VETERANS OF ABRAHAM LINCOLN BRIG. v. SUBVERSIVE ACT. CON. BD.
| Decision Date | 17 December 1963 |
| Docket Number | No. 13174.,13174. |
| Citation | 117 US App. DC 404,331 F.2d 64 |
| Parties | VETERANS OF the ABRAHAM LINCOLN BRIGADE, Petitioner, v. SUBVERSIVE ACTIVITIES CONTROL BOARD, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Leonard B. Boudin, Washington, D. C., with whom Mr. David Rein, Washington, D. C., was on the brief, for petitioner.
Mr. Robert L. Keuch, Atty., Dept. of Justice, with whom Mr. Frank R. Hunter, Jr., Gen. Counsel, Subversive Activities Control Bd., Messrs. Kevin T. Maroney and George B. Searls and Mrs. Lee B. Anderson, Attys., Dept. of Justice, and Messrs. Charles F. Dirlam and Peter P. Hanagan, Attys., Subversive Activities Control Bd., were on the brief, for respondent.
Mr. Edward J. Ennis, New York City, filed a brief on behalf of American Civil Liberties Union, as amicus curiae.
Before BAZELON, Chief Judge, PRETTYMAN, Senior Circuit Judge, and DANAHER, Circuit Judge.
Certiorari Denied June 22, 1964. See 84 S.Ct. 1916.
This case is another in the series of Communist-front cases which had been pending before the court awaiting the outcome of the Communist Party case.1 The statute2 and its application were discussed in No. 12642, Labor Youth League v. Subversive Activities Control Board, decided April 25, 1963,3 and in No. 13260, National Council of American-Soviet Friendship v. Subversive Activities Control Board, decided May 16, 1963.4
The petitioner organization5 is composed of former members of a fighting force called the Abraham Lincoln Brigade, a unit of approximately three thousand men who went in groups from this country to Spain during the late 1930's to fight on the side of the Republican Army, sometimes called the Loyalists, in that country's Civil War. That war took on an international image as a struggle between Fascism and Communism. The outcome is a matter of history. The Subversive Activities Control Board found that the Lincoln Brigade was one of several international brigades, from various countries, organized by the Communist Party pursuant to directive from the Communist International in Moscow, to advance the Soviet cause in Spain. According to the Board, of the three thousand men who went from this country, eighteen hundred returned and less than six hundred survived at the time of the Board's report. The Board found that many, but not all, of the returning veterans were organized into the petitioner organization, under the direction and control of the Party, and that it has been, and was at the time of the report, a Communist-front organization, being dominated by the Communist Party and rendering substantial aid and support to it.
The organization itself, petitioner herein, admits in its brief that it was organized around the time of the return of the American participants in the Spanish Civil War. It claims that its functions included "the fostering and continuation of the friendships and fellowships formed in Spain and the rehabilitation and resettlement of the veterans who had returned from Spain." It further states:
Petitioner also claims that activity in recent years has been meager and spasmodic, consisting of social affairs, rehabilitation functions, "occasional statements in opposition to the Franco regime and some activity in support of its members who were indicted under the Smith Act".
The Board hearing was held in late 1954, and its report was issued December 21, 1955. After the Supreme Court had disposed of the Communist Party case, supra, oral argument was had in this court in October of last year (1962).
The ultimate conclusion of the Board which we are asked to set aside is that this organization is a Communist front and therefore must register with the Attorney General.
Section 3 of the statute defines a Communist-front organization as:
"Any organization in the United States * * * which (A) is substantially directed, dominated, or controlled by a Communist-action organization, and (B) is primarily operated for the purpose of giving aid and support to a Communist-action organization, a Communist foreign government, or the world Communist movement * * *." (Emphasis added.)
Thus the statutory definition has two parts, one relating to the direction or control of the subject organization and the other relating to its purposes. A Communist front is directed, dominated or controlled by a Communist-action organization (in this case the Communist Party), and its primary purpose is to aid and support the Party. This is the statutory definition, and so this was what the Attorney General undertook to establish before the Board.
In another section of the statute (Sec. 13(f)) the Congress directed the Board as to what it must — "shall" — take into consideration in determining whether an organization is a Communist front. It listed four such subjects, which have come to be called "criteria" in these cases. The intended relationship between the statutory definition and these criteria is not altogether clear. But it is clear that to declare an organization a Communist front the Board must find it to meet the statutory definition. And further it is clear that in the process of reaching that conclusion the Board must "take into consideration the extent to which" the organization has four specified features.
The four statutory criteria are:
The Board found on the record before it the presence of specific and detailed evidence as to each of these criteria and concluded, on the "overwhelming weight of the evidence", that the Brigade is "directed, dominated, and controlled by the Communist-Party of the United States — a Communist-action organization — and * * * is primarily operated for the purpose of giving aid and support to it and the world Communist movement."
Before entering upon a review of the Board's findings in this case, we interject here, as we did in the National Council of American-Soviet Friendship case, supra, a comment upon the importance of the time element in the statutory terms involved. This statute is cast in the present tense. It is not designed to produce historical treatises. It is designed to compel the public registration of organizations which, subsequent to the passage of the Act, operate to aid the aims of the Communist movement. This time element is not a technicality, or a happenstance, or a matter of semantics. It is a basic concept. The 1930's, '40's and '50's, i. e., the years before, during and after World War II, witnessed three different policy periods in the relationships between the Soviet Union and the United States. We were for a while neutral in the conflicts in Europe; then we were allies with the Communists against the Nazis; and then, in the presence of rapidly developing historical events, the Congress in 1950 declared the Communist movement to be a revolutionary movement designed to establish a Communist totalitarian dictatorship in all countries in the world. The Congress found and declared in that Act that the foreign Communist dictatorship establishes and utilizes in other countries action organizations which are sections of the Communist movement and are controlled and directed by the foreign dictatorship.6 And it further declared in that same Act that "those individuals who knowingly and willfully participate in the world Communist movement * * * in effect repudiate their allegiance to the United States".7 To expose to public knowledge these organizations and these individuals was the prime purpose of this statute.
Thus it is that in determining whether a certain organization should be required to register the Board must determine its nature in the 1950's or thereafter. Its prior history may of course be valuable evidential material, but the finding must be as of the time of hearing or reasonably close to it — at the earliest as of the time of the passage of the Act or subsequent thereto.
Again preliminarily, we note one more feature of the statute. We noted it in the National Council case, supra. We note it again. A Communist-front organization must be, as the Government points out in the cases we have thus far considered, directed, dominated and controlled "by the Communist Party," not by mere members of that entity. That this specification is material is demonstrated...
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