Do you not agree with me, Mr. Attorney General, in my general views?

The ATTORNEY GENERAL. Yes, I do, Mr. Chairman. I think you have been careful in that respect. Furthermore, if the definition is broad, the prohibited acts are more narrowly defined so they have to actually be doing something unlawful.

The CHAIRMAN. Let me ask you one more question: Suppose for the sake of discussion that an Attorney General should try to proceed against a fraternal or bona fide secret organization under the act. Do you not think that the organization could successfully object on the ground that section 402 of the act, the definition of clandestine organization, the use of the word "clandestine" rather than "secret" in the act, the investigation out of which the bill evolved, and these hearings today, plus my statement of what we intend the bill to mean, make it abundantly clear that the statute was never intended to reach such an organization?

The ATTORNEY GENERAL. I should certainly think so, Mr. Chair

man.

The CHAIRMAN. Well, I appreciate that and I am glad to have your considered judgment because that is our deliberate purpose, and it will be so stated time and again in the report, during these hearings, and on the floor of the House.

Mr. WELTNER. Mr. Chairman, would it be appropriate at this point to inquire of the Attorney General his view of this bill, whether it is not correct that mere membership in an organization defined as a clandestine organization carries with it no sanction whatsoever, that it is only when acts otherwise criminal in nature are performed or perpetrated by the members of a clandestine organization that any criminality attaches?

The CHAIRMAN. That is right.

In that connection we considered and wrestled with the problem of a so-called disclosure provision or the approach, let's say, of the Internal Security Act which has frustrated so many people in its enforcement. We rejected it. So you are right. The answer to your question is obvious in my opinion. In other words, membership is not made a crime, it has to do only with criminal acts of members of an organization whose dedication and purpose is bent toward terroristic activities.

Do you not agree, Mr. Attorney General?

The ATTORNEY GENERAL. Yes; there is no sanction for membership here and it only involves the points that you make.

Mr. POOL. Mr. Chairman, I would like to ask the Attorney General: In this section (a) of 407, that is on pages 7 and 8, it spells out several things there, but the thing that I think that we ought to add to this thing I want to ask your opinion on it should be that the purpose should be unlawful in talking about the teaching or advocacy of force to further any objective of any clandestine organization operating in interstate commerce. Should we not spell out the purpose that it would have to be unlawful?

The CHAIRMAN. What does "binding and lawful" mean?

Mr. POOL. Well, the trouble is you are going to get into some industrial field there, and I do not think the Attorney General would ever use the bill for that purpose, but we might as well write it to amount to something where it would be technically right:

"furthering or accomplishing any purpose, objective, or plan of any clandestine organization doing business or operating in interstate or foreign commerce, or (2) preventing or hindering any citizen of the United States from freely exercising or enjoying any right, liberty, privilege,

***"

I think we ought to mention the purpose of being unlawful. The CHAIRMAN. Of course it refers you to a clandestine organization.

Mr. POOL. Yes, but you are getting all the Masons and Knights of Columbus.

The CHAIRMAN. No; you are not. Are you expressing the opinion that

Mr. POOL. I am expressing the opinion that the bill ought to have "unlawful purpose" stuck in here. That is what I am asking the Attorney General, if it should not be added to the bill.

Mr. Chairman, on page 8, under (1) there, "further or accomplish any"-add "unlawful" "purpose, objective, or plan of any clandestine organization doing business or operating in interstate or foreign commerce".

The CHAIRMAN. I don't think we have objection to that. Let's let the staff wrestle with that. How about that, Mr. Weltner?

Mr. WELTNER. I think it is a good suggestion.

Mr. POOL. The reason I ask it now, we have the top attorney in the United States, and I want to ask his opinion on it. That is why I asked it.

The CHAIRMAN. I don't think we have objection to it.

Mr. POOL. What do you think about it, Mr. Attorney General? Do you think it is necessary?

The ATTORNEY GENERAL. I think in clause (1) where you are adding it that was the intent of the bill anyhow. I would think it would make that intent more clear, if it were added.

Mr. Pool. I think it would make it better.

The CHAIRMAN. I am quite sure we would agree with you. We appreciate your view. Keep that amendment in mind, Mr. Weltner. Mr. ASHBROOK. Mr. Attorney General, in your statement you refer to the fact that there are constitutional difficulties and problems in some aspects of the committee's bill. I think it would be most helpful at this time if you would spell out some of these constitutional difficulties and problems so we can wrestle with them.

The ATTORNEY GENERAL. I was particularly concerned in that respect, really, with section 407 because of the various cases under the Smith Act which has somewhat comparable provisions. I think you run into some first amendment problems with respect to 407 (a) unless that is very closely confined to a situation which predictably is going to have the result so it really comes very close to being advocacy of an illegal act likely to be effective in resulting in the actual commission of those acts. I think that that was one of the problems, perhaps the principal constitutional problem, that I was concerned with.

I think it is conceivable, constitutional problems with respect to the possible breadth of the definition of clandestine organization. I think the chairman has made it clear that he did not want various legitimate organizations covered there despite the fact that a legitimate organization, I think, would have a good defense to the act-I can conceive

that other individual defendants would raise the questions of the breadth of that as being too vague and too broad and therefore unconstitutional in that respect.

The CHAIRMAN. Mr. Attorney General, I want to ask if you might perhaps supply language that we might consider and adopt that would be-I don't think we are apart at all on your objective and the view that you are expressing.

if

The ATTORNEY GENERAL. That is right.

The CHAIRMAN. It is a question of expressing it. I wonder perhaps you could give us a very short, succinct memo on that, perhaps the use of simple language which might be acceptable to accomplish what you have in mind.

The ATTORNEY GENERAL. I would be happy to try to work with you and members of the staff, Mr. Chairman.

Mr. ASHBROOK. Mr. Attorney General, in relation to the Smith Act cases, as in relation to 407, aren't we even on more solid ground here because, in the Smith Act, you do have a certain nebulous area of the advocacy of the overthrow of the country, where in this case we are talking about the teaching or advocacy of specific acts of violence, teaching or training people to use fire bombs, to school them in weaponry, dynamiting, and so forth. Aren't we much closer to specific acts in avoiding some of the generalisms that seem to raise questions among Supreme Court decisions? It would seem that the point you make—you are a much more able attorney than any of us, obviouslybut it seems much more close to specific acts than we are dealing with in the general advocacy of the overthrow of the country.

The ATTORNEY GENERAL. I agree with that. I have in that respect relatively little trouble with (b), although we may have trouble trying to prove it in a specific context. We have no trouble there. I have a little bit in (a) unless as part of your proof you could show that advocacy of using illegal means here actually was calculated to result in their use, that it was a sufficiently close connection between the advocacy of it and the actual probability of its being used. Then I don't think you would have a constitutional difficulty. I think that has been the intent in drafting it, to create that relationship.

Mr. ASHBROOK. I think what Mr. Willis said is correct. I have also introduced this bill, and we don't take specific pride in authorship, it is a starting vehicle and we are looking for a way to make it a better bill.

One last question: You express some preference for Title V, and I assume that the same thing would apply to you that I just said, it is not pride of authorship. At least it is not in our case with H.R. 15678 and others. If that is true, and I am sure it is, what particular areas of Title V do you think are superior to ours, and what problems or what jungle are we getting into in problems that Title V is avoiding that might give us a little comparison, a little background?

The ATTORNEY GENERAL. Yes, I would be happy to, Congressman. I am not suggesting that the overlap between the two is complete, because it is not. In Title V there are certain specific prohibitions of actual acts to be committed; that is, somebody doing something to deprive somebody of a particular guaranteed Federal right, and those are fairly broadly drafted.

Now the reason I express some preference for that is the fact that, in drafting it that way, we can deal directly with the unlawful act or

the conspiracy to commit the unlawful act and all we have to show is that the act was committed pursuant to this conspiracy and by the people who actually committed the act.

Now I could illustrate this perhaps most simply—

The CHAIRMAN. I have a question on that.

The ATTORNEY GENERAL. If I could just illustrate my point on that. If you look at section 406, for example, you have got, "Any person who, being a member or agent of a clandestine organization and acting in furtherance of or in relation to any purpose, objective, or plan of such organization, willfully by force, intimidation, or threat, unlawfully obstructs or impedes the free movement of any citizen in inter

state commerce

***"

Now you could constitutionally draft a statute that simply said, "any person who willfully by force, intimidation, or threat unlawfully obstructs or impedes the free movement of a citizen in interstate commerce," and you would have a perfectly valid constitutional statute. Here you actually impose the obligation of proving in addition to that the membership or agency and the purpose of the organization. What we attempted to do in the other was to deal directly with the act rather than the additional proof of membership and furtherance of purpose. The CHAIRMAN. No, I have given much thought to the views you are now expressing and I beg your pardon, but I take the exact opposite view. I think that the degree of proof under Title V of the Civil Rights Act, passed or proposed, is measurably greater than here and we must come back to this problem or we have missed the point. This is not a civil rights bill; it is much broader.

Now I take the view, for instance, that under Title V of the civil rights bill the element of proof is motivation based on race, color, creed, or religion. Now you don't have that here. When we say, for instance, that someone commits a kidnaping, that is it. It need not be related to race or color or religion. For instance, in my opinion, there are eight sections of these bills which could not possibly be reached under the Civil Rights Act.

Let me give just one illustration: Suppose, for instance a Klansman should kill or kidnap or assault a white atheist; you can't reach him under your bill. He does not believe in God; religion is not involved, race is not involved. But we do reach him. If he kidnaps, it is a punishable act of kidnaping, no matter why he does it. I think our bill is immeasurably broader and requires less degree of proof. You don't have to prove that the crime is related to race, religion, creed, and so on. So I am afraid I disagree with you.

The ATTORNEY GENERAL. I appreciate your view.

The CHAIRMAN. As I view it, anyway, it was intended, in my mind, to be really broader than under the civil rights bill.

The ATTORNEY GENERAL. I appreciate your point, the coverage of this. This is not a civil rights bill; it covers, I assume, such activities as that of-Cosa Nostra is included in this as well as the Klan.

The CHAIRMAN. Let me hasten to say I glory in the fact that socalled minority races, colored races, will be great beneficiaries of my bill. When I say it is not a civil rights bill, I don't mean to say that civil rights issues are not presented and that minority groups are not protected. I have always taken the view, however, that this bill really is broader than the civil rights bill and that the threshold proof of race, religion, or creed is not necessary here and that, therefore, a

crime is a crime here, as such, and you don't have to have the threshold proof of race, religion, or creed, and so on. That has been my point of view all along.

The ATTORNEY GENERAL. That is perfectly true, Mr. Chairman, and this has a broader coverage. I believe that as a practical matter, in so far as you are talking only about the Klan here, that generally the activities involved would also be covered as far as that particular organization is concerned by Title V of the Civil Rights Act, and I would be inclined to think as far as that particular organization was concerned that the proof might be easier under Title V of the Civil Rights Act. Now you are covering other organizations here which are not touched by the Civil Rights Act.

The CHAIRMAN. We are not in disagreement, may I say.

Mr. BUCHANAN. Mr. Chairman, could I just say in line with your point, sir, that, even with this particular organization, I believe our hearing covers a good deal of testimony in which a white person has been terrorized or beaten by a conspiracy, by other white persons, which would not be connected with race or color even with Klan-type organizations.

The ATTORNEY GENERAL. That probably would be under Title V, Congressman, because it does not govern only attacks by whites on Negroes or Negroes on white, it covers whites against whites if it is related to any of these purposes.

The CHAIRMAN. Let me give an illustration of the testimony in this record. In my own State of Louisiana-not in my district, thank God-we have a passage in our testimony indicating the Klans have the silly notion that the Invisible Empire, or some such foolish domain, has the right to regulate the politics, the thinking, the economy and everything else, and the morals of their own little community. In a certain little community in Congressman Jimmie Morrison's district, the Klan leaders decided unto themselves that a 17-year-old boy whose father was dead, whose mother was widowed, somehow was hanging around pool halls-that is the word-too much.

So what did they do? Well, that didn't conform to their notions of the morals of the community or how the community should conform to their little silly world, so what did they do? They seized that boy at night, they brought him into a wooded area, they lowered his trousers and beat his buttocks until the blood was all over the lot. Now I say this kind of thing has got to be stopped, and it is in that sense, to take the word of our colleague from Alabama, that we are not relating this thing to color or race or religion vis-a-vis the Klan. The element of proof is probably less under this bill than would be under the civil rights bill because if it be done to a white atheist, or anyone else, it can be reached under this bill.

Perhaps I have belabored the point too much but I wanted to put it in the record.

Mr. WELTNER. Will the chairman yield?

Mr. Attorney General, under Title V of the 1966 Civil Rights Act there are three basic sections, (a), (b), and (c). Isn't it true that each of those contains the specific language that because of his race, color, religion, or national origin? For instance, Title V says, "Whoever, whether or not acting under color of law, by force, or threat of force *** interferes with any person because of his race, color, religion," et cetera, and then it lists some nine activities. That is subsection (a).