REPORT OF SUBCOMMITTEE IV OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES SEVENTY-NINTH CONGRESS SECOND SESSION PURSUANT TO H. RES. 430

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP58-00597A000100150082-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 22, 2016
• Document Release Date: April 8, 2010
• Sequence Number: 82
• Publication Date: January 1, 1946
• Content Type: REPORT

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[COMMITTEE PRINT] " 0
REPORT OF SUBCOMMITTEE IV
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
SEVENTY-NINTH CONGRESS
SECOND SESSION
PURSUANT TO
H. Res. 430
TO INVESTIGATE THE CIRCUMSTANCES WITH RE-
SPECT TO THE DISPOSITION OF THE CHARGES
OF ESPIONAGE AND THE POSSESSION OF
DOCUMENTS STOLEN FROM SECRET
GOVERNMENT FILES
UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1946
25 YEAR RE-REVIEW
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SUBCOMMITTEE NO. IV OF THE COMMITTEE ON THE. JUDICIARY
SAM HOBBS, Alabama, Chairman
MICHAEL A. FEIGHAN, Ohio CLARENCE E. HANCOCK, New York
FRANK L. CHELF, Kentucky RAYMOND S. SPRINGER, Indiana
FRANK FELLOWS, Maine
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REPORT OF SUBCOMMITTEE IV OF THE COMMITTEE ON THE
JUDICIARY IN PURSUANCE OF HOUSE RESOLUTION 430
To the Honorable SoUTH TRIMBLE as Clerk of the House of Repre-
sentatives of the 79th Congress:
Subcommittee No. IV of the Committee on the Judiciary, to which
was assigned the duty required by House Resolution 430, makes the
following report, the House not being in session:
I. The Committee on the Judiciary was authorized and directed
by said resolution-
to make a thorough investigation of all the circumstances with respect to the
disposition of the charges of espionage and the possession of documents stolen
from secret Government files which were made by the Federal Bureau of Investi-
gation "against Philip J. Jaffe, Kate L. Mitchell, John Stewart Service, Emmanuel
Sigurd Larsen, Andrew Roth, and Mark Gayn," and to report to the House (or
to the Clerk of the House, if the House is not in session) as soon as practicable
during the present Congress, the results of its investigation, together with such
recommendations as it deems necessary.
II. Prior to June 1945, information obtained by agencies of the
Government and articles appearing in magazines, newspapers, and
radio broadcasts had shown that Government files were not being as
carefuly guarded as they should have been. Investigations were
made by more than one agency of the Government for the purpose of
ascertaining how such "leaks" could have occurred and who was
responsible. The FBI and at least one other agency made a searching
investigation.
On June 6, 1945, the Federal Bureau of Investigation, after a pains-
taking and careful investigation covering several months, and acting
on warrants of arrest issued by a United States district judge, caused
the arrest of Philip Jacob Jaffe and Kate Louise Mitchell, editor and
coeditor, respectively, of Amerasia, a magazine published in New
York City; Andrew Roth, a lieutenant in the United States Naval
Reserve, stationed in Washington; Mark Julius Gayn, a magazine
writer of New York City; and Emmanuel Sigurd Larsen and John
`Stewart Service, who were employees of the State Department in
Washington, D. C.
At the time these arrests were made, searches and seizures, incident
to the arrests based on warrants, were conducted in the offices or
residences of the various of the arrested parties. Many "classified"
Government documents or copies were found in the possession of
some of them, the greater part of the documents pertaining to political
matters in Japan, China, India, and Asia.
To understand the nature of these documents and papers, an expla-
nation of security terms is essential. In most Government depart-
ments and agencies, papers and documents subject to security regu-
lations are classified in one of four categories, defined as follows:
"Top Secret."-Certain secret material and information, the security
aspect of which is paramount, and the unauthorized disclosure of
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which would cause exceptionally grave danger to the Nation, or,
embarrassment to the Government, shall be classified as "Top Secret."
"Secret."-Material and information, the unauthorized disclosure
of which would endanger national security, cause injury to the interest
or prestige of the Nation, or any governmental activity thereof, or
would be of advantage to a foreign nation, shall be classified as
"Secret."
"Confidential."-Material and information, the unauthorized dis-
closure of which, while not endangering the national security, would
be prejudicial to the interest or prestige of the Nation, or any govern-
mental activity or individual, and would cause administrative em-
barrassment or difficulty, or be of advantage to a foreign nation
shall be classified "Confidential." '
"Restricted."-Material and information (other than "Top Secret"
"Secret," or "Confidential") which should not be published or com-
municated to anyone, except for official purposes, shall be classified
as "Restricted."
Any paper or document falling within any of such categories is
properly identified as a "classified document." Security rules and
regulations for the handling of "classified matter" were in force in
the State Department, the Office of War Information (OWI), the
Office of Strategic Services (OSS), the Office of Naval Intelligence
(ONI), the Navy Department, Military Intelligence Division (MID),
the War Department and other departments and agencies of the
Government at the time the matters under investigation took place.
In considering the types of "classified documents" seized by the FBI
at the time the various parties were arrested, this report treats
"duplicate originals" of classified documents as including mimeo-
graph, hectograph, or ozalid copies and "copies" as including photo-
static and typewritten copies.
Among the documents seized in the possession of Jaffe at the Amer-
asia office in Now York City at the time of his arrest were 267 prepared
by the State Department, including 2 copies. of a top secret classifi-
cation, 20 originals or duplicate originals and 14 copies of a secret
classification, and 51 originals or duplicate originals and 14 copies of a
confidential classification; 50 prepared by OSS, including 2 originals
or duplicate originals and 1 copy of a secret classification and 11
originals or duplicate originals of a confidential classification; 19
prepared by ONI, including 1 original or duplicate original of a secret
classification and 3 originals or duplicate originals of a confidential
classification;. 34 prepared by MID, including 9 copies of a secret
classification, 1. original or duplicate original and 11 copies of a
confidential classification; 58 prepared by OWI, including 3 copies of a
secret classification, 1 original or duplicate original and 4 copies of a
confidential classification.
Jaffe was affiliated with the National League of American Writers,
American Council on Soviet. Relations, National Council of American-
Soviet Friendship, American League for Peace and Democracy, and
American Friends of the Chinese People.
When Larsen was arrested at his home in Washington, D. C., the
documents found in his possession and seized by the FBI included
93 from the files of, or prepared by, the State Department, including
14 originals or duplicate originals and 5 copies of a secret classifica-
tion; 13 originals or duplicate originals and 3 copies of a confidential
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classification; 144 from the files of, or prepared by, ONI, including 7
originals or duplicate originals of a secret classification and 24 originals
or duplicate originals and 3' copies of a confidential classification;
8 from the files of, or prepared by, MID, including 1 secret original or
duplicate original and I copy of a secret classification and 2 copies of a
confidential classification; 9 from the files of, or prepared by, the War
Department, including 2 copies of a secret classification and 3 originals
or duplicate originals of a confidential classification; 8 from the files of,
or prepared by, OSS, including 1 original or duplicate- original of a
confidential classification.
Larson, when arrested, was a research specialist in the Far East
Division of the Department of State. He had formerly served as a
civilian specialist with ONI in Washington from October 1935 to
August 1944, when he transferred to the State Department. His
.work in both places consisted of research and advisory work in Chinese
matters.
At the time of the arrest of Andrew Roth in Washington, D. C., no
secret or confidential documents or copies thereof were found in his
possession. The records made available to this committee indicate,
however, that Roth, who had been under surveillance, was the con-
tact man or go-between for Jaffe in Washington. He was observed
at various times transmitting envelopes to Jaffe or others connected
with these transactions. Four items which were seized by the FBI
in the possession of Jaffe, and which bore no official classification,
were subjected to laboratory analysis, with the resulting disclosure
that they were, copies of official reports on Indian politics written
in longhand by Roth, or typewritten on Roth's machine. Before his
arrest, he had been working on the "Japanese fleet desk" in ONI and
had been engaged in liaison work between the State Department and
ONI. Prior to his entering the service, he had worked on the staff
of Amerasia.
The arrests made by the FBI on June 6, 1945, were on charges of
conspiracy to violate the Espionage Act during wartime. Jaffe,
Mitchell, and Gayn, who were arrested in New York, were arraigned
there and released on $10,000 bonds posted by each. Roth, Service,
and Larsen were arraigned in the District of Columbia in the early
hours of June 7, 1945, and their bonds set at $10,000 each.
The cases against the parties were again presented to a second grand
jury from July 30, to August 8, 194k, during which time Mitchell,
Gayn, and Service voluntarily waived immunity and appeared before
that body. No indictments were returned against them. On August
10, 1945, true bills were returned against Jaffc, Larsen, and Roth,
the indictments charging a violation of section 88 of title 18 of the
United States Code by conspiring to violate sections 100, 101, 234
and 235 of title 18, United States Code, which are as follows:
Section 100 of title 18-Embezzling public moneys or other property
Whoever shall embezzle, steal, or purloin any money, property, record, voucher,
or valuable thing whatever, of the moneys, goods, chattels, records, or property
of the United States, shall. be fined not more than $5,000, or imprisoned not more
than five years, or both.
Section 101 of title 18-Receiving stolen public property
Whoever shall receive, conceal, or aid in concealing, or shall have or retain in
his possession with intent to convert to his own use or gain, any money, property,
record, voucher, or valuable thing whatever, of the moneys, goods, chattels,
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records, or property of the United States, which has theretofore been embezzled,
stolen, or purloined by any other person, knowing the same to have been so
embezzled, stolen, or purloined, shall be fined not more than $5,000, or imprisoned
not more than five years, or both; and such person may be tried either before or
after the conviction of the principal offender.
Section 284 of title 18-Destroying public records
Whoever shall willfully and unlawfully conceal, remove, mutilate, obliterate,
or destroy, or attempt to conceal, remove, mutilate, obliterate, or destroy, or,
with intent to conceal, remove, mutilate, obliterate, destroy, or steal, shall take
and carry away any record, proceeding, map, book, paper, document, or other
thing, filed or deposited with any clerk or officer of any court of the United States,
or in any public office, or with any judicial or public officer of the United States,
shall be fined not more than $2,000, or imprisoned not more than three years, or
both.
Section 235 of title 18-Destroying records by officer in charge
Whoever, having the custody of any record, proceeding, map, book, document,
paper, or other thing specified in section 234 of this title, shall willfully and unlaw-
fully conceal, remove, mutilate, obliterate, falsify, or destroy any such record,
proceeding, map, book, document, paper, or thing, shall be fined not more than
$2,000, or imprisoned not more than three years, or both; and shall moreover
forfeit his office and be forever afterward disqualified from holding any office
under the Government of the United States.
Jaffe, Larsen, and Roth were arraigned on August 30, 1945, before
Judge Henry Schweinhaut in the Federal District Court for Washing-
ton, D. C., and entered pleas of not guilty. At that time the bond
for each was reduced from $10,000 to $2,500. Roth, through his
attorney, filed a demurrer and request for a bill of particulars on
September 27, 1945, and on September 28, 1945, Larsen, through his
attorney, filed a motion to quash the indictment, a demurrer, and a
motion to suppress the evidence. On October 2, 1945, Jaffe with-
drew his plea of "not guilty" and entered a plea of guilty to the
indictment. A fine of $5,000 was recommended by United States
Attorney R. M. Hitchcock of the Department of Justice. The court
imposed a fine of $2,500, which was the figure suggested and requested
by Jaffe's attorney. On November 2, 1945, Larsen withdrew his for-
mer pleas and motions and entered a plea of "nolo contendere." A
fine of $500 was suggested by the attorney for the Department of
Justice and was imposed by the court. In each of these two cases
it is to be noted that the Justice Department attorney recommended
fines after stating in open court that the actions of the two defend-
_..e -- - ants "did not involve any element of disloyalty." On January 18,
1946, a hearing was held before Judge James M. Proctor of the Fed-
eral District Court for the District of Columbia on Roth's motion for
a bill of particulars. The Criminal Division of the Department of
Justice was given 30 days in which to file this bill of particulars.
Thereafter the Department, on February 13, 1946, entered a "nolle
prosequi" in the case of Roth.
III. On. June 22, 1945, a grand jury of the United. States District
Court for the District of Columbia began its inquisition. This pro-
ceeded for 8 days. During that time, or shortly thereafter, Mitchell,
Gayn, and Service, waiving immunity, requested to be permitted to
appear before a grand jury and testify in their own behalf.
? While in many State courts no such practice is permitted, it seems-
quite common in Federal courts and, particularly, in the District of
Columbia. -
When defendants are allowed to appear and testify before grand
juries they subject themselves to preliminary questioning by the prose-
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cuting attorneys, and also to cross-examination, which is recorded.
This frequently results in enabling the prosecution to make out a
stronger case against defendants than could be established otherwise.
These written requests by Mitchell, Gayn, and Service were granted.
They each appeared and testified before,the second grand jury, the
first having been discharged from further. consideration of the case.
All three of these defendants were questioned at length, and Mitchell
and Gayn were cross-examined thoroughly.
The votes of at least 12 grand jurors in favor of indictment is
required by law in order that such action may be taken. After the
second grand jury had hoard all of the oral evidence both for and
against all 6 of the defendants and considered all of the documentary
evidence, fewer than half of the required 12 voted for the indictment
of any 1 of the 3, Mitchell, Gayn, and Service, and. no more than
14 of the 20 grand jurors -constituting the grand jury voted for the
indictment of any 1 of the other 3. Of course, this meant that in-
dictments were presented only against Jaffe, Larsen, and Roth.
IV. Not only was the attitude of the grand jurors indicative of what
might be expected of petit jurors, but it should be borne in. mind in
considering the question of the wisdom, vol non, of the disposition of
the charges, that the remaining defendants would be represented by
competent counsel on their trial, and would have their own witnesses
and their own testimony there, whereas before the grand jury only
prosecution witnesses and prosecution attorneys had been heard.
V. The prosecution's case was further weakened by these facts:
1. In our governmental course of dealing, "classification" of docu-
ments was not standardized in practice. Frequently, if not usually,
the writer or forwarder in a foreign country made the classification
(grand jury minutes, vol. 1, pp. 51, 79). In part this was governed
by his desire to have the material transmitted promptly and, since
the higher the classification the greater the speed of transmission,
unwarranted up-grading for speed was common.
2. Few, if any, of the identifiable classified documents involved in
this case had any real importance in our national defense or our war
effort.
3. Many had already been given wide publicity.
4. Many of the identifiable documents might have had their evi-
dential value destroyed by reason of the possibility of the court's
sustaining the defendants' motions attacking the warrants of arrest.
VI. Judicial decisions require scrupulous care to see that searches
and seizures are reasonable. While search and seizure on arrest may
be made without a search warrant, yet this is not so unless the warrant
of arrest issued after "probable cause" of guilt had been established
by legal evidence.
In United States v. McCunn (40 F. (2d) 295) there was a warrant
for arrest upon a complaint which merely set forth the sources of
information and the grounds for belief. The court said:
The search and seizure were made without a search warrant, and therefore
can be sustained, if at all, only if made as an incident of a lawful arrest, or if
made with the consent of the defendants * * *
To enable a committing magistrate to determine whether there is probable
cause for the issuance of a warrant, the sources of the information and the grounds
of the belief must be stated with sufficient definiteness to enable him to determine
whether a warrant should issue.
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The warrant * * * was issued without the establishment of probable
cause, and the arrest and the search and seizure incidental thereto must be held
to be illegal.
(See: United States v. McCunn et al. (D. C., N. Y., 40 F. (2d) 295), and authori-
ties therein cited.)
In the event the complaint was not based on complainant's per-
sonal knowledge and not supported by other proof, no jurisdiction
would be conferred upon a commissioner to issue a warrant for arrest.
This is substantiated by the language of United States v. Gokey (32
F. (2d) 793), as follows:
Consideration is first given to that part of the second ground or claim of illegal
detention; i. e., that the complaint is insufficient at law to confer jurisdiction.
The commission of a crime must be shown by facts positively stated before a
commissioner has jurisdiction to issue a warrant of arrest: This protection is
guaranteed to every person by the Constitution (fourth amendment) through the
provision that "no warrant shall issue, but upon probable cause, supported by
oath or affirmation." This safeguard of liberty has been jealously protected by
all courts. And well it should be, for it would be intolerable to allow a warrant
of arrest to be issued upon the opinion, conclusion, or suspicion of some person,
unsupported by facts. The "oath or affirmation" required is of facts, not opinions
or conclusions. The complaint -must be supported by proof, so that the magis-
trate may exercise his judgment or discretion in determining that an offense has
been committed, and that there is probable cause to believe the accused guilty
of the commission thereof. If the complaint is made on information and belief,
it must give the grounds of belief and sources of information. A complaint not
based upon the complainant's personal knowledge, and unsupported by other proof,
confers no jurisdiction upon the commissioner to issue a warrant (U. S. v. Baumert
(D. C.) 179 F. 735; U. S. v. Welts (D. C.) 225 F. 320; U. S. v. Ruroede (D. C.)
220 F. 210; In re Blum, 9 Misc. Rep. 571, 30 N. Y. S. 896).
In this case there is net any claim that the immigration officer, who made the
complaint, had any personal knowledge of the commission of the crime charged,
or any other crime committed by King on September 11. This lack of personal
knowledge was admitted upon the hearing. The complaint, therefore, becomes
nothing more than a statement of the commission of a crime, based upon hearsay.
Although made upon the positive oath of the complainant, it is in reality a com-
plaint based upon information and belief, and nothing more. The positive
averments of an official as to facts not within his personal knowledge maybe
enough to protect a commissioner, but they should not be sufficient to confer
jurisdiction, in violation of the Constitution, and the numerous decisions of the
courts. The complaint must, therefore, be held insufficient.
(See: United States v. Gokey (D. C. N. Y., 32 F. (2d) 793), and authorities
therein cited.)
If the warrant for arrest was not issued on "probable cause" sub-
stantiated by facts, the evidence disclosed as a result of the search
and seizure incident to the arrest based on such a warrant would be
subject to suppression. and, therefore, not usable as evidence of the
crime for which the arrest was made. In United States v. Lefkowitz
(285 U. S. 452) the Supreme Court stated:
The only question presented is whether the searches of the desks, cabinet and
baskets and the seizures of the things taken from them were reasonable as an
incident of the arrests. And that must be decided on the basis of valid arrests
under the warrant. Save as given by that warrant and as lawfully incident to
its execution, the officers had no authority over respondents or anything in the
room. The disclosed circumstances clearly show that the prohibition agents
assumed the right contemporaneously with the arrest to search out and scrutinize
everything in the room in order to ascertain whether the books, papers or other
things contained or constituted evidence of respondents' guilt of crime, whether
that specified in the warrant or some other offense against the act. Their con-
duct was unrestrained. The lists printed in the margin show how numerous
and varied were the things found and taken.
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The fourth amendment, forbids every search that is unreasonable and is con-
strued liberally to safeguard the right of privacy (Byars v. United States, 273
U. S. 28, 32). Its protection extends to offenders as well as to the law abiding
(Weeks v. United States, 232 U. S. 383; Agnello v. United States, 269 U. S. 20, 32).
The authority of officers to search one's house or place of business contemporane-
ously with his lawful arrest therein upon a valid warrant of arrest certainly is not
greater than that conferred by a search warrant issued upon adequate proof and
sufficiently describing the premises and the things sought to be obtained. Indeed,
the informed and deliberate determinations of magistrates empowered to issue
warrants as to what searches and seizures are permissible under the Constitution
are to be preferred over the hurried action of officers and others who may happen
to make arrests. Security against unlawful searches is more likely to be attained
by resort to search warrants than by reliance upon the caution and sagacity of
petty officers while acting under the excitement that attends the capture of persons
accused of crime (United States v. Kirschenbtatt, 16 F. (2d) 202, 203; Go-Bart
Co. v. United Stases, supra, 358).
Respondents' papers were wanted by the officers solely for use as evidence of
crime of which respondents were accused or suspected. They could not lanfully
be searched for and taken even under a search warrant issued upon ample evidence
and precisely describing such things and disclosing exactly where they were
(Gouled v. United States, 255 U. S. 298, 310). * * *
This case does not differ materially from the Go-Bart case and is ruled by it.
An arrest may not be used as a pretext to search for evidence. The searches and
seizures here challenged must be held violative of respondents' rights under the
fourth and fifth amendments.
(See: United States v. Lefkowitz et. al. (U. S. Sup. Ct.) 285 U. S. 452; United
States v. Haberkorn (CCA) 149 F. (2d) 720; United States v. Hotchkiss (D. C. Md.)
60 F. Stipp. 405 and authorities therein cited.)
VII. "Classification" is a question for determination by the jury.
The question as to whether information "relates to the national
defense" within the purview of the Espionage Act is a question of
fact for the jury under appropriate instructions from the court. The
classifictaion given a document by an agency of the Government is
not controlling.
The function of the court is to instruct as to the kind of information which is
violative of the statute, and of the jury to decide whether the information secured
is of the defined kind. It is not the function of the court, where reasonable men
may differ, to determine whether the acts do or do not come within the ambit of
the statute. The question of the connection of the information with national
defense is a question of fact to be determined by the jury as negligence upon
undisputed facts is determined. * * *
(See: Gorin v. United States (U. S. Sup. Ct. 312 U. S. 19), and authorities
therein cited.)
VIII. Most of the "classified" items in question were copies.
There were few, if any, original documents. Most, if not all, of the
documents listed as originals or duplicate originals in the recapitula-
tion heretofore set out were hectograph, ozalid, or mimeograph copies.
The bulk of the records were not of recent date. Some were dated
as early as 1936, were innocuous in content, and were and could have
been generally known to anyone interested in the information they
contained. Most of the items seized at Jaffe's office were typewritten
copies. Some of such copies were proved to have been typed in one
of the Government departments. It may be fairly inferred that the
originals of such copies were never removed but that copies were made
at the department or agency where the original reposed.
There was no proof that any of the records or copies were "stolen."
Virtually all of the late 1944 and the 1945 items seized from Jaffe,
which on their face indicated them to be Government property; were
.removed from the State Department. Many originated elsewhere,
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but had been routed to State. Larsen had authority enabling him
to take such items from the State Department, although under the
regulations he could not retain them or disclose their contents.
Although the various parties were frequently observed in the company
of one- another by trained investigators, no one of them was ever seen
to deliver any Government items to another. In the Government
agencies to which the various reports or documents were. routed there
was no real control or record of the whereabouts of copies.
IX. Of course, the law requires that every person charged with
crime shall be presumed innocent until the evidence proves guilt
beyond a reasonable doubt to the satisfaction of the jury. Jaffe had
many of the "items" in his possession at the time. of his arrest, and
it could be proved that Larsen, at one time., handled it few of them.
This at best would only establish a prima facie case against these
two. No records or documents were found in Roth's possession. No
Government items were ever seen to be passed from one subject to
another, although all of them were under almost constant surveillance
for some time. Most of the items dealt with personalities or political
aspects in countries in the Far East. No criminal intent on the part
of the subject parties was ever established, and there was no evidence
that any of the documents or copies was ever put to any use harmful
to the war effort. A study of the evidence made it clear that neither
espionage nor spying could be proved., The cases were ably presented
before the grand jury, but the net result of months of hard work was
indictment of only 3 of the 6 accused, and in no case was the Govern-
ment able to muster more than 14 of the 20 votes of the grand jurors.
No indictment was found charging espionage.
If it be thought that any one or more of the six who were originally
accused should be further prosecuted on the charge of espionage, it
may still be done.
The nolle prosequi ordered by the district judge on motion of the
prosecuting attorneys constitutes no bar to the reinstatement of the
prosecution against Roth.
X. In response to the question of "the disposition of the charges of
espionage and the possession of documents stolen from secret Gov-
ernment files," as directed by House Resolution 430, the subcommittee
charged with that duty must point out that neither grand jury that
studied these cases under oath found that the evidence substantiated
the charge of espionage. Neither grand jury charged the six accused,
nor any one of them, with the crime of espionage.
Even if it were within the bounds of propriety-which it is not-for
a congressional committee to question the conduct or conclusions of
officials of another coordinate branch of our Government in the absence
of justifying evidence, no reason to do so is revealed by the thorough
investigation of all the circumstances with respect to this matter
which has been made. After a most painstaking study, we certify
that there is no evidence, nor hint, justifying adverse criticism of
either grand jury, any prosecuting attorney, FBI, judicial, or other
official.
Not only so, but also, the law requires, in the absence of proof to
the contrary, that it be presumed that every officer has done his duty.
Here, there is no evidence contra, however slight.
XI. For reasons already stated, we report our judgment that the
same is true with respect to the disposition of the charge of possessing
stolen documents.
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XII. The evidence does disclose, however, an astonishing lack of
"security" in some departments or agencies of our Government.
There has been entirely too little safeguarding of documents. The
recording, duplicating, and "control" have been deplorably negligent.
It was impossible to determine, in many instances, from just what
agency a particular item might have been taken. Lack of official
control over copies invited unauthorized removal and control. Some
agencies could not ascertain whether or not certain of their records
were missing.
There has been certainly too little care taken in some departments
in personnel procurement, particularly of those to be placed in posi-
tions of trust. At least one man was commissioned in our Navy
without the approval and over the protest of the branch affected.
Too much trust has been reposed in employees, and without ade-
quate supervision.
In one department "gold badges" were generally issued upon the
recommendation merely of the division chief, with no special investi-
gation save the routine check conducted by the personnel office before
original employment. A "gold badge" wearer could go in or out of
any State Department building virtually when he pleased, and go out
with documents without inspection or question by the guards. De-
fendant Larsen was a "gold badge" employee of the State Department.
XIII. Recommendations.
House Resolution 430 limited the investigation thereunder to the
circumstances with respect to the disposition of the charges of es-
pionage and the possession of stolen documents. As to this, the sub-
committee has made the thorough investigation and report the reso-
lution directs, but deems no recommendation necessary.
However, our profound interest in the welfare of our Government
impels us to go beyond our limited authority and make the following
recommendations:
1. That the head of every department and agency of our Govern-
ment see to it that more-much more--care be exercised in personnel
procurement. That all those considered for Government positions in
every echelon be investigated so thoroughly as to insure that no one
be employed unless absolute certainty has been attained that nothing
in background, present attitude, or affiliations raises any reasonable
doubt of loyalty and patriotic devotion to the United States of America.
2. That the watchword and motivating principle of Government
employment must be: None but the best. For the fewer, the better,
unless above question.
3. That each and every present employee who fails to measure up
to the highest standard should be discharged. No house divided
against itself can stand.
4. That "classification" of documents should be better standardized.
Present "classifications" should be revised and made more accurate.
5. That safeguards, and systems of recording and "control" should
be perfected and employed.
Hon. Clarence Hancock, distinguished Member of Subcommittee
No. 4 of the Committee on Judiciary, is prevented by his illness from
participating in this report. He is physically unable to concur therein
or dissent. We regret exceedingly that the subcommittee has been
thus providentially deprived of his aid in formulating our report,
although he sat with us in the hearings and studied the evidence with
his usual diligence.
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MINORITY VIEWS OF FRANK FELLOWS AND RAY-
MOND S. SPRINGER, MEMBERS OF THE COM-
MITTEE
During the war, documents of the State and other departments of
Government, some marked "Top Secret," were taken from the files
by certain individuals. Several hundred of these documents were
found in New York City in the office of the publisher of a magazine
called Amerasia. The publisher's name was Jaffe. The author of
the resolution under which this committee assumed jurisdiction stated
upon the floor of the House:
The President authorized these arrests to be made and the arrests were for-
bidden by the State Department. _
Following a debate, Resolution 430 passed the House. It provides
for a thorough investigation of-
all the circumstances with respect to the disposition of the charges of espionage
and the possession of documents stolen from secret Government files.
Three men, viz, Jaffe, Larsen, and Roth, were indicted for con-
spiracy to violate sections 100, 101, 234, and 235 of title 18 of the
United States Code.
Section 101 is as follows:
Section 101 of title 18-Receiving stolen public property
Whoever shall receive, conceal, or aid in concealing, or shall have or retain in
his possession with intent to convert to his own use or gain, any money, property,
record, voucher, or valuable thing whatever, of the moneys, goods, chattels, rec-
ords, or property of the United States, which has theretofore been embezzled,
stolen, or purloined by any other person, knowing the same to have been so em-
bezzled, stolen, or purloined, shall be fined not more than $5,000, or imprisoned
not more than five years, or both; and such person may be tried either before or
after the conviction of the principal offender.
In the case of Mr. Roth, the Government entered a nolle prosequi.
In the case against Larsen, as stated by the majority report, a fine
of $500 was suggested by the attorneys for the Department of Justice,
and was imposed by the court after a plea of nollo contendere was
offered by the defendant and accepted by the court.
Jaffe entered a plea of guilty to the indictment, and a fine of $5,000
was recommended by the United States Attorney R. M. Hitchcock,
as stated in the majority report. The court imposed a fine of $2,500,
which was the figure suggested and requested by Jaffe's own attorney.
I can agree with the committee report in part. I disagree with some
of the conclusions drawn.
When Larsen was arrested at his home in Washington, D. C., the
documents found in his possession and seized. included:
93 from the files of, or prepared by, the State Department, including 14 originals
or duplicate originals and 5 copies of a secret classification; 13 originals or dupli-
cate originals and 3 copies of a confidential classification; 144 from the files of, or
prepared by, ONI, including 7 originals or duplicate originals of a secret classifica-
tion and 24 originals or duplicate originals and 3 copies of a confidential classifica-
tion;-8 from the files of, or prepared by, MID, including 1 secret original or dupli-
cate original and 1 copy of a secret classification and 2 copies of a confidential
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classification.; 9 from the files of, or prepared by, the War Department, including
2 copies of a secret classification and 3 originals or duplicate originals of a con-
fidential classification; 8 from the files of, or prepared by, OSS, including 1 original
or duplicate original of a confidential classification.
Larsen, when arrested, was a research specialist in the Far East
Division of the Department of State. The Department of State had
no system worthy of the name for protecting the files of that Depart-
ment. A man. with a gold. badge could, without question, carry away
any document lie wished. All he needed was a gold badge, and this
could be borrowed.
I can readily understand the committee's point that there would be
difficulty in. convicting Roth, who is referred to in the report as a
naval officer advanced in rating over the objection of men in the
Department.
I can readily understand some of the difficulties that might be
encountered in prosecuting Larsen, as an individual. The charge,
however, was conspiracy to violate certain sections of the United
States Code.
The committee report states:
Jaffe had many of the "items" in his possession at the time of his arrest, and it
could be proved that Laren, at one time, handled a few of them. This at best
would only establish a prima facie case against these two.
A prima facie case is a good place to start.
The majority report cites cases where the court scrupulously guarded
rights of it man wheaa arrested or while being placed under arrest or
under a search and seizure respecting his own-property, but neglects
to point out that the court from the beginning has drawn a clear
distinction between stolen or contraband property and property
belonging to the defendant himself. These papers were not the
property of the defendants; these papers were not from the defendants'
personal files; these, papers belonged to the Government of the
United States.
In the case of Mr. Jaffe, who seemed to be the principal, I am unable
to see why the Government accepted a $2,500 fine. He thought the
Government had a case or he would not have paid even $500. The
Government thought it had a case or it would not have presented it
to the grand jury. He had filed no motion to suppress. At the time
of his arrest the following papers were seized in the Amerasia office
in New York City:
267 prepared by the State Department, including 2 copies of a top secret classifica-
tion, 20 originals or duplicate originals and 14 copies of a secret classification,
and 51 originals or duplicate originals and 14 copies of a confidential classifica-
tion; 50 prepared by OSS, including 2 originals or duplicate originals and 1
copy of a Secret classification and 11 originals or duplicate originals of a con-
fidential classification; I9 prepared by ONI, including 1 original or duplicate
original of a secret classification and 3 originals or duplicate originals of a
confidential classification; 34 prepared by MID, including 9 copies of a secret
classification, 1 original or duplicate original and 11 copies of a confidential
classification; 5S prepared by OWl, including 3 copies of a secret classification,
1 original or duplicate original and 4 copies of a confidential classification.
Jaffe was affiliated with the National League of American Writers, American
Council on Soviet Relations, National Council of American-Soviet Friendship,
American League for Peace and Democracy, and American Friends of the
Chinese People.
He was photographing and publishing some of them, thereby,
through. the medium of his magazine, at least, selling the contents of
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some of the classified documents of this Government at the time
when the United States was fighting for its very existence. These
papers were seized from Jaffe at the time of his arrest in his business
establishment, where he was publishing a magazine. They were not
his own documents. They were not seized as the result of searching
his files. They were found in suitcases and pasteboard containers
on the tables and desks of his business offices. I do not see how any-
body could claim these papers were illegally seized. The circum-
stances clearly indicate that Roth, who had previously worked for
him in this very office, was delivering papers to him. It appears
that certain documents found in the possession of Jaffe at the time
of his arrest were copies of official documents of various departments
written in longhand. by Roth .or typewritten on Roth's machine. It
also appears, as indicated by the majority report, and herein, supra,
that Larsen at one time handled a few of the documents found in the
possession of Jaffe at the time of his arrest.
Jaffe either took these documents himself, or his confederates took
them for him. And two of the documents found were "Top Secret,"
so marked and so designated. I can see no point in arguing that these
papers may not have been of much value. The thieves thought they
were. The Government agencies so adjudged -them. And the facts
show that the defendants could have had their choice of any docu-
ments they wished; they were given no protection so far as the State
Department was concerned.
The Justice Department attorney recommended fines, after stating
in open court that the actions of the two defendants "did not involve
any element of disloyalty." Disloyalty to whom? If a man or his
confederate walks into the State Department and carries away top
secrets of that Department during a great, war, photographs them,
publishes their contents, and sells them through the medium of his
magazine, few people would see anything in such conduct that would
come under the title of "loyalty" to the United States.
The report undertakes to argue the weakness of the Government's
case.
First: It suggests that the classification was not standardized prac-
tice. The statute says nothing about this.
Second: That few, if any, of the identifiable classified documents
had any real importance in our national defense. Who is to be the
judge of this? May I call attention to the fact that one of the men
who testified before our committee said that possession of one of these
documents in particular was a threat against the security of this
country.
Third: That many of these documents had already been,. given pub-
licity. I have no recollection that more than one had been given
publicity, and the publication of this one so aroused the State Depart,
ment officials that they started at once to investigate the "leaks."
Fourth: The majority report states that many of the identifiable
documents might have had their evidential value destroyed by reason
of the possibility of the court's sustaining the defendant's motion
attacking the warrants of arrest. This statement does not impress
me, because (first) Jaffe did not file .any motion to suppress, and
(second) any one document possessed in violation of the statute could
be sufficient.
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.1 can agree with the committee that, under the decisions, scrupulous,
care has to be used that searches and seizures of a man's own papers.
and effects are reasonable, but it has not been pointed out to me what
was unreasonable in the seizure of these papers. In any event, Mr.
Jaffe and his counsel did not see fit to take any steps to suppress this
evidence and the Department of Justice saw fit to present its case to
the grand jury-presumably on this evidence.
The cases state that-
Search without a warrant is permitted, for evidence connected with the crime
and found on the person arrested, or open to view in his immediate vicinity.
Our Supreme Court stated years ago that search for and seizure of
stolen or forfeited goods, or goods liable to duties and concealed to
avoid the payment thereof, are totally different things from a search
for and seizure of a man's private tools and papers for the purpose of
obtaining information therein contained, or of using them as evidence
against him (Boyd v. U. S. 116 U. S. 616; 29 L. Ed. 746, 6 Sup. Ct. 524).
I can agree with the committee that there are no. recommendations
to be made to the Department of Justice. These cases where fines
were imposed are closed.
I heartily concur in the recommendations contained in the majority
report.
The zeal and efficiency of the Federal Bureau of Investigation were
commendable.
I do not question the motives or the good faith of the Department.
of Justice, nor any of its representatives who handled these cases, but
I do disagree with its judgment in estimating the strength of the
Government's case against Jaffe.
FRANK FEtjows.
RAYMOND S. SPRINGER.
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ADDITIONAL MINORITY VIEWS BY RAYMOND S.
SPRINGER
I desire to submit some additional views respecting the report just
made by a majority of Subcommittee IV of the Judiciary Committee
under Howse Resolution 430. This subject embraced in the report
just made is treated altogether too lightly in the face of the grave
situation which has and now obtains in the Department of State in
our National Government.
The resolution, under which the investigation was made, directs
that a-
thorough investigation be made of all circumstances with respect to the disposition
of the charges of espionage and the possession of documents stolen from secret
Government files which were made by the Federal Bureau of investigation against
the following individuals: Philip J. Jaffe, Kate L. Smith, John Stewart Service,
Emanuel Sigurd Larsen, Andrew Roth, and Mark Gayn.
After hearings were held by the subcommittee a report was made
and signed by certain members of that subcommittee, which is now
on file with the Clerk of the House of Representatives in Washington.
It is my firm and considered judgment, based upon the evidence
adduced at the hearings, that the report made falls far short of ex-
pressing the views of some of the members of the subcommittee upon
the subject under investigation.
Herewith, I desire to set forth my reasons for the above statement.
A. This transaction, or rather a series of transactions involved,
embraces the unlawful removal of "top secret," "secret," "confiden-
tial," and "restricted" files from the Department of State, in our
National Government. This is a very serious offense. In time of
war, this is a most serious offense. When war is in progress, or even
in trine of peace, it is of little or no concern whether the files removed
were "originals" or "copies," the fact that "information" of either or
any classification was removed from the secret files in the Department
of State and was delivered to any individual, or group of individuals,
who had no lawful right to receive the same, is the essence of the'
offense. When that very secret information was thus unlawfully
revealed to others, no matter how the same was imparted to Mr.
Jaffe, whether by an original, or by copy, or by any other method,
the real damage, has been done.
B. There should not be any attempt made in the report to either
minimize or acquit anyone from the magnitude of the act or acts
committed. The report filed appears to at least attempt to either
minimize or completely justify some of the unlawful acts which were
undoubtedly committed.
C. The evidence introduced at the hearings shows, very conclu-
sively, that the Security Division of the Department of State is
"wholly inadequate," and that the so-called security in that Depart-
ment was disorganized, inadequate, and wholly incompetent. When
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employees left that Department, at any time, no search was made of
any packages or large envelopes, or bundles, which were carried out
of that Department. The evidence in the record is very clear upon
that subject. If any changes or alterations have been made respecting
security in that Department, which is worthy of the name of "secu-
rity," the record fails to disclose the same. If any changes have been
made since the hearings, I am not advised thereof.
D. It must be remembered that these documents, so unlawfully
removed, were found. in the office of Philip Jaffe, of New York. I do
not know what the affiliations of this man Jaffe may be. Others have
reported that lie is at least a, very strong sympathizer of communism..
Regardless of what his beliefs may be, he had no right to receive any
document, or any information from any document, from the Depart-
ment of State. The knowledge imparted to him, and the information
passed over to this man Jaffe, whoever or whatever he may be, is the
unlawful act here involved.
E. The evidence presented at the hearings disclosed the sordid fact
that Andrew Roth, a lieutenant (junior grade), in our Navy, was
known to be a Communist by the board passing upon and granting
commissions in the Navy, and that fact was so known at the time he
was recommended for a commission as it lieutenant (junior grade) in
the Navy.
F. The Department of State, and many of the departments of the
Government, appear to "close their eyes" to communism, or those
who believe in a totalitarian state, or in subversive activities, because
they continue to employ them, and retain them, in the departments
of Government. Those who are opposed to our form of government,
and those who seek to "overthrow our form. of government by force
or violence" have no place i1L our Government, and certainly not in
any office of trust or profit within our Government. The present
condition wherein large numbers of employees, who are opposed to
our form of government, are continued in their places of responsibility,
in Government positions, is appalling. This practice is subject to
censure.
G. All those who participated in any way in the removal, or
attempted removal, of these documents from the Department of
State--or who copied such reports and thereafter delivered such
copies to Mr. Jaffe, or to any other person, not lawfully entitled to
receive the same; should be prosecuted, and all those participating,
in any degree in the, unlawful acts under investigation, should be
immediately discharged from their positions in our Government.
The report should speak strongly a,ntf without any reservation upon
that subject.
H. Those holding commissions in the Army or Navy who are
known to be Communists, or who have participated in removing
secret files, or imparting secret information, to the Communists, or
to any other individual, or group of individuals are undoubtedly
unfit to hold such commission--and the saute should be canceled
forthwith. Navy officers, either active or on reserve, who so believe
or who have participated., should be dismissed and discharged.
I. The questions here involved are so grave, and the offenses so
great, that no effort should be made to protect or defend those who
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so offended, but the report should be made both firm and strong-
to speak the truth-but to place the blame where the same rightfully
belongs.
I concur, wholeheartedly, with the recommendations made, in the
majority report, which appear at the close thereof, set forth under
subheads 1, 2, 3, 4, and 5 under article XIII. However, it is my
considered judgment and opinion that the question of "loyalty" to
our form of government, and to our country, should be one of the
paramount qualifications for all employees in their consideration.
Those whose background is unsatisfactory, or whose affiliations are
questionable, or those who fail to measure up to the "acid test" as
Americans, should have no place in our departments of government,
and all those in charge of the many and various agencies of our Gov-
ernment should be so admonished and instructed.
Therefore, by reason of the fact that the report 'fails to speak
strongly upon the matters properly under investigation, I cannot
join in the approval of the report with the exception of my concur-
rence with the recommendations which appear under subheads 1, 2,
3, 4, and 5 under article XIII, and I submit these minority and
additional views.
Respectfully submitted.
RAYMOND S. SPRINGER.
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