Mr. CULVER. Would the same disability apply to employees denied clearance where their employment was or would be in a plant designated merely for standby purposes, the same action would be taken? Mr. LIEBLING. If the position were determined as critical or sensitive, where we apply the same criteria under the Industrial Defense Program as we do now in the Industrial Security Program, yes, we would use the same principle.

Mr. CULVER. This is the point that I wish to establish and clarify just for myself. This is not a hostile confrontation, I hope.

Mr. LIEBLING. I accept it as such. It certainly is not.

Mr. CULVER. I think it is useful for me at least to know to what extent, if any, denial of clearance only means denying an individual access to classified information, as distinguished from denying or inhibiting his employment opportunities. That is a question that con

cerns me.

Mr. LIEBLING. As I said, it is a matter of official policy and procedure. He can be employed in unclassified work in unclassified areas, but of course you are talking about an employer-employee relationship there. The Government would not enter into a situation like that in the Industrial Security Program and would be precluded from doing so under present guidelines.

Mr. CULVER. Do the persons who make final decisions on clearance have access to any information, for example, investigative reports that are not presented openly at a hearing? They do?

Mr. LIEBLING. Certainly, for the screening board.

Mr. CULVER. If they do, does the availability of hearings or other further proceedings mean anything in determination of or defending the individual's interest?

Mr. LIEBLING. It certainly does.

Mr. CULVER. On the basis of this report.

Mr. LIEBLING. As I indicated earlier, he is given a statement which is in pretty much detail.

Mr. CULVER. Pretty much detail.

Mr. LIEBLING. Pretty much detail. He can come in with his attorney. Obviously if we have approved 50.3 percent; that is indicative that there have been slightly more than half that have been justified.

Mr. CULVER. That figure impresses me. I am very impressed by that figure. I think it does speak well for the administrative machinery on the basis of the total number of cases considered. With respect to the provisions of the proposed legislation that provide for the granting of immunity when testimony is to be compelled from a reluctant witness, would the individual whose clearance is at issue have the right to require that immunity be granted to a reluctant witness whose testimony he wished to introduce, or as perhaps seems probable would the granting of immunity be an option that was available only to the authorities whose job was to deny clearance?

Mr. LIEBLING. I think we are getting into an area where you are talking about our hearing procedure and due process procedure or the right of confrontation or bringing before a board. I would have to defer to the attorneys on that.

Mr. YEAGLEY. I would have to recheck the language of the immunity provision and I don't recall that it would apply in the fashion that you have described it, Mr. Congressman. Certainly an individual

citizen should not have the authority to grant immunity, but if it went before the Board, it would be up to the Board. I am thumbing through the bill and am unable to locate the immunity provision to give you a better answer.

Mr. NITTLE. That is on page 19, subsection (n).

Mr. YEAGLEY. I believe the answer would be yes that it could be done that way. As you know, it provides for regulations to be issued by the President under which process can be issued apparently by the Board to bring a person in. And if the person refused to testify on the grounds that it might incriminate him, apparently the Board can compel his testimony regardless of whether it was a Government. witness or employee witness. Apparently there is no distinction and that immunity could be given.

Mr. CULVER. I have one last line of questions regarding how the operations of a screening program could be narrowed consistent with the national security interest.

I think, Mr. Yeagley, you suggested in your prepared statement, or at least seemed somewhat receptive to, a narrowing of the proposed legislation. The thing that disturbs me is that the basic criterion for clearance, "consistent with the national interest," seems to me to be so broad as to vest almost unlimited discretion in the authorities administering a screening program, whether it is the Secretary of Defense or whoever he may be.

At page 22 of the transcript Mr. Liebling suggested the "consistent with the national interest" standard in preference to, and as broader than, a standard focusing on "national defense and security interests." This makes it clear

The CHAIRMAN. I might advise my good colleague that the bill had the words "security interests" and changed, or what were the words? Would you respond to that, Mr. Smith?

Mr. SMITH. Yes, "national interest" and we had "security interests." Mr. CULVER. And I much prefer the committee's language and I would like to discuss this.

The CHAIRMAN. We might go back to it. I don't know.

Mr. CULVER. It seems to me that this would enable someone in the executive who was conducting the screening to see that the considerations to be protected in administering the screening program were not limited to military or industrial security and other national interests might be taken into account. There are, of course, virtually an infinite variety of national interests. It seems to me that it is in our national interest to have harmonious relations with other nations.

Mr. Liebling, do you think to have harmonious relations with South Africa, a gold-producing and strategically situated country, with bases that could be of significant military utility, the employment of Negroes in certain positions be barred?

Would employment of an individual who is widely known as being dogmatically and eloquently opposed to dictatorships of any form whatsoever be "in the national interest" in maintaining good relations with such countries?

With respect to good relations with Nationalist China what about an individual who thinks that the cause of peace would be served by increasing interchanges between the United States and Red China? I would be interested in your views on this.

Mr. LIEBLING. These would be my personal views I presume based on my experience.

Mr. CULVER. Just based on the wisdom of providing such a broad authority.

Mr. LIEBLING. I will admit that the executive branch-if you get into the legal aspects of what we mean by national interests or national security, I will have to defer to Mr. Yeagley on this aspect, but as far as national security and national interest to me is concerned, as such, in administering a program like this, obviously your prime application of the program, your prime consideration would be your ability to defend yourself so national interest or national security to me would be one political harmony, yes, to answer you generally, here and abroad, economic stability, military capability to defend yourselves against adversity.

Mr. CULVER. What do you find undesirable about the initial committee language, which I think is much more tightly drawn and narrow and responsible than the administration language?

Mr. LIEBLING. We don't find it objectionable at all. We merely indicated a change which to us

Mr. CULVER. Would broaden it.

Mr. LIEBLING. Because we have been working under an Executive order which uses the phrase "consistent with the national interest."

Mr. CULVER. So you have just gotten comfortable with the phrase. Mr. LIEBLING. I understand it, I presume.

The CHAIRMAN. Where were those words initiated, in whose administration?

Mr. YEAGLEY. It was under 10865 under the Eisenhower administration.

Mr. LIEBLING. I believe in 59 or '60.

Mr. YEAGLEY. Whenever 10865 was issued, I believe in 1960.

The CHAIRMAN. During the "new frontier" days.

Mr. LIEBLING. As far as security management was concerned. (At this point Mr. Roudebush left the hearing room.)

Mr. CULVER. Yes, Mr. Chairman.

Mr. Yeagley, with respect to proposed provisions to preclude judicial intervention pending exhaustion of all administrative remedies, would there be any limit to the time that authorities could take in rendering a final administrative decision?

Mr. YEAGLEY. I don't recall any limitation in the bill.

Mr. CULVER. Would it not be a reasonable accommodation of the differing interests concerned for the legislation to place a time limit, say, of 3 months for administrative proceedings to take their course, at the end of which time judicial intervention should not be precluded in appropriate circumstances?

Mr. YEAGLEY. I don't know what period of time would be reasonable. There is such a variation in the requirements in different cases. Sometimes there are reinvestigations, as I understand. Mr. Liebling would know more of the time problems. As far as we are concerned, it is a matter for the Congress and for the Defense Department. Mr. CULVER. I was interested, Mr. Yeagley, based on your vast experience in this area. I wondered whether or not you felt that it would be in the interests of the administration of justice and due process

94-756-68-pt. 1-13

to put some time limit on it, or whether or not this would be inapplicable for some reason and, if so, I would be interested to know the

reason.

Mr. YEAGLEY. You are speaking of a time limit after which
Mr. CULVER. The judicial intervention would be ripe.

Mr. YEAGLEY. If a reasonable time limit can be determined for, let's say, legislative purposes, I would think so. Ordinarily the employee must first exhaust his administrative remedies before going to

court.

Mr. CULVER. Would you be kind enough to have your staff give that some reflection and make a recommendation.

Mr. YEAGLEY. Well, the time would be a matter of operations, I think; of what is required in the operations of the program by the Defense Department or within the Defense Department.

Mr. CULVER. Do you have any thoughts on that?

Mr. YEAGLEY. I don't.

Mr. CULVER. Do you have legal counsel with you that might?
Mr. LIEBLING. No. We could check that with legal counsel.

Mr. CULVER. Are there now, or would there be under the proposed legislation, provisions to continue salary payments to an employee who is denied actual employment pending administrative proceedings? Mr. YEAGLEY. I believe the Department of Defense had some arrangements for compensation, is that right?

Mr. LIEBLING. We do in cases of where the decision may have been reversed where, let's say, a suspension is undertaken or revocation of clearance.

Mr. CULVER. But it is not done in all cases.

Mr. LIEBLING. I have a specialist here.

Mr. SCANLON. May I have the question again, sir?

Mr. CULVER. Yes. Are there now, or would there be under the proposed legislation, provisions to continue salary payments to an employee who is denied actual employment pending administrative proceedings?

Mr. SCANLON. Mr. Congressman, the man is not denied employment while these proceedings are pending, normally. Normally, he must have a job where he needs access before he comes to our program. Mr. CULVER. But once you make the initial determination and trigger the administrative proceedings my question is, does he remain on the payroll?

Mr. SCANLON. He is not denied a clearance until the proceedings get to the natural end.

Mr. CULVER. The natural end.

Mr. SCANLON. If you will give me a moment to run through this for you. He is hired, his employer puts in a request for clearance. This man is still on the payroll.

Mr. CULVER. I wonder if you could get a mike.

Mr. SCANLON. His employer puts in a request for clearance for him while he is on the payroll. The investigative process is started. He is on the payroll normally during this entire period. The investigation develops adverse information. It comes in to us. We start to adjudicate it. We can clear him, at which point he gets the Secret or Top Secret.

Mr. CULVER. When that adverse information comes in, what do you do with regard to employment?

Mr. SCANLON. If our screening board decides that adverse information is of a serious enough nature to possibly warrant denial of clearance, they will prepare a statement of reasons telling him specifically, and in detail, why they feel he should be denied clearance. He is still not denied employment. He gets the statement of reasons, has an opportunity to answer it in writing and request hearing.

Mr. CULVER. And he is still on the payroll?

Mr. SCANLON. Yes, sir. He comes into the hearing, and this is a point that I would like to correct, where I think there is a misunderstanding just now. Once the statement of reasons is issued by the screening board and the applicant responds to it in writing and requests a hearing, from that point on nobody in the adjudicative process has access to that investigative file. When he goes before the hearing examiner, the Government presents its proof of the allegations in the statement of reasons by live witness testimony and documentary evidence, and so on; the applicant presents his rebuttal and in support for his application for clearance. That is presented in an open hearing before the hearing examiner, who has no access to the investigative file, and he makes his determination based on the information placed in the open record before him without ever seeing the investigative file. If the man is entitled to clearance at that point, he gets the clearance.

If the examiner makes an adverse determination and denies him clearance, he still does not lose his job, as far as the Government is concerned. He has an opportunity to appeal to the Appeal Board. Mr. CULVER. And he is on the payroll during this period?

Mr. SCANLON. He is still on the payroll, or we discontinue his case as far as clearance is concerned.

Mr. CULVER. I appreciate hearing your response. It seems to me that, without some compensation, how many employees can afford to litigate with the Federal Government and to take an appeal? During this period he is still on the payroll.

Mr. LIEBLING. He is always employed.

Mr. SCANLON. It is only when that final adverse determination is made either by the Appeal Board after the appeal or by the examiner, that then we notify the employer that this man is denied a clearance and the employer can do what he wants to.

Mr. LIEBLING. Even after denial he may still be on the payroll, as I indicated earlier, and be placed in another position. Of course, if he is a highly skilled engineer, this may be difficult.

The CHAIRMAN. Off the record.

(Discussion off the record.)

(At this point Mr. Willis left the hearing room.)

Mr. CULVER. Thank you, Mr. Chairman. I appreciate the time and I wonder, Congressman Tuck, if I may submit the remaining questions I have in writing. I don't want to take any more time. Could I submit those for the record to be answered?

Mr. LIEBLING. That is perfectly OK.

Mr. YEAGLEY. Yes. May I make one other comment on your earlier question about the criteria?

Mr. CULVER. Yes.