of this title may be of any type which in the opinion of the agency head will promote the best interests of the Government. * * * Executive Order 10501, December 15, 1953, 18 Fed. Reg. 7049: Safeguarding Official Information in the Interests of the Defense of the United States WHEREAS it is essential that the citizens of the United States be informed concerning the activities of their government; and WHEREAS the interests of national defense require the preservation of the ability of the United States to protect and defend itself against all hostile or destructive action by covert or overt means, including espionage as well as military action; and WHEREAS it is essential that certain official information affecting the national defense be protected uniformly against unauthorized disclosure: NOW THEREFORE, by virtue of the authority vested in me by the Constitution and statutes, and as President of the United States, and deeming such action necessary in the best interests of the national security, it is hereby ordered as follows: 7(b) Dissemination Outside the Executive Branch. Classified defense information shall not be disseminated outside the executive branch except under conditions and through channels authorized by the head of the disseminating department or agency, even though the person or agency to which dissemination of such information is proposed to be made may have been solely or partly responsible for its production. APPENDIX B December 27, 1947 Statement Released by Seth W. Richardson, Chairman, Loyalty Review Board 33 The employe will not be permitted to examine or inspect this report of the bureau, at any time, and such deprivation gives rise to one of the very controversial points involved in the operation of the entire loyalty program. The point has been vigorously presented to us as follows. "Every employe accused of disloyalty should be given the right to confront his accusers, and subject them to crossexamination." This contention has obvious force, and presents grave considerations to us. Why have we been unable to accept it? In nearly all cases the bureau secures the facts for inclusion in its reports from confidential sources, many of them closely connected with considerations sounding in national security. We are advised by the bureau, that in its experienced opinion, practically none of the evidential sources available will continue to be available to the bureau if proper secrecy and confidence cannot at all times be maintained with respect to the original source of information, and that if the source of such information is to be disclosed-save in exceptional cases-the bureau can be of much less service to the board in making the essential basic investigation. In cases where sources of evidence are not confidential, and disclosure of sources, possibly with pertinent oral testimony, will not tend to hinder or impede the investigative work of the bureau, we will make every reasonable effort to extend the scope of the evidential source disclosure, to the affected employe, at the hearing. But it must be appreciated that in the great majority of the cases, we apprehend that disclosure of evidential sources to the employe, and the resulting opportunity of cross-examination of such sources by him, will probably not be practicable. We recognize that the use of such a report as evidence by the various loyalty boards, without disclosure of the con 33 The entire statement, a portion of which is here reproduced, is printed in the New York Times, December 28, 1947, at p. 28. tents to the employe, does subject the employe to nonconfrontation of witnesses against him, and does deprive him of the right of cross-examination of such witnesses-a situation which ought to, and does, give rise to the most serious questions in the minds of the general public. So serious is such a situation that it has been strongly urged upon us by responsible persons, that, rather than permit such a situation to exist, the entire loyalty program should be abandoned, even if the Government should thereupon be compelled to cease attempting to screen out disloyal employes. We have given the matter the most careful consideration, and we can see no way in which the loyalty program may have the benefit of the skilled investigation of any competent investigative agency, and particularly of the Federal Bureau of Investigation, unless the facts received in confidence by the investigators can be kept entirely confidential at all times and under all conditions. We were, therefore, faced with the decision whether to refuse at all times to disclose the bureau report to the employe-save in the exceptional cases noted above-or to advise the Civil Service Commission that, in our opinion the proposed loyalty program as planned should not be permitted to function. After the most careful consideration, we have concluded that the objection to non-confrontation and no cross-examination, while important, is not essentially controlling. BRIEF FOR THE RESPONDENTS INDEX Opinion below.. Questions presented. Statutes and regulations involved.. 1. Prior to the filing of the complaint Greene v. McElroy, 254 F. 2d 944, certiorari granted, 358 U.S. 872, No. 180, this Term.. Miscellaneous: Defense Department Directive 5220.6 (20 Department of Defense Industrial Security Section 66.6(c) |