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National Security Council - Requests for Access to Records (3)
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National Security Council - Requests for Access to Records (3)
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Philip W. Buchen Files
Philip Buchen's General Subject Files
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National Security Council. Central Intelligence Agency. (09/18/1947 - 12/04/1981)
Nixon, Richard M. (Richard Milhous), 1913-1994
Security classification (Government documents)
Freedom of information
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The original documents are located in Box 27, folder "National Security Council - Requests
for Access to Records (3)" of the Philip Buchen Files at the Gerald R. Ford Presidential
Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 27 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
NSC
THE WHITE HOUSE
WASHINGTON
June 10, 1976
MEMORANDUM FOR: JEANNE DAVIS
FROM:
PHIL BUCHEN P
Much to my chagrin, I find that I neglected to
submit to you previously the draft of letter which
Dr. Rhoads would like me to send that deals with
the release by the Archives of exchanges of
correspondence between heads of state where the
correspondence has been deposited in the Presidential
Library.
My understanding is that you have had instances where
correspondence of this type has not been classified
and therefore it is not subject to the provisions of
Section 11 of E. O. 11652.
The attached draft of letter proposes to apply a single
rule to both classified and unclassified exchanges of
correspondence and requires prior consultation with
you in both instances unless the exchange of cor-
respondence is more than ten years old or, if older,
involves a head of state who still holds office.
Please let me have your comments on the attached draft.
Attachment
R.
FORD
GERALD
LIBRARY
UNITED STATES OF AMERICA
*
GENERAL SERVICES ADMINISTRATION
National Archives and Records Service
*
GENERAL SERVICES
Washington, DC 20408
*
Copy
Barry
MAY 18 1976
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D. C. 20500
Dear Mr. Buchen:
Enclosed is the draft letter relating to heads of state/heads of government
exchanges which we discussed on the telephone on May 7.
The ten year period noted in the letter strikes us as being realistic and
reasonable, especially when coupled with agreement that older material
will be referred to the NSC staff if the foreign official is still holding
high office. A longer period could subject us to criticism that would
best be avoided.
I look forward to an amicable resolution of this issue. I would, of course,
be happy to discuss the matter further, if necessary.
Sincerely,
But Rhoad
JAMES B. RHOADS
Archivist of the United States
Enclosure
Keep Freedom in Your Future With U.S. Savings Bonds
DRAFT
Dear Dr. Rhoads:
As we have discussed, to avoid any possible damage to current foreign
relations of the United States I suggest that classified and unclassified
exchanges of correspondence between heads of state or heads of government
located in Presidential Libraries be submitted to the National Security
Council staff for its opinion prior to their release to the public. Since the
sensitivity of this type of material diminishes with the passage of time, I
believe we need only be concerned about such exchanges of correspondence
which are ten years old or less, or older documents if the correspondence
is from a head of state or government who still holds high office. This
request for NSC review of such correspondence is, of course, directed
only to that material which has not previously been made available to the
public.
I recognize that the National Archives must respond in a timely fashion to
public requests for access to this material. To assure that this arrangement
is workable and responsive both to your needs and to the public's, I am
asking that the National Security Council staff respond quickly to such
material when you send it. I would think that a month would be a sufficient
period for their review.
Sincerely,
FORD
CERALO
Philip Buchen
NSC
THENT
Office of the Attorney General
QUI
PUP
SEQUITUR
Washington, D. C. 20530
JUSTITIA
B
Invo
July 6 1976
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D. C. 20500
Dear Mr. Buchen:
This will confirm and approve the May 5, 1976 letter
from Assistant Attorney General Richard L. Thornburgh re-
questing certain documents from the White House in connec-
tion with a Criminal Division investigation of possible
violations of Federal law arising from testimony in 1973
and 1975 before the Senate Foreign Relations Committee
and its Subcommittee on Multinational Corporations, as
well as before the more recent Rockefeller Commission.
Inspection and photographic reproduction of the
documentary material requested by Assistant Attorney
General Thornburgh are needed for the lawful and current
business of this Department, and your prompt attention
to this request will be appreciated.
Sincerely,
Edward H. Levi
Attorney General
FORD i LIBRARY 0.ERAL
nsc
THE WHITE HOUSE
WASHINGTON
July 19, 1976
(mr Bhas
the
MEMORANDUM FOR:
BILL HYLAND
FROM:
PHIL BUCHEN P.W.B.
Attached is a request of May 5, 1976, from Assistant Attorney
General Thornburgh for copies of certain documents relating
to CIA operations and activities in Chile in 1970. In discussing
this matter with Justice, it is my understanding that the
Department is interested in documents contained in the NSC
institutional files as well as the Nixon Presidential files.
Attached is a letter from the Attorney General approving this
project. We are separately contacting counsel for former
President Nixon concerning the search of the Presidential
files.
In the meantime, I would appreciate if someone on the NSC
staff could contact Mr. Robert Andary, 739-2346, of the Justice
Department to make arrangements for review of the relevant NSC
files and copying of material where appropriate. Due to the
breadth of the request and the level of classification of these
materials, it may be preferable if Justice is allowed to look
through the relevant materials and designate what it needs in
order to minimize the amount of materials to be duplicated.
If you have any questions in this regard, please contact either
Barry Roth of my office or me.
Thank you.
LIBRARY GERALD R. FORD
ASSISTANT ATTORNEY GENERAL
CRIMINAL DIVISION
Department of Justice
Mashington 20530
May
155
1975
Honorable Philip W. Buchen
Counsel to the President
The White House
Washington, D.C.
Dear Mr. Buchen:
As you know, the Criminal Division has been investi-
gating possible violations of Federal law arising from
testimony in 1973 and 1975 before the Senate Foreign Relations
Committee and its Subcommittee on Multinational Corporations,
as well as before the more recent Rockefeller Commission. The
testimony in question concerned Central Intelligence Agency
activity and private corporate activity in Chile during the
period 1970-1973.
In connection with this investigation, it is now
necessary to request certain documents from the White House.
Please assist us by furnishing any documents in White House
files or archives which:
(1) were prepared by the White House, that is,
by President Nixon, or by any advisor, assistant
or member of the White House staff including but
not limited to Dr. Henry Kissinger, General
Alexander Haig, and Colonel Richard Kennedy,
which concern any meeting, briefing, contact
or communication with employees of the Central
Intelligence Agency, including but not limited
to Richard Helms, Thomas Karamessines, and
:
William Broe, during the period September 1,
110
FORD
1970 through December 31, 1970 and relate to
Central Intelligence Agency operations and
LIBRAR
activity in Chile; or
AMC poinn. RICAN AMERICAN
1776-1976
2
(2) were furnished by the Central Intelligence
Agency and which concern Central Intelligence
Agency operations and activity in Chile in 1970,
or concern contacts or communications between
the White House, as defined above, and any
employee of the Central Intelligence Agency
during the period September 1, 1970 through
December 31, 1970 relating to Central Intelligence
Agency operations and activity in Chile; or
(3) were furnished by any other Department or
Agency, including but not limited to, the
Departments of Defense, Justice, and State,
the Defense Intelligence Agency and the National
Security Agency, or the Heads thereof, including
John Mitchell, during the period September 1,
1970 through December 31, 1970 which concern
Chile; or
(4) were furnished by, or concern any meeting,
briefing, contact, or communication with, any
American or foreign business, firm or corporation,
including but not limited to, ITT, Anaconda,
Pepsi-Cola, and El Mercurio, or any owner,
director, employee, or representative thereof,
in the period September 1, 1970 through December 31,
1970, which concern Chile.
Any documents you make available to us will be
treated in accordance with their classification and will
be promptly returned to the White House when any evidentiary
use of the documents has been completed. Your assistance
and cooperation will greatly assist us in our investigation.
Sincerely,
RICHARD L. THORNBURGH
i
FORD
Assistant Attorney General
Criminal Division
GER
LIBRARY
NSC
THE WHITE HOUSE
WASHINGTON
(see
August 7, 1976
HOLD
MEMORANDUM FOR:
KEN LAZARUS
FROM:
PHIL BUCHEN T.
Attached is a memorandum from Jeanne Davis
on which I would like you to prepare
responsive comments. It occurs to me that
Congresswoman Schroeder may feel that the
studies in question could be edited sufficiently
that they could be furnished to her. That seems
to be here idea based on the fifth paragraph of
her letter. In any event, I think we should be
sure that Jeanne Davis' legal interpretation of
the FOIA coincides with ours.
LIBRARY GERALD R. FORD
NSC
THE WHITE HOUSE
WASHINGTON
August 10, 1976
MEMORANDUM FOR
LEON ULMAN
DEPUTY ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL COUNSEL
DEPARTMENT OF JUSTICE
Subject: Declassification of Memorandum
to President Eisenhower
In response to your memorandum of July 22,
1976, I am returning the materials in question
and can report to you that neither the NSC
staff nor our office has any objection to the
declassification of this document.
P.W.B.
Philip W. Buchen
Counsel to the President
FORD is LIBRARY GERALD
THE WHITE HOUSE
WASHINGTON
8/9/76
Phil:
John Matheny handed the attached
materials to me and indicated that
NSC has no objection to declassi-
fication of the memo.
NATIONAL SECURITY COUNCIL
Steve
-
per our cen versation
if you see problems
we should gevente
a werre]
BERALD FORD TIBRARY
NATIONAL SECURITY COUNCIL
August 3, Frium 1976
TO:
John Matheny
FROM: Steve Skancke
I can see no reason why this
document may not be declassified.
In my opinion, its release would
not be expected to cause damage
to our national security.
I don't think there is any need,
however, for us to comment
one way or the other.
Ken Sazarus Ru#106
GEOALD FORD LIBRARY
FORDO is LIBRARY 878835
see if ure
have a folder
marked
NSC
Presidential
papera
THE WHITE HOUSE
UNCLASSIFIED UPON REMOVAL
OF CLASSIFIED ATTACHMENTS
WASHINGTON
Confidential
July 22, 1976
MEMORANDUM FOR:
JOHN MATHENY
FROM:
PHILIP W. BUCHEN T.W.B.
SUBJECT:
Declassification of Memorandum
to President Eisenhower
The Counsel's Office sees no reason why the attached
memorandum could not be declassified.
Attachment
FORD i LIBRARY GERALD
THE WHITE HOUSE
UNCLASSIFIED UPON REMOVAL
WASHINGTON
OF CLASSIFIED ATTACHMENTS
sent
Confidential
July 22, 1976
down 8/2/76
MEMORANDUM FOR:
JOHN MATHENY
FROM:
PHILIP W. BUCHEN P.W.B.
SUBJECT:
Declassification of Memorandum
to President Eisenhower
The Counsel's Office sees no reason why the attached
memorandum could not be declassified.
Attachment
tuao i LIBRARY QERALD
No. DJ-34
9-31-56)
DEPARTMENT OF JUSTICE
CLASSIFIED DOCUMENT RECEIPT
Control No.
Leon Ulman, Office of Legal Counsel, Justice Dept.
FROM (Division or Office)
Phil Buchen, Counsel to the President, White House
TO
DELIVERED BY
who Rolation For For
Room
RECEIVED BY
Room
DATE
Only 22/1976
Time
IDENTITY OF DOCUMENT
ADDRESSEE Phil Buchen
Lean : Iman
FROM
DATE
7/22/76
No. PAGES 28
COPY Xerox
OF
COPIES
CLASSIFICATION Confidential
FILE NO.
confidentialletter to ODAG, attn Hauser, from Edwin A. Thompson and Memorandum confidential YYYP
SUBJECT:
Declassification of Memorandum to President Eisenhower (unclassified) with
President Eisenhower from AG Brownell re amnesty proposal suggested by Arthar
Hays Sulzberger in June 1953.
BERALD FORD LIBRARY
INSTRUCTIONS
Execute this receipt in duplicate and secure signature of person to
whom the classified document is delivered. The original copy should be
sent to the Divisional Top Secret Office. The duplicate should be retained
by person releasing document.
Execution of a receipt is not required when a person who has signed
for another person delivers the document to the addressee.
Transmittal of documents outside the Division or the Department
must be cleared through the Divisional Top Secret Control Officer.
GPO 909.946
Form DJ-150
(Ed. 4-26-65)
UNITED STATES GOVERNMENT
DEPARTMENT OF JUSTICE
Memorandum
CONF IDENTIAL (Unclassified when classified enclosure is removed)
JUL 22 1976
TO
: Phil Buchen
DATE:
Counsel to the President
Leon Ulman
FROM
Deputy Assistant Attorney General
Office of Legal Counsel
SUBJECT: Declassification of Memorandum to President Eisenhower
The Attorney General has asked us to review the attached
memorandum (classified "Confidential") as part of a mandatory
declassification review requested by Mr. Duane Tananbaum.
Because the document is a Memorandum to the President, we
solicit your views. The memorandum (addressed to President
Eisenhower by Attorney General Brownell in 1954) contains a
legal analysis of a then-current "amnesty" proposal for
former members of Communist-front organizations, closing with
a recommended response to the proposal. Our present inclination
is to recommend that the document be declassified, inasmuch as
we find nothing in it the release of which could be reasonably
expected to damage the national security.
Since we are already a bit behind our scheduled reply to
this request, we would appreciate expedited attention.
Attachment
FORDO & LIBRARY QERALD
DOJ-1973-04
UNITED STATES OF AMERICA
*
*
GENERAL SERVICES ADMINISTRATION
#
National Archives and Records Service
Washington, DC 20408
DONELAL three
#
*
*
In reply refer to:
MAR 19 1975
NLE-76-43
CONFIDENTIAL (Unclassified when classified
enclosure is removed)
Office of the Deputy Attorney General
ATTN: Susan M. Hauser, Staff Assistant
Department of Justice
Washington, DC 20530
Dear Sir:
Under the provisions of Section 5(c), Executive Order 11652,
Duane A. Tananbaum has requested mandatory classification
review of the enclosed document from the papers of Dwight D.
Eisenhower as President of the United States, 1953-61
(Administrative Series), in the Eisenhower Library's holdings.
Please review the document and, if it may be declassified,
mark it appropriately. If the document must remain classified
in the interest of national security, mark it with the applicable
exemption category from Section 5(B) of the Executive order and
with a date or event when automatic declassification may be
accomplished. We would appreciate return of the document copy
with your response.
Sincerely,
EDWIN A. THOMPSON
Director
Records Declassification Division
ATTORNEY DEPUTY GENERAL
MAR 22 IU .54 AM '76
@FFICE RECEIVED OF THE
Enclosures
UNCLASSIFIED UPON REMOVAL
OF CLASSIFIED ATTACHMENTS
LIBRARY GERALD F. FORD
AMERICAN REVOLUTION
CONFIDENTIAL
1776-1976
Keep Freedom in Your Future With U.S. Savings Bonds
Request for Mandatory Review of Classified Material in the
Custody of the National Archives and Records Service
Date of request:
NLE 76-43
Name of depository: Dwight D. Eisenhower Library
Address: Abilene, Kansas 67410
I hereby request mandatory review of classified materials
(as per attached list) in the Papers of Dwight D. Eisenhower as
President of the U. S., 1953-61 (Administration Series)
in accordance with the provisions of Executive Order 11652,
Sec. 5 (c).
Duana
Signature of requestor: : Tananbaum
Address: 147 E 82nd ST 7C
ny ny 10028
Telephone No.:
(Area Code:
212 535 1970
FORD is LIBRARY DERALD
DWIGHT D. EISENHOWER LIBRARY
List of Documents submitted by Duane A. Tananbaum
for classification revi
under the mandatory review provisions of E.C. 11652.
Eisenhower, Dwight D.: Papers as President of the
Collection Title: United States (Administration Series)
MR NLE 76-43
Box No.:
8
Folder Title: Brownell, Herbert, Jr., 1952-54 (3)
FOR LIBRARY USE ONLY
MR
Clas-
Please provide all information requested in the four columns
Clas-
Alsol No.
Doc.
sifi-
si-
Sent
low as provided on GSA Form 7122, Withdrawal Sheet, if availabl
of
No
ca-
fied
To
Pgs.
Entry
Form of
Correspondents or Title
tion
By
Date o
No.
Document
Docume
I
/C
Justice
-
27
2
Memo
Attorney General to Eisenhower
3/22/
BERALD Horronn APRABA
COMPLEMENTAL
Justice
JLR:LU:ecb:fck
MEMORANDOM TO THE PPESIDENT
You and I both believed it desirable to give more
careful consideration to the so-called "amesty" proposal
suggested by Mr. Arthur Hays Sulzberger in his Address at the
John Carroll University commencement exercises in June 1953.
In this nemorandum I have endeavored to analyze his proposal
fully and explore its implications.
1110 2
Mr. Sulsberger's address in essence suggests *the equiva-
lent of = moratorium or a political senesty" for persona ho, having
joined a Communist front organization prior to the beginning of the
Barlin Mrlift in 1948, clearly disassocisted themselves from any
much group before that date. The beginning of the Berlin Mrlift
18 selected by Mr. Sulsbarger as 25 appropriate date because "by then
post-wer communism bad plainly declared itself* and "it had become
entirely clear that Stalio had no intention of cooperating with us in
the building of 11 peaceful world" (pp. 10-11). Mr. Sulzberger 10-
dicates the exclusion from any "armesty" of those under consideration
for "particularly sensitive positions* (p. 11). He also states that
his proposal 12 not conething cusceptible of legal enactment, but is
COMMISSION
in
FORD
DECLASSIFIED
Justice to E.A. Thompson 8/23/16 NLE MR 76-43, #1
GERALD
By KR
LIBRARY
NARA, Date 8/4/88
COMIDENTIAL
- 2 -
rather "3 matter of spirit, of approach", and that this "philosophy"
might be given formal expression by a committee to be appointed by
the President (p. 12). If adopted, it might, ha said, eliminate
"destructive talk" occasioned by an individual's past affiliation and
the "unedifying temptation to refuse testimony on the grounds of
self-incrimination", and cut down "on our so-called loyalty trials"
(pp. 11-12).
As an overall consideration it is important at the outset
to place Mr. Sulzberger's proposal in its proper context. It will
be noted that his suggestion is in terms of an "annesty" for the
persons intended to be benefited. The word "amnesty", however, is
2:131
not appropriate. As defined by the Supreme Court, "amesty" is "an
act of the sovereign power granting oblivion, or a general pardon
for a past offense * * *, and is usually exerted in behalf of certain
classes of persons, who are subject to trial, but have not yet been
convicted". Brown V. Walker, 161 U.S. 591, 601-602. It is not
suggested that the persons involved have, by participating in
Communist front activities, been guilty of the commission of any
criminal offense. Criminal conduct alone constitutes the occasion
for the exercise of amnesty. Since that indispensable element is
lacking, there is no basis for annesty.
It is true, of course, as pointed out by Mr. Sulzberger and
as is developed below in this memorandum, that individuals who at
FULL : LIBRARY GERALD
CONSTDENTIAL
- 3 -
one time or another have been active in Communist front organizations
may be subjected to various forms of private and public opprobrium.
They may, for example, be found to be security risks if they are in
the employ of the Federal establishment, and hence be removable from
the Federal service. But it is clear that this is not a judgment of
guilt in the criminal sense or the equivalent of a conviction for
treason: As stated by the Supreme Court in Garner V. Board of Public
Works of Los Angeles, 341 U.S. 716, 720, with respect to municipal
employees (and the same 19 true here), "Past conduct may well relate
STATE
to present fitness, past loyalty may have a relationship to present
and future trust. Both are commonly inquired into in determining fit-
ness for both high and low positions in private industry and are not
less relevant in public employment." Or, as it was put in Adler V.
Board of Education; 342 U.S. 485, 493; "In the employment of officials
* #: the state may very properly inquire into the company they keep,
and we know of no rule, constitutional or otherwise, that prevents the
state, when determining the fitness and loyalty of such persons; from
considering the organizations and persons with whom they associate,"
In short; when an individual's past associations and conduct are con-
sidered to be such as to bar him from the Federal service; the
individual has not been found guilty of a criminal offense; the
Government has merely concluded that he is not a person who is fit to
be entrusted with the public business:
CONSTITUTIAL
FORD is 07V830 LIBRARY
- 4 -
With these observations in mind, I turn to the proposal
itself. It is evident that it gives rise to a number of interesting
and difficult questions concerning the following: (1) the persons
to whom the proposal would apply; (2) the "evils" it seeks to
alleviate; (3) the extent to which these "evils" are well-founded and
can be remedied by the Executive; and (4) practical problems of in-
plementation (for example, the factor of public opinion, the use of a
cut-off date, the committee or commission method). Each of these will
be discussed below in the belief that thereby consideration of various
facets of the proposal and the possibilities of effective action will
be facilitated.
I.
The proposal speaks in terms of persons who at one time or
another were members of 8 Communist front organization.. It is appares
that in this there lies a certain ambiguity. Thus, Mr. Hoover in his
consideration of the proposal understood it to include former members
of the Communist Party. He therefore characterized it as "extremely
impractical" because former Communists cannot be trusted. Top have
stated your concurrence in this appraisal of the reliability of former
Communists. Accordingly, there is now no room for any misunderstanding
as to the outermost limits of the proposal.
is
FURD
COMPENINTIAL
GERALD
LIBRARY
the Lia -
The exclusion of former members of the Communist Party does
not, however, fully answer the question as to what persons are in-
tended to be covered by the term "members of Communist front organiza-
tions". It is possible, of course, to construe the term literally and
unimaginatively. Through such a construction the proposal might be
considered as intended to reach every person who at any time before the
date selected was a member of a Communist front organization, regard-
less of his knowledge, the nature of his activities, the number of
organizations he belonged to, or the duration of his activity.
Communist front connections can mean many things. At one extreme may
be the individual who never did more than join a single organization
and had no knowledge of its Communist nature. At the other extreme
may be the individual who not only was a member but knowingly partici-
pated in furthering the Communist objectives of the organization, And
there are persons who occupy points midway between these extremes.
The question is whether the proposal is intended to embrace all these
1.
people indiscriminately.
Moreover, in determining those to be included and those to
be excluded, there are other factors in addition to the nature of the
individual's participation. It certainly seems relevant to consider
CONFIDENCIAL
FORD is LIBRARY 076830
be 5 -
the number of Communist front organizations with which a particular
individual was associated and how long his association continued.
Full confidence might be reposed in the person who belonged to one
organization for a relatively brief period; great doubt might exist
toward the person who belonged to numerous organizations over an
extended period of time. I will discuss this further below in
connection with the administration of the old loyalty program and
the present security program.
STATE ESL
II.
The basic evil which the proposal presumably seeks to
eliminate is the suspicion attaching to many persons because of their
past Communist associations. As a result, it is said, they may lead
lives of doubt and fear. If they are in the Federal service, they
may be concerned about their jobs because of the security program.
Those who work for private firms may have a similar concern,
particularly if the firm has defense contracts. Some, it is intimated,
may fear criminal prosecution and therefore will claim the privilege
against self-incrimination if called upon to testify before Congressional
investigating committees.
FORD
CONTEDENTIAL
LIBRARY
- 6 -
III.
On the assumption that these reflect the primary fears of
individuals who have been associated with Communist front organizations,
the question arises as to what steps the Executive can appropriately
take to dissipate or alleviate them. As an over-all consideration it
would seen apparent that the Executive ought to limit any action he
might ba inclined to take to those areas in which action would ba
effective,
off
A. Criminal Prosecution. As has been pointed out above
LIVICITY
amnesty relates exclusively to past criminal acts. Since in my opinion
there can be, with regard to the persons here involved, no real basis
for fearing criminal prosecution, at least insofar as the Federal
Government is concerned, this presents no occasion for Executive action.
In this area existing Federal criminal statutes reach only Communist
Party members. The Smith Act (18 U.S.C. 2385) makes it a criminal
offense for a person knowingly or willfully to advocate or teach the
doctrine of overthrowing the Government by force or violence. The Act
has been held applicable to the top leadership of the Communist Party
(Dennis V. United States, 341 U. S. 494), and has been successfully
utilized against the lower echelons of the Party's leadership. And in
another context the Supreme Court has suggested that it might be used
against rank-and-file members. Blau V. United States, 340 U. S. 159,
holding that the Constitutional privilege against self-incrimination
could be claimed by a witness interrogated in a grand jury proceeding
FORD is 038870 LIBRARY
CONSIDENTIAL
- 7 -
concerning his employment by the Communist Party for the reason that
the Smith Act "made future prosecution of petitioner far more than a
'mere imaginary possibility * *** (p. 161). It is highly unlikely
that an attempt to bring mere membership in or affiliation with
b.
Communist organizations within the scope of the Smith Act could succeed,
Eistakewar
particularly where the activity had long since been abandoned.
LOTER
B. Investigations by Congressional Committees. Investigations
by Congressional committees of various aspects of Communist activity
are, of course, not subject to Executive control. Accordingly, to the
extent that individuals are concerned in that regard, the Executive is
without power to take direct action. Steps that might be taken in
other connections could perhaps have an incidental effect of making
witnesses less prone to resort to the privilege against self-incrimi-
nation. For example, an announcement by the President that certain
activities had minimum significance in the administration of the
Federal employees' security program might have that effect. Such an
announcement might also make the claim of privilege less tenable,
Although, as has been pointed out above, the fear of criminal prose-
cution is fanciful, it is nevertheless probable that a claim of
privilege against self-incrimination based on former participation
in Communist front activities would be upheld by the courts. While I
am not aware of any decision dealing with this precise question, the
Supreme Court has gone to great lengths to sustain the privilege. In
a recent case the Court said that the constitutional guarantee against
FORD A LIBRARY 07V439
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self-incrimination "must be accorded liberal construction", and that
it is to be upheld if it is "not 'perfectly clear, from a careful
consideration of all the circumstances in the case, that the witness
is mistaken, and that the answer[s] cannot possibly have such tendency'
to incriminate". Hoffman V, United States, 341 U. S. 479, 486, 488.
C. Employment. Probably the basic concern of those who have
been associated with Communist front organizations is the fear of
injury to their livelihoods. This concern may exist in the field of
private and public employment. It is well-known that many private
employers are actively interested in possible Communist associations
of their employees. See Comment, Loyalty and Private Employment, 62
Yale L. J. 954 (1953). This is particularly true of those firms having
government contracts. And, of course, it is a direct concern of
employees in the Federal Service. It would seem that it is in this
area that the impact of Mr. Sulzberger's proposal and the possibilities
of action would be the greatest. I shall therefore explore these
aspects of the matter in some detail.
(1) The Old Loyalty Program. President Truman' S loyalty
program was initiated with the issuance of Executive Order 9835 of
March 21, 1947 (12 F.R. 1935). The standard by which employees were
to be judged was whether "on all the evidence, there is a reasonable
doubt as to the loyalty of the person involved to the Government of
State and municipal employers also have loyalty programs. See The
States and Subversion (Gellhorn ed. 1952); Garner V. Board of
Public Works of Los Angeles, 341 U. S. 716.
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the United States" The order provided, so far as here pertinent,
that activities and associations which could be considered, included -
Membership in, affiliation with or sympathetic
association with any foreign or domestic organization,
association, movement, group or combination of persons,
designated by the Attorney General as totalitarian,
fascist, communist, or subversive, or as having adopted
a policy of advocating or approving the commission of
acts of force or violence to deny other persons their
rights under the Constitution of the United States, or
as seeking to alter the form of government of the United
The
States by unconstitutional means. (Executive Order 9835,
LISTER
Part V, BBC. 2 1)
After the issuance of the Executive order, the Attorney General
on November 24, 1947, certified to the Loyalty Review Board, established
pursuant to the order, a list of questionable organizations and there-
after from time to time added other organizations to the list. See
5 CFR, 1949 ed., pp. 199-205. The names of these organizations were
subsequently published in the Federal Register. Although many of them
had been designated by the Attorney General as subversive at an earlier
date for the purposes of a former loyalty program, those designations
had been kept confidential.
In November 1947, President Truman publicly announced that "any
3/ This definition, added by Executive Order 10241 of April 28, 1951
(16 F.R. 3690), replaced the original definition, which provided
that the standard should be whether "on all the evidence, reasonable
grounds exist for belief that the person involved is disloyal to
the Government of the United States".
3/ These earlier designations had been made in connection with con-
sideration of employee loyalty under Executive Order 9300 of
February 5, 1943 (8 F.R. 1701), establishing an "Interdepartmental
Committee to Consider Cases of Subversive Activity on the Part of
Federal Employees". 5 C.F.R. 1949 ed., p. 200.
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person who at any time happened to belong to one of these organizations
would [not] automatically be dismissed from the employ of the Federal
Government" and that "Membership in an organization is simply one
piece of evidence which may or may not be helpful in arriving at a
conclusion as to the action which is to be taken in a particular case#
N. I. Times, November 15, 1947, p. 2. The Loyalty Review Board made
a similar pronouncement, stating that, as had been pointed out by the
Attorney General, it was "entirely possible that many persons belonging
to such organizations may be loyal to the United States. ***
'Guilt
by association' has never been one of the principles of our American
jurisprudence. We must be satisfied that reasonable grounds exist for
concluding that an individual is disloyal. That must be the guide."
5 C.F.R. 1949 ed., p. 200.- The Board promulgated the following rule
As noted above, the "reasonable grounds" standard was changed in
1951 to a standard of "reasonable doubt".
In 1942, Attorney General Biddle, in connection with loyalty investi-
gations conducted pursuant to Congressional direction (55 Stat. 292),
stated that the membership of front organizations "included many
persons who were completely innocent of subversive advocacy or
belief. *** While such membership or participation did not
require dismissal from the Federal service, it was clearly relevant
to a broad inquiry intended to determine fitness for public
employment". House Doc. No. 833, 77th Cong., 2d sess., p. 2. He
further stated that "the objective test of membership in a 'front'
organization is thoroughly unsatisfactory
****
where the
purposes of the organization are so stated as to make membership
in most circumstances consistent with loyalty. Activity in the
organization, rather than membership, would come closer to reality"
(Id., p. 4). The Inter-departmental Committee reported to
Mr. Biddle that in many cases the employee "had agreed to sponsor
what appeared to him to be meritorious causes in no respect
incompatible with his patriotic duties as a citizen, made nominal
financial contributions, or attended occasional meetings, as
had knowingly permitted his enthusiasm for what appeared to him
to be worthy causes to override any concern he may have felt about
being associated in such causes with known Communists" LId.,
p. 27).
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for ovaluating the significance of association with subversive organi-
zations (Statement of the Loyalty Review Board, 5 C.F.R., 1949 ed.,
sec. 200.1),
The probative value of evidence of past or present
membership in, affiliation with or sympathetic association
with any one or more of the organizations designated
by the Attorney General can be fairly evaluated only after
determining, so far as possible, the character of the
organization, the period, nature and duration of the
association, whether the employee or applicant was aware
of the subversive character of the organization at the time
of such association, and the nature of his activities
in connection with such organiza.ion.
This rule, however, did not extend to present membership in the Communist
Party. See 5 C.F.R., 1949 ed., Supp. 1952, sections 200.1, 210.11 (b),
Library
(4), (5), App. A, p. 127.
According to Mr. Seth W. Richardson, who was Chairman of the
Loyalty Review Board during most of its existence, past membership in
the Communist Party did not necessarily justify a finding of disloyalty.
"The fact to be determined is present disloyalty. Thus, in every
case, questions concerning remote acts are pertinent only as indications
of present attitude. We live under a theory of personal
reformation which has in many cases made it necessary to perform the
exceedingly difficult task of making a present evaluation of loyalty
on the basis of questionable but remote acts and statements of the
employee. If Budenz, an admitted Communist, may reform and be forgiven,
why not an employee?" Richardson, The Federal Employee Loyalty Program,
51 Col. L. Rev. 546, 555 (1951). This policy is reflected in the
proceedings of the regular meetings held by the Loyalty Review Board,
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which proceedings were examined for the purpose of this memorandum.
See proceedings December 3-4, 1947; September 30, 1948, P+ 96, March 15-
16, 1949, pp. 70-74; February 13-14, 1951, p. 54.5/ However, after the
loyalty standard was changed in April 1951 from "reasonable grounds"
for a belief as to disloyalty to "a reasonable doubt" as to loyalty,
it appears that the cases of former Communists were scrutinized with
greater care. Thus, the Board's new Chairman, Mr. Hiram Bingham, stated
that the new standard would permit disqualification of persons who had
unacceptable associations in the past but who had disassociated them-
selves from organizations deemed subversive. He pointed out that since
the Communist Party had gone underground a few years ago, the difficulty
of ferreting out disloyal persons had increased considerably. Sae N. Y.
Times, April 15, 1951, p. 37. Referring to cases in which there might
be a doubt concerning an employee's loyalty but not "a reasonable doubt",
as, for example, cases involving former Party members or spouses of
ELIGI
such members, Mr. Bingham expressed regret that the Loyalty Review
Board's authority did not extend to adjudging such persons security
risks. (Interview reported in U. S. News & World Report, November 23,
1951, p. 22.)
5/ For example, one member of the Loyalty Review Board put it this way:
"A great many people get into the various organizations, including
the Communist Party, without realizing what they are getting into,
and that although we find that a person was a member of the
Communist Party, if we found that he didn't know what he was doing
at all and had never dons any act himself of a subversive nature,
then we'd be justified under the President's statement and under
Mr. Richardson's statement in finding that that person was eligible,
provided, of course, that we were shown that he had abandoned his
membership." Statement of Harry W. Blair, Meeting, February 13-14,
1951, p. 54.
GERALD LIGRAGY FORD
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Turning to the actual determinations of the Loyalty Review
Board in individual cases, a mumber of which were studied in connection
with this memorandum, it has been found that throughout the history
of the Board remote membership in the Communist Party did not result
in an adverse loyalty finding if the Board was satisfied that the
individual himself had never been guilty of disloyal acts and had
2112
clearly established his disassociation from the Communist Party. For
example, in one case the Board ruled- on May 15, 1952, that "it is
difficult for this panel to understand how past membership [in the
Communist Party] ending in 1943, could result in a finding that there
is a present reasonable doubt as to appellant's loyalty". In another
decision, promulgated August 28, 1951, the Board ruled for the employee
because it believed his testimony that "he definitely abandoned his
Communist Party membership and association in 1946 and has not since
and does not now sympathize with or believe in Communist ideology".
On the other hand, the Board ruled against employees with long histories
of Communist Party membership and those whose claims of having left
the Party were subject to doubt. So, in a case involving membership
in the Communist Party from 1933 to 1947 and in the International Workers
Order (designated by the Attorney General as a Communist organization)
from 1934 to the date of the hearing, the Board held against the
employee, Case of B
, Decision dated October 29, 1951. The Board
stated in part,
Cases were heard and determined by panels consisting of three
Board members.
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This long and continuous membership in
Party and in the I.W.O. we think shows an in
and must have brought to him a knowledge and
of, Communism and its ideology. His profes
1
of the sinister objectives of these organiza
believe, is pure pretense. By 1946 or 1947
information
generally was aware of the fact that Communi
to our way of life. From other cases we know
in Government service were advised or requir
and
ground and give no outward or visible signs
bion
to the Party. B
did not deny that hi
of activities in these organizations may have
occasioned by his employment by the Governmen
any
for dropping out of the party was not because
awakening to, or realization of, the evils of
Even today, he is wavering, uncertain and eva
answering questions as to his present views
as to whether the U.S.S.R. or the United Sta
in the present controversies between those CO
%
is lacking in either sincerity or in convict
it is a lack of sincerity and that his long
with and membership in Communist organization
a
indelible impression on his mind and heart an
is a reasonable doubt as to his loyalty to
of the United States.
And, where the employee had falsely denied having be
Communist Party from June 1940 to June 1941, the Boar
adverse ruling, stating that while it "would be incl
the effect of such Communist Party membership in the
past if there had been any showing of a change of hea
in effect to rehabilitation * # #, we find no basis
show that employee has changed his former views and
Case of P
, April 10, 1953.
Since past membership in the Communist Party
a ground for disqualification under the loyalty progr
izati
that past participation in Communist front organizati
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of lesser significance. Even existing participation in such organi-
zations did not necessarily require a finding of disloyalty. Board
Meetings, May 4, 1948, po. 69, 91, 102; March 15-16, 1949, p. 180;
June 15, 1949, p. 4. According to Chairman Richardson, membership in
a Communist front organization "might be explained and, if necessary,
overlooked by the Board in determining whether or not there was evidence
of disloyalty*. Meeting, June 15, 1949, p. 4. The determinations
of the Board show that only extremely aggravated circumstances of
Communist front activity were considered a sufficient basis for an
I Library The
unfavorable loyalty determination. Examples of favorable findings
are as follows: (1) an employee who had joined the I.W.O. in 1941 for
insurance purposes and had established his long opposition to Communism
(Case of K
, April 13, 1953); (2) an employee who had been active
in the affairs of the Workers Alliance in 1936; the Board stated that
"such membership of almost sixteen years ago is so remote in point of
time as not to raise at this time a reasonable doubt as to his loyalty"
(Case of H
, May 28, 1952); (3) an employee who had joined
American Youth for Democracy in 1946 at the insistent solicitation
of a friend but had not participated in its activities or meetings
(Case of W
, January 8, 1953); (4) an employee who had been a
member of the Washington Bookshop from 1940-1941 and had during that
period attended public meetings and lectures sponsored by the American
Peace Mobilization (Case of L
3 July 16, 1952). In one case
the Board ruled in favor of a doctor who was a special consul tant ""o for
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CONFIDENTIAL
TIBREST
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the Public Health Service and admittedly a member of several Communist
front organizations for a number of years. It reached this conclusion
because it was convinced of the individual's loyalty, stating that
while he may have been unwise and naive in failing to appreciate the
value to Communists of the use of his name, he did not act for disloyal
or subversive purposes but was "a loyal American who is deeply concerned
with the preservation of civil liberties in the United States no matter
whose liberty may be in jeopardy" (Case of B
, August 5, 1952)
Library
There were, however, instances in which Communist front
activities did result in adverse findings. Thus, in one case the
employee who had been a member of the I.W.O. made one statement that be
had dropped out because it had been put on the Attorney General's list
of subversive organizations, and then gave a contradictory reason for
dropping out. There was in addition a disputed charge of Communist
Party membership. The Board stated that "ordinarily, membership in
the International Workers Order, standing alone, is not a significant
factor in determination of loyalty, although the organization has been
designated as subversive by the Attorney General, * yet looking at
the entire panorama, as shown by the record, one conclusion only can
be reached and that is that there is a reasonable doubt as to
loyalty* (Case of A
, May 25, 1953). In another case the Board
found a reasonable doubt as to loyalty where the individual admitted
both membership in some 20 Communist front organizations and active
sponsorship of their objectives.' The Board stated that while "no one
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diffese [memberships] standing alone would be significant
113 the composite, not the parts that is significant.
adidas as late as 1948 through 1951 clearly demonstrate
he espoused are so grounded within him that hi
crets be altered". The Board ruled further that it was
Halthe respondent had joined the organizations before t
Ised as subversive because he was a man "of acute intall
befied that he always made an investigation before he
bay organization" (Case of P
s May 18, 1953).
Before concluding the discussion of the old loyal
hand be pointed out that the Loyalty Review Board at
dearch 15-16, 1949, considered but did not accept a pro.
smar to Mr. Sulzberger's; but of broader application.
rhad to individuals who had been members of the Coxemn
time the war years and had clearly disassociated themsel
Immist activity thereafter. John Kirkland Clark of Be
Bex
Dell member, suggested "the possibility of a uniform rul
rule
three years * had expired since the membership,
não those conditions would not be considered sufficient
affiding of ineligibility*. He said that he had "fixed
trei
amound the termination of the period when Russia and
Sales were jointly concerned in the fight against German
Invactivities on behalf of Russia, or activities on beh
on
Emre with us in the war, are not necessarily any evide
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disloyalty to this country Another member objected to the
adoption of any arbitrary rule because, in his opinion, it was unnecessary,
and, from the public relations standpoint, unwise. He said that
although remote Communist affiliation had been ignored he sensed "3
very delicate and dangerous factor in public relations in any such
announcement or rule because there are many in our populace who
are so rabid on this subject that they would want to lynch us if we
were to hold that a man who ever held a Communist ticket at any time
should get by". Mr. Alger, another Board member, commented that "if
a man comes forward and tells us how he happened to Join the Communist
Party and how he got out, that's all right, but when you begin to draw
a definite line, a lot of them will start hedging.
A lot of them
would come forward who are really Communists and would say that they
never belonged to the Communist Party at all, but you know that they
did, and therefore you consider that they continue to belong". The
Chairman of the Board, Mr. Richardson, agreed that it would be unwise
to adopt an inflexible rule, Finally, Mr. Clark withdrew his suggestion.
See Proceedings of March 15-16, 1949, pp. 70-74.
Libiary
(2) The Present Security Program, The present employees
140
security program was initiated with the issuance of Executive Order
10450 of April 27, 1953 (18 F.R. 2489). Its purpose is to insure that
all Federal employees shall be "reliable, trustworthy, of good conduct
and character, and of complete and unswerving loyalty to the United
States", Under its terms the head of each department and agency is
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responsible for establishing and maintaining within his department or
agency an effective program to insure that the employment and retention
in employment of any civilian officer or employee within the department
or agency "is clearly consistent with the interests of the national
security". (Sec. 2) It provides, moreover, that the head of each
agency shall designate as sensitive any position in the agency in which
the occupant, because of the nature of the position, could bring about
"3 material adverse effect on the national security" (Sec. 3(b)). Among
the matters to be considered in determining whether an employee is a
Listery
security risk is
ayl
Membership in, or affiliation or sympathetic association
DAVIDE
with, any foreign or domestic organization, association,
movement, group, or combination of persons which is
totalitarian, Fascist, Communist, or subversive, or which
has adopted, or shows, a policy of advocating or approving
the commission of acts of force or violence to deny
other persons their rights under the Constitution of the
United States, or which seeks to alter the form of
government by the United States by unconstitutional
means. (Sec. 8(a)(5)) 7/
The evaluation standard for membership, affiliation, or
association with a subversive organization as set out in the Civil
Service Handbook, "Guides for Members of Security Hearing Boards under
Executive Order 10450" is that "the security hearing board will give
consideration to the employee's statement of his reason for joining
and his knowledge of the purposes of the organization" (Civil Service
7/ This provision is substantially identical with Part V, § 2f, of
Executive Order 9835. The organizational designations made under
that order have been redesignated under the new order (18 F.R. 2740),
and additional ones have been made. See 18 F.R. 4240.
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Handbook IN-203, P. 13). On its face this ie e nerrower standard than
that which prevailed under the old loyalty program. The latter standard
included such additional factors as the nature and duration of the
association, und the nature of the individual's activities. (5 C.F.R.,
1949 S., e 200.1, misra.)
But there 1s no inflexible rule that even past membership to the
Communist Party or in a Communist front organization necessarily dis-
qualifies an individual for retention in the Department's employ under
the present security program. Since the security concept 15 broader
than the concept of loyalty, the standard of evaluation under the old
program, the ultimate significance attached to an employee's question-
able activities may be greater than under the earlier program. Thus,
under the present program it is possible to conclude, which could not
be done under the earlier program, that because of past membership in
the Communist Party or in Communist front organizations, even though
admitted, ED employee might in the future be subjected to coercios,
influence of pressure causing him to act contrary to the best interests
of the national security. He may therefore to a security risk although
he would not have been found disloyal under the old program.
Library
RUL,
it
tone
OCM.IDENTIAL
GERALD
IV.
A. The preceding discussion suggests, at first, that with
regard to its possible direct impact or the employee security program
the use of a uniform eut-off date would not change the result in very
many cases. But the psychological effect on hearing boards would,
in all probability, result in a less stringent standard of the meaning
of security rick, and almost surely the public would assume that the
program W&B being "liberalised" or "softened".
Opinions will differ, too, as to the proper out-off date.
It may be that in some Cases the use of a uniform cut-off date, 08
for example, the beginning of the Borlin Mirlift in 1948, night auto-
natically absolve membership in $ front organization continued after
the date the organization had been publicly designated as Communist
or subversive for purposes of the loyalty program. Under that program
the first public announcent of organizational designations appeared in
the Federal Register of March 20, 1948 (13 F.R. 1471). Those designa-
tions included a number of Communist front organizations, Additional
designations appeared in the Federal Registers of June 9, 1948 (13 F.R.
3067), and October 21, 1948 (13 F.R. 6135). If we secume as a
reasonably approximate date for the beginning of the Berlin Hrlift
Library The
is
/
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GERALD
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July 9, 1948, &/ there would is 2. three and one-half month gap from the
time when Communist front organizations first received public designation
8.8 such under the loyalty program, namely, March 20, 1948. There is
little reason to suppose that any considerable number of persons who
continued membership 10 Communist front organizations after their public
designation on March 20, 1948, dropped out between that date and July 9,
1948. Accordingly, it is probable that only a small number of cases would
be affected by ignoring membership in Communist front organizations between
March 20, 1948 and July 9, 1948.
Moreover, if a out-off date is to be utilized, the beginning of
the Berlin Airlift may well be an appropriate date. There can certainly
to no quarrel with Mr. Sulsberger's statement that "by then post-war.
commission had plainly declared itself* and that it "had become entirely
clear that Stalin had no intention of cooperating with us in the building
of E peaceful world". (See his Address, p. 10.) It may be that prior to
8 The Soviet blockade of Berlin began on March 30, 1948. The United
States commenced airlift operations on April 2, 1948. By June 19,
1948, the blockade had become complete, and airlift operations on
at large scale wore initiated on June 26. On June 30 Secretary of
State Marshall announced that the United States intended to stay
in Berlin and that it would make meximum use of air transport to
supply the civilian population. On July 6 the United States, the
United Kingdom and France delivered notes to the Soviet Government
decouncing the blockade "as clear violation of existing agreements
concerning the administration of Berlin by the four occupying
powers". These notes were made public on July 9, 1948. See N.Y.
Times, April 1, 2, June 20, 27, July 1, 10 and September 27, 1948.
Library * THE
R.
rund
CONTENSISTAL
GERALD
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the unhistakable ovidence Turnished by the Herlin blockade many well-
intentioned people hold to a belief that there was still a possibility
of rapprochement between the Western powers and the Soviet Union, and
accordingly that participation in a Communist front organization did
not connote working against the interests of the United States.
At least implied support for using the beginning of the Berlin
Airlift 1s to be found in the fact that in the Energency Detention Act
of 1950 Congress selected January 1, 1949, as the significant date for
membership in the Communist Party DD a basis for detenion. See 50
U.S.C. 602 819 (h) (3) Moreover, there is not too much of a time-
lag between the beginning of the Perlin Mrlift (July 9, 1948) and the
initial public announcement of organizational designations under the
2/ "In deciding the question of the existence of reasonable ground
to believe a person probably will engage in or conspire with
others to engage in espionage or sabotage, the Attorney General,
any preliminary hearing officer, and the Board of Detection
Review are authorized to consider evidence of the following:
Latery
with
print
(3) * the holding st any time after January 1949, of
membership in, the Communist Party of the United States $ 5."
CONTINUTION
is
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GERALD
LIBRA
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loyalty program (March 20, 1948).
B. Assuming that adoption of the proposal is desirable
in principle, there remains for consideration the question of practical
methods for translating the proposal into action, without at the same
time seriously weakening the security program. In his address, Mr.
Sulzberger suggested the appointment of a Presidential "committee to
give formal expression to this philosophy" (p. 12). Presumably Mr.
Sulzberger had in mind a commission composed of citizens eminent in
private life. In my opinion the commission method has several dis-
advantages which militate against its use. From what has been said
in the preceding portions of this memorandum it seems apparent that
the most the Executive can or should do in this area is with respect
to the federal employees security program. However, action in this
limited area 13 likely to serve as a guidepost in other areas. But
with regard to the security program I fail to see what useful function
a commission could perform. You will recall that when the security
Library
program was publicly announced you transmitted to the heads of all
PRINT
departments and agencies a letter concerning the establishment of
agency hearing boards and the promulgation of uniform agency regulations.
It seems to me that a wholly adequate method for effectuating the pro-
posal with respect to the security program would be to transmit a
supplemental letter to each department and agency head advising them
as to how past membership in or affiliation with Communist front
organizations should be considered in determining whether or not an
individual is a security risk. The matter of publicity could be
R.
GEALTY
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CONFEDENTIAL
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CONSTITUTION
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readily taken care of by simultaneous issuance of Fill appropriate
press release.
It 1s also likely that 2 Presidential commission vould have
the disadvantage of being politically undesirable. An attempt to
handle the subject through such a device might well run into major
Congressional opposition. You may remember the fate of President
Truman's 1951 Commission on Internal Security and Individual Rights,
the so-called Nimits Commission. That Commission, cet up by Executive
order (Executive Order 10207 of January 23, 1951, 16 F.R. 709), V49
to make a thorough study of the problem of providing for the internal
security of the country end at the same time protecting the rights
Library
our
and freedomsof individuals. President Truman instructed the
Commission to consider how these problems should be met by Government
and by private action, and in connection with the Government's loyalty
and security programs to "consider the need for protecting individuals
from unwarranted attacks and from unwarranted infringement of their
rights and liberties in the name 01 security" (3. 0, 10207, supra).
The Commission W&B headed by Admiral Minits, and it included such
persons 62 Harvey S. Firestone, Fussell C. Leffingwell, and Judge
Danaher, It never functioned because Congress refused to exempt its
numbers from the "conflicts of interests" statutes prohibiting
Government officials from engaging in business dealings with the
Government.
2.
Iven if the Comission members were unpaid and were denoxinated
FURD
"Presidential consultants* the conflict of interest statutes would
LIBRARY
26 1 1
Senator McCarren attacked the Nimitz Comminsion 23 an attempt to belittle
his Internal Security Subcommittee; Senator Ferguson described it as
"a politically partisan device" intended to Ly-pass Congress. The matter
was finally terminated in October 2951 when President Trumen accepted the
resignations of the Commission's members. Soe N.Y. Times, January 24,
26, April 15, May 13, 29, and October 28, 1951. The Congresa 18 not apt
to be particularly enthusiastic about any naw endeavor patterned along
the lines of the Nimits Commission.
C. I should like finally to comment on the public opinion
8 spects of the proposal. I would judge that as of the present date
the general body of the public is reasonably confident, despite some
Library
suggestions to the contrary, that the Administration has taken
effective measures through the security program for dealing with the
problem of Commiststs and Communist sympathizers in the Federal
service. As I pointed out above, the old Loyalty Review Board turned
down a proposal for a rule establishing as uniform cut-off date for
membership in the Consumist Party. The rejection was apparently
motivated primarily because of the Board's fear that the public would
look upon 1ta adoption of such a rule as indicating the Board's general
indifference towards rooting cut Commists in the Federal establish-
ment. The erguments contra are: In the first place, former Commists
are not to be included. Secondly, possible risk to the national security
1s to be minimized by excluding applicants for and occupants of positions
which have been designated 69 sensitive. (But would this exception make
CONFEDENTAL
FORD : 078870 LIBRARY
- 27 -
the whole proposal somewhat ridiculous since the employee security
program is simed importantly at sensitive positions). Thirdly, the
proposal ought to be formulated in terms that make 1t abundantly plain
that it would not serve 1080 facto to clear every person Vho dropped
out of Communist front organizations prior to the cut-off date, regard-
lass of the duration, nature, end intensity of his organisational
activity. Yet such a limitation would becloud the proposal in the
public mind, and eliminate the "certainty" which WSB one of the attrao-
tive aspects of the Sulzberger proposal.
I an returning your file on the matter.
ovi Library
Attorney General
Attachment
LIBRARY GERALD R. FORD
MEMORANDUM
1574
NATIONAL SECURITY COUNCIL
TOP SECRET ATTACHMENTS
URGENT ACTION
March 13, 1975
MEMORANDUM FOR:
PHILIP W. BUCHEN
FROM:
JEANNE W. DAVIS
run
SUBJECT:
Executive Privilege and the Freedom
of Information Act
In February 1968 General Wheeler, the Chairman of the Joint Chiefs
of Staff, was sent by President Johnson to Vietnam to conduct a post-
Tet review of the situation. The attached document is the report
prepared by General Wheeler after returning from his Presidential
mission.
The Department of Defense has had a Freedom of Information Act
request for the declassification of this study and has asked the NSC/
White House to review it for possible release. The NSC staff is now
examining the substance of the study to determine whether or not it
may be declassified. We question, however, whether a report prepared
for the President and at the request of the President is subject to review
under the FOIA in that it would appear to be covered by executive
privilege or by Section (b)(5) of the FOIA. We would therefore appre-
ciate guidance from your office as to whether this document is so
covered and guidance as to how we should handle this request.
Defense must reply to this FOIA request on Monday, March 17, so
we would appreciate a response from your office by the close of
business tomorrow, Friday, March 14.
Attachment
&
FORD
GERALD
LIBRARY
TOP SECRET ATTACHMENT