TESTIMONY OF DANIEL O'BRIEN, CHICAGO, ILL.; AND NATHAN
WITT, ATTORNEY AT LAW, NEW YORK, N. Y., ON BEHALF OF THE
INTERNATIONAL UNION OF MINE, MILL, AND
WORKERS

Mr. ARENS. Will you both identify yourselves?

SMELTER

Mr. WITT. Nathan Witt, W-i-t-t, 9 East 40th Street, New York. I am a member of the bar of the State of New York and I appear here as general counsel for the International Union of Mine, Mill, and Smelter Workers, for its local 758, in Chicago, and for Brother O'Brien here.

In view of the fact that I was here while Mr. Countryman testified, and I heard the questions, I think I can save a little time by just taking a couple of minutes to sharpen up one or two issues, as far as we see them in the Mine, Mill, and Smelter Workers, and as we set forth in our statement, which is now part of the record. I think all I need do is just make two points, one point which I think Mr. Countryman made pretty well, but which I think needs more emphasis.

As a lawyer I was brought up in the Anglo-Saxon traditions of our law, and in the traditions of our Constitution and the Bill of Rights, and I was taught that the most elementary principle of our system of law is that you define crimes, and you define rights and duties, and then you give men a trial when they are charged.

The fundamental objection to this kind of legislation which Mr. Countryman stated in his own way, and I would like to restate from my point of view is that this legislation and similar legislation has departed from that elementary concept of Anglo-Saxon law, and I agree with Mr. Arens that we are in a bad way if we continue to pass this kind of legislation.

Mr. ARENS. I think I am being misquoted. I want the record to be clear.

Senator BUTLER. I think his statement was, Mr. Witt, that if we could not find some legislation to fight this situation that we were in a bad way.

Mr. WITT. I was about to say that I agree with him that we are in a bad way, but we are in a bad way because we have passed legislation like this, and we meet here today because the Senate of the United States is concerned with passing additional legislation along these lines.

So, Mr. Arens and I agree that we are in a bad way.

Mr. ARENS. I not only take issue with the quotation, but I take issue as to who it is that is in a bad way. It is the Communist Party that is in a bad way.

Mr. WITT. I think our democracy is in a bad way and I think our Constitution and system of law is in a bad way.

What did this discussion between Mr. Countryman and you, Senator, and Mr. Arens, develop? It developed that you are concerned with passing legislation because you have come to the conclusion that the criminal law which we have, which we all understand, is inadequate to deal with the problems which you see. We have laws against espionage; we have laws against sabotage. We have the Foreign Agents Registration Act.

I agree, as I think all American lawyers would agree, that these are proper laws, and I agree as a lawyer and as an American that if crimes are being committed which are not covered by those laws, and we need additional legislation to get at those crimes, then by all means, let us pass such additional legislation.

Mr. ARENS. Would you concur in legislation making it a crime to be a Communist?

Mr. WITT. No, I would not-and that is what this legislation does, even though it doesn't put it in that way.

I say that under our system, our job is, and particularly when you enter the area of the Bill of Rights, as you do with this legislation, our job is to define a specific crime and provide sanctions and provide that our time-honored procedures are applicable.

Mr. ARENS. Why shouldn't we just make it a crime to be a Communist, and be done with it? That would be a specific crime.

Mr. WITT. Mr. Arens, you can't do that, as Mr. Countryman tried to explain to you, because the Constitution forbids it.

Mr. ARENS. Forbids making it a crime to be part of a conspiracy? Mr. WITT. You have changed it, Mr. Arens.

Mr. ARENS. Isn't the Communist Party a conspiracy?

Mr. WITT. What you have just done is illustrate what you have. May I answer, Mr. Arens, because this is critical?

Mr. Arens asked me first whether you can make it a crime to be a Communist. When I started to answer that question, before I am done, Mr. Arens changes the question and asks me whether we can make it a crime to be a member of a conspiracy.

Mr. ARENS. That just did not happen. I asked you whether or not you would favor legislation making it a crime to be a Communist, and you said "No."

The second question was: "Isn't the Communist Party a conspiracy?" And that is when you went off on this tirade. Mr. WITT. I have not been on a tirade.

Mr. ARENS. Do you think the Communist Party is a conspiracy? Mr. WITT. I haven't been on a tirade.

Mr. ARENS. Is the Communist Party a conspiracy?

Mr. WITT. Let me answer, if I may, without engaging in a tirade. If the Communist Party is a conspiracy, we have the Smith Act on the books already. If we think the Smith Act is inadequate to deal with that conspiracy, or any other conspiracy, then we should pass legislation to get at the conspiracy in the way that our system of law has gotten at conspiracies for the last 400 or 500 years.

Mr. ARENS. Can you tell us how you would get rid of the Communists?

Mr. WITT. Well, I would get rid of the Communists, or anybody else who is or may be a criminal, by passing criminal legislation, if we don't have legislation which is adequate, and prove that they have engaged in crimes.

Mr. ARENS. Crime is what is set forth in a statute, is it not?
Mr. WITT. Right-but it has to be a crime.

Mr. ARENS. If we said it is a crime to be a knowing, active member of the Communist Party, that would make it a crime?"

Mr. WITT. Right, but I don't think we could pass that kind of legislation. If I read the Dennis opinion, which passed on the con

stitutionality of the Smith Act, Mr. Arens, I don't think the way you have described it would make that a crime.

Senator BUTLER. His activities would have to pose a present danger, in your opinion?

Mr. WITT. No. 1, it would have to be a criminal conspiracy which the majority of the Supreme Court found existed, in the Dennis case, No. 1; and, No. 2, as Mr. Countryman reminded you, you would have to show criminal proof and with all the safeguards of our criminal law, that there was clear and present danger.

Mr. ARENS. How are you going to tell us to get rid of the Communists? You do not want to have this legislation, and you do not want to make it a crime to be a Communist. How are we going to get rid of the Communists?

Mr. WITT. Under our system, I don't think you can pass legislation to get rid of the Communists, period, in the same way that you can't pass legislation to get rid of Senator McCarthy or Senator Butler. Senator BUTLER. Do not legislate on that.

Mr. WITT. Of course, I am not getting personal.

Senator BUTLER. I take your remark to be facetious.
Mr. WITT. That is right.

As Mr. Countryman pointed out, that is the definition of the democratic system. Those are the safeguards contained in the Bill of Rights, and particularly in the first amendment, and it is our position, and particularly when we come to labor unions, that if Americans want to elect Communists to office in a labor union, if they want to elect the Senator from the State of Maryland, under our constitution, they have a right to do that.

Mr. ARENS. But the Communists do not tell them that they are Communists.

Mr. WITT. You fellows down here are busily engaged in making the point that the Communists don't follow the American system, but, when it is suggested to you that under the American system they have the right to run for office, they have the right to engage in business, they have the right to be officers of labor unions, you want to change the American system.

Mr. ARENS. No, we do not want to change the American system, Mr. Witt; now, as to the Communists who run for office in these labor organizations, and who are sometimes elected, do they identify themselves to the rank and file as Communists?

Mr. WITT. Well, I will say first, Mr. Arens, as you know, we have section 9 (h) of the Taft-Hartley Act on the books.

Mr. ARENS. Just answer that question. Can't you answer that: Whether they do or not, as a matter of practice?

Mr. WITT. Just a minute, Mr. Arens. I am answering it. I may not be giving the answer you want given.

Mr. ARENS. I want the answer as to whether they do or do not. Mr. WITT. I am giving the answer.

Mr. ARENS. Go ahead.

Mr. WITT. In the first place, as you know, under section 9 (h) of the Taft-Hartley Act, officers of labor unions have to file non-Communist affidavits.

Mr. ARENS. And you know, of course, that Communists do not mind lying?

Mr. WгTT. No. 2, whether they lie or whether they don't lie, what I have been trying to say, and I think, as Mr. Countryman tried to say, under our system it is up to Brother O'Brien here, and the other rank and file members of local 758 and local 1 and local 100 and local 200. They are intelligent people and American citizens, and they can take care of themselves without any help from you, Mr. Arens, or from the Senate of the United States, when it comes to that question, and I think they have been doing fairly well.

Mr. ARENS. Does Brother O'Brien, and do the members have access to the security memoranda of this Government, which show who are the Communists in various organizations?

Mr. WITT. If Brother O'Brien is interested in and wants access to it, he knows how to go about getting it, if he wishes, and it is available to him. If Brother O'Brien wants material on any question that concerns him, as to who the officers of his union are, what their history is, if Brother O'Brien asks me to answer questions about your history, your relation to this committee, I can answer those questions. So brother O'Brien is well able, I think, to take care of himself, and I don't think he needs your help, especially if your help goes along the lines of saying, "I forbid you to make up your own mind about your officers and your union policy."

Mr. ARENS. Do you think that the labor organizations, or the members of the labor organizations can, on the basis of what Communists might tell them, determine who are the Communists?

Mr. WITT. That is up to Brother O'Brien. If he is in difficulty, he knows what to do.

Mr. ARENS. Do you think this communism in labor organizations is just between the members and the leadership, or do you think there is an overriding public interest, where the public will say, "We will not have Communists and Communist agents in labor organizations, especially in those labor organizations which are working on defense material"?

Mr. WITT. Mr. Arens, if I had the power, and we didn't have the Constitution, I would like a system under which I would be able to say to members of unions under the present conditions that "You are forbidden to elect to office people like Senator McCarthy, or people who agree with Senator McCarthy" but I don't have the power.

Mr. ARENS. How about members of the Communist conspiracy! Would you preclude that?

Mr. WITT. Again, I tell you, Mr. Arens, if they have committed a crime, whether they are Communists or whether it is a conspiracy, or if they have engaged in espionage or sabotage or whether you put it the way General Electric puts it, in the advertisement today, I say if they are violating the law, you prosecute, according to our timehonored system.

Mr. ARENS. If they are just Communists?

Mr. WITT. We can't do it, whether they are Jews, Fascists, or Democrats or Republicans or Single-Taxers.

Senator BUTLER. Don't you think there is any difference between those classifications?

Mr. WITT. Certainly there is a difference between you and Senator Murray of Montana, Senator Butler. I say we cannot enact legislation forbidding you to express the kind of views you expressed on the Senate floor last year, with which I disagree.

Mr. ARENS. So, do you think a Communist is only a person with certain political views? Is that correct?

Mr. WITT. Whatever he is, he is either a man with political views, or he is a criminal or not a criminal, Mr. Arens. I say, as far as his political views are concerned, he has as much right as you and Senator Butler to believe what he believes. I say, as far as his crimes are concerned, he has as much right not to violate the criminal laws, as you have.

Just the other day a Congressman was convicted of violating a law. We are not going to pass general legislation to take care of that problem. There is a law on the statutes.

Mr. ARENS. But you do not want a law making it a crime to be a knowing, active, conscious member of the Communist Party?

Mr. WITT. You can't do that without subverting our system of government, Mr. Arens. That is what you are seeking to do in this legislation.

Incidentally, I do not agree with Mr. Countryman that the motives of the people pushing this legislation are sincere. I don't believe that. Mr. ARENS. You think that we are out to bust unions, and witchhunt, engaged in redbaiting hysteria, all that?

Mr. WITT. All that, and a lot more, and there is plenty of "more." Mr. ARENS. In other words, you question the motives of the committee?

Mr. WITT. Don't misunderstand me, Mr. Arens. I am not saying you or Senator Butler are dishonest. I say that you are not after

Mr. ARENS. Not after Communists. We are after labor unions? Mr. WITT. You are after Communists. I think you have made that record clear enough. But you are not after acts which endanger our system of government. I don't think Senator Butler was after that when he made this speech in the Senate last year.

Senator BUTLER. What in that speech leads you to that conclusion? Mr. WITT. Well, I have a quotation here, and I think it is accurate, Senator Butler. That is the speech in which you referred to so-called crypto-Socialists. Do you remember?

Senator BUTLER. Yes.

Mr. WITT. And you went on to say

Senator BUTLER. Wait a minute. You are getting into an entirely different field now. That is a speech not for legislation. That is a speech expressing my personal view on what is happening since the change of administration. It has nothing whatever to do with this legislation, nothing whatever to do with any legislation.

I do not criticise any man for being a crypto-Socialist, if he wants to be one. I am telling you what the right of a man being a cryptoSocialist is. Have I not that right?

Mr. WITT. Certainly. I have been trying to say you have that right, and I have the right to disagree with you.

Senator BUTLER. What connection has that with what we are talking about?

Mr. WITT. My point is that in this speech I think you made clear what the philosophy of your bill 1606 is.

Senator BUTLER. That had nothing whatever to do with that bill. I did not even have the bill in contemplation when I made the speech. Do you not agree that there are certain Government holdovers under