books and still in this investigation we have found that at least the Post Office Department does have members of the Communist Party employed and that this section of the law has not been enforced.

Mr. MARONEY. I am not aware that the Department has ever been requested to make a formal ruling on the question of whether or not a case under that section should be brought at this time. I do not recall that any other agency has submitted to us a case which involved a violation of that section.

Chairman ICHORD. I have one more question, Mr. Chairman, then I will yield.

Mr. MARONEY. May I also say, however, Chairman Ichord, that in view, however, of the very clear holding of the Supreme Court in Robel, which involved a very similar provision, that certainly bringing a case under the provision you are referring to would be very problematical.

Chairman ICHORD. On page 4 you state that the Department is opposed to H.R. 11120 because the bill's provisions are to a great extent duplicative of the current Federal employee security program, and later on you make the same reference of duplication toward the questions proposed to be asked prospective employees by the terms of the legislation.

Are you familiar with the case of Zuckerman v. United States,1 Mr. Maroney?

Mr. MARONEY. Yes, sir.

Chairman ICHORD. Didn't that case have the effect of nullifying questions that are now being asked on the Personnel Security Questionnaire?

Mr. MARONEY. It did on the questionnaire that was involved in the Zuckerman case and that is a Veterans' Administration form that was used for an application by a medical intern for a 90-day training program in a Veterans' Administration Hospital.

Now we are quite prepared to pursue in the courts the basic legal question that is at the heart of the Zuckerman case.

Chairman ICHORD. At that point, weren't those questions identical to Civil Service Commission Standard Form 171?

Mr. MARONEY. My recollection is they were.

Mr. NITTLE. They are; yes, sir.

Mr. MARONEY. As I say we are quite prepared to pursue the legal issue of the Government's right to ask questions of that kind of a Government employee, sensitive or nonsensitive.

1 See app. D, pp. 5990-5998.

We do feel that a test case on that problem is preferably brought with respect to a full-time Government employee rather than for the kind of appointment that was involved in the Zuckerman case.

Chairman ICHORD. In the Zuckerman case I think we should have for the record the questions that were nullified, questions 19 and 20, which, as I pointed out before, are standard form questions.

"Are you now, or within the last ten years have you been, a member of the Communist Party, U.S.A., or subdivision of the Communist party, U.S.A.?"

And question 20, "Are you now, or within the last ten years have you been, a member of an organization that to your present knowledge advocates the overthrow of the constitutional form of government of the U.S. by force, or violence, or unlawful means?"

"(If you answer 'yes' to 19 and 20, give on a separate sheet: (1) the name of the organization; (2) the dates of your membership; and (3) your understanding of the aims and purposes of the organization at the time of your membership.)."

So the case of Zuckerman nullified those questions. What is the status of the case at the present time?

Mr. MARONEY. There was a determination made in that case not to appeal it further but for the reasons that I have just previously indicated.

Moreover, we are or have been in the past months or so conferring with the Civil Service Commission and with the Veterans Administration officials with respect to a revision of those questions and the questionnaires to take into account the Supreme Court's recent decision in Law Students.

Chairman ICHORD. I have not read the Zuckerman case and I am not acquainted with the extent of the holding but Mr. Nittle just handed to me a notice of appeal filed by the defendants.

I thought I understood you to say that you were not appealing the case?

Mr. NITTLE. That statement, Mr. Ichord, is a notice of appeal filed by U.S. Attorney, Robert G. Renner on September 30, 1971.

Mr. MARONEY. That is right, but later it was decided not to pursue the appeal.

Mr. NITTLE. This is one other case the Department is not appealing. You did not appeal Stewart v. Washington, either, did you?

Mr. MARONEY. We did not, first of all because we didn't think that we would be ultimately successful on the question of vagueness.

If you will recall, in the Stewart case, while the case was pending in court because of the vagueness problem, we, together with the Civil Service Commission and the Corporation Counsel's office here in Washington, because it involved a provision that was applicable also to the District of Columbia employees, prepared a revised form which we thought would satisfy the problem of vagueness in light of the Supreme Court's decisions.

The three judge district court in the Stewart case held that because the statute on its face was clear, that it could not be amended by what they referred to as administrative patchwork.

We do feel that the revision of the questionnaire would have satisfied the vagueness problem. Moreover, another consideration that went