court, declaring the provision under which the indictment was found to be, as previously stated, in violation of Robel's first amendment "right of association." In affirming the dismissal of the indictment, Chief Justice Warren, for the majority, said:

"That statute casts its net across a broad range of associational activities, indiscriminately trapping membership which can be constitutionally punished and membership which cannot be so proscribed. It is made irrelevant to the statute's operation that an individual may be a passive or inactive member of a designated organization, that he may be unaware of the organization's unlawful aims, or that he may disagree with those unlawful aims. It is also made irrelevant that an individual who is subject to the penalties of §5(a) (1) (D) may occupy a nonsensitive position in a defense facility. Thus, § 5(a)(1) (D) contains the fatal defect of overbreadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. ***”

Mr. Justice Brennan, concurring in the result, said that he was "not pursuaded" that section 5(a) (1) (D) was fatal for "overbreadth" as he had agreed was the case in other contexts, particularly in Aptheker v. Secretary of State, 378 U.S. 500, by which the Court struck down section 6 (passport prohibitions) of the act on the same ground now applied by it to section 5(a) (1) (D). He pointed out that "Congress often regulates indiscriminately, through preventive or prophylactic measures" and that such regulation has been upheld even where fundamental freedoms are potentially affected. He said that we may assume that Congress may have been justified in its conclusion that alternatives to section 5(a) (1) (D) were inadequate for the safeguarding of essential defense facilities against espionage and sabotage, and therefore the Congress could constitutionally exclude all party members from employment in them.

Mr. Justice Brennan said that his quarrel with the provision was based on the fact that the Congress gave the Secretary of Defense no meaningful standard to govern his designation of defense facilities, thus creating a danger of an arbitrary application of criminal sanctions in an area of protected freedoms. The absence of adequate standards, he said, reflected the failures of Congress (1) to make a legislative judgment on the extent to which the prophylactic measure should be applied, (2) to assure respect for constitutional liberties because of the absence of any type of administrative hearings, public or private, on the Secretary's designation, or the review thereof, and (3) to give adequate notice to persons affected by criminal sanctions as to whether the Secretary is acting within his authority, so that they may determine whether or not to risk disobedience. Relevant provisions in H.R. 15626

The bill so narrows the type of facilities which may be designated as such by the Secretary of Defense that all positions of employment therein may reasonably be said to be sensitive. Moreover, section 5(a) (1) (D), which establishes criminal sanctions, has been amended so as to require (1) proof of membership in a Communist-action organization, plus (2) proof of such member's actual knowledge or notice of the final order of the Board determining it to be an organization of that type,' plus (3) such member's actual knowledge or notice of the designation of the facility as a defense facility.

In addition, the bill remedies the objections raised by Mr. Justice Brennan in his concurring opinion, by establishing a meaningful standard for the designation of defense facilities by the Secretary of Defense, with provisions reflecting (1) a legislative judgment as to the extent to which the prophylactic measure is to be applied, (2) procedural safeguards assuring respect for constitutional liberties, and (3) adequate notice to persons affected by the criminal sanctions as to whether the Secretary is acting within his authority.

1 The bill amends section 13 (k) of the act by repealing clauses imputing ("constructive") notice to members of Communist organizations on publication of the Board's final orders in the Federal Register. In Aptheker v. Secretary of State, supra, Mr. Justice Goldberg, for the majority, noted that section 13 (k) of the act provided that publication in the Federal Register of the fact of the Board's final order "shall constitute notice to all members of such organization that such order has become final,'" pointing out that the terms of section 6 (passport prohibitions) applied whether or not the member actually knew or believed that he was associated with a Communist organization.

The opinion for the Court was delivered by Chief Justice Warren. Concurring views were expressed by Justices Frankfurter, Harlan, and Whittaker. Justice Clark filed a dissenting opinion.

In this case the Court struck down that portion of the industrial security program established by the Department of Defense under which a person's fitness for clearance was determined on the basis of fact determinations in which individuals were denied "traditional procedural safeguards of confrontation and cross-examination." The Court did so on the ground that the regulations were not specifically authorized by the President or the Congress, without deciding whether the President or the Congress has inherent authority to create such a program.

Greene, who began his employment in 1937 with the Engineer and Research Corp., a business devoted mainly to the development and manufacture of mechanical and electronic products, was first employed by that corporation as a junior engineer and at the time of his discharge in 1953 was vice president and general manager. He had been credited with the development of a complicated electronic flight simulator and with the design of a rocket launcher, produced by this corporation and long used by the Navy. The corporation was engaged in classified contract work for the various armed services and had entered into a security agreement or contract by which the corporation agreed, in the performance of this work, to provide and maintain a system of security control, and that it would not permit any individual to have access to classified matter unless cleared by the Government. During the World War II period, Greene had received security clearance, but in 1951 information came to the attention of the Government, including evidence of his maintenance of a close and sympathetic association with various officials of the Soviet Embassy, which showed clearly that Green was a security risk, if not actually disloyal to the United States.

A letter of charges was delivered to Greene, and he was informed that he could seek a hearing before the Review Board. He appeared with counsel, was questioned, and in a series of hearings was given an opportunity to present his witnesses and his case. Greene's own admissions would seem to establish what the Government had reasonably concluded, namely, that he was a security risk, although the Government presented no witnesses and, relying largely on confidential reports, did not give Greene the opportunity to confront and crossexamine confidential informants whose statements reflected on him. Greene's security clearance was finally withdrawn and, as a result, his services were no longer useful to his corporation. He was forced to resign from his offices in the corporation and was discharged.

Greene appealed to the district court asking for a declaration that the revocation of his security clearance was unlawful and void on the ground that he was denied liberty and property without due process of law in contravention of the fifth amendment. The district court and the court of appeals upheld the revocation. The Supreme Court reversed.

Conceding that the President in general terms had authorized the Department of Defense to create procedures to restrict the dissemination of classified information and that even in the absence of a specific delegation the Department was authorized to fashion and apply a clearance program which would afford affected persons the safeguards of confrontation and cross-examination, the Court held, however, that in the absence of explicit delegation by either the President or the Congress the Department could not fashion and apply the program which it did in revoking Greene's security clearance.

The decision left several basic questions unanswered, which is evident in the opinion of the Chief Justice who said:

"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."

(It is to be noted that following this decision the President on February 20, 1960, issued Executive Order 10865, giving authority to certain departments, including the Department of Defense, to issue regulations for the safeguarding of classified information released to United States industry, with express provisions regulating the exercise of the privileges of confrontation and cross-examination. However, no case has reached the courts in which the new regulations relating to cross-examination and confrontation have been called into question.) Relevant provisions in H.R. 15626

The bill (see particularly subsection (k), at page 15) gives express congressional sanction for the application of personnel screening procedures, including the regulation of the privileges of confrontation and cross-examination, in substantially the same form as now prescribed by Executive Order 10865 and Department of Defense directives. It is believed that the provisions of the bill accord maximum benefits to the individual consistently with the imperative and overriding demands of the national security.

DEXTER C. SHOULTZ V. SECRETARY OF DEFENSE

U.S. DISTRICT COURT, N. D. CAL., DECIDED FEBRUARY 9, 1968

The decision

The court in this case temporarily and, after hearing, permanently enjoined the Secretary of Defense from suspending Shoultz's security clearance for access to information classified as secret, on the ground that the particular procedure under which the suspension was applied was not specifically authorized by the President or Congress.

Shoultz, a holder of a security clearance for access to information classified as secret, was employed by Lockheed Missiles and Space Company, of Sunnyvale, California. While thus employed he was notified that the Screening Board of the Department of Defense had some new information affecting his continued eligibility for clearance and that his status was to be reexamined on the basis of this information. He was requested to attend an interview at which he would be questioned on matters germane to his continuing eligibility. He was advised that he could be represented by counsel at the interview and that he would be afforded an opportunity to make a statement on his behalf. He was also advised that his refusal to answer questions relevant to his continued eligibility would result in a suspension of his existing clearance and that further processing of his case would be discontinued.

Shoultz appeared, stated his name, address, and employment, in response to questions propounded by the Department counsel who was conducting the interview, but declined to answer all other questions on the ground that they were irrelevant, incompetent, and immaterial. Thereafter, he was informed by the Department of Defense by letter that his refusals denied to the Screening Board information which was essential to a determination of his continued eligibility for security clearance and that without such information the Board was unable to reach the affirmative finding that his continued clearance would be clearly consistent with the national interest, as required by section 2 of Executive Order 10865.

Shortly thereafter Shoultz was notified by his employer that he would be placed on "prolonged leave of absence" without pay until such time as his clearance status was settled. He then brought his action to enjoin the Secretary of Defense from suspending his secret security clearance.

The court granted a temporary restraining order and, after hearing, permanently enjoined the Secretary of Defense from suspending Shoultz's security clearance.1 It did so on the ground that the procedure adopted in this case had not been specifically authorized by the President or the Congress, citing Greene v. McElroy, supra. Pointing out that the "suspension" which entailed a discon

1 The order, however, was subject to the qualification that it "does not prevent defendants from taking appropriate action to safeguard the national security under section 9 of the Executive Order 10865 or any other provisions of Directive 5220.6, if they be so advised." (Sec. 9 of E.O. 10865 authorizes the head of the department to exercise a nondelegable power personally to deny or revoke access authorization when he determines that the hearing procedures prescribed in sections 3, 4, and 5 cannot be invoked consistently with the national security. Department of Defense Directive 5220.6, which regulates industrial personnel access authorization, contains hearing procedures similar to those set forth in subsection (k) at page 15 of the bill, to be employed prior to final denial or revocation of access authorization.)

tinuance of the processing of Shoultz's clearance had the same final effect on his livelihood as gave the Supreme Court concern in Greene, the district judge said: "This Court believes that the teaching of Greene is that an agency of the federal government cannot, without affording the traditional forms of fair procedure, take administrative action which effectively deprives an individual of his means of livelihood on loyalty or security grounds unless, at the least, Congress (or the President, if he is the source of the power) has expressly authorized the lesser procedure."

(The application of the equitable remedy of injunction, rather than a remedy at law, seems particularly objectionable in this case. The exercise of judicial power to order continuing access to classified information, on procedural grounds, prior to a final determination of the access privilege on the merits by agencies responsible for the safeguarding of such information, poses the gravest dangers to the national security, and would seem to constitute a premature intrusion by the judiciary upon executive responsibilities and a judicial usurpation of executive discretion.)

Relevant provisions of H.R. 15626

The bill contains provisions authorizing the President (1) to discontinue processing an application for clearance or review thereof, and to deny, suspend, or revoke access authorization, when an applicant refuses to answer relevant inquiries in the course of any investigation, inquiry, or proceeding for determination of the individual's fitness or eligibility, and (2) summarily to deny, suspend, or revoke any individual's access to classified information or employment in or access to a defense facility. The individual is entitled, however, in either case to a prompt hearing upon any such denial, suspension, or revocation under the provisions of subsection (k) (at page 15) of the bill. (See Borrow v. Federal Communications Commission, 285 F. 2d 666 (1960), cert. denied 364 U.S. 892.) The bill also contains provisions limiting the jurisdiction of courts to grant any restraining order or temporary or permanent injunction having the effect of granting or continuing access to classified information or employment in or access to a defense facility. As to other relief, the jurisdiction of the courts is not limited except that a person adversely affected by the enforcement, execution, or application of the personnel screening programs may not resort to the courts until he has exhausted the administrative remedies provided in the provisions of the bill.

HERBERT SCHNEIDER V. WILLARD SMITH, COMMANDANT, UNITED STATES COAST 'GUARD

U.S. SUPREME COURT, DECIDED JANUARY 16, 1968

The decision

The opinion for the Court was delivered by Justice Douglas. Justice Black expressed concurrence with the opinion, and with a statement of Justice Fortas. Justice Fortas concurred in a separate opinion with which Justice Stewart agreed. Justice White, with whom Justice Harlan joined, concurred in the result. Justice Marshall took no part in the consideration or decision of the case.

In this case the court held that the Magnuson Act gave the President no authority to set up a personnel security screening program with respect to merchant vessels of the United States.

Under the Magnuson Act, 50 U.S.C. 191 (b), the President is authorized, if he finds that "the security of the United States is endangered by *** subversive activity," to issue rules and regulations "to safeguard against destruction, loss, or injury from sabotage or other subversive acts *** vessels, harbors, ports, and waterfront facilities in the United States * * *."

Pursuant to this authority, the President promulgated regulations giving the Commandant of the Coast Guard authority to grant or withhold validation of any permit or license affecting the right of a seaman to serve on a merchant vessel of the United States. The Commandant is directed not to issue such validation unless he is satisfied that "the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States."

Schneider applied to the Commandant for a validation of a permit or license to act on board American-flag commercial vessels as a second assistant engineer. In connection with his application, he was asked to answer inquiries relating to his membership in various subversive organizations, together with the listing of names "of the political and social organizations" fo which he belonged, including questions related to his membership and activities therein. He admitted membership in the Communist Party and other organizations on the Attorney General's list, but said that he had quit it and other organizations due to fundamental disagreement with Communist methods and techniques. He would not, he said, answer any other questions with respect thereto.

As a consequence the Commandant declined to process the application, relying upon the provisions of the Executive order authorizing him to hold the application in abeyance if an applicant fails or refuses to furnish the additional information sought. Schneider thereupon brought this action for declaratory relief, praying that the Commandant be directed to approve his application and that he be enjoined from interfering with Schneider's employment upon vessels flying the American flag. A three-judge court dismissed the complaint. The Supreme Court reversed.

The Court held that the Magnuson Act gave the President no express authority to set up a screening program for personnel on merchant vessels of the United States. Nor did the Court agree with the argument of the Solicitor General that such a power was clearly implied in other provisions of the act. Moreover, said the Court, even assuming arguendo that the act authorizes a type of screening program directed at "membership" or "sympathetic association," this would raise first amendment problems such as were presented in Shelton v. Tucker, 364 U.S. 479, which considered the validity of an Arkansas statute requiring a teacher, who was to be hired by a public school, to submit an affidavit "listing all organizations to which he at the time belongs and to which he has belonged during the past five years." If there is to be a congressional delegation of authority in the area of associational freedoms, said the Court, the delegation must be specific and narrowly drawn.

Relevant provisions of H.R. 15626

The bill expressly authorizes the President to institute a personnel screening program to secure the objectives of the Magnuson Act. To the extent the President deems applicable, he is authorized to extend and apply for such purposes the procedures, standards, provisions, and regulations authorized and provided by section 5A of the bill. With respect to the associational activities into which inquiries are made to determine eligibility and access clearance, the bill establishes specific standards and expressly provides that all inquiries shall be confined to those which are relevant or material to the determination to be made. (See subsection (d), page 5.) The bill also contains a provision regulating the jurisdiction of courts similar to that provided with respect to proceedings for access to classified information and defense facilities under section 5A.

The CHAIRMAN. Our first witness this morning is Mr. Liebling with the Department of Defense. Mr. Liebling, you, and if you have associates, your associates may proceed.

Now I will tell you what would be satisfactory, if agreeable to you. If you have a prepared statement, suppose we insert it at this point, then can you summarize it? It would be easier to follow it.

Could you do that?

Mr. LIEBLING. I would prefer to read it.

The CHAIRMAN. All right, you may read it. It is perfectly all right. And then if there are copies, we can follow.

Mr. LIEBLING. Oh, yes, we provided copies. I believe you have them. Yes, you have them, Mr. Chairman.

The CHAIRMAN. Well, for my part, I will listen to you. Go on. Proceed.