3. Finally, in the modification in the Regulation presented to this Court on March 24th, the Government implies, without even expressly so stating or giving any reason therefor, that petitioner was cleared because of the change in the Regulation to take into account different "levels of clearance." The Government's elusive and constantly varying statements to this Court as to the reasons for petitioner's clearance and as to the new policy being adopted in the modified Regulation are confusing to petitioner, as they no doubt are to this Court. But we respectfully suggest that one point does emerge without confusion-the Government had no new precise policy on December 31st affecting petitioner's case in any way and its sole reason for "clearing" petitioner was the proximity of this Court's process. We turn now to indicate how the Government's tortuous course in this case actually serves to reveal petitioner's extraordinary vulnerability to renewed proceedings rather than to assure against such renewal. B. Petitioner's Extraordinary Vulnerability to Renewed Proceedings The Government refuses to exonerate petitioner (Memorandum in Reply 4-7). Although the Defense Department has expunged the findings against him, he remains a perjurious ex-Communist for the purposes of the Industrial Security Program. As such, he is extraordinarily vulnerable to renewed proceedings. was questioned by petitioner in his Supplemental Memorandum (at p. 5) on the ground that no regulation or instructions to the field placing the policy into effect had been reported to the Court. If any such policy was actually in effect on February 13, when the Government's Memorandum in Reply was filed, it had a short life, for it was abandoned by March 24th when the "modification" in the Regulation was presented to this Court. If the Government's representations in its February 13th Memorandum in Reply on Mootness were correct, then petitioner was cleared because even a perjurious ex-Communist may hold the position of a lathe operator with access to "secret" information. But, as we pointed out in our February 17th Supplemental Memorandum on Mootness, a security clearance based on a particular job position would be an exceptionally tenuous one. In petitioner's work at Bell Aircraft, the classified materials his job requires him to see are not fixed but changing; at any moment the tenuous balance of his "position and personal history" may shift without any initiative on his part. Furthermore, he may himself desire to obtain different work at Bell or elsewhere and the slightest shift in job position would bring a new round of security proceedings. Therefore, if the Government's representations that petitioner's clearance was based entirely on the job position he holds were correct, then petitioner, as one still deemed a perjurious ex-Communist, may at any moment be subjected to renewed proceedings. But now that the "modified" Regulation has finally appeared, there is a very real question whether the Government's representations referred to in the previous paragraph were correct. The change in the Regulation actually promulgated takes no account of job position; all it does is refer to level of clearance which has always been considered (n. 10, p. 21, supra). Although the Government refuses to say how this "level of clearance" consideration affects petitioner, we cannot believe that the Government would suggest to this Court that a perjurious ex-Communist may have access to all information at the "secret" level regardless of job position. Since such a suggestion is totally implausible, it seems far more likely that petitioner's clearance had nothing whatever to do with the "modified" Reg ulation, and was either based upon the job position policy now abandoned or, as we have already suggested, was simply based upon the proximity of this Court's process. In either event, the removal of this Court's process would leave petitioner immediately in jeopardy of renewed proceedings. Petitioner's vulnerability to renewed proceedings can fairly be called unique. Unlike every other security defendant who has been cleared, petitioner has been granted "clearance" without exoneration on the merits of the extremely serious charges against him. As the only accused "cleared" without being found either secure or innocent of grave security charges, petitioner holds the most precarious and momentary security clearance of any employee now subject to the Industrial Security Program. No more than private wrongdoers may the Government be allowed to tamper with justice in an attempt to prevent equitable relief which might limit the Government's ability to continue its wrongful conduct. Accepting the Government's own formulation that this Court retains jurisdiction where "there is strong, real, or substantial likelihood that the challenged Government action will be repeated against the particular person," it is eminently clear that petitioner's case meets that test. As long as petitioner remains so clearly subject to the unfair hearing procedure against which he seeks relief, this Court has the power, consistently recognized since Trans-Missouri and Southern Pacific, to adjudicate his case. A serious and real controversy continues between petitioner and his Government over which this Court retains its constitutional power of adjudication. Conclusion It is respectfully submitted that the judgment of the District Court be reversed with instructions to grant petitioner appropriate declaratory and injunctive relief. AMERICAN FEDERATION OF LABOR AND Interest of the AFL-CIO Argument INDEX I. The Scope of Loyalty-Security Programs Is a II. The Scope of Federal Loyalty-Security Pro- A. Denial of Right of Confrontation as a B. Federal Civilian Employees C. Atomic Energy Commission D. Industrial Personnel Security Program F. International Organizations Employees G. Military Personnel Security Program III. The Scope of State and Local Loyalty-Secu- A. Public Employees' Loyalty Oaths B. Administrative Programs C. Loyalty Inquiries Connected with State IV., Summation: The Scope and Impact of Loy- Adler v. Board of Education, 342 U.S. 485 Cole v. Young, 351 U.S. 536 Communist Party v. Subversive Activities Control Board, 351 U. S. 115 46949 0-60-pt. 3-48 1691 |