Foreign Relations of the United States, 1958–1960, Volume III, Microfiche Supplement, National Security Policy; Arms Control and Disarmament

139. Briefing Note for the February 26 NSC Meeting¹

Washington, February 25, 1959

SUBJECT

• Port Security (NSC Meeting, 2/26/59)

1. The next item for consideration is a report to the Council in response to an NSC Action of 2/19/58 in connection with the approval of U.S. Policy on Continental Defense. At that time, Treasury and Justice were requested to seek new legislation, and draft a new Executive Order. The objective was to increase the effectiveness of that portion of the Port Security Program which provides for the exclusion of subversives from employment on U.S. merchant vessels, and from restricted port areas and waterfront facilities.

2. For reasons which Treasury and Justice may wish to elaborate upon today, they have recommended against the obtaining of legislation and the issuance of the Executive Order called for in the previous NSC Action.

3. The considerations which prompted the Council’s action of a year ago were as follows:

a. Under a present law passed in 1950, the President is empowered to adopt measures and issue regulations for the protection of vessels, ports, and waterfront facilities against sabotage and other subversive acts.

b. Pursuant to the 1950 statute, Executive Order 10173 was issued, providing in effect that no person shall be employed as a seaman on a U.S. merchant vessel, nor shall any person be given access to a restricted waterfront facility unless the Commandant of the Coast Guard is satisfied that such persons are not security risks. This Executive Order is still in effect.

c. By 1956, the Coast Guard had checked hundreds of thousands of seamen and dockworkers against U.S. agency files, with the result that the Commandant denied seamen’s papers and dockworkers cards to over 3000 individuals (some 400 of whom the FBI had listed for possible detention in the event of a wartime emergency).

d. In 1956, a Federal Circuit Court ruled (Parker v. Lester) that the denial and revocation procedures followed by the Coast Guard under the Executive Order failed to meet the constitutional requirements of due process, including the right to confront and cross-examine Government witnesses. The Commandant of the Coast Guard was ordered by the Court to issue seamen’s papers, forthwith, to those persons previously denied them. As of 6/30/58, the Commandant had complied with the Court order by granting applications of over 300 persons whom he had previously denied papers because he considered them to be security risks.

e. Treasury previously pointed out several practical problems posed by the Federal Court ruling, including the following: (1) the Commandant of the Coast Guard is compelled by Court order to take action contrary to that required of him under the present Executive Order, (2) it may not be possible to produce certain confidential informants as witnesses in hearings to revoke the papers of a subversive, and (3) witnesses who might be available for testimony are scattered, and funds for witness fees are lacking. (As of 6/30/58, Coast Guard had revoked papers in 2 cases; hearings were pending in 4 cases; the availability of witnesses who could appear to testify was being examined in 65 cases; witnesses were unavailable in 4 cases; data and witnesses were considered to be insufficient at this time in 99 cases; and 105 cases remained to be processed with a view to determining whether bearings should be instituted).

4. Against this background, the Council adopted and the President approved, as part of U.S. Continental Defense Policy (NSC 5802/1), a Port Security section which provides that the various measures for the protection of U.S. ports and vessels shall include: “such exclusion of subversives from vessels and waterfront facilities as is feasible, having due regard for legal procedures and rights”. Based on that policy, Treasury submitted and the President approved on 4/21/58 the details of an overall Port Security program which includes a screening program under which the Coast Guard will (a) request FBI name and fingerprint checks of applicants for seamen’s papers and dockworkers’ cards, (b) keep a list of the persons on whom derogatory information is obtained, and (c) on a selective basis, hold hearings to revoke the papers and cards of persons considered to be security risks, in those cases where action can be taken with a reasonable probability of success, in accordance with procedures acceptable to the courts.

5. Meanwhile, Treasury and Justice were asked to propose legislation, and draft an Executive Order, to strengthen the approved Port Security screening program. As reflected in the Justice transmittal which has been circulated to the Council, both Treasury and Justice recommend against seeking additional legislation in this field because it would not stand the test of constitutionality and would raise “broader issues” which might reduce the effectiveness of the program. With respect to the drafting of the Executive Order called for by the NSC Action, Treasury proposed an amendment to the present Order which would require the Coast Guard to observe due process in the holding of revocation hearings; however, Justice recommends to the Council that an Executive Order not be issued “pending legislative and judicial developments with respect to other personnel security programs”. In discussions at the Planning Board, and in conversations which I have had with the Attorney General, it has been indicated that Justice is primarily concerned over the prospect that new legislation or Executive Order provisions which would open up the issue of the right to confront witnesses and thereby prejudice the outcome of present Court proceedings involving the Industrial Security Program.

6. Both of the NSC’s Internal Security Committees (which are represented here today) have submitted views on the position taken by Treasury and Justice. The IIC has stated that (a) it is concerned over the apparent trend toward backing away from various security programs as a result of recent court decisions, (b) in spite of the difficulties presented by those decisions, the Executive Branch should nevertheless do all that it can to preserve necessary security procedures, (c) the Port Security Program is but one of the security programs considered necessary to protect essential industry and other facilities, and (d) it is necessary to take a long, hard look at what appears to be a softening of our attitude toward necessary security measures, and an aggressive policy should be followed to implement them within the framework of constitutional requirements. The ICIS has advised that (a) it does not object to holding a new Executive Order in abeyance, on the understanding that the Coast Guard is presently proceeding under discretionary authority to proceed in selective cases against seamen and dockworkers on whom there is derogatory information, and (b) although proposed legislation is necessary in the countering of the clandestine introduction of nuclear weapons and other subversive activities, it is recognized that the necessary legal procedures must meet constitutional issues already passed on by the courts.

7. Based on all of the above considerations, the Planning Board recommends that the Council adopt and the President approve the following action:

1. Agree that the submission of the draft legislation and Executive Order called for in NSC Action 1862–f be held in abeyance by Treasury and Justice pending the “legislative and judicial developments with respect to other personnel security programs” referred to in the Justice memorandum which was circulated to the NSC on 1/7/59.

2. Note that the Treasury Department will continue to implement, to the best of its ability, the provisions of Par. 19 of NSC 5802/1, and of Par. 8 of the Port Security program approved by the President on 4/21/58, concerning the exclusion of subversives from vessels, ports and waterfront facilities.

3. Note that, although recent court decisions make it impossible to carry out certain internal security programs effectively, it is nevertheless important that the responsible agencies of the Executive Branch make every effort to implement necessary internal security measures within the framework of constitutional requirements.

8. CALL ON the Attorney General.

9. CALL ON the Acting Chairman of the IIC, Mr. Al Belmont, Assistant to the Director, FBI.

10. CALL ON the Chairman of ICIS, Mr. Walter Yeagley, Assistant to the Attorney General in charge of the Internal Security Division.

Attachment

Letter From Rogers to Gray

Washington, February 25, 1959

Dear Mr. Gray:

I am enclosing, for your information, a copy of a letter which I have addressed to the Director of the Bureau of the Budget, following the discussions of the Port Security Screening Program in Secretary Anderson’s Office.

Sincerely,

/s/ William P. Rogers
Attorney General

Attachment

Letter From Rogers to Stans

Washington, February 25, 1959

Dear Mr. Stans:

Under date of November 24, 1958, I returned, without my approval, a proposed Executive Order entitled, “Amending Regulations Relating to the Protection and Security of Vessels, Harbors, Ports and Waterfront Facilities.” In doing so I recommended that further consideration of this proposed Order or any other order proposing changes in the Port Security Program be held in abeyance pending legislative and judicial developments with respect to other personnel security programs.

The problem of strengthening the Port Security Program has been re-examined within this Department and has been the subject of a discussion with the Secretary and Under Secretary of the Treasury. The proposed Executive Order, by conforming the provisions of Executive Order 10173 to the program conducted by Treasury under that Order subsequent to the Ninth Circuit decision in Parker v. Lester, would have served to eliminate a dilemma which has faced the Commandant of the Coast Guard, in that the Commandant has been forbidden by court order from discharging fully his responsibilities under Executive Order 10173. However, it is agreed that the proposed Order would not have enabled Treasury to conduct a more effective screening of merchant mariners and dock workers than that currently being conducted under the limitations imposed by court decision. It is also agreed that because of the problem of confrontation it does not appear possible at the present time to strengthen the Port Security Screening Program either by legislation or executive order.

Final resolution of the issue of confrontation in one Personnel Security Program will logically lead to insistence, judicial or otherwise, that the same rule be applied in the other programs. Since the Port Security Screening Program involves persons who are neither employees of the United States nor employees of contractors of the United States, it would appear that security interests would be better served if this issue were to be considered in connection with the more critical Federal Employees or Industrial Personnel Security Programs. As a practical matter it appears that some resolution of the confrontation issue may be fast approaching. Already a number of bills have been introduced this session of Congress relating to various aspects of Personnel Security Programs and the Supreme Court is expected to hear argument during March on the case of Greene v. McElroy which will test the validity of the Industrial Personnel Security Program.

Sincerely,

Attorney General

1. Source: Port security. Secret. 7 pp. Eisenhower Library, Whitman File.