and regulations, establishing clearance procedures, standards, and rights of applicants, both as to maritime and waterfront employees.

54

Final authority to deny seamen access to maritime employment or waterfront employees the right to work on restricted facilities reposed then, as now, with the Commandant.55 In either instance he shall not issue identi fication credentials to seamen or applicants for port security cards

... unless he is satisfied that the character and habits of life ... are such as to authorize the belief that the presence of such individual on board [a vessel or within a waterfront facility] would not be inimical to the security of the United States." "

Applicants denied clearance were notified in writing.57 They might appeal to district hearing boards; thence, and finally, to the National Board of Appeals at Washington, D. C.58

Port security program administration.-Innovation of the port security program in 1950 posed extensive administrative problems for the Coast Guard. At the outset, programs were carried out in ten major ports by 4,772 officers and men.50 Since the Korean War the program has been progressively reduced. By 1955 port security operational units personnel totaled 110 officers, 18 warrant officers, and 872 enlisted men. The operations included security checks on incoming vessels by 24-hour continuous harbor-entrance patrol at ten major and four minor ports. In addition, restricted zones of operations were established as required for handling military and explosive cargoes, and involved the need of shoreside and waterside patrols, preloading inspection of ships and facilities, issuance of permits, and actual supervision by trained personnel in loading of explosives.60

Considerable public controversy has been waged over the Coast Guard screening operations. The Communist Party and Communist-controlled unions at the outset aimed heated attacks at the program. However, constructive criticism both from maritime groups and the public press led to amendments of the regulations from time to time.61

At the estimated cost of $1,275,000 the Coast Guard by July 1, 1956, had considered 434,894 maritime and 402,360 waterfront employees' applications for clearance credentials. Final denials had been issued before May 1, 1956, to 1,953 waterfront employees and to 1,835 seamen.62

Hearing board. The policy on hearing boards formulated in the labormanagement conference of July 24, 1950, has been carried out in practice by

433 C. F. R. chapter I, subchapter K, section 121.01, et seq. (15 F. R. 9327), and subchapter L, section 125.01, et seq. (15 F. R. 7524).

55 "Security of vessels and waterfront facilities," C. G.-239, published January 15, 1951, 33 C. F. R. 121.13 (c) for seamen; 33 C. F. R. 125.27 for waterfront employees.

56 Quoted as amended by Executive Order 10277, 16 F. R. 7541 Aug. 2, 1951, amending section 6.10-7 of Executive Order 10173; and Executive Order 10325, 17 F. R. 4624, amending section 6.10-7 of Executive Order 10173. See C. G.-239, published May 12, 1952, replacing C. G.-239, published Jan. 15, 1951. Words in brackets apply only to section 6.10-7.

57 C. G.-239, published May 12, 1952, 33 C. F. R. 121.15 (e) and 33 C. F. R. 125.27.

88 Id. 57, 33 C. F. R. 121.19 et seq., and 33 C. F.. 125.

50 Id., 4, p. 405.

00 C. G. 239, published May 12, 1952.

1 Id., 55.

63 Letter from Acting Secretary of the Treasury, David W. Kendall, dated Nov. 19, 1956.

the Coast Guard. Applicants denied credentials have been afforded a right to a hearing before a three-member district board, one chosen from the ranks of labor, one from management, and a chairman with legal background from the Coast Guard."

At the outset, the Coast Guard charged the chairmanship of local boards to members of its staff of thirteen civilian hearing examiners as an added and collateral duty to their main function, the hearing and deciding of marine casualty cases involving merchant marine personnel.“

Coast Guard personnel performed necessary clerical functions required by the boards. It is estimated that hearing examiners divided their time equally between security and marine casualty cases.

Prior to May 1, 1956, local hearing boards had sent recommendations to the Commandant in cases involving 2,329 maritime and 1,216 waterfront employees. Of these cases, 460 of the maritime and 71 of the waterfront employees were appealed to the Board of Appellate Review at Washington, D. C. All of these were heard.

As a consequence of several court decisions, the Coast Guard has issued revised regulations which are discussed in the section of this report entitled "The Present Program."

Present status of port security.-The port security program presently has diverged along two lines.

Initially, the Coast Guard, whether as an arm of the Navy in wartime or under the Secretary of the Treasury in peacetime, must protect American coasts and ports. The physical port security program calls for security preparedness in order to meet any condition that may arise; also, the Coast Guard must be alert to enforce additional measures as emergencies—or even war-may occur.

Secondly, the Coast Guard program for screening subversives from American ships and restricted waterfront areas must proceed under the new regulations. Meanwhile, complying with the decree of the ninth circuit court of appeals, the Coast Guard has commenced to issue clearance credentials to persons the Commandant had previously deemed to be security risks.

Thus, as the United States looks to the future of port security, the paramount question must be asked: Is the present security clearance program needed? As to this question, Acting Secretary of the Treasury David W. Kendall, writing in behalf of the Coast Guard, made the following observation:

Although it cannot be assumed that the Port Security Program has completely cleared the United States Merchant Marine of security risks, the Coast Guard believes that the existence of the program and the screening which has been done under it are an effective deterrent against infiltration of the United States shipping and waterfront activities by those bent upon sabotage or other subversive activities in this area."

68 C. G. 239, p. 58.

See 46 U. S. C. for handling of marine casualty cases by the Coast Guard.

Letter to the Commission on Government Security from Acting Secretary of the Treasury David W. Kendall, dated Nov. 19, 1956.

LEGAL BASIS

Introduction

This study of the current port security program which was begun after the start of the Korean war in 1950 will be limited to security clearance of seamen and harbor workers under the Magnuson Act, discussed later. It does not cover measures taken to protect the physical security of ports and shipping, supervision of handling explosives, guarding and supervision of restricted waterfront areas, the search of ships in American waters for weapons, examination of crewmen for technical skills, or such protective measures as the regulations of the United States Army Corps of Engineers relating to the navigation, anchorage, and unloading of vessels transporting explosives (33 C. F. R. 60–74). Neither does it include the Army and Navy programs for protection of piers and ports.

The port security program is administered by the Coast Guard and applies to all persons employed on United States registered merchant vessels of 100 tons gross or more, including barges and shipping on navigable inland waters. Vessels of less than 100 tons were exempted from credential requirements on the Great Lakes and "western rivers" by amendment to Coast Guard regulations on November 30, 1956. "Western Rivers" refers to the Mississippi and its tributaries, the Mobile, and the Red River, North (33 C. F. R. 125.53 and 95.03b).

Longshoremen must also be cleared before they may enter a port area designated by the Coast Guard as restricted. Although they may work in unrestricted port areas without clearance, a ship captain or crew member without clearance is completely barred from his vocation. The Commandant of the Coast Guard may restrict a port or lift restrictions at his discretion.66

Masters and crewmen of harbor craft such as water taxis, junk boats, garbage disposal boats, bum boats, supply boats, and ship-cleaning boats must have a port security card, Armed Forces identification, or one of the other credentials specified in 33 C. F. R. 125.09.

One distinctive feature of the port security program is that it applies to United States citizens whose private employers may not be under Govern

ment contract.

Statutory Basis for the Program

The basic statutory authority for the port security program is an amendment to the Act of June 15, 1917,67 as amended, popularly referred to as the "Magnuson Act." 68 This statute in pertinent part provides as follows:

66 For Coast Guard security regulations, see 33 C. F. R. 121 and 125.

67 40 Stat. 220, 50 U. S. C. A. 191 note.

664 Stat. 427, 50 U. S. C. A. 191.

Whenever the President finds that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or of disturbances or threatened disturbances of the international relations of the United States, the President is authorized to institute such measures and issue such rules and regulations—

(a) to govern the anchorage and movement of any foreign-flag vessels in the territorial waters of the United States, to inspect such vessels at any time, to place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States or to secure the observance of rights and obligations of the United States, may take for such purposes full possession and control of such vessels and remove therefrom the officers and crew thereof, and all other persons not especially authorized by him to go or remain on board thereof;

(b) to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject to the jurisdiction of the United States.

The most important extension of authority granted by the Magnuson Act is the power granted the President to institute the security program whenever he finds that the national security is endangered. In short, the port security program does not require for its initiation a Presidential proclamation declaring a national emergency, which had previously been the prerequisite to invoking the statute.

The Magnuson Act was approved August 9, 1950, and was implemented October 18, 1950, by Executive Order 10173.69 This Executive order was subsequently amended by Executive Orders 10277 70 and 10352.7" The Executive orders vested the administration of the port security program in the Coast Guard and authorized the Commandant of the Coast Guard to issue regulations supplementing and implementing the Executive order. These regulations appear in 33 C. F. R., subchapter K, parts 121-125, inclusive. The first regulations were issued on December 27, 1950, and the most recent general revisions were released April 25, 1956, and April 27, 1956, to be effective May 1, 1956.72

Penalties for violation of the act are fixed by 50 U. S. C. A. 192, which provides:

SEC. 192. Seizure and forfeiture of vessel; fine and imprisonment.-If any owner, agent, master, officer, or person in charge, or any member of the crew of any such vessel fails to comply with any regulation or rule issued or order given under the provisions of this chapter, or obstructs or interferes with the exercise of any power conferred by this chapter, the vessel, together with her tackle, apparel, furniture, and equipment, shall be subject to seizure and forfeiture to the United States in the same manner as merchandise is forfeited for violation of the customs revenue laws; and the person guilty of such failure, obstruction, or interference shall be punished by im

69 3 C. F. R. 1950 Supp. 141.

70 Dated August 1, 1951, 3 C. F. R. 1951 Supp. 460.

1 Dated May 19, 1952, 3 C. F. R. 1952 Supp. 77.

72 Later amendments: Nov. 30, 1956, 21 F. R. p. 9339; *Jan. 29, 1957, 22 F. R. p. 581; Sept. 22, 1956, 21 F. R. 7255; Dec. 4, 1956, 21 F. R. 9565; Jan. 21, 1957, 22 F. R. 502; Mar. 7, 1957, 22 F. R. 1430 (asterisks designate more important changes).

prisonment for not more than ten years and may, in the discretion of the court, be fined not more than $10,000.

(a) If any other person knowingly fails to comply with any regulation or rule issued or order given under the provisions of this chapter, or knowingly obstructs or interferes with the exercise of any power conferred by this chapter, he shall be punished by imprisonment for not more than ten years and may, at the discretion of the court, be fined not more than $10,000.73

The program does not generally apply to alien crewmen, who must have passports with appropriate United States visas (22 C. F. R. 41.60) but are not screened otherwise, nor to aircraft flight crews nor to airports.

Constitutional Basis for the Program

While the port security program itself raises several important constitutional questions, as will hereinafter appear, the power of Congress to enact the Magnuson Act itself has not been seriously questioned.

In the only reported case in which there has been specific comment on the constitutionality of the Magnuson Act, U. S. v. Gray," the court stated: There seems to be no reason to doubt that the screening operation initiated by the Magnuson Act is a legitimate war measure.

This position was inferentially affirmed by the same court in Parker v. Lester,75 when it stated:

We are in agreement with the determination of the district court that the Magnuson Act authorized the screening of seamen and the promulgation of regulations to accomplish that end. The district court correctly rejected the argument that the act did not authorize a screening program.

...

The "war power" of the Congress is found in article I, section 8, of the Constitution which, among other matters, empowers the Congress specifically to "provide for the common defense to declare war . . . and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." This power has also been considered an attribute of sovereignty and has been given a very broad interpretation."

The court noted in U. S. v. Gray (above) that the Magnuson Act was approved August 9, 1950, “shortly after the commencement of the military conflict in Korea." In Parker v. Lester (above), the court commented: “In 1950, during the Korean crisis, Congress enacted the so-called Magnuson Act."

Further, the Court in Parker v. Lester (above), said, "It may be taken for granted that in view of the emergencies referred to in the act and in the Executive order it was altogether appropriate to establish a system whereby persons who are security risks may be denied employment upon

73 40 Stat. 220, as amended by 54 Stat. 79 and by 64 Stat. 427.

74 207 F. 2d 237 (C. A. 9, 1953).

75 227 F. 2d 708 (C. A. 9, 1955).

78 Lichter v. U. S., 334 U. S. 742 (1948).