TAYLOR v. MCELROY
Argument of Joseph L. Rauh, Jr.
Chief Justice Earl Warren: 504 Charles Allen (Inaudible) McElroy et al., and William L. Greene, versus Neil M. McElroy, et al.
Mr. Rauh you may proceed.
Mr. Joseph L. Rauh, Jr.: May it please the Court, the petitioner instituted this suit in this District Court for the District of Columbia for injunctive and declaratory release against the action of the Defense Department in finding him a security risk and denying him access to classified information without allowing him to confront the secret informants on whose statements the defense department's action against him was predicated.
Petitioner is here on certiorari from a decision of the District Court dismissing petitioner's complaint.
Turning to the facts, we respectfully submit and we shall seek to demonstrate to the Court that even the barest outline of the facts will make clear that petitioner presents to this Court a terrifying 480-page record of injustice and far and away the most perfect example of the inherent and inevitable unfairness of non-confrontation yet presented to this Court in any area.
Petitioner was a lathe operator at Bell Aircraft from 1941 to 1956.
Since Bell makes airplanes the Industrial Security Program applied to the confidential secret and top secret information which Bell received in order to manufacture airplanes for the government.
Mr. Taylor, the petitioner, had a confidential clearance to carry on his work at Bell.
In 1956, Bell, the employer, sought a secret clearance for the petitioner from the Defense Department.
In September 1956, Bell, the employer, received a notice from the Defense Department, suspending all clearance of petitioner and immediately he was discharged by Bell.
Very shortly thereafter petitioner received charges from the Defense Department.
This is 1956 and petitioner was charged with having been a member of the Communist Party in 1942 and 1943 and the charges went on you may still be a member.
He immediately added a categorical denial, asked for a hearing and asked to have the witnesses who charged him with membership in 1942 and 1943 and may still be a member, to be produced for cross examination.
In November 1956, we had the so called hearing.
The government produced nothing.
No witnesses, no evidence, no names of the people who had made the statement about Mr. Taylor, but that isn't all and I would ask Your Honors to look at page 131 of the record because I will refer to this again.
In the fifth line at page 131, the Chairman of the Board assumes that Mr. Taylor is guilty.
He says at this time it is our intention and the statement of reasons would indicate to consider that these documents, namely the Communist Party card and the Communist Party transfer card with which he is accused of having, exist.
Well petitioner had no choice but to go on.
Here he was before a board that wouldn't tell him who the witnesses were against him assumed his guilt, but he had no choice but to try to prove his innocence.
Justice Potter Stewart: These documents were what again, the Communist Party --
Mr. Joseph L. Rauh, Jr.: The alleged Communist Party membership card and the alleged Communist Party transfer card.
When you go -- apparently when you go for a one unit to another there is a transfer card and this was alleged against him.
The Chairman of the Board apparently assumed that these existed even though they have been categorically denied under oath by petitioner.
Well petitioner did the only thing a human being could do under those circumstances he tried to prove the negative.
He tried to prove the negative of what had happened 13 and 14 years before.
He testified under oath that he had never been a member of the party, never paid dues, never been to meetings, never done any of the things and never had these cards.
And 11 witnesses from Bell Aircraft came to support him.
Now Your Honors will recall that in 1942 and 1943 America was at war on the same side as Russia and the workers, the communist workers had a particular party line against strikes, because they would hold up production to help Russia and for incentive pay because that would give more production.
And seven of these 11 witnesses testified on behalf of petitioner that he opposed the no strike pledge and that he opposed the incentive pay.
In other words, if Your Honors please Mr. Taylor did what I would have thought was impossible, which was to refute overwhelmingly the secret charges against him, but the Board saw it differently.
Seven months later in June 1957 the Board issued its first adverse decision to Mr. Taylor.
They said it is true as charged that you were a Communist Party member in 1942 and 1943 despite all this evidence to the contrary and without producing one shred of evidence themselves and you may still be.
Justice John M. Harlan: Is there an order?
Mr. Joseph L. Rauh, Jr.: Yes sir, on page 52 if Your Honor please of the record, there is an order saying that the charges were true as stated, it's on page 52.
Chief Justice Earl Warren: Between those two times was he out of employment or was he --
Mr. Joseph L. Rauh, Jr.: He was out of employment practically completely from September 1956 until December 31, 1958 to which I will come at a later period.
His loss of employment and livelihood was as the record shows, he had been earning about $5,000 and he was averaging about a $1,000, he was 20% employable as a result of this.
Now after this adverse decision in 1952 and 1957, petitioner appealed to the secretary, it's not clear that he had to, you couldn't tell from the regulations whether this was necessary to exhaust his administrative remedies, but in an abundance of caution we did appeal to the secretary.
We waited five months hoping for action and then we brought suit in the District Court.
In April 1958 two months later, the government said to us, our original decision was reasonable supported but we're going to have a new proceeding anyway.
Even though we were right the first time, we're going to have a new proceeding now.
And they gave us new charges, the so called amended charges and look at what happened.
The new charges said you were a Communist Party member in 1942 and 1943 but you were expelled in 1943.
They took our defense, which was that he had opposed the Communist Party line and turned it around and said why you were expelled for opposing the Communist Party line.
What they had found as true in 1957 namely that he was a member of the party in 1942 and 1943, and may still be, they now found he was a member of -- they charged, he was a member of the party in 1942 and 1943 and was expelled in 1943.
And it wasn't at this moment and it wasn't until later that we learned that the secret informants who first said he may still be a member of the party down to date had tailored their stories to show that he had been expelled and gave us the reason, his own defense at the first hearing.
Justice John M. Harlan: (Inaudible)
Mr. Joseph L. Rauh, Jr.: When the synopsis of the confidential informant's reports were put in at the subsequent hearing to which I will come right now.
After the amended reasons were given, petitioner made a second categorical denial, a second request for confrontation and we had a, again so called hearing.
Well there was a hearing in July and there was no confrontation and there was a hearing in August and there was no confrontation.
But in August of 1958 the Board told us the synopsis of what the confidential informant had said.
And if you will look on page 102 of the record, you will what I mean when I say that the secret informants had tailored their stories to rationalize what the witnesses had said at the first hearing.
Chairman Waldman on page 102 states these confidential sources, and about two-thirds of the way down the page, he refers to Taylor being reproved and finally expelled for making public statements against the incentive pay and in favor of a strike policy, that the matter had turned full circle.
The informants had been coached to utilize the very material which petitioner and his witnesses had gotten, had given at the first hearing.
And if Your Honors please, there is not line in the government's brief, not one line in anyway challenging the statement of facts which I have given you, even though every one of them appears in full in our brief.
Furthermore this same synopsis show that these men, the secret informants, were not professional undercover agents but were casual informants and the government concedes this by trial.
Furthermore this shows that these people were unseen by the Board, in other words this is not a case of where Board knew what we didn't know, and the government concedes this.
Despite this on October 13th we received our second adverse decision.
This time the Board said, having previously said you were a member and may still be, now they said you were a member, but you were expelled.
But that wasn't enough, they went on and in the first civil administrative finding of guilt of perjury that I have seen, they said you gave false and misleading information deliberately and willfully when you told us you had not been a member of the party.
On October 14th, the next day, our motion for cross motions for summary judgment came on in the District Court, and the District Court dismissed our complaint on the basis of the Court of Appeals decision in Greene, that there was no justiciable controversy, I might mention at this point that the government now concedes the error of that, that there is standing to sue by both petitioner Greene and petitioner Taylor.
However at that time the government was maintaining there was no standing to sue, the District Court accepted that and did dismiss our compliant because the Greene case was pending here.
We brought certiorari.
This Court granted certiorari on December 15th.
Now, if I may just state a summary of the six admitted facts are controverted by the government's brief, one word and not I am sure to be controverted by the Solicitor General here this afternoon, six admitted and conceded facts.
First the petitioner was twice found a security risk, with the loss of job, livelihood and reputation on the basis of accusations of secret informants without one shred of evidence ever having been produced anywhere against him.
Two that the first charge that petitioner had been a Communist and maybe still be was answered overwhelmingly by 12 witnesses, 11 plus petitioner, but he was found guilty.
Three, that the second charge which was inconsistent with the first charge, the petitioner had been a member of the Communist Party and had been expelled, was based on tailored stories, and yet he was found guilty again.
Fourth, that the secret informants were casual informants and not professional agents.
Fifth, that the Board never saw these secret informants, did not know their identities or anything about them.
Six, that the Board relied as a synopsis on page 102 of the record show, they relied on second, third and fourth degree hearsay.
Justice John M. Harlan: Your client (Inaudible) by the Government?
Mr. Joseph L. Rauh, Jr.: Oh yes sir.
Justice John M. Harlan: (Inaudible)
Mr. Joseph L. Rauh, Jr.: Yes sir.
We submit that -- in this so called hearing the government cross examines but provides nothing.
The only thing that has happened here is that the government took our defense and in some way the informants then turned around and used our defense against us.
We were always available for cross examination and there is a long cross examination in the record, almost 50 pages of Mr. Taylor and it shows only the honesty of his answers.
Justice Potter Stewart: Mr. Rauh as to your point four I think it was, fact four, that all of these informants were casual informants as contrasted to professional ones, this appears you say from the synopsis?
Mr. Joseph L. Rauh, Jr.: I think a study of the -- it appears in three ways if Your Honor please from the study of synopsis, from our request to the Board that they tell us and their refusal which I think was a refusal to answer was practically an admission because it wouldn't have shown anything of great security to have told us, and finally from the government we make this assertion, I do not deny it, I do not think this is an issue nor will Mr. Rankin, question that I could be wrong, but he did not question it in his brief after we had asserted it twice categorically.
Justice Felix Frankfurter: Where can I find the names of all the members of the Board in addition to Mr. Waldman?
Mr. Joseph L. Rauh, Jr.: At the beginning of the hearing if Your Honor please.
The Board did change during the course of the hearing, but if the opening of the hearing I believe transcript, I think it will be on page 125.
Justice Hugo L. Black: All right, don't bother.
Mr. Joseph L. Rauh, Jr.: It is on page 125 if Your Honor please.
Justice Hugo L. Black: Where?
Mr. Joseph L. Rauh, Jr.: Now, these are the admitted facts.
As we pointed out in our reply brief, this argument this afternoon is like shadowboxing.
We've filed a brief with these facts in it and we argue the merits on these facts and the government refused to respond to our brief.
Now let me make this bluntly clear.
Here is a petitioner before this Court, asking this Court's relief and the government refuses to respond on the merits.
In a sentence the government said, will the Supreme Court kindly read our brief in another case on different facts, which maybe totally inapplicable, and therefore I suggest that it is in a sense shadowboxing to have to argue this afternoon without the benefit of a meeting brief.
Now I say to Your Honors that it is not surprising that the government is unwilling to defend the conduct which I have described, which it has conceded, but what is surprising, and to me a little sad, is that the government is unwilling to confess the error action which it is also unwilling to defend, but taking our argument and putting it up against the government's brief in Greene, I come now to the issue of denial of due process of law.
You can put it either way it seems to me.
You can put it as an absolute or as a relative standard of due process of law.
We do it both ways in our brief; first as an absolute standard and second as a relative standard, and show in both instances that there has been a violation of petitioner's liberty and property without due process of law.
Adverting first to the absolute standard, we deal with this at pages 20 to 26 of our brief and I believe we demonstrate that this Court has consistently held confrontation to be a minimum requirement of the due process imposed on governmental action affecting substantial interests.
Now it is hard for anyone to controvert the substantial interest here, his job, his livelihood and his reputation, the interest as substantial as any that a human being can have.
As we read Wyman and Slochower, a man is protected even in government employment, against arbitrary dismissal and arbitrary action.
Private employment, where the government cuts across that, would seem to be an obviously a fortiori situation, and that our case shows a denial of due process many times worse and many times clearer than Wyman and Slochower.
Now what does the government say in answer to this?
They have to distinguish these cases some way and this is their argument.
They say that Wyman and Slochower were not due process fair procedure cases, but were discrimination cases.
They say that there is a different right of discrimination against discrimination than there is against arbitrary procedure.
The government suggests that the Fourteenth Amendment, which protects one's life, liberty and property against due process is more limited in its due process provisions in the Fourteenth Amendment than its equal protection provisions, and this is their argument why Slochower and Wyman don't apply, but if Your Honors please the Court held otherwise.
Mr. Justice Clark's opinions are perfectly clear that those were due process questions that Mr. Justice Clark was dealing within in the Slochower and Wyman cases.
There was nothing discriminatory about what happened to Slochower.
The Court held it was a violation of due process and furthermore, even if one were to accept that there was some difference in the Fourteenth Amendment which I cannot see and which the Solicitor General hasn't pointed out, the history of the Fifth Amendment has been the exact reverse.
The question under the Fifth Amendment is whether discrimination has been covered at all by the Due Process Clause, whether Equal Protection really was a part of the Fifth Amendment and yet the government says that the only thing we should consider in the Fifth Amendment, the dominant factor is the Due Process Clause, it is the discriminatory aspect.
Well if Your Honors please, it seems to me that on the decisions of this Court, that there is no basis for applying a relative standard here.
We have a substantial interest.
We have an arbitrary action.
We have non-confrontation.
Under the decisions of this Court we submit that our case is proved.
But, since the government argues the relative standard, that is the need of the individual for confrontation against the need of the government for secrecy, we are happy to argue it because we do not feel that the situation could be any different, under a relative than under an absolute concept.
The government says, let's have a weighing here.
Let's weight the need of the individual against the need of the government, all right let's weigh them.
We submit first, that in the first half of this equation, the denial of confrontation in security matters renders them inevitable, unfair and arbitrary, and I use the word inevitable advisably, and I ask Your Honors at some stage to examine pages 29 to 38 of our brief, where we show the inevitable character of unfairness in non-confrontation in security matters.
Let me just advert briefly to five points that make it inevitably unfair; first the lapse of time.
You can't get witnesses to testify to 42 and 43 to answer every charge.
The thing to do is to get the man who makes the charge from 42 and 43 and show that he can't remember.
Confrontation is important first therefore because of the lapse of time.
Secondly the nature of the charges, these are charges of covert and suspect activities, you can't get people and we don't have subpoena power, the government hasn't provided this program with a subpoena power, you can't get people to come in and admit their covert and suspect activities.
You've got to get the accuser and try and break the story down at that stage and thirdly there is the danger of false accusations.
I do not need to tell this Court about false accusers in this area.
Mr. Matusow, Mr. Crouch, Mr. Johnson and Mr. Maezi, all clutter up the books, the records before this Court.
They would men liars under oath, think what damage was done these men as secret informers against people who never saw them, and this very case, and that's the reason I stress this so much at the beginning, in this very case you have witnesses, secret informers who coached to change their stories, then bring in a new story which reconciles petitioner's defense at his first hearing.
Fourth, the burden of proof is on the defendant, how can you meet the burden of proof of showing your innocence if you can't get at the people who charge you, and fifth, and this in some ways is the worst.
This is the reductio ad absurdum of this program.
The boards never see these people.
Now just, what does the board have in (Inaudible).
It has 12 people swearing to this man's innocence and it has a sheet of paper on the other side.
It has to weigh a sheet of paper against testimony.
You cannot weigh a sheet of paper against testimony and the proof is you cannot weigh it is why I asked Your Honors to look at page 131 of the record.
You assume, the Board in this kind of a weighing process, assumes guilt, either the paper is right or its wrong, there is no way to compare the paper against the oral witnesses, so what does the Board do?
Right at the outset they assume that the paper was right.
The paper I'm referring to was his statement that the -- which was a report from the intelligence agency saying there was a Communist Party card and a Communist Party transfer card.
So what does he do?
He assumes that that's true, you can no more weigh 12 honest and honorable witnesses against the sheet of paper from an intelligence agency than a mathematician can count up apples and pears.
They have no relationship.
It makes the hearing impossible.
Justice John M. Harlan: Is it agreed by the government that the Board did not see any of these witnesses?
Mr. Joseph L. Rauh, Jr.: I believe that government will concede that, it was in our brief.
First if Your Honor please we ask the question, did you see any, they refused to answer that and I think that was a remission against interest.
Second the synopsis rather indicates they are so limited that it seems unlikely that they could have seen them.
In the third place we charge this, we assert this as a fact and the government has made no suggestion, I believe Mr. Rankin will assure Your Honors that they did not see the secret informants.
Now everything we learned from foreign books about the value of cross examination.
These are 100 times more applicable in the security area, just because of the kind of factors that I have mentioned, but the government says okay so it's bad, but we have an interest too.
We have an interest in the secrecy of the undercover informants.
Now I think Your Honors would all agree and I think Mr. Rankin would agree that their burden here is gigantic.
With a system this unfair their burden would be tremendous to show their need, but I say to Your Honors --
Justice Potter Stewart: On this I am really way off on the subject of where you are now in your argument, I'm curious about this, when these people were hired, is there any indication to them at all of the possibility of this kind of a -- their losing their jobs for this kind of a program.
Mr. Joseph L. Rauh, Jr.: I believe that Mr. Taylor was employed at Bell Aircraft before the program if Your Honor please so that he could not have -- I do not know the details of how that operates for people in the future.
I would say with assurance that Mr. Taylor was never given any such indications.
Justice Felix Frankfurter: He was not a under contract with his employer was he?
Mr. Joseph L. Rauh, Jr.: No, he had the usual protections that you would have, seniority and they would have to be just cause and all --
Justice Felix Frankfurter: He could be fired any day by the employer for no reason, could he?
Mr. Joseph L. Rauh, Jr.: Not under our union contract, but he would have to have just cause and --
Justice Felix Frankfurter: That is what I'm asking.
Mr. Joseph L. Rauh, Jr.: You would have to have just cause, if he had just cause, yes Your Honor.
Justice Felix Frankfurter: Is there anything in contracts specifically covering this kind of condemnation?
Mr. Joseph L. Rauh, Jr.: No, but the union has accepted this as just cause, where the government action, we've found the union is defending Mr. Taylor, but they accepted his just cause, if the Court should hold that it's just proceeding.
Now may I just say to Mr. Frankfurter that the question of the contract, it's quite true that the contract is at will, other than between union relationships, but the contract is satisfactory to both parties, in other words the government cuts across the contract which is satisfactory to both parties and as to which no party claims that there is any reason for the discharge except the governmental action.
Justice Felix Frankfurter: And I suppose would you would agree that it -- your sense of unfairness will be -- a fairness will be just as much (Inaudible) employee who is not under this contract?
Mr. Joseph L. Rauh, Jr.: Oh certainly.
Justice Felix Frankfurter: They could be fried at will.
Mr. Joseph L. Rauh, Jr.: Yes Your Honor.
Now the government's burden to show that this unfair proceeding is necessary we say to Your Honors they have no right to come into this court room and tell you this program is necessary because they've never tried the alternative.
There is a simple alternative and the simple alternative is to use secret informants the way you use them in every other part of our law.
We are not against the use of secret informants.
It's a proper and appropriate way to get leads to have witnesses.
That's what we do everyday in every criminal court.
That's what you do everyday in every administrative procedure.
Why should it be different here?
The government says it's different because of security needs, yet they've never tried it and this is a point if I make nothing else clear I would like to make clear this afternoon, that the government is asking you to take their word for it, they are asking you to say that no other system would work even though they have been unwilling to attempt to any other system.
They haven't gone out and asked Congress for a subpoena power to make this system work.
They haven't ever tried this system.
And I suggest that this is a system based not on security necessity but on administrative convenience.
It's easier, it's easier simply to use the secret informants, but there has been no showing that the other system won't work, because it's never been tried.
Now if Your Honors please, these are by governmental admission and our deduction from the record but primarily I think it's simpler to take the governmental admission casual informants, not undercover agents.
I'd like to make clear that I don't think it would be any different if they were professional FBI agents.
But as I -- when I was arguing the (Inaudible) case it was suggested I was carrying more water on my shoulders than necessary, I'm not going to do that this afternoon.
These were casual informants.
Every observer of this program has suggested that the casual informants not be treated as secret informants, that they be confronted, that they be used as witnesses, and I ask particularly if Your Honors will examine these at pages 42 to 46 of our brief, the government -- the Commission on Government Security, Mr. Wild Bill -- the late Wild Bill Donovan and an expert in this area, the Johnson Committee, the Commission of the Association of the Bar, every single expert who has looked into this says there is no reason for protection of these casual informants.
And there is another man I want to refer to because I find it even as significant as those and that's a former Solicitor General of the United States.
On page 44 of our brief we quote Mr. Furman.
Mr. Furman stood before this Court where I stand eight years ago and persuaded the Court four to four to keep the confrontation system, the non-confrontation system in effect through the Bailey case.
Mr. Furman had subsequent reason to feel that he had been wrong in urging this Court to take that action.
Justice Felix Frankfurter: They all had to wait till they get out of office (Inaudible)
Mr. Joseph L. Rauh, Jr.: On the other side, on the other side, here you have a unanimous opinion and what does the government give us as showing of need on the other side?
Well if you'll look at Greene brief, the government's brief in Greene there is just one thing they tell this Court, just one thing, the FBI said so.
That is their only reason to this Court and let me -- I don't make that charge lightly.
If you look at page 67 of the government's brief in Greene, at the middle of the page it refers to the need for disclosure.
Unknown Speaker: (Inaudible)
Mr. Joseph L. Rauh, Jr.: 67 if Your Honor please, they refer to the need for non-disclosure and they quote Mr. Richardson who was the first head of the Loyalty Review Board, but Mr. Richardson had said, he himself had started the Loyalty Review Board with non-confrontation reluctantly and only under the insistence of the FBI and then if you'll turn over to page 68 of the Greene brief, I would like to address your attention to the authorities on which the government relies, see also Hoover in Syracuse Law Review, Hoover in the Yale Law Journal and then hearings before the sub-committee, we looked this up, that was Mr. Hoover, hearings before a subcommittee that was Mr. Hoover.
Now I don't know just how to -- exactly to say this, but I would make the suggestion in all deference that this Court cannot let America's chief policeman decide that the Bill of Rights won't work.
We have been very careful to bring in here in our brief every observer of this program and they have been unanimous, that we must get away from this non-confrontation and I do not as I said before think anybody can say that.
Now, if Your Honors please I respectfully submit that whether you treat the due process standard as relative or absolute, we have met it and that there has been a deprivation of due process.
Having said that much I have to confess that I do not think the point will be reached in the case.
I do not think that the government has shown a statutory base or a constitutional base for what has occurred here.
If I may -- there are two different reasons why I do not believe there is a statutory basis for this program.
In our brief at pages 50 to 56 we demonstrate that whatever statutes the government rely on for this program are equally consistent with confrontation as with non-confrontation, and therefore obviously this Court is going to take the confrontation interpretation when so serious a constitutional issue arises.
The government in their brief makes no answer to this at all.
The government does not challenge anywhere in their brief our point three pages 50 to 56 that the statutes if there are any setting up this program should be interpreted as providing for confrontation.
There is another statutory point which was primarily stressed by my brother Berueffy in his case, the Greene case.
We primarily stress the point that the statutory base, whatever it was, is equally consistent with confrontation and non confrontation.
He primarily stressed the point that there wasn't any statutory base at all.
And the government practically concedes that.
I use the word practically because it's not -- they do not concede it in so many words, but on page 26 of the government's brief in Greene they appear to say, well it's inherent power or nothing.
So the choice it seems to me this Court has is whether to say there is no statutory authority for non-confrontation or to say there is no statutory authority at all.
It seems to me that this is a choice of ground, possibly the fact that the government completely concedes our point and only partially concedes the other one would make the point I have suggested in our brief the more likely one.
The government relies on something wholly different.
The government relies on the inherent executive power.
Mr. Rankin is proposing to this Court that the government be allowed to have a program for screening three million Americans that affects the lives, jobs, livelihood, reputation of all these people, not through Congress but through some power of the President as Executive and as Commander-in-Chief.
I respectfully suggest that the Youngstown (Inaudible) and Kent cases went way beyond that.
If the ad hoc emergency seizure of the steel mills was not within the inherent power as Commander-in-Chief, certainly a permanent screening process of three million American is not within it, but here too I don't think the Court will ever reach this point.
No President has ever asserted this power.
There is no delegation of authority from the President to the Defense Department asserting this power.
This Court is being asked today to decide an inherent executive power which the executive has never said he asserts, certainly on the same principle of one does not decide a constitutional issue if statutory constructions will make possible its avoidance, so one does not decide the inherent power exists if the President himself has not made abundantly clear that, that power is there and that he asserts it.
There is not a word presented to this Court evidencing that any President of the United States has ever suggested that he has this inherent executive --
Justice Felix Frankfurter: What is the formal source of exertion of this power, what piece of paper, what provision?
Mr. Joseph L. Rauh, Jr.: Does the government rely on?
It's very high to say Your Honor, the paper that's before Your Honors is a thing called supplemental memorandum for the respondents, the last document filed on March 24th which contains the regulations under which this proceeding is had, there is not word about inherent --
Justice Felix Frankfurter: Well this proceeding has been going on how long?
Mr. Joseph L. Rauh, Jr.: Oh three years Your Honor.
As far as I know and --
Justice Felix Frankfurter: (Inaudible)
Mr. Joseph L. Rauh, Jr.: Oh well this is -- includes some amendments of that Your Honor, it has the old regulation.
Justice Felix Frankfurter: (Inaudible) I mean there is no specific basis for this procedure?
Mr. Joseph L. Rauh, Jr.: Absolutely not, now if Your Honor --
Justice Felix Frankfurter: (Inaudible) there is no -- you can't point to a provision which says that confidential sources shall not be revealed even to the Board.
Mr. Joseph L. Rauh, Jr.: The closest thing to that first to that is in the supplemental memorandum for the respondents on page five, Section 4 called release of information, the second sentence says no classified information.
Justice Felix Frankfurter: (Inaudible)
Mr. Joseph L. Rauh, Jr.: Page five, the paragraph four, the second sentence, no classified information or any information which might compromise investigative sources or methods or the identity of confidential informants will be disclosed to any contractor or employee.
That is their base for this, and that --
Justice Felix Frankfurter: Who signature – whose signature (Inaudible)
Mr. Joseph L. Rauh, Jr.: Robert Stevens, Secretary of the Army, CS Thomas Secretary of the Navy, H.E. Talbott Secretary of the Air Force, CU Wilson Secretary of Defense.
Justice Felix Frankfurter: (Inaudible)
Mr. Joseph L. Rauh, Jr.: They do not but the government cites at page 27 of the Greene brief in Executive Order 10501 which as the authority, which I state, which I respectfully submit is totally irrelevant, that is --
Justice Felix Frankfurter: Where is that?
Mr. Joseph L. Rauh, Jr.: That is at page 27 of the government's brief in Greene, Executive Order 10501, which refers to the classification and protection of information and never makes the slightest reference to any type of program such as this.
Now if Your Honors please, the government has conceded our standing to sue.
Therefore, there does not appear to me to be any serious jurisdictional issues to the issuance of a decree in our favor.
However, the government makes another point.
The government claims that this case is moot and I most respectfully submit that this case is not moot unless the government can play fast and lose with this Court's process.
This Court granted certiorari on December 15.
On December 31st the government gave petitioner what they euphemistically referred to as clearance.
They didn't say he was not a security risk.
They didn't make their usual finding that he was being cleared in the national security.
They made no findings that the charges against weren't true.
The simply cleared him "In the national interest."
This was December 31st two weeks after this Court granted certiorari.
On January 9th the government filed a suggestion of mootness saying well we've cleared him so it's all over.
We filed our answer on January 28th and we pointed out there was grave likelihood of recurrence.
We've pointed that the mere cessation doesn't stop, take away the jurisdiction of this Court, if there is a likelihood that it can happen again and we pointed out that under these security programs there is a continuous screening, that people, the decision change on people all the time, and we've pointed all this out in our opposition.
Then on February 13th the government filed a memorandum in reply and they changed their story completely.
They practically admitted that the mere clearance under this strange way of clearing was not enough to render this case moot, but they said we've got a change in our whole method of operation which will protect this man.
We demurrer, we say let's assume he is perjurious ex-communist.
Let's assume he was a communist in 1942 and 1943.
Let's assume he was expelled, let's assume he lied about this as late as 1957 and is lying now.
Nevertheless we will clear him for the job of lathe operator.
That's exactly what the government's February 13th memorandum says, he may have access to secret information, but as a lathe operator rather than a supervisor well we'll keep him in.
Well in our response, we threw a little skepticism about whether this program was in effect, whether they really were going to take everybody's job.
Well we also said if it isn't effect it's worse for us because it makes the likelihood of recurrence much greater because if the job changes one inch, if there is most secret information went into the -- if it's a new type of aeroplane or if he got a different job it would only make the recurrence of a screening program even more.
Justice Felix Frankfurter: May I ask you whether clearance, where a person is under investigation, is the clearing at large generally or is it a clearance for a particular job?
Mr. Joseph L. Rauh, Jr.: Clearance for a particular level if Your Honor please, confidential secret or top secret, that has always been --
Justice Felix Frankfurter: If a man is employed in a given position by the employer, and he is under question, as to that job he is under question isn't he?
Mr. Joseph L. Rauh, Jr.: No if Your Honor please he is under question for a level of clearance, confidential secret or top secret, as I was about to come to, that is exactly what the program is, was and is.
Justice Felix Frankfurter: No, but he maybe shifted, if he gets a clearance on a particular level, his clearance is for any position he may fill on that level.
Mr. Joseph L. Rauh, Jr.: Precisely Your Honor.
Justice Felix Frankfurter: On this case apply that to Taylor.
Mr. Joseph L. Rauh, Jr.: Well, I have to go back to if I may.
They first said he was cleared just generally, and we point out that wasn't so.
Then they came back and said we got a new system and we are going to clear him for a job, lathe operator and we showed how that would make it worse.
Then on March 24th the government filed its new regulation and that is the regulations that I referred to Your Honor before and to which I now like to advert.
I respectfully submit that the mountain has brought forth a mouse, that his regulation does not change the situation as it was on March 23rd one iota.
Now if Your Honors will look page four of this regulation, may I first say that this regulation contains in italics the changes that were made on March 24th and in plain type the regulations as it existed before.
On page four, just before the last sentence, in the first paragraph C there reads as follows.
In the case of a contractor employee a clearance is an approval for the employee to have access to specified classes, categories of classified information necessary to the performance of his work with a particular contractor.
Now if Mr. Justice Frankfurter, the words there, access to specified categories of classified information refer to secret; to confidential, secret and top secret and when I say that the mountain has brought forth a mouse, I say that they have done nothing in this change except what is in that sentence.
They have taken the words specified categories of classified information, there on page four and put them in italics, added them on page five and one or two other places.
In other words what the government has done, is taken the present system which always calls for clearance, confidential, secret or top secret, and made that clear in this regulation, where if I respectfully submit as far as I was concerned, it was always clear before.
Justice Felix Frankfurter: Would you mind telling me what the original action, where the original action left Taylor?
And he was not cleared.
Mr. Joseph L. Rauh, Jr.: Well the way it works --
Justice Felix Frankfurter: What limitations were put upon his employers as to him regarding the accessibility of information --
Mr. Joseph L. Rauh, Jr.: December 1956, all clearance was lifted and the company therefore could not use him on any job where he could see confidential or secret or top secret information.
The company had no other job and discharged him, so he has also, it also, because every new employer, says that may I just see your discharge papers from the old job and it's what this Court referred to in Wyman as the badge of infamy, it just is a different way of getting your badge, but it's the same thing as getting it in the other fashion.
Justice Felix Frankfurter: All sources of classified information were denied here.
Mr. Joseph L. Rauh, Jr.: That's right.
Justice Felix Frankfurter: Now what his claim has done under the new regulation?
Mr. Joseph L. Rauh, Jr.: I have to answer that with a demurer.
The government in filing this document does not say what is done under it, if Your Honor will look on page one of this document submitted by Mr. Rankin, he says in the brief for the respondents, note there was pending an amendment, which would require the level of classification which access is sought be taken into account, he doesn't say how this affects petitioner's case, and implies that this wasn't true before.
Justice Felix Frankfurter: Well didn't they say --
Mr. Joseph L. Rauh, Jr.: But I just --
Justice Felix Frankfurter: -- earlier memorandum?
Mr. Joseph L. Rauh, Jr.: Well they said the same thing in the earlier -- in the brief on the merits.
Justice Felix Frankfurter: No, no in the earlier one, January 9.
Mr. Joseph L. Rauh, Jr.: Well they can't talk about this if Your Honor please --
Justice Felix Frankfurter: No, but what claim was made in that (Inaudible)?
Mr. Joseph L. Rauh, Jr.: Nothing, except that he had been cleared.
Justice Felix Frankfurter: But what (Inaudible), I don't understand, what is the meaning of this?
Mr. Joseph L. Rauh, Jr.: It was a special letter written for the purpose of taking the process away from this Court, that's exactly what it means.
Justice Felix Frankfurter: That's the construction of what the conflict is in your point of view.
Mr. Joseph L. Rauh, Jr.: That's correct if Your Honor pleases, but no other suggestion has been --
Justice Felix Frankfurter: And I want to know what the consequences are as to him in case he applied for a job with his former employers?
Mr. Joseph L. Rauh, Jr.: I don't follow the question.
Justice Felix Frankfurter: After the department says we've cleared you, there was --
Mr. Joseph L. Rauh, Jr.: They gave him his old job back, that's correct.
Justice Felix Frankfurter: Well, would he have access to the materials that theretofore he would not have had access to?
Mr. Joseph L. Rauh, Jr.: Yes Your Honor.
Justice Felix Frankfurter: Then why do you say nothing was done?
Mr. Joseph L. Rauh, Jr.: There was no basis given for this.
Now I like to make this perfectly clear, because the whole --
Justice Felix Frankfurter: Was the record wiped clean so that nothing, there was nothing outstanding against him?
Mr. Joseph L. Rauh, Jr.: That's correct Your Honor, except that the government --
Justice Felix Frankfurter: And he had the job and the emoluments that had there before.
I repeat my question, why do you say nothing was done?
Mr. Joseph L. Rauh, Jr.: I said that the -- nothing has been done to the regulations, that what I -- that is the point I'm trying to make clear.
Justice Felix Frankfurter: Well but you couldn't come here objecting the regulation as such.
Mr. Joseph L. Rauh, Jr.: No, I'm not.
Justice Felix Frankfurter: You could only -- you are not, I understand that, you could only come in because somebody has been hurt by the regulation.
Mr. Joseph L. Rauh, Jr.: May I go back --
Justice Felix Frankfurter: I want to know to what extent he has remained hurt after the suggestion of the mootness, except that they may do the same thing tomorrow.
Mr. Joseph L. Rauh, Jr.: Nothing except that, but that is --
Justice Felix Frankfurter: Now (Inaudible) for saying that?
Mr. Joseph L. Rauh, Jr.: Well I am willing to concede, for example I am willing to concede this Your Honor, if the government removed everybody over 40 years of age from the program and cleared him because of that reason, the case would be moot.
Still what I'm trying to make clear is that the --
Justice Felix Frankfurter: Apparently I don't.
Mr. Joseph L. Rauh, Jr.: Well all right.
Justice Felix Frankfurter: That's why I am asking the question?
Mr. Joseph L. Rauh, Jr.: All right.
If the government --
Justice Felix Frankfurter: Because the first time you tried to instruct me Mr. Rauh.
Mr. Joseph L. Rauh, Jr.: If the government really removed this man from the program, there might be some ground for saying the case is moot, but the government doesn't remove this man from the program.
This man could have a case started against him tomorrow, and he would have nothing to protect him.
The government said --
Justice Felix Frankfurter: That would have been true if he has been cleared initially, wouldn't it?
Mr. Joseph L. Rauh, Jr.: Oh of course.
Justice Felix Frankfurter: But you couldn't have brought a suit therefore and say my man is cleared today, but some stupid or malevolent secretary may unclear him tomorrow, could you?
Mr. Joseph L. Rauh, Jr.: Certainly not.
The difference between that man and Mr. Taylor is that Mr. Taylor was found guilty for two-and-a-half years, and was cleared not on the merits as the case you gave me, but was cleared without reference to the merits.
Justice Felix Frankfurter: I don't understand that.
Mr. Joseph L. Rauh, Jr.: You'll have to ask if may suggest Mr. Rankin, because I am not privy --
Justice Felix Frankfurter: I'll leave that question when you get done.
Mr. Joseph L. Rauh, Jr.: -- privy to the secrets of the government, I can only --
Justice Felix Frankfurter: Would they have to make a speech when they undo a wrong?
Mr. Joseph L. Rauh, Jr.: They did not give this man the clearance that other person under this program has.
Justice Felix Frankfurter: That is the first time you've said something (Inaudible)
Mr. Joseph L. Rauh, Jr.: I said that before, but you missed it Your Honor.[Laughter]
Justice Felix Frankfurter: What is clearance that everybody else gets?
Mr. Joseph L. Rauh, Jr.: In the national security, they get cleared that is access to confidential or secret or top secret information, to classified information, is consistent with the national security.
Mr. Taylor, without the findings that always go with that clearance, was found he is cleared in the national interest and it was perfectly clear, and the government said this themselves in their reply brief, we demur, we say that even if it's all true, that is perjurist ex-communist, we're going to let him be a lathe operator.
But then they turn around and they don't put that program into effect.
Justice Felix Frankfurter: Is this the only case that you know where there was a clearance “in the national interest?”
Mr. Joseph L. Rauh, Jr.: We assert this in our brief and has never been controverted by the government.
Now if Your Honors please I --
Justice Felix Frankfurter: Is that your basis for saying that there was a sinister purpose behind that clearing?
Mr. Joseph L. Rauh, Jr.: Yes --
Justice Felix Frankfurter: Is that right?
Mr. Joseph L. Rauh, Jr.: Precisely, but --
Justice Felix Frankfurter: I don't understand you.
Mr. Joseph L. Rauh, Jr.: But in addition, I would say if there was no sinister purpose it wouldn't effect it anyway, it wouldn't be moot.
I say two things if Your Honor please.
The government cleared this man only to get this case away from the Court, that has --
Justice Felix Frankfurter: That's the deduction that one can draw, not draw, if one chooses it?
Mr. Joseph L. Rauh, Jr.: All right.
I would say that you draw however from the fact that on December 31st when he was cleared, the government suggested a change of policy, they suggested a different change of policy on February 13th and they suggested still different change of policy on March 24th.
It's three months after December 31st when this man was “Cleared”, they cannot tell you why he is cleared and why is there, I think there is some basis for the deductions are suggestive.
Justice Felix Frankfurter: (Inaudible) more enlightening to me or rather more illuminating, if this were the only case before the Court involving these issues, but it isn't, is it?
Mr. Joseph L. Rauh, Jr.: No of course not, there is --
Justice Felix Frankfurter: Well that's why I'm a little puzzled, why they should go to these extremes, and if you're right, quite unpardonable steps to take away the jurisdiction of the Court when the main questions remain within the Court.
Mr. Joseph L. Rauh, Jr.: Well the government made certain contentions in the other case that they do not make here Your Honor.
They suggest for example that Mr. Greene made certain concessions on which the decision could have been.
Justice Felix Frankfurter: But the claim is, your claim is that this whole scheme is tainted and violative of the constitution if the constitutional questions are raised.
Mr. Joseph L. Rauh, Jr.: Precisely, but although I have suggested --
Justice Felix Frankfurter: They are raised in other cases just as much.
Mr. Joseph L. Rauh, Jr.: I hope that they are satisfactorily raised.
The government however took a different position in the other case.
Now just in conclusion I would like to go back and indicate why I do not think this case is in anyway and possibly moot.
The government has a continuous screening program, and therefore unless something has been shown, which would remove this man completely from the program, he runs the risk of further action.
Having gotten to this Court, it doesn't seem to me that a government which still claims the right to do exactly this, namely non-confrontation, the government is here asserting the right of non-confrontation, they have not stopped the practice we are trying to get relief against, they are asserting their constitutional right to continue that practice.
Here is a man, as to whom there will be a continuous screening, of whom there is a continuous screening process, who has never been exonerated, who only a few months ago was held a prejurious ex-communist, as to whom the government can't even explain why was cleared, and now they ask Your Honors not to give him the relief for which he has sought unless the government is different from a private party, which Your Honors for example in Grant would not allow to stop a proceeding by refusing to -- by changing his conduct.
If the government -- unless the government is different from a private party, unless it has a right to discontinue temporarily in the Court, not look at the likelihood of recurrence, unless the government is wholly different from anybody else, then this case is not moot, and I'd like to reserve my time.
Chief Justice Earl Warren: You may Mr. Rauh.
Mr. Solicitor General.
Argument of J. Lee Rankin
Mr. J. Lee Rankin: Mr. Chief Justice may it please the Court.
At the outset I would like to say on behalf of the government that this case is controlled by the question of mootness.
It's a constitutional case.
Every argument made by counsel is directed to ask in this Court to decide for the abstract proposition that he would like to have determined as to the effect of these questions on constitutional rights.
And this Court does not address itself to that type of questions unless they are here in a solid form factually with a case or controversy.
Now a number of aspersions have been made about the government in this case, and I'd like to take them point by point to clear them up.
In the first part, when this case was brought to the Court, the government came here in its first memorandum and did not oppose the granting of certiorari.
It expressly in its first memorandum did not oppose it, but it did tell this Court in all candor that the matter was under consideration by the government in such a way that it might be mooted.
We believe the Court should be informed, and this is page five of our first memorandum, that this case is now the subject of further review by the Departments of Defense and Justice and within the near future administrative action thereon maybe taken which could moot the case or materially alter the legal situation.
In such eventuality the Court will of course be advised immediately.
Justice Felix Frankfurter: How long after his non-clearance is that (Inaudible) was it -- the suggestion was made in the fifth case, was under review, how much time had elapsed, just roughly.
Mr. J. Lee Rankin: Well it was two, at least two years, because he asked -- the determination was against him and he asked for further proceedings which he had a right to do under the procedures and in that he was constantly asking for further hearings or revision by the secretary.
Justice Felix Frankfurter: Well was so long a lapse of time between original condemnation and subsequent reconsideration is so long a lapse of time, and unusual and it's not a unique thing, in the clearing process.
In other words was this case singled out with your suggestion that that he might be reviewed, this case might be reviewed.
Mr. J. Lee Rankin: No, the reason this case was singled out or was because there was a standard, we thought there was a standard applied that should be reexamined as to whether or not that standard should be changed throughout the system.
Not the problem of confrontation, but the question of whether or not clearance was made in every case on the basis of whether a man would someday be granted top secret, instead of secret or confidential, and we did not when it came to the department, we thought that should be reexamined and that every man should not be put against the test of top secret.
Justice Felix Frankfurter: Do I infer from what you've said that this was one of the classic cases that was being reconsidered?
Mr. J. Lee Rankin: It had that effect, the effect was immediately that there were 11 other cases that were reexamined according to the same standards and the regulation was changed in every case that came along was applied exactly the same standard.
So it was a reexamination when this case came to the department for consideration by the two departments to determine whether a principle was being misapplied in the clearance standard.
Justice Felix Frankfurter: Let's see of I understand it, when this case came to the department, as a result of a ligation against the government, it led the department to consider the problems of the case and are you saying that raised the question, which opened up reconsideration of other cases in the same class?
Mr. J. Lee Rankin: That's right.
Justice Felix Frankfurter: All right.
Justice William O. Douglas: Now does this clearance (Inaudible) enable him to have access to top secret?
Mr. J. Lee Rankin: No it was never asked for a clearance beyond secret.
Justice William O. Douglas: Beyond secret?
Mr. J. Lee Rankin: For him and the probabilities in the system are that by reason of the nature of his work as a lathe operator or a die and tool maker, that he would never have occasion for top secret.
But the request is made by the employer and the employer is under contract with the government that he will not make these secrets known to anyone who is not properly cleared.
So the -- he signs an application to cover that point, what is called the personnel security questionnaire in which he knows -- he is asked all these questions, he is advised what it's for and that he is subject to this if he is going to work on defense contracts.
And no contractor is permitted by his contract to work on government defense contracts without agreeing that he will withhold government secrets from anybody that isn't cleared.
So the process was that someone like Taylor, the company would ask, will you -- will the government, because for beyond confidential and in case of derogatory information even for confidential, the government as distinguished from the employer had to make the clearance, so the company would write to the government or bring the matter to the attention of the government and ask them, whether they would clear Taylor and they asked for a secret.
Up to that time he had confidential.
An investigation was made and the information developed the derogatory information.
And then the practice at that time under the regulations and all cases was that if that question came up, everybody was considered as though he was to receive top secret information even though the request was, as to derogatory information for confidential or merely for clearance as to secret.
When that came to our attention, it seemed to the department and the Defense Department felt the same way upon examination of it, that it was, here is a man that by the very nature of his occupation, they couldn't describe a situation where they thought he would ever be exposed to top secret information, where company would ever desire, because of the very nature of his work to ever ask for it.
And yet he was asked to pass test, necessarily different and higher as to the standard that he would have to comply with to have access to that information.
So we suggested and the departments working together that the test should be changed in regard to the clearance.
And that it should be as to each request and no higher so that when they asked for Taylor's clearance for secret the standard was that and if they later asked for something top secret, then you applied the top secret and didn't make Taylor or John Smith or anybody else live up to top secret standards in order to be get secret or confidential.
It seemed to be basically unsound way to administer the program.
Chief Justice Earl Warren: General may I ask you, all the others who worked in this same capacity now have exactly the kind of clearance you have offered him?
Mr. J. Lee Rankin: They have exactly the same clearance as he does.
And he has exactly the same right to access.
Now there is one distinction that I want to make clear about what the secretary did.
The regulations provide that the secretary can reverse the Hearing Board and that's what's happened, what happened in his case and on December 31st the secretary, acting secretary Quarles did proceed to reverse and he described just what he did in reversing.
Now the general standard for the Hearing Boards was that it be consistent with the national security.
But that does not purport to be a standard that controls the secretary who is given the right by the regulations just to reverse and there are no standards that are made for him or prescribed for him.
Justice William O. Douglas: Where is that -- in what section of the regulation does his power appear to reverse?
Mr. J. Lee Rankin: His power is described no page 11 of our memorandum in reply to petitioner's opposition.
In the footnote there in number three, on page 11 --
Justice John M. Harlan: May I ask you --
Chief Justice Earl Warren: Mr. Solicitor General does he have now what is the equivalent of a directive of the Secretary of Defense saying that we do not recount from our original holding that you were a communist in 1942 and 1943 and may have these other deficiencies, but nevertheless, we give you clearance.
Mr. J. Lee Rankin: No, that is not it.
Chief Justice Earl Warren: All right.
Mr. J. Lee Rankin: Because all of the record before, he was advised, was expunged.
Chief Justice Earl Warren: I see.
Mr. J. Lee Rankin: The only difference is the language that the Secretary used in which he says, “I hereby find the requested clearance of Charles Allen Taylor is in the national interest and I so order hereby superseding all previous orders in this case.”
Justice Felix Frankfurter: Now Mr. Solicitor, if I understood Mr. Rauh correctly and I mean it, I think -- I got the impression that he said that if he had, had a clearance, apart from the question that there maybe a reoccurrence in the testimony, if he had a clearance that he (Inaudible) as a matter of national security, which is the standard form for clearance, we have one question, but his clearance was he cleared in the national interest, and I got the impression, I'm not suggestion you meant to convey it, but I got it, that there was a deviation from the normal clearance criterion of phrasing the certificate to which from national security to national interest, now that if so of course would make one (Inaudible), that this fellow have national interest when everybody else is national security, on the assumption that I'm not misconstruing or misinterpreting what I heard, what do you say to that?
Mr. J. Lee Rankin: That is incorrect.
That is assuming that that's what you heard, the statement that there is a difference between the clearance is not correct.
The clearance, the communication to the employer that he is cleared for access to secret is exactly like 100,000 others and he has exactly the same access to that material, he has the same right to work in that plant on any secret material that John Jones or Bill Smith or anybody else.
Justice Felix Frankfurter: If the certificate of clearance was individually unique, then there would be an innuendo of something, wouldn't there?
Mr. J. Lee Rankin: Yes.
Justice Felix Frankfurter: But you say that is not so.
Mr. J. Lee Rankin: No.
Now the order of this acting secretary was different, but it was not in -- we do not think there is difference at all as far as its effect and the clearance he was given --
Justice Felix Frankfurter: I don't care whether there is any difference in effect, that's another -- what you say the difference in language, and this fellow is singled out with a particular piece of paper, different from all others in like situations, then we'll naturally ask some questions.
Mr. J. Lee Rankin: Well if anything, this standard is just more in his favor.
It's instead of saying clearly consistent with the national security it's in the national interest.
Justice Felix Frankfurter: But for me the vital question is whether this particular thing, whether it's better or worse, you restricted to him as an individual, and you say that, that is not so.
Mr. J. Lee Rankin: No, this is the only order like that.
Justice Felix Frankfurter: Then I don't understand.
Mr. J. Lee Rankin: Now his clearance, let me make it clear, the statement of the fact that he is cleared for secret is like 100,000 others, but the order of the acting secretary saying it's in the national interest to give it to him is exactly like -- it not like the Hearing Boards make their order.
Justice Felix Frankfurter: I don't care about the Hearing Board, any other order by the secretary?
Mr. J. Lee Rankin: I know of no other.
Justice Felix Frankfurter: Well why was this special unique phrasing used for him as against others?
Mr. J. Lee Rankin: I think that's the way secretaries do at times and that's the only reason [Laughter].
They have that power and did it.
He conceived that the national interest was what he was dealing with and --
Justice Felix Frankfurter: Well wouldn't he the next day say, as a matter of national security?
Mr. J. Lee Rankin: Oh no.
There is no question this case is disposed of at the very highest level possible.
Justice Felix Frankfurter: Not as to Taylor, but as to Jones.
Will he in that state make the same action, but change the phrasing from national interest to national security?
Speaking for myself I don't understand the difference.
Mr. J. Lee Rankin: I wouldn't think so.
Justice Felix Frankfurter: It's my limitation.
Mr. J. Lee Rankin: I see no reason why he should.
It seems to me that the same secretary would apply the same way to (Inaudible)
Justice Felix Frankfurter: Have the other such actions by acting secretary Quarles?
Have we any other actions in which in the other cases it is just security instead of interest?
Mr. J. Lee Rankin: It's rare that the secretary has reversed but I would have to check that in order to answer it for you, I will.
Chief Justice Earl Warren: General, there is some language in the letter that went from the Office of Industrial Personnel Security Review on December 31, 1958 that would seem to carry some implication with it anyway, it reads as follows.
By these letters, this is to -- from the department to the Bell Aircraft Corporation, by these letters you are informed first that any existing security clearance Mr. Taylor then had should be suspended and second that after considering all the available information, it had been determined that the granting of clearance to Charles Allen Taylor for access to classified defense information was not clearly consistent with the interests of national security, and then it goes on, subsequent to June 1957 Mr. Taylor's case was subject to further consideration by this department.
After considering all the available information, it has been determined that the granting of clearance to Mr. Taylor for access to secret defense information is in the national interest.
They don't use the standard that the government itself set, namely that it was not -- that it was clearly consistent with the interests of national security.
Now is there any real difference between saying in the one instance that the man's access to classified defense information was clearly consistent with the interests of national security and on the other hand that he is cleared saying his access to secret defense information is in the national interest? It's all in the same letter and I just wonder if the two statements in the same letter would be an implication that he is not in the same category as others who were cleared.
Mr. J. Lee Rankin: As far as the government in concerned it considered there was no difference.
But whether others would construe it as being different, it was not -- I'm certain it was not intended to be any different.
And the Secretary was not only acting with the Taylor case at the time, as this appendix shows, but he also made the order on page 18 of that memorandum, suggesting mootness, in which he directed that the program be examined so as to limit with the idea of limiting the test as to clearance for the various categories, and that it be adopted the change as soon as possible.
Now the difficulty we have about the job being a consideration is at the same time we did in the Department of Justice and working with the Defense Department, think that the element of the job as well as the level of clearance were factors that should be taken into consideration in fairness to the man in the program, because various jobs might have access only for ten minutes a day, and another job might be six or eight hours and the whole program of security is based on the need to know concept, but nobody, even though he is cleared at the very top scientists and under acute clearance in the Atomic Energy Program, does not get to see the secrets of the government unless he needs to.
Justice William J. Brennan: Was that in this statute or (Inaudible) deny access to confidential information and serious enough to deny access to the secrets.
Mr. J. Lee Rankin: That's right.
Justice William J. Brennan: Well now in this case, I gather while he has now a clearance (Inaudible)
Mr. J. Lee Rankin: Secret.
Justice William J. Brennan: Secret, yes the government (Inaudible) not serious enough to deny him access to secrets.
And yet serious enough to deny him access to (Inaudible)
Mr. J. Lee Rankin: The secretary, I didn't talk to the secretary, but I don't think he ever reached that question.
Justice William J. Brennan: Well that's not the (Inaudible).
There were findings by the Board of (Inaudible)
Mr. J. Lee Rankin: Yes sir.
Justice William J. Brennan: That the government had derogatory information sufficient to deny him any clearance of any kind.
Mr. J. Lee Rankin: Well, there is finding -- the findings later, the reasons that were given were to the affect that he was not sympathetic.
Even though he joined the party he was not sympathetic, which were favorable aspects to the situation.
It was not just like a person who was a member of the party in sympathy with it and then --
Justice William J. Brennan: Well again I'm a little like Justice Frankfurter, I thought what Mr. Rauh said was that on the second go around, the final conclusion was factually that the derogatory information or that the information in the possession of the government was of a sufficiently derogatory nature as to deny any clearance.
Mr. J. Lee Rankin: Yes.
Justice William J. Brennan: (Inaudible) the denial of any clearance?
Mr. J. Lee Rankin: But there was affirmative finding that he was not sympathetic, and he was actually put out.
Justice William J. Brennan: Whatever it might be, it was sufficiently derogatory I gather in the government's view to continue the denial of any clearance.
Mr. J. Lee Rankin: Yeah, that's right.
Justice William J. Brennan: Now what in respect of that conclusion that the government possessed derogatory information was the effect of the acting secretary's reversing?
Mr. J. Lee Rankin: Well, first he had to take the new standard.
Before Taylor was being tested against whether he was qualified for top secret, the new standard was that he be qualified for secret which is a lesser test and under that, the secretary had to either satisfy himself that there was not a basis for the judgment of the Hearing Board or --
Justice William J. Brennan: In other words that the information was not in fact derogatory.
Mr. J. Lee Rankin: Yes.
Justice William J. Brennan: Either that or what?
Mr. J. Lee Rankin: Or that under the test of secret and the fact of the access to a different category than top secret he would be qualified for access.
Justice William J. Brennan: Well on the second alternative that would be that yes, there was derogatory information but it's not of such nature as to refuse an access to secret.
Mr. J. Lee Rankin: That's right.
Justice William J. Brennan: Now which alternative was the secretary about?
Mr. J. Lee Rankin: I don't know.
Justice William J. Brennan: Well if that wasn't there.
Mr. J. Lee Rankin: No, I think that he didn't have to ever reach the alternative you see it like a demur --
Justice William J. Brennan: On the confrontation issue, on the issue of mootness.
Are we to assume that they is still outstanding then in effect, the findings arrived at that's been that described that --
Mr. J. Lee Rankin: Those are expunged and just like Peters against Hobby or Cole against Young, the direction was that they be expunged and they are just not a part of the record in anyway, but the secretary could properly have said assuming all of those things under this standard of clearance, it should issue and never reach the question of whether if that question comes to me and they request top secret, I would grant part.
Justice William J. Brennan: Well now expunged means what?
Mr. J. Lee Rankin: Just as well it never happened.
Justice William J. Brennan: Well I mean, yes formally what's done.
Mr. J. Lee Rankin: Well there was a statement.
The language of the order of December 31st and this is on page 17 --
Justice William J. Brennan: Of which --
Mr. J. Lee Rankin: Of the same memorandum for the response suggesting that the cause is moot.
Justice William J. Brennan: Page 17?
Mr. J. Lee Rankin: Yes.
And it's a letter from the General Counsel of the Department of Defense to counsel for petitioner, in the second paragraph, language of order of December 31, 1958 which reads, hereby superseding all previous orders in this case, completely expunges all previous findings in this case as if they had never been rendered.
Now that's official action by the department as to what had happened.
Chief Justice Earl Warren: General may I ask you one question on the same subject matter, suppose if a man came to Bell Corporation, Aircraft Corporation today and sought employment of the same type as the petitioner had and he was screened and they found that he was not qualified for classified information, what standard would they use?
Now not in the past, but what standard would they use today against him?
Mr. J. Lee Rankin: They would use the standard of, if they asked for a secret they would --
Chief Justice Earl Warren: No, he would just go to work, it doesn't make a difference what they asked, he is to get employment just like this man in this case.
Mr. J. Lee Rankin: Yes, well in that case it depends upon the character of his work and what secret materials or classified materials in the job he is in he would be exposed too.
Chief Justice Earl Warren: Well let's say he had exactly the same duties as Taylor.
Mr. J. Lee Rankin: Well then he would -- the company would ask for clearance for secret.
Chief Justice Earl Warren: All right.
Mr. J. Lee Rankin: And he would get exactly the same thing that Taylor did.
Chief Justice Earl Warren: Yes, but now what test would they apply to him in determining whether he was entitled to any clearance?
Mr. J. Lee Rankin: They would weigh the nature of his access to the materials in the job of secret against any derogatory information.
Chief Justice Earl Warren: All right, now what standard would he have to meet?
Now to make it a little more clear, as I understand it, when the petitioner was denied access the test was that his access to classified defense information was not clearly consistent with the interests of national security.
Now is that the test that this new man would have to undergo today?
Mr. J. Lee Rankin: That's the test in the amended regulations that have this provision about clearance.
Chief Justice Earl Warren: And that if he was cleared, he would be clearly -- his access would be clearly consistent with the interests of national security.
Mr. J. Lee Rankin: He would be given a -- the company would be advised that he was cleared for secret and he could proceed to see all those same materials just like Taylor.
Chief Justice Earl Warren: Yeah, but I'm just wondering, the same things troubled me as well as a few moments ago, I'm just wondering if he had to meet that that test and did meet it.
If it is not different from where they just say, well he can now have clearance for access to secret defense information because it's in the national interest.
Mr. J. Lee Rankin: Well I don't think so and it certainly was never contemplated by anybody in the government, because --
Justice Felix Frankfurter: But that is not what you're answering to the Chief Justice's question, the criterion to be applied is not, is it in national interest, the criterion to be applied is, that it's not clearly consistent with --
Mr. J. Lee Rankin: Right.
Justice Felix Frankfurter: Is that right?
Mr. J. Lee Rankin: Yes that's right.
Justice Felix Frankfurter: Well as a matter of English, just as a mere (Inaudible) nothing but the English words, I should think that the same as to allow a man access to information in the national interest, particularly more favorably, it's less of an innuendo against the person, than to say it's not clearly consistent with, is a big job to prove that negative, and the records on this subject have of course objected to it.
Mr. J. Lee Rankin: That's right.
Justice Felix Frankfurter: As you well know.
Mr. J. Lee Rankin: This is a much more favored --
Justice Felix Frankfurter: (Inaudible) it is much more favorite unless, and this is what you go to the court with, unless there is some design in making the differentiation in this particular case.
Mr. J. Lee Rankin: Well I can assure that --
Justice Felix Frankfurter: Well I --
Mr. J. Lee Rankin: We had no such intention --
Justice Felix Frankfurter: Well I'm not suggesting it, I say that if it's really a matter of (Inaudible) then I agree with you, (Inaudible) to get access because it's in the national interest is a more favorable treatment (Inaudible) than I believe that it's not clearly consistent, I might say, as white as a new born baby, as innocent as a new born baby, as white as an angel or (Inaudible) and you might be able to say well not clearly consistent with that, I should have it, I might be a very good man and yes you couldn't proved that it's not clearly consistent, except unless you have this somehow or other singling out this Man Taylor, and you got a record on that as to what the secretary has been doing.
Mr. J. Lee Rankin: Yes.
Justice William J. Brennan: Perhaps I was paying closer attention to the First Amendment and that was already answered, but when there is under the regulation a clearance given, is the reading that the clearance or access to classified defense information is clearly consistent with the interests of national security or how is it (Inaudible)?
Mr. J. Lee Rankin: When it's done by the Hearing Board it's generally -- I think in all cases clearly consistent.
Justice William J. Brennan: In other words be affirmative, that his access is clearly consistent with the interests of national security.
Mr. J. Lee Rankin: Yes.
Justice William J. Brennan: Is that it?
Mr. J. Lee Rankin: That's right.
Justice William J. Brennan: Well then we don't have the negative given --
Justice Felix Frankfurter: Well I thought that was no clearly inconsistent.
Mr. J. Lee Rankin: Well it has to be the test he is up against, in that it is that it's not --
Justice William J. Brennan: So I think it is a form of --
Mr. J. Lee Rankin: Form, as you've described.
Justice William J. Brennan: Is that he is clearly consistent with it, is that it?
Mr. J. Lee Rankin: Yes.
Justice Felix Frankfurter: But the rejection is that it's not clearly consistent.
Mr. J. Lee Rankin: That's right.
The rejection --
Justice Felix Frankfurter: Therefore the rejection is on a negative ground --
Mr. J. Lee Rankin: Yes.
Justice Felix Frankfurter: -- that is clearly consistent, and not the affirmative way that it is consistent, that he should be cleared.
Mr. J. Lee Rankin: That's right.
Now there was no intention I'm sure of anybody to play on the words and yet I don't want to mislead anybody, they are there for your comparison.
The government thought there was no impropriety in the mooting of this case if we were handling a wrong principle in the application and we're correcting it as in regard to all personnel that might be involved and we thought that when that came to the attention of the departments that the sooner it was corrected the better and in a situation like this I do not think that the government or the solicitor can properly just take a case away from the Court by mooting just because it is a disadvantageous or a undesirable case for the government, but I do think when you are trying to do justice --
Justice Felix Frankfurter: You can do that if the government resists the claim, you can pay the money and moot it that way.
Mr. J. Lee Rankin: Well --
Justice Felix Frankfurter: Nothing dishonorable about that.
Mr. J. Lee Rankin: I think unless you're deliberately trying to avoid a decision in a matter that is involving a great many people that the Court should decide for that purpose, but this Court already had the Greene case before, was exactly the same problems are here.
Justice Felix Frankfurter: Speaking for myself, I think not only is the government within its right, I think it's its duty to put them in Court in a case that's pending, it's recognition that a wrong principle was employed in reaching the result that is objected to provided, there isn't less, the least residual remain of harm to the person whose case you're trying to moot.
Justice William J. Brennan: Now in that connection, that was the question I wanted to ask if you're sure Mr. Solicitor, do I understand that this letter of Mr. (Inaudible) completely expunges all previous findings in this case as if they had never been rendered --
Mr. J. Lee Rankin: That's right.
Justice William J. Brennan: -- has the affect of completely obliterating from any record, his employer's record, the government record, any other record, anything connected with this proceeding which could be embarrassing or harmful to him in the future.
Mr. J. Lee Rankin: That's right.
Chief Justice Earl Warren: Well General could you say if there was another clearance investigation of him that the evidence that the government presented undercover to the Board would be obliterated too? Is that all wiped out or isn't that there still to be used for any purpose if the government wants if this man should come under scrutiny again it could be used against him?
Mr. J. Lee Rankin: Now I think that evidence is adjudicated and cannot be gone into again.
The only way that I think anything of that kind could as his to prior experience could ever be brought up would be if there was something entirely new that would revive it on its own, not because of anything that was in the -- what happened before.
Chief Justice Earl Warren: Well I thought maybe because you had successive increase of this man's past by the Board after they decide that once and a second time and then again that, that evidence would still be there for such use if they wanted to take it.
Mr. J. Lee Rankin: Well, it's a practice to treat that as a closed chapter and --
Chief Justice Earl Warren: Nobody would know, would they, whether it was there or not because nobody knows what evidence was rejected.
Mr. J. Lee Rankin: I wouldn't say the government doesn't know, but because it's there, but it isn't -- I inquired into that, and it couldn't be used or brought up again and used against him, and it's just as well it didn't happen --
Justice John M. Harlan: Had these proceedings never taken place, would this man have been reclassified under your new program?
He had originally an unrestricted clearance for all information, did he not?
Mr. J. Lee Rankin: No Mr. Justice, he had a confidential and that was what was suspended and then they wanted to because of the nature of his duties requiring access to secret, they asked for his clearance as to secret and that's what brought up this whole program.
Justice John M. Harlan: I see.
Justice Hugo L. Black: Has been out of a job all this time?
Mr. J. Lee Rankin: I can only say what they represent, and I assume that that's correct.
I don't know anything of my own knowledge about that.
Justice Hugo L. Black: I presume that once consequence had come from the government concurring with people working with private companies and doesn't occur that the government would do something to it's own employees, the government is not responsible for back pay (Inaudible) if he does -- if it has wrongfully caused him to lose his job.
Mr. J. Lee Rankin: Well, I haven't examined that question of whether there is a government liability.
I think that this has to be examined in the context though of the basic thing that you're trying to protect government secrets and I don't mean that you don't have to recognize the effect on -- of the acts of the private contractor because of that effort.
I think under decisions of this Court you have to recognize that there is a working together of the government action and the private employers action that does injure and --
Justice Hugo L. Black: I understand that, I was just wondering what happened to the -- a great number of people should be caused to be discharged by the government, ordinarily if some private company did that, that would be back pay recovery.
Mr. J. Lee Rankin: Well, it hasn't been in practice such a type of program that has been described in counsel's brief.
The figures we received were that there were some 1,000 people that were denied classification over the period of the whole program under the various administrations that had been conducting it for -- back in World War II period up to date and we don't have complete figures because they didn't have some during the early period, but I think about from 1953 on we have those figures.
I don't say that the country shouldn't be disturbed about that many people, because they should, injured by the program.
Justice William J. Brennan: (Inaudible)
Mr. J. Lee Rankin: I understood that he was placed back to work and then that because of their reducing their forces he was let out of work in the ordinary course like he would be if there wasn't any problem of clearance at all.
Justice William J. Brennan: What about his -- what about the -- I understood, did I understand Mr. Rauh to say he had been earning $5,000 and in this period when he was under this suspension, he was kept down to something like a $1,000 a year?
Mr. J. Lee Rankin: I don't know about -- I don't know --
Justice William J. Brennan: What if he did, if he did, any redress for that?
Mr. J. Lee Rankin: I got the impression Mr. Rauh was not quite revealing the whole story, because the union has in its contract that I have here agreed that these provisions about security they will recognize and it would seem to me that although I haven't examined it like I should have if I was representing him, but he has allowed the union to bargain away his problem in regard to his compensation during that period.
Justice William J. Brennan: Well I don't suppose in any event if he was entitled to redress, would be any place short of a legislative bill or get it for him from the government.
Mr. J. Lee Rankin: No, but he might have recovery otherwise from the employer if it wasn't pardon away.
Justice William J. Brennan: Wouldn't mind representing the employer, isn't it?[Laughter]
Justice Felix Frankfurter: On the other hand I think the interesting -- beside the recovery for him, if this was a wrong principle applied by people ought to know the right principle under the Federal Tort Act.
Mr. J. Lee Rankin: Well many --
Justice William O. Douglas: I assume from what you state, if that were true, that if a suit were brought for loss of wages or back pay or what not, that on this record it would stand as a wrongful discharge, charges -- a discharge without cause on this letter from Decard?
Mr. J. Lee Rankin: I'm not -- I just wouldn't know about that, in view of the union's agreement that they were would be bound by this security program and the discharges, it might not give him that relief, I wouldn't want to hold out the court that it would, I think that's a technical question with relation to their contract and the company's employment arrangement.
Justice William O. Douglas: Well unless it would the case might not be moot?
Mr. J. Lee Rankin: Well, I think the reason the case is moot is because he has gotten exactly what he asked for, in that he has asked for a clearance and that's what the whole thing is involved about.
He wanted to have clearance and he asked for the record to be expunged and that's done.
The only thing that he doesn't have, that he asked for is a hearing, a due process hearing which the only purpose of that hearing would be give him the clearance and if he gets his judgment either of dismissal of a prosecution or any type of action of that kind, when he gets the ultimate thing which is the relief of the clearance that permits him to go ahead, seems to me that there can't be anything left except the question of whether this was just a special situation that's involved in some of the cases.
Justice Felix Frankfurter: Would the government be able to have a form of the clearance specifically made out, so as to say that it is clear and consistent with the interests of national security that he be given clearance?
Mr. J. Lee Rankin: Yes.
Justice William J. Brennan: Say again.
Mr. J. Lee Rankin: Yes it would.
Now there is no purpose at all on the part of the government to make a distinction that way and play on the language.
There is -- if you get the mootness question, the basic problem of the retention of government secrets, and whether the government is going to have that power, seems to me that it has to be conceded that the practice of 170 years of the executive withholding the primary military secrets of the country has to be recognized.
Now we say that that's based upon the inherent powers of the executive under the constitution as Commander in Chief.
It's been followed for all of these years and the whole purpose of this program is to try to protect that very vital interest that involves our missiles program, our space program, all of our defense program, our battle plans and every aspect of it.
Justice William J. Brennan: What's the basis of all that Mr. Solicitor (Inaudible)
Mr. J. Lee Rankin: Well that isn't quite the fact either, let me correct that first.
There was a T or a -- what is usually denominated a T informant undercover agent involved in this, one of the six.
As to that I think there is a very serious problem, because --
Justice William J. Brennan: As the undercover --
Mr. J. Lee Rankin: Yes.
Justice William J. Brennan: (Inaudible)
Mr. J. Lee Rankin: They were not undercover agents.
Justice William J. Brennan: What – what (Inaudible)
Mr. J. Lee Rankin: The difficulty in regard to that is whether or not you dry up your sources of information or your intelligence agencies and they serve many purposes, I'm sure the Court realizes beyond just this particular function and if the information is not --
Justice William J. Brennan: (Inaudible)
Mr. J. Lee Rankin: Well, yes that's correct.
They are people who will tell the information if they are going to be forced to testify, even though they are acting in good faith and know the information.
But if they would forced to appear, they just won't tell it all, because they would then have the information in the hands of the intelligence agencies and they would have to be called up to testify or --
Justice William J. Brennan: Now these board hearings are not public hearings --
Mr. J. Lee Rankin: Well they would be -- all the people that were involved would certainly have to hear it, and if they happen to have an affinity or a sympathy with the Soviet or Communist activity or subversive or anything of that kind, they would learn all of the information and as far as the casual -- as far as the undercover informant, as far as the casual informer, those people just won't want to get involved, so that we won't have the information in regard to all of the various things that they furnish the information, if it's on a confidential basis.
Justice William J. Brennan: Does that not risk the risk of a jealous neighbor, the envious --
Mr. J. Lee Rankin: Well it has that possibility, and I think that can only -- is handled on the basis of whether the relationship what it is and --
Justice William J. Brennan: But I like to say it is handled, I understood the board members here never even saw any of these witnesses.
Mr. J. Lee Rankin: That is not quite correct either, although Mr. Rauh is not at fault in saying that because we did not present it in our briefs, one of the witnesses was seen by a Board member.
Justice William J. Brennan: What about the other four that gets down to –-
Mr. J. Lee Rankin: The other five are not.
Justice William J. Brennan: Were not seen?
Mr. J. Lee Rankin: No.
Justice William J. Brennan: We don't know whether they were neighbors or fellow employees or may have had a beef against this fellow or something.
Mr. J. Lee Rankin: That's a possibility.
Justice Potter Stewart: And the Board didn't either.
Mr. J. Lee Rankin: Well, they knew who they were, but whether, they didn't -- I wouldn't say they knew all that could be developed on cross examination.
Justice Potter Stewart: Did they know as to have any possible relationship or in law --
Mr. J. Lee Rankin: Those things are developed.
Justice Felix Frankfurter: Could they see things like the different connection, what we call (Inaudible) memorandum.
Mr. J. Lee Rankin: They are given summaries generally as I understand it.
Justice Felix Frankfurter: But they themselves do not see any -- that was (Inaudible) memorandum of, what do you call it, recording of the witnesses on the basis of which the charge is made.
Mr. J. Lee Rankin: Yes, there are occasions when they do, they see the raw reports or --
Justice Felix Frankfurter: Is it within their power too or is it what is given to them?
Mr. J. Lee Rankin: Well I think it's depending upon their requests at times, from the information I received, but if they requested it here, it's often given to them in the original form.
Justice Hugo L. Black: Did they get it in this case?
Mr. J. Lee Rankin: I understood that they did.
I don't want to hold out that that's the same as cross examination though.
But there is a basis for appraisal of the type of person and whether there is any relationship, whether there might be some special interest in the controversy and that type of thing, as far I think as it goes.
Justice Hugo L. Black: You mean the Board got it?
Mr. J. Lee Rankin: Yes.
Justice Hugo L. Black: Not the party?
Mr. J. Lee Rankin: Not the party.
The party here was given the substance because that was put into the -- dictated into the record.
They asked for confrontations at the subsequent hearing and that was denied to them.
They asked a number of questions in regard to the parties that were the witnesses and so forth, so they could evaluate them, and that was denied to them.
Justice William J. Brennan: Was there any suggestion below in this case that any of this stuff might be shown to the judge?
Mr. J. Lee Rankin: I don't believe it came up in that kind of posture, it was on summary judgment and in light of the Greene case it was --
Justice William J. Brennan: The same would be true in the Greene case you think.
Mr. J. Lee Rankin: I didn't examine that aspect of that, but I think it was on the same general decision.
I don't the merits has gone into in that phase.
Justice Felix Frankfurter: You are going to deal specifically or are you with the concluding lawyer like suggestion if I may say so Mr. Rauh that he doesn't have to resort to constitutional issues, he doesn't have to resort to statutory issues, because long before you get to the constitution, if there is a statute, and you don't get to the statute, you agree with that aren't you?
Mr. J. Lee Rankin: Well yes, there is no question, I hope there is no statute that tries to lay down just how this program will be conducted and that it shall not have confrontation and the statutes that Mr. Rauh refers to in regard to the Subversive Activities Commission, we don't think apply at all to this situation wherever contemplated by Congress to apply to this situation.
It was entirely different thing, they were providing for after the Communist Party was adjudicated as subversing if that adjudication did occur, and it's an entirely different thought if the Congress was addressing itself to.
Justice Felix Frankfurter: Would you agree with him that the case really gets down to the validity of an administratively devised procedure, having it (Inaudible) neither in an act of Congress or a Presidential command.
Mr. J. Lee Rankin: No, I go up to the Presidential command with him and say that there is no express language of Congress.
There is I think language from which you can properly infer that Congress contemplated this in the creation of the Defense Department and giving it authority to provide for the various materials and the information it had and also the various contract or procurement, defense procurement statutes that contemplate all of this kind of business of protecting the secrets of the United States and contracts --
Justice Felix Frankfurter: (Inaudible)
Mr. J. Lee Rankin: It's of that type, yes.
But now there is Presidential action that we think is clear in Executive Order 10501, which is a revision of an order by the prior administration and it's signed by President Eisenhower and it's too long to go into at length, but there is express provision in that the various persons in the departments who have classified information under their control shall take such action as is proper to see that, that information is protected and not disclosed to persons who are not properly entitled to it.
It's very clear in defining that, it defines confidential, secret and top secret information and goes into this whole question.
Justice Felix Frankfurter: But that may not unfairly be construed if they are (Inaudible) to restrict the affirmative release of so called confidential information and not to bring it into the open where another interest comes into play, namely the man is charged with a serious acquisition, which entails a confrontation.
Do you have you comments to make?
Mr. J. Lee Rankin: I don't think so because I think the Court is going to have to face up to the basic problem here and that is we can't assume that this government can be without defense contracts.
We can't assume that it doesn't have to go out and get in the missile race and try to produce missiles and develop whatever it can and all the other kinds of armaments and things that are secret and necessary to its very preservation.
So that means that you can't keep a secret that of prime importance to the life of our company in the Pentagon and never let it out.
You've got to be able to let people who work on these contracts develop research and ideas and development of the machines, as well as battle plans that have to be disclosed to all the people in the military services and so forth, all those things have to go beyond some safe in the Defense Department and in light of that, there has to be a recognition that there has to be a selection.
Then you get down to the problem of how you're going to hold these secrets back and who is going to have access.
Can you go down and select every third person and say they shall have access, would that be a power of would that be arbitrary and discriminatory under Wyman or Slochower or should the government be condemned for trying to do the best it can with this difficult problem and trying to find that best means as close as it can to some kind of a fair hearing in deciding who should have access.
Now if Mr. Taylor can be trusted with secret information that he needs for the job he ought to have it and the government ought to be able to get the fruits of his labor and not be condemned for it and then it's the question what is -- as far as we can go in trying to protect the information and still make it possible for this country to have its secrets and develop its defense.
And certainly we can't -- this Court can't just close it's eyes to the proposition as I see it, with all due respect to the fact we are in a race with people who would like to destroy us and in that race are things that we don't want them to know, the moment we develop them or think of them or get them into creation.
We'd like to have them have as much as lag as possible behind us when we get that done and the problem is, we shouldn't hurt any citizen in any particular if it can be avoided.
But the country has got to be preserved too and how are you going to make the selection of who has access?
Certainly the Court would say it couldn't be just plain arbitrary, by the color of their hair, or the color of your skin, but after that, do you have to disclose the information that's going to destroy your intelligence systems, the life of the country is dependant on that too.
So it isn't a simple problem of whether or not Taylor has been hurt in this situation and that's very important, but you've got to also keep in mind that nobody tried or intended, that this program was never devised for the purpose of hurting Taylor or anybody else.
It was devised to protect this country and the state it was established on that kind of a basis, and then how much can you do in conducting the program and protect both the interest, the very life of this country, as well as the citizen's interest.
Now his interest is consequential, what's basically involved is the clearance and the badge of infamy is a consequence and this Court can't disregard that.
Chief Justice Earl Warren: We'll recess now.
Argument of Rankin
Chief Justice Earl Warren: Number 504, Charles Allen Taylor, Petitioner, versus Neil McElroy et al.
Mr. Solicitor General, you may continue your argument.
Mr. Rankin: Mr. Chief Justice, may it please the Court.
I would like to first read a letter from the general counsel of the Defense Department addressed to Mr. Taylor.
During -- This is dated March 31st.
During the argument before the United States Supreme Court today, the question was raised as to whether in your case there was a difference between the standards of national interest and clearly consistent with the interest of national security.
I'm authorized to inform you that the acting Secretary of Defense in determining on December 31st, 1958 that you were eligible for clearance for access to defense information classified secret did not intend by its reference to the national interest to differentiate your status from that of all other employees eligible for such clearance including employees as to whom a board has made determination that access at such level is clearly consistent with the interest of national security.
In other words, your clearance has been determined to be clearly consistent with the interest of national security.
Mr. Rauh has responded to that as of April 1st referring to that fact that he telegraphed the Secretary on January 10th asking if the Secretary's action as of the prior date amounted to certain findings in regard to Mr. Taylor and the findings are reversing the earlier findings, withdrawing false charges, announcing that Mr. Taylor has never been a member of the Communist Party, never paid Communist Party dues and never attended Communist Party meetings and so forth and establishing that he has been truthful and so asserting.
The answer to that is that the Government does not say that this is making such findings.
Justice Felix Frankfurter: Would you mind -- be good enough to read me that letter out of the (Voice Overlap) --
Mr. Rankin: Yes, sir.
He refers to the January 10th telegram.
Justice Felix Frankfurter: This is in response to the letter you've read from the -- the general counsel.
Mr. Rankin: That's right.
Justice Felix Frankfurter: All right.
Mr. Rankin: And he says, in quoting that, “Does this amount to these findings.
One, reversing the earlier findings, two, withdrawing the false charges, three, announcing that Mr. Taylor has never been a member of the Communist Party, never paid Communist Party dues, never attended Communist Party meetings and so forth.
And four, establishing that he has been truthful in asserting -- in so asserting.”
And the answer of the Government is that this does not amount to such findings.
The answer is further as I told you yesterday that the prior proceedings are expunged as he was so advised.
Justice William J. Brennan: And now you said -- what was the first of those reversing the earlier findings?
Mr. Rankin: Reversing the earlier findings, the findings themselves.
And the action of the Secretary was to grant him clearance.
Justice William J. Brennan: What's the result of expunging?
Mr. Rankin: Is though they never were there.
That's exactly what happened in the Peters case in accordance with the direction of the Court and in Cole against Young.
And it's the usual practice in all these cases to erase them as though they never happened.
But he asks from informative new findings that these things were in his favor separate (Voice Overlap) --
Justice William J. Brennan: Well, I -- I suppose reversing the finding is a little different from asking affirmative findings, isn't it?
Mr. Rankin: Well, the further part is asking for affirmative findings in regard to this Congress membership and so forth.
Justice William J. Brennan: But as I understand the Government's position is that none of the action reverses anything in the way findings merely expunges that fact.
Mr. Rankin: That's right, as though it never happened.
Justice Tom C. Clark: Mr. Solicitor, suppose he wants to be able through his skills, to get a promotion to a higher -- how unreasonable or whatever you call that here, and then -- but he would have to have top secret classification with this data then bu used, would that occur -- could that occur?
Mr. Rankin: I'm advised that it wouldn't be used in that regard.
I'm also advised that by the very nature of his work, he probably never would be asking for access to top secret but it would -- that could be true of other employees in the program.
Justice Felix Frankfurter: Mr. Solicitor, I'm -- I'm not suggesting about -- about what I'm about to put to you, if there is any impropriety or out of the witness about this -- about this (Inaudible) enlightened correspondents.
Mr. Rankin: Yes.
Justice Felix Frankfurter: But I do suggest that since it's before the Court, it might be just as well to put in writing the reply you've orally made to Mr. Rauh's (Inaudible).
Could it be -- I mean the doctrine, it didn't say they're merely resting on pleading words.
What you've just said.
Mr. Rankin: Yes, I'll be pleased to do that in the courtroom.
One further thing the inquiry was made by Justice --
Chief Justice Earl Warren: General, may I ask you this question.
You said that it would not be used if there was a further screening of this man, do you mean under your proceedings, it -- it could not -- could not be used or do you mean as a matter of grace in the department and as a matter of fairness that the present incumbents of the office would not use it.
Mr. Rankin: No.
I would understand that it -- as a matter of procedures that they are regularly followed that it would not be used.
That it's a matter that has been determined and that it isn't -- can't be gone back over.
That's my --
Chief Justice Earl Warren: Yes.
Well, I think that's just -- that -- that's a problem that bothers me.
I imagine you did -- Justice Clark when he asked the -- the question.
Is the mere expunging of the -- of the records tantamount to -- to a finding on the subject one way or the other?
Isn't it -- isn't it just loose there, isn't it just in limbo and -- and couldn't the -- couldn't that information against this man become available again from a standpoint of -- of your procedures?
Mr. Rankin: Well, I --
Chief Justice Earl Warren: What is there -- what is there in -- in your procedure that are in the statute or in any manner that says that -- that when -- when this disposition is made of a case if we put this -- is not -- the finding hasn't been reversed, everything has just been expunged from the record except the documents on which he was originally found to be not consistent with the security of the country.
What is there to prevent that from being used again?
Mr. Rankin: There is nothing in the regulations or in any statute that would prevent it.
The practice is the only thing.
The expunging does not amount to an affirmative finding in his favor.
It is an erasure of the prior findings against it.
Chief Justice Earl Warren: I think one of the -- one of the things that bothers me in this case is that -- that one of the hearings before the Board, they found that he was a member of the Communist Party at a certain -- certain time and he was expelled for that reason.
Then he asked for a hearing before the Board and -- no, after that hearing rather, they took his testimony to the effect that he was not a member at that particular time that he was actually anti-communist in his approach to problems.
And they then supplemented the record and using the same records that they have found he was a communist.
They found that he wasn't a communist because he had been expelled before that time.
Now what -- what would prevent the same thing from happening here in another circumstance?
Mr. Rankin: Well, let me clarify the facts.
In the first place they found the he was a member of the Communist Party in 1942 and 1943.
Chief Justice Earl Warren: Yes.
Mr. Rankin: There is -- they never found otherwise they found the next time that he was a member between 1942 and 1943 that he was expelled from the party because of his lack of sympathy with it in 1943.
The interim between the two hearings was taken up by further investigation.
None of these witnesses has charged by counsel change their testimony at all.
That is not true.
The fact is that the FBI and the Department of Defense made further investigation of the matter and it -- that investigation supported the fact that he was expelled but the witnesses who had testified continued to adhere to the stories that they had presented -- that it presented the confidential information.
So there was the additional finding by the additional investigation of his lack of sympathy with the party and his expulsion.
But there is nothing in the record that he was not except his own testimony and his own witnesses are confidential.
Now, in regard to the question of Mr. Justice Douglas about compensation from the time he had been out of work, I'm advised that he will be fully compensated that his counsel have already asked for the forms that he could get his compensation, the difference between what he will receive and what he should have received if he had been employed during that period and that this is not a special treatment on Mr. Taylor, but the regulations in Section 26 or I guess it's paragraph 26 on page 32 of the supplement, expressly provide for monetary restitution in this kind of a case and he is to be paid the amount of that difference.
Now, in regard to the job position, I should like to clarify that.
That was an idea of the Department of Justice as trying to put in further element of consideration for the need of access in the regulations.
And when it was presented and examined on a working level in the department that have the administration of the program, it was found that it was not workable and this is the reason that it was not.
It was found that with the Bell Aircraft Company when they made a reduction enforced under the seniority program which is generally called bumping that with a reduction of 4,500 members of the union, it involved 26,000 shifts of position of the employees so that you would be busy in the government examining on a job basis continuously because every time that someone was eliminated, a man could move into that position and be at a different job and instead of being like it is now where you would have a clearance, he would have to go through the procedures every few days or weeks depending upon the situation and it also would involve the administrative problem and it did not seem at all practical and also would put a burden upon the employees that was not realistic and would be a hindrance to the proper development carrying on the defense program.
Same is indicated by the fact that there is a 20% turnover in this company of employees, we were advised.
And in view of that, the job position movement in which every time there was turnover, the man, if it was a problem of seniority has the right to bid for the better position would be constantly subjected to that kind of situation and that's why the idea of a job position element of consideration was abandoned.
Chief Justice Earl Warren: And that was abandoned in all defense industry?
Mr. Rankin: That's right.
It seemed -- it just seemed impracticable in view of the relationships between the unions and the companies and what it would involve for the employees.
Now, I would like to call your attention to another factor and that is this problem of the inherent power of the -- the President, the executive to have the protection of the military secrets of the country.
This has been claimed by the President for 170 years and it is of primary consideration and that any interval that there might be in the conduct of the defense program between any kind of legislation or other action if the Court would find there was not such a power which would be a constitutional question in itself would involve the fact that the president had no power to protect the secrets of the country during such a period.
Justice John M. Harlan: Your position is that (Inaudible) the security in this case that the Government has tried to discharge about (Inaudible)
Mr. Rankin: Well, the problem you get into there is the question of interest and it's the question of the -- I think there would be no question about that except for the cases such as Wieman against Updegraff and the Slockhower case.
Justice John M. Harlan: That case is there?
Mr. Rankin: That's right.
And I think they are different in this regard.
There, you're dealing with a standard and you said that the standard cannot be one that's irrational.
You didn't say that he had any interest in Wieman if you'll recall.
You passed that question on whether he had the right to the job at all.
But you did say that you can't classify and use the example of -- on the basis that he was either a Negro or a Republican or a Jew.
Those were the three various classifications that were used as examples.
And you could not make a classification of that type which was irrational as your standard.
But this is -- the basic question here, is whether or not this man has a right to the clearance that is to see the Government's secrets.
Does he have a constitutional right to that as a matter of due process?
And the question that must be considered as I see it -- all of them this case is whether or not if the administrator has a hearing and he has information of a confidential character from someone who is an agent, who is an undercover agent as the most extreme case.
And that person has seen the particular employee in a communist cell actively participating in that activity to try to defeat the whole program of this country having that, but not being able to reveal it because this undercover agent cannot be presented without destroying his effectiveness.
He may have been planted there and somehow as much as 15 years ago.
Then, does this Court -- is this Court going to tell that administrator that this man who has no legal right to access as such to the military secrets of the United States, the administrator must disregard such information as he has and give to the man the greatest secrets that we have, which give us an edge over our enemy.
Chief Justice Earl Warren: Mr. General, here, you have not only that kind of a witness.
I understood you to say that one of them -- one of the witnesses was of that character, but you also have five casual witnesses who were neighbors or perhaps business associates or someone -- or someone else.
They might have been people with -- with a motive.
They might have been people that malice against the man.
And as to those -- as to those, why wouldn't he have a right to be confronted by them if my neighbor accuses me of anything else, anything else but this and they're going to put me in jail and they're going to take away my livelihood.
I have the right to be confronted by the witness.
Now, why wouldn't a neighbor in those circumstances be just as much required to confront the person whom he accuses and subject himself to cross-examination?
I think it's not just as simple as that one undercover man that you speak of.
Mr. Rankin: Well, I don't want to say to this Court and I don't say to this Court that the case of the confidential informant who is not an undercover agent is the same problem that those who are more casual informants are.
I think that is a different problem and there, you have to face up to the question of whether drying up the general sources of information of that character, which is the belief of the intelligence agencies in good faith that will have the effect is better to do in regard to this where there is no right to access to military secrets.
There is no constitutional right to that.
Whether the Court wants to say that that is necessary to do or whether that testimony which is not a question of guilt or innocence but whether this person should have access to these military secrets, whether he should -- the administrator should disregard that information entirely.
Now, that's what it faces up to in that particular category of informants.
Justice William J. Brennan: Mr. Solicitor --
Justice John M. Harlan: What you're saying in effect as I take it that the due process is satisfied if the (Inaudible)
Mr. Rankin: I think that's --
Justice John M. Harlan: (Inaudible)
Mr. Rankin: In the first place, I say that there is no right to due process because there's no substantive right to see the secrets of the United States.
Justice John M. Harlan: I mean, can you go so far as decide that this man is charged, couldn't ask for a hearing, (Inaudible) had the Government have done that?
Mr. Rankin: Well, that might be so irrational under a Weiman case that he couldn't do that.
Justice John M. Harlan: So that you're implicit in your position that due process requires some kind of a hearing.
The question is what -- is that it?
Mr. Rankin: What?
Yes, I think it's a balancing of the best that can be done and preserving, doing as much as possible for his interest in preserving the primary interest of the military secrets of the country too.
Justice John M. Harlan: The Government couldn't deny a right to come before the agency to say that you're (Inaudible).
Expose myself to (Inaudible)
Mr. Rankin: I don't believe so.
Justice John M. Harlan: But it can deny his right (Inaudible)
Mr. Rankin: Only if the Court is satisfied that that which is claimed to be a threat to the country and the maintenances of its intelligence processes is a real threat and then balancing his interest against the interest of the country.
It is not an unreasonable impingement upon him.
Justice John M. Harlan: Does that require some selected judgments if witnesses can be produced (Inaudible)?
Mr. Rankin: Well, I think that --
Justice John M. Harlan: (Inaudible)
Mr. Rankin: I think the Court -- that's one of the difficulties that the Court should not get into of trying to have a trial in every case of whether or not this particular witness should have been produced or not and whether the governmental processes or such.
It seems to me that it will so involve the courts in examining the material and matter in that regard and without having the basis for judgment that in regard to it -- that maybe the only alternative would be for the courts to set up the whole program which I don't think the courts would want to or in our separation of powers would do.
It's so difficult without getting to case by case in every witness judging.
And I don't think that the interest involved legally, historically, are such that they're entitled to that kind of the decision by the Court in every instances to every witness.
Justice William J. Brennan: Mr. Solicitor, I noticed that there's monetary substitution, Section 26, currently is available only to the contract of employee as to whom a final determination is favorable.
Does Taylor fit with that category?
Mr. Rankin: Yes, he does.
Now, I want you to understand, however, that as to those who did not have confrontation and because of that claim that they didn't have a fair hearing when therefore still denied a clearance that they would not get the benefits of this section.
But Taylor is clearly entitled to it and will proceed (Inaudible) --
Chief Justice Earl Warren: Mr. Rauh.
Argument of Joseph L. Rauh, Jr.
Mr. Joseph L. Rauh, Jr.: May it please the Court.
I do not believe there is anything to answer on the merit.
The Solicitor General has conceded.
I believe in open Court that there is no statutory basis for this program.
He has argued inherent power but he has failed to show this Court an executive order asserting inherent power and I cannot believe it consistent with the principle of avoiding constitutional issues this Court will decide inherent power until a president of the United Sates under whom the program is set up, asserts the power.
Furthermore, there has been no defense of the facts of this case and therefore I would like to save my remaining time on the question of mootness.
The question boils down to this.
Is petitioner to be turned away from the courts without protection against future recurrence of the substantially conceded unauthorized in arbitrary conduct of the Government?
Now, I think I may have not been as clear yesterday as I would have liked to have been and may have confused the difference between a request -- a suit for money damages and a suit for equitable and declaratory relief.
In a suit for money damages where payment of the damages is made in full, where the person has been fully compensated then of course the case is moot.
In however, suit for equitable and declaratory relief, future protection is as significant as the immediate problem, and this Court has recognized time and again that where there is a likelihood of recurrence then the case is not moot.
Take Walling against Helvering where the man stopped his wage in our law valuation.
Take the Grant case where the man resigned as the director.
Unless you're going to say it's a double standard and the Government can stop and there's no -- and there's still a danger of recurrence and it's different with a private party but this Court rejected the double standard in the Southern Pacific Terminal case.
And so, we get back to this fact, is there a likelihood of recurrence and to that, I would like to devote the remaining time here.
Now, Mr. Rankin suggested this morning that the practice is to wipe this information clean when in fact a man is cleared.
Why that an amazing statement really in this Court, because of the fact that this Court has three cases proving the exact opposite.
The first case, of course was Peters against Hobby where Mr. Peters, on the same evidence, the same evidence in which he was cleared with was subsequently used to find him guilty and it came to this Court.
The case of Mr. Service which came to the Court, the identical evidence had found him clean four times, was used the fifth time to find him guilty.
And finally, and this it seems to me has the most complete answer, is the Greene case.
In the very Greene case the same evidence -- the case is only here because the same evidence which once was used to find him innocent was later used to find him guilty.
These are not wiped out in any way, shape or form as -- indeed one of the criticisms of the program by so many of the students has been the fact that there is no res judicata, that the same materials used over and over again.
In our opposition for example, we quote the New York City Fire Association --
Justice Potter Stewart: Mr. Rauh, aren't you using a little bit two concepts and perhaps misunderstanding what I understood the Solicitor to say.
He said these findings are wiped out.
He wasn't suggesting that this evidence had been taken out and burned and thrown in a waste basket or the garbage can but that the findings based on the evidence had been wiped out.
Mr. Joseph L. Rauh, Jr.: I then stand corrected.
I understood --
Justice Potter Stewart: That's why I (Voice Overlap) --
Mr. Joseph L. Rauh, Jr.: -- in answer to the Chief justice to be that the “evidence” itself, evidence in quotes because it's equally important that this material could not be used against.
I so understood his answers, Chief Justice, if I missed understood the answer, I then would be willing -- and then that's fine.
We all agree then that the “evidence” can be used over and over again and that's all I'm trying to prove.
Justice Felix Frankfurter: Suppose this Court reversed it.Supposing the key of your argument on the lowest level of your argument (Inaudible) lowest level of quality of your argument that the law speak about -- suppose it reversed it, what judgment would you get that would do other than saying that that the determinations of the departments are vacated, what else would you get?
Mr. Joseph L. Rauh, Jr.: You would get an injunctive relief against re --
Justice Felix Frankfurter: They never -- they never can reconsider his clearance or not clear it?
Mr. Joseph L. Rauh, Jr.: You can get it as I was trying to say injunctive --
Justice Felix Frankfurter: I thought it was declaratory judgment.So there's no injunctive relief.
Mr. Joseph L. Rauh, Jr.: It is -- we sought both of the declaratory judgment and Injunctive relief if you are --
Justice Felix Frankfurter: And what would be the injunction against him that he should never be getting inquired into?
Mr. Joseph L. Rauh, Jr.: No -- no, Your Honor.
That -- at any future procedure that was gone into, it would follow the requirements of due process.
In this case, it would be a simple statement because in this case I believe Your Honors are going to decide there's no authorization for the program so that the injunctive relief would be --
Justice Felix Frankfurter: We might not decide if there's no authorization for the program and yet reversed the case.
Mr. Joseph L. Rauh, Jr.: The reversal would be very --
Justice Felix Frankfurter: The program is a big term.
It doesn't mean that everything is null and void.
Mr. Joseph L. Rauh, Jr.: It may not.
I suggested yesterday that the narrowest ground would be the Congress hadn't authorized none confrontation.
It would simply be an injunction for the future that the non -- at future hearings involving this petitioner, the procedures of nonconfrontation could not be adopted.
This would be all the protection he needs.
It is all the protection for which we here plead.
Now, may I just --
Justice Felix Frankfurter: But they could use the materials as lead to other things, could they?
Mr. Joseph L. Rauh, Jr.: I am only using the material point to show that this man stands in danger of recurrence, Your Honor.
Justice Felix Frankfurter: But he would even if we reverse --
Mr. Joseph L. Rauh, Jr.: But he wouldn't stand in --
Justice Felix Frankfurter: -- so far as -- unless there is a decency of respect which must be attributed to a member of the cabinet that he is going to do in effect by circumvention what the court said he shouldn't do.
Mr. Joseph L. Rauh, Jr.: I think if Your Honor, if I may, say that that what the future hearing we're complaining about is not that they use this material or not.
And what the declaratory and injunctive relief, we are seeking is the fact that there cannot be tomorrow the same two and a half years of finding him guilty without confrontation.
And I am showing that this evidence is not wiped out.
That they use it over and over again to reach different results and then if there isn't a decree of this Court, they may very well use it over again to reach the opposite result without confrontation and we will be forced to come up to this Court through District Court, Court of Appeals, Supreme Court at the risk of two and a half more years of the same thing.
Justice John M. Harlan: Supposing that in the next case (Inaudible)
Mr. Joseph L. Rauh, Jr.: I'm sorry I --
Justice John M. Harlan: Supposing that in the next case, the merits of what you're arguing here were decided in favor of (Inaudible)
Mr. Joseph L. Rauh, Jr.: I don't think it would leave -- it will change.
Our case is not moot because there's a likelihood of recurrence.
If the court's order, thereby completely ends the program, I don't think that renders our case moot.
I think it would simply mean that our case would be decided as part of the other case.
I don't see how your action in one case can render our case moot other than the fact the decision in our case also, by the same token, renders the other case moot.
It seems to me that -- that obviously, your decision is going to be dispositive of -- of both causes of action.
Now, not only is there a likelihood of recurrence because of the nature of the -- of the program over and over and over again with the same evidence but this is a peculiar situation.
Mr. Rankin informed the Court this morning that they would not make findings in our favor.
Now, they always -- now I'd like to call the Court's attention.
If you'll look at the supplemental memorandum with the regulations in them, at page 27, there's a provision for making findings at page 27-D.
Now, it's true that this says that the Hearing Board shall make the findings.
But we stand without the findings which are the normal protection.
I would say this case isn't moot.
If we had gotten everything in our clearance, because of the fact that the same evidence has been used over and over again but we didn't get everything.
Mr. Rankin, in answer to Mr. Justice Brennan's question made perfectly clear.
They were refusing us affirmative findings which would be a minimum protection for the future.
Justice Felix Frankfurter: May I ask whether when there is a clearance, are there affirmative findings?
Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.
Justice Felix Frankfurter: I mean, they say that isn't -- must there be?
Mr. Joseph L. Rauh, Jr.: Yes, Your Honor.
At page 27 --
Justice Felix Frankfurter: That's what you have read but I'm asking you what the practice is.
Mr. Joseph L. Rauh, Jr.: Oh, it's always been for clearance finding.
In every case, I have been in, there have been clearance findings.
In every single case I have ever been and I think the regulation speak to themselves --
Justice Felix Frankfurter: What do they say?
Mr. Joseph L. Rauh, Jr.: Well, what the findings, say, here are take the --
Justice Felix Frankfurter: Well, I don't mean here.
What are they --
Mr. Joseph L. Rauh, Jr.: Well, they -- they would say the reverse.
If for example at page 120 -- 120 of the record, it says that these findings were true as stated in the following -- in the following respects.
They would otherwise say that the finding that we find that you were not.
Justice William O. Douglas: I asked the Solicitor General a question on this line yesterday and I understood him to say that he -- that you referred to on page 27 covers findings by the Board not by the Secretary.
And that the findings of the Secretary are governed by C on page 30 that does not require the same specific requirement of Board findings.
Mr. Joseph L. Rauh, Jr.: That -- that is correct, Your Honor.
That in the ordinary situation, the findings will come from the Board.
I'm only showing again.
I didn't show this to -- as I say, they were violating the regulations showing the peculiar vulnerability of the petitioner to repeated process because of the fact that he does not have the findings that the ordinary person will get.
I am not saying --
Justice Felix Frankfurter: He's addressing the Board, isn't he?
Because here, he's addressing the Board.
Mr. Joseph L. Rauh, Jr.: Here he -- whatever he is doing you --
Justice Felix Frankfurter: He's not doing what the Board --
Mr. Joseph L. Rauh, Jr.: Yes.
Justice Felix Frankfurter: And therefore the point as the question that (Inaudible) why did Justice Douglas has put to you becomes relevant if it is not the practice of the Secretary to make affirmative findings if we are to reject to what the Board does.
You are not actually here to do what is normally done.
Mr. Joseph L. Rauh, Jr.: I am asking -- I'm pointing out only the vulnerability of this defendant because he didn't get findings in his favor which will make it even more likely when people who have to have findings in their favor have had it over and over again.
Those who don't have findings in their favor are peculiarly vulnerable.
Justice Felix Frankfurter: Does your question of non -- was your position if it is not moot get down to this that after the most solemn and responsible representation by the government through the Solicitor General speaking for the Secretary of Defense that this is wiped out and that there will not be a reuse of these materials, it's not to be accepted by the Court.
Is that what it gets down to?
Mr. Joseph L. Rauh, Jr.: I was -- no, sir.
And I was explaining, if Your Honor please, that they do reuse the material.
Justice Felix Frankfurter: I'm saying that in this case, we have the representation of the Government to the responsibility of the Solicitor General speaking on behalf of the Secretary of Defense, stating the general rule applied to this case and isn't the fact that it isn't moot only if he must reject those representations.
Mr. Joseph L. Rauh, Jr.: On the Contrary, as Mr. Justice Stewart pointed out, the representation was no that this evidence wouldn't be used over again.
I can only say that there's apparently a --
Justice Felix Frankfurter: Well I thought it was.
Mr. Joseph L. Rauh, Jr.: Well, I can only say there's apparently a dispute that I cannot solve as to what the representation is.
I'm only saying if the representation by Mr. Rankin was that the practice is not to use this material over and over again that has been many times answered because it has.
And if I may just in conclusion in the limited time available, point out, not only is he vulnerable under the regular practice.
Not only as he peculiarly vulnerable because there's no findings but he is essentially more vulnerable because there's been no basis for his clearance.
Now, Mr. Rankin this morning said they had given up the basis of job security, the particular job against the derogatory information.
On February 13th, Mr. Rankin reported to this Court on the basis of a representation from the Defense Department.
I am not in any way saying that Mr. Rankin didn't have this representation.
I'm saying he reported to the Court that the Defense Department already had in effect this program of weighing the job against the derogatory information.
This morning he reported to the Court, the Defense Department had informed him that no such regulation could be workable and put in to effect.
That leaves the case in a posture that it depends upon the new regulation which was handed to the Court on September -- March 24th and which is here.
Now, I want to make perfectly clear that this new regulation has nothing to do with this case.
If you will look on page 4 of this new regulation, in the last sentence before the word policy and this sentence is the old regulation.
It's not in italics.
It says “In a case of a contractor employee, a clearance is an approval for the employee to have access to specified categories of classified information”.
Everything that's later italicized, there's a change in the regulation is identical with what was in the regulation before.
This regulation changes nothing.
Now, Mr. Rankin isn't seriously telling this Court that a man who on October 13th was found guilty of perjury.
October 13, 1958 was found guilty of perjury, was found a communist that he can have access to all secret information.
The Government isn't saying that.
The Government is saying that we have no explanation of this to Your Honors.
We have no regulation that does this.
And all I can say, if the unfairness which the government doesn't here seek to defend can only be compounded now by a failure to find relief which would protect this petitioner against a recurrence of the same unfairness.
Justice Felix Frankfurter: Before you sit down.
I'd like to ask you one question on the merit.
I noticed that at least in the indices of both your brief and the Government's brief.
There's no reference to the Nugent case.
Is that because that involves FBI's?
Mr. Joseph L. Rauh, Jr.: There is a reference to it, if Your Honor please in the Greene brief.
You'll see the government didn't respond.
Justice Felix Frankfurter: There's no reference in your brief.
Mr. Joseph L. Rauh, Jr.: There's no reference in our brief.
Justice Felix Frankfurter: I think because -- because in that case it involved undisclosed confidential information of FBI's?
Is that the distinction?
Mr. Joseph L. Rauh, Jr.: I find several distinctions to the --
Justice Felix Frankfurter: That's what I'm inviting you to make.
Mr. Joseph L. Rauh, Jr.: -- Nugent case on the merits, if Your Honor please.
That was an exercise of the --
Justice Felix Frankfurter: It's not my favorite case as you know.
Mr. Joseph L. Rauh, Jr.: Well, [Laughter] -- it was by a decree decision.
The Nugent case appears to hold that you weigh the need of the -- in form of the government against the need of the person who has the procedure.
Now, my first and foremost distinction would be that I demonstrated yesterday that on the facts of this case, synapses aren't worth the paper they are written on.
Justice Felix Frankfurter: I didn't think they were in the Nugent case.
Mr. Joseph L. Rauh, Jr.: Well, if Your Honor [Laughs] -- I am not in the position to argue Your Honor --
Justice Felix Frankfurter: What are the -- what are the other distinctions?
Mr. Joseph L. Rauh, Jr.: The reliance there completely upon the war -- that was a war time operation which the -- which the Court has found relevant.
Again, I -- I don't know --
Justice Felix Frankfurter: Well, doesn't that apply to current conscientious objectives or are we still in war?
Mr. Joseph L. Rauh, Jr.: Well, I -- this -- the -- this was referred to.
That point was made by the majority.
I -- I don't feel that there are distinctions and I don't feel to call upon to -- to deal with the -- there are clear distinctions, I don't -- and it seems to me that it's -- now your suggesting I argue what was wrong with that case.
Justice Felix Frankfurter: No, no, no.
I'm merely suggesting that that case is a decision of the Court.
I happened to dissent.
But that isn't enough of a ground for me to reject, it doesn't say it doesn't exist.
That decision is not expunged in any sense.
Mr. Joseph L. Rauh, Jr.: I have not suggested that it is expunged.
What I am -- what I am suggesting is that the Government's contention is a weighing of the need of the Government not to show against the need of the individual to see.
Apparently, a majority of the court felt that that need of the individual to see had been satisfied, although Your Honor did not see so -- did not agree.
It seems to me that I showed yesterday that the need to see here was so great that without seeing, it was impossible and the synapses was not worth the paper it was written on.
Now maybe here, a majority felt that the synapses was adequate.
I cannot just go -- go beyond that, Your Honor.
Justice Felix Frankfurter: The consequences there are almost as serious as here aren't they?
A man goes to jail.
Mr. Joseph L. Rauh, Jr.: Those were serious consequences and if I were arguing that case, I believe I would be arguing on Your Honor's side.
This case, however, is clearly different and the Government here has made such a half part of defense on the merits that I hardly feel that they thought it's peculiarly applicable.
And thank you.