APPENDIX B INDUSTRIAL PERSONNEL SECURITY REVIEW Department of Defense Directive 5220.6 10. Industrial Personnel Security Review Board a. The Review Board will be located in the Office of Industrial Personnel Security Review and will be responsible for the performance of the duties and functions hereinafter prescribed. b. The Secretary of each military department will appoint one or more members, military or civilian, to the Review Board as the case load requires. The Director will designate one member to serve as Chairman of the Review Board. Any three members so appointed, one from each military department, will so constitute a quorum-panel that more than one panel may be convened at the same time. One of the members of each quorum-panel must be a qualified lawyer and each quorum-panel will include at least one civilian. c. The Review Board will have jurisdiction over all cases referred to it in accordance with this regulation. 21. Procedure After Determination by the Hearing Board a. After the Hearing Board has considered a case and reached a determination, the Executive Secretary promptly will forward the complete file to the Director who will examine it for completeness and compliance with the procedures set forth in this regulation. If the Director is not satisfied with the state of the record in the case, he may return the case to the Hearing Board for further action. In any case in which the Director is satisfied with the record and in which the determination of the Hearing Board is unanimous, he may announce that determination as the final determination of the case. He will notify the person concerned, the activity initially referring the case, and other interested agencies of this determination. The Director also will issue instructions for the granting, continuing, denying or revoking of clearance in accordance with the determination. If the determination of the Hearing Board is not unanimous, the Director shall forward the case to the Review Board. He also may forward to the Review Board cases which present novel issues or unusual cir cumstances. b. The determination of the Hearing Board as announced by the Director pursuant to paragraph a above shall be final subject only to: (1) consideration by the Review Board at the request of the Director, the Secretary of Defense, or the Secretary of any military department; or (2) reconsideration by the Hearing Board at the request of the Director on the ground of newly discovered evidence or for other good cause shown. 22. Action by the Review Board a. The Review Board will review each case submitted to it on the written record and will make its determination in each case by majority vote in accordance with the standard and criteria set forth in Section III. It may adopt, modify or reverse the findings or the determination of the Hearing Board. In the event the Review Board modifies the findings or reverses the determination of the Hearing Board, the Review Board determination shall be accompanied by a discussion of the evidence and the reasons relied upon for its action. If the decision is not unanimous, a minority opinion shall be filed. b. After the Review Board has reached its determination, the Director will notify the person concerned, the activity initially referring the case, and other interested agencies of the final determination in the case. The Director will also issue instructions for the granting, continu ing, denying or revoking of clearance in accordance with the determination. c. Determinations of the Review Board shall be final, subject only to: (1) Reconsideration on its own motion or at the request of the person concerned, addressed through the Director, on the ground of newly discovered evidence or for other good cause shown; (2) Reconsideration by the Review Board at the request of the Secretary of Defense or the Secretary of any military department; or (3) Reversal by the Secretary of Defense, or reversal by joint agreement of the Secretaries of the three military departments at the request of one of such Secretaries. 24. Reconsideration of Prior Decisions b. Decisions of the Army-Navy-Air Force Personnel Security Board and of the Screening Divisions of the Eastern, Central and Western Industrial Personnel Security Boards which denied or revoked a clearance may be reconsidered by the Screening Board at the request of the person concerned, addressed through the Director, for good cause shown. 27. Changes in Existing Directives This regulation supersedes the Industrial Personnel and Facility Security Clearance Program approved by the Secretaries of the Army, Navy and Air Force on 4 May 1953, as amended, and the provisions of any other directives which are inconsistent with this regulation. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. BRIEF OF AMERICAN CIVIL LIBERTIES UNION, AS AMICUS CURIAE The Issue The question before this Court is whether or not an employee holding a non-sensitive, non-policy-making position in a non-sensitive agency of the Federal government is entitled to know the nature, source and substance of the charges against him and an opportunity to confront and cross-examine adverse witnesses, in a proceeding to discharge him from employment on the alleged ground that there is a "reasonable doubt" as to his loyalty. Inasmuch as the legal and constitutional issues are ably and fully dealt with in petitioner's brief, we believe it un necessary to burden this Court with a repetition of those arguments. Accordingly, our brief will demonstrate the practical effect of the denial of "procedural due process on those who have been involved in loyalty-security proceedings. We believe that a demonstration of actual instances of proven injustice and false and fantastic accusations against individuals who have been involved in these situations will enable the Court to evaluate the real meaning of the issues posed by this case. POINT I Reliance by the Loyalty Board Upon Confidential Information, the Nature, Substance and Source of Which Was Undisclosed to Petitioner, Is a Denial of Due Process of Law. The Loyalty Board's consideration of secret evidence, the nature, substance and source of which was undisclosed to petitioner in this case is the rule and not the exception in loyalty-security proceedings. Wholly apart from the question of the right to confront and cross-examine adverse witnesses, loyalty and security boards rely to a large measure on so-called "confidential" information which is gathered by the Federal Bureau of Investigation and other investigative agencies in the regular course of their operations.9 The case of "Charles B. Smith" an important official of the United Nations Secretariat,10 is an excellent example. Departments of State, Justice, Commerce and the Judiciary Appropriations for 1951, Hearings, subcommittee of the Committee on Appropriations, Senate, 81st Cong., 2nd Sess. (1950), pp. 136-137. 10 "Charles B. Smith" Respondent v. International Organizations Employees Loyalty Board, "Hearing", Dec. 14, 1953, New York, N. Y., resulting in a determination on Jan. 26, 1954 of "no reasonable doubt as to the loyalty of [Charles B. Smith] to the Government of the United States." The name "Charles B. Smith" is fictitious. The true name will be supplied to the Clerk of the Court on request. |