Page images



Opinion of the Court.

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 Departinent 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 auch procedure. Pp. 506–508. 103 U. S. App. D. C. 87, 254 F. 2d 944, reversed and cause remanded.

Carl W. Berueffy argued the cause and filed a brief for petitioner.

Assistant Attorney General Doub argued the cause for respondents. With him on the brief were Solicitor General Rankin, Samuel D. Slade and Bernard Cedarbaum.

David I. Shapiro filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.

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


Opinion of the Court.

360 U.S.

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. These were required by the nature of the projects undertaken by ERCO for the various armed services. On November 21,

1 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.

? 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 ... own 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

[ocr errors]


Opinion of the Court.

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.' ERCO was invited to respond to this notification. The corporation, through its president, inforined 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) . would be inimical to

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.

3 The PSB was created pursuant to an interim agreement dated October 9, 1947, between the Army, Navy, and Air Force and pursilant to a memorandum of agreement between the Provost Marshal General and the Air Provost Marshal, dateil March 17, 1918. "Il 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 Sese. 239. It etablished 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 19950."


Opinion of the Court.

360 U.S.

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. 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.'

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

• 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."

5 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 organisation, Congressional Committee on Un-American Activities)."


Opinion of the Court.

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 seerned evident that the Board itself had never questioned the investigators and

« PreviousContinue »