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OCTOBER TERM, 1968.
CLARK, J., dissenting.
360 U. 8.
Uniform standards for security investigations of facility and contractors' personnel are being developed. .... A standard military security agreement is being coordinated to bind potential suppliers to security regulations before a classified contract is awarded, and a manual to give security guidance to industry is being prepared.” Semiannual Report of the Secretary of Defense, July 1 to Dec. 31, 1949
(1950), 97. The President, in 1953, in Reorganization Plan No. 6, 67 Stat. 638, trai.ferred all of the "functions of the Munitions Board” to the Secretary of Defense and dissolved that Board. Since then the program has been in operation under the authority of the Secretary. Also in 1953, the President issued Exec. Order No. 10450, Apr. 27, 1953, 18 Fed. Reg. 2489, 3 CFR (1949–1953 Comp.), p. 936. That order dealt with the criteria and procedures to be used in the Federal Loyalty Security Program, which had been instituted under Exec. Order No. 9835, 12 Fed. Reg. 1935, 3 CFR (1943–1948 Comp.), p. 630, Mar. 21, 1947. The latter order made clear that federal employees suspected of disloyalty had no right of confrontation. 10 And the regulations promulgated under the order provided no such right. See 13 Fed. Reg. 9365, 5 CFR (1949), $ 210, Dec. 31, 1948. These procedures were revised under Exec. Order No. 10450, supra, although again, confrontation and cross-examination were not provided. See
10 Part IV, § 2 of Exec. Order No. 9835 specifically stated that: '... the investigative agency may, refuse to disclose the names of confidential informants, provided it fumisbes sufficient information about such informants on the basis of which the requesting department or agency can make an adequate ovaluation of the information furnished by them, and provided it advises the requesting department or agency in writing that it is essential to the protection of the informants or to the investigation of other cases that the identity of the informants not be revealed...
ARENB V. MOELROY.
Clar, J., dimenting.
19 Fed. Reg. 1508, 32 CFR, p. 288, Mar. 19, 1964. Thus, it was clear that the President had not contemplated that there would be a right of confrontation in the Federal Loyalty Security Program. And the report of the Secretary of the Army-transmitted to the President by the Secretary of Defense-made clear that the criteria of Exeo. Order No. 10450 were being utilized not only where the loyalty of a government employee was in doubt, but also in carrying out the industrial security program. Semiannual Report of the Secretary of the Army, Jan. 1, 1954, to June 30, 1954, 135 136.
Thus we see that the program has for 18 years been carried on under the express authority of the President, and has been regularly reported to him by his highest Cabinet officers. How the Court can say, despite these facts, that the President has not sufficiently authorized the program is beyond me, unless the Court means that it is necessary for the President to write out the Industrial Security Manual in his own hand.
Furthermore, I think Congress has sufficiently authorized the program, as it has been kept fully aware of its development and has appropriated money to support it. During the formative period of the program, 1949–1951, the Congress, through appropriation hearings, was kept fully informed as to the activity. In 1949 D. F. Carpenter, Chairman of the Munitions Board, appeared before a Subcommittee of the House Committee on Appropriations to testify concerning the requested appropriation for the Board. While the report indicates much of the testimony was “off the record,” it does contain specific references to the program here under attack." Significantly the appropriation bill for 1950 included an item
11 House of Representatives, Hearings before the Subcommittee of the Committee on Appropriations on the National Military Establishment Appropriation Bill for 1950, 81st Cong., 1st Sess. 91.
OCTOBER TERM, 1958.
CLARK, J., dissenting.
of $11,300,000 for the maintenance, inter alia, of the Board.
Again, in 1950 General Timberlake, a member of the Board, testified:
“Then we are going to intensify the industrial mobilization planning within the Department of Defense, with particular emphasis on industrial security ... .” House of Representatives, Hearings before a Subcommittee of the Committee on Appropriations on the Supplemental Appropriation for
1951, 81st Cong., 2d Sess. 264. While, again, some of the testimony was "off the record" it was sufficiently urgent and detailed for the Congress to appropriate additional funds for the Board for 1951.44
By the 1953 Reorganization Plan, the functions of the Munitions Board were transferred to various Assistant Secretaries of Defense. The industrial security program was put under the Assistant Secretary of Defense for Manpower, Personnel, and Reserve Forces. Of course, this office received an appropriation each year. These hearings, to cite but two, certainly indicate an awareness
1The reason for the dearth of logialative reference to the program appears in some 1955 hearings on an appropriation bill. Under consideration at the time was a proposal for a fund to reimburse contractor employees who had been suspended during a security check and subsequently cleared. General Moore testified that, in the past, such reimbursement had been made by the service secretaries out of their contingency funds. Then followed this colloquy:
"Mr. Mahon. Under that the contingency fund] you can buy a boy a top, or a toy, provided the Secretary of Defense thinks it is proper?
"Gen. Moore. That is right, and we come down here and explain to this committee with respect to this in a very secret session bow much we have spent and precisely what we have spent it for." House of Representatives, Hearings before the Subcommittee of the Committee on Appropriations on Department of Defense Appropriations for 1956, 84th Cong., 1st Seas. 780.
GREENE v. McELROY.
CLARK, J., dissenting.
on the part of Congress of the existence of the industrial security program, and the continued appropriations hardly bespeak an unwillingness on the part of Congress that it be carried on. In 1955, the Eighty-fourth Congress, on the motion of Senator Wiley for unanimous consent, caused to be printed the so-called Internal Security Manual, S. Doc. No. 40, 84th Cong., 1st Sess. It is a compilation of all laws, regulations, and congressional committees relating to the national security. Contained in the volume is the "Industrial Personnel Security Review Regulation," i. e., & verbatim copy of the regulations set up by the Secretary of Defense on February 2, 1955. This Manual outlined in detail the hearing procedures which are here condemned by the Court. And it is important to note that the final denial of Greene's clearance was by a Board acting under these very regulations. Still not one voice was raised either within or without the Halls of Congress that the Defense Department had exceeded its authority or that contractor employees were being denied their constitutional rights. In other cases we have held that the inaction of the Congress, in circumstances much less specific than here, was a clear ratification of a program as it was then being carried out by the Executive. Why, I ask, do we not do that here where it is so vital? We should not be "that blind Court ... that does not see what '[a]Il others can see and understand
United States v. Rumely, 345 U. S. 41, 44 (1953).
While it certainly is not clear to me, I suppose that the present fastidiousness of the Court can be satisfied by the President's incorporating the present industrial security program into a specific Executive Order or the Congress' placing it on the statute books. To me this seerns entirely superfluous in light of the clear authorization presently existing in the Cabinet officers. It also subjects the Government to multitudinous actions and perhaps large
OCTOBER TERM, 1958.
CLARK, J., dissenting.
damagngby reason of discharges made pursuant to the present procedures.
And I might add a nota bene. Even if the Cabinet officers are given this specific direction, the opinion today, by dealing so copiously with the constitutional issues, puts & cloud over both the Employee Loyalty Program and the one here under attack. Neither requires that hearings afford confrontation or cross-examination. While the Court disclaims deciding this constitutional question, no one reading the opinion will doubt that the explicit language of its broad sweep speaks in prophecy. Let us hope that the winds may change. If they do not the present temporary debacle will turn into a rout of our internal security.