are not even revealed to him because it is thought they would compromise security? Well, the Congress now has an opportunity to lay down the outlines of an industrial personnel security program that would give legitimate consideration to the needs of national security and to the requirements of due process. It has already legislated the elements of administrative due process in the Administrative Procedure Act of 1946, and it can combine those basic elements with its unique power to get the facts from the executive agencies that have been so reluctant to make any withdrawal from their extreme assertions about what security requires. In urging a fresh legislative look at the problem, the American Civil Liberties Union is not contending that there should be no personnel security programs, nor are we contending, any more than did the majority in the Greene case, that anyone has a constitutional right of access to military secrets. We do contend, we think with the majority, that when his life's occupation is closed to a man by governmental action, that action must satisfy the historic elements of due process of law. Now, Senator, I would like, if I may, to take off my Civil Liberties Union hat and to continue for a few minutes with some observations that I would like to make in an individual capacity as a so-called expert on this subject, invited here in that capacity. Senator HRUSKA. Well, you are very welcome to do that. We want to get the full benefit of your knowledge on the subject. However, I am mindful of the time limitation binding upon both Mr. Rauh and myself. Mr. BROWN. I am watching the clock and I will move just as fast as I can, and at the same time feasible with making my points. What I now have to say is not in any disagreement with what I have been saying, it simply carries it further. I want now to make the central point that the Congress should now take the opportunity to review the whole scope of these programs to see if they can't be cut back some, because there are terrible dilemmas involved with respect to security and individual rights, and one way to avoid those dilemmas is simply not to go through these proceedings in such wide areas as we now do. I have surveyed rather hastily, because of the short time since the opinion was handed down, the effect of the Greene case, the immediate effect of the Greene case on our other security programs, and in this outline here I summarize my rather necessarily rather tentative opinion as to what the consequences of that case are for other programs. So far as I can see, on this point of Presidential or congressional authorization, the present Federal employees security program is not affected because there is pretty explicit direction, both in the Summary Suspension Act of 1950 and in Executive Order 10450, to withhold information on security grounds, and there is similar authorization in the relatively unimportant International Organizations Employees program. But if you look at the statutory authority for the Atomic Energy Commission's program for contractors and contractors' employees, you do not find, I think, the explicit directions which the Court said must be there in order for the Court to find that noncon 46949-60-pt. 3- 2 frontation was authorized. So I suggest, with some hesitation because I have not had a chance to make a really close study of this, I suggest that the whole atomic energy program is under a similar blight, just as is the industrial security program, in that the nonconfrontation provisions of their regulations would seem for the moment, until there is some further congressional or Executive action, to be invalid. The same observations I would make with respect to the port security program, that neither the statute nor the Executive order point to the denial of confrontation, which the Court said it would want to see before it would find regulations valid. Finally, with respect to the question of military discharges, which this committee went into with great effectiveness in 1955, the question of less-than-honorable discharges based on matters not connected with military service, if the rationale of the Greene case is applicable to that field and I would hesitate to say whether it is or not-but if it is, then the Defense Department regulations with respect to discharges have the same infirmity, I think. There is no statute, as far as I know, which confers on the Defense. Department the power to give less-than-honorable discharges in proceedings which would withhold confrontation and cross-examination. So the opportunity of the Congress to go into this field is an even broader one than is raised by the industrial security program, because I suggest that the Congress not only has the opportunity, but the necessity of reviewing the atomic energy program, and the port security programs as well, because of the likelihood that they are also affected adversely by the recent decision of the Court in the Greene case. Senator HRUSKA. Wasn't that brought out, Mr. Brown, by Mr. Justice Clark in his dissent? Mr. BROWN. He suggested it, but he did not go through and make any references to the statutes and the Executive orders. He suggested that the employees program was under a cloud, but I think he meant with respect to the dicta in the case about nonconfrontation, because as far as the immediate holding of the case is concerned, I do not think it has any effect on the program for civil service. That remains untouched for the moment. Senator HRUSKA. He indicated that the decision might have effects on the Government security program at large, without specifying anything? Mr. BROWN. That is right, at large, that is correct. So to move on here as expeditiously as I can, I would like to urge on this committee, in any further consideration that it gives to this subject, that it look as closely as it can into this proposition: that the problem could be diminished and perhaps resolved by cutting down the coverage of the programs. If they affected fewer people and in a less drastic way, they would be far more tolerable. The most direct suggestion that has been made in that respect by the Wright Commission-it is included in Senator Thurmond's bill, I think it is, by a very quick reading; it was included in the report of the very distinguished committee of the association of the bar; it is one that I endorse myself in my own work on the subject, and that is that in this whole area of screening for access to classified material, if we would only focus our efforts on access to the categories labeled "secret" and "top secret," and would put aside the great carloads of material that are simply classified "con fidential," we would then get the programs into a much more manageable compass, affect far fewer people, create far better reemployment opportunities for those denied access to secret and top secret material, and in general cut the program down to a far more manageable size. Senator HRUSKA. Of course, to make a division as to persons or as to job assignments would be quite an assignment. Mr. BROWN. There is a dividing line now, Senator, between those who are clear and those who are not. My own preference would be to leave the confidential classification as a warning, to lock this up, don't take it and throw it around the streets, but not require any personnel clearance until you get to secret and top secret. That would just mean that you draw the line in another place. Instead of drawing it on one side of confidential, you draw it on another. As far as making these internal decisions as to whether a person is entitled to access to this material, they are already made. The atomic energy program makes a distinction between persons who require access only to confidential material and those who require access to the higher classifications. These same industrial security regulations that were involved in the Greene case were amended only in March of this year to require hearing boards, when there was a case, to make a finding in terms that the individual is cleared for access to such-andsuch classifications, secret but not top secret, and so on. I, myself, have no idea how these fine lines are drawn internally, but they are drawn and can be drawn, so I would urge, as an initial step, the Senators in considering legislation, to give very careful consideration to this possibility of very much diminishing the coverage of the programs and focussing on the really important information and material. As for the port security program, which has a wholly unnecessarily broad sweep over all maritime personnel, I suggest-and so did the association of the bar committee that it has served whatever usefulness it ever had, and should be abolished. It is a program run by the Coast Guard, which seems to be a curious organization to be running a security program of this sort anyhow, and I would urge the committee, if it gets the opportunity, to look into that program. It is a very odd one. It has been going on for 7 or 8 years. It has had very rough sledding in the courts, and yet it continues to affect the livelihood of hundreds of thousands of merchant mariners. Senator HRUSKA. What is that? Mr. BROWN. The port security program, administered by the Coast Guard, under Executive Order 10173. I will not go into any more details about that at the moment, except to say, I think it would bear some close examination, which it has never had, as far as I know, by any of the committees who have looked into various phases of this subject. So to conclude, and leave some time for Joe Rauh, just as the Court in this case tried to avoid and did avoid the constitutional issue by turning to this question of the validity of the regulations, so the Congress or the Executive could pursue in a somewhat related way a similar technique, and perhaps avoid the constitutional problems by saying we are going to get these delicate and difficult personnel investigations back to the narrowest scope consistent with the national security. You will find, as I say, a number of people who have made a close study of this problem who think that the programs could be cut back very considerably without impairing their effectivenes. Then, if that was coupled with some sort of effective arrangement with respect to transfer rights or relocation rights so that if a person could not have access to top secret material, he needn't necessarily get fired, he needn't necessarily be forclosed from practicing his profession, as Mr. Greene was, then you would not have such hardships involved, and then when this business came back to the Court, the Court might say, "Well, now, the Congress has made an earnest effort to deal with this, it has minimized as far as it could the risk of injury to the individual,' and then the Court might say, "within a very limited category of cases, if you make the injury less, if you make some affirmative provision so that the person, if he is entitled to pursue his career in an ordinary way, can do it, then perhaps the due process issues can be overcome." Senator HRUSKA. Mr. Slayman, have you any questions? Mr. SLAYMAN. No; I have no further questions. Thank you, Mr. Chairman. Senator HRUSKA. Thank you, Professor Brown. You have been very helpful and we appreciate your coming. Mr. BROWN. Thank you, sir, for the opportunity to appear. DUE PROCESS OF LAW IN FEDERAL LOYALTY-SECURITY PROGRAMS Statement by Ralph S. Brown, Jr., for the American Civil Liberties Union My name is Ralph S. Brown, Jr., of Guilford, Conn. I am appearing on behalf of the American Civil Liberties Union. I am a member of its national board of directors, and chairman of its Connecticut affiliate. I am also, as a professor of law at Yale, the author of a book entitled "Loyalty and Security," published in 1958 by the Yale University Press. However, the views expressed in this statement are based on policies that have from time to time been adopted by the national board of the Civil Liberties Union. I will develop my own views on certain aspects of the subject in a separate statement. The American Civil Liberties Union is a national nonpartisan organization of some 40,000 members, which welcomes the support of all those-and only those whose devotion to civil liberties is not qualified by adherence to Communist, Fascist, KKK, or other totalitarian doctrine. The union, through its staff, its board, and its State and local affiliates-now 27 in number-has made a close study of loyalty and security programs ever since their beginnings in World War II and their revival in the cold war that followed. We have participated in many of the important court cases arising under these programs, and have made a number of appearances before congressional committees concerned with them. The Especially because these hearings are focussed on the industrial personnel security program of the Department of Defense, we have been anxiously awaiting the decisions of the Supreme Court in the Greene and Taylor cases. decision in the Greene case, handed down only 3 days ago, on Monday, June 29, is a tribute to the prescience of the chairman of the subcommittee, who pointed out in the release of May 25 announcing these hearings that the industrial personnel security program "lacks a clear statutory base or constitutional authorization." This observation is very close to the holding of the Court. Most of us did not anticipate the outcome of the case with such clarity; consequently this statement, because of the pressure of time, is necessarily somewhat tentative. The Court in the Greene case did not meet head-on the constitutional issues of due process in loyalty and security cases. Instead, it used a more prudent technique that was also employed in the passport cases, which this subcommittee has considered, and earlier in Harmon v. Brucker, the case that chal lenged the propriety of less-than-honorable discharges from the Army based on activities and affiliations outside military service a matter that was also energetically examined by this subcommittee in 1955. In Greene, essentially as in these earlier cases, the Court found that there was no congressional or Presidential authorization for an administrative program that raised such major constitutional issues. The actual holding of the Greene case, is that "in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination." In the result eight Justices joined. Three of the eight concurred specially to say that they wished to intimate no views about the validity of the unauthorized procedures, and the opinion of the Chief Justice for the Court disclaimed deciding whether the procedures would be valid if authorized. But that opinion included these significant statements on the central due process issues of confrontation and cross-examination: "Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the sixth amendment which provides that in all criminal cases the accused shall enjoy the right 'to be confronted with the witnesses against him.' This Court has been zealous to protect those rights from erosion. It has spoken out not only in criminal cases, but also in all types of cases where administrative and regulatory action were under scrutiny. * Under the present clearance procedures not only is the testimony of absent witnesses allowed to stand without the probing questions of the person under attack which often uncover inconsistencies, lapses of recollection, and bias, but, in addition, even the members of the clearance boards do not see the informants or know their identities, but normally rely on an investigator's summary report of what the informant said without even examining the investigator personally." (Footnotes and citations omitted.) The implications of these statements do indeed, as Justice Clark said in his dissenting opinion, put a "cloud over both the employee security program and the one here under attack." With the Court's characterization of the procedures, and its demonstration of their incompatibility with "our traditional ideas of fair procedure" the American Civil Liberties Union is in full accord. Its own extensive participation in loyalty and security cases, and its study of the results of other investigations of the programs, have led it to hold the position that only full confrontation can avoid grave injustice. This position has been reached with full awareness of the counterarguments advanced for protecting sources of information. Indeed, at one stage of our consideration of this difficult dilemma we thought that it might be permissible to protect truly secret undercover informants. Our brief amicus in the Greene case suggested that for the purpose of reaching a decision in that case it might be sufficient to decide that casual informants must be brought forward, without reaching the status of undercover informants. This was based on our reading of the record in the case, from which it could be inferred that none of the sources of information used against Greene needed concealment for any valid security reasons. But in a footnote to that brief we said that "It is the union's position that petitioner was entitled to confront and crossexamine all the witnesses who supplied the adverse information upon which the Defense Department's Industrial Personnel Security Boards relied. Even a professional or 'under-cover' agent's testimony 'might have been caused by a psychiatric condition.' Mesarosh v. United States (352 U.S. 1, 8.)” Confrontation and cross-examination are not the only elements of due process that are often wanting in security cases. Four other defects may be mentioned. First, the same alleged need for concealing the sources of derogatory information leads to inadequate charges, so that the employee does not know what he bas to defend against. Second, in the hearings, additional matters are often raised which have no relevance to the charges, or for that matter to the criteris |