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

140. Memorandum of Discussion at the 397th NSC Meeting¹

Washington, February 26, 1959

SUBJECT

• Discussion at the 397th Meeting of the National Security Council, Thursday, February 26, 1959

Present at the 397th NSC Meeting were the President of the United States, presiding; the Acting Secretary of State, the Secretary of Defense; and Mr. John S. Patterson for the Director, Office of Civil and Defense Mobilization. Also present and participating in the Council actions below were the Secretary of the Treasury; the Director, Bureau of the Budget; the Acting Secretary of the Interior (Item 1); the Administrator, National Aeronautics and Space Administration (Item 1) and the Attorney General (Item 2). Also attending the meeting were Mr. Alan N. Belmont for the Chairman, Interdepartmental Intelligence Conference (for Item 2); the Chairman, Interdepartmental Committee on Internal Security (for Item 2); the Chairman, Atomic Energy Commission; Admiral Arleigh Burke for the Chairman, Joint Chiefs of Staff; the Director of Central Intelligence; the Director, U.S. Information Agency; the Deputy Secretary of Defense; the Special Assistants to the President for National Security Affairs, for Science and Technology, and for Security Operations Coordination; Assistant Secretary of State Gerard C. Smith; Assistant Secretary of Defense John N. Irwin, II; the Chairman, Guided Missile and Astronautics Intelligence Committee; the White House Staff Secretary; the Assistant White House Staff Secretary; the Executive Secretary, NSC; and the Deputy Executive Secretary, NSC.

There follows a summary of the discussion at the meeting and the main points taken.

[Omitted here is agenda item 1.]

2. PORT SECURITY

(NSC 5802/1; NSC 5819, part 9; NSC Action No. 1862–f; Memos for NSC from Executive Secretary, same subject, dated January 7 and January 26, 1959)

Mr. Gray briefed the Council on the background of the problem and referred to a letter from the Attorney General to the Director, Bureau of the Budget dated February 25, 1959 which was handed out by Mr. Lay. (Copies of the briefing note, portions of which Mr. Gray used at the Council meeting, as well as copies of the Attorney General’s letter are filed in the Minutes of the Meeting and are also attached to this Memorandum). After summarizing the views of the two Internal Security Committees (the IIC and the ICIS) and after reading the Council action proposed by the NSC Planning Board, Mr. Gray suggested that the Council hear from the Attorney General.

Apropos of the adverse effect on the Port Security program of decisions of the lower courts, the President asked whether any thought had been given to taking such decisions to the U.S. Supreme Court or were we proposing to give up the fight in the face of the Circuit Court decision? The Attorney General replied that there was already a case, that of Greene v. McElroy, on this subject which would be argued before the Supreme Court in March and which the Attorney General hoped would have the effect of clarification.

The President then asked specifically why the decision in Parker v. Lester had not been taken to the Supreme Court. The Attorney General replied that this case had not been considered to be a good one for a test. He added that the Department of Justice also felt that we should give very serious consideration to what Mr. J. Edgar Hooever, as Chairman of the Interdepartmental Intelligence Conference (IIC), had said about the apparent trend toward backing away from various security programs as a result of recent court decisions. There might indeed be something of a tendency to beat a retreat in the face of difficulties posed by the courts. While there might be some things that we could do in a positive way to arrest this trend, there was not much hope of significant action until the case of Greene v. McElroy was finally decided by the Supreme Court in March, particularly the issue of confrontation of witnesses by the accused.

Mr. Gray pointed out that the Acting Chairman of the IIC, Mr. Alan Belmont and the Chairman of the ICIS, Mr. Yeagley, were present in the room and might wish to say a few words. Mr. Belmont pointed out that the concern of the IIC had been expressed in its memorandum of January 26, 1959 to the Executive Secretary. He would, however, like to pin point the problem in order to illustrate it for the Council. Mr. Belmont then supplied figures to show that 357 individuals who had been barred, prior to the Parker v. Lester decision, from the waterfronts have since succeeded in obtaining their papers. The records of the FBI indicated that these individuals were very dangerous to the national security and included saboteurs whom we would feel compelled to “pick up” in case of war.

The President said that it did not seen reasonable to him that the U.S. should be so confoundedly limited by its Constitution in trying to keep out such undesirables as these. The Attorney General agreed with the President’s point but repeated that we should know better how to proceed after the case of Greene v. McElroy had been decided.

Mr. Yeagley said that he had nothing to add on the subject beyond what had been contained in the memorandum of the ICIS to the Executive Secretary dated January 26, 1959.

Mr. Gray commented that all of us shared with the President a certain sense of frustration between the two horns of the dilemma but he too put hope in the outcome of the Greene v. McElroy case. If the decision of the Supreme Court should be adverse, he wondered whether new legislation might help to remedy the internal security situation. The Attorney General replied that if the decision of the Supreme Court in Greene v. McElroy went the wrong way, new legislation was not likely to help any.

The President inquired whether the subversive people we were talking about were all citizens of the U.S. The Attorney General replied that in most cases he understood that they were. The President added that if they were not citizens they could presumably be deported. The Attorney General agreed but again pointed out that most of them were citizens and added that we faced the same problem in industrial security programs that we were facing in the matter of the Port Security program. Mr. Gray suggested that the Council take another look at the problem after the Supreme Court decision. The President concluded the discussion by stating that if he had his way, the retreat would be a slow one if the decision of the Supreme Court were unfavorable in the case of Greene v. McElroy.

The National Security Council:

a. Noted and discussed the subject in the light of the report by the Department of Justice on the implementation of NSC Action No. 1862–f (transmitted by the reference memorandum of January 7), the views of the Interdepartmental Intelligence Conference and the Interdepartmental Committee on Internal Security (transmitted by the reference memoranda of January 26), the letter from the Attorney General to the Director, Bureau of the Budget, on the subject, dated February 25, 1959 (circulated at the meeting), and the discussion in the Planning Board (presented orally at the meeting by the Special Assistant to the President for National Security Affairs).

b. Agreed that the submission of the draft legislation and Executive Order called for in NSC Action 1862–f should be held in abeyance pending the “legislative and judicial developments with respect to other personnel security programs” referred to in the memorandum by the Department of Justice enclosed with the reference memorandum of January 7 and the letter from the Attorney General to the Director, Bureau of the Budget, dated February 25, 1959.

c. Noted that the Treasury Department will nevertheless continue to implement, so far as possible, the provisions of paragraph 19 of NSC 5802/1, and of paragraph 8 of the Port Security program approved by the President on April 21, 1958, relating to the exclusion of subversives from vessels, ports and waterfront facilities.

d. Noted 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.

NOTE: The above actions, as approved by the President, subsequently transmitted to the Secretary of the Treasury and the Attorney General for appropriate implementation, and to the Interdepartmental Intelligence Conference and Interdepartmental Committee on Internal Security for information and guidance.

[Omitted here is the remainder of the memorandum.]

S. Everett Gleason

1. Source: Agenda item 2: Port Security. Top Secret; Eyes Only. Extracts—5 pp. Eisenhower Library, Whitman File, NSC Records.