Mr. ROGERS. We sent it up here to the majority leader and the Vice President. I believe it is about to be introduced, if it has not been already.

Mr. BROWNELL. We consider it very important to our program to have that bill and the immunity bill, both.

Senator MCCARTHY. Here is another question. There is a problem which has concerned me a great deal. If I am right on it, of course, it means a great deal more work for the Justice Department in the way of prosecution.

PROBLEMS WITH WITNESSES INVOKING FIFTH AMENDMENT

I know that we cannot ask for an official preliminary opinion on this subject-maybe Mr. Rogers might be the man who might want to go into this. I have had experience over and over and over of a man coming before the committee-let us take a typical case, Harry Hyman came before the committee and I think every intelligence agency considers him an underground agent for the Communists. We had some 565 phone calls he made just from 1 telephone to some 8 different installations handling secret material.

Under oath he volunteered that he was not an espionage agent. Then when we would ask him whether or not he had committed certain specific acts, whether he had stolen secrets and turned them over to espionage agents, he would invoke the fifth amendment.

That is one typical case. We have had many more along the same line. The position I have taken is that he should be cited for contempt and that he has waived the fifth amendment privilege.

If that is true, then the Justice Department can designate the range of the active Communists, the more vicious of them, very, very greatly.

In the past it has been almost impossible to convict a man of espionage.

I don't think we have had an espionage conviction since the Nazis in 1942.

I wonder if you would care to express an opinion on that yourself or would you rather not?

Mr. BROWNELL. We would like to follow up on any individual cases that you have and study them under the present law, but we do think we are going to need an immunity statute to attack the problem with real effect.

Senator MCCARTHY. When you waive as to an area, when you waive the fifth amendment to say I am not an espionage agent, the question is when you waive as to that question, do you waive as to the entire area?

I have taken the position you do. I have hesitated asking our committee to send over the raft of cases we have almost identical along that line.

I wonder if you would care to go into that.

Mr. ROGERS. My recollection is that your committee referred that general problem to the Department by letter. We did have a study made on that. My recollection is that a few days ago I have forgotten exactly the date I wrote a letter to you saying we were not in a position to give any formal opinion to you, but that if the com

mittee cared to discuss the legal problems involved with a representative of the Department, we would do that.

I might say it does present a complicated legal question and there are some cases on it which bear directly on the whole subject.

Senator MCCARRAN. Would you please repeat your question, Senator?

POSSIBLE TEST CASE

Senator MCCARTHY. The question is this, Senator McCarran: Where a man comes in and says, "I am not engaged in espionage" and then you say, "Mr. Jones, yesterday at 10 o'clock in the morning did you steal secret material? Did you turn it over to an espionage agent?" He then says, "I refuse to answer. I invoke the fifth amendment," the position I have taken-I did not want to saddle the Justice Department with these cases unless they agree with me on it-the position I take is that once you waive the fifth amendment as to a question when you say, "I am not an espionage agent," you have waived not only to that one question, but insofar as the entire area of espionage is concerned and in the next question you cannot invoke the fifth amendment as to a specific act of espionage.

What I would like to do, if the Justice Department did not object to it, if they would care to go through with it, I would like to pick out the most flagrant case we have and ask my committee to recommend them for contempt and send it over to you and have a test case made on it if there would be no serious objection to that.

Mr. BROWNELL. Let me get this clear. In any way we can help in the disposition of these cases involving the fifth-amendment boys, so-called, we want to do it. You have a question of judgment there which you may want to have your committee consider, as to whether we should wait in these cases until Congress has acted upon the immunity bill which would further open up this, give new tools to the prosecutors.

You may want to consider that as to whether if we find these are borderline case, rather than take a chance on losing some of them we should wait a reasonable time for this new legislation.

Senator MCCARTHY. I am thinking of cases in which we would not grant immunity, because in which I am sure you would not recommend immunity.

COMMENTS ON SPECIFIC CASE

I have one other matter. I have been very much disturbed-and I understand that this has never been brought to the attention of the Attorney General-I have been very much disturbed by a case which has been pending in the Justice Department now for some time. Two young men have been working on it since before the present Attorney General took over.

There was a Mr. Murray, who used to work in your Department. He is no longer with you.

Mr. BROWNELL. I do not think he is.

Mr. ROGERS. You are speaking of Charles Murray?

Senator McCARTHY. Yes.

Mr. ROGERS. He is no longer there.

Senator MCCARTHY. I am speaking of a specific case. I would like very much to get a report on this case. It involves the prosecution for espionage.

You have had two men under the previous administration working on it. They recommended prosecution. If you will check into it you will find that Mr. Murray called the defendant in, called for his file, closeted himself in a room with this man for some time, and then sent back the file with the question in the minds of the men who had been working on it as to its completeness.

Since you have taken over the investigation has gone on.

As I say, I do not think it has come to your attention. There has been a recommendation that this case be submitted to the grand jury on grounds of violation of the Espionage Act.

It involves a newspaperman. Apparently, for that reason, there is considerable reluctance to submit it to the grand jury. I am sure you all know of the case I am talking about. I just wonder why that case has not been submitted to the grand jury, why after a sizable number of recommendations that case is still being pigeonholed some place.

Senator ELLENDER. Mr. Chairman, I do not want to interfere with this, but I thought we met here this morning to consider appropriations. Why go into all of this?

Senator MCCARTHY. I think we met here, Mr. Senator, to get any information that the Senators wanted to get.

Senator MCCARRAN. That is not true. We are not here to try espionage cases.

Senator DIRKSEN. I think the point is well taken. This proceeding should be germane to the business before us this morning.

Senator MCCARTHY. Mr. Chairman, may I respectfully differ. While I have said I think the Justice Department is doing a tremendously good job, I think that Mr. Brownell is bringing a lot of order out of chaos, when we are considering appropriations I think I am entitled to know why a certain case that has been recommended for prosecution as a clearcut violation of the Espionage Act has not been prosecuted.

Senator ELLENDER. You can find that out by letter to the Attorney General. There is no reason why these hearings should be burdened with testimony not directly germane to the matter of appropriations. We have much work to do before June 30. We should not make a big show by drossing in irrelevant matter.

Senator MCCARTHY. Is it a big show of checking into an espionage case? I am interested in it.

Senator ELLENDER. I do not think it ought to be done here before an Appropriations Committee.

Senator DIRKSEN. Gentlemen, let us proceed.

Senator MCCARTHY. Mr. Chairman, I would like to get an expression as to why this case has not been prosecuted. It has been recommended for prosecution under the old administration.

From what I understand, Mr. Brownell has not had this brought to his attention. This is one way of bringing it to his attention now. I want to know why we have not prosecuted it.

Mr. BROWNELL. This is the first time it has been brought to my attention. I will look into it immediately and discuss it with any interested person.

Senator MCCARTHY. May I ask the head of the Criminal Division, is it not true that prosecution has been recommended in this case not once, but several times? The case has been sent up as a complete case of violation of the Espionage Act.

Mr. BROWNELL. You can address that question to me, if you will, please, Senator. I will be very happy to discuss this with you, now that it has been brought to my attention. I will examine the files and anything I can do that will not interfere with the case itself, the orderly presentation of it, naturally I will be glad to disclose. Senator MCCARTHY. How soon could I get that information? have been waiting for this information now for 6 or 8 months. I have got no information at all.

Mr. BROWNELL. How about tomorrow?

Senator McCARTHY. Good.

Senator ELLENDER. Make it this afternoon.

Mr. BROWNELL. It depends on how long I am here.

Senator MCCARTHY. I am referring to the Pearson case.

ADEQUACY OF FUNDS FOR ENFORCEMENT OF IMMIGRATION ACT

Senator MCCARRAN. I would like to return now to the matter we were discussing, the appropriation for the enforcement of the Immigration Act.

Now, we can destroy the Immigration Act by not enforcing it. What I would like to know is the answer to the question I propounded to you, who directly controls the reduction in money for the enforcement of the Immigration Act? Is there any particular phase of your Department that has control of that?

Mr. BROWNELL. The recommendation is mine and the Budget Bureau's.

Senator MCCARRAN. Would you mind telling us what was your recommendation to the budget for the enforcement of the Immigration Act?

Mr. BROWNELL. It is the amount that has been allowed here by the House.

Senator MCCARRAN. That was your recommendation to the budget?

Mr. BROWNELL. No, sir.

Mr. ANDRETTA. $1,137,000 more-$40,137,000.

Senator MCCARRAN. What is it now?

Mr. ANDRETTA. $39 million.

Senator MCCARRAN. You recommended $40 million?

Mr. ANDRETTA. $40,137,000.

COMPARISON OF 1954 AND 1955 FUNDS

Senator DIRKSEN. Just to be sure we have the figures correct, in fiscal 1954, the current fiscal year, you had available for obligation $42,170,000; is that correct?

Mr. ANDRETTA. That is right.

Senator DIRKSEN. You had some transfers to general administration and legal activities, attorneys, marshals, and support of prisoners, and then you had an unobligated balance so that the total estimate was $42,250,000.

I

Now, that was for 1954. Now your 1955 estimate was $39 million net.

Senator MCCARRAN. Is that the amount submitted to the budget by the Department?

Mr. ANDRETTA. The amount of the budget request was $40,137,000. Senator MCCARRAN. Why did you reduce it from the year before? Can you give us any reason for that?

Mr. BROWNELL. The Budget Bureau took the positionSenator MCCARRAN. I am talking about the Department now. If I catch these figures right, you yourself reduced the amount.

SITUATION UNDER HOUSE ALLOWANCE

Mr. BROWNELL. That is correct. We believe we can operate effectively with the amount that has been set up here by the House. They have pointed out various ways in which we can eliminate a few positions.

I musy say that it is a rock bottom amount and while we think we can do the job, it is going to require a most careful scrutiny of every item.

Senator MCCARRAN. The fact is, gentlemen, that those who are opposing the bill say that it is not working, it is not effective. The reason for that is that it is not properly financed.

Now, if you keep on cutting you will destroy the bill.

Mr. BROWNELL. As I tell you, I think this is rock bottom figure for our operations during the coming year. The easiest thing to do, of course, is to recommend a whole lot more money. But I don't think that is the wisest thing to do. I believe that we can carry on satisfactorily.

You, yourself, have called attention to the fact that a rather efficient job has been done by the officials during the past year. We have this one outstanding problem of the border patrol, which we are working on now; the solution was held up pending the signing of the new international agreement with Mexico.

We do now have limited border recruiting, and that will help. Senator DIRKSEN. Mr. Brownell, in that connection, since your budget estimate is reduced, I suppose it will be reflected in the personnel; very likely, in recruiting field personnel.

Mr. BROWNELL. That is correct. However, there is no decrease in the border patrol.

SUBVERSIVES ENTERING FROM MEXICO

Senator DIRKSEN. When the so-called wetback extension bill was on the Senate floor they so freely bandied around the figures that there were hundreds of subversives coming across the Mexican border every day. I swear, I have been unable to find any authority, any documentation.

It may be like things that often appear in the press, but have you some comment to make as to whether or not that is within the realm of probability and what the answer would be; namely, more personnel or different procedures to meet that problem?

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