GREENE v. MCELROY
Argument of Carl W. Berueffy
Chief Justice Earl Warren: Number 180, William L. Greene, Petitioner, versus Neil McElroy et al.
Mr. Carl W. Berueffy: Mr. Chief Justice, may it please the Court.
Chief Justice Earl Warren: Mr. Berueffy.
Mr. Carl W. Berueffy: Berueffy.
Chief Justice Earl Warren: Berueffy, yes.
Mr. Carl W. Berueffy: This case, of course, involves the same issues in the main -- on the merits that are involved in Taylor against McElroy.
I think the best way to examine what is at issue here is to examine first what happened.
And if I may put this case in chronological order, I would summarize it as follows.
In 1936, this petitioner, William L. Greene graduated from New York University as an aeronautical engineer, a profession which has come to be of great importance in this country.
He went to work for Engineering and Research Company, a private corporation and the history of his rise in that corporation which, although not a large one, is a very substantial one, is almost spectacular.
Best summarized by saying that at 35 years of age, he became the Vice President and General Manager of that company.
And this could indicate nothing other than his devotion to the duties of his work and to his employer and to the Government and to the military services because that company came to be engaged almost entirely in military production.
Now, in 1942, he made a marriage with a girl to whom I shall have occasion to refer, I think, in the future, Jean Hinton without going into all of the details, could be said this was an unfortunate marriage for many reasons, and it terminated in 1947.
All of the charges with no exception relate in the Government's statement through the period beginning in 1942 and ending in 1947 or a very trivial contact continuing over into 1948.
Now, while this marriage was in existence, Mr. Greene was one of the people selected by the Air Force and by industry to go to Germany to see what could be discovered by way of German war secrets and war preparation.
He came back in 1947 or thereabouts, about the time of the termination of the marriage through the divorce.
The Navy and the Air Force was in great need of a device called the electronic flight simulator, a device which simulates for flight conditions for the purpose of training pilots in the handling of the planes.
The record shows that at least two companies had failed to produce this very necessary device.
And so, the Navy came to ERCO and Admiral Solberg, the Chief of Naval Research at the time, testified that one of the things that brought him to ERCO was the high caliber of the engineering staff which had been assembled by Mr. Greene in that company.
In 14 months, Mr. Greene made this device.
And this is the classified information about which we will be talking exclusively in this case, that is the material that went into the making of the electric flight simulator.
Now, in 1949, two years after the determination of these things that the Government says no, justify throwing him out of work, the Government gave him a clearance for access to top secret information.And two years later, in 1951, there was a proceeding to revoke his clearance for access to that information.
And this went and a procedure such as -- has been -- has been described to Your Honors here occurred before an organization then known as the Industrial Employment Review Board.
Justice Potter Stewart: How is the occasion for initiating that 1951 proceeding?
Mr. Carl W. Berueffy: Well, there was so-called derogatory information, Mr. Justice Stewart.
And that was summarized by saying that he had known some Communists without naming them that he had seen some Russian diplomats that -- without naming them and that he had gone to a dinner of the Southern Conference for Human Welfare.
Justice Potter Stewart: Oh, I understood you to say that he had been cleared in 1949.
Mr. Carl W. Berueffy: That's right.
Justice Potter Stewart: And then what was it that -- that led to the revocation of clearance in 1949 --
Mr. Carl W. Berueffy: That, I couldn't say --
Justice Potter Stewart: (Voice Overlap) --
Mr. Carl W. Berueffy: -- there was simply a notice to ERCO that derogatory information had been --
Justice Potter Stewart: On the Government's own notion?
Mr. Carl W. Berueffy: Yes.
Justice Potter Stewart: There had been no request by his employer for access to information that are more --
Mr. Carl W. Berueffy: No, sir.
Justice Potter Stewart: -- classified.
Mr. Carl W. Berueffy: Although Greene never asked for other than top secret, the Government had -- other than secret, the Government had pretty consistently giving him -- given him access to top secret information.
Well, this went to the Board.
Now, the Government admits in its brief that everything that had subsequently considered was talked about in this hearing before the Industrial Employment Review Board.
I don't think that's quite accurate because I think there was one matter which cannot fairly be said to appear in that -- in that earlier hearing and that is the matter of Greene's having worked as a consultant for Mr. Laughlin Currie, a one time Presidential Assistant.
At any event, this Board examined all of this material and restored Greene's clearance, then he went back to work for ERCO and the Navy insist -- continued to insist that ERCO do this work as fast as possible, and this was the situation until the following year.
And in April of 1953, and this was six years after anything that the Government had alleged or had considered or that we ever learned about as being direct derogatory information, the Secretary of the Navy wrote a letter to ERCO.
And this was a very short letter and what it says is, "I have reviewed the case history of William Lewis Greene and pursuant to this contract, I direct you or I request you to exclude him from your plans and to deny him access to classified information.
And I think the phraseology is important because they are not, at this point, talking about denying access to classified information.
They are telling a private employer that he may not admit his own employee to his own plant.
Now, this letter was sent to ERCO and the Government stipulates that they never sent any letter to Greene about it.
And the -- the letter recited no reasons for a change, although at the time there was a directive from Mr. Wilson, the Secretary of Defense, saying that the Secretaries were to continue to apply the -- the criteria applied by the Industrial Employment Review Board.
Now, the next thing that happened was that Mr. Wells, the President of ERCO, wrote to the Secretary of -- of the Navy and said, "This man is very valuable to us.
Not having him is a great blow to the company.
May we come in and talk this over with you?"
And the answer of Mr. Anderson was, "There isn't any purpose and any further discussion of his case."
So Greene was out.
The trial judge in this case described what ERCO did as a willing compliance with the request of the Government.
But what ERCO actually did was to, as the record shows, hold this job open for Greene for over a year, hoping that he could get clearance.
This is still in 1953.
They wrote Greene saying, "Please, get it cleared up.
If there is anything ERCO can do to help you by way of evidence, let us know."
And Mr. Berliner, Colonel Berliner, the Chairman of the Board, the principle stockholder of ERCO, made an affidavit that he would -- there was no reason for Greene's discharge except their letter that they received from the Secretary of the Navy.
He also, at -- in the testimony before the hearing which subsequently occurred, he testified that he would stake his entire company on Mr. Greene's judgment as to the -- his ability to build this flight simulator.
I think there are few employees who have received a more convincing demonstration of their employer's confidence.
After a great deal of effort, the Secretary of the Navy, the Assistant Secretary of the Navy in response to a request -- to a demand, requested the Eastern Industrial Personnel Security Board, which had, by this time, been set up to review his case.
And at -- this was in September, but there was no hearing until the following late April or early May.
This is in 1954.
During that intervening time, we made an effort to find out what this case was about and finally, the Board sent a series of 13 charges which are in the record and which, for the most part, relate to matters concerning Jean Hinton Greene, the girl to whom he had previously been married and probably at this time, he had been divorced for seven years.
Justice John M. Harlan: What page is that on the record?
Mr. Carl W. Berueffy: The -- the statement of charges appears in the printed record beginning on page 9 and going to page 11 over the signature of Robert C. Sullivan.
We were faced with charges, and I read only one -- paragraph (4) on page 10, "Many apparently reliable witnesses have testified that during the period of subject's," that means Mr. Greene, "subject's first marriage, his personal political sympathies were in general accord with those of his wife," that's Jean Hinton, "in that he was sympathetic towards Russia," and may I just comment parenterically that at the time to which this reference is made, the Russians were fighting on our side as hard as they could for their lives the same as we were fighting for our lives, "followed the Communist Party, followed the Communist Party line presented fellow traveler arguments was apparently influenced by Jean's wild theories EGC."
Justice John M. Harlan: (Inaudible)
Mr. Carl W. Berueffy: Yes, sir.
I have never been able to determine exactly what EGC covers in that paragraph.
Unknown Speaker: (Inaudible)
Mr. Carl W. Berueffy: I think Jean may possibly have had some "wild theories", but I don't know that there is any rationale relation between a wild theory and a finding that this distinguished engineer is in the future going to be guilty of treason to this country.
And that's what these gentlemen have found.
We do have an example of -- of what Jean's wild theories were.
This is on page 379 of the printed record, question addressed by the Security Officer of the Board to Dr. Marjorie Greenberg, a physician who was Mr. Greene's -- who is Mr. Greene's sister.
I would like to read this, if I may.
Question, "Were there any beds in their house which had no mattresses on them?"
Answer, "Not that I observed.
Jean slept on a board because of her back."
Question, "Did you ever hear her said that Jean slept on a board in order to keep the common touch?"
Answer, "That's a new one on me but everybody I've ever known who had any disturbance with their spinal column had to sleep on a board."
Now, this is a wild idea, no doubt and if I were a mattress [Laughter] -- if I were a mattress manufacturer, I -- I might be regard this is subversive.
[Laughter] But the point is, is this material to defend -- to deprive the Government and the military of the services of a man who have -- who has served it well, extremely well, testified to not by Greene and his friends, but throughout this record to -- by military officials concerned with the problem of getting this material.
Now, coming to the issues, as I see them in this case, we are first met with the problem of what is it the Government did?
The Government says, "We merely denied this man access, and any damage was consequential."
But in their brief, they admit in the face of what they cannot practically deny that to a man in the profession of aeronautical engineering, the denial of clearance is -- is the equivalent practically of denying him a right to work at his profession because there is no significant aircraft manufacturer who can employ an aeronautical engineer who does not have clearance.
It's simply can't be done.
The Government admits this.
But they say, "We have control of the classified information of the Government -- that belongs to the Government."
But the Government does not limit its claim of employment to the control of classified information for two reasons.
First, as we show in our brief, you cannot be an officer of a corporation without clearance.
And as the Vice President and General Manager of ERCO, Greene was, of course, a corporation officer.
And there are, I suggest, many officers of a corporation who do not need access to classified information.
And as the Solicitor General said yesterday, this isn't -- in any case, this is not free access to all the secrets of the Government.
This is access to that information which you need to perform your duties on the contracts that your employer is doing for the Government.
That's all it is.
You could have access to top secret or super top secret or any other classification, but if you didn't require that information in your job, you couldn't get it.
So, the Government is controlling or attempting to control the officers of corporations.
Furthermore, and this case demonstrates, the Government is not limiting its control to ownership -- to -- to material of which it really has ownership because the executive order which is put -- which is stated in -- in its text in -- as an appendix to our brief says that whether or not you produce this -- this information, if the Government classified it, you may not have access without clearance, that is it's subject to control under that executive order.
So, here, you get some information that the Government had, but it isn't valuable.
It is invaluable until a man, like Greene, makes the engineering flow that turns it into something that's useful, and it isn't valuable I suggest until a man, like Taylor turns it out on the lays in a -- in the form of a useful thing and this is what the Government is controlling.
Now, this is what the Government says.
They -- they have a right to control and let me suggest, if I may, that the way the Secretary of the Navy handled this case indicates exactly what the Government does claim and what the Government repeats in its brief, I suggest, in this Court which is that this is an absolute power, that it is unrestrained, that nobody can question and because those are relatively strong statements, I -- I think I should read from page 43 of the Government's brief in the Greene case.
Down towards the bottom, "That the executive may ultimately act in this area on mere doubts or simply a lack of complete confidence."
And on page 44, "Action which may, if necessary, be based on no more than doubt and which is, in itself, not judicially reviewable."
And then finally quoting with a probo from Von Knorr against Miles, "The Government would remain free to disregard the testimony and rely on its uncorroborated suspicions and its uncorroborated suspicions," as the Government says elsewhere in its brief, "may be fully consistent with the likelihood that this man is in fact both loyal and discreet."
Now, this, I'm -- I would like to say as a slanting reply to what Mr. -- what the Solicitor General has said, this is a claim of absolute authority, of unlimited authority.
And it is in square conflict, I submit, with the statement of this Court in -- in Wieman against Updegraff that you cannot exclude even from the exercise of what used to be denominated a privilege on the basis -- on a basis which is patently arbitrary or discriminatory.
And this Court has many times said that government officials may not act in an arbitrary fashion, may not draw irrational or dogmatic inferences from facts.
Now, I think, unless you are going to be -- to accept what is a clear transparency, the Government is claiming to exercise an unlimited control over the employment and the livelihood and the very lives of what is today approximately 3 million employees in private industry.
I -- I think that it is impossible to determine this kind of a case without facing the realities.
And the reality is that this is an exercise of control on an unrestrained and unlimited basis.
Now, first question that comes --
Justice Potter Stewart: That theory and that position which you pointed out is the Government's position is the basic ground upon which the Court of Appeals decided this case, isn't it?
Mr. Carl W. Berueffy: I think so, yes.
I -- I have had some difficulty knowing exactly what it was the Court of Appeals said, but they did, in effect, say, "Well, this is a matter of politics of the --
Justice Potter Stewart: Executive power.
Mr. Carl W. Berueffy: Executive power.
They did make a reference to inherent power of the executive.
That is the theory that was advanced by the Court of Appeals.
And that brings us, I think, to the question of -- of where does this power come from?
In a government where we've got a Due Process Clause, the very essence of which is protection against arbitrary governmental action as this Court said in Slochower.
What is this kind of a power that's unlimited control?
Where does it come from?
Government says it comes from an inherent executive power, an inherent executive power which the -- the -- which the executive had always had.
Now, I think there might be an -- I think there might be an inherent power to do some things, but I think you have to go a long way to spell out an executive -- an inherent executive power thus to interfere what the private employment and private livelihood of a citizen of the Government.
And I don't think we need to be concerned about, although I -- I'm sure that Greene's right to private employment is a constitutionally protected right which I cannot believe to be less important than the right to travel or -- or any of the things that this Court has given protection for.
But even if the -- what the Government was -- says is true, that this is only an exercise of the privilege, the -- the Government can give or take as it chooses.
I think what Wieman, what -- what Slochower and what -- and what these other cases have said is that even so the Government can't do this on an arbitrary basis.
Now, yesterday, the -- the Solicitor General conceded, I thought, that you couldn't do it on the arbitrary basis of -- of taking one out of every three.
Now, since -- since we are in the process of defining future conduct, and that is what we are doing realistically, Greene never did anything and there isn't anything in these charges.
Greene never did anything illegal, immoral or indiscreet, and I should say making a bad marriage is indiscreet.
And the record shows --
Justice Felix Frankfurter: Isn't it?
Mr. Carl W. Berueffy: Well, is it an indiscretion that -- that warrants an inference --
Justice Felix Frankfurter: You didn't -- you didn't make that part of occasion.
Mr. Carl W. Berueffy: Well, Your Honor --
Justice Felix Frankfurter: It's ill luck, isn't it?
Mr. Carl W. Berueffy: It's -- it's ill luck, it's indiscreet, it's a thing that's happened to a great many people.
I -- I think --
Justice Mr. Justice Whitaker: You don't indent to (Inaudible)
Mr. Carl W. Berueffy: I think on the basis of the evidence that we would -- we would say that they constitute the bulk.
And may I call your attention, Justice Whitaker, to the -- to the Appendix B to our brief in which I have tried to set up the categories in which I think these charges fall.
One, there were contacts with the Soviet Embassy.
These were business contacts.ERCO had sold a great deal of material to the Russians prior to --
Justice Mr. Justice Whitaker: (Inaudible)
Mr. Carl W. Berueffy: Yes, you mean the Russian diplomat?
Justice Mr. Justice Whitaker: Yes.
Mr. Carl W. Berueffy: Yes, sir, no doubt about that.
Then four of them were people that Greene had met in the course of this business of attempting to sell the worked propeller.
One of them, the fact is he never met and the record pretty well bears out the fact that -- that this (Inaudible) was gone out of the country before Greene ever tried to sell the propeller.
Now, this -- of course, I'm not asking the -- the Court to -- to review this record and make fact findings, but I am saying that the Solicitor General has said -- conceded, I think, that we must have some kind of a rational basis.
I think in answer to Mr. Justice Harlan's question, he indicated that he didn't think this could be completely arbitrary, although that's the way the -- the Secretary maybe acted, as I pointed out.
Now, as I say, you are trying to define or to divine some things which were not illegal, which were not immoral, which in the case of trying to sell goods to the Russians in the early 1940s was not even unusual.
You're trying to -- to divine a future conduct which can't be equated to anything expect the possibility that this man will commit treason against the Government.
This is the real need, and I -- I think this is the way it's got to be faced.
Now, Solicitor General said you couldn't do it by picking every third man.
This, he thinks, would be arbitrary.
I suggest that there are other procedures of divination which people in the past have used that -- for instance, lot casting or say putting all the names in the hat and pulling out 10 or 1000.
Others have -- have tried to divine the future by looking at the entrails of a freshly slain animal.
But even in the days of the Romans, they didn't try to define future on the basis of information from anonymous hidden formats.
And this is what this Government is trying to do.
Now, if there has to be some process, I submit, it has to be due process.
It has to comport with the requirements of the Due Process Clause.
In Taylor, Mr. Rauh talked about the problem of confrontation.
The problem of due process in Greene is much broader than confrontation because, as I understand it, any kind of a process would require some kind of notice, some kind of hearing, some kind of effective opportunity to defendants or one's self.
In this case, the Government stipulated that we didn't have notice.
They stipulate that -- that we were not informed.
And I would like to read that particular paragraph to you.
That stipulation of facts begins on page 27 of the printed record, and the particular paragraph is on page 30, paragraph (23).
In making its decision, the Eastern Industrial Personnel Security Board took into consideration the whole file of the case which includes information, neither the content nor source of which has been revealed to the plaintiff.
So, admittedly don't get notice, we admittedly do get what this Court says in De Jonge against Oregon that we couldn't get by way of treatment, namely, we may very well have been convicted on a charge, that we never know anything about.
Chief Justice Earl Warren: Did I understand you to say that it was stipulated that they -- that the petitioner obtained no kind of notice?
Mr. Carl W. Berueffy: Yes, sir.
May I --
Chief Justice Earl Warren: Where is that?
Mr. Carl W. Berueffy: That's paragraph (14) on page 29.
Prior to the letter of April 17th, 1953 referred to in paragraph (13), no communication of any kind relating to the action of Robert B. Anderson was sent to the plaintiff and his employer and except as herein set forth, there was no direct communication between the Department of Defense and the plaintiff.
And then, I might say that we set forth as part of the stipulation, every piece of correspondence between the -- the Department and Greene or myself, including my brother, who saw the final letter to the Board.
So that it was stipulated that we got no -- no notice before Anderson's action.
And, of course, we did get the statement of charges.
And this is all that we ever got.
Now, I understood, with some surprise that Mr. Rauh in the Taylor case was supplied with synopsis of what the informant said.
But we got no such treatment as that.
And when I asked if it wouldn't be well in -- in view of the complexities, if I went to New York and headed something in the nature of a pre-trial about what the fact issues work, there was no response.
We got to the letter but --
Justice John M. Harlan: Did you request it?
Mr. Carl W. Berueffy: A pre-trial conference, yes, sir.
Justice John M. Harlan: Is that in the record?
Mr. Carl W. Berueffy: Yes, it is.
Justice Mr. Justice Whitaker: (Inaudible)
Mr. Carl W. Berueffy: Sir, that appears on page 2 and 3 in the record as part -- as part of paragraph (5) of the original complaint.
This is the undated letter which, if you'll indulge me just a moment --
Justice John M. Harlan: But don't take your time on (Inaudible)
Mr. Carl W. Berueffy: Well, there is a letter in which I've said recited the earlier charges and said these aren't -- these aren't sufficient, may I come to New York and let's have a pre-trial conference this evening, what's really in issue here, no answer.
All we got, all we ever had to -- to go on was this summary of 13 alleged charges.
Some of which were not true, some of which were obviously couldn't be true, none of which was ever admitted by Greene despite the Government's contention to the contrary in its brief.
Now, it is true that we didn't deny such facts as that -- that Greene had married Jean Hinton Greene.
We did -- we did deny that she was a Communist.
And we did bring two witnesses.
The best we could do is say that, "I didn't know that -- that she was a communist.
We couldn't, of course, get Jean herself because we have no subpoena power.
So we tried.
Justice Felix Frankfurter: Has the Government subpoena power in -- in these cases?(Voice Overlap) --
Mr. Carl W. Berueffy: No, sir.
Nobody has subpoena power.
You get witnesses, sir, only if they are willing voluntarily to -- to come and at your own expense.
And the hearing, of course, is held in New York and if you have many witnesses, it gets to be a problem too.
Justice Mr. Justice Whitaker: Did you say there is no provision to hung witnesses?
Mr. Carl W. Berueffy: No provision for hung witnesses, none.
The Government -- the Board does permit you to submit affidavits which are -- if you can't get a witness but, of course, it's a practical matter.
You've got to defend these things.
You -- you want your witnesses there.
Justice Felix Frankfurter: The witness has sworn before the Board?
Mr. Carl W. Berueffy: The witnesses for the respondents are sworn and cross-examined by the security officer.
Justice Felix Frankfurter: Is that the policy of administrative note, a special authorization or just a general statute?
Mr. Carl W. Berueffy: I suppose that's on general statute.
And -- and actually, the reference, of course, is not to the perjury statute but to the false statement statute to the Government.
Justice Felix Frankfurter: I understand.
Justice William J. Brennan: You said the witnesses for the employee (Inaudible) not the witnesses at the (Inaudible)
Mr. Carl W. Berueffy: You -- you never see any witnesses for the Government, Mr. Justice Brennan.
You don't know whether there are any or not.
In our case --
Justice Potter Stewart: Well, there was, for instance, I think in the former case, there was a one government witness, wasn't there actually?
Mr. Carl W. Berueffy: No, in neither case was there a government witness.
The -- in both cases, the -- the Government's case consisted of reading --
Justice Potter Stewart: Mr. Taylor's residence in 1942 or 1943 in Buffalo, am I mistaken about that?
Mr. Carl W. Berueffy: Oh, in -- in Taylor --
Justice Potter Stewart: Yes.
Mr. Carl W. Berueffy: In Taylor did offer to produce a witness, yes --
Justice Potter Stewart: Yes.
Mr. Carl W. Berueffy: -- as to residence but they didn't produce any witnesses in our case.
So that -- and this is one of the unfairness.
As you know, every witness is difficult and -- and worries on cross-examination.
But if the Government's witnesses aren't subjected to this, of course, their frailties never show up, whereas the employee's witnesses are -- suffer the frailties that in a normal judicial trial would -- would not be important because one offsets the other.
But you've a got a perfect -- you've a got a perfect presentation for the Government which nobody can attack and you have to deal with the frailties of your own witnesses.
Now, Mr. Rauh, I think, has covered confrontation.
I would like to say only this, that as I understand cross-examination, its purpose need not be limited to showing that the witness is a perjurer.
I, personally, would have liked to cross-examine the informant on paragraph simply because it is a matter of academic curiosity.
I would have liked to known whether he and I had the same idea of what a wild idea is.
I -- I think this is important.
If you are going to -- to try to base a decision on this kind of material, then the process isn't fair.
It doesn't even approach fairness, unless you -- you have some ability to -- to be sure you are talking about the same things.
And you can't do this without cross-examination, not when they use terms like this, not when it's -- in the little citation in our brief, a hearing officer says to you, "Well, now, if you are talking about liberals, that's a play on word.
Isn't that the same thing as communism and liking Russia?"
That citation has -- that quote is in our brief.
It may not be, I submit.
There could be a liberal but wasn't a Communist.
Justice William J. Brennan: Do you think that's an arguable question?
You really do think.
Mr. Carl W. Berueffy: Yes, I think [Laughter] that is arguable.
I would like to reserve my remaining time, if I may.
Chief Justice Earl Warren: You may -- you may, Mr. --
Justice William J. Brennan: (Inaudible) Where -- where did the government officer get this done?
Argument of Doub
Mr. Doub: I don't know.
I think it's just a routine matters, wearing witnesses probably --
Justice William J. Brennan: But that's not a routine matter.
Mr. Doub: But I don't know whether -- I don't know.
I don't think there is certainly no statutory authority, and I know of no other.
Justice Felix Frankfurter: Unless you're a (Inaudible)
Have you filed, Mr. Doub -- Mr. Doub?
Mr. Doub: No, sir.
Unknown Speaker: (Voice Overlap) --
Mr. Doub: Mr. Chief Justice --
Chief Justice Earl Warren: Mr. Doub.
Mr. Doub: -- Members of the Court.
To our great traditions of individual liberty of the value of the human person, human spirits requiring fundamental fairness in our normal procedures, to those principles require a trial type due process hearing when the Government is determining whether it will deny access to government secrets in that limited restricted area, is there any exception to their basic principles and their application of due process?
Now, a -- a more precise constitutional test would be has the Government limited the constitutional liberties of the citizen in this case to any greater extent than is reasonably necessary and proper under all the circumstances.
Now, if we have, this procedure is invalid.
But in answer, it does require, may I submit, the most careful and full and comprehensive evaluation of the problem upon a realistic basis and all the factors that are involved in the equation not just one and you've only heard one so far.
You remember you have said due process takes into account the nature of the problem and it is not a mechanical instrument or yardstick.
Now, the first factor in the equation is our great traditions of liberty and freedom.
Now, the second is this, as Mr. Justice Frankfurter said in the Anti-Fascist Committee case, “We recognize its summary administrative procedure may be sanctioned by history or obvious necessity.”
Now, the United States is the only government in the world that accords any hearing at all in connection with access to government secrets.
Now, this program did not evolve during some temporary period of hysteria.
It has perhaps existed three or four years ago.
It originated in the beginning of 1942 during the war.
And it was operated then upon a completely informal basis, as is being done in Great Britain and each of the NATO countries, the Defense Department informs me.
The United States would -- would decide that it lacked confidence in someone working in a defense plant, and it would notify the company that it didn't trust such, such, such and such a man.
The company would move him to a non-sensitive position, if it had one, if it could, or it would dismiss him.
And as a matter of fact, the Report of the Commission on Government's Security states that 2000 industrial employees were dismissed during the war as a result of that informal procedure.
Now, then, efforts were made to formalize and this formalized proceeding which was designed not to operate on such an informal basis but to accord hearing privileges or rights, these hearings, limited hearings, they are limited hearings, of course, I think, started in 1949.
But in any event, this program in one form or another has been in effect for 17 years.
Now, there is a confusion about the nature of the -- of the issue in these hearings.
And I might say, as I said before, that Canada, Australia, Great Britain, France, countries that had -- know something about traditions of freedom, have continued to operate on the informal basis.
Now, I would like to put the problem in the terms that the Prime Minister of Canada recently put in.
He said -- he said to the parliament this.
First, he said employer should always try to avoid dismissals if it all possible.
They have a duty not to increase the difficulties or disabilities of persons whose only misfortune is that their liability is open to question.
And I might say here that there was no directive to this employer to dismiss Mr. Greene.
And I emphasize that because no one in the defense establishment had any authority to tell an employer to dismiss anyone.
And it would have been exceeding authority to have done s.And as a matter of fact, the regulations and policy of the Department, Defense Department made clear that it's their hope that employers will transfer someone who isn't cleared for access to secret information, a classified information to a non-sensitive position.On the other hand, I must conceive --
Chief Justice Earl Warren: Mr. Doub, I understood counsel to say that the letter directed the -- the employer to let him from having access to the plant where he worked --
Mr. Doub: Well --
Chief Justice Earl Warren: -- where he was -- where he was the --
Mr. Doub: We --
Chief Justice Earl Warren: -- executive officer.
Mr. Doub: That's right.
We caused his dismissal in this way.
This was a small comparatively small research corporation.
It had several thousand employees.
But all of its work, apparently, was classified navy and air force work.
If it had been General Electric, it perhaps could have moved him over to something else or General Motors.
But here, the denial of access to -- to top secret information, and what we are dealing with here was top secret, he's -- the head of this company testified that he wanted and needed a top secret clearance for this man, the highest priority known, the government secrets.
Chief Justice Earl Warren: Well, I -- I'm -- I was just directing my question to your statement that you did not ask the company to discharge him.
Mr. Doub: We did not.
Chief Justice Earl Warren: You merely told him that he shouldn't have access.
Mr. Doub: Right.
Chief Justice Earl Warren: -- as I understood counsel, the -- the letter of the Secretary directed them not to permit him in the plant.
Mr. Doub: Well --
Chief Justice Earl Warren: Now, if -- if a man can't get in the plant that he is the executive officer of, how can you say that he didn't -- that the Secretary didn't direct him to discharge him.
Mr. Doub: Well, because the statement made by counsel is not strictly accurate.
What he said was --
Chief Justice Earl Warren: Where -- where are you reading from, Mr. --
Mr. Doub: I am reading on page 4 of our brief.What he said was, "You are requested to exclude William Lewis Greene from any part of your plants, factories or sites at which classified navy projects are being carried out and to bar him access to all navy classified security information."
Chief Justice Earl Warren: That's the way I understood counsel and --
Mr. Doub: Oh, I -- I misunderstood.
Chief Justice Earl Warren: -- that's the way I thought they had said it to you.
And you said that -- that the -- the whole thing was researched and therefore, he couldn't be in the plant at all --
Mr. Doub: Well, I think --
Chief Justice Earl Warren: -- under the government order.
Mr. Doub: I think it had that effect --
Chief Justice Earl Warren: Well, that's what I understood.
Mr. Doub: -- Your Honor, because it says from any --
Chief Justice Earl Warren: Yes.
Mr. Doub: -- part of the plant --
Chief Justice Earl Warren: Yes.
Mr. Doub: -- where work is being done --
Chief Justice Earl Warren: Yes.
Mr. Doub: -- and I think that the work was -- that's -- that's all the work they had.
Chief Justice Earl Warren: Yes.
Mr. Doub: But the -- I do think that you may not ignore the important distinction because if we are dealing with employment outside of this restricted field and access to information, I think, entirely different constitutional principles might logically apply.
And -- but I'd like to continue with what the Prime Minister said, "The assessment of the reliability of a person does not necessarily or even usually involve anything that could be regarded as charges against him.
Decisions on reliability are taken everyday in the public service and indeed, in business and in almost every sort of organization."
The question at issue is not guilt or innocence of some particular charge, the sole question is whether a certain person can or cannot be entrusted with secret defense material.
It would give a completely false atmosphere.
And that false atmosphere has already been created here.
It would give a completely false atmosphere to the matter if it were assumed that reliability can somehow be put beyond doubt by meeting formal charges or indeed that reliability cannot be brought into doubt except on the basis of formal charges, assessment of character maybe the only consideration in some instances.
That is not a matter of charges or a trial or a proof, it is a matter of judgment.
Justice Hugo L. Black: What was the occasion of this address?
Mr. Doub: He was address -- the Prime Minister St. Laurent was addressing the Canadian Parliament indicating the nature of the issues in Personnel Security cases in Canada.
Justice Hugo L. Black: What was the objective of his address?
Mr. Doub: Well, he was explaining --
Justice Hugo L. Black: Has he been talking about statutes or laws that have been passed or that he wanted to pass?
Mr. Doub: No, he was -- he was defending their Personnel Security program.
Justice Hugo L. Black: Well --
Mr. Doub: And he was explaining why they didn't accord hearing.
Justice Hugo L. Black: Had the Parliament passed it or had someone raised a question in the Parliament that they ought to have hearing?
Mr. Doub: I -- I don't know.
Justice Hugo L. Black: You don't know what the speech was about?
Mr. Doub: Well, I do know [Laughs] what is valid.
Justice Hugo L. Black: Is it a statute -- is it a statute in this country which authorized it?
If so, where is it?
Mr. Doub: No, there's not.
Justice Hugo L. Black: There's not?
Mr. Doub: There is not an expressed statute for this program.
There -- there are three or four statutes from which, I believe, you can well deduce.
Justice Hugo L. Black: Did you say --
Mr. Doub: And they have one in -- in --
Justice Hugo L. Black: I don't know, I am asking you the question because you read this.
Do they have one in Canada?
I don't know.
Mr. Doub: No.
Justice Felix Frankfurter: Well, isn't the Canadian system like in England?
And isn't this the internal executive scheme both in England and in Canada, more particularly in England, who are dealing with people who are not to be trusted or -- or not -- about whom questions are raised to a government employee and they have a government, I think, they're familiar with England, they have a government, takes very careful measures within its full rights of discharging anybody not to do any damage.
The difficulty is that -- that -- in the first place, this isn't the question of dismissing some government employee for a good reason or bad reason or no reason in the absence of limitation upon such dismissal by a Civil Service Act.
In the second place, he must do -- the situation of the Civil Service Act may not or does not imply, the Government may limit its powers, its constitutional powers by wrecking a system of administrative procedure and then the question is, as it is here, whether the system of administrative procedure grants certain safeguards though pursued constitutional may not require such safeguards to re-grant it.
Mr. Doub: That's right.
Justice Felix Frankfurter: You got a very different system from what --
Mr. Doub: We --
Justice Felix Frankfurter: -- that under which both England and -- and Canada and, I believe, Australia are operating.
Mr. Doub: Well, I think --
Justice Felix Frankfurter: There, it's entirely within the Government without any statute setting up this system wholly apart from the fact that in none of those three nations that I have named that they got a Due Process Clause.
Mr. Doub: Well, I -- I would like to point this out, Mr. Justice Frankfurter, that a few years ago, many of the critics of the Government Security programs made invidious comparisons between our and the English and Canadian system pointing out that their systems were limited to sensitive positions in the Government and sensitive positions in industry.
But you remember prior to Cole against Young, the Government was applying its security system in non-sensitive positions.
Now, that -- I think that fact, it's only about 5% or 6% of the employees of -- of the Government.
And also, they pointed out that in England, transfers are made wherever possible but not always as the Prime Minister even said --
Justice Hugo L. Black: May I supplement what the question that Mr. Justice Frankfurter suggested to say that to me that probably another question something like steel seizure case.
Do you -- do you rest entirely here on the executive power to promulgate broad rules which have the effective law, determining who can and who cannot work for private employee without -- without any act of Congress?
Mr. Doub: Well, Mr. Justice Black, I will turn to that.
I had hope to go on, on the constitutional --
Justice Hugo L. Black: I have no objection, I just want to say that I --
Mr. Doub: Could I -- could I differ a little --
Justice Hugo L. Black: -- I thought you will discuss it.
I don't know (Voice Overlap) --
Mr. Doub: I will.
I -- I will discuss this.
Justice Hugo L. Black: -- but I'm interested.
Mr. Doub: I will discuss this.
You'd be interested in the -- at the -- in the appendix of the Report of the New York Bar Committee, and a report that's not always laudatory, in fact, it's critical of the security programs of the Government.
Justice Hugo L. Black: (Inaudible)
Mr. Doub: You'll find in the appendix some quotations that I wish I had time to read confirming the position the -- the Defense Department has taken and the Government has taken as to why it can't provide confrontation.
Those are statements by the Prime Minister of Canada and statements by the Prime Minister of Great Britain.
Now, I like to --
Chief Justice Earl Warren: Did the text of the -- text of the Report confirmed that as the opinion of the Committee?
Mr. Doub: Well, I was referring to quotations from --
Chief Justice Earl Warren: I know you were but -- but how about the Report of the Committee itself?
Did it -- did it follow those citations and suggest that confrontation was not necessary or did it arrive at the contrary conclusion?
Mr. Doub: Well, I -- it -- as I recall the -- the New York Bar Committee Report, it recommended a limited form of confrontation.
Chief Justice Earl Warren: Yes.
Mr. Doub: And I know the right commission report recommended it as to casual informants, none suggested it was a constitutional principle though.
Chief Justice Earl Warren: No, but it did --
Mr. Doub: And the question of --
Chief Justice Earl Warren: -- suggest that this procedure was bad, did it not?
Mr. Doub: Well, they thought it could be improved.
Chief Justice Earl Warren: [Laughter]
Justice Hugo L. Black: You're not taking that -- you're not agreeing with that.
Mr. Doub: [Laughs] Well, I don't say that it can't be improved.
All we say is that's the matter -- we -- there'd been constant improvements so far, and we hope there'll be more.
But it always says that's a matter of administrative or executive or legislative power.
Now, I'm going to leave our foreign Prime Ministers and go back to our own --
Chief Justice Earl Warren: Good.
Mr. Doub: -- authorities.
Judge Wyzanski said, in effect, the same thing.
You will find in an opinion I have quoted, and Justice Douglas likewise did in his concurring opinion in the Anti-Fascist Committee case.
And I'd like to read you what he said because he recognized so clearly the distinction that we are making here.
Justice Hugo L. Black: Was that -- I don't remember.
Was that a case of a government employee or an employee of a private company?
Mr. Doub: It didn't involve any employee, Mr. Justice Black, it involved the Attorney General's list and the listing of the -- of the Anti-Fascist Committee.
It was in effect whether he could make a designation without any hearing at all --
Justice Hugo L. Black: Well, you -- we're not talking about --
Mr. Doub: -- which would --
Justice Hugo L. Black: (Inaudible) case.
Mr. Doub: No, no, I'm not.
Mr. Justice Douglas said this.
The problem of security is real and the Government need not be paralyzed in handling it.
The security problem, however, relates only to those sensitive areas where secrets are or maybe available.
The department heads must have leeway in handling their personnel problems in these sensitive areas.
The question is one of the fitness or qualifications of an individual or a particular position, one can be transferred from those areas, even when there is no more than a suspicion as to his loyalty.
Now, here, we're not dealing with a suspicion as to loyalty.
The suggestion of my friend on the other side, what's involved here is potential treason is totally unsound or a -- a clearance should be denied to a blabber mouth, to one who has committed no offense.
And this man was not charged with any offense known to our law.
Chief Justice Earl Warren: No, but I understood he was -- but in the Taylor case, he was, he was charged of being a Communist, but in this case, I understood that he was -- he was charged with having Communist beliefs, that he was charged with associating with his wife who was a Communist, he is charged with associating with Soviet agents, he is charged with associating with Soviet diplomats and other things from which no person in this day and age could gather any other impression than that.
He was a dangerous individual because he would -- he would divulge secrets to those people.
Mr. Doub: Well, I --
Chief Justice Earl Warren: But what other -- what other import could there be to these charges, if not that?
Mr. Doub: Well, I -- the -- I have read this entire record with care, Mr. Chief Justice, and I found that there was no dispute as to any facts at all.
The dispute was as to the inferences to be drawn from undisputed facts.
Chief Justice Earl Warren: Exactly.
But if you --
Mr. Doub: Now --
Chief Justice Earl Warren: -- charge him with having -- having contact with -- with Soviet agents and he says that the reason for it was that the Government and his employer was trying to negotiate some contracts with him, there is a great difference of opinion between the purpose for -- for which he says he saw those people and the one for which the Government seeks to deny him access to -- to secrets, is that not right?
Mr. Doub: Mr. Chief Justice, this man had the most extraordinary number of associations, not only with persons in the Russian Embassy, from military attaché, and not only with persons the Government has believed pro-communist, but even with persons whom the Government believes had been actively engaged in espionage.
Now, we don't -- we have never said that Mr. Greene by virtue of those extensive associations was not a good loyal American, he may well be and he probably is.
And certainly, there is no -- nothing in this record to show that he is not.
The problem -- the problem from the point of view of the Board -- Board was, if you have a man over a long period of years with close associations, with Silvermaster who was publically identified and testimony before a committee as head of an espionage ring and documents were photographed by his associate Ullman, who lived in his house in his basement, Mr. Greene, strangely enough, had access to that basement.
He used to go down there and he saw all the --
Justice William J. Brennan: Mr. Doub, what you are telling us now, what he admits or --
Mr. Doub: Yes, this is all what he admits.
I wouldn't say anything except what he admits.
And now, you finding then in partnership, he organized a partnership which does work for a short period of time for a company out in Ohio, that the Government considers controlled and dominated, operated entirely by Communist, he takes in as his partner a man whom the Government -- was a communist, he -- he make trips to Nags Head with persons identified as Communist.
He stores his furniture with someone identified as a communist.
In other words, now -- he denies that he saw them do anything improper, he said he never saw Silvermaster do any spying, and he said that while they were -- they were pro-Russian, pro-Soviet, he didn't know that they were subversives.
Now, the problem is, if the Court please, what in the world is a security board going to do with a case like that?
Now, all there is against him is his associations.
And they weren't just remote associations, as counsel on the other side suggested.
Now, obviously, you are not going to convict him of any crime at all.
But the -- if the question is not one of doubt, in other words, is the Defense Department going to disclose to someone in that position the top secret information of the United States?
Now, if it did, and is the Court to compel it to do so or to say, "You must do so unless you confront him with his accuses."
Well, actually, he never requested to confront anybody in this record, as long as the hearings were going on.
He -- I think he did have perhaps after his clearance was revoked.
But I do ask you to think of it in terms of the problem.
Would it explicable to the American people to say the Defense Department has to trust those whom it doesn't trust?
Justice Hugo L. Black: Do you see any difference between the power of your Board over the employee of the Government and a non-employee?
Mr. Doub: I cannot see any difference, Mr. Justice Black, between the employees of the -- of a contractor and employees of the Government doing insensitive positions.
Now, I think there is a different between employees in non-sensitive positions.
I think if they are in non-sensitive positions, I'm not sure the Government is entitled to the -- to claim the benefit of the doubt.
In other words, isn't this fundamental distinction --
Justice Hugo L. Black: I'm not -- I'm not asking you about that distinction, I recognize (Inaudible)
Mr. Doub: Yes.
Justice Hugo L. Black: I'm asking you if you draw any distinction between the power of the Government in connection with employees of private companies to cause a government contractor, employees of the Government, just what you call an inherent power that comes from something.
Mr. Doub: Well, logically, there's -- there's no difference for this reason.Certainly, the Government is as much entitled to exclude private persons whom it does not employ from government secrets as it makes --
Justice Hugo L. Black: (Voice Overlap) government secrets but from government -- from employment with a private company, it seems to me, there ought to be some difference.
The Government doesn't have to contract with the client for a certain private company though.
Mr. Doub: That's true, we could --
Justice Hugo L. Black: Could the President -- could the President had promulgated the Walsh-Healey Act?
Mr. Doub: No, sir.
Justice Hugo L. Black: Suppose he had done it on the ground that needed to be done, interest in national defense and security?
Mr. Doub: Well, we think --
Chief Justice Earl Warren: You can answer that after lunch.
Argument of Doub
Mr. Doub: -- this program as I see it, is this that in the case of sensitive positions, whether in the Government or outside, the Government is entitled to the benefit of the doubt.
But in the case of non-sensitive positions the ordinary employment by the State or by others then the employee is entitled to the benefit of the doubt and therefore ordinary due process requirements must be met.
And it seems to me that that distinction is a reasonable and logical one.
As the Solicitor General pointed out the only power asserted by the Government in this case is the refusal to disclose to a private person secret, top secret in this case military information and it's -- for which it's responsible.And that information is made available to private persons solely for the benefit of the United States.
Chief Justice Earl Warren: Well, Mr. Doub, does that carry into the conclusion that -- that you can -- the Government can cause the result that happened to this man without any procedure of any kind and without giving him any notice of any kind of the charges against him?
Mr. Doub: Well, as a matter of fact, if the Court please, you'll find the statement of the derogatory information was furnished.
Chief Justice Earl Warren: No, no I didn't ask -- I didn't ask you that.
I know there was happening here eventually but -- but does it carry you, does your argument that you just made, carry you to that conclusion?
Mr. Doub: Yes, it -- it would Your Honor.
Chief Justice Earl Warren: It would.
Mr. Doub: In other words, it would presuppose that there may be in an individual case an injustice and an inequity.
But when you balance that against the right itself, preservation of the Government, the greatest responsibility we have or we say the interests -- the people of the United States are entitled to the benefit of the doubt in this restricted area even though -- even though in denying a man access, it may have the consequential effect as it did here of loss of employment.
Chief Justice Earl Warren: Now, that isn't exactly the -- if I may finish this.
That isn't exactly the way I understood the Solicitor General.
I understood the Solicitor General this morning to -- to say that some procedure must be given to this man and that if it was arbitrary, completely arbitrary, that it -- it would violate his rights.
Mr. Doub: Well, as I understood the Solicitor General, we're both in accord that no discriminatory policy can be adopted such as no Democrats may have access to secret information or Republicans.
And -- but I don't believe he intended to go further than that, but in any event if you feel there must be the Constitution requires a form of hearing then I will address myself to the point that this limited, restricted hearing under these circumstances and you must consider all the circumstances may be adequate.
But may I point that --
Chief Justice Earl Warren: We are not pointing it to that.
May I ask, if it wasn't the fact that the petitioner in this case was discharged by -- caused to be discharged by the letter of the Secretary without affording him any procedure of any kind and without giving him any information of any kind.
Mr. Doub: No, he -- he requested a hearing and was (Voice Overlap) --
Chief Justice Earl Warren: Well, I know, but he was already (Voice Overlap).
He was already discharged, wasn't he?
And he didn't get it for some seven months after that.
Mr. Doub: Yes.
Chief Justice Earl Warren: -- referring to these two -- two items that were called to -- to our -- our attention.
The one that -- on page -- on Page 29 of the record where on or about April 17th, 1953, Robert B.Anderson sent -- the letter set forth in paragraph 5 of the complaint, and then prior to the letter of April 17th referred to no communication of any kind relating to the action of Robert B.Anderson was sent to the plaintiff and his employer.
And except his hearing set forth, there was no direct communication between the Department of Defense and the plaintiff.
So, that's what caused his discharge.
Now, later it's true he did have a hearing some seven months later or eight months later before the Eastern Industrial Personnel Security Board but at that time it stipulated that in making its decision the Board took into consideration the whole file to the case which includes information neither the content nor source of which has been -- has been revealed to plaintiff.
Now, that's a stipulation of the parties as I understand it.
Mr. Doub: Well, I would like to give Your Honors these page references in the transcript where he was -- where the Board told him that a witness says this, what comment do you have to make on it?
Chief Justice Earl Warren: Now, what do you do with this stipulation that I just read?
Mr. Doub: Well I don't think it was -- I think it meant, Mr. Chief Justice, that they did not give him a separate summary of the information that they had in the file.
But they did in when he was testifying, they did quote to him things that witnesses said and I would like to give you paper --
Chief Justice Earl Warren: No, but this stipulation says that he got neither the content nor source of which --
Mr. Doub: Well, he certainly was not given the sources.
Chief Justice Earl Warren: Yes.
And this says the content, your stipulation, what are you going to do with it?
Mr. Doub: Well, he -- he was given the content of a great deal of material and I'd like to give you the page references where they appear.
What I want --
Chief Justice Earl Warren: Well I -- I won't bother you to do that because I won't read them right now, but I just wondered how, what are you going to do with that stipulation?
Mr. Doub: Well, I accept it as -- as it stands, but the record does show that if any one is interested that in 20 or 22 instances, statements of -- from what they had in their file were read to him or summarized to him during the course of the hearing.
Now, if the court please, this power of -- of acting on a doubt or on whether someone is trustworthy is one that's freely used by every private employer in the world, so the effort here is not to subject the Government, that duty is comparable to that of a private person but to greater duties because it is the Government.
Now, may I point out this.
We would -- I think we'd have to agree that no one has any constitutional right to access to government secret, no one has any legal right.
So then -- then to find a constitutional basis we're saying that Mr. Green is entitled to a constitutional trial type due process hearing.
We have to find some interest that he has.
Certainly it's not the right of access.
So, you say, well it's -- it's financial determinant.
Here, he consequentially lost his job.
Now is that -- is that a sufficient interest?
Certainly it's not enough as Mr. Justice Black said in Lukens Steel after stating that no legal rights were invaded when the Government refused to contract with a private corporation, he said this, “It is by now clear that neither damage nor loss of income in consequence of the action of the Government, which is not an invasion of recognized legal rights is in itself a source of legal rights in the absence of constitutional legislation recognizing it as such.”
Justice Hugo L. Black: I wouldn't think that as in application here, maybe it does, that was said with reference to business people who wanted to claim they had a legally recognizable right to make contact with the Government.
Mr. Doub: That's right.
Justice Hugo L. Black: Your question is whether the Government can invade this man's undoubted right to hold his job unless there's some for some legal reason the Government can have him removed.
Mr. Doub: That's right.
And -- and you -- you pointed out, Mr. Justice Black, that the Government had the unrestricted power to determine with whom it will be --
Justice Hugo L. Black: That's right, that's correct.
Mr. Doub: Now --
Justice Hugo L. Black: But we didn't have anything there about the conditions of employment that would --
Mr. Doub: No.
Justice Hugo L. Black: Affect anybody else?
Mr. Doub: No.
But your -- but if the language does to him -- to United States, applicable here, and suppose Greene had been transferred from a -- this sensitive job to a non-sensitive job, would he have had legal standing to say his constitutional rights were invaded?
He would have had no financial loss but if he wouldn't, then you set up one constitutional standard for those who consequentially lose their position, not because although the Government did the same thing in each case, it denied clearance and because his employer doesn't have non-sensitive work for him, I -- I say that would be a completely illogical conclusion.
So, I don't think it can be predicated upon a financial loss.
Chief Justice Earl Warren: Well, are you certain that -- that the Government could by a procedure of this kind or lack of procedure of this kind so circumscribe the activities of a -- of a man whether within or without the plant he is working in so that he cannot -- he cannot hold the kind of position that his -- his training and ability entitle him to?
Would you say that is clear that they could do that, move him around in that way and eventually move him down where all he could do is clean up the building?
Mr. Doub: Well --
Chief Justice Earl Warren: -- you assume --
Mr. Doub: -- if the Court please --
Chief Justice Earl Warren: -- but that's perfectly all right to take and do, that they can do that, but I don't know that they can do that.
I -- I don't think that's been established, has it?
Mr. Doub: Well of course --
Chief Justice Earl Warren: By --
Mr. Doub: -- it's no.
Chief Justice Earl Warren: -- branding him -- by branding him as a man who is not fit to -- to have -- have these secrets because of his associations with subversives?
Mr. Doub: Well, if the Court please, no characterization has been made of him by the Government beyond denying him access to government secrets, as in the case of a government employee who's denied access.
That's, in other words, we go no further than we had to go in denying him access.
Now, it's true that these unfortunate consequences have -- have fallen.
Actually this administration destroyed, obviated the old President Truman loyalty standard which did involve stigma and we set up a standard that we tried to make as innocuous as possible and that was clearly consistent with the --
Justice Hugo L. Black: Make it what?
Make it what?
Mr. Doub: As innocuous as possible from the standpoint of the individual [Laughs] and that was clearly consistent with the interest of national security.
Now -- now the New York Bar Committee has suggested pretty good standard.
They say that is continued employment is undesirable.
Justice Hugo L. Black: May I ask if your argument is something like this.
And may lead to something else in connection with it, or may not.
You are saying it for the good of the public, public welfare demand, something be done to this man whereby he surrenders for the public good his job with all the losses that may entail to him.
Now, if he'd owned the laundry as an individual and done that could you -- could you take it with that (Inaudible)
Mr. Doub: Certainly not.
Justice Hugo L. Black: What's the difference?
Mr. Doub: Well, if the court please --
Justice Hugo L. Black: Well let's suppose he does on the growing concern, there's no inability --
Mr. Doub: Well --
Justice Hugo L. Black: Can you take it -- take it away from him without paying?
Mr. Doub: Of course, we didn't direct his employer to dismiss him.
Justice Hugo L. Black: Well, for that was --
Mr. Doub: -- We --
Justice Hugo L. Black: not -- that -- that wouldn't be -- that wouldn't a defense if -- if the compensation so as it applied, would it?
Mr. Doub: No, no.
Justice Hugo L. Black: What do say?
Maybe it has nothing to do with it, but would -- would it not have something to do with the consideration of the whole subject?
Mr. Doub: I don't know, Mr. Justice Black.
I don't know the answer to that.
May I say this on stigma, is there a more stigma here than if we had denied him a clearance without a criminal conviction for accepting a bribe or for theft or for rape, and in each of those cases the courts have refused to find the constitutional right entitling an employee to be protected by procedural due process when his employer, private or the Government, dismisses him for those reasons.
Actually, this case seems stronger from the government's point of view because here you are dealing with secrets of the United States.
Chief Justice Earl Warren: Well, what if they want to say if a man had been convicted of -- of rape and another thing if they were just some anonymous or baseless charge against him that he -- he had done such a thing when he wanted to be confronted by the witness against him and was denied the opportunity?
How would it then --
Mr. Doub: There could be a difference.
Chief Justice Earl Warren: I would think that there --
Mr. Doub: -- (Voice Overlap)
but in the case that I cited Your Honor to you there was no conviction.
The employee was dismissed on the ground that his employer believed he had committed a theft or a rape or somehow they're dishonest.
Justice Hugo L. Black: But was he employed at will?
Mr. Doub: Yes at will, now --
Justice Hugo L. Black: But if the Government had done that, you wouldn't have any problem there, would you?
Mr. Doub: No.
Justice Hugo L. Black: If the Government had employed him at will, but what is it that causes --
Mr. Doub: No.
Justice Hugo L. Black: -- you to say that he's entitled to due process.
I -- I'm asking you that because to me if he's entitled to due process, it's one thing.
I find it a little difficult to shrink it to the dimension as it had been suggested in one type of case and expanded in another.
If he's entitled to due process at all, how can we say that it's just the slight amount that is suggested here by weighing each time?
Mr. Doub: Well, I was trying to consider all the factors involved in this very determination, is he entitled to a due process trial hearing?
I pointed out financial determinant, is not enough.
I was pointing out stigma, is not enough.
Justice Hugo L. Black: So, you say he's not entitled to due process here?
Mr. Doub: Not entitled to a due process trial type hearing because if he is entitled to it, why, of course, there's no reason for us to be here.
Justice Hugo L. Black: What, you mean no he is -- the different ideas of due process as you know and all of us know, do you -- are you saying the government has a right, I can understand that argument, but for many years the Government had fired whosoever it chose whenever it saw fit, and nobody raised much questions about it.
Are you standing now on the base that he -- he is entitled to some of the elements duly recognized as the part of due process and not entitled to others or that he is not entitled to any of them?
Mr. Doub: Well, if the Court please, I think a very strong argument can be made, that in these sensitive areas that we are talking about no constitutional rights were involved at all.
In other words, as the District Court and the Court of Appeals for the District of Columbia held, he has no constitutional right to confrontation.
That this is a matter -- this question of the Government just determining to whom it will admit to access to its secrets is a matter for the executive determination.
And unless that's one approach to it, even though there are these distasteful qualities to the legal mind, where you have no trial type due process hearing and they are distasteful.
There's no -- no question about that.
But in this restricted area there should be no such requirement.
Now another approach is, well assuming, that -- that that's not correct, that there are rights to work that are effective here, why then we would -- there would be the position while this restricted type of proceeding meets the test of due process even though it's not the one that we ordinarily associate -- we like.
In other words, it is limited, it is restricted.
Actually, in spite of all our horrors of baseless informers, I think the statistics are -- are very interesting on the extent to which this limited restricted hearing has worked in favor of employees of 3400 cases, in a five-year period before hearing boards, clearance was restored as a result of these limited hearings in 2453 cases.
That's, in other words, over 60%.
Now, of course, the answer could be, well, if there was confrontation, it would be lower.
But I think we do have to balance Mr.Justice Black, this -- these rights of the individual against the other interests that are involved here, and they are tremendous, they are tremendous, yes.
Unknown Speaker: Many of them.
Mr. Doub: Yes.
Unknown Speaker: Good.
Chief Justice Earl Warren: Mr. Doub, when was this man denied access to these secrets?
What date, then by what documents or by what act was he denied?
Mr. Doub: He was denied access by the Secretary of the Navy in April 1953.
Chief Justice Earl Warren: That was the letter -- the letter that -- that Secretary Anderson wrote to him and just tell -- telling him that he was denied access.
Now there were no procedure of any kind before that, was it?
Mr. Doub: Yes, there'd been a hearing before that and --
Chief Justice Earl Warren: Well, I know but none according to the proceeding that the -- the regular procedure --Yes, there'd been a -- he's had a -- he'd had a hearing before a board that it cleared him.
Chief Justice Earl Warren: Cleared him, yes all right.
Mr. Doub: Cleared and the Secretary of the Navy wrote this letter saying he'd reviewed those proceedings and he was revoking his clearance.
Chief Justice Earl Warren: Did he say that -- did he say that it was on a review of those proceedings?
Mr. Doub: Yes, he did.
Chief Justice Earl Warren: That's what the letter said.
Mr. Doub: Yes, sir.
Chief Justice Earl Warren: All right.
Justice William J. Brennan: So, this was under reversal was it in effect this time?
Mr. Doub: And was reversal, yes.
Justice William J. Brennan: By the secretary of the Board.
Mr. Doub: And then, then he referred it to this another hearing board when the employee requested it.
Well just before leaving the constitutional issue I just conclude with this.
There's one other facet here and that is what would be the consequences of a holding where the trial type hearing with confrontation as a constitutional prerequisite to a denial of access to secret information.
Now, I'd like to suggest that the consequences of such a hearing may be far worse than the possibilities of inequity or injustice in a particular case under these regulations.
First, it -- it would mean that the Government, unless it's prepared to produce its sources of information in a hearing, information that is classified, unless it's prepared to do that, it then cannot revoke the clearance or deny clearance to any industrial worker.
It must trust those whom it doesn't trust.
It must accept as reliable those who it doesn't consider reliable.
The decree would amount to a mandamus of the executive to disclose publically to the petitioner one of two kinds of information, the secrecy of which the executive has determined to be required.
Now, further more, when you define a constitutional principle of that kind, it means it's applicable in time of war as well as in peace.
Now, can it be in time of war even, we must admit to access to government secrets, persons whom we don't trust?
I think that would seem inexplicable to the, not merely the political branches of the Government, but to the people of the United States.
And wouldn't it mean that a constitutional principle had been defined on such a metaphysical basis as even to endanger the security of the United States?
Of course, it would deny to the Government the privilege of every private employer, to deny the -- to the executive in the case of military secrets the privilege to exercise by the judiciary in determining whom it will admit to its judicial secrets.
So, I don't believe that this issue can be resolved merely in terms of -- no exact words so I say, on personal freedom.
There are too many other factors here.
Now I like to return, in the few minutes left to me to Mr. Justice Black's question about statutory authority.
Our brief argues extensively --
Justice William J. Brennan: (Inaudible) Is there any indication what kind of informants do you have involved here?
Mr. Doub: No, and I read this record carefully, Mr. Justice Brennan, and I could not tell from the record whether they were causal, whether they were intelligence agents or what they were.
In other words, there were a number of quotations or -- or the -- the Board would say to -- to Greene, we have information as to this list.
And in every case except one Mr.Greene said, yes that's right.
But -- and he would explain why he saw this --
Justice William J. Brennan: By this time someone that had him under surveillance, doesn't they?
Just knowing --
Chief Justice Earl Warren: I suppose it wouldn't make any difference to you and your argument whether they were -- were employees of the Government, undercover agents or whether they were just casual informers, neighbors, or -- or strangers, or whoever it might be?
That -- that's your position?
Mr. Doub: Well Mr.Chief Justice I have before me a statement of Attorney General Brownell.
Chief Justice Earl Warren: Well, no.
I was -- I don't care about Brownell's, Mr. Brownell's statement, I just like to get your opinion in -- in how far you go on your argument.
Would it make any difference to you in this case, whether it were known as a fact, how many of these were witnesses that you used to deprive the man of his rights, were employees of the Government and -- and therefore in a confidential relationship or how many of them might have been people who just wrote in and said we -- this man is a Communist.
We know he does so and so.
What is the fact?
Will it make any difference to you or not?
Mr. Doub: Well, I think that it's perhaps debatable.
As a matter of fact, there's been criticism and there have been suggestions made that an improved policy would be to require casual informants to be produced.
But my position is if there's no constitutional principle distinguishing between the two, in other words, I can ---- (Voice Overlap) how the -- it may be the executive should change this or the legislative power.
But I can't comprehend the definition, or -- or I just can't formulate a constitutional principle that would apply to one, but not apply to the other.
That's my difficulty.
Now the -- what I was going to say was that it was stated, I think, by Mr. (Inaudible) that only the Chief of Intelligence, Mr. Hoover, had made the statements about the casual informers.
Attorney General Brownell did make a comparable statement that they could not be produced.
Now, on statutory authority, one statute defines the congressional policy that it's illegal for any person having defense or classified information to disclose the same to unauthorized persons.
Now, this program we think represents an attempt to faithfully execute that law to define who are authorized and who are unauthorized.
And another statute authorizes the head of these department to prescribe regulations for the custody, use, and preservation of records, papers and property and we think that would extend to the protection of property the title of which is not yet under the United States such as guns, aircraft parts, electronic parts being produced in United States because they are appertaining to the department.
And the statute use the word ‘appertaining.'
Further, there've been numerous appropriations by the Congress for the Defense Department upon representations by the Defense Department explaining that the money was to be used for this program says that further, there's a statute appointing the right commission and to study this and the other security programs and providing for the appointment of members of the Senate and members of the House, all showing a -- a close acknowledgement by the Congress of the existence of the program and knowledge of the program, and -- and indeed you'll find that the commission itself found statutory authority which included members of the Senate and the House.
And you'll find a -- a very good analysis in its report of -- of the statutes involved.
Justice Potter Stewart: When all is said and done now, Mr. Doub, is am I right in understanding that you don't rely fundamentally on -- on any statutory authority if that is -- that's your position that in the absence of any such statutes, what is here present is an inherited -- inherent power --.
Mr. Doub: That's right.
Justice Potter Stewart: -- of the executive which is fundamentally --
Justice Potter Stewart: -- non reviewable by the judiciary.
Mr. Doub: That's -- that's correct, Your Honor, and I might say that none of the
Justice Felix Frankfurter: -- (Voice Overlap)
Mr. Doub: -- critics --
Justice William J. Brennan: (Inaudible) executive orders as to inviolability of some of the confidential information.
Mr. Doub: Well, our -- our position as we outlined it in our brief is first, that this is an inherent power of the executive, but if the executive has secrets, inherently it must protect them and has the power to protect them and determine and select who shall have access to them and as the Solicitor General says the Government's operated on that basis for 170 years, and, of course, every government must be on the same position and we've developed that.
Now, the right commission takes a different position.
They feel that -- that it's a matter of statutory authority, but they conclude there is statutory authority and they have a more extensive discussion of the statutes than I think we have in our brief.
Mr. Justice Brennan, I -- I understand there is a statute with respect to oaths and if -- if we find there is, I'd -- I'd like to give you a reference to it later.
Justice Felix Frankfurter: Mr. Doub, I assume this is -- is also an either or -- or -- either or proposition, namely, the Government has confidential information.
It therefore, may withhold it and therefore it may generate a process by which a man loses his job, is that right?
I suggest the third alternative, if they have confidential information and if they hold on to it, and forgo therefore the right to have this individual (Inaudible) if it doesn't want to disclose it.
Mr. Doub: Well, I --
Justice Felix Frankfurter: It has to do that in connection with criminal prosecution.
Mr. Doub: That's right.
That's right and if -- but as I pointed out, Mr. Justice Frankfurter, think what an intolerable choice that is for the Government in this sensitive area relating to its sequence.
Unknown Speaker: That's the penalty the man paid for being in high position.
Mr. Doub: [Laughter].
Well, we respectfully --
Justice Felix Frankfurter: (Inaudible) that's what being in high office we learn that.
Mr. Doub: We respectfully submit that this judgement should be affirmed.
Justice Potter Stewart: Did you see the -- the constitution has at least this much effect, that if the department head, if the secretary sets up regulations for everybody, he has to abide by his own regulations for everybody.
Mr. Doub: Yes.
Justice Potter Stewart: And if he fires -- if he denies or asks the employer to deny confidential -- classified information to John Smith, only after a hearing and to Tom Jones and Bill Green, then with respect to Richard Brown he has to have a hearing, he has to -- the procedures whatever they are, I gather it's your position that there --
Mr. Doub: I think so.
Justice Potter Stewart: -- need not be any, but if there are any they have to be non-discriminatory.
Mr. Doub: Yes, I think there have to -- there has to be administrative regularity, I should think -- I think even though there --
Justice Potter Stewart: And that's the constitutional.
Mr. Doub: I still interpret your decision --
Justice Potter Stewart: (Inaudible)
Justice Hugo L. Black: Not merely non discriminatory but if you set up procedures (Inaudible)
Mr. Doub: That's right -- that's right.
And I might say that I think there's an arguable point on administrative regularity in connection with the authority of the Secretary of the Navy, to act after this man had been cleared, but that question was not raised by counsel on the other side.
Chief Justice Earl Warren: Thank you.
Argument of Carl W. Berueffy
Mr. Carl W. Berueffy: Mr. Chief Justice, may it please the Court.
Mr. Justice Harlan first you asked me a question and I couldn't find the -- the precise citation.
My letter to the Board, in which I asked for a pretrial conference and which I asked for great deal of information begins on page 178 of the printed record and extends to page 181 of the printed record.
I would like, if I may, to devote my time to two basic propositions.
First, Mr. Doub, is I think not observing a very basic difference.
It seems to me that Colonel Berliner as the head of ERCO could have fired Greene on any ground that he wished to fire Greene on, good, bad or indifferent.
It seems to me that as to a government employee subject to limitations that we all know, that same power would exist.
What we are talking about here, however, is a perfectly satisfactory relation between an employer and his employee and a third person, albeit, the Government, coming in and interfering with that employment and this is what I think, Truax against Raich, said was protected against constitutional --
Justice John M. Harlan: But the Government, after all, thought that they are not taxed to have that right in accordance with the sanction of that right that complement didn't it?
Mr. Carl W. Berueffy: The Government purported to make that contract with the company.
Justice John M. Harlan: No, it's not the question of barging in without any power or right that it should come to the conclusion that it pressurized (Inaudible)
Mr. Carl W. Berueffy: Well, I think in general, Mr. Justice Harlan, that might be considered and that -- that brings us to our problem of -- of what the Solicitor General said yesterday as I see it, which is as a practical matter, the Government has to deal with -- with private businesses now, if it wants to get these things done.
Now, where does the authority for this kind of a contractual provision, which in reality and which in effect gives the Government control over the employees of -- the people who are employed by private business?
Where does that come from?
Well, the thing that seems to me most important is, that one might concede that the Government could exercise such an authority to him and could by some fair procedure exclude those persons as to whom it is has a doubt.
I concede this for the purpose of argument only, but still I don't think that it is possible, inherently, in the American system of constitutional government, to have any government official with an absolutely arbitrary power to do this kind of thing.
I think we are now talking in -- in very real terms of too much power in the hands of the Government.
First proposition is this.
Let's assume that on the basis of these things, if in context, these things that are said about Greene, if in context one might have a reasonable doubt as to whether it was wise to permit access or not, still it would have to be a reasonable doubt, and it can't be a reasonable doubt unless there's been something approximating a fair procedure.
Now, I am not necessarily talking about a judicial trial or anything like that, but there has to be a fair procedure for determining what the facts are and how they fit into the context.
Justice Potter Stewart: Well, I'm interested in what you just said, you said you are not contending here that the -- all the procedures that due process requires surround a judicial proceeding are applicable here.
Mr. Carl W. Berueffy: I think this is absolutely correct.
I think --
Justice Potter Stewart: Now what are you saying, what are the minimal requirements which are applicable?
Mr. Carl W. Berueffy: I think -- it think the minimum requirement if I may say so, is some kind of a procedure which looked at overall results in some confidence that this is a fair result and that it has been fairly arrived at.
Justice Potter Stewart: What does that mean?
Mr. Carl W. Berueffy: All right.
Justice Potter Stewart: Translate that into what you think, would have satisfied (Inaudible)
Mr. Carl W. Berueffy: Well, of course our position is that we didn't get anything and therefore anything we asked for, that we're entitled to gives us a right to the judgment here.
I think you have to have some kind of a fair notice, which tells you what the real facts are, what the real facts upon which the government proposes to act by depriving you of your employment.
This you must have.
This is -- this is an absolute requirement of -- of anything to be described as a pair process.
This by stipulation, I might say, signed by the Assistant Attorney General, we did not get.
Justice John M. Harlan: You've got the end result.
You've got it on after the event so to speak, but after you demanded a hearing in that.
Mr. Carl W. Berueffy: We didn't get it even then, Mr.Justice Harlan.
The stipulation that -- that they have never told us, either the source or the (Inaudible) of all these things that they brought against him.
Now, I think if the Secretary of -- of the Navy is a reasonable person, I think he did not deny Mr. Greene clearance because Mrs. Greene, the former Mrs. Greene thought that sleeping on bed boards kept the common touch.
So, we don't know what it is that this decision was based on.
All we know is by stipulation there was something we didn't know about.
Now, the second thing is I don't think you have to have a jury trial and I don't think you have to use the formal rules of evidence, but you do have to arrive at facts on some kind of a rational, factual basis.
And it isn't fair and it isn't correct to say, that because Greene said that he knew Silvermaster who incidentally was Mrs. the former Mrs. Greene's superior in the Department of Agriculture and that I am comprehensible that he wouldn't have had some contact with his -- with his wife's superior.
That isn't the equivalent of saying that Greene knew that Silvermaster back in these years, 15 years ago, that Silvermaster was a spy, if he was a spy.
And I would like to call your attention on this point to what I consider, possibly, the most salient thing in this entire record, at the bottom of page 425.
Greene was going to -- was being asked about his knowledge of these people and he said, “I had no indication that they were Communists, and when I was interviewed by the FBI, I said that”, and the FBI man, one of the FBI men said, “that's right, they didn't go around carrying signs that they were Communists because they were all working for the Government.”
Now, I think if you're going to say that the Government has a doubt about Silvermaster, and therefore, we're going to have a doubt about Greene, that we need in some kind of a factual situation to determine the -- the things that give significance and lend content and then I wouldn't say that it -- it was an unfair or unreasonable request to say that we ought to know what the Government did decide.
Justice Hugo L. Black: Suppose if the Secretary had said in opinion in which he said, “Since I have not had access to the FBI files I put those out of my mind.”
And I make my determination solely upon the impression that Mr. Greene made on me, assuming that he himself had attended this hearing, so that the -- on the impression that Mr. Greene made on me from answering the questions that were put to him, what would have been your position?
Mr. Carl W. Berueffy: Well if I may refer to an earlier illustration, if this is not an arbitrary decision.
Justice Hugo L. Black: I'm just asking that question on the premise that you had written, started around, namely, that you can recognized that you are not entitled or you don't claim that you are entitled to a full due process hearing.
Mr. Carl W. Berueffy: But I am entitled, or Greene is entitled it seems to me, basically and fundamentally to a restriction that the secretary must not make an arbitrary decision.
Justice Hugo L. Black: Would that be arbitrary if he --
Mr. Carl W. Berueffy: It certainly was decided --
Justice Hugo L. Black: -- (Voice Overlap)
Mr. Carl W. Berueffy: -- merely on my impression, I would like to make this illustration if I might, going to back to my earlier one.
If you were going to predict future disloyalty or whatever it is that you are predicting here, it might be better if you do it by -- by looking at the intros or by sticking the -- the nine-tenths of the -- to the volume of purging, because at least you could say we're relying on divine providence and not upon a fallible man.
Justice William J. Brennan: But he's is not making any prediction, he's just saying I don't want to take a chance.
Mr. Carl W. Berueffy: Well, if I -- I just can't see that that's not taking and making a prediction because you're not going to take a chance that involves taking or making a prediction.
The past has been Greene.
The past as the record shows is that he was reliable, that he did do -- did make -- pay attention to security rules.
That he did have the confidence and respect of the people that knew him.
Now, you are saying an -- a stranger, a total stranger can -- can say, well I just have an impression that I don't want to take this man and I think, and I should point out here, that the mere fact that the result might ultimately turn out the same, in a due process hearing doesn't excuse the absence of procedural due process as this Court held in Coe against Armour Fertilizer.
I -- I think at this point that -- that this I couldn't say was a fair procedure.
I -- I think any government decision has to be made on facts and when you are making an individual adjudicatory finding of fact, it has to be on something more than just an impression --
Justice Felix Frankfurter: Why do you -- why do you be as skewed as that in your statement?
In the first place when you say adjudicatory you are already bringing a lot of preference.
In the second place the President of United States very often makes that this Court had failed, very important determinations presumably on facts which we couldn't possibly review.
Mr. Carl W. Berueffy: That is correct, but never has this Court insofar as I know, given the President a power to make a completely arbitrary decision.
Justice Felix Frankfurter: He may make it in -- in raising or lowering the tariff and he may make it in denying a -- an international flying certificate or whatever it's called.
Mr. Carl W. Berueffy: Certainly, there are certain legislative and general things that the President does on --
Justice Felix Frankfurter: Merely suggesting it's not necessary to be extreme in order to be -- to present the problem in this case, the issues in this case.
Mr. Carl W. Berueffy: I -- I have no intention.
I -- I think that any decision in this case that isn't -- isn't based on putting these facts in context, with some kind of a record we can look at is -- is necessarily in and on its face, arbitrary.
Mr. Arthur J. Goldberg: You know that is the number of governmental decisions that have serious consequences for everybody, that are not adjudicatory.
Mr. Carl W. Berueffy: That is true.
But I don't think that anybody's ever been thrown out of a job without some --
Justice Felix Frankfurter: Well, the President had fired members of the cabinet and law officials all the time arbitrarily because they didn't like him or they didn't go along with him or they didn't -- what not or like --
Mr. Carl W. Berueffy: Certainly --
Justice Felix Frankfurter: -- always because that all is a (Inaudible) or -- or also a lady was involved in the center of a controversy regarding what the political decisions by by a person.
Mr. Carl W. Berueffy: Certainly, but those are subordinate to the President.
Justice Felix Frankfurter: (Inaudible)
Mr. Carl W. Berueffy: Those are subordinate to the President, not somebody else as employed.
Just one thing that I -- I would like to say and that is, it's beyond this --
Justice John M. Harlan: Isn't -- isn't it basic to your position the grounds on which this man was discharged?
Isn't that basic to your position?
Mr. Carl W. Berueffy: Well, basic to my position is the fact that if -- if you're going to discharge a man there has to be some reasonable relations between something that's a legitimate ends of Government and what it is that he -- he is supposed to have done.
Justice Charles E. Whittaker: (Inaudible)
Mr. Carl W. Berueffy: I would say that it is a legitimate end of Government, Mr. Justice Whittaker, to take a man of doubtful loyalty, but I think that off of the job, but I think that before, I want the Secretary of Navy or anyone else, designating any citizen of this country, as a doubtful -- person a doubtful loyalty, there has to be a relationship between what it is that he's supposed to have done and the problem of doubtful loyalty.
Justice Charles E. Whittaker: In other words, it must be done by some kind of a fair process.
Mr. Carl W. Berueffy: Certainly.
Justice Charles E. Whittaker: All right, now then imagine that was just (Inaudible)
Mr. Carl W. Berueffy: Yes, sir.
Justice Charles E. Whittaker: (Inaudible)
Mr. Carl W. Berueffy: I don't think we need a judicial hearing.
Justice Charles E. Whittaker: All right you mentioned one month, you know this (Inaudible)
Mr. Carl W. Berueffy: Yes, sir.
Justice Charles E. Whittaker: Do you contend that there should -- must be confrontation and right of cross examination?
Mr. Carl W. Berueffy: I -- I think on confrontation, that clearly you cannot put allegations in Congress without knowing the identity of the witness and his opportunities for observation, his motivation, as well as just the -- the essence of what he has said.
Now, I would say that we're getting into -- in (Inaudible) case, we got into this problem of confidential and casual importance.
I think the answer to this is, that the judgment ought to be drawn on a record, uncomplicated by facts that are known only through the trier of facts and I think the Government's plea of necessity here is a specious one.
Justice Charles E. Whittaker: I just don't understand to say you do not argue that use of your due process (Inaudible)
Mr. Carl W. Berueffy: Well, in an administrative hearing, you don't apply to technical rules of evidence, you can admit hearsay.
But you can't make a decision resting wholly on hearsay.
Justice Potter Stewart: Mr. Berueffy, before you sit down, may I ask you one question.
Is it your contention that Mr. Greene was treated in a discriminatory way, that is treated unlike other people have been or are treated under this program?
Mr. Carl W. Berueffy: Well, that he was so treated, I think that's not subject to doubt.
Justice Potter Stewart: Well?
Mr. Carl W. Berueffy: Because he didn't get any kind of a hearing.
The hearing he got resulted in a clearance.
Then he was arbitrarily thrown out of work, for -- for a year.
Actually, before he ever got a hearing -- hearing was the following the act.
Justice Potter Stewart: By -- by a reversal of the -- of the (Inaudible) was that it?
Mr. Carl W. Berueffy: This wasn't a reversal of the hearing board, Mr. Justice Potter, and all I can say at this point is -- is please just read the letter on page two of the record to see whether it was or it wasn't.
Unknown Speaker: Maybe I didn't --
Justice Potter Stewart: Excuse me.
Well, I'm sure I have the answer to my question.
Mr. Carl W. Berueffy: Well then if I --
Justice Potter Stewart: You -- it is your point.
It is your claim here that -- that there was discriminatory treatment of this man as --as contrasted to other men under this program.
Mr. Carl W. Berueffy: That's right, he didn't get any promise --
Justice Potter Stewart: It's your further point then, is it that -- that the department did not follow its own regulations?
Mr. Carl W. Berueffy: Or in -- clearly -- it's clear they didn't follow their own regulations, because the Secretary of the Navy was instructed to apply the standards for interim clearances, which had been applied by the Board.
But he wasn't instructed to review and he did not review.
He didn't say I reviewed these findings.
He said I reviewed the -- the case history file and concluded that his access is inconsistent.
I mean, he just completely ignored the previous favorable finding of the Board.
Justice Potter Stewart: Well, that's (inaudible)if I should say is true and I'm not familiar yet from the record, of course.
If what you say is true, wouldn't you then prevail without going any further on the basis of what the Government's already conceded?
Mr. Carl W. Berueffy: I think so.
Justice Potter Stewart: Without making any --
Mr. Carl W. Berueffy: I mean I -- I -- I've argued the constitutional questions, but there are many reasons why you need not reach them.