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GREENE v. MCELROY.
CLARK, J., dimenting.
istrative 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 & Southorn 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.'
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 nowwhether its program is constitutional and, if not, wherein
See Barley v. Richardson, 86 U. S. App. D. C. 248, 182 F. 2d 46, affirmed by an equally divided Court, 341 U. 8. 918 (1951); Peters v. Hobby, 349 U. 8. 331 (1955).
OCTOBER TERM, 1958.
CLARK, J., dissenting.
it is deficient. I am sure that it will remember that in other times of emergency-no more grave than the pres ent-it was perinitted, without any hearing whatsoevermuch 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 order 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, ..." (Emphasis added.) GREENE v. McELROY.
CLARK, J., dispenting.
In 1942, under the authority of that Executive Order, the Secretary of War undertook the formulation and execution of & program of industrial security. 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."! Interestingly enough, the instructions were inguod in time of peace, did not give the suspect a hearing, and were signed by the then Chief of Staffnow President-Dwight D. Eisenhower.
In 1947, the National Security Act, 61 Stat. 495, effected & 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 "[a]ll laws, orders, regulations, and other actions applicable with respect to any function transferred under this Act ...."
Section 213 created & Munitions Board
Report of the Commission on Government Security (1957), 8. Doc. No. 64, 85th Cong., 1st Sess. 237, n. 7.
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, any other wilful activity intended to disrupt the national defense program.” The basic procedure for removal was set out in $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 crossexamination.
OCTOBER TERM, 1958.
CLARK, J., dissenting.
within the military establishment and under the supervision of the Secretary of Defense. Among its functions
"(1) to coordinate the appropriate activities within the National Military Establishment with regard to industrial matters, including procurement . plans ... ; (2) to plan for the military aspects of industrial mobilization; ... and (10) to perform such other duties as the Secretary of Defense may
In his first report to the President in 1948, Secretary of Defense Forrestal reported that:
"... the Munitions Board is responsible for neces sary 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 mili
• The National Security Act Amendments of 1949, 63 Stat. 578, amended 213 80 as to delete subparagraph 10.
94-756 0 - 68 - pt. 2 --6
GREENE v. McELROY.
CLARK, J., disconting.
tary 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 contraets. 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-NavyAir Force Personnel Board, and the number of appeals handled by the Industrial Employment Review Board were detailed.
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 ....
• Annual Report of the Secretary of the Amy for the Fiscal Year 1949 (1950), 192.