Page images
PDF
EPUB

UNITED STATES v. ROBEL.

plex litigation, the SACB found the Communist Party to be a Communist-action organization within the meaning of the Act. That conclusion was affirmed both by the Court of Appeals, Communist Party v. SACB, 107 U. S. App. D. C. 279, 277 F. 2d 78 (1959), and this Court, 367 U. S. 1 (1961). Also affirmed were the underlying determinations, required by the Act, that the Party is directed or controlled by a foreign government or organization, that it operates primarily to advance the aims of the world Communist movement, and that it sufficiently satisfies the criteria of Communistaction organizations specified by $ 792 (e), including the finding by the Board that many Party members are subject to or recognize the discipline of the controlling foreign government or organization. This Court accepted the congressional appraisal that the Party posed a threat "not only to existing government in the United States, but to the United States as a sovereign, independent nation ...." 367 U. S., at 95.

Against this background protective measures were clearly appropriate. One of them, contained in $ 784 (a)(1)(D), which became activated with the affirmance of the Party's designation as a Communist-action organization, makes it unlawful “[f]or any member of such organization, with knowledge or notice ... that such order has become final ... to engage in any employment in any defense facility. A defense facility is any of the specified types of establishment "with respect to the operation of which [the Secretary of Defense) finds and determines that the security of the United States requires” that members of such organizations not be employed. Given the characteristics of the Party, its foreign domination, its primary goal of government overthrow, the discipline which it exercises over its members, and its propensity for espionage and sabotage, the exclusion of members of the Party who know the Party is a

.

94-756 0 - 68 - pt. 2 -- 3

UNITED STATES v. ROBEL.

Communist-action organization from certain defense plants is well within the powers of Congress.

Congress should be entitled to take suitable precautionary measures. Some Party members may be no threat at all, but many of them undoubtedly are, and it is exceedingly difficult to identify those in advance of the very events which Congress seeks to avoid. If Party members such as Robel may be barred from "sensitive positions," it is because they are potential threats to security. For the same reason they should be excludable from employment in defense plants which Congress and the Secretary of Defense consider of critical importance to the security of the country.

The statute does not prohibit membership in the Communist Party. Nor are respondent and other Communists excluded from all employment in the United States, or even from all defense plants. The touchstones for exclusion are the requirements of national security, and the facilities designated under this standard amount to only about one percent of all the industrial establishments in the United States.

It is this impact on associational rights, although specific and minimal, which the Court finds impermissible. But as the statute's dampening effect on associational rights is to be weighed against the asserted and obvious government interest in keeping members of Communist-action groups from defense facilities, it would seem important to identify what interest Robel has in joining and remaining a member of a group whose primary goals he may not share. We are unenlightened, however, by the opinion of the Court or by the record in this case, as to the purposes which Robel and others like him may have in associating with the Party. The legal aims and programs of the Party are not identified or appraised nor are Robel's activities as a member of

UNITED STATES v. ROBEL.

the Party. The Court is left with a vague and formless concept of associational rights and its own notions of what constitutes an unreasonable risk to defense facilities.

The Court says that mere membership in an association with knowledge that the association pursues unlawful aims cannot be the basis for criminal prosecution, Scales v. United States, 367 U. S. 203 (1961), or for denial of a passport, Aptheker v. Secretary of State, 378 U. S. 500 (1964). But denying the opportunity to be employed in some defense plants is a much smaller deterrent to the exercise of associational rights than denial of a passport or a criminal penalty attached solely to membership, and the Government's interest in keeping potential spies and saboteurs from defense plants is much greater than its interest in keeping disloyal Americans from traveling abroad or in committing all Party members to prison. The "delicate and difficult judgment" to which the Court refers should thus result in a different conclusion from that reached in the Scales and Aptheker cases.?

The Court's motives are worthy. It seeks the widest bounds for the exercise of individual liberty consistent with the security of the country. In so doing it arro

2 I cannot agree with my Brother BRENNAN that Congress delegated improperly when it authorized the Secretary of Defense to determine “with respect to the operation of which [defense facilities] ... the security of the United States requires the application of the provisions of subsection (a) of this section.” Rather I think this is precisely the sort of application of a legislative determination to specific facts within the administrator's expertise that today's complex governmental structure requires and that this Court has frequently upheld. E. g., Yakus v. United States, 321 U. S. 414 (1944). I would reject also appellee's contention that the statute is a bill of attainder. See United States v. Brown, 381 U. S. 437, 462 (1965) (WHITE, J., dissenting).

UNITED STATES v. ROBEL.

gates to itself an independent judgment of the requirements of national security. These are matters about which judges should be wary. James Madison wrote:

"Security against foreign danger is one of the primitive objects of civil society. . .

'... The means of security can only be regulated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.

3

3 The Federalist No. 41 (Cooke ed. 1961) 269–270.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1958.

Syllabus.

360 U.S.

GREENE v. McELROY ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT.

No. 180. Argued April 1, 1959.-Decided June 29, 1959.

Petitioner, an aeronautical engineer, was general manager of a pri

vate corporation engaged in developing and producing for the Arnied 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. $ 798, making it a crime to communicate to unauthorized persons information concerning cryptographic or intelligence activities, and 50 U. S. C. $ 783 (b), making it a crime

« PreviousContinue »