8 April 1998
Source:
http://www.access.gpo.gov/su_docs/aces/aaces002.html
See related recent case of William H. Payne: http://jya.com/whpfiles.htm
From the U.S. Government Printing Office via GPO Access
U.S. SUPREME COURT DECISIONS
Case: GREENE V. MCELROY
Case #: 360US474
NO. 180. ARGUED APRIL 1, 1959. - DECIDED JUNE 29, 1959. - 103 U.S.
APP. D.C. 87, 254 F.2D 944, REVERSED AND CAUSE REMANDED.
PETITIONER, AN AERONAUTICAL ENGINEER, WAS GENERAL MANAGER OF A PRIVATE
CORPORATION ENGAGED IN DEVELOPING AND PRODUCING FOR THE ARMED FORCES
GOODS INVOLVING MILITARY SECRETS, UNDER CONTRACTS REQUIRING THE
CORPORATION TO EXCLUDE FROM ITS PREMISES PERSONS NOT HAVING SECURITY
CLEARANCES. UNDER REGULATIONS PROMULGATED BY THE SECRETARY OF DEFENSE
WITHOUT EXPLICIT AUTHORIZATION BY EITHER THE PRESIDENT OR CONGRESS, AND
AFTER ADMINISTRATIVE HEARINGS IN WHICH HE WAS DENIED ACCESS TO MUCH OF
THE INFORMATION ADVERSE TO HIM AND ANY OPPORTUNITY TO CONFRONT OR CROSS
EXAMINE WITNESSES AGAINST HIM, PETITIONER WAS DEPRIVED OF HIS SECURITY
CLEARANCE ON THE GROUNDS OF ALLEGED COMMUNISTIC ASSOCIATIONS AND
SYMPATHIES. AS A CONSEQUENCE, THE CORPORATION DISCHARGED HIM AND HE
WAS UNABLE TO OBTAIN OTHER EMPLOYMENT AS AN AERONAUTICAL ENGINEER. HE
SUED FOR A JUDGMENT DECLARING THAT THE REVOCATION OF HIS SECURITY
CLEARANCE WAS UNLAWFUL AND VOID AND AN ORDER RESTRAINING THE
SECRETARIES OF THE ARMED FORCES FROM ACTING PURSUANT TO IT. HELD: IN
THE ABSENCE OF EXPLICIT AUTHORIZATION FROM EITHER THE PRESIDENT OR
CONGRESS, THE SECRETARIES OF THE ARMED FORCES WERE NOT AUTHORIZED TO
DEPRIVE PETITIONER OF HIS JOB IN A PROCEEDING IN WHICH HE WAS NOT
AFFORDED THE SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION. PP.
475-508.
(A) NEITHER EXECUTIVE ORDER NO. 10290 NOR EXECUTIVE ORDER NO. 10501
EMPOWERS ANY EXECUTIVE AGENCY TO FASHION SECURITY PROGRAMS WHEREBY
PERSONS ARE DEPRIVED OF THEIR CIVILIAN EMPLOYMENT AND OF THE
OPPORTUNITY OF CONTINUED ACTIVITY IN THEIR CHOSEN PROFESSIONS WITHOUT
BEING ACCORDED THE CHANCE TO CHALLENGE EFFECTIVELY THE EVIDENCE AND
TESTIMONY UPON WHICH AN ADVERSE SECURITY DETERMINATION MIGHT REST. PP.
500-502.
(B) NEITHER THE NATIONAL SECURITY ACT OF 1947 NOR THE ARMED SERVICES
PROCUREMENT ACT OF 1947, EVEN WHEN READ IN CONJUNCTION WITH 18 U.S.C.
SEC. 798, MAKING IT A CRIME TO COMMUNICATE TO UNAUTHORIZED PERSONS
INFORMATION CONCERNING CRYPTOGRAPHIC OR INTELLIGENCE ACTIVITIES, AND 50
U.S.C. SEC. 783(B), MAKING IT A CRIME FOR AN OFFICER OR EMPLOYEE OF THE
UNITED STATES TO COMMUNICATE CLASSIFIED INFORMATION TO AGENTS OF
FOREIGN GOVERNMENTS OR OFFICERS AND MEMBERS OF "COMMUNIST
ORGANIZATIONS," CONSTITUTES AN AUTHORIZATION TO CREATE AN ELABORATE
CLEARANCE PROGRAM UNDER WHICH PERSONS MAY BE SERIOUSLY RESTRAINED IN
THEIR EMPLOYMENT OPPORTUNITIES THROUGH A DENIAL OF CLEARANCE WITHOUT
THE SAFEGUARDS OF CROSS-EXAMINATION AND CONFRONTATION. PP. 502-504.
(C) CONGRESSIONAL RATIFICATION OF THE SECURITY CLEARANCE PROCEDURES
CANNOT BE IMPLIED FROM THE CONTINUED APPROPRIATION OF FUNDS TO FINANCE
ASPECTS OF THE PROGRAM FASHIONED BY THE DEPARTMENT OF DEFENSE. PP. 504
505.
(D) IN THIS AREA OF QUESTIONABLE CONSTITUTIONALITY, THIS COURT WILL
NOT HOLD THAT A PERSON MAY BE DEPRIVED OF THE RIGHT TO FOLLOW HIS
CHOSEN PROFESSION WITHOUT FULL HEARINGS WHERE ACCUSERS MAY BE
CONFRONTED AND CROSS-EXAMINED, WHEN NEITHER THE PRESIDENT NOR CONGRESS
HAS EXPLICITLY AUTHORIZED SUCH PROCEDURE. PP. 506-508.
GREENE V. MCELROY ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT.
MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT.
THIS CASE INVOLVES THE VALIDITY OF THE GOVERNMENT'S REVOCATION OF
SECURITY CLEARANCE GRANTED TO PETITIONER, AN AERONAUTICAL ENGINEER
EMPLOYED BY A PRIVATE MANUFACTURER WHICH PRODUCED GOODS FOR THE ARMED
SERVICES. PETITIONER WAS DISCHARGED FROM HIS EMPLOYMENT SOLELY AS A
CONSEQUENCE OF THE REVOCATION BECAUSE HIS ACCESS TO CLASSIFIED
INFORMATION WAS REQUIRED BY THE NATURE OF HIS JOB. AFTER HIS
DISCHARGE, PETITIONER WAS UNABLE TO SECURE EMPLOYMENT AS AN
AERONAUTICAL ENGINEER AND FOR ALL PRACTICAL PURPOSES THAT FIELD OF
ENDEAVOR IS NOW CLOSED TO HIM.
PETITIONER WAS VICE PRESIDENT AND GENERAL MANAGER OF ENGINEERING AND
RESEARCH CORPORATION (ERCO), A BUSINESS DEVOTED PRIMARILY TO DEVELOPING
AND MANUFACTURING VARIOUS MECHANICAL AND ELECTRONIC PRODUCTS. HE BEGAN
THIS EMPLOYMENT IN 1937 SOON AFTER HIS GRADUATION FROM THE GUGGENHEIM
SCHOOL OF AERONAUTICS AND, EXCEPT FOR A BRIEF LEAVE OF ABSENCE, HE
STAYED WITH THE FIRM UNTIL HIS DISCHARGE IN 1953. HE WAS FIRST
EMPLOYED AS A JUNIOR ENGINEER AND DRAFTSMAN. BECAUSE OF THE EXCELLENCE
OF HIS WORK HE EVENTUALLY BECAME A CHIEF EXECUTIVE OFFICER OF THE
FIRM. DURING HIS CAREER WITH ERCO, HE WAS CREDITED WITH THE EXPEDITED
DEVELOPMENT OF A COMPLICATED ELECTRONIC FLIGHT SIMULATOR AND WITH THE
DESIGN OF A ROCKET LAUNCHER, BOTH OF WHICH WERE PRODUCED BY ERCO AND
LONG USED BY THE NAVY.
DURING THE POST-WORLD WAR II PERIOD, PETITIONER WAS GIVEN SECURITY
CLEARANCES ON THREE OCCASIONS. (FN1) THESE WERE REQUIRED BY THE
NATURE OF THE PROJECTS UNDERTAKEN BY ERCO FOR THE VARIOUS ARMED
SERVICES. (FN2) ON NOVEMBER 21, 1951, HOWEVER, THE ARMY-NAVY-AIR
FORCE PERSONNEL SECURITY BOARD (PSB) ADVISED ERCO THAT THE COMPANY'S
CLEARANCES FOR ACCESS TO CLASSIFIED INFORMATION WERE IN JEOPARDY
BECAUSE OF A TENTATIVE DECISION TO DENY PETITIONER ACCESS TO CLASSIFIED
DEPARTMENT OF DEFENSE INFORMATION AND TO REVOKE HIS CLEARANCE FOR
SECURITY REASONS. (FN3) ERCO WAS INVITED TO RESPOND TO THIS
NOTIFICATION. THE CORPORATION, THROUGH ITS PRESIDENT, INFORMED PSB
THAT PETITIONER HAD TAKEN AN EXTENDED FURLOUGH DUE TO THE BOARD'S
ACTION. THE ERCO EXECUTIVE ALSO STATED THAT IN HIS OPINION PETITIONER
WAS A LOYAL AND DISCREET UNITED STATES CITIZEN AND THAT HIS ABSENCE
DENIED TO THE FIRM THE SERVICES OF AN OUTSTANDING ENGINEER AND
ADMINISTRATIVE EXECUTIVE. ON DECEMBER 11, 1951, PETITIONER WAS
INFORMED BY THE BOARD THAT IT HAD "DECIDED THAT ACCESS BY YOU TO
CONTRACT WORK AND INFORMATION (AT ERCO) .. WOOULD BE INIMICAL TO THE
BEST INTERESTS OF THE UNITED STATES." ACCORDINGLY, THE PSB REVOKED
PETITIONER'S CLEARANCES. HE WAS INFORMED THAT HE COULD SEEK A HEARING
BEFORE THE INDUSTRIAL EMPLOYMENT REVIEW BOARD (IERB), AND HE TOOK THIS
COURSE. (FN4) PRIOR TO THE HEARING, PETITIONER RECEIVED A LETTER
INFORMING HIM THAT THE PSB ACTION WAS BASED ON INFORMATION INDICATING
THAT BETWEEN 1943 AND 1947 HE HAD ASSOCIATED WITH COMMUNISTS, VISITED
OFFICIALS OF THE RUSSIAN EMBASSY, AND ATTENDED A DINNER GIVEN BY AN
ALLEGEDLY COMMUNIST FRONT ORGANIZATION. (FN5)
ON JANUARY 23, 1952, PETITIONER, WITH COUNSEL, APPEARED BEFORE THE
IERB. HE WAS QUESTIONED IN DETAIL CONCERNING HIS BACKGROUND AND THE
INFORMATION DISCLOSED IN THE IERB LETTER. IN RESPONSE TO NUMEROUS AND
SEARCHING QUESTIONS HE EXPLAINED IN SUBSTANCE THAT SPECIFIC "SUSPECT"
PERSONS WITH WHOM HE WAS SAID TO HAVE ASSOCIATED WERE ACTUALLY FRIENDS
OF HIS EX-WIFE. HE EXPLAINED IN SOME DETAIL THAT DURING HIS FIRST
MARRIAGE, WHICH LASTED FROM 1942 THROUGH 1947, HIS THEN WIFE HELD VIEWS
WITH WHICH HE DID NOT CONCUR AND WAS FRIENDLY WITH ASSOCIATES AND OTHER
PERSONS WITH WHOM HE HAD LITTLE IN COMMON. HE STATED THAT THESE BASIC
DISAGREEMENTS WERE THE PRIME REASONS THAT THE MARRIAGE ENDED IN
FAILURE. HE ATTRIBUTED TO HIS THEN WIFE HIS ATTENDANCE AT THE DINNER,
HIS MEMBERSHIP IN A BOOKSHOP ASSOCIATION WHICH PURPORTEDLY WAS A
"FRONT" ORGANIZATION, AND THE PRESENCE IN HIS HOME OF "COMMUNIST"
PUBLICATIONS. HE DENIED CATEGORICALLY THAT HE HAD EVER BEEN A
"COMMUNIST" AND HE SPOKE AT LENGTH ABOUT HIS DISLIKE FOR "A THEORY OF
GOVERNMENT WHICH HAS FOR ITS OBJECT THE COMMON OWNERSHIP OF PROPERTY."
LASTLY, PETITIONER EXPLAINED THAT HIS VISITS TO PERSONS IN VARIOUS
FOREIGN EMBASSIES (INCLUDING THE RUSSIAN EMBASSY) WERE MADE IN
CONNECTION WITH HIS ATTEMPTS TO SELL ERCO'S PRODUCTS TO THEIR
GOVERNMENTS. PETITIONER'S WITNESSES, WHO INCLUDED TOP-LEVEL EXECUTIVES
OF ERCO AND A NUMBER OF MILITARY OFFICERS WHO HAD WORKED WITH
PETITIONER IN THE PAST, CORROBORATED MANY OF PETITIONER'S STATEMENTS
AND TESTIFIED IN SUBSTANCE THAT HE WAS A LOYAL AND DISCREET CITIZEN.
THESE TOP-LEVEL EXECUTIVES OF ERCO, WHOSE RIGHT TO CLEARANCE WAS NEVER
CHALLENGED, CORROBORATED PETITIONER'S TESTIMONY CONCERNING HIS REASONS
FOR VISITING THE RUSSIAN EMBASSY.
THE GOVERNMENT PRESENTED NO WITNESSES. IT WAS OBVIOUS, HOWEVER, FROM
THE QUESTIONS POSED TO PETITIONER AND TO HIS WITNESSES, THAT THE BOARD
RELIED ON CONFIDENTIAL REPORTS WHICH WERE NEVER MADE AVAILABLE TO
PETITIONER. THESE REPORTS APPARENTLY WERE COMPILATIONS OF STATEMENTS
TAKEN FROM VARIOUS PERSONS CONTACTED BY AN INVESTIGATORY AGENCY.
PETITIONER HAD NO OPPORTUNITY TO CONFRONT AND QUESTION PERSONS WHOSE
STATEMENTS REFLECTED ADVERSELY ON HIM OR TO CONFRONT THE GOVERNMENT
INVESTIGATORS WHO TOOK THEIR STATEMENTS. MOREOVER, IT SEEMED EVIDENT
THAT THE BOARD ITSELF HAD NEVER QUESTIONED THE INVESTIGATORS AND HAD
NEVER SEEN THOSE PERSONS WHOSE STATEMENTS WERE THE SUBJECT OF THEIR
REPORTS.
ON JANUARY 29, 1952, THE IERB, ON THE BASIS OF THE TESTIMONY GIVEN AT
THE HEARING AND THE CONFIDENTIAL REPORTS, REVERSED THE ACTION OF THE
PSB AND INFORMED PETITIONER AND ERCO THAT PETITIONER WAS AUTHORIZED TO
WORK ON SECRET CONTRACT WORK.
ON MARCH 27, 1953, THE SECRETARY OF DEFENSE ABOLISHED THE PSB AND
IERB AND DIRECTED THE SECRETARIES OF THE THREE ARMED SERVICES TO
ESTABLISH REGIONAL INDUSTRIAL PERSONNEL SECURITY BOARDS TO COORDINATE
THE INDUSTRIAL SECURITY PROGRAM. (FN6) THE SECRETARIES WERE ALSO
INSTRUCTED TO ESTABLISH UNIFORM STANDARDS, CRITERIA, AND PROCEDURES.
(FN7) CASES PENDING BEFORE THE PSB AND IERB WERE REFERRED TO THESE NEW
BOARDS. (FN8) DURING THE INTERIM PERIOD BETWEEN THE ABOLISHMENT OF
THE OLD PROGRAM AND THE IMPLEMENTATION OF THE NEW ONE, THE SECRETARIES
CONSIDERED THEMSELVES CHARGED WITH ADMINISTERING CLEARANCE ACTIVITIES
UNDER PREVIOUSLY STATED CRITERIA. (FN9)
ON APRIL 17, 1953, RESPONDENT ANDERSON, THE SECRETARY OF THE NAVY,
WROTE ERCO THAT HE HAD REVIEWED PETITIONER'S CASE AND HAD CONCLUDED
THAT PETITIONER'S "CONTINUED ACCESS TO NAVY CLASSIFIED SECURITY
INFORMATION WAS INCONSISTENT WITH THE BEST INTERESTS OF NATIONAL
SECURITY." NO HEARING PRECEDED THIS NOTIFICATION. HE REQUESTED ERCO
TO EXCLUDE PETITIONER "FROM ANY PART OF YOUR PLANTS, FACTORIES OR SITES
AT WHICH CLASSIFIED NAVY PROJECTS ARE BEING CARRIED OUT AND TO BAR HIM
ACCESS TO ALL NAVY CLASSIFIED INFORMATION." HE ALSO ADVISED THE
CORPORATION THAT PETITIONER'S CASE WAS BEING REFERRED TO THE SECRETARY
OF DEFENSE WITH THE RECOMMENDATION THAT THE IERB'S DECISION OF JANUARY
29, 1952, BE OVERRULED. ERCO HAD NO CHOICE BUT TO COMPLY WITH THE
REQUEST. (FN10) THIS LED TO PETITIONER'S DISCHARGE. (FN11) ERCO
INFORMED THE NAVY OF WHAT HAD OCCURRED AND REQUESTED AN OPPORTUNITY TO
DISCUSS THE MATTER IN VIEW OF PETITIONER'S IMPORTANCE TO THE FIRM.
(FN12) THE NAVY REPLIED THAT "AS FAR AS THE NAVY DEPARTMENT IS
CONCERNED, ANY FURTHER DISCUSSION ON THIS PROBLEM AT THIS TIME WILL
SERVE NO USEFUL PURPOSE."
PETITIONER ASKED FOR RECONSIDERATION OF THE DECISION. ON OCTOBER 13,
1953, THE NAVY WROTE TO HIM STATING THAT IT HAD REQUESTED THE EASTERN
INDUSTRIAL PERSONNEL SECURITY BOARD (EIPSB) TO ACCEPT JURISDICTION AND
TO ARRIVE AT A FINAL DETERMINATION CONCERNING PETITIONER'S STATUS.
(FN13) VARIOUS LETTERS WERE SUBSEQUENTLY EXCHANGED BETWEEN
PETITIONER'S COUNSEL AND THE EIPSB. THESE RESULTED FINALLY IN
GENERALIZED CHARGES, QUOTED IN THE MARGIN, INCORPORATING THE
INFORMATION PREVIOUSLY DISCUSSED WITH PETITIONER AT HIS 1952 HEARING
BEFORE THE IERB. (FN14)
ON APRIL 28, 1954, MORE THAN ONE YEAR AFTER THE SECRETARY TOOK
ACTION, AND FOR THE TWO DAYS THEREAFTER, PETITIONER PRESENTED HIS CASE
TO THE EIPSB AND WAS CROSS-EXAMINED IN DETAIL. THE HEARING BEGAN WITH
A STATEMENT BY THE CHAIRMAN, WHICH INCLUDED THE FOLLOWING PASSAGE:
"THE TRANSCRIPT TO BE MADE OF THIS HEARING WILL NOT INCLUDE ALL
MATERIAL IN THE FILE OF THE CASE, IN THAT, IT WILL NOT INCLUDE REPORTS
OF INVESTIGATION CONDUCTED BY THE FEDERAL BUREAU OF INVESTIGATION OR
OTHER INVESTIGATIVE AGENCIES WHICH ARE CONFIDENTIAL. NEITHER WILL IT
CONTAIN INFORMATION CONCERNING THE IDENTITY OF CONFIDENTIAL INFORMANTS
OR INFORMATION WHICH WILL REVEAL THE SOURCE OF CONFIDENTIAL EVIDENCE.
THE TRANSCRIPT WILL CONTAIN ONLY THE STATEMENT OF REASONS, YOUR ANSWER
THERETO AND THE TESTIMONY ACTUALLY TAKEN AT THIS HEARING."
PETITIONER WAS AGAIN ADVISED THAT THE REVOCATION OF HIS SECURITY
CLEARANCE WAS BASED ON INCIDENTS OCCURRING BETWEEN 1942 AND 1947,
INCLUDING HIS ASSOCIATIONS WITH ALLEGED COMMUNISTS, HIS VISITS WITH
OFFICIALS OF THE RUSSIAN EMBASSY, AND THE PRESENCE IN HIS HOUSE OF
COMMUNIST LITERATURE.
PETITIONER, IN RESPONSE TO A QUESTION, STATED AT THE OUTSET OF THE
HEARING THAT HE WAS THEN EMPLOYED AT A SALARY OF $4,700 PER YEAR AS AN
ARCHITECTURAL DRAFTSMAN AND THAT HE HAD BEEN RECEIVING $18,000 PER YEAR
AS VICE PRESIDENT AND GENERAL MANAGER OF ERCO. HE LATER EXPLAINED THAT
AFTER HIS DISCHARGE FROM ERCO HE HAD UNSUCCESSFULLY TRIED TO OBTAIN
EMPLOYMENT IN THE AERONAUTICS FIELD BUT HAD BEEN BARRICADED FROM IT
BECAUSE OF LACK OF CLEARANCE. (FN15)
PETITIONER WAS SUBJECTED TO AN INTENSE EXAMINATION SIMILAR TO THAT
WHICH HE EXPERIENCED BEFORE THE IERB IN 1952. DURING THE COURSE OF THE
EXAMINATION, THE BOARD INJECTED NEW SUBJECTS OF INQUIRY AND MADE IT
EVIDENT THAT IT WAS RELYING ON VARIOUS INVESTIGATORY REPORTS AND
STATEMENTS OF CONFIDENTIAL INFORMANTS WHICH WERE NOT MADE AVAILABLE TO
PETITIONER. (FN16) PETITIONER REITERATED IN GREAT DETAIL THE
EXPLANATIONS PREVIOUSLY GIVEN BEFORE THE IERB. HE WAS SUBJECTED TO
INTENSE CROSS-EXAMINATION, HOWEVER, CONCERNING REPORTS THAT HE HAD
AGREED WITH THE VIEWS HELD BY HIS EX-WIFE.
PETITIONER AGAIN PRESENTED A NUMBER OF WITNESSES WHO TESTIFIED THAT
HE WAS LOYAL, THAT HE HAD SPOKEN APPROVINGLY OF THE UNITED STATES AND
ITS ECONOMIC SYSTEM, THAT HE WAS A VALUABLE ENGINEER, AND THAT HE HAD
MADE VALUABLE AND SIGNIFICANT CONTRIBUTIONS TO THIS COUNTRY'S WAR
EFFORTS DURING WORLD WAR II AND THE KOREAN WAR.
SOON AFTER THE CONCLUSION OF THE HEARING, THE EIPSB NOTIFIED
PETITIONER THAT IT HAD AFFIRMED THE SECRETARY'S ACTION AND THAT IT HAD
DECIDED THAT THE GRANTING OF CLEARANCE TO PETITIONER FOR ACCESS TO
CLASSIFIED INFORMATION WAS "NOT CLEARLY CONSISTENT WITH THE INTERESTS
OF NATIONAL SECURITY." PETITIONER REQUESTED THAT HE BE FURNISHED WITH
A DETAILED STATEMENT OF FINDINGS SUPPORTING THE BOARD'S DECISION. HE
WAS INFORMED, HOWEVER, THAT SECURITY CONSIDERATIONS PROHIBITED SUCH
DISCLOSURE. (FN17) ON SEPTEMBER 16, 1955, PETITIONER REQUESTED REVIEW
BY THE INDUSTRIAL PERSONNEL SECURITY REVIEW BOARD. (FN18) ON MARCH
12, 1956, ALMOST THREE YEARS AFTER THE SECRETARY'S ACTION AND NEARLY
ONE YEAR AFTER THE SECOND HEARING, HE RECEIVED A LETTER FROM THE
DIRECTOR OF THE OFFICE OF INDUSTRIAL PERSONNEL SECURITY REVIEW
INFORMING HIM THAT THE EIPSB HAD FOUND THAT FROM 1942-1947 PETITIONER
ASSOCIATED CLOSELY WITH HIS THEN WIFE AND HER FRIENDS, KNOWING THAT
THEY WERE ACTIVE IN BEHALF OF AND SYMPATHIZED WITH THE COMMUNIST PARTY,
THAT DURING PART OF THIS PERIOD PETITIONER MAINTAINED A SYMPATHETIC
ASSOCIATION WITH A NUMBER OF OFFICIALS OF THE RUSSIAN EMBASSY, THAT
DURING THIS PERIOD PETITIONER'S POLITICAL VIEWS WERE SIMILAR TO THOSE
OF HIS THEN WIFE, THAT PETITIONER HAD BEEN A MEMBER OF A SUSPECT
BOOKSHOP ASSOCIATION, HAD INVESTED MONEY IN A SUSPECT RADIO STATION,
HAD ATTENDED A SUSPECT DINNER, AND HAD, ON OCCASION, COMMUNIST
PUBLICATIONS IN HIS HOME, AND THAT PETITIONER'S CREDIBILITY AS A
WITNESS IN THE PROCEEDINGS WAS DOUBTFUL. THE LETTER ALSO STATED THAT
THE DOUBTS CONCERNING PETITIONER'S CREDIBILITY AFFECTED THE BOARD'S
EVALUATION OF HIS TRUSTWORTHINESS AND THAT ONLY TRUSTWORTHY PERSONS
COULD BE AFFORDED ACCESS TO CLASSIFIED INFORMATION. (FN19) THE EIPSB
DETERMINATION WAS AFFIRMED.
AFTER THE EIPSB DECISION IN 1954, PETITIONER FILED A COMPLAINT IN THE
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ASKING FOR A
DECLARATION THAT THE REVOCATION WAS UNLAWFUL AND VOID AND FOR AN ORDER
RESTRAINING RESPONDENTS FROM ACTING PURSUANT TO IT. (FN20) HE ALSO
ASKED FOR AN ORDER REQUIRING RESPONDENTS TO ADVISE ERCO THAT THE
CLEARANCE REVOCATION WAS VOID. FOLLOWING THE AFFIRMANCE OF THE EIPSB
ORDER BY THE INDUSTRIAL PERSONNEL REVIEW BOARD, PETITIONER MOVED FOR
SUMMARY JUDGMENT IN THE DISTRICT COURT. THE GOVERNMENT CROSS-FILED FOR
DISMISSAL OF THE COMPLAINT OR SUMMARY JUDGMENT. THE DISTRICT COURT
GRANTED THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT, 150 F. SUPP. 958,
AND THE COURT OF APPEALS AFFIRMED THAT DISPOSITION, 103 U.S. APP. D.C.
87, 254 F.2D 944. THE COURT OF APPEALS RECOGNIZED THAT PETITIONER
HAD SUFFERED SUBSTANTIAL HARM FROM THE CLEARANCE REVOCATION. (FN21)
BUT IN THAT COURT'S VIEW, PETITIONER'S SUIT PRESENTED NO "JUSTICIABLE
CONTROVERSY" - NO CONTROVERSY WHICH THE COURTS COULD FINALLY AND
EFFECTIVELY DECIDE. THIS CONCLUSION FOLLOWED FROM THE COURT OF
APPEALS' REASONING THAT THE EXECUTIVE DEPARTMENT ALONE IS COMPETENT TO
EVALUATE THE COMPETING CONSIDERATIONS WHICH EXIST IN DETERMINING THE
PERSONS WHO ARE TO BE AFFORDED SECURITY CLEARANCES. THE COURT ALSO
REJECTED PETITIONER'S CLAIM THAT HE WAS DEPRIVED OF HIS LIVELIHOOD
WITHOUT THE TRADITIONAL SAFEGUARDS REQUIRED BY "DUE PROCESS OF LAW"
SUCH AS CONFRONTATION OF HIS ACCUSERS AND ACCESS TO CONFIDENTIAL
REPORTS USED TO DETERMINE HIS FITNESS. CENTRAL TO THIS DETERMINATION
WAS THE COURT'S WILLINGNESS TO ORDER THE GOVERNMENT TO CHOOSE BETWEEN
DISCLOSING THE IDENTITIES OF INFORMANTS OR GIVING PETITIONER
CLEARANCE.
PETITIONER CONTENDS THAT THE ACTION OF THE DEPARTMENT OF DEFENSE IN
BARRING HIM FROM ACCESS TO CLASSIFIED INFORMATION ON THE BASIS OF
STATEMENTS OF CONFIDENTIAL INFORMANTS MADE TO INVESTIGATORS WAS NOT
AUTHORIZED BY EITHER CONGRESS OR THE PRESIDENT AND HAS DENIED HIM
"LIBERTY" AND "PROPERTY" WITHOUT "DUE PROCESS OF LAW" IN CONTRAVENTION
OF THE FIFTH AMENDMENT. THE ALLEGED PROPERTY IS PETITIONER'S
EMPLOYMENT; THE ALLEGED LIBERTY IS PETITIONER'S FREEDOM TO PRACTICE HIS
CHOSEN PROFESSION. RESPONDENTS ADMIT, AS THEY MUST, THAT THE
REVOCATION OF SECURITY CLEARANCE CAUSED PETITIONER TO LOSE HIS JOB WITH
ERCO AND HAS SERIOUSLY AFFECTED, IF NOT DESTROYED, HIS ABILITY TO
OBTAIN EMPLOYMENT IN THE AERONAUTICS FIELD. ALTHOUGH THE RIGHT TO HOLD
SPECIFIC PRIVATE EMPLOYMENT AND TO FOLLOW A CHOSEN PROFESSION FREE FROM
UNREASONABLE GOVERNMENTAL INTERFERENCE COMES WITHIN THE "LIBERTY" AND
"PROPERTY" CONCEPTS OF THE FIFTH AMENDMENT, DENT V. WEST VIRGINIA, 129
U.S. 114; SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232; PETERS V.
HOBBY, 349 U.S. 331, 352 (CONCURRING OPINION); CF. SLOCHOWER V. BOARD
OF EDUCATION, 350 U.S. 551; TRUAX V. RAICH, 239 U.S. 33, 41; ALLGEYER
V. LOUISIANA, 165 U.S. 578, 589-590; POWELL V. PENNSYLVANIA, 127 U.S.
678, 684, RESPONDENTS CONTEND THAT THE ADMITTED INTERFERENCES WHICH
HAVE OCCURRED ARE INDIRECT BY-PRODUCTS OF NECESSARY GOVERNMENTAL ACTION
TO PROTECT THE INTEGRITY OF SECRET INFORMATION AND HENCE ARE NOT
UNREASONABLE AND DO NOT CONSTITUTE DEPRIVATIONS WITHIN THE MEANING OF
THE AMENDMENT. ALTERNATIVELY, RESPONDENTS URGE THAT EVEN IF PETITIONER
HAS BEEN RESTRAINED IN THE ENJOYMENT OF CONSTITUTIONALLY PROTECTED
RIGHTS, HE WAS ACCORDED DUE PROCESS OF LAW IN THAT HE WAS PERMITTED TO
UTILIZE THOSE PROCEDURAL SAFEGUARDS CONSONANT WITH AN EFFECTIVE
CLEARANCE PROGRAM, IN THE ADMINISTRATION OF WHICH THE IDENTITY OF
INFORMANTS AND THEIR STATEMENTS ARE KEPT SECRET TO INSURE AN UNIMPAIRED
FLOW TO THE GOVERNMENT OF INFORMATION CONCERNING SUBVERSIVE CONDUCT.
BUT IN VIEW OF OUR CONCLUSION THAT THIS CASE SHOULD BE DECIDED ON THE
NARROWER GROUND OF "AUTHORIZATION," WE FIND THAT WE NEED NOT DETERMINE
THE ANSWERS TO THESE QUESTIONS. (FN22)
THE ISSUE, AS WE SEE IT, IS WHETHER THE DEPARTMENT OF DEFENSE HAS
BEEN AUTHORIZED TO CREATE AN INDUSTRIAL SECURITY CLEARANCE PROGRAM
UNDER WHICH AFFECTED PERSONS MAY LOSE THEIR JOBS AND MAY BE RESTRAINED
IN FOLLOWING THEIR CHOSEN PROFESSIONS ON THE BASIS OF FACT
DETERMINATIONS CONCERNING THEIR FITNESS FOR CLEARANCE MADE IN
PROCEEDINGS IN WHICH THEY ARE DENIED THE TRADITIONAL PROCEDURAL
SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION.
PRIOR TO WORLD WAR II, ONLY SPORADIC EFFORTS WERE MADE TO CONTROL THE
CLEARANCE OF PERSONS WHO WORKED IN PRIVATE ESTABLISHMENTS WHICH
MANUFACTURED MATERIALS FOR NATIONAL DEFENSE. REPORT OF THE COMMISSION
ON GOVERNMENT SECURITY, 1957, S. DOC. NO. 64, 85TH CONG., 1ST SESS.
236. DURING WORLD WAR II THE WAR DEPARTMENT INSTITUTED A FORMALIZED
PROGRAM TO OBTAIN THE DISCHARGE FROM WAR PLANTS OF PERSONS ENGAGED IN
SABOTAGE, ESPIONAGE, AND WILLFUL ACTIVITY DESIGNED TO DISRUPT THE
NATIONAL DEFENSE PROGRAM. ID., AT 237. IN 1946, THE WAR DEPARTMENT
BEGAN TO REQUIRE CONTRACTORS, BEFORE BEING GIVEN ACCESS TO CLASSIFIED
INFORMATION, TO SIGN SECRECY AGREEMENTS WHICH REQUIRED CONSENT BEFORE
THEIR EMPLOYEES WERE PERMITTED ACCESS TO TOP SECRET OR SECRET
INFORMATION. ID., AT 238. AT THE OUTSET, EACH ARMED SERVICE
ADMINISTERED ITS OWN INDUSTRIAL CLEARANCE PROGRAM. ID., AT 239.
LATER, THE PSB AND IERB WERE ESTABLISHED BY THE DEPARTMENT OF DEFENSE
AND THE SECRETARIES OF THE ARMED SERVICES TO ADMINISTER A MORE
CENTRALIZED PROGRAM. IBID. CONFUSION EXISTED CONCERNING THE CRITERIA
AND PROCEDURES TO BE EMPLOYED BY THESE BOARDS. IBID. EVENTUALLY,
GENERALIZED PROCEDURES WERE ESTABLISHED WITH THE APPROVAL OF THE
SECRETARIES WHICH PROVIDED IN PART THAT BEFORE THE IERB "THE HEARING
WILL BE CONDUCTED IN SUCH MANNER AS TO PROTECT FROM DISCLOSURE
INFORMATION AFFECTING THE NATIONAL SECURITY OR TENDING TO COMPROMISE
INVESTIGATIVE SOURCES OR METHODS .. ."" SEE "PROCEDURES GOVERNING
APPEALS TO THE INDUSTRIAL EMPLOYMENT REVIEW BOARD, DATED 7 NOVEMBER
1949," NOTE 4, SUPRA, SEC. 4(C). AFTER ABOLITION OF THESE BOARDS IN
1953, AND THE ESTABLISHMENT OF THE IPSB, VARIOUS NEW SETS OF PROCEDURES
WERE PROMULGATED WHICH LIKEWISE PROVIDED FOR THE NON-DISCLOSURE OF
INFORMATION "TENDING TO COMPROMISE INVESTIGATIVE SOURCES OR METHODS OR
THE IDENTITY OF CONFIDENTIAL INFORMANTS." (FN23)
ALL OF THESE PROGRAMS AND PROCEDURES WERE ESTABLISHED BY DIRECTIVES
ISSUED BY THE SECRETARY OF DEFENSE OR THE SECRETARIES OF THE ARMY,
NAVY, AND AIR FORCE. NONE WAS THE CREATURE OF STATUTE OR OF AN
EXECUTIVE ORDER ISSUED BY THE PRESIDENT. (FN24)
RESPONDENTS MAINTAIN THAT CONGRESSIONAL AUTHORIZATION TO THE
PRESIDENT TO FASHION A PROGRAM WHICH DENIES SECURITY CLEARANCE TO
PERSONS ON THE BASIS OF CONFIDENTIAL INFORMATION WHICH THE INDIVIDUALS
HAVE NO OPPORTUNITY TO CONFRONT AND TEST IS UNNECESSARY BECAUSE THE
PRESIDENT HAS INHERENT AUTHORITY TO MAINTAIN MILITARY SECRETS
INVIOLATE. AND RESPONDENTS ARGUE THAT IF A STATUTORY GRANT OF POWER IS
NECESSARY, SUCH A GRANT CAN READILY BE INFERRED "AS A NECESSARILY
IMPLICIT AUTHORITY FROM THE GENERALIZED PROVISIONS" OF LEGISLATION
DEALING WITH THE ARMED SERVICES. BUT THE QUESTION WHICH MUST BE
DECIDED IN THIS CASE IS NOT WHETHER THE PRESIDENT HAS INHERENT POWER TO
ACT OR WHETHER CONGRESS HAS GRANTED HIM SUCH A POWER; RATHER, IT IS
WHETHER EITHER THE PRESIDENT OR CONGRESS EXERCISED SUCH A POWER AND
DELEGATED TO THE DEPARTMENT OF DEFENSE THE AUTHORITY TO FASHION SUCH A
PROGRAM.
CERTAIN PRINCIPLES HAVE REMAINED RELATIVELY IMMUTABLE IN OUR
JURISPRUDENCE. ONE OF THESE IS THAT WHERE GOVERNMENTAL ACTION
SERIOUSLY INJURES AN INDIVIDUAL, AND THE REASONABLENESS OF THE ACTION
DEPENDS ON FACT FINDINGS, THE EVIDENCE USED TO PROVE THE GOVERNMENT'S
CASE MUST BE DISCLOSED TO THE INDIVIDUAL SO THAT HE HAS AN OPPORTUNITY
TO SHOW THAT IT IS UNTRUE. WHILE THIS IS IMPORTANT IN THE CASE OF
DOCUMENTARY EVIDENCE, IT IS EVEN MORE IMPORTANT WHERE THE EVIDENCE
CONSISTS OF THE TESTIMONY OF INDIVIDUALS WHOSE MEMORY MIGHT BE FAULTY
OR WHO, IN FACT, MIGHT BE PERJURERS OR PERSONS MOTIVATED BY MALICE,
VINDICTIVENESS, INTOLERANCE, PREJUDICE, OR JEALOUSY. WE HAVE
FORMALIZED THESE PROTECTIONS IN THE REQUIREMENTS OF CONFRONTATION AND
CROSS-EXAMINATION. THEY HAVE ANCIENT ROOTS. (FN25) THEY FIND
EXPRESSION IN THE SIXTH AMENDMENT WHICH PROVIDES THAT IN ALL CRIMINAL
CASES THE ACCUSED SHALL ENJOY THE RIGHT "TO BE CONFRONTED WITH THE
WITNESSES AGAINST HIM." THIS COURT HAS BEEN ZEALOUS TO PROTECT THESE
RIGHTS FROM EROSION. IT HAS SPOKEN OUT NOT ONLY IN CRIMINAL CASES,
E.G., MATTOX V. UNITED STATES, 156 U.S. 237, 242-244; KIRBY V. UNITED
STATES, 174 U.S. 47; MOTES V. UNITED STATES, 178 U.S. 458, 474; IN RE
OLIVER, 333 U.S. 257, 273, BUT ALSO IN ALL TYPES OF CASES WHERE
ADMINISTRATIVE AND REGULATORY ACTIONS WERE UNDER SCRUTINY. E.G.,
SOUTHERN R. CO. V. VIRGINIA, 290 U.S. 190; OHIO BELL TELEPHONE CO. V.
PUBLIC UTILITIES COMMISSION, 301 U.S. 292; MORGAN V. UNITED STATES, 304
U.S. 1, 19; CARTER V. KUBLER, 320 U.S. 243; REILLY V. PINKUS, 338 U.S.
269. NOR, AS IT HAS BEEN POINTED OUT, HAS CONGRESS IGNORED THESE
FUNDAMENTAL REQUIREMENTS IN ENACTING REGULATORY LEGISLATION. JOINT
ANTI-FASCIST COMMITTEE V. MCGRATH, 341 U.S. 168-169 (CONCURRING
OPINION).
PROFESSOR WIGMORE, COMMENTING ON THE IMPORTANCE OF CROSS-EXAMINATION,
STATES IN HIS TREATISE, 5 WIGMORE ON EVIDENCE (3D ED. 1940) SEC. 1367:
"FOR TWO CENTURIES PAST, THE POLICY OF THE ANGLO-AMERICAN SYSTEM OF
EVIDENCE HAS BEEN TO REGARD THE NECESSITY OF TESTING BY CROSS
EXAMINATION AS A VITAL FEATURE OF THE LAW. THE BELIEF THAT NO
SAFEGUARD FOR TESTING THE VALUE OF HUMAN STATEMENTS IS COMPARABLE TO
THAT FURNISHED BY CROSS-EXAMINATION, AND THE CONVICTION THAT NO
STATEMENT (UNLESS BY SPECIAL EXCEPTION) SHOULD BE USED AS TESTIMONY
UNTIL IT HAS BEEN PROBED AND SUBLIMATED BY THAT TEST, HAS FOUND
INCREASING STRENGTH IN LENGTHENING EXPERIENCE."
LITTLE NEED BE ADDED TO THIS INCISIVE SUMMARY STATEMENT EXCEPT TO
POINT OUT THAT UNDER THE PRESENT CLEARANCE PROCEDURES NOT ONLY IS THE
TESTIMONY OF ABSENT WITNESSES ALLOWED TO STAND WITHOUT THE PROBING
QUESTIONS OF THE PERSON UNDER ATTACK WHICH OFTEN UNCOVER
INCONSISTENCIES, LAPSES OF RECOLLECTION, AND BIAS, (FN26) BUT, IN
ADDITION, EVEN THE MEMBERS OF THE CLEARANCE BOARDS DO NOT SEE THE
INFORMANTS OR KNOW THEIR IDENTITIES, BUT NORMALLY RELY ON AN
INVESTIGATOR'S SUMMARY REPORT OF WHAT THE INFORMANT SAID WITHOUT EVEN
EXAMINING THE INVESTIGATOR PERSONALLY. (FN27)
WE MUST DETERMINE AGAINST THIS BACKGROUND, WHETHER THE PRESIDENT OR
CONGRESS HAS DELEGATED TO THE DEPARTMENT OF DEFENSE THE AUTHORITY TO BY
PASS THESE TRADITIONAL AND WELL-RECOGNIZED SAFEGUARDS IN AN INDUSTRIAL
SECURITY CLEARANCE PROGRAM WHICH CAN OPERATE TO INJURE INDIVIDUALS
SUBSTANTIALLY BY DENYING TO THEM THE OPPORTUNITY TO FOLLOW CHOSEN
PRIVATE PROFESSIONS. RESPONDENTS CITE TWO EXECUTIVE ORDERS WHICH THEY
BELIEVE SHOW PRESIDENTIAL DELEGATION. THE FIRST, EXEC. ORDER NO.
10290, 16 FED. REG. 9795, WAS ENTITLED "PRESCRIBING REGULATIONS
ESTABLISHING MINIMUM STANDARDS FOR THE CLASSIFICATION, TRANSMISSION,
AND HANDLING, BY DEPARTMENTS AND AGENCIES OF THE EXECUTIVE BRANCH, OF
OFFICIAL INFORMATION WHICH REQUIRES SAFEGUARDING IN THE INTEREST OF THE
SECURITY OF THE UNITED STATES." IT PROVIDED, IN RELEVANT PART:
"PART V - DISSEMINATION OF CLASSIFIED
SECURITY
INFORMATION
"29. GENERAL. A. NO PERSON SHALL BE ENTITLED TO KNOWLEDGE OR
POSSESSION OF, OR ACCESS TO, CLASSIFIED SECURITY INFORMATION SOLELY BY
VIRTUE OF HIS OFFICE OR POSITION.
"B. CLASSIFIED SECURITY INFORMATION SHALL NOT BE DISCUSSED WITH OR
IN THE PRESENCE OF UNAUTHORIZED PERSONS, AND THE LATTER SHALL NOT BE
PERMITTED TO INSPECT OR HAVE ACCESS TO SUCH INFORMATION.
"C. THE HEAD OF EACH AGENCY SHALL ESTABLISH A SYSTEM FOR CONTROLLING
THE DISSEMINATION OF CLASSIFIED SECURITY INFORMATION ADEQUATE TO THE
NEEDS OF HIS AGENCY.
"30. LIMITATIONS ON DISSEMINATION. - A. WITHIN THE EXECUTIVE
BRANCH. THE DISSEMINATION OF CLASSIFIED SECURITY INFORMATION SHALL BE
LIMITED TO PERSONS WHOSE OFFICIAL DUTIES REQUIRE KNOWLEDGE OF SUCH
INFORMATION. SPECIAL MEASURES SHALL BE EMPLOYED TO LIMIT THE
DISSEMINATION OF 'TOP SECRET' SECURITY INFORMATION TO THE ABSOLUTE
MINIMUM. ONLY THAT PORTION OF 'TOP SECRET' SECURITY INFORMATION
NECESSARY TO THE PROPER PLANNING AND APPROPRIATE ACTION OF ANY
ORGANIZATIONAL UNIT OR INDIVIDUAL SHALL BE RELEASED TO SUCH UNIT OR
INDIVIDUAL.
"B. OUTSIDE THE EXECUTIVE BRANCH. CLASSIFIED SECURITY INFORMATION
SHALL NOT BE DISSEMINATED OUTSIDE THE EXECUTIVE BRANCH BY ANY PERSON OR
AGENCY HAVING ACCESS THERETO OR KNOWLEDGE THEREOF EXCEPT UNDER
CONDITIONS AND THROUGH CHANNELS AUTHORIZED BY THE HEAD OF THE
DISSEMINATING AGENCY, EVEN THOUGH SUCH PERSON OR AGENCY MAY HAVE BEEN
SOLELY OR PARTLY RESPONSIBLE FOR ITS PRODUCTION."
THE SECOND, EXEC. ORDER NO. 10501, 18 FED. REG. 7049, WHICH REVOKED
EXEC. ORDER NO. 10290, IS ENTITLED "SAFEGUARDING OFFICIAL INFORMATION
IN THE INTERESTS OF THE DEFENSE OF THE UNITED STATES" AND PROVIDES IN
RELEVANT PART:
"SEC. 7. ACCOUNTABILITY AND DISSEMINATION.
* * * * *
"(B) DISSEMINATION OUTSIDE THE EXECUTIVE BRANCH. CLASSIFIED DEFENSE
INFORMATION SHALL NOT BE DISSEMINATED OUTSIDE THE EXECUTIVE BRANCH
EXCEPT UNDER CONDITIONS AND THROUGH CHANNELS AUTHORIZED BY THE HEAD OF
THE DISSEMINATING DEPARTMENT OR AGENCY, EVEN THOUGH THE PERSON OR
AGENCY TO WHICH DISSEMINATION OF SUCH INFORMATION IS PROPOSED TO BE
MADE MAY HAVE BEEN SOLELY OR PARTLY RESPONSIBLE FOR ITS PRODUCTION."
CLEARLY, NEITHER OF THESE ORDERS EMPOWERS ANY EXECUTIVE AGENCY TO
FASHION SECURITY PROGRAMS WHEREBY PERSONS ARE DEPRIVED OF THEIR PRESENT
CIVILIAN EMPLOYMENT AND OF THE OPPORTUNITY OF CONTINUED ACTIVITY IN
THEIR CHOSEN PROFESSIONS WITHOUT BEING ACCORDED THE CHANCE TO CHALLENGE
EFFECTIVELY THE EVIDENCE AND TESTIMONY UPON WHICH AN ADVERSE SECURITY
DETERMINATION MIGHT REST. (FN28)
TURNING TO THE LEGISLATIVE ENACTMENTS WHICH MIGHT BE DEEMED AS
DELEGATING AUTHORITY TO THE DEPARTMENT OF DEFENSE TO FASHION PROGRAMS
UNDER WHICH PERSONS MAY BE SERIOUSLY RESTRAINED IN THEIR EMPLOYMENT
OPPORTUNITIES THROUGH A DENIAL OF CLEARANCE WITHOUT THE SAFEGUARDS OF
CROSS-EXAMINATION AND CONFRONTATION, WE NOTE THE GOVERNMENT'S OWN
ASSERTION, MADE IN ITS BRIEF, THAT "WITH PETITIONER'S CONTENTION THAT
THE INDUSTRIAL SECURITY PROGRAM IS NOT EXPLICITLY AUTHORIZED BY STATUTE
WE MAY READILY AGREE .. ."" THE FIRST PROFFERED STATUTE IS THE
NATIONAL SECURITY ACT OF 1947, AS AMENDED, 5 U.S.C. SEC. 171 ET SEQ.
THAT ACT CREATED THE DEPARTMENT OF DEFENSE AND GAVE TO THE SECRETARY OF
DEFENSE AND THE SECRETARIES OF THE ARMED SERVICES THE AUTHORITY TO
ADMINISTER THEIR DEPARTMENTS. NOWHERE IN THE ACT, OR ITS AMENDMENTS,
IS THERE FOUND SPECIFIC AUTHORITY TO CREATE A CLEARANCE PROGRAM SIMILAR
TO THE ONE NOW IN EFFECT.
ANOTHER ACT CITED BY RESPONDENTS IS THE ARMED SERVICE PROCUREMENT ACT
OF 1947, AS AMENDED. IT PROVIDES IN 10 U.S.C. SEC. 2304 THAT:
"(A) PURCHASES OF AND CONTRACTS FOR PROPERTY OR SERVICES COVERED BY
THIS CHAPTER SHALL BE MADE BY FORMAL ADVERTISING. HOWEVER, THE HEAD OF
AN AGENCY MAY NEGOTIATE SUCH A PURCHASE OR CONTRACT, IF:
* * * * *
"(12) THE PURCHASE OR CONTRACT IS FOR PROPERTY OR SERVICES WHOSE
PROCUREMENT HE DETERMINES SHOULD NOT BE PUBLICLY DISCLOSED BECAUSE OF
THEIR CHARACTER, INGREDIENTS, OR COMPONENTS."
IT FURTHER PROVIDES IN 10 U.S.C. SEC. 2306:
"(A) THE COST-PLUS-A-PERCENTAGE-OF-COST SYSTEM OF CONTRACTING MAY
NOT BE USED. SUBJECT TO THIS LIMITATION AND SUBJECT TO SUBSECTIONS (B)
(E), THE HEAD OF AN AGENCY MAY, IN NEGOTIATING CONTRACTS UNDER SECTION
2304 OF THIS TITLE, MAKE ANY KIND OF CONTRACT THAT HE CONSIDERS WILL
PROMOTE THE BEST INTERESTS OF THE UNITED STATES."
RESPONDENTS ARGUE THAT THESE STATUTES, TOGETHER WITH 18 U.S.C. SEC.
798, WHICH MAKES IT A CRIME WILLFULLY AND KNOWINGLY TO COMMUNICATE TO
UNAUTHORIZED PERSONS INFORMATION CONCERNING CRYPTOGRAPHIC OR
INTELLIGENCE ACTIVITIES, AND 50 U.S.C. SEC. 783(B), WHICH MAKES IT A
CRIME FOR AN OFFICER OR EMPLOYEE OF THE UNITED STATES TO COMMUNICATE
CLASSIFIED INFORMATION TO AGENTS OF FOREIGN GOVERNMENTS OR OFFICERS AND
MEMBERS OF "COMMUNIST ORGANIZATIONS," REFLECT A RECOGNITION BY CONGRESS
OF THE EXISTENCE OF MILITARY SECRETS AND THE NECESSITY OF KEEPING THOSE
SECRETS INVIOLATE.
ALTHOUGH THESE STATUTES MAKE IT APPARENT THAT CONGRESS RECOGNIZES THE
EXISTENCE OF MILITARY SECRETS, THEY HARDLY CONSTITUTE AN AUTHORIZATION
TO CREATE AN ELABORATE CLEARANCE PROGRAM WHICH EMBODIES PROCEDURES
TRADITIONALLY BELIEVED TO BE INADEQUATE TO PROTECT AFFECTED PERSONS.
(FN29)
LASTLY, THE GOVERNMENT URGES THAT IF WE REFUSE TO ADOPT ITS
"INFERRED" AUTHORIZATION REASONING, NEVERTHELESS, CONGRESSIONAL
RATIFICATION IS APPARENT BY THE CONTINUED APPROPRIATION OF FUNDS TO
FINANCE ASPECTS OF THE PROGRAM FASHIONED BY THE DEPARTMENT OF DEFENSE.
RESPONDENTS REFER US TO HEARINGS BEFORE THE HOUSE COMMITTEE ON
APPROPRIATIONS ON DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1956, 84TH
CONG., 1ST SESS. 774-781. AT THOSE HEARINGS, THE COMMITTEE WAS ASKED
TO APPROVE THE APPROPRIATION OF FUNDS TO FINANCE A PROGRAM UNDER WHICH
REIMBURSEMENT FOR LOST WAGES WOULD BE MADE TO EMPLOYEES OF GOVERNMENT
CONTRACTORS WHO WERE TEMPORARILY DENIED, BUT LATER GRANTED, SECURITY
CLEARANCE. APPARENTLY, SUCH REIMBURSEMENTS HAD BEEN MADE PRIOR TO THAT
TIME OUT OF GENERAL APPROPRIATIONS. ALTHOUGH A SPECIFIC APPROPRIATION
WAS EVENTUALLY MADE FOR THIS PURPOSE, IT COULD NOT CONCEIVABLY
CONSTITUTE A RATIFICATION OF THE HEARING PROCEDURES, FOR THE PROCEDURES
WERE IN NO WAY INVOLVED IN THE SPECIAL REIMBURSEMENT PROGRAM. (FN30)
RESPONDENTS' ARGUMENT ON DELEGATION RESOLVES ITSELF INTO THE
FOLLOWING: THE PRESIDENT, IN GENERAL TERMS, HAS AUTHORIZED THE
DEPARTMENT OF DEFENSE TO CREATE PROCEDURES TO RESTRICT THE
DISSEMINATION OF CLASSIFIED INFORMATION AND HAS APPARENTLY ACQUIESCED
IN THE ELABORATE PROGRAM ESTABLISHED BY THE SECRETARY OF DEFENSE EVEN
WHERE APPLICATION OF THE PROGRAM RESULTS IN RESTRAINTS ON TRADITIONAL
FREEDOMS WITHOUT THE USE OF LONG-REQUIRED PROCEDURAL PROTECTIONS.
SIMILARLY, CONGRESS, ALTHOUGH IT HAS NOT ENACTED SPECIFIC LEGISLATION
RELATING TO CLEARANCE PROCEDURES TO BE UTILIZED FOR INDUSTRIAL WORKERS,
HAS ACQUIESCED IN THE EXISTING DEPARTMENT OF DEFENSE PROGRAM AND HAS
RATIFIED IT BY SPECIFICALLY APPROPRIATING FUNDS TO FINANCE ONE ASPECT
OF IT.
IF ACQUIESCENCE OR IMPLIED RATIFICATION WERE ENOUGH TO SHOW
DELEGATION OF AUTHORITY TO TAKE ACTIONS WITHIN THE AREA OF QUESTIONABLE
CONSTITUTIONALITY, WE MIGHT AGREE WITH RESPONDENTS THAT DELEGATION HAS
BEEN SHOWN HERE. IN MANY CIRCUMSTANCES, WHERE THE GOVERNMENT'S FREEDOM
TO ACT IS CLEAR, AND THE CONGRESS OR THE PRESIDENT HAS PROVIDED GENERAL
STANDARDS OF ACTION AND HAS ACQUIESCED IN ADMINISTRATIVE
INTERPRETATION, DELEGATION MAY BE INFERRED. THUS, EVEN IN THE ABSENCE
OF SPECIFIC DELEGATION, WE HAVE NO DIFFICULTY IN FINDING, AS WE DO,
THAT THE DEPARTMENT OF DEFENSE HAS BEEN AUTHORIZED TO FASHION AND APPLY
AN INDUSTRIAL CLEARANCE PROGRAM WHICH AFFORDS AFFECTED PERSONS THE
SAFEGUARDS OF CONFRONTATION AND CROSS-EXAMINATION. BUT THIS CASE DOES
NOT PRESENT THAT SITUATION. WE DEAL HERE WITH SUBSTANTIAL RESTRAINTS
ON EMPLOYMENT OPPORTUNITIES OF NUMEROUS PERSONS IMPOSED IN A MANNER
WHICH IS IN CONFLICT WITH OUR LONG-ACCEPTED NOTIONS OF FAIR
PROCEDURES. (FN31) BEFORE WE ARE ASKED TO JUDGE WHETHER, IN THE
CONTEXT OF SECURITY CLEARANCE CASES, A PERSON MAY BE DEPRIVED OF THE
RIGHT TO FOLLOW HIS CHOSEN PROFESSION WITHOUT FULL HEARINGS WHERE
ACCUSERS MAY BE CONFRONTED, IT MUST BE MADE CLEAR THAT THE PRESIDENT OR
CONGRESS, WITHIN THEIR RESPECTIVE CONSTITUTIONAL POWERS, SPECIFICALLY
HAS DECIDED THAT THE IMPOSED PROCEDURES ARE NECESSARY AND WARRANTED AND
HAS AUTHORIZED THEIR USE. CF. WATKINS V. UNITED STATES, 354 U.S. 178;
SCULL V. VIRGINIA, 359 U.S. 344. SUCH DECISIONS CANNOT BE ASSUMED BY
ACQUIESCENCE OR NON-ACTION. KENT V. DULLES, 357 U.S. 116; PETERS V.
HOBBY, 349 U.S. 331; EX PARTE ENDO, 323 U.S. 283, 301-302. THEY MUST
BE MADE EXPLICITLY NOT ONLY TO ASSURE THAT INDIVIDUALS ARE NOT DEPRIVED
OF CHERISHED RIGHTS UNDER PROCEDURES NOT ACTUALLY AUTHORIZED, SEE
PETERS V. HOBBY, SUPRA, BUT ALSO BECAUSE EXPLICIT ACTION, ESPECIALLY IN
AREAS OF DOUBTFUL CONSTITUTIONALITY, REQUIRES CAREFUL AND PURPOSEFUL
CONSIDERATION BY THOSE RESPONSIBLE FOR ENACTING AND IMPLEMENTING OUR
LAWS. WITHOUT EXPLICIT ACTION BY LAWMAKERS, DECISIONS OF GREAT
CONSTITUTIONAL IMPORT AND EFFECT WOULD BE RELEGATED BY DEFAULT TO
ADMINISTRATORS WHO, UNDER OUR SYSTEM OF GOVERNMENT, ARE NOT ENDOWED
WITH AUTHORITY TO DECIDE THEM.
WHERE ADMINISTRATIVE ACTION HAS RAISED SERIOUS CONSTITUTIONAL
PROBLEMS, THE COURT HAS ASSUMED THAT CONGRESS OR THE PRESIDENT INTENDED
TO AFFORD THOSE AFFECTED BY THE ACTION THE TRADITIONAL SAFEGUARDS OF
DUE PROCESS. SEE, E.G., THE JAPANESE IMMIGRANT CASE, 189 U.S. 86, 101;
DISMUKE V. UNITED STATES, 297 U.S. 167, 172; EX PARTE ENDO, 323 U.S.
283, 299-300; AMERICAN POWER CO. V. SECURITIES AND EXCHANGE COMM'N, 329
U.S. 90, 107-108; HANNEGAN V. ESQUIRE, 327 U.S. 146, 156; WONG YANG
SUNG V. MCGRATH, 339 U.S. 33, 49. CF. ANNISTON MFG. CO. V. DAVIS, 301
U.S. 337; UNITED STATES V. RUMELY, 345 U.S. 41. THESE CASES REFLECT
THE COURT'S CONCERN THAT TRADITIONAL FORMS OF FAIR PROCEDURE NOT BE
RESTRICTED BY IMPLICATION OR WITHOUT THE MOST EXPLICIT ACTION BY THE
NATION'S LAWMAKERS, EVEN IN AREAS WHERE IT IS POSSIBLE THAT THE
CONSTITUTION PRESENTS NO INHIBITION.
IN THE INSTANT CASE, PETITIONER'S WORK OPPORTUNITIES HAVE BEEN
SEVERELY LIMITED ON THE BASIS OF A FACT DETERMINATION RENDERED AFTER A
HEARING WHICH FAILED TO COMPORT WITH OUR TRADITIONAL IDEAS OF FAIR
PROCEDURE. THE TYPE OF HEARING WAS THE PRODUCT OF ADMINISTRATIVE
DECISION NOT EXPLICITLY AUTHORIZED BY EITHER CONGRESS OR THE
PRESIDENT. WHETHER THOSE PROCEDURES UNDER THE CIRCUMSTANCES COMPORT
WITH THE CONSTITUTION WE DO NOT DECIDE. NOR DO WE DECIDE WHETHER THE
PRESIDENT HAS INHERENT AUTHORITY TO CREATE SUCH A PROGRAM, WHETHER
CONGRESSIONAL ACTION IS NECESSARY, OR WHAT THE LIMITS ON EXECUTIVE OR
LEGISLATIVE AUTHORITY MAY BE. WE DECIDE ONLY THAT IN THE ABSENCE OF
EXPLICIT AUTHORIZATION FROM EITHER THE PRESIDENT OR CONGRESS THE
RESPONDENTS WERE NOT EMPOWERED TO DEPRIVE PETITIONER OF HIS JOB IN A
PROCEEDING IN WHICH HE WAS NOT AFFORDED THE SAFEGUARDS OF CONFRONTATION
AND CROSS-EXAMINATION.
ACCORDINGLY, THE JUDGMENT IS REVERSED AND THE CASE IS REMANDED TO THE
DISTRICT COURT FOR PROCEEDINGS NOT INCONSISTENT HEREWITH. IT IS SO
ORDERED.
FN1 PETITIONER WAS GIVEN A CONFIDENTIAL CLEARANCE BY THE ARMY ON
AUGUST 9, 1949, A TOP SECRET CLEARANCE BY THE ASSISTANT CHIEF OF STAFF
G-2, MILITARY DISTRICT OF WASHINGTON ON NOVEMBER 9, 1949, AND A TOP
SECRET CLEARANCE BY THE AIR MATERIEL COMMAND ON FEBRUARY 3, 1950.
FN2 ERCO DID CLASSIFIED CONTRACT WORK FOR THE VARIOUS SERVICES. IN
1951, IN CONNECTION WITH A CLASSIFIED RESEARCH PROJECT FOR THE NAVY, IT
ENTERED INTO A SECURITY AGREEMENT IN WHICH IT UNDERTOOK "TO PROVIDE AND
MAINTAIN A SYSTEM OF SECURITY CONTROLS WITHIN ITS .. OWWN
ORGANIZATION IN ACCORDANCE WITH THE REQUIREMENTS OF THE DEPARTMENT OF
DEFENSE INDUSTRIAL SECURITY MANUAL .. ."" THE MANUAL, IN TURN,
PROVIDED IN PARAGRAPHS 4(E) AND 6:
"THE CONTRACTOR SHALL EXCLUDE (THIS DOES NOT IMPLY THE DISMISSAL OR
SEPARATION OF ANY EMPLOYEE) FROM ANY PART OF ITS PLANTS, FACTORIES, OR
SITES AT WHICH WORK FOR ANY MILITARY DEPARTMENT IS BEING PERFORMED, ANY
PERSON OR PERSONS WHOM THE SECRETARY OF THE MILITARY DEPARTMENT
CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, IN THE INTEREST OF
SECURITY, MAY DESIGNATE IN WRITING.
* * * * *
"NO INDIVIDUAL SHALL BE PERMITTED TO HAVE ACCESS TO CLASSIFIED MATTER
UNLESS CLEARED BY THE GOVERNMENT OR THE CONTRACTOR, AS THE CASE MAY BE,
AS SPECIFIED IN THE FOLLOWING SUBPARAGRAPHS AND THEN HE WILL BE GIVEN
ACCESS TO SUCH MATTER ONLY TO THE EXTENT OF HIS CLEARANCE .. .""
FN3 THE PSB WAS CREATED PURSUANT TO AN INTERIM AGREEMENT DATED
OCTOBER 9, 1947, BETWEEN THE ARMY, NAVY, AND AIR FORCE AND PURSUANT TO
A MEMORANDUM OF AGREEMENT BETWEEN THE PROVOST MARSHAL GENERAL AND THE
AIR PROVOST MARSHAL, DATED MARCH 17, 1948. "IT WAS A THREE-MAN BOARD,
WITH ONE REPRESENTATIVE FROM EACH OF THE MILITARY DEPARTMENTS .. .
ITS FUNCTIONS WERE TO GRANT OR DENY CLEARANCE FOR EMPLOYMENT ON
AERONAUTICAL OR CLASSIFIED CONTRACT WORK WHEN SUCH CONSENT WAS
REQUIRED, AND TO SUSPEND INDIVIDUALS, WHOSE CONTINUED EMPLOYMENT WAS
CONSIDERED INIMICAL TO THE SECURITY INTERESTS OF THE UNITED STATES,
FROM EMPLOYMENT ON CLASSIFIED WORK." REPORT OF THE COMMISSION ON
GOVERNMENT SECURITY, 1957, S. DOC. NO. 64, 85TH CONG., 1ST SESS. 239.
IT ESTABLISHED ITS OWN PROCEDURES WHICH WERE APPROVED BY THE
SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE. SEE "PROCEDURES
GOVERNING THE ARMY-NAVY-AIR FORCE PERSONNEL SECURITY BOARD, DATED 19
JUNE 1950."
FN4 THE IERB WAS A FOUR-MEMBER BOARD WHICH WAS GIVEN JURISDICTION TO
HEAR AND REVIEW APPEALS FROM DECISIONS OF THE PSB. ITS CHARTER, DATED
7 NOVEMBER 1949 AND SIGNED BY THE SECRETARIES OF THE ARMY, NAVY, AND
AIR FORCE, CONTEMPLATED THAT IT WOULD AFFORD HEARINGS TO PERSONS DENIED
CLEARANCE. AND SEE "PROCEDURES GOVERNING APPEALS TO THE INDUSTRIAL
EMPLOYMENT REVIEW BOARD, DATED 7 NOVEMBER 1949."
FN5 THE LETTER READ, IN PART:
"THAT OVER A PERIOD OF YEARS, 1943-1947, AT OR NEAR WASHINGTON, D.C.,
YOU HAVE CLOSELY AND SYMPATHETICALLY ASSOCIATED WITH PERSONS WHO ARE
REPORTED TO BE OR TO HAVE BEEN MEMBERS OF THE COMMUNIST PARTY; THAT
DURING THE PERIOD 1944-1947 YOU ENTERTAINED AND WERE VISITED AT YOUR
HOME BY MILITARY REPRESENTATIVES OF THE RUSSIAN EMBASSY, WASHINGTON,
D.C.; THAT, FURTHER, YOU ATTENDED SOCIAL FUNCTIONS DURING THE PERIOD
1944-1947 AT THE RUSSIAN EMBASSY, WASHINGTON, D.C.; AND ON 7 APRIL 1947
ATTENDED THE SOUTHERN CONFERENCE FOR HUMAN WELFARE, THIRD ANNUAL
DINNER, STATLER HOTEL, WASHINGTON, D.C. (CITED AS COMMUNIST FRONT
ORGANIZATION, CONGRESSIONAL COMMITTEE ON UN-AMERICAN ACTIVITIES)."
FN6 THE BOARDS WERE ABOLISHED PURSUANT TO A MEMORANDUM OF MARCH 27,
1953, ISSUED BY THE SECRETARY OF DEFENSE TO THE SECRETARIES OF THE
ARMY, NAVY, AND AIR FORCE AND TO THE CHAIRMAN OF THE MUNITIONS BOARD.
IT PROVIDED IN PART:
"5. THE DEPARTMENT OF THE ARMY, NAVY AND AIR FORCE SHALL ESTABLISH
SUCH NUMBER OF GEOGRAPHICAL REGIONS WITHIN THE UNITED STATES AS SEEMS
APPROPRIATE TO THE WORK-LOAD IN EACH REGION. THERE SHALL THEN BE
ESTABLISHED WITHIN EACH REGION AN INDUSTRIAL PERSONNEL SECURITY BOARD.
THIS BOARD SHALL CONSIST OF TWO SEPARATE AND DISTINCT DIVISIONS, A
SCREENING DIVISION AND AN APPEAL DIVISION, WITH EQUAL REPRESENTATION OF
THE DEPARTMENTS OF THE ARMY, NAVY AND AIR FORCE ON EACH SUCH DIVISION.
THE APPEAL DIVISION SHALL HAVE JURISDICTION TO HEAR APPEALS FROM THE
DECISION OF THE SCREENING DIVISION AND ITS DECISIONS SHALL BE
DETERMINED BY A MAJORITY VOTE WHICH SHALL BE FINAL, SUBJECT ONLY TO
RECONSIDERATION ON ITS OWN MOTION OR AT THE REQUEST OF THE APPELLANT
FOR GOOD CAUSE SHOWN OR AT THE REQUEST OF THE SECRETARY OF ANY MILITARY
DEPARTMENT."
FN7 THE MEMORANDUM FROM THE SECRETARY OF DEFENSE ALSO PROVIDED:
"6. THE SECRETARIES OF THE ARMY, NAVY AND AIR FORCE, SHALL WITHIN
THIRTY DAYS (30), ESTABLISH SUCH GEOGRAPHICAL REGIONS AND DEVELOP JOINT
UNIFORM STANDARDS, CRITERIA, AND DETAILED PROCEDURES TO IMPLEMENT THE
ABOVE-DESCRIBED PROGRAM. IN DEVELOPING THE STANDARDS, CRITERIA, AND
PROCEDURES, FULL CONSIDERATION SHALL BE GIVEN TO THE RIGHTS OF
INDIVIDUALS, CONSISTENT WITH SECURITY REQUIREMENTS. AFTER APPROVAL BY
THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE, THE STANDARDS,
CRITERIA, AND PROCEDURES SHALL GOVERN THE OPERATIONS OF THE BOARD."
FN8 THE MEMORANDUM PROVIDED:
"7. ALL CASES PENDING BEFORE THE ARMY-NAVY-AIR FORCE PERSONNEL
SECURITY BOARD AND THE INDUSTRIAL EMPLOYMENT REVIEW BOARD SHALL BE
REFERRED FOR ACTION UNDER THIS ORDER TO THE APPROPRIATE INDUSTRIAL
PERSONNEL SECURITY BOARD." FN9 THE MEMORANDUM FURTHER PROVIDED:
"4. THE CRITERIA GOVERNING ACTIONS BY THE INDUSTRIAL EMPLOYMENT
REVIEW BOARD, DATED 7 NOVEMBER 1949, AS REVISED 10 NOVEMBER 1950, AND
APPROVED BY THE SECRETARIES OF THE ARMY, NAVY, AND AIR FORCE, SHALL
GOVERN SECURITY CLEARANCES OF INDUSTRIAL FACILITIES AND INDUSTRIAL
PERSONNEL BY THE SECRETARIES OF THE ARMY, NAVY AND AIR FORCE UNTIL SUCH
TIME AS UNIFORM CRITERIA ARE ESTABLISHED IN CONNECTION WITH PARAGRAPH 6
OF THIS MEMORANDUM."
FN10 SEE NOTE 2, SUPRA.
FN11 THE CHAIRMAN OF THE BOARD OF ERCO, COLONEL HENRY BERLINER,
LATER TESTIFIED BY AFFIDAVIT AS FOLLOWS:
"DURING THE YEAR 1953, AND FOR MANY YEARS PREVIOUS THERETO, I WAS THE
PRINCIPAL STOCKHOLDER OF ENGINEERING AND RESEARCH CORPORATION, A
CORPORATION WHICH HAD ITS PRINCIPAL PLACE OF BUSINESS AT RIVERDALE,
MARYLAND. I WAS ALSO THE CHAIRMAN OF THE BOARD, AND THE PRINCIPAL
EXECUTIVE OFFICER OF THIS CORPORATION.
"I AM ACQUAINTED WITH WILLIAM LEWIS GREENE. PRIOR TO THE MONTH OF
APRIL, 1953, MR. GREENE WAS VICE-PRESIDENT IN CHARGE OF ENGINEERING AND
GENERAL MANAGER OF ENGINEERING AND RESEARCH CORPORATION. HE HAS BEEN
EMPLOYED BY THIS CORPORATION SINCE 1937. HIS PROGRESS IN THE COMPANY
HAS BEEN CONSISTENT. HE WAS ONE OF OUR MOST VALUED AND VALUABLE
EMPLOYEES, AND WAS RESPONSIBLE FOR MUCH OF THE WORK WHICH ENGINEERING
AND RESEARCH CORPORATION WAS DOING. IN APRIL, 1953, THE COMPANY
RECEIVED A LETTER FROM THE SECRETARY OF THE NAVY ADVISING US THAT
CLEARANCE HAD BEEN DENIED TO MR. GREENE AND ADVISING US THAT IT WOULD
BE NECESSARY TO BAR HIM FROM ACCESS TO OUR PLANT. IN VIEW OF HIS
POSITION WITH THE COMPANY, THERE WAS NO WORK WHICH HE COULD DO IN LIGHT
OF THIS DENIAL OF CLEARANCE BY THE NAVY. AS A RESULT, IT WAS NECESSARY
FOR THE COMPANY TO DISCHARGE HIM. THERE WAS NO OTHER REASON FOR MR.
GREENE'S DISCHARGE, AND IN THE ABSENCE OF THE LETTER REFERRED TO, HE
COULD HAVE CONTINUED IN THE EMPLOYMENT OF ENGINEERING AND RESEARCH
CORPORATION INDEFINITELY."
FN12 THE PRESIDENT OF ERCO WROTE TO THE SECRETARY OF THE NAVY AS
FOLLOWS:
"THE HONORABLE R.B. ANDERSON.
"SECRETARY OF THE NAVY.
"WASHINGTON 25, D.C.
"MY DEAR MR. SECRETARY:
"RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF APRIL 17, 1953 IN WHICH
YOU STATE THAT YOU HAVE REVIEWED THE CASE HISTORY FILE ON WILLIAM LEWIS
GREENE AND HAVE CONCLUDED THAT HIS CONTINUED ACCESS TO NAVY CLASSIFIED
SECURITY INFORMATION IS INCONSISTENT WITH THE BEST INTERESTS OF
NATIONAL SECURITY.
"YOU REQUEST THIS COMPANY TO EXCLUDE MR. GREENE FROM OUR PLANTS,
FACTORIES OR SITES AND TO BAR HIM FROM INFORMATION, IN THE INTERESTS OF
PROTECTING NAVY CLASSIFIED PROJECTS AND CLASSIFIED SECURITY
INFORMATION.
"IN ACCORDANCE WITH YOUR REQUEST, PLEASE BE ADVISED THAT SINCE
RECEIPT OF YOUR LETTER THIS COMPANY HAS EXCLUDED MR. GREENE FROM ANY
PART OF OUR PLANTS, FACTORIES OR SITES AND BARRED HIM ACCESS TO ALL
CLASSIFIED SECURITY INFORMATION.
"FOR YOUR FURTHER INFORMATION, MR. GREENE TENDERED HIS RESIGNATION AS
AN OFFICER OF THIS CORPORATION AND HAS LEFT THE PLANT. WE SHALL HAVE
NO FURTHER CONTACT WITH HIM UNTIL HIS STATUS IS CLARIFIED ALTHOUGH WE
HAVE NOT YET FORMALLY ACCEPTED HIS RESIGNATION.
"MR. GREENE IS VICE PRESIDENT OF THIS COMPANY IN CHARGE OF
ENGINEERING. HIS KNOWLEDGE, EXPERIENCE AND EXECUTIVE ABILITY HAVE
PROVEN OF INESTIMABLE VALUE IN THE PAST. THE LOSS OF HIS SERVICES AT
THIS TIME IS A SERIOUS BLOW TO COMPANY OPERATIONS. ACCORDINGLY, WE
SHOULD LIKE THE PRIVILEGE OF A PERSONAL CONFERENCE TO DISCUSS THE
MATTER FURTHER.
"FURTHERMORE, YOU STATE THAT YOU ARE REFERRING THE CASE TO THE
SECRETARY OF DEFENSE RECOMMENDING THAT THE INDUSTRIAL EMPLOYMENT REVIEW
BOARD'S DECISION OF JANUARY 29, 1952 BE OVERRULED. IF IT IS
APPROPRIATE, WE SHOULD LIKE VERY MUCH TO HAVE THE PRIVILEGE OF
DISCUSSING THE MATTER WITH THE SECRETARY OF DEFENSE.
"PLEASE ACCEPT OUR THANKS FOR ANY OFFICIAL COURTESIES WHICH YOU ARE
IN A POSITION TO EXTEND.
"RESPECTFULLY YOURS,
"ENGINEERING AND
RESEARCH CORPORATION
"BY /S/ L.A. WELLS"
FN13 ON MAY 4, 1953, PURSUANT TO THE MEMORANDUM OF THE SECRETARY OF
DEFENSE DATED MARCH 27, 1953, SEE NOTE 6, SUPRA, THE SECRETARIES OF THE
MILITARY DEPARTMENTS ESTABLISHED REGIONAL INDUSTRIAL PERSONNEL SECURITY
BOARDS GOVERNED BY GENERALIZED STANDARDS, CRITERIA, AND PROCEDURES.
FN14 THE SPECIFICATIONS WERE CONTAINED IN A LETTER TO PETITIONER'S
COUNSEL DATED APRIL 9, 1954, WHICH WAS SENT NINETEEN DAYS BEFORE THE
HEARING. THAT LETTER PROVIDED IN PART:
"SECURITY CONSIDERATIONS PERMIT DISCLOSURE OF THE FOLLOWING
INFORMATION THAT HAS THUS FAR RESULTED IN THE DENIAL OF CLEARANCE TO
MR. GREENE:
"1. DURING 1942 SUBJECT WAS A MEMBER OF THE WASHINGTON BOOK SHOP
ASSOCIATION, AN ORGANIZATION THAT HAS BEEN OFFICIALLY CITED BY THE
ATTORNEY GENERAL OF THE UNITED STATES AS COMMUNIST AND SUBVERSIVE.
"2. SUBJECT'S FIRST WIFE, JEAN HINTON GREENE, TO WHOM HE WAS MARRIED
FROM APPROXIMATELY DECEMBER 1942 TO APPROXIMATELY DECEMBER 1947, WAS AN
ARDENT COMMUNIST DURING THE GREATER PART OF THE PERIOD OF THE
MARRIAGE.
"3. DURING THE PERIOD OF SUBJECT'S FIRST MARRIAGE HE AND HIS WIFE
HAD MANY COMMUNIST PUBLICATIONS IN THEIR HOME, INCLUDING THE 'DAILY
WORKER'; 'SOVIET RUSSIA TODAY'; 'IN FACT'; AND KARL MARX'S 'DAS
KAPITAL.'
"4. MANY APPARENTLY RELIABLE WITNESSES HAVE TESTIFIED THAT DURING
THE PERIOD OF SUBJECT'S FIRST MARRIAGE HIS PERSONAL POLITICAL
SYMPATHIES WERE IN GENERAL ACCORD WITH THOSE OF HIS WIFE, IN THAT HE
WAS SYMPATHETIC TOWARDS RUSSIA; FOLLOWED THE COMMUNIST PARTY 'LINE';
PRESENTED 'FELLOW-TRAVELLER' ARGUMENTS; WAS APPARENTLY INFLUENCED BY
'JEAN'S WILD THEORIES'; ETC. (NOTHING IN THE RECORD ESTABLISHES THAT
ANY WITNESS "TESTIFIED" AT ANY HEARING ON THESE SUBJECTS AND EVERYTHING
IN THE RECORD INDICATES THAT THEY COULD HAVE DONE NO MORE THAN MAKE
SUCH STATEMENTS TO INVESTIGATIVE OFFICERS.)
"5. IN ABOUT 1946 SUBJECT INVESTED APPROXIMATELY $1000. IN THE
METROPOLITAN BROADCASTING CORPORATION AND LATER BECAME A DIRECTOR OF
ITS RADIO STATION WQQW. IT HAS BEEN RELIABLY REPORTED THAT MANY OF THE
STOCKHOLDERS OF THE CORPORATION WERE COMMUNISTS OR PRO-COMMUNISTS AND
THAT THE NEWS COVERAGE AND RADIO PROGRAMS OF STATION WQQW FREQUENTLY
PARALLELED THE COMMUNIST PARTY 'LINE.' (THIS STATION IS NOW STATION
WGMS, WASHINGTON'S "GOOD MUSIC STATION." PETITIONER STATED THAT HE
INVESTED MONEY IN THE STATION BECAUSE HE LIKED CLASSICAL MUSIC AND HE
CONSIDERED IT A GOOD INVESTMENT.)
"6. ON 7 APRIL 1947 SUBJECT AND HIS WIFE JEAN ATTENDED THE THIRD
ANNUAL DINNER OF THE SOUTHERN CONFERENCE FOR HUMAN WELFARE, AN
ORGANIZATION THAT HAS BEEN OFFICIALLY CITED AS A COMMUNIST FRONT.
(THIS DINNER WAS ALSO ATTENDED BY MANY WASHINGTON NOTABLES, INCLUDING
SEVERAL MEMBERS OF THIS COURT.)
"7. BEGINNING ABOUT 1942 AND CONTINUING FOR SEVERAL YEARS THEREAFTER
SUBJECT MAINTAINED SYMPATHETIC ASSOCIATIONS WITH VARIOUS OFFICIALS OF
THE SOVIET EMBASSY, INCLUDING MAJOR CONSTANTINE I. OVCHINNIKOV, COL.
PAVEL F. BEREZIN, MAJOR PAVEL N. ASSEEV, COL. ILIA M. SARAEV, AND COL.
ANATOLY Y. GOLKOVSKY. (HIGH-LEVEL EXECUTIVES OF ERCO, AS ABOVE NOTED,
TESTIFIED THAT THESE ASSOCIATIONS WERE CARRIED ON TO SECURE BUSINESS
FOR THE CORPORATION.)
"8. DURING 1946 AND 1947 SUBJECT HAD FREQUENT SYMPATHETIC
ASSOCIATION WITH DR. VASO SYRZENTIC OF THE YUGOSLAV EMBASSY. DR.
SYRZENTIC HAS BEEN IDENTIFIED AS AN AGENT OF THE INTERNATIONAL
COMMUNIST PARTY. (PETITIONER TESTIFIED THAT HE MET THIS INDIVIDUAL
ONCE IN CONNECTION WITH A BUSINESS TRANSACTION.)
"9. DURING 1943 SUBJECT WAS IN CONTACT WITH COL. ALEXANDER HESS OF
THE CZECHOSLOVAK EMBASSY, WHO HAS BEEN IDENTIFIED AS AN AGENT OF THE
RED ARMY INTELLIGENCE. (THIS CHARGE WAS APPARENTLY ABANDONED AS NO
ADVERSE FINDING WAS BASED ON IT.)
"10. DURING 1946 AND 1947 SUBJECT MAINTAINED CLOSE AND SYMPATHETIC
ASSOCIATION WITH MR. AND MRS. NATHAN GREGORY SILVERMASTER AND WILLIAM
LUDWIG ULLMAN. SILVERMASTER AND ULLMAN HAVE BEEN IDENTIFIED AS MEMBERS
OF A SOVIET ESPIONAGE APPARATUS ACTIVE IN WASHINGTON, D.C., DURING THE
1940'S. (SILVERMASTER WAS A TOP ECONOMIST IN THE DEPARTMENT OF
AGRICULTURE AND THE DIRECT SUPERIOR OF PETITIONER'S EX-WIFE WHO THEN
WORKED IN THAT DEPARTMENT.)
"11. SUBJECT HAD A SERIES OF CONTACTS WITH LAUGHLIN CURRIE DURING
THE PERIOD 1945-48. CURRIE HAS ALSO BEEN IDENTIFIED AS A MEMBER OF THE
SILVERMASTER ESPIONAGE GROUP. (PETITIONER MET CURRIE IN THE EXECUTIVE
OFFICES OF THE PRESIDENT AT A TIME WHEN CURRIE WAS A SPECIAL ASSISTANT
TO THE PRESIDENT.)
"12. DURING THE PERIOD BETWEEN 1942 AND 1947 SUBJECT MAINTAINED
FREQUENT AND CLOSE ASSOCIATIONS WITH MANY COMMUNIST PARTY MEMBERS,
INCLUDING R__ S__, AND HIS WIFE E__, B__ W__ AND HIS WIFE M__, M__ P__,
M__ L. D__, R__ N__ AND I__ S__. (THESE PERSONS WERE APPARENTLY
FRIENDS OF PETITIONER'S EX-WIFE.)
"13. DURING SUBSTANTIALLY THE SAME PERIOD SUBJECT MAINTAINED CLOSE
ASSOCIATION WITH MANY PERSONS WHO HAVE BEEN IDENTIFIED AS STRONG
SUPPORTERS OF THE COMMUNIST CONSPIRACY, INCLUDING S__ J. R__, S__ L__,
O__ L__, E__ F__ AND V__ G__. (THESE PERSONS WERE APPARENTLY FRIENDS
OF HIS EX-WIFE.)
"IT IS NOTED THAT ALL OF THE ABOVE INFORMATION HAS PREVIOUSLY BEEN
DISCUSSED WITH MR. GREENE AT HIS HEARING BEFORE THE INDUSTRIAL
EMPLOYMENT REVIEW BOARD, AND THAT A COPY OF THE TRANSCRIPT OF THAT
HEARING WAS MADE AVAILABLE TO YOU IN AUGUST OF LAST YEAR."
FN15 PETITIONER STATED BY AFFIDAVIT IN SUPPORT OF HIS MOTION FOR
SUMMARY JUDGMENT THAT "AFTER MY DISCHARGE FROM ENGINEERING AND RESEARCH
CORPORATION, I MADE EVERY POSSIBLE EFFORT TO SECURE OTHER EMPLOYMENT AT
A SALARY COMMENSURATE WITH MY EXPERIENCE, BUT I WAS UNABLE TO DO SO
BECAUSE ALL OF MY WORK HISTORY HAD BEEN IN THE FIELD OF AERONAUTICS.
IN SPITE OF EVERYTHING I COULD DO, THE BEST POSITION I COULD OBTAIN WAS
A DRAFTSMAN-ENGINEER IN AN ARCHITECTURAL FIRM. I WAS OBLIGED TO GO TO
WORK FOR A SALARY OF $4,400 PER YEAR, BECAUSE THE BASIS UPON WHICH A
HIGHER SALARY WOULD BE JUSTIFIED WAS EXPERIENCE IN A FIELD WHICH WAS
NOT PARTICULARLY USEFUL IN THE TYPE OF WORK WHICH I WAS ABLE TO
OBTAIN. AS A RESULT OF THE ACTIONS OF THE DEFENDANTS COMPLAINED OF,
THE FIELD OF AERONAUTICAL ENGINEERING WAS CLOSED TO ME."
FN16 FOR INSTANCE, THE FOLLOWING QUESTIONS WERE ASKED IN CONNECTION
WITH THE SO-CALLED "LEFT WING" RADIO STATION IN WHICH PETITIONER OWNED
STOCK, PETITIONER'S ACQUAINTANCESHIP WITH ALLEGED SUBVERSIVES, AND
PETITIONER'S BUSINESS RELATIONSHIPS WITH FOREIGN GOVERNMENTS:
"Q. WE HAVE INFORMATION HERE, MR. GREENE, THAT ONE PARTICULAR
INDIVIDUAL SPECIFICALLY CALLED YOUR ATTENTION TO THE FACT THAT
CONGRESSMAN RANKIN AND SENATOR BILBO HAD CHARACTERIZED THIS STATION AS
A COMMUNIST STATION, RUN BY AND FOR COMMUNISTS?
* * * * *
"Q. WE HAVE INFORMATION HERE, THIS HAS COME FROM AN INFORMANT
CHARACTERIZED TO BE OF KNOWN RELIABILITY IN WHICH HE REFERS TO
CONVERSATIONS HE HAD WITH YOU ABOUT JANUARY OF 1947 IN WHICH YOU TOLD
HIM THAT YOU HAD VISITED M__ P__ THE PREVIOUS EVENING AND HAD BECOME
RATHER CHUMMY WITH HIM, DO YOU WISH TO COMMENT ON THAT?
* * * * *
"Q. CONCERNING YOUR RELATIONSHIP WITH S__ L__, WE HAVE INFORMATION
HERE FROM AN INFORMANT CHARACTERIZED AS BEING ONE OF KNOWN RELIABILITY,
IN WHICH S__ L__ TOLD THIS INFORMANT THAT SHORTLY FOLLOWING HER WESTERN
HIGH SCHOOL SPEECH IN 1947, SHE REMARKED TO YOU THAT PROBABLY MANY
PEOPLE WILL LEARN THINGS ABOUT RUSSIA AND SHE QUOTED YOU AS REPLYING,
'WELL I HOPE THEY LEARN SOMETHING GOOD, AT LEAST.' DO YOU WISH TO SAY
ANYTHING ABOUT THAT?
* * * * *
"Q. INFORMATION WE HAVE, MR. GREENE, INDICATES FIRST OF ALL, THAT
YOU DIDN'T MEET THESE RUSSIANS IN 1942 BUT YOU MET THEM IN EARLY 1943.
* * * * *
"Q. NOW, WE HAVE FURTHER INFORMATION, MR. GREENE, INDICATING THAT
THE INITIATIVE OF THESE CONTACTS CAME FROM COL. BEREZIN.
* * * * *
"Q. WE HAVE INFORMATION HERE INDICATING THAT AS A MATTER OF FACT,
SIR, WE DO KNOW THAT THE MEETING BETWEEN YOU AND COL. BEREZIN WAS
ARRANGED THROUGH HESS AND HOCHFELD AS YOU INDICATED. WE ALSO HAVE
INFORMATION FROM A SOURCE IDENTIFIED AS BEING ONE OF KNOWN RELIABILITY
REFERRING TO A CONVERSATION THAT THIS SOURCE HAD WITH HESS IN APRIL
1943 IN WHICH HESS STATED THAT HE HAD BEEN TALKING TO ONE HARRY, NOT
FURTHER IDENTIFIED BUT PRESUMED TO BE HOCHFELD AND THAT HARRY SAID TO
HESS THAT HE HAD A YOUNG ENGINEER WHO IS A GOOD FRIEND OF OURS AND OF
OUR CAUSE AND HARRY WANTED HESS TO SET UP A MEETING BETWEEN BEREZIN AND
YOURSELF. CAN YOU GIVE US SOME REASON WHY HARRY MIGHT HAVE REFERRED TO
YOU AS A GOOD FRIEND OF OUR CAUSE?
* * * * *
"Q. OF COURSE, WE CAN MAKE CERTAIN ASSUMPTIONS AS TO WHY COL.
BEREZIN MIGHT HAVE WANTED TO MEET YOU BACK IN DECEMBER 1942 WHEN WE
LOOK AT A STATEMENT LIKE THIS INDICATING THAT YOU WERE CONSIDERED A
GOOD FRIEND OF THEIR'S AND OF THEIR CAUSE. OF COURSE, SOME WEIGHT IS
LENT TO THIS ASSUMPTION BY THE FACT THAT YOUR WIFE WAS STRONGLY PRO
COMMUNIST AND AFTER SHE LEFT YOU SHE BECAME VERY ACTIVE IN COMMUNIST
AFFAIRS, IN CASE YOU DON'T KNOW THAT, I'LL PASS IT ON TO YOU." AND
THE FOLLOWING QUESTIONS WERE ASKED OF VARIOUS WITNESSES PRESENTED BY
PETITIONER EVIDENTLY BECAUSE THE BOARD HAD CONFIDENTIAL INFORMATION
THAT PETITIONER'S EX-WIFE WAS "ECCENTRIC."
"Q. NOW YOU WERE IN BILL'S HOME, THAT RED BRICK HOUSE THAT YOU'RE
TALKING ABOUT.
* * * * *
"Q. WAS THERE ANYTHING UNUSUAL ABOUT THE HOUSE ITSELF, THE INTERIOR
OF IT, WAS IT DIRTY? * * * *
*
"Q. WERE THERE ANY BEDS IN THEIR HOUSE WHICH HAD NO MATTRESSES ON
THEM?
* * * * *
"Q. DID YOU EVER HEAR IT SAID THAT JEAN SLEPT ON A BOARD IN ORDER TO
KEEP THE COMMON TOUCH?
* * * * *
"Q. WHEN YOU WERE IN JEAN'S HOME DID SHE DRESS CONVENTIONALLY WHEN
SHE RECEIVED HER GUESTS?
* * * * *
"Q. LET ME ASK YOU THIS, CONVENTIONALLY WHEN SOMEBODY WOULD INVITE
YOU FOR DINNER AT THEIR HOME WOULD YOU EXPECT THEM, IF THEY WERE A
WOMAN TO WEAR A DRESS AND SHOES AND STOCKINGS AND THE USUAL CLOTHING OF
THE EVENING OR WOULD YOU EXPECT THEM TO APPEAR IN OVERALLS?"
FN17 THE NOTIFICATION STATED:
"SECURITY CONSIDERATIONS PROHIBIT THE FURNISHING TO AN APPELLANT OF A
DETAILED STATEMENT OF THE FINDINGS ON APPEAL INASMUCH AS THE ENTIRE
FILE IS CONSIDERED AND COMMENTS MADE BY THE APPEAL DIVISION PANEL ON
SECURITY MATTERS WHICH COULD NOT FOR SECURITY REASONS FORM THE BASIS OF
A STATEMENT OF REASONS."
FN18 THIS BOARD WAS CREATED BY THE SECRETARY OF DEFENSE ON FEBRUARY
2, 1955, AND GIVEN POWER TO REVIEW ADVERSE DECISIONS RENDERED BY THE
REGIONAL BOARDS.
FN19 THIS WAS THE FIRST TIME THAT PETITIONER WAS CHARGED OR FOUND TO
BE UNTRUSTWORTHY.
FN20 THE COMPLAINT WAS FILED BEFORE THE ESTABLISHMENT OF THE
INDUSTRIAL PERSONNEL SECURITY REVIEW BOARD. SEE NOTE 18, SUPRA.
FN21 THE COURT OF APPEALS STATED: "WE HAVE NO DOUBT THAT GREENE HAS
IN FACT BEEN INJURED. HE WAS FORCED OUT OF A JOB THAT PAID HIM $18,000
PER YEAR. HE HAS SINCE BEEN REDUCED, SO FAR AS THIS RECORD SHOWS, TO
WORKING AS AN ARCHITECTURAL DRAFTSMAN AT A SALARY OF SOME $4,400 PER
YEAR. FURTHER, AS AN AERONAUTICAL ENGINEER OF CONSIDERABLE EXPERIENCE
HE SAYS (WITHOUT REAL CONTRADICTION) THAT HE IS EFFECTIVELY BARRED FROM
PURSUIT OF MANY ASPECTS OF HIS PROFESSION, GIVEN THE CURRENT DEPENDENCE
OF MOST PHASES OF THE AIRCRAFT INDUSTRY ON DEFENSE DEPARTMENT CONTRACTS
NOT ONLY FOR PRODUCTION BUT FOR RESEARCH AND DEVELOPMENT WORK AS WELL
.. . NOR DO WE DOUBT THAT, FOLLOWING THE GOVERNMENT'S ACTION, SOME
STIGMA, IN GREATER OR LESS DEGREE, HAS ATTACHED TO GREENE." 103 U.S.
APP. D.C. 87, 95-96, 254 F.2D 944, 952-953.
FN22 WE NOTE OUR AGREEMENT WITH RESPONDENT'S CONCESSION THAT
PETITIONER HAS STANDING TO BRING THIS SUIT AND TO ASSERT WHATEVER
RIGHTS HE MAY HAVE. RESPONDENTS' ACTIONS, DIRECTED AT PETITIONER AS AN
INDIVIDUAL, CAUSED SUBSTANTIAL INJURIES, JOINT ANTI-FASCIST COMMITTEE
V. MCGRATH, 341 U.S. 123, 152 (CONCURRING OPINION), AND, WERE THEY THE
SUBJECT OF A SUIT BETWEEN PRIVATE PERSONS, THEY COULD BE ATTACKED AS AN
INVASION OF A LEGALLY PROTECTED RIGHT TO BE FREE FROM ARBITRARY
INTERFERENCE WITH PRIVATE CONTRACTUAL RELATIONSHIPS. MOREOVER,
PETITIONER HAS THE RIGHT TO BE FREE FROM UNAUTHORIZED ACTIONS OF
GOVERNMENT OFFICIALS WHICH SUBSTANTIALLY IMPAIR HIS PROPERTY
INTERESTS. CF. PHILADELPHIA CO. V. STIMSON, 223 U.S. 605.
FN23 THE INDUSTRIAL PERSONNEL SECURITY REVIEW REGULATION, 20 FED.
REG. 1553, RECOMMENDED BY THE SECRETARIES OF THE ARMY, NAVY, AND AIR
FORCE, AND APPROVED BY THE SECRETARY OF DEFENSE, PROVIDED:
"SEC. 67.1-4. RELEASE OF INFORMATION. ALL PERSONNEL IN THE PROGRAM
WILL COMPLY WITH APPLICABLE DIRECTIVES PERTAINING TO THE SAFEGUARDING
OF CLASSIFIED INFORMATION AND THE HANDLING OF INVESTIGATIVE REPORTS.
NO CLASSIFIED INFORMATION, NOR ANY INFORMATION WHICH MIGHT COMPROMISE
INVESTIGATIVE SOURCES OR METHODS OR THE IDENTITY OF CONFIDENTIAL
INFORMANTS, WILL BE DISCLOSED TO ANY CONTRACTOR OR CONTRACTOR EMPLOYEE,
OR TO HIS LAWYER OR REPRESENTATIVES, OR TO ANY OTHER PERSON NOT
AUTHORIZED TO HAVE ACCESS TO SUCH INFORMATION. IN ADDITION, IN A CASE
INVOLVING A CONTRACTOR EMPLOYEE THE CONTRACTOR CONCERNED WILL BE
ADVISED ONLY OF THE FINAL DETERMINATION IN THE CASE TO GRANT, DENY, OR
REVOKE CLEARANCE, AND OF ANY DECISION TO SUSPEND A CLEARANCE GRANTED
PREVIOUSLY PENDING FINAL DETERMINATION IN THE CASE. THE CONTRACTOR
WILL NOT BE GIVEN A COPY OF THE STATEMENT OF REASONS ISSUED TO THE
CONTRACTOR EMPLOYEE EXCEPT AT THE WRITTEN REQUEST OF THE CONTRACTOR
EMPLOYEE CONCERNED."
FN24 SEE "CHARTER OF THE INDUSTRIAL EMPLOYMENT REVIEW BOARD, DATED 7
NOVEMBER 1949," NOTE 4, SUPRA; "CHARTER OF THE ARMY-NAVY-AIR FORCE
PERSONNEL SECURITY BOARD, DATED 19 JUNE 1950," NOTE 3, SUPRA;
MEMORANDUM ISSUED BY THE SECRETARY OF DEFENSE TO THE SECRETARIES OF THE
ARMY, NAVY, AND AIR FORCE AND TO THE CHAIRMAN OF THE MUNITIONS BOARD,
DATED MARCH 27, 1953, NOTES 6, 7, 8 AND 9, SUPRA; "THE INDUSTRIAL
PERSONNEL AND FACILITY SECURITY CLEARANCE PROGRAM," EFFECTIVE MAY 4,
1953, NOTE 13, SUPRA; "THE INDUSTRIAL PERSONNEL SECURITY REVIEW
REGULATION," 20 FED. REG. 1553, 32 CFR PART 67 (1958 SUPP.); INDUSTRIAL
SECURITY MANUAL FOR SAFEGUARDING CLASSIFIED INFORMATION, 20 FED. REG.
6213, 21 FED. REG. 2814.
FN25 WHEN FESTUS MORE THAN TWO THOUSAND YEARS AGO REPORTED TO KING
AGRIPPA THAT FELIX HAD GIVEN HIM A PRISONER NAMED PAUL AND THAT THE
PRIESTS AND ELDERS DESIRED TO HAVE JUDGMENT AGAINST PAUL, FESTUS IS
REPORTED TO HAVE STATED: "IT IS NOT THE MANNER OF THE ROMANS TO
DELIVER ANY MAN TO DIE, BEFORE THAT HE WHICH IS ACCUSED HAVE THE
ACCUSERS FACE TO FACE, AND HAVE LICENSE TO ANSWER FOR HIMSELF
CONCERNING THE CRIME LAID AGAINST HIM." ACTS. 25:16.
PROFESSOR WIGMORE EXPLAINS IN SOME DETAIL THE EMERGENCE OF THE
PRINCIPLE IN ANGLO-AMERICAN LAW THAT CONFRONTATION AND CROSS
EXAMINATION ARE BASIC INGREDIENTS IN A FAIR TRIAL. 5 WIGMORE ON
EVIDENCE (3D ED. 1940) SEC. 1364. AND SEE O'BRIAN, NATIONAL SECURITY
AND INDIVIDUAL FREEDOM, 62.
FN26 FOR INSTANCE, IN THE INSTANT CASE, TO ESTABLISH THE CHARGE THAT
PETITIONER'S "PERSONAL POLITICAL SYMPATHIES WERE IN GENERAL ACCORD WITH
THOSE OF HIS WIFE," THE EIPSB APPARENTLY RELIED ON STATEMENTS MADE TO
INVESTIGATORS BY "OLD" FRIENDS OF PETITIONER. THUS, THE FOLLOWING
QUESTIONS WERE ASKED PETITIONER:
"Q. I'D LIKE TO READ TO YOU A QUOTATION FROM THE TESTIMONY OF A
PERSON WHO HAD IDENTIFIED HIMSELF AS HAVING BEEN A VERY CLOSE FRIEND OF
YOURS OVER A LONG PERIOD OF YEARS. HE STATES THAT YOU, AS SAYING TO
HIM ONE DAY THAT YOU WERE READING A GREAT DEAL OF PRO-COMMUNIST BOOKS
AND OTHER LITERATURE. DO YOU WISH TO COMMENT ON THAT?
* * * * *
"Q. INCIDENTALLY THIS MAN'S TESTIMONY CONCERNING YOU WAS ENTIRELY
FAVORABLE IN ONE RESPECT. HE STATED THAT HE DIDN'T THINK YOU WERE A
COMMUNIST BUT HE DID STATE THAT HE THOUGHT THAT YOU HAD BEEN INFLUENCED
BY JEAN'S VIEWPOINTS AND THAT HE HAD RECEIVED IMPRESSIONS DEFINITE THAT
IT WAS YOUR WIFE WHO WAS PARLOR PINK AND THAT YOU WERE GOING ALONG WITH
HER.
* * * * *
"Q. THIS SAME FRIEND TESTIFIED THAT HE BELIEVED THAT YOU WERE
INFLUENCED BY JEAN'S WILD THEORIES AND HE DECIDED AT THAT TIME TO HAVE
NO FURTHER ASSOCIATION WITH YOU AND YOUR WIFE .. .
* * * * *
"Q. .. HEERE'S ANOTHER MAN WHO INDICATES THAT HE HAS BEEN A FRIEND
OF YOURS OVER A LONG PERIOD OF TIME WHO STATES THAT HE WAS A VISITOR IN
YOUR HOME ON OCCASIONS AND THAT REGARDING SOME OF THESE VISITS, HE MET
SOME OF YOUR WIFE'S FRIENDS, THESE PEOPLE WE'VE BEEN TALKING ABOUT IN
THE PAST AND THAT ONE OCCASION, HE MENTIONED IN PARTICULAR, THE TOPIC
OF CONVERSATION WAS CHINA AND THAT YOU SET FORTH IN THE CONVERSATION
AND THERE SEEMED GENERAL AGREEMENT AMONG ALL OF YOU AT THAT TIME THAT
THE REVOLUTIONISTS IN CHINA WERE NOT ACTUALLY COMMUNISTS BUT WERE
AGRARIAN REFORMISTS WHICH AS YOU PROBABLY KNOW IS PART OF THE COMMUNIST
PROPAGANDA LINE OF SEVERAL YEARS BACK .. .
* * * * *
"Q. MR. GREENE WE'VE GOT SOME INFORMATION HERE INDICATING THAT
DURING THE PERIOD OF YOUR MARRIAGE TO YOUR FIRST WIFE THAT SHE WAS
CONSTANTLY FINDING FAULT WITH THE AMERICAN INSTITUTIONS, OPPOSING THE
AMERICAN CAPITALISTIC SYSTEM AND NEVER HAD ANYTHING BUT PRAISE FOR THE
RUSSIANS AND EVERYTHING THEY ATTEMPTED TO DO. DID YOU FIND THAT TO BE
THE CASE?
* * * * *
"Q. WE HAVE A STATEMENT HERE FROM ANOTHER WITNESS WITH RESPECT TO
YOURSELF IN WHICH HE STATES THAT YOU FELT THAT THE MODERN PEOPLE IN
THIS COUNTRY WERE TOO RICH AND POWERFUL, THAT THE CAPITALISTIC SYSTEM
OF THIS COUNTRY WAS TO THE DISADVANTAGE OF THE WORKING PEOPLE AND THAT
THE WORKING PEOPLE WERE EXPLOITED BY THE RICH.
* * * * *
"Q. I HAVE A STATEMENT FROM ANOTHER ONE OF YOUR ASSOCIATES TO THE
EFFECT THAT YOU WOULD AT TIMES, PRESENT TO HIM A FELLOW-TRAVELER
ARGUMENT. THIS MAN INDICATED TO US THAT HE WAS PRETTY WELL VERSED ON
THE COMMUNIST PARTY LINE HIMSELF AT THAT TIME AND FOUND YOU PARROTING
ARGUMENTS WHICH HE ASSUMED THAT YOU GOT FROM YOUR WIFE. DO YOU WISH TO
COMMENT ON THAT?"
CONFRONTATION OF THE PERSONS WHO ALLEGEDLY MADE THESE STATEMENTS
WOULD HAVE BEEN OF PRIME IMPORTANCE TO PETITIONER, FOR CROSS
EXAMINATION MIGHT HAVE SHOWN THAT THESE "WITNESSES" WERE HAZY IN
RECOLLECTING LONG-PAST INCIDENTS, OR WERE IRRATIONALLY MOTIVATED BY
BIAS OR VINDICTIVENESS.
FN27 THIS IS MADE CLEAR BY THE FOLLOWING TESTIMONY OF JEROME D.
FENTON, DIRECTOR, INDUSTRIAL PERSONNEL SECURITY, DEPARTMENT OF DEFENSE,
BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE SENATE
JUDICIARY COMMITTEE, GIVEN ON NOVEMBER 23, 1955:
"Q. .. WHHAT OTHER TYPE OF EVIDENCE IS RECEIVED BY THE HEARING
BOARDS BESIDES THE EVIDENCE OF PERSONS UNDER OATH?
"A. THE REPORTS FROM THE VARIOUS GOVERNMENTAL INVESTIGATIVE
AGENCIES.
"Q. AND THE REPORTS OF THE VARIOUS GOVERNMENTAL INVESTIGATIONS
MIGHT, THEMSELVES, BE HEARSAY, MIGHT THEY NOT?
"A. I THINK THAT IS A FAIR STATEMENT.
"Q. IN FACT, THEY MIGHT BE, AS THE COURT OF APPEALS FOR THE NINTH
CIRCUIT SAID WITH RESPECT TO THE PORT SECURITY PROGRAM, SECOND, OR
THIRD, OR FOURTH-HAND HEARSAY, MIGHT THEY NOT? (THIS QUESTION REFERS
TO THE OPINION OF THE COURT OF APPEALS FOR THE NINTH CIRCUIT IN PARKER
V. LESTER, 227 F.2D 708.)
* * * * *
"A. THE ANSWER IS 'YES.'
* * * * *
"Q. CAN YOU TELL ME WHAT TYPE OF HELP IS GIVEN TO THE HEARING BOARD
IN THESE REPORTS WITH RESPECT TO THE MATTER OF EVALUATION? WHAT IS THE
NATURE OF THE EVALUATION THAT IS USED FOR THIS PURPOSE?
"A. WELL, EACH BOARD HAS A PERSON WHO IS CALLED A SECURITY ADVISER,
WHO IS AN EXPERT IN THAT PARTICULAR AREA. EACH SCREENING BOARD HAS
ONE, AND THOSE INDIVIDUALS ARE WELL-TRAINED PEOPLE WHO KNOW HOW TO
EVALUATE REPORTS AND EVALUATE INFORMATION. THEY KNOW HOW TO SEPARATE
THE WHEAT FROM THE CHAFF, AND THEY ASSIST THESE BOARDS.
"Q. THIS EXPERT, THEN, HAS TO TAKE THE REPORT AND MAKE HIS OWN
DETERMINATION IN ASSISTING THE BOARD AS TO THE RELIABILITY OF A WITNESS
THAT HE HAS NEVER SEEN, OR PERHAPS HASN'T EVEN HAD THE OPPORTUNITY TO
SEE THE PERSON WHO INTERVIEWED THE WITNESS?
"A. WELL, HE HAS NOTHING TO DO WITH THE WITNESS; NO.
"Q. WHAT IS THAT?
"A. HE HAS NOT INTERVIEWED THE WITNESS; NO."
HEARINGS BEFORE SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS, SENATE
JUDICIARY COMMITTEE, ON S. RES. 94, 84TH CONG., 2D SESS. 623-624. AND
CF. RICHARDSON, THE FEDERAL EMPLOYEE LOYALTY PROGRAM, 51 COL. L. REV.
546, AND HEARINGS BEFORE A SUBCOMMITTEE OF THE SENATE FOREIGN RELATIONS
COMMITTEE ON S. RES. 231, 81ST CONG., 2D SESS. 327-339 (STATEMENT OF J.
EDGAR HOOVER, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION).
FN28 NO BETTER, FOR THIS PURPOSE, IS EXEC. ORDER NO. 8972, 6 FED.
REG. 6420, FILED ON DECEMBER 12, 1941, WHICH EMPOWERED THE SECRETARY OF
WAR "TO ESTABLISH AND MAINTAIN MILITARY GUARDS AND PATROLS, AND TO TAKE
OTHER APPROPRIATE MEASURES, TO PROTECT FROM INJURY OR DESTRUCTION
NATIONAL-DEFENSE MATERIAL, NATIONAL-DEFENSE PREMISES, AND NATIONAL
DEFENSE UTILITIES .. ."" EVEN IF THAT ORDER IS RELEVANT AUTHORITY
FOR PROGRAMS CREATED AFTER WORLD WAR II, WHICH IS DOUBTFUL, IT PROVIDES
NO SPECIFIC AUTHORIZATION FOR NON-CONFRONTATION HEARINGS.
FN29 AS FAR AS APPEARS, THE MOST SUBSTANTIAL OFFICIAL NOTICE WHICH
CONGRESS HAD OF THE NON-CONFRONTATION PROCEDURES USED IN SCREENING
INDUSTRIAL WORKERS WAS EMBODIED IN S. DOC. NO. 40, 84TH CONG., 1ST
SESS., A 354-PAGE COMPILATION OF LAWS, EXECUTIVE ORDERS, AND
REGULATIONS RELATING TO INTERNAL SECURITY, PRINTED AT THE REQUEST OF A
SINGLE SENATOR, WHICH REPRODUCED, AMONG OTHER DOCUMENTS AND WITHOUT
SPECIFIC COMMENT, THE INDUSTRIAL PERSONNEL SECURITY REVIEW REGULATION.
FN30 AT THE HEARINGS TO WHICH WE HAVE BEEN REFERRED, THE FOLLOWING
PASSAGE FROM THE TESTIMONY OF THE DEPARTMENT OF DEFENSE REPRESENTATIVE
CONSTITUTES THE ONLY DESCRIPTION MADE TO THE COMMITTEE CONCERNING THE
PROCEDURES USED IN THE DEPARTMENT'S CLEARANCE PROGRAM:
"IN CONNECTION WITH THE PROCUREMENT PROGRAMS OF THE DEPARTMENT OF
DEFENSE, REGULATIONS HAVE BEEN PRESCRIBED TO PROVIDE UNIFORM STANDARDS
AND CRITERIA FOR DETERMINING THE ELIGIBILITY OF CONTRACTORS, CONTRACTOR
EMPLOYEES, AND CERTAIN OTHER INDIVIDUALS, TO HAVE ACCESS TO CLASSIFIED
DEFENSE INFORMATION. THE REGULATIONS ALSO ESTABLISH ADMINISTRATIVE
PROCEDURES GOVERNING THE DISPOSITION OF CASES IN WHICH A MILITARY
DEPARTMENT, OR ACTIVITY THEREOF, HAS MADE A RECOMMENDATION OR
DETERMINATION (A) WITH RESPECT TO THE DENIAL, SUSPENSION, OR REVOCATION
OF A CLEARANCE OF A CONTRACTOR OR CONTRACTOR EMPLOYEE; AND (B) WITH
RESPECT TO THE DENIAL OR WITHDRAWAL OF AUTHORIZATION FOR ACCESS BY
CERTAIN OTHER INDIVIDUALS. "WHILE THE DEPARTMENT OF DEFENSE ASSUMES,
UNLESS INFORMATION TO THE CONTRARY IS RECEIVED, THAT ALL CONTRACTORS
AND CONTRACTOR EMPLOYEES ARE LOYAL TO THE GOVERNMENT OF THE UNITED
STATES, THE RESPONSIBILITIES OF THE MILITARY ESTABLISHMENT NECESSITATE
VIGOROUS APPLICATION OF POLICIES DESIGNED TO MINIMIZE THE SECURITY RISK
INCIDENT TO THE USE OF CLASSIFIED INFORMATION BY SUCH CONTRACTORS AND
CONTRACTOR EMPLOYEES. ACCORDINGLY, MEASURES ARE TAKEN TO PROVIDE
CONTINUING ASSURANCE THAT NO CONTRACTOR OR CONTRACTOR EMPLOYEE WILL BE
GRANTED A CLEARANCE IF AVAILABLE INFORMATION INDICATES THAT THE
GRANTING OF SUCH CLEARANCE MAY NOT BE CLEARLY CONSISTENT WITH THE
INTERESTS OF NATIONAL SECURITY. AT THE SAME TIME, EVERY POSSIBLE
SAFEGUARD WITHIN THE LIMITATIONS OF NATIONAL SECURITY WILL BE PROVIDED
TO ENSURE THAT NO CONTRACTOR OR CONTRACTOR EMPLOYEE WILL BE DENIED A
CLEARANCE WITHOUT AN OPPORTUNITY FOR A FAIR HEARING." ID., AT 774.
THIS DESCRIPTION HARDLY CONSTITUTES EVEN NOTICE TO THE COMMITTEE OF
THE NATURE OF THE HEARINGS AFFORDED. THUS THE APPROPRIATION COULD NOT
"PLAINLY SHOW A PURPOSE TO BESTOW THE PRECISE AUTHORITY WHICH IS
CLAIMED." EX PARTE ENDO, 323 U.S. 283, 303, N. 24. LIKEWISE,
APPROPRIATIONS OF SPECIFIC AMOUNTS FOR THE MUNITIONS BOARD OR ITS
SUCCESSORS, AGENCIES WITH MULTIFOLD OBJECTIVES, WITHOUT ANY MENTION OF
THE USES TO WHICH THE FUNDS COULD BE PUT, CANNOT BE CONSIDERED AS A
RATIFICATION OF THE USE OF THE SPECIFIED HEARING PROCEDURES.
FN31 IT IS ESTIMATED THAT APPROXIMATELY THREE MILLION PERSONS HAVING
ACCESS TO CLASSIFIED INFORMATION ARE COVERED BY THE INDUSTRIAL SECURITY
PROGRAM. BROWN, LOYALTY AND SECURITY (1958), 179-180; ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK, REPORT OF THE SPECIAL COMMITTEE ON THE
FEDERAL LOYALTY-SECURITY PROGRAM (1956), 64.
MR. JUSTICE FRANKFURTER, MR. JUSTICE HARLAN AND MR. JUSTICE WHITTAKER
CONCUR IN THE JUDGMENT ON THE GROUND THAT IT HAS NOT BEEN SHOWN THAT
EITHER CONGRESS OR THE PRESIDENT AUTHORIZED THE PROCEDURES WHEREBY
PETITIONER'S SECURITY CLEARANCE WAS REVOKED, INTIMATING NO VIEWS AS TO
THE VALIDITY OF THOSE PROCEDURES.
MR. JUSTICE HARLAN, CONCURRING SPECIALLY.
WHAT HAS BEEN WRITTEN ON BOTH SIDES OF THIS CASE MAKES APPROPRIATE A
FURTHER WORD FROM ONE WHO CONCURS IN THE JUDGMENT OF THE COURT, BUT
CANNOT JOIN ITS OPINION.
UNLIKE MY BROTHER CLARK WHO FINDS THIS CASE "BOTH CLEAR AND SIMPLE,"
I CONSIDER THE CONSTITUTIONAL ISSUE IT PRESENTS MOST DIFFICULT AND FAR
REACHING. IN MY VIEW THE COURT QUITE PROPERLY DECLINES TO DECIDE IT IN
THE PRESENT POSTURE OF THE CASE. MY UNWILLINGNESS TO SUBSCRIBE TO THE
COURT'S OPINION IS DUE TO THE FACT THAT IT UNNECESSARILY DEALS WITH THE
VERY ISSUE IT DISCLAIMS DECIDING. FOR PRESENT PURPOSES NO MORE NEED BE
SAID THAN THAT WE SHOULD NOT BE DRAWN INTO DECIDING THE
CONSTITUTIONALITY OF THE SECURITY-CLEARANCE REVOCATION PROCEDURES
EMPLOYED IN THIS CASE UNTIL THE USE OF SUCH PROCEDURES IN MATTERS OF
THIS KIND HAS BEEN DELIBERATELY CONSIDERED AND EXPRESSLY AUTHORIZED BY
THE CONGRESS OR THE PRESIDENT WHO ALONE ARE IN A POSITION TO EVALUATE
IN THE FIRST INSTANCE THE TOTALITY OF FACTORS BEARING UPON THE
NECESSITY FOR THEIR USE. THAT MUCH THE COURTS ARE ENTITLED TO BEFORE
THEY ARE ASKED TO EXPRESS A CONSTITUTIONAL JUDGMENT UPON AN ISSUE
FRAUGHT WITH SUCH IMPORTANT CONSEQUENCES BOTH TO THE GOVERNMENT AND THE
CITIZEN.
AMPLE JUSTIFICATION FOR ABSTAINING FROM A CONSTITUTIONAL DECISION AT
THIS STAGE OF THE CASE IS AFFORDED BY THE COURT'S TRADITIONAL AND WISE
RULE OF NOT REACHING CONSTITUTIONAL ISSUES UNNECESSARILY OR
PREMATURELY. THAT RULE INDEED HAS BEEN CONSISTENTLY FOLLOWED BY THIS
COURT WHEN FACED WITH "CONFRONTATION" ISSUES IN OTHER SECURITY OR
LOYALTY CASES. SEE PETERS V. HOBBY, 349 U.S. 331; VITARELLI V. SEATON,
359 U.S. 535; CF. SERVICE V. DULLES, 354 U.S. 363; KENT V. DULLES, 357
U.S. 116. ADHERENCE TO THAT RULE IS, AS I UNDERSTAND IT, THE
UNDERLYING BASIS OF TODAY'S DECISION, AND IT IS ON THAT BASIS THAT I
JOIN THE JUDGMENT OF THE COURT.
IT IS REGRETTABLE THAT MY BROTHER CLARK SHOULD HAVE SO FAR YIELDED TO
THE TEMPTATIONS OF COLORFUL CHARACTERIZATION AS TO DEPICT THE ISSUE IN
THIS CASE AS BEING WHETHER A CITIZEN HAS "A CONSTITUTIONAL RIGHT TO
HAVE ACCESS TO THE GOVERNMENT'S MILITARY SECRETS," AND TO SUGGEST THAT
THE COURT'S ACTION TODAY REQUIRES "THE PRESIDENT'S CABINET MEMBERS TO
REVOKE THEIR REFUSAL TO GIVE" THE PETITIONER "ACCESS TO MILITARY
SECRETS," DESPITE ANY VIEWS THEY MAY HAVE AS TO HIS RELIABILITY. OF
COURSE THIS DECISION INVOLVES NO SUCH ISSUE OR CONSEQUENCES. THE BASIC
CONSTITUTIONAL ISSUE IS NOT WHETHER PETITIONER IS ENTITLED TO ACCESS TO
CLASSIFIED MATERIAL, BUT RATHER WHETHER THE PARTICULAR PROCEDURES HERE
EMPLOYED TO DENY CLEARANCE ON SECURITY GROUNDS WERE CONSTITUTIONALLY
PERMISSIBLE. WITH GOOD REASON WE DO NOT REACH THAT ISSUE AS MATTERS
NOW STAND. AND CERTAINLY THERE IS NOTHING IN THE COURT'S OPINION WHICH
SUGGESTS THAT PETITIONER MUST BE GIVEN ACCESS TO CLASSIFIED MATERIAL.
MR. JUSTICE CLARK, DISSENTING.
TO ME THIS CASE IS BOTH CLEAR AND SIMPLE. THE RESPONDENTS, ALL
MEMBERS OF THE PRESIDENT'S CABINET, HAVE, AFTER A SERIES OF HEARINGS,
REFUSED TO GIVE GREENE FURTHER ACCESS TO CERTAIN GOVERNMENT MILITARY
INFORMATION WHICH HAS BEEN CLASSIFIED "SECRET." THE PERTINENT
EXECUTIVE ORDER DEFINES "SECRET" INFORMATION AS:
"DEFENSE INFORMATION OR MATERIAL THE UNAUTHORIZED DISCLOSURE OF WHICH
COULD RESULT IN SERIOUS DAMAGE TO THE NATION, SUCH AS BY JEOPARDIZING
THE INTERNATIONAL RELATIONS OF THE UNITED STATES, ENDANGERING THE
EFFECTIVENESS OF A PROGRAM OR POLICY OF VITAL IMPORTANCE TO THE
NATIONAL DEFENSE, OR COMPROMISING IMPORTANT MILITARY OR DEFENSE PLANS,
SCIENTIFIC OR TECHNOLOGICAL DEVELOPMENTS IMPORTANT TO NATIONAL DEFENSE,
OR INFORMATION REVEALING IMPORTANT INTELLIGENCE OPERATIONS." EXEC.
ORDER NO. 10501, NOV. 5, 1953, 18 FED. REG. 7049, 3 CFR (1949-1953
COMP.), P. 979, SEC. 1(B).
SURELY ONE DOES NOT HAVE A CONSTITUTIONAL RIGHT TO HAVE ACCESS TO THE
GOVERNMENT'S MILITARY SECRETS. (FN1) BUT THE COURT SAYS THAT BECAUSE
OF THE REFUSAL TO GRANT GREENE FURTHER ACCESS, HE HAS LOST HIS POSITION
AS VICE PRESIDENT AND GENERAL MANAGER, A CHIEF EXECUTIVE OFFICER, OF
ERCO, WHOSE BUSINESS WAS DEVOTED WHOLLY TO DEFENSE CONTRACTS WITH THE
UNITED STATES, (FN2) AND THAT HIS TRAINING IN AERONAUTICAL ENGINEERING,
TOGETHER WITH THE FACTS THAT ERCO ENGAGES SOLELY IN GOVERNMENT WORK AND
THAT THE GOVERNMENT IS THE COUNTRY'S LARGEST AIRPLANE CUSTOMER, HAS IN
SOME UNACCOUNTABLE FASHION PARLAYED HIS EMPLOYMENT WITH ERCO INTO "A
CONSTITUTIONAL RIGHT." WHAT FOR ANYONE ELSE WOULD BE CONSIDERED A
PRIVILEGE AT BEST HAS FOR GREENE BEEN ENSHROUDED IN CONSTITUTIONAL
PROTECTION. THIS SLEIGHT OF HAND IS TOO MUCH FOR ME.
BUT THIS IS NOT ALL. AFTER HOLDING THAT GREENE HAS CONSTITUTIONAL
PROTECTION FOR HIS PRIVATE JOB, THE COURT HAS ORDERED THE PRESIDENT'S
CABINET MEMBERS TO REVOKE THEIR REFUSAL TO GIVE GREENE ACCESS TO
MILITARY SECRETS. (FN3) IT STRIKES DOWN THE PRESENT REGULATIONS AS
BEING INSUFFICIENTLY AUTHORIZED BY EITHER THE PRESIDENT OR THE CONGRESS
BECAUSE THE PROCEDURES FAIL TO PROVIDE FOR CONFRONTATION OR CROSS
EXAMINATION AT BOARD HEARINGS. LET US FIRST CONSIDER THAT PROBLEM.
I. THE CONSTITUTIONAL ISSUE.
AFTER FULL CONSIDERATION THE COURT CONCLUDES "THAT IN THE ABSENCE OF
EXPLICIT AUTHORIZATION FROM EITHER THE PRESIDENT OR CONGRESS THE
RESPONDENTS WERE NOT EMPOWERED TO DEPRIVE PETITIONER OF HIS JOB IN A
PROCEEDING IN WHICH HE WAS NOT AFFORDED THE SAFEGUARDS OF CONFRONTATION
AND CROSS-EXAMINATION." IN SO DOING, AS I SHALL POINT OUT, IT HOLDS
FOR NAUGHT THE EXECUTIVE ORDERS OF BOTH PRESIDENT ROOSEVELT AND
PRESIDENT TRUMAN AND THE DIRECTIVES PURSUANT THERETO OF EVERY CABINET
OFFICER CONNECTED WITH OUR DEFENSE SINCE 1942 PLUS THE EXPLICIT ORDER
OF GENERAL DWIGHT D. EISENHOWER AS CHIEF OF STAFF IN 1946. IN
ADDITION, CONTRARY TO THE COURT'S CONCLUSION, THE CONGRESS WAS NOT ONLY
FULLY INFORMED BUT HAD ITSELF PUBLISHED THE VERY PROCEDURES USED IN
GREENE'S CASE.
I BELIEVE THAT THE COURT IS IN ERROR IN HOLDING, AS IT MUST, IN ORDER
TO REACH THIS "AUTHORIZATION" ISSUE, THAT GREENE'S "RIGHT TO HOLD
SPECIFIC PRIVATE EMPLOYMENT AND TO FOLLOW A CHOSEN PROFESSION FREE FROM
UNREASONABLE GOVERNMENTAL INTERFERENCE" IS PROTECTED BY THE FIFTH
AMENDMENT. IT CITES FOUR CASES IN SUPPORT OF THIS PROPOSITION AND SAYS
COMPARE FOUR OTHERS. AS I READ THOSE CASES NOT ONE IS IN POINT. (FN4)
IN FACT, I CANNOT FIND A SINGLE CASE IN SUPPORT OF THE COURT'S
POSITION. EVEN A SUIT FOR DAMAGES ON THE GROUND OF INTERFERENCE WITH
PRIVATE CONTRACTS DOES NOT LIE AGAINST THE GOVERNMENT. THE CONGRESS
SPECIFICALLY EXEMPTED SUCH SUITS FROM THE TORT CLAIMS ACT. 28 U.S.C.
SEC. 2680(H). BUT THE ACTION TODAY MAY HAVE THE EFFECT OF BY-PASSING
THAT EXEMPTION SINCE GREENE WILL NOW CLAIM, AS HAS VITARELLI, SEE
VITARELLI V. SEATON, 359 U.S. 535 (1959), REIMBURSEMENT FOR HIS LOSS OF
WAGES. SEE TAYLOR V. MCELROY, POST, P. 709. THIS WILL DATE BACK TO
1953. HIS SALARY AT THAT TIME WAS $18,000 A YEAR.
IN HOLDING THAT THE FIFTH AMENDMENT PROTECTS GREENE THE COURT IGNORES
THE BASIC CONSIDERATION IN THE CASE, NAMELY, THAT NO PERSON, SAVE THE
PRESIDENT, HAS A CONSTITUTIONAL RIGHT TO ACCESS TO GOVERNMENTAL
SECRETS. EVEN THOUGH SUCH ACCESS IS NECESSARY FOR ONE TO KEEP A JOB IN
PRIVATE INDUSTRY, HE IS STILL NOT ENTITLED TO THE SECRETS. IT MATTERS
NOT IF AS A CONSEQUENCE HE IS UNABLE TO SECURE A SPECIFIC JOB OR LOSES
ONE HE PRESENTLY ENJOYS. THE SIMPLE REASON FOR THIS CONCLUSION IS THAT
HE HAS NO CONSTITUTIONAL RIGHT TO THE SECRETS. IF ACCESS TO ITS
SECRETS IS GRANTED BY THE GOVERNMENT IT IS ENTIRELY PERMISSIVE AND MAY
BE REVOKED AT ANY TIME. THAT IS ALL THAT THE CABINET OFFICERS DID
HERE. IT IS DONE EVERY DAY IN GOVERNMENTAL OPERATION. THE COURT SEEMS
TO HOLD THAT THE ACCESS GRANTED GREENE WAS FOR HIS BENEFIT. IT WAS
NOT. ACCESS WAS GRANTED TO SECURE FOR THE GOVERNMENT THE SUPPLIES OR
SERVICES IT NEEDED. THE CONTRACT WITH ERCO SPECIFICALLY PROVIDED FOR
THE ACTION TAKEN BY THE CABINET OFFICERS. GREENE AS GENERAL MANAGER OF
ERCO KNEW OF ITS PROVISIONS. IF EVERY PERSON WORKING ON GOVERNMENT
CONTRACTS HAS THE RIGHTS GREENE IS GIVEN HERE THE GOVERNMENT IS INDEED
IN A BOX. BUT AS WAS SAID IN PERKINS V. LUKENS STEEL CO., 310 U.S.
113, 127-128 (1940):
"LIKE PRIVATE INDIVIDUALS AND BUSINESSES, THE GOVERNMENT ENJOYS THE
UNRESTRICTED POWER TO PRODUCE ITS OWN SUPPLIES, TO DETERMINE THOSE WITH
WHOM IT WILL DEAL, AND TO FIX THE TERMS AND CONDITIONS UPON WHICH IT
WILL MAKE NEEDED PURCHASES .. . JUDICIAL RESTRAINT OF THOSE WHO
ADMINISTER THE GOVERNMENT'S PURCHASING WOULD CONSTITUTE A BREAK WITH
SETTLED JUDICIAL PRACTICE AND A DEPARTURE INTO FIELDS HITHERTO WISELY
AND HAPPILY APPORTIONED BY THE GENIUS OF OUR POLITY TO THE
ADMINISTRATION OF ANOTHER BRANCH OF GOVERNMENT."
THE COURT REFUSES TO PASS ON THE CONSTITUTIONALITY OF THE PROCEDURES
USED IN THE HEARINGS. IT DOES SAY THAT THE HEARINGS PROVIDED FOR IN
THE PROGRAM PERMIT THE RESTRAINT OF "EMPLOYMENT OPPORTUNITIES THROUGH A
DENIAL OF CLEARANCE WITHOUT THE SAFEGUARDS OF CONFRONTATION AND CROSS
EXAMINATION." I THINK THE COURT CONFUSES ADMINISTRATIVE ACTION WITH
JUDICIAL TRIALS. THIS COURT HAS LONG AGO AND REPEATEDLY APPROVED
ADMINISTRATIVE ACTION WHERE THE RIGHTS OF CROSS-EXAMINATION AND
CONFRONTATION WERE NOT PERMITTED. CHICAGO & SOUTHERN AIR LINES V.
WATERMAN CORP., 333 U.S. 103 (1948); CARLSON V. LANDON, 342 U.S. 524
(1952); UNITED STATES V. NUGENT, 346 U.S. 1 (1953); UNITED STATES V.
REYNOLDS, 345 U.S. 1 (1953); KNAUFF V. SHAUGHNESSY, 338 U.S. 537
(1950); SHAUGHNESSY V. MEZEI, 345 U.S. 206 (1953); AND JAY V. BOYD, 351
U.S. 345 (1956).
AT NO TIME SINCE THE PROGRAMS NOW IN VOGUE WERE ESTABLISHED IN 1942
HAVE THE RIGHTS OF CROSS-EXAMINATION AND CONFRONTATION OF WITNESSES
BEEN REQUIRED. IN FACT THE PRESENT REGULATIONS WERE PATTERNED AFTER
THE EMPLOYEE LOYALTY PROGRAM, FIRST INAUGURATED UPON THE PASSAGE OF THE
HATCH ACT IN 1939, IN WHICH THE RIGHTS OF CONFRONTATION AND CROSS
EXAMINATION HAVE NEVER BEEN RECOGNIZED. EVERY ATTORNEY GENERAL SINCE
THAT TIME HAS APPROVED THESE PROCEDURES, AS HAS EVERY PRESIDENT. AND
IT SHOULD BE NOTED, THOUGH SEVERAL CASES HERE HAVE ATTACKED THE
REGULATIONS ON THIS GROUND, THIS COURT HAS YET TO STRIKE THEM DOWN.
(FN5)
I SHALL NOT LABOR THE POINT FURTHER THAN TO SAY THAT IN MY OPINION
THE PROCEDURES HERE DO COMPORT WITH THAT FAIRNESS REQUIRED OF
ADMINISTRATIVE ACTION IN THE SECURITY FIELD. A SCORE OF OUR CASES, AS
I HAVE CITED, SUPPORT ME IN THIS POSITION. NOT ONE IS TO THE
CONTRARY. AND THE ACTION OF THE COURT IN STRIKING DOWN THE PROGRAM FOR
LACK OF SPECIFIC AUTHORIZATION IS INDEED STRANGE, AND HARD FOR ME TO
UNDERSTAND AT THIS CRITICAL TIME OF NATIONAL EMERGENCY. THE DEFENSE
ESTABLISHMENT SHOULD KNOW - AND NOW - WHETHER ITS PROGRAM IS
CONSTITUTIONAL AND, IF NOT, WHEREIN IT IS DEFICIENT. I AM SURE THAT IT
WILL REMEMBER THAT IN OTHER TIMES OF EMERGENCY - NO MORE GRAVE THAN THE
PRESENT - IT WAS PERMITTED, WITHOUT ANY HEARING WHATSOEVER - MUCH LESS
WITH CONFRONTATION AND CROSS-EXAMINATION - TO REMOVE AMERICAN CITIZENS
FROM THEIR HOMES ON THE WEST COAST AND PLACE THEM IN CONCENTRATION
CAMPS. SEE HIRABAYASHI V. UNITED STATES, 320 U.S. 81 (1943); KOREMATSU
V. UNITED STATES, 323 U.S. 214 (1944). MY EXAMINATION OF THE JAPANESE
EXCLUSION ORDERS INDICATES CLEARLY THAT THE EXECUTIVE ORDER WAS A
GENERAL AUTHORIZATION JUST AS THE TWO HERE. CONGRESS AT THE TIME ONLY
CREATED CRIMINAL OFFENSES FOR VIOLATION OF EXCLUSION OR CURFEW ORDERS
OF THE MILITARY COMMANDER. LIKEWISE WE HAVE CRIMINAL STATUTES HERE.
AND WHILE THE JAPANESE ORDERS WERE IN TIME OF WAR, THOSE INVOLVED HERE
HAD THEIR INCEPTION IN WAR AND HAVE BEEN CONTINUED DURING THE NATIONAL
EMERGENCY DECLARED BY THE PRESIDENT. NO ONE INFORMED IN PRESENT WORLD
AFFAIRS WOULD SAY THAT OUR SAFETY IS LESS IN JEOPARDY TODAY. IN FACT
WE ARE NOW SPENDING NEARLY AS MUCH MONEY TO PROTECT IT AS DURING THE
WAR PERIOD. IN THIS LIGHT IT IS INESCAPABLE THAT THE EXISTING
AUTHORIZATIONS ARE ENTIRELY SUFFICIENT. LET US EXAMINE THEM.
II. THE PRESIDENT AND THE CONGRESS HAVE GRANTED
SUFFICIENT AUTHORITY TO THE CABINET OFFICERS.
SINCE 1941 THE INDUSTRIAL SECURITY PROGRAM HAS BEEN IN OPERATION
UNDER EXPRESS DIRECTIVES FROM THE PRESIDENT. WITHIN A WEEK AFTER THE
ATTACK ON PEARL HARBOR, PRESIDENT ROOSEVELT ISSUED EXEC. ORDER NO.
8972, 6 FED. REG. 6420, DEC. 12, 1941, WHICH AUTHORIZED BOTH THE
SECRETARY OF WAR AND THE SECRETARY OF THE NAVY "TO ESTABLISH AND
MAINTAIN MILITARY GUARDS AND PATROLS, AND TO TAKE OTHER APPROPRIATE
MEASURES, TO PROTECT FROM INJURY AND DESTRUCTION NATIONAL-DEFENSE
MATERIAL, NATIONAL-DEFENSE PREMISES, AND NATIONAL-DEFENSE UTILITIES
.. ."" IN 1942, UNDER THE AUTHORITY OF THAT EXECUTIVE ORDER, THE
SECRETARY OF WAR UNDERTOOK THE FORMULATION AND EXECUTION OF A PROGRAM
OF INDUSTRIAL SECURITY. (FN6) THE PROCEDURES IN OPERATION FROM 1942
AND 1943 ARE OUTLINED IN A 1946 PUBLICATION OF THE DEPARTMENT OF WAR
ENTITLED "SUSPENSION OF SUBVERSIVES FROM PRIVATELY OPERATED FACILITIES
OF IMPORTANCE TO THE SECURITY OF THE NATION'S ARMY AND NAVY PROGRAMS."
(FN7) INTERESTINGLY ENOUGH, THE INSTRUCTIONS WERE ISSUED IN TIME OF
PEACE, DID NOT GIVE THE SUSPECT A HEARING, AND WERE SIGNED BY THE THEN
CHIEF OF STAFF - NOW PRESIDENT - DWIGHT D. EISENHOWER.
IN 1947, THE NATIONAL SECURITY ACT, 61 STAT. 495, EFFECTED A
REORGANIZATION OF THE MILITARY DEPARTMENTS AND PLACED THE SECRETARY OF
DEFENSE AT THE HEAD OF THE NATIONAL MILITARY ESTABLISHMENT. SECTION
305(A) OF THE ACT TRANSFERRED TO THE NEW ORGANIZATION "ALL LAWS,
ORDERS, REGULATIONS, AND OTHER ACTIONS APPLICABLE WITH RESPECT TO ANY
FUNCTION .. TRRANSFERRED UNDER THIS ACT .. ."" SECTION 213 CREATED
A MUNITIONS BOARD WITH THE MILITARY ESTABLISHMENT AND UNDER THE
SUPERVISION OF THE SECRETARY OF DEFENSE. AMONG ITS FUNCTIONS WERE:
"(1) TO COORDINATE THE APPROPRIATE ACTIVITIES WITHIN THE NATIONAL
MILITARY ESTABLISHMENT WITH REGARD TO INDUSTRIAL MATTERS, INCLUDING
PROCUREMENT .. PLLANS .. ; (2) TO PLAN FOR THE MILITARY ASPECTS OF
INDUSTRIAL MOBILIZATION; .. ANND (10) TO PERFORM SUCH OTHER DUTIES AS
THE SECRETARY OF DEFENSE MAY DIRECT." (FN8)
IN HIS FIRST REPORT TO THE PRESIDENT IN 1948, SECRETARY OF DEFENSE
FORRESTAL REPORTED THAT:
" .. THHE MUNITIONS BOARD IS RESPONSIBLE FOR NECESSARY ACTION TO
COORDINATE INTERNAL SECURITY WITHIN THE NATIONAL MILITARY ESTABLISHMENT
WITH REGARD TO INDUSTRIAL MATTERS. THIS WORK IS BEING PLANNED AND IN
SOME PHASES CARRIED FORWARD BY THE FOLLOWING PROGRAMS:
* * * * *
"C. DEVELOPMENT OF PLANS AND DIRECTIVES TO PROTECT CLASSIFIED ARMED
FORCES INFORMATION IN THE HANDS OF INDUSTRY FROM POTENTIAL ENEMIES.
"D. ESTABLISHMENT OF UNIFORM METHODS OF HANDLING OF PERSONNEL
CLEARANCES AND SECRECY AGREEMENTS .. ."" FIRST REPORT OF THE
SECRETARY OF DEFENSE (1948) 102-103.
THE FORERUNNER OF THE EXACT PROGRAM NOW IN EFFECT WAS PUT IN
OPERATION IN 1948 UNDER THE SUPERVISION OF THAT BOARD. AND, IN THE
ANNUAL REPORT TO THE PRESIDENT, IN 1949, THE SECRETARY, THEN LOUIS
JOHNSON, REPORTED THAT:
"INDUSTRIAL SECURITY. - A PROGRAM TO COORDINATE AND DEVELOP UNIFORM
PRACTICES TO PROTECT CLASSIFIED MILITARY INFORMATION PLACED IN THE
HANDS OF INDUSTRY UNDER PROCUREMENT AND RESEARCH CONTRACTS WAS
CONTINUED BY THE MUNITIONS BOARD. CRITERIA WERE DEVELOPED FOR THE
GRANTING OR DENIAL OF PERSONNEL AND FACILITY CLEARANCES IN THE
PERFORMANCE OF CLASSIFIED CONTRACTS. WORK WAS STARTED TO ESTABLISH A
CENTRAL SECURITY CLEARANCE REGISTER TO CENTRALIZE CLEARANCE DATA FOR
READY REFERENCE BY ALL DEPARTMENTS AND TO PREVENT DUPLICATION IN MAKING
CLEARANCE INVESTIGATIONS. A JOINT PERSONNEL SECURITY BOARD ADMINISTERS
THIS PROGRAM, AND THE INDUSTRIAL EMPLOYMENT REVIEW BOARD HEARS APPEALS
FROM SECURITY CLEARANCE DENIALS." SECOND REPORT OF THE SECRETARY OF
DEFENSE, FOR THE FISCAL YEAR 1949 (1950), 85.
TRANSMITTED WITH THAT REPORT TO THE PRESIDENT WAS THE ANNUAL REPORT
OF THE SECRETARY OF THE ARMY, WHERE THE NUMBER OF SECURITY CASES
PROCESSED BY THE ARMY-NAVY-AIR FORCE PERSONNEL BOARD, AND THE NUMBER OF
APPEALS HANDLED BY THE INDUSTRIAL EMPLOYMENT REVIEW BOARD WERE
DETAILED. (FN9)
AGAIN IN 1950 THE SECRETARY OF DEFENSE INFORMED THE PRESIDENT, IN A
REPORT REQUIRED BY LAW, OF THE STATUS OF THE INDUSTRIAL SECURITY
PROGRAM.
"IN THE PAST 6 MONTHS, THE MUNITIONS BOARD ACTIVATED THE INDUSTRIAL
EMPLOYMENT REVIEW BOARD, ESTABLISHED PROCEDURES UNDER WHICH THE LATTER
WILL OPERATE, AND DEVELOPED A SET OF UNIFORM CRITERIA STIPULATING THE
CIRCUMSTANCES UNDER WHICH SECURITY CLEARANCES WILL BE DENIED. THE
MUNITIONS BOARD ALSO ESTABLISHED A CENTRAL INDEX SECURITY CLEARANCE
FILE TO SERVE AS A CLEARING HOUSE FOR ALL INDIVIDUAL AND FACILITY
CLEARANCES AND DENIALS, AND DEVELOPED A STANDARD SECURITY REQUIREMENTS
CHECK LIST .. . UNIFORM STANDARDS FOR SECURITY INVESTIGATIONS OF
FACILITY AND CONTRACTORS' PERSONNEL ARE BEING DEVELOPED .. . A
STANDARD MILITARY SECURITY AGREEMENT IS BEING COORDINATED TO BIND
POTENTIAL SUPPLIERS TO SECURITY REGULATIONS BEFORE A CLASSIFIED
CONTRACT IS AWARDED, AND A MANUAL TO GIVE SECURITY GUIDANCE TO INDUSTRY
IS BEING PREPARED." SEMIANNUAL REPORT OF THE SECRETARY OF DEFENSE,
JULY 1 TO DEC. 31, 1949 (1950), 97.
THE PRESIDENT, IN 1953, IN REORGANIZATION PLAN NO. 6, 67 STAT. 638,
TRANSFERRED ALL OF THE "FUNCTIONS OF THE MUNITIONS BOARD" TO THE
SECRETARY OF DEFENSE AND DISSOLVED THAT BOARD. SINCE THEN THE PROGRAM
HAS BEEN IN OPERATION UNDER THE AUTHORITY OF THE SECRETARY. ALSO IN
1953, THE PRESIDENT ISSUED EXEC. ORDER NO. 10450, APR. 27, 1953, 18
FED. REG. 2489, 3 CFR (1949-1953 COMP.), P. 936. THAT ORDER DEALT WITH
THE CRITERIA AND PROCEDURES TO BE USED IN THE FEDERAL LOYALTY SECURITY
PROGRAM, WHICH HAD BEEN INSTITUTED UNDER EXEC. ORDER NO. 9835, 12 FED.
REG. 1935, 3 CFR (1943-1948 COMP.), P. 630, MAR. 21, 1947. THE LATTER
ORDER MADE CLEAR THAT FEDERAL EMPLOYEES SUSPECTED OF DISLOYALTY HAD NO
RIGHT OF CONFRONTATION. (FN10) AND THE REGULATIONS PROMULGATED UNDER
THE ORDER PROVIDED NO SUCH RIGHT. SEE 13 FED. REG. 9365, 5 CFR (1949),
SEC. 210, DEC. 31, 1948. THESE PROCEDURES WERE REVISED UNDER EXEC.
ORDER NO. 10450, SUPRA, ALTHOUGH AGAIN, CONFRONTATION AND CROSS
EXAMINATION WERE NOT PROVIDED. SEE 19 FED. REG. 1503, 32 CFR, P. 288,
MAR. 19, 1954. THUS, IT WAS CLEAR THAT THE PRESIDENT HAD NOT
CONTEMPLATED THAT THERE WOULD BE A RIGHT OF CONFRONTATION IN THE
FEDERAL LOYALTY SECURITY PROGRAM. AND THE REPORT OF THE SECRETARY OF
THE ARMY - TRANSMITTED TO THE PRESIDENT BY THE SECRETARY OF DEFENSE -
MADE CLEAR THAT THE CRITERIA OF EXEC. ORDER NO. 10450 WERE BEING
UTILIZED NOT ONLY WHERE THE LOYALTY OF A GOVERNMENT EMPLOYEE WAS IN
DOUBT, BUT ALSO IN CARRYING OUT THE INDUSTRIAL SECURITY PROGRAM.
SEMIANNUAL REPORT OF THE SECRETARY OF THE ARMY, JAN. 1, 1954, TO JUNE
30, 1954, 135-136.
THUS WE SEE THAT THE PROGRAM HAS FOR 18 YEARS BEEN CARRIED ON UNDER
THE EXPRESS AUTHORITY OF THE PRESIDENT, AND HAS BEEN REGULARLY REPORTED
TO HIM BY HIS HIGHEST CABINET OFFICERS. HOW THE COURT CAN SAY, DESPITE
THESE FACTS, THAT THE PRESIDENT HAS NOT SUFFICIENTLY AUTHORIZED THE
PROGRAM IS BEYOND ME, UNLESS THE COURT MEANS THAT IT IS NECESSARY FOR
THE PRESIDENT TO WRITE OUT THE INDUSTRIAL SECURITY MANUAL IN HIS OWN
HAND.
FURTHERMORE, I THINK CONGRESS HAS SUFFICIENTLY AUTHORIZED THE
PROGRAM, AS IT HAS BEEN KEPT FULLY AWARE OF ITS DEVELOPMENT AND HAS
APPROPRIATED MONEY TO SUPPORT IT. DURING THE FORMATIVE PERIOD OF THE
PROGRAM, 1949-1951, THE CONGRESS, THROUGH APPROPRIATION HEARINGS, WAS
KEPT FULLY INFORMED AS TO THE ACTIVITY. IN 1949 D.F. CARPENTER,
CHAIRMAN OF THE MUNITIONS BOARD, APPEARED BEFORE A SUBCOMMITTEE OF THE
HOUSE COMMITTEE ON APPROPRIATIONS TO TESTIFY CONCERNING THE REQUESTED
APPROPRIATION FOR THE BOARD. WHILE THE REPORT INDICATES MUCH OF THE
TESTIMONY WAS "OFF THE RECORD," IT DOES CONTAIN SPECIFIC REFERENCES TO
THE PROGRAM HERE UNDER ATTACK. (FN11) SIGNIFICANTLY THE APPROPRIATION
BILL FOR 1950 INCLUDED AN ITEM OF $11,300,000 FOR THE MAINTENANCE,
INTER ALIA, OF THE BOARD.
AGAIN, IN 1950 GENERAL TIMBERLAKE, A MEMBER OF THE BOARD, TESTIFIED:
"THEN WE ARE GOING TO INTENSIFY THE INDUSTRIAL MOBILIZATION PLANNING
WITH THE DEPARTMENT OF DEFENSE, WITH PARTICULAR EMPHASIS ON INDUSTRIAL
SECURITY .. ."" HOUSE OF REPRESENTATIVES, HEARINGS BEFORE A
SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS ON THE SUPPLEMENTAL
APPROPRIATION FOR 1951, 81ST CONG., 2D SESS. 264.
WHILE, AGAIN, SOME OF THE TESTIMONY WAS "OFF THE RECORD" IT WAS
SUFFICIENTLY URGENT AND DETAILED FOR THE CONGRESS TO APPROPRIATE
ADDITIONAL FUNDS FOR THE BOARD FOR 1951. (FN12)
BY THE 1953 REORGANIZATION PLAN, THE FUNCTIONS OF THE MUNITIONS BOARD
WERE TRANSFERRED TO VARIOUS ASSISTANT SECRETARIES OF DEFENSE. THE
INDUSTRIAL SECURITY PROGRAM WAS PUT UNDER THE ASSISTANT SECRETARY OF
DEFENSE FOR MANPOWER, PERSONNEL, AND RESERVE FORCES. OF COURSE, THIS
OFFICE RECEIVED AN APPROPRIATION EACH YEAR. THESE HEARINGS, TO CITE
BUT TWO, CERTAINLY INDICATE AN AWARENESS ON THE PART OF CONGRESS OF THE
EXISTENCE OF THE INDUSTRIAL SECURITY PROGRAM, AND THE CONTINUED
APPROPRIATIONS HARDLY BESPEAK AN UNWILLINGNESS ON THE PART OF CONGRESS
THAT IT BE CARRIED ON. IN 1955, THE EIGHTY-FOURTH CONGRESS, ON THE
MOTION OF SENATOR WILEY FOR UNANIMOUS CONSENT, CAUSED TO BE PRINTED THE
SO-CALLED INTERNAL SECURITY MANUAL, S. DOC. NO. 40, 84TH CONG., 1ST
SESS. IT IS A COMPILATION OF ALL LAWS, REGULATIONS, AND CONGRESSIONAL
COMMITTEES RELATING TO THE NATIONAL SECURITY. CONTAINED IN THE VOLUME
IS THE "INDUSTRIAL PERSONNEL SECURITY REVIEW REGULATION," I.E., AT
VERBATIM COPY OF THE REGULATIONS SET UP BY THE SECRETARY OF DEFENSE ON
FEBRUARY 2, 1955. THIS MANUAL OUTLINED IN DETAIL THE HEARING
PROCEDURES WHICH ARE HERE CONDEMNED BY THE COURT. AND IT IS IMPORTANT
TO NOTE THAT THE FINAL DENIAL OF GREENE'S CLEARANCE WAS BY A BOARD
ACTING UNDER THESE VERY REGULATIONS. STILL NOT ONE VOICE WAS RAISED
EITHER WITHIN OR WITHOUT THE HALLS OF CONGRESS THAT THE DEFENSE
DEPARTMENT HAD EXCEEDED ITS AUTHORITY OR THAT CONTRACTOR EMPLOYEES WERE
BEING DENIED THEIR CONSTITUTIONAL RIGHTS. IN OTHER CASES WE HAVE HELD
THAT THE INACTION OF THE CONGRESS, IN CIRCUMSTANCES MUCH LESS SPECIFIC
THAN HERE, WAS A CLEAR RATIFICATION OF A PROGRAM AS IT WAS THEN BEING
CARRIED OUT BY THE EXECUTIVE. WHY, I ASK, DO WE NOT DO THAT HERE WHERE
IT IS SO VITAL? WE SHOULD NOT BE "THAT BLIND COURT .. THHAT DOES NOT
SEE WHAT 'ALL OTHERS CAN SEE AND UNDERSTAND .. .''" UNITED STATES V.
RUMELY, 345 U.S. 41, 44 (1953).
WHILE IT CERTAINLY IS NOT CLEAR TO ME, I SUPPOSE THAT THE PRESENT
FASTIDIOUSNESS OF THE COURT CAN BE SATISFIED BY THE PRESIDENT'S
INCORPORATING THE PRESENT INDUSTRIAL SECURITY PROGRAM INTO A SPECIFIC
EXECUTIVE ORDER OR THE CONGRESS' PLACING IT ON THE STATUTE BOOKS. TO
ME THIS SEEMS ENTIRELY SUPERFLUOUS IN LIGHT OF THE CLEAR AUTHORIZATION
PRESENTLY EXISTING IN THE CABINET OFFICERS. IT ALSO SUBJECTS THE
GOVERNMENT TO MULTITUDINOUS ACTIONS - AND PERHAPS LARGE DAMAGES - BY
REASON OF DISCHARGES MADE PURSUANT TO THE PRESENT PROCEDURES.
AND I MIGHT ADD A NOTA BENE. EVEN IF THE CABINET OFFICERS ARE GIVEN
THIS SPECIFIC DIRECTION, THE OPINION TODAY, BY DEALING SO COPIOUSLY
WITH THE CONSTITUTIONAL ISSUES, PUTS A CLOUD OVER BOTH THE EMPLOYEE
LOYALTY PROGRAM AND THE ONE HERE UNDER ATTACK. NEITHER REQUIRES THAT
HEARINGS AFFORD CONFRONTATION OR CROSS-EXAMINATION. WHILE THE COURT
DISCLAIMS DECIDING THIS CONSTITUTIONAL QUESTION, NO ONE READING THE
OPINION WILL DOUBT THAT THE EXPLICIT LANGUAGE OF ITS BROAD SWEEP SPEAKS
IN PROPHECY. LET US HOPE THAT THE WINDS MAY CHANGE. IF THEY DO NOT
THE PRESENT TEMPORARY DEBACLE WILL TURN INTO A ROUT OF OUR INTERNAL
SECURITY.
FN1 MY BROTHER HARLAN VERY KINDLY CREDITS ME WITH "COLORFUL
CHARACTERIZATION" IN STATING THIS AS THE ISSUE. WHILE I TAKE GREAT
PRIDE IN AUTHORSHIP, I MUST SAY THAT IN THIS INSTANCE I MERELY AGREED
WITH THE STATEMENT OF THE ISSUE BY THE SOLICITOR GENERAL AND HIS CO
COUNSEL IN FIVE DIFFERENT PLACES IN THE BRIEF FOR THE UNITED STATES.
SEE PP. 2, 17, 19, 29, 59.
FN2 ERCO AGREED IN ITS GOVERNMENT CONTRACT, AS WAS WELL KNOWN TO
GREENE, TO EXCLUDE ANY INDIVIDUAL FROM ANY PART OF ITS PLANT AT WHICH
WORK UNDER THE CONTRACT WAS BEING PERFORMED WHO HAD NOT BEEN CLEARED BY
THE NAVY FOR ACCESS TO MILITARY SECRETS.
FN3 BROTHER HARLAN STATES THAT I SUGGEST "THAT THE COURT'S ACTION
TODAY REQUIRES 'THE PRESIDENT'S CABINET MEMBERS TO REVOKE THEIR REFUSAL
TO GIVE' THE PETITIONER 'ACCESS TO MILITARY SECRETS,' DESPITE ANY VIEWS
THEY MAY HAVE AS TO HIS RELIABILITY .. ."" GOVERNMENT OFFICIALS,
WELL VERSED IN THE APPLICATION OF THIS COURT'S JUDGMENTS TO THE
PRACTICALITIES OF GOVERNMENT OPERATION, SAY THAT THE RELIEF WHICH
GREENE SEEKS HERE - AND WHICH THE COURT NOW GRANTS - IS "IN SUBSTANCE,
A MANDATORY INJUNCTION REQUIRING THAT THE GOVERNMENT SHOW HIM (OR, IN
PRACTICE, ALLOW CONTRACTORS TO SHOW HIM) DEFENSE SECRETS,
NOTWITHSTANDING THE JUDGMENT OF THE EXECUTIVE BRANCH THAT SUCH
DISCLOSURE MIGHT JEOPARDIZE THE NATIONAL SAFETY." BRIEF FOR THE UNITED
STATES, 48. FN4 DENT V. WEST VIRGINIA, 129 U.S. 114 (1889), HELD
THAT A WEST VIRGINIA STATUTE DID NOT DEPRIVE ONE PREVIOUSLY PRACTICING
MEDICINE OF HIS RIGHTS WITHOUT DUE PROCESS BY REQUIRING HIM TO OBTAIN A
LICENSE UNDER THE ACT. SCHWARE V. BOARD OF BAR EXAMINERS, 353 U.S. 232
(1957), LIKEWISE A LICENSE CASE, DID NOT PASS UPON THE "RIGHT" OR
"PRIVILEGE" TO PRACTICE LAW, MERELY HOLDING THAT ON THE FACTS THE
REFUSAL TO PERMIT SCHWARE TO TAKE THE EXAMINATION WAS "INVIDIOUSLY
DISCRIMINATORY." IN PETERS V. HOBBY, 349 U.S. 331 (1955), THE COURT
SIMPLY HELD THE ACTION TAKEN VIOLATED THE EXECUTIVE ORDER INVOLVED.
THE CONCURRING OPINION, DOUGLAS, J., P. 350, WENT FURTHER BUT ALONE ON
THE QUESTION OF "RIGHT." THE COURT DID NOT DISCUSS THAT QUESTION, MUCH
LESS PASS UPON IT. SLOCHOWER V. BOARD OF EDUCATION, 350 U.S. 551
(1956), HELD THAT THE SUMMARY DISMISSAL WITHOUT FURTHER EVIDENCE BY NEW
YORK OF A SCHOOL TEACHER BECAUSE HE HAD PLEADED THE FIFTH AMENDMENT
BEFORE A UNITED STATES SENATE COMMITTEE VIOLATED DUE PROCESS. THE CASE
MERELY TOUCHED ON THE "RIGHT" TO PLEAD THE FIFTH AMENDMENT, NOT TO
"PROPERTY" RIGHTS. TRUAX V. RAICH, 239 U.S. 33 (1915); ALLGEYER V.
LOUISIANA, 165 U.S. 578 (1897); AND POWELL V. PENNSYLVANIA, 127 U.S.
678 (1888), WERE EQUAL PROTECTION CASES WHEREIN DISCRIMINATION WAS
CLAIMED. GREENE ALLEGES NO DISCRIMINATION.
FN5 SEE BAILEY V. RICHARDSON, 86 U.S. APP. D.C. 248, 182 F.2D 46,
AFFIRMED BY AN EQUALLY DIVIDED COURT, 341 U.S. 918 (1951); PETERS V.
HOBBY, 349 U.S. 331 (1955).
FN6 REPORT OF THE COMMISSION ON GOVERNMENT SECURITY (1957), S. DOC.
NO. 64, 85TH CONG., 1ST SESS. 237, N. 7.
FN7 WAR DEPARTMENT PAMPHLET NO. 32-4 (1946) PROVIDED BOTH CRITERIA
AND PROCEDURES FOR REMOVAL OF SUBVERSIVES. THE BASIC CRITERION WAS
"GOOD CAUSE TO SUSPECT AN EMPLOYEE OF SUBVERSIVE ACTIVITY .. ,"" THE
LATTER BEING DEFINED AS "SABOTAGE, ESPIONAGE, OR ANY OTHER WILFUL
ACTIVITY INTENDED TO DISRUPT THE NATIONAL DEFENSE PROGRAM." THE BASIC
PROCEDURE FOR REMOVAL WAS SET OUT IN PARA. 10:
"10. WHEN ADEQUATE INVESTIGATION HAS REVEALED THAT THERE IS GOOD
CAUSE TO SUSPECT AN EMPLOYEE OF SUBVERSIVE ACTIVITY ON A NATIONAL
DEFENSE PROJECT OF IMPORTANCE TO ARMY OR NAVY PROCUREMENT, THE VITAL
SUCCESS OF THE PROJECT, AS WELL AS THE SECURITY OF THE LOYAL EMPLOYEES,
MAY REQUIRE THAT THE ARMY OR NAVY, WITHOUT REVEALING THE NATURE OR
SOURCE OF ITS EVIDENCE, REQUEST THE IMMEDIATE REMOVAL OF SUCH
INDIVIDUAL FROM THE PROJECT. TO THIS END THE COOPERATION OF THE
ORGANIZATIONS REPRESENTATIVE OF ORGANIZED LABOR IS SOLICITED FOR THE
FOLLOWING PROGRAM .. .""
CLEARLY THIS PROCEDURE DID NOT ANTICIPATE CONFRONTATION OR CROSS
EXAMINATION.
FN8 THE NATIONAL SECURITY ACT AMENDMENTS OF 1949, 63 STAT. 578,
AMENDED SEC. 213 SO AS TO DELETE SUBPARAGRAPH 10.
FN9 ANNUAL REPORT OF THE SECRETARY OF THE ARMY FOR THE FISCAL YEAR
1949 (1950), 192.
FN10 PART IV, SEC. 2 OF EXEC. ORDER NO. 9835 SPECIFICALLY STATED
THAT: " .. THHE INVESTIGATIVE AGENCY MAY REFUSE TO DISCLOSE THE
NAMES OF CONFIDENTIAL INFORMANTS, PROVIDED IT FURNISHES SUFFICIENT
INFORMATION ABOUT SUCH INFORMANTS ON THE BASIS OF WHICH THE REQUESTING
DEPARTMENT OR AGENCY CAN MAKE AN ADEQUATE EVALUATION OF THE INFORMATION
FURNISHED BY THEM, AND PROVIDED IT ADVISES THE REQUESTING DEPARTMENT OR
AGENCY IN WRITING THAT IT IS ESSENTIAL TO THE PROTECTION OF THE
INFORMANTS OR TO THE INVESTIGATION OF OTHER CASES THAT THE IDENTITY OF
THE INFORMANTS NOT BE REVEALED .. .""
FN11 HOUSE OF REPRESENTATIVES, HEARINGS BEFORE THE SUBCOMMITTEE OF
THE COMMITTEE ON APPROPRIATIONS ON THE NATIONAL MILITARY ESTABLISHMENT
APPROPRIATION BILL FOR 1950, 81ST CONG., 1ST SESS. 91.
FN12 THE REASON FOR THE DEARTH OF LEGISLATIVE REFERENCE TO THE
PROGRAM APPEARS IN SOME 1955 HEARINGS ON AN APPROPRIATION BILL. UNDER
CONSIDERATION AT THE TIME WAS A PROPOSAL FOR A FUND TO REIMBURSE
CONTRACTOR EMPLOYEES WHO HAD BEEN SUSPENDED DURING A SECURITY CHECK AND
SUBSEQUENTLY CLEARED. GENERAL MOORE TESTIFIED THAT, IN THE PAST, SUCH
REIMBURSEMENT HAD BEEN MADE BY THE SERVICE SECRETARIES OUT OF THEIR
CONTINGENCY FUNDS. THEN FOLLOWED THIS COLLOQUY:
"MR. MAHON. UNDER THAT (THE CONTINGENCY FUND) YOU CAN BUY A BOY A
TOP, OR A TOY, PROVIDED THE SECRETARY OF DEFENSE THINKS IT IS PROPER?
"GEN. MOORE. THAT IS RIGHT, AND WE COME DOWN HERE AND EXPLAIN TO
THIS COMMITTEE WITH RESPECT TO THIS IN A VERY SECRET SESSION HOW MUCH
WE HAVE SPENT AND PRECISELY WHAT WE HAVE SPENT IT FOR." HOUSE OF
REPRESENTATIVES, HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON
APPROPRIATIONS ON DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1956, 84TH
CONG., 1ST SESS. 780.