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.