Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 6, 1953

A. Analysis of the Complaint

1. 605. The complaint presented by the National Union of Marine Cooks and Stewards alleges that the Government of the United States, under the guise of the issuance and enforcement of national security regulations, has instituted a blacklist in the maritime industry, in violation of General Assembly Resolution No. 128, of Article 55 c) of the United Nations Charter, of I.L.O Convention No. 87, and of fundamental trade union rights. It is alleged that this action on the part of the Government has the following objectives:
   • (a) To blacklist from the maritime industry and ultimately from all employment, those maritime trade unionists who differ from the policies of the administration in power.
   • (b) To interfere in the internal affairs of trade unions by penalising adherents to the democratically determined policies of their trade unions, as carried out by their democratically elected officials.
   • (c) To create an atmosphere of fear and intimidation in which, ultimately, all workers will be prevented from engaging in the activities of ordinary citizens, such as electioneering in political campaigns, association with others in petitioning the Government for redress of grievances, attending courses of education, reading periodicals and other literature of their own choice, and combating racial discrimination and hatred.
2. 606. In a statement appended to the complaint the complainant makes a number of specific allegations in substantiation of the above general allegations.
   • Allegations concerning the Institution of the National Security Programme
3. 607. The national security regulations for the maritime industry issued by the President of the United States supplanted a voluntary security programme entered into by the maritime unions and employers and the Government. Only trade union officials completely in accord with the policies of the Government had been invited to participate in the inauguration of this programme, -which nevertheless was in process of disintegration, certain of the unions originally adhering to it having realised its true nature and preparing to withdraw from it. It was for this reason that the coercive regulations were issued. Moreover, the Magnuson Act, under the authority of which they were issued, makes no provision for such a programme as that instituted, nor was it within its intent to make such provision.
   • Allegations concerning the Procedures and Operation of the Programme
4. 608. Under the regulations no worker may hold employment in the maritime industry in the United States unless he has first been screened by the Commandant of the Coast Guard and received clearance as a " good security risk ". The procedures established for this screening are arbitrary and inequitable for the following reasons
5. 609. Workers may be summarily removed from their employment by decision of the Commandant of the Coast Guard, without previous notice or hearing.
6. 610. A worker who has been denied security clearance and removed from his employment may appeal to a Local Appeal Board, but these boards are very often biased. Although ostensibly set up on a tripartite basis, with one representative each from the Coast Guard, labour and management, the practice of appointing as the third member a representative of the " public interest " frequently results in a board composed of two representatives of management and one of the Coast Guard. Bias is further insured by subjecting the board members to even more rigorous screening than applies to the workers, as a result of which officials of maritime trade unions which have opposed the policies of the Government have never been cleared for service on the appeal boards.
7. 611. When the hearing is held on an appeal, the appellant is given only a general statement of the charges against him, and is not allowed to confront the witnesses against him.
8. 612. The appeal board proceeds on the presumption of guilt, the regulations providing that clearance will be denied unless no reasonable grounds exist to consider the appellant a " poor security risk ". Moreover, the boards have laid down that all conflicts between the evidence of confidential informants and that of the appellant shall be resolved against the appellant.
9. 613. Among the criteria for denial of clearance is the fact of membership, affiliation or sympathetic association with organisations designated by the Attorney-General of the United States as subversive, in spite of a recent ruling of the Supreme Court that the exercise of such authority by the Attorney-General is unconstitutional and improper.
10. 614. In spite of the heavy bias against the workers implicit in these procedures, the Commandant of the Coast Guard may and does disregard recommendations of the appeal boards for clearance.
11. 615. Even if cleared, a worker is at any time subject to revocation of his credentials without notice or hearing, when his only recourse is once more to the lengthy appellate procedure.
12. 616. At all stages of the procedure, there are lengthy delays of one to nine months, during which time the appellant is prohibited from working at his occupation.
13. 617. Finally, in support of its allegations, the complainant organisation cites the cases of 11 longshoremen and seamen who were denied security clearance, giving details of their hearings before local appeal boards, in the course of which they were questioned concerning such matters as their trade union activities, religious and political affiliations, reading matter and other allegedly irrelevant matters. It is charged that the credentials of one of these individuals were withdrawn upon his arrival in port immediately subsequent to his election and vigorous prosecution of his duties as ship's delegate ; that the same happened to another two hours after his delivery of a speech against the security programme ; and that a third was denied clearance for having participated in a picket line some years before. The names of these persons are not given for fear, it is stated, of reprisals against them. Names, dates and places will be given, affirms the complainant, when a guarantee has been obtained from the United States Government that no such action will be taken.
14. 618. In conclusion, the complainant charges that the programme is directed against independent trade unions and militant trade unionists who have sought to exercise their democratic rights, because they have opposed the foreign and domestic policies of the administration in power. It seeks to establish government censorship over trade union policies and, by holding over their heads the threat of loss of livelihood, to prevent maritime workers from forming independent trade unions of their own choice. As such, it constitutes a grave threat to freedom of association.

B. Analysis of the Reply

1. 619. In its reply, the Government refers to its observations on a previous complaint against it, dealt with by the Committee in its second report, part of "which consisted of similar allegations concerning the security programme (Case 33). In these observations, the Government gave certain details which it did not feel it necessary to repeat in the present reply, and these are taken into account in this analysis.
2. 620. The Government makes the following general observations.
3. 621. There is no question as to the right of the Government to take adequate precautions against sabotage or subversive activities in its maritime facilities. The complaint itself does not contest this, charging only that the Government, under the guise of legitimate security procedures, is attempting to blacklist certain individuals and members of certain unions who differ from the policies of " the administration in power ", with the ultimate aim of creating such an atmosphere as to prevent maritime workers and ultimately all workers from exercising their rights as citizens.
4. 622. A grave emergency exists in the world today, as a result of which the United States has heavy commitments-especially in respect of the Korean situation-which place a special burden on its maritime industry. Needless to say, the activities of saboteurs, traitors, spies and active Communists represent a danger to maritime security. With respect to the last-named group, authoritative statements of the United States Supreme Court exist, to the effect that the Communist Party and its members constitute a danger to the security of the United States and they seek to overthrow the present form of government in that country, by force if necessary. A Canadian Royal Commission has reached similar conclusions.
5. 623. In the light of these considerations, the Government is entirely justified in taking measures to ensure that such persons are excluded from employment in the maritime industry, and it is for this purpose that the Maritime Security Regulations were put into effect.
6. 624. The American Merchant Marine has long had special status as being more vital to the security of the United States than ordinary industry. This is attested by the subsidies granted to it by statute and by the stated policy of Congress that it shall be capable of being an auxiliary to the armed forces in time of war, as also by the fact that seamen have always been legally required to meet certain conditions with respect to experience and physical condition. The addition of a requirement with respect to security, in a time of emergency, is perfectly justifiable.
7. 625. The only purpose of the security programme is the stated one of safeguarding maritime facilities against espionage and sabotage ; it is not directed against either trade unions or their members. On the contrary, the procedures under which it operates fully protect both the liberties of trade union members and trade union rights in general. Trade union activities are not among the specifically enumerated grounds for denial of security clearance. The programme has the support of the great majority of trade unions in the country. Both the American Federation of Labor and the Congress of Industrial Organizations have consistently supported and co-operated in the programme. Indeed, the only substantial opposition has come from the complainant organisation and from the International Longshoremen's and Warehousemen's Union, both of which have consistently followed and actively served the aims of the Communist Party.
8. 626. The Government then goes on to reply in detail to the specific allegations contained in the complaint.
   • Allegations concerning the Institution of the National Security Programme
9. 627. The Government gives the following account of the origins of the security programme.
10. 628. The original security plan was executed on a voluntary basis by representatives of labour, management and the Government in July 1950. Subsequently, an Act of Congress of 1950 gave the President of the United States the power to institute such measures as necessary for the security of the United States Merchant Marine and waterfront facilities, when he finds that the security of the nation is endangered by reason of, among other things, subversive activities. The President so found on 19 October 1950, and issued the Maritime Security Regulations, which are based upon and intended to supplement, not to supplant, the voluntary agreement. The Congress, after investigation by its committees, has expressed its approval by appropriating each year the necessary sums for carrying out the programme.
11. 629. With respect to the allegation that only trade union officials in complete agreement with the policies of the Government were invited to participate in the inauguration of the voluntary programme, it is observed that it would have been futile to invite officials who supported the very aims which the security programme was designed to combat. Mere opposition to the policies of the Government has never been a criterion for screening, but only subversion of the national security.
12. 630. The continuing support of the majority of trade unions for the programme cited by the Government has been referred to above. In this connection, press cuttings containing statements indicative of such support made by the largest A.F.L and C.I.O maritime unions are appended to the reply. A copy of the original voluntary agreement is also appended.
    • Allegations concerning the Procedures and Application of the Programme
13. 631. In the opinion of the Government, the procedures for the screening of maritime workers laid down in the regulations fully protect the individual's rights, and the charge of inequity and bias is unfounded. It refers again to its earlier observations, where the procedure was described as follows.
14. 632. The Maritime Security Regulations provide, in particular, that no persons may be employed upon the category of United States vessels designated by the Commandant of the Coast Guard nor may any person have access to any such vessel or to any waterfront facility designated by the Commandant unless he has been issued the proper credentials by the Commandant, who must first be satisfied that he is a person whose character and habits are such that his presence is not inimical to the security of the United States.
15. 633. The regulations issued by the Commandant clearly and specifically set forth the bases upon which the Commandant will reject an application for such credentials. It will be denied to any person who:
    • has committed acts of treason or sedition or has engaged in acts of espionage or sabotage ; has actively advocated or aided the commission of such acts by others or has knowingly associated with persons committing such acts;
    • is employed by or subject to the influence of a foreign Government under circumstances which may jeopardise the security interests of the United States;
    • has actively advocated or supported the overthrow of the Government of the United States by the use of force;
    • has intentionally disclosed military information classified confidential or higher without authority and with reasonable knowledge or belief that it may be transmitted to a foreign Government, or has intentionally disclosed such information to persons not authorised to receive it;
    • is or recently has been a member of, or affiliated to, or sympathetically associated with any foreign or domestic organisation which is or has been designated by the Attorney-General as (i) being totalitarian, Fascist, Communist or subversive ; (ii) 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 (iii) seeking to alter the form of the Government of the United States by unconstitutional means.
16. 634. However, this latter category of causes does not constitute an impediment to the issuance of the credentials, and the person concerned may be granted them if it is demonstrated, by more than a mere denial, that the security interests of the United States will not thereby be jeopardised.
17. 635. When a person wishes to gain access to waterfront facilities, credentials may also be refused him if he is otherwise not a suitable and safe person to have such access for certain other reasons (insanity without evidence of a cure, conviction for arson, unlawful trafficking in drugs, espionage, sabotage or treason ; drunkenness on the job or addiction to the use of drugs without evidence of rehabilitation).
18. 636. The Commandant's refusal is made only " if, on all the evidence and information available, reasonable grounds exist ". There is no presumption of guilt.
19. 637. When an application is rejected the person concerned has a right of appeal to the Local Appeal Board which makes recommendations to the Commandant, and if the decision of the Commandant is still adverse, to the National Board.
20. 638. The composition of these two boards is tripartite (one member representing the Coast Guard in the public interest, one representing management and one representing labour). The procedure established further provides that the appellant, who must be provided with a written statement giving the basis for the denial of his application, has the right to be heard and may appear personally and be represented by counsel or any person of his choosing. He has a right of peremptory challenge and challenge for cause against the members of the board which will hear his case. The hearing may be public or closed and a verbatim record is made of it. The recommendation of the board, made by a majority vote, together with all the evidence in the entire record, is sent to the Commandant, who may approve or reject it or remand the case for further proceedings.
21. 639. The appellant is notified in writing of the decision of the Commandant and, should the decision be adverse to him, is informed of his right further to appeal.
22. 640. With respect to the specific allegations formulated by the complainant, the Government states that these charges do not appear to refer to trade union rights, but rather to attack the procedural functioning and fairness of the security programme, and that, as such, they are irrelevant. It nevertheless presents the following observations
23. 641. The domestic law of the United States provides that if necessary to prevent espionage and sabotage, in times of crisis, notice and hearing are not required, nor does it at any time require hearing at the beginning of administrative proceedings. In spite of this, considerable notice and elaborate hearing are given under the programme.
24. 642. The regulations provide for nomination by the Secretary of Labor, of labour, management and public alternates to serve on the local appeal boards, who are then selected by the Chairman of the Board. Where the appellant has no union affiliation, or no member has been nominated from his union, a public member is appointed, who is normally an attorney having no connection with either labour or management. The appellant has the right, as indicated, of peremptory challenge and challenge for bias.
25. 643. As concerns the screening of board members, such a proceeding is necessary, since they have access to secret files containing information the disclosure of which would be prejudicial to national security. The charge that union officials have been refused clearance to serve on appeal boards because of their union activity is completely unfounded ; such refusal is made only on the grounds of personal ineligibility.
26. 644. The only two limitations on the procedural protections guaranteed to appellants before the local appeal boards are that they are given only a general statement of the charges against them and are not confronted by the confidential witnesses and secret evidence against them. These qualified restrictions are necessary to the security of the United States, which relies for much of its protection against espionage and sabotage on confidential sources of information which would be destroyed if produced in open hearings. These restrictions are considered to be fair and reasonable.
27. 645. That security clearance may be revoked after having been granted is natural. Such action will only be taken where further or new information discloses that the original clearance was mistaken.
28. 646. Finally, no claim of infallibility is made for the programme. Certain delays are inevitable in a programme of such vast scope. However, everything has been done to keep such delays to a minimum.
29. 647. With respect to the case histories cited by the complainant, the Government states that it cannot reply to them, since no names or identifying facts are given. It expresses doubt of their good faith, observing that the complainant has been distributing handbills giving names and photographs of individuals found to be security risks, and containing charges even more distorted than those in the complaint. The only penalty under the security programme is denial of clearance-there can be no question of " reprisals ". The Government nevertheless presents certain general comments on the charges implicit in the case histories.
30. 648. Security clearance could never be withdrawn in the short time alleged in some of these cases. Such action is only taken after lengthy investigation by Government agencies. It can be categorically stated that no case such as that of the ship's delegate whose papers were withdrawn upon his arrival in port has ever arisen.
31. 649. Participation in a picket line has never been a criterion for denial of clearance, any more than any other union activity per se.
32. 650. The implication that questions are asked in the course of hearings before local appeal boards which have little or no relevance to security and that clearance is denied on the basis of replies thereto is unjustified. Many general questions are necessarily asked of appellants, both to determine credibility and to establish identity.
33. 651. Finally, an ex parte presentation of this kind, without names or identifying facts, in which the complainant singles out what he wishes known and suppresses what he does not wish to be known, does not constitute documentation justifying consideration of a complaint.
34. 652. Proof of the fact that the programme has no other purpose than its stated one, affirms the Government, is to be found in the statistics of the screening operation. As of 1 May 1952, 484,670 maritime workers had been screened. Of these, only 3,716 were initially denied clearance. Appeals were lodged in 2,143 cases, of which 1,195 resulted in clearance and 562 were still pending on the date indicated. Only 2,531 had been finally denied clearance, a figure equivalent to approximately one-half per cent of the total number screened. Further, the high percentage of clearances on appeal-some 75 per cent of the cases acted on-speaks for the fairness of the procedures.
35. 653. It is obvious from these figures, states the Government, that there has been no discrimination against particular unions ; it is evident that large numbers of the membership of the complainant organisation itself must have been cleared.
36. 654. In conclusion, the Government points out that the parties allegedly injured, or whose rights are infringed, actually have the full protection of the United States Constitution, and have access to the courts to ensure this protection. Two actions are now pending in the courts. One, to enjoin enforcement of the programme, has been tried on the merits, in July 1952, but no decision has yet been handed down. The second, a criminal prosecution for violation of the prohibition against accepting maritime employment without security clearance, was dismissed on motion of the defendants in a decision which the Government considers erroneous and has appealed. The appeal is now pending.
37. 655. It is clear from these facts, considers the Government, that effective national procedures exist to protect against the alleged violations, and that these procedures are being used. It does not, therefore, seem appropriate or timely for the allegations to be considered on the international level.
38. 656. The Government appends to its reply copies of the Magnuson Act (Public Law 679-81st Congress), of the Maritime Security Regulations, and of the court decision dismissing the criminal prosecution referred to above.

C. C. The Committee's conclusions

1. 657. The Governing Body will recall that an earlier complaint against the United States presented by the W.F.T.U, which was dealt with by the Committee in its second report (Case No. 33) contained a general allegation to the effect that the U.S. Government had instituted a blacklist in the maritime industry. The allegations in that case were based upon the same law (Magnuson Act) and regulations and procedures thereunder which are the basis of the allegations in the present complaint. In that case, after a review of the complaint and the Government's reply, as well as the procedures and regulations in effect under the law complained of the allegation concerning the institution of blacklists was dismissed with the following conclusion:
   • In view of the fact that the regulations in question supplement a voluntary security plan executed on a tripartite basis and provide for right of appeal to tripartite boards, and that the allegation made by the complainant is not substantiated by any example indicating that the security regulations in the maritime industry have actually been used for the institution of blacklists for purposes of anti-union discrimination, the Committee recommends the Governing Body to decide that the complainant has not presented sufficient evidence to justify reference of the allegation to the Fact-Finding and Conciliation Commission, and that this allegation should therefore be dismissed.
   • This conclusion was approved by the Governing Body.
2. 658. The present complaint was submitted to the Economic and Social Council subsequent to the formulation by the Committee of its recommendations on the complaint presented by the World Federation of Trade Unions, and is considerably more detailed.
3. 659. The allegations of the complainant are, however, substantially the same as the allegations concerning the institution of blacklists contained in Case No. 33. These allegations are that, under the guise of issuing national security regulations, the Government of the United States has instituted a blacklist in the maritime industry, with the purpose of forcing trade unions to conform to the policies of Government by blacklisting from the maritime industry and, ultimately, from all employment, trade unionists who differ from the policies of the Government whether in support of the democratically determined policies of their unions, where these so differ, or in opposition to them, where they conform. The ultimate aim of the security programme, the complaint charges, is to create an atmosphere in which maritime workers, and, ultimately, all workers, will be prevented from exercising their ordinary rights as citizens. In support of these allegations, the complaint cites certain procedural aspects of the security programme, which it alleges are inequitable and have been employed to further the aims it imputes to the programme, and presents the case histories of a number of unnamed maritime workers who were supposedly blacklisted by reason of their opposition to Government policies or their affiliation or sympathy with trade unions which are so opposed, or their trade union activities.
4. 660. It is clear that the facts alleged by the complainant cannot be dismissed out of hand on the grounds that, even if proved, they would not constitute infringements of trade union rights.
5. 661. It is therefore necessary to consider whether, taking into account the reply of the Government, these allegations are sufficiently substantiated to call for further examination.
6. 662. Although the complaint charges that the aim of the security programme is ultimately to bar maritime workers from all employment, and to create an atmosphere in which " ultimately " all workers will be prevented from exercising their ordinary rights as citizens, it deals in fact with the maritime industry alone. Therefore, it would appear that the more general allegations formulated by the complainant do not call for further examination, in view of the manifest lack of substantiation of the allegations in respect of any matter other than the security regulations in the maritime industry.
7. 663. It may also be noted that the complaint does not, as the Government points out in its reply, call into question the right of the Government to take adequate measures for the protection of its maritime facilities against espionage, sabotage and subversive activities. The complaint does charge that the law under whose authority the measures were taken makes no provision for the institution of a programme for the screening of maritime workers to determine whether or not their employment would constitute a danger to the national security, but it does not, on the other hand, charge that such a programme is inconsistent with the law. The use in the complaint of the expression " under the guise " would also seem to imply that the Government has the right to take legitimate security measures.
8. 664. In this connection, the Government states that the security programme was necessitated by the conditions of emergency existing in the world today. The United States has, it is stated, heavy commitments abroad-particularly with respect to the situation in Korea-which place an especial burden on its maritime industry. This industry has long occupied special status in the eyes of the Government, as being more vital to the national security than ordinary industry, as is attested, affirms the Government, by the subsidies granted to it by statute, by the stated policy of the Congress that the Merchant Marine shall be capable of being an auxiliary to the armed forces in time of war, and by the fact that seamen are required to meet certain conditions with respect to experience, physical condition and, now, security. The Government points out that spies, saboteurs, traitors and other subversive elements constitute a threat to security in the industry and are rightfully excluded from employment in it. It is for this purpose, and no other, that the security programme was instituted, affirms the Government, adding that neither in its procedures, nor in its practice, is there any effort to discriminate against trade unions or trade union activities. In instituting the programme, the President of the United States acted on the authority of an Act of Congress of 1950 (Magnuson Act), states the Government, and the Congress, after explanation of the programme to its committees and on-the-spot investigations, has approved the programme by appropriating for it each year the sums necessary for its operation.
9. 665. In effect, the Magnuson Act-the text of which is appended to the Government's reply-provides that the President may take measures and issue regulations to safeguard maritime facilities against destruction, loss or injury, whenever he finds that the security of the United States is endangered by, among other things, subversive activities.
10. 666. The charge then is, that legitimate security programme is actually being used to blacklist individuals who disagree with the policies of the Government, with the purpose of compelling maritime trade unions to conform to those policies, and should be examined in this light. As stated above, it was essentially this charge that was considered and dismissed in Case No. 33.
    • Allegations concerning the Procedures of the Security Programme
11. 667. In charging that the security programme is intended, and operated in such a way as to discriminate against certain trade unionists and the members of certain trade unions, the complaint makes a series of allegations in respect of specific parts of the procedure set up in implementation of the security regulations purporting to demonstrate that this procedure is inequitable and biased. Thus, it charges that maritime workers are subject to summary dismissal and prohibition from employment in the maritime industry without notice or hearing by decision of the Commandant of the Coast Guard ; that the hearing granted on appeal to a worker who has been denied security clearance is unfair and biased, in that he is given only a general statement of the charges against him, that he is not confronted by the adverse witnesses, that the appeal board proceeds on the presumption of guilt, and that conflicts between his testimony and that of confidential adverse witnesses are resolved by the appeal board against him ; that the fact of membership in, affiliation or sympathetic association with organisations which have been designated by the Attorney-General of the United States as being subversive, continues to be used as a criterion for denial of security clearance in spite of a recent Supreme Court decision ruling the exercise of such authority by the Attorney-General to be unconstitutional and improper ; that the Commandant of the Coast Guard may and does disregard recommendations of the appeal boards ; that, even after clearance, a worker may again be placed in denial status, without notice or hearing, having then no recourse but to embark again upon the lengthy appellate procedure ; and that at every stage of the procedure there are protracted delays, during the entire period of which he is prohibited from employment in his occupation.
12. 668. In reply to this group of allegations, the Government states that the security programme has been carefully drafted to achieve its stated aims with a minimum of interference with individual rights, and that the procedure guarantees all procedural protections consistent with the national security to applicants for security clearance. In substantiation of this contention, the Government gives a detailed exposition of the regulations and procedures followed in the operation of the security programme, appending to its reply a copy of these regulations.
13. 669. According to the Government, the Maritime Security Regulations provide that no person may be employed in those areas of the maritime industry designated by the Commandant of the Coast Guard unless he has applied for and received the proper credentials from the Commandant of the Coast Guard, who must first be satisfied that he is a person whose character and habits of life are such that his presence would not be inimical to the security of the United States.
14. 670. The regulations issued by the Commandant clearly and specifically state the grounds upon which he will deny security clearance, which are that the applicant:
15. (1) has committed acts of treason or sedition or has engaged in acts of espionage or sabotage or has actively supported or aided the commission of such acts by others;
16. (2) is employed by, or subject to the influence of a foreign Government under circumstances which may jeopardise the security interests of the United States ;
17. (3) has actively advocated or supported the overthrow of the Government of the United States by force ;
18. (4) has intentionally disclosed secret military information without authority and with reasonable knowledge or belief that it may be transmitted to a foreign Government or has intentionally disclosed such information to persons unauthorised to receive it; and
19. (5) that he is, or recently has been, a member of, or affiliated or sympathetically associated with, any organisation or group which:
    • (a) is or has been designated by the Attorney-General as being totalitarian, Fascist, Communist or subversive ;
    • (b) has adopted, or has been designated by the Attorney-General as having adopted, a policy of advocating or approving the commission of acts of force to deny other persons of their rights under the Constitution of the United States;
    • (c) seeks or has been designated by the Attorney-General as seeking, to alter the form of the Government of the United States by unconstitutional means.
      • This last group of considerations does not, however, constitute an impediment to the granting of security clearance, it being provided that it may be granted notwithstanding if it is demonstrated by more than a mere denial that the security interests of the United States will not thereby be jeopardised.
    • 671. The Commandant's determination, it is stated, is only made after full investigation of the applicant by Government investigation agencies.
20. 672. While there is no hearing at this stage of the procedure, the Government admits, the domestic law of the United States does not require hearings at the beginning of administrative proceedings, but only at some stage thereof, a requirement met in the security programme.
21. 673. A person to whom security clearance has been denied may appeal to a local appeal board, which is composed of one representative each from the Coast Guard, labour and management. The appeal board must hear all appeals, and the appellant has a right to present his case in an open hearing, at which a verbatim record is taken, and may be represented by counsel. To ensure the impartiality of the appeal board, the appellant has the right to one peremptory challenge against the labour and one against the management member of the board, and a qualified right to challenge for cause.
22. 674. The only restrictions on the procedural protections guaranteed to the appellant, states the Government, are that he is only given a general statement of the charges against him, and is not confronted with the confidential witnesses and secret information against him. These restrictions, it is asserted, are necessary to the security of the United States, which relies for much of its protection against espionage and sabotage on confidential sources of information which would be destroyed if revealed in open hearing.
23. 675. In making its recommendations, the appeal board is governed by the same considerations and criteria as are laid down for the Commandant of the Coast Guard. The recommendation is made by majority vote, and is then transmitted to the Commandant, together with all the evidence in the entire record. The Commandant may either approve or reject it, or remand the case for further proceedings.
24. 676. Should the determination of the Commandant still be adverse, the appellant has a right of further appeal to the National Appeal Board, and must be informed of this right in writing, at the time he is informed of the Commandant's determination.
25. 677. If, after clearance has been granted, new or further information is received indicating that the clearance was mistaken, the person concerned may be denied clearance. Such a provision affords no grounds for complaint, contends the Government.
26. 678. In conclusion, the Government asserts that these allegations of the complainant concerning the procedures employed in the operation of the security programme do not appear to charge infringement of trade union rights, but rather to attack the procedural functioning and fairness of the programme and that, as such, they are fundamentally irrelevant.
27. 679. It states that it makes no claim of infallibility for the programme, pointing out that in an operation of such vast scope some errors and delays are inevitable. The programme admittedly imposes hardships on many of the individuals concerned, but the Government has done all in its power to keep these hardships to a minimum. The elaborate appellate procedure exists to rectify errors, and the fact that some 75 per cent of the cases acted on under it have resulted in clearance indicates that it does ; and, in the vast majority of cases, appeals are dealt with expeditiously.
28. 680. In so far as the question of trade union rights may be involved, the Committee considers itself bound to scrutinise closely, in any case which comes before it, procedures for security clearance which may have the effect of abridging or infringing upon those rights. But, where no trade union rights are specifically involved, the Committee considers that it is not within its competence to enquire into the extent of secrecy which a country feels it necessary to introduce, for its security, into its procedure for screening employees in an industry which is, as is the case at present in the United States with respect to the maritime industry, being operated more or less on a wartime basis. The Government has stated that trade union rights as such are not jeopardised by the procedure, that trade union activities are not among the specifically enumerated grounds for denial of security clearance, that the element of secrecy in that procedure has been kept to the minimum necessary for security so that the individual personal rights of accused persons are prejudiced as little as possible, and that the procedure provides the necessary protection and safeguards against it being used abusively against them (e.g., rights of appeal, hearing, challenge, representation by counsel, specific enumeration of grounds for denial of clearance, etc.). The Committee notes, moreover, that both the A.F.L and the C.I.O appear to be satisfied that the procedure, as the Government contends, is not directed against persons because of their legitimate trade union activities.
29. 681. In these circumstances, the Committee, while emphasising, as it has done in earlier cases, the importance it attaches to the principle that all accused persons should enjoy the guarantees afforded by due process of law, considers that, in the present case, no infringement of trade union rights would appear to have occurred and, therefore, recommends the Governing Body to decide that this part of the case does not call for further examination.
    • Allegations concerning the Operation of the Security Programme
30. 682. The complaint makes the following specific allegations to show the procedures of the security programme have been applied in such a way as to infringe trade union rights and to justify the complainant's basic allegations concerning the purposes of the programme:
    • (a) That the programme was instituted because the voluntary security programme which preceded it was disintegrating, some of the unions which originally adhered to it having realised its true nature, and preparing to withdraw.
    • (b) That the groups originally invited to participate in the inauguration of the voluntary programme were screened to include only trade union officials in complete agreement with the policies of the Government, and that the same measures have been taken in respect of the management and labour members of the local appeal boards, with the result that trade union officials who have opposed the policies of the Government have been excluded from service on these boards.
    • (c) That the local appeal boards frequently consist of one representative of the Coast Guard and two of management, as the result of the practice of appointing as representatives of the " public interest " persons clearly sympathetic to management.
    • (d) Finally, that security clearance has consistently been denied to militant trade unionists who have exercised their rights as trade union members in opposition to the policies of the Government, speaking out for peace and civil rights and against racial and religious discrimination. In support of this allegation, the complaint adduces the " case histories " of 11 maritime workers who allegedly were denied security clearance, giving information concerning their hearing before appeal boards. These workers, it is charged, were questioned concerning such extraneous matters to security as their trade union, political, social and religious affiliations, trade union activities, reading matter, marital status, etc. It is implied that these matters were the criteria for denial of clearance. One of the individuals is alleged to have been denied security clearance upon his return from a voyage in the course of which he had been elected to the post of, and had vigorously prosecuted his duties as ship's delegate. A second is supposed to have been denied clearance two hours after his delivery of a speech against the security programme, and in a third case, the basis for denial of clearance is alleged to have been the appellant's participation in a picket line some years previously.
31. 683. The names of the individuals concerned in these cases are withheld, it is stated, for fear of reprisals against them. Names, dates and places will be given, adds the complaint, if a guarantee can be obtained from the United States Government that no such action will be taken.
32. 684. It is clear that the facts alleged by the complainant cannot be dismissed out of hand on the grounds that, even if proved, they would not constitute infringements of trade union rights.
33. 685. It is therefore necessary to consider whether, taking into account the reply of the Government, these allegations are sufficiently substantiated to call for further examination.
34. 686. Allegation (a). In reply to this allegation, the Government states that, far from opposing the security programme, the great majority of trade unions in the United States supported, and continue to support it. The Congress of Industrial Organizations and the American Federation of Labor have both consistently supported and co-operated in the programme. Indeed, the only substantial opposition has come from the complainant organisation itself and from the International Longshoremen's and Warehousemen's Union, both of which have consistently supported and served the aims of communism. The Government appends to its reply statements made by two of the largest C.I.O and A.F.L maritime unions within the last year, indicating their support and approval of the security programme.
35. 687. In view of the Government's statements, and of the fact that the complainant has not adduced any proof to substantiate its charge, the Committee recommends that this allegation should be dismissed on the ground that the complainant has not furnished sufficient evidence to justify its further consideration.
36. 688. Allegation (b). In reply to this allegation, the Government submits that it would have been futile to invite the participation in the voluntary security programme of trade union officials who supported the very aims which the programme was designed to combat.
37. 689. As concerns that part of the allegation according to which trade union officials were excluded from participation in the voluntary security programme and have been denied clearance to serve on appeal boards by reason of their trade union activities, the Government states that the only criteria for screening are those laid down in the regulations, and the trade union activities are never used as grounds for denial of security clearance. The screening of members of appeal boards is stated to be necessary, as they have access to confidential files containing information whose disclosure would be prejudicial to the national security.
38. 690. In view of the Government's observations, and of the fact that the complainant again adduces no specific instances, the Committee recommends that this allegation should be dismissed, on the grounds that the complaint has not furnished sufficient evidence to justify its further consideration.
39. 691. Allegation (c). The Government characterises this allegation as frivolous. The regulations provide for the nomination by the Secretary of Labour, of labour, management and public alternates to serve as members of the appeal boards. The public alternates, who are normally attorneys, are reputable individuals having no affiliations with labour or management. They are appointed to represent the public interest on appeal boards when a labour or a management representative is unavailable, and, specifically, in cases where an appellant either has no union affiliation or no member has been nominated from his union. Moreover, the appellant has the right to peremptory challenge and challenge for cause.
40. 692. In view of the Government's explanation, and particularly of the safeguard contained in the provision of the regulations permitting the appellant to challenge the members of the appeal board hearing his case, and in view of the fact that, again, the complainant has adduced no specific instance in substantiation of his charge, the Committee recommends that this allegation also should be dismissed, on the ground that the complainant has not furnished sufficient evidence to justify its further consideration.
41. 693. Allegation (d). In reply to this allegation, the Government repeats its statement that the only grounds for denial of security clearance are those specified in the regulations ; no person has ever been denied clearance on the basis of his trade union activities or for exercising his rights either as a citizen or as a trade union member. The Government goes on to state that the charges in the 11 " case histories " are completely unfounded : many general questions are necessarily asked of appellants in the course of a hearing, both to ascertain credibility and to establish identity, but the matters referred to do not constitute grounds for denial of security ; in no case could security clearance be denied in the manner alleged in respect of the ship's delegate and the orator, for denial is only made after lengthy investigation by Government investigation agencies ; nor has participation in a picket line ever been a basis for denial, any more than any other legitimate trade union activity.
42. 694. In respect of the 11 cases alleged to have occurred, the Government justifiably points out that they cannot be answered specifically, since they contain no names or other identifying facts. It expresses doubt as to the good faith in which these cases are presented, stating that, though suppressing names in this instance, the complainant organisation has been distributing handbills in the United States giving names and photographs of persons denied security clearance and containing charges even more distorted than those presented in the complaint. Furthermore, the only penalty imposed on a worker under the security programme is denial of security clearance, with consequent prohibition from employment in the maritime industry ; there can be no question of reprisals. In conclusion, the Government expresses its opinion that an ex parte presentation of this kind, without names or identifying facts, in which the complainant is free to select and suppress facts at will, does not constitute documentation justifying consideration of a complaint.
43. 695. While this allegation, if proved, might establish infringement of trade union rights, the only evidence submitted by the complainant is the statements contained in the 11 " case histories ". In the absence of all identification of the individuals, dates and places concerned in these cases it does not seem possible to consider them admissible as evidence. Though the complainant states that the names of the persons concerned are not given for fear of reprisals, and states its readiness to furnish them if a guarantee is obtained from the United States Government that no such reprisals will be made, it gives no hint of what form these reprisals might take, nor does it cite any cases in which reprisals have been made. On the other hand, the Government states that no reprisals are possible, since the only penalty under the security programme is denial of clearance, and this statement is borne out by the regulations, which contain no other provision.
44. 696. In these circumstances, the Committee recommends that the statements of the complainant concerning the alleged specific instances are not sufficiently precise to permit examination of them on their merits, and that in the light of this consideration and of the statements of the Government noted above, the complainant has not furnished sufficient evidence to justify further consideration of this allegation.
    • Allegations concerning the Intent of the Security Programme
45. 697. The complainant alleges that the purpose of the security programme is to compel trade unions to conform to the policies of the Government by holding over the heads of their members the threat of loss of livelihood. It is alleged that workers in the maritime industry are thus deprived of the right to form and join independent unions of their own choice.
46. 698. In reply, the Government states that the only purpose of the security programme is the stated one of protecting United States maritime facilities against espionage, sabotage and other subversive activities. Neither in its intent, procedure nor practice is the programme directed against trade unions or trade unionists.
47. 699. The statistics of the programme, continues the Government, attest that it has not been used in the discriminatory way alleged. As of 1 May 1952, a total of 484,670 individuals had been screened. Of these, only 3,716 were initially denied clearance. Appeals were filed in 2,143 of these cases, and of these, 1,195 resulted in clearance, and 562 were pending as of the date indicated. At that time, 2,531 individuals had been finally denied, a figure corresponding to approximately one half per cent of the total. It is clear that large numbers of members of the complainant organisation itself must have been cleared. The large number of clearances on appeal testifies to the fairness and impartiality of the procedure.
48. 700. Finally, the Government points out that those allegedly injured have the benefit of all the guarantees of the United States Constitution and that they have recourse to the courts to enforce them. Two actions relating to the security programme are now pending in the courts. One, a suit brought by certain seamen and longshoremen to enjoin enforcement of the programme was tried on the merits in July 1952, but no decision had been handed down at the date of the Government's reply. The other, a criminal prosecution for violation of the prohibition against accepting maritime employment without security clearance, resulted in dismissal on motion of the defendants. The Government considers this decision erroneous and an appeal is now pending. Should any part of the security programme be held contrary to the Constitution of the United States, it would be unenforceable and the programme would be modified accordingly. Thus, states the Government, it is clear that effective national judicial procedures exist for the redress of any violations, and they are being used. For this reason, it considers that consideration of these allegations on an international level is neither timely nor appropriate.
49. 701. In view of the above statements of the Government, particularly with respect to the existence and actual recourse to national procedures for the enforcement of individual rights, and of its assurance that any part of the programme found to be contrary to the United States Constitution would be unenforceable and the programme modified accordingly ; in view, furthermore, of the conclusions proposed above to the effect that the specific allegations in the complaint are not sufficiently precise or substantiated to call for further consideration, and of the fact that the general allegations concerning the purpose of the programme depend for substantiation on those charges, the Committee considers that the allegations in the present case, though more detailed in character, do not differ materially from the allegations already considered and dismissed by the Governing Body in Case No. 33 and that the complainant has not furnished sufficient evidence to justify reference of the case to the Fact-Finding and Conciliation Commission.
50. 702. The Governing Body may wish, however, to be informed of the results of the court actions mentioned by the Government as pending and of any action taken by the Government in consequence of these decisions.