restoring a man to his job after 22 years of unemployment, right when the legality of this action was before them for decision. They felt they had to hold the case moot, and they finally did hold it moot, but I think part of the reaction in the Greene case, the strength of Chief Justice Warren's opinion in favor of confrontation and crossexamination, was based on what they had seen in the Taylor case.

Senator HRUSKA. Is the committee to understand that that conjecture is a part of the dictum inextricably woven into the case of Greene against McElroy?

Mr. RAUH. No, I don't want the committee to understand that at all, but I do stand by my earlier statement that the dictum, as you term it and I am willing to accept that with some misgivings, but I will accept it-the dictum was a part of the logic that resulted in the holding, what lawyers call the ratio decidendi, or the rationale. I mentioned the Taylor case because, as I said in my prepared statement, it shows the degradation to which the nonconfrontation system may go. It shows, Mr. Chairman, a man out of work for 21⁄2 years. Here was a man stigmatized as a security risk for 211⁄2 years, until we got to the Supreme Court of the United States, on the basis of informants who changed their story in the middle.

Now, I have discussed this with the counsel, and I understand that it is satisfactory to him, if it is to you, sir, to have our brief and our reply brief in the Taylor case put into the record. I might state why I feel this is important. We, I think, collected all of the authorities, all of the congressional authorities, Senator Johnston's committee and this committee, too, at its earlier hearings, and I think it would be valuable if we could put the briefs in at this point.

Senator HRUSKA. Gentlemen, without objection, they will be received for the record.

(The briefs referred to may be found in the appendix.)

Mr. SLAYMAN. Mr. Rauh, if the chairman will permit-
Senator HRUSKA. Mr. Slayman.

Mr. SLAYMAN. I would like to ask you a question here about the next to the last paragraph of the decision in Taylor against McElroy. The paragraph reads:

In view of the fact that petitioner has received clearance, the ultimate relief which he demanded, and in view of the representations of the Solicitor General to the effect that petitioner stands in precisely the same position as all others who have been granted clearance, that the evidence in petitioner's file will not be used against him in the future, and that findings against the petitioner have been expunged, this case is moot.

My question relates to that section, which reads: "The findings against petitioner have been expunged.'

One of the grounds of complaints of much of the correspondence that comes into the Constitutional Rights Subcommittee is that of people who are no longer seeking Federal employment, who want to get something out of their record, and who may or may not be looking for jobs with defense contractors. They want to know how to get things expunged from their personnel files.

Now, you, as a practicing attorney, who has handled cases of many people with difficulties in this area, what do you suggest?

Mr. RAUH. It is a very difficult thing to get your records expunged. I say that even though Mr. Taylor has them expunged by order of the Supreme Court, which I suppose is the highest expunging you

can get in our country. Still I somewhat doubt that the record is expunged. As I was arguing to the Court, to answer your question, Mr. Slayman, all that expunging really does is to put one more piece of paper on top of a file. Nobody burns anything up, and indeed, I am not suggesting that they should, because I don't believe in burning records. The records are there; you can't get rid of them. So the Court used the word "expunging," and as I say, I have it on the highest authority that the adverse Taylor findings have been expunged, but as a practical matter, in the Defense Department file I will bet you a plugged nickel that the only thing that has happened is one more piece of paper has gone on top of the file that was there before, and in the nature of things it couldn't have been anything else.

Senator HRUSKA. Of course, the Supreme Court did not expunge. It simply said that the Solicitor agreed that that part of the record was expunged; isn't that right?

Mr. RAUH. I will tell you, sir, they expunge by pulling these concessions out of the Solicitor General. If you will look at the earlier page, you will see that they got five concessions out of the Solicitor General before they said it was moot. As I told Mr. Taylor, "you have got the most rock-ribbed clearance in American history; you may not have the decision, but you have got a rock-ribbed clearance, because the Supreme Court wrote into its opinion the concessions which they had elicited from the Solicitor General during the argument."

You see, this case was argued in full. It was held moot only after a full argument on the merits, and only after the Solicitor General had made the concessions that the Court referred to in the opinion. I won't take any more time on that. I would like now-you have been very patient and I appreciate it-just to conclude on what ought to be done.

I could stand here and say "Don't do anything," because we are ahead, there has to be confrontation today, but that would be stupid, muleish, and it wouldn't get to the problem. Something has to be done. You can't leave a situation in its present circumstances. There are two possibilities. One is to have an Executive order and one is to have congressional action. I respectfully suggest there should be congressional action.

Suppose the President issues an Executive order tomorrow and says nonconfrontation is the rule of the day. That leaves us in the same condition of lawlessness that we have been in. No lawyer-the Attorney General is a very distinguished lawyer-but no lawyer can assure the President of the United States he has the inherent power to issue such an order. He may have it, but certainly Congress has the more basic authority here. Now, the President yesterday himself expressed doubt as to his authority to do it. I don't know if the chairman noticed this, but in answer to a question yesterday, at his press conference, the President said:

As quickly as that decision

he is referring to Greene, obviously—

was handed down, our people were directed to begin a study of it, because it is one of those things, because they made it on these grounds that proper, that authority had not been delegated. I don't know whether they-what the further decisions would be if we do so delegate it or did attempt it.

46949-60-pt. 3- -3

Now, I read that last part, and I would like to reread it, because some of the earlier part was unnecessary: "I don't know what the further decisions would be if we did so delegate it or did attempt it." I think the President himself is concerned, as he should be, whether he has the inherent power to do this.

Senator HRUSKA. I wonder, Mr. Rauh, if that couldn't be construed this way. If the Congress undertook to act, we would have one or two or maybe several Congressmen, or many Senators, who would say we do not know how much of this bill which is passed will stand up in the Supreme Court. Now, could it not be construed in that way, instead of that the President feels doubt about his authority to proceed?

Mr. RAUH. Let me answer that this way: There are two constitutional issues if the President acts. There is only one constitutional issue if Congress acts.

If the President acts alone, there is a constitutional issue whether he has the inherent power to issue the order of nonconfrontation. Mr. SLAYMAN. And that has not been passed upon.

Mr. RAUH. Precisely, Mr. Slayman, and, indeed, under the Steel Seizure case, there is grave doubt in my mind, as I am sure there is in Mr. Rogers' mind, that the President can do this. In other words, Mr. Chairman, there are two possible ways to attack an Executive order if the President should decide to continue a system which does not have full confrontation. First, he doesn't have the inherent power; and secondly, that it is a violation of due process. There is only one possible defect in congressional action, and that is whether congressional action might violate due process. In other words, Congress clearly has the power to act if it acts in accordance with due process. There is some question whether the President has the same power. Consequently, Congress avoids one of the two possible pitfalls; namely, the pitfall of relationship of power between Congress and the President. And as between Congress and the President, Congress obviously has the power. As between Congress and the Bill of Rights, that is another problem that will have to come up one day. So I urge Congress to act.

Senator HRUSKA. Of course, Mr. Rauh, there is a lot of logic to what you say. On the other hand, when we come to the language that is really in the decision of the case, where the majority opinion says "We decide only that in the absence of explicit authorization from either the President or Congress," then we ought to lose our enthusiasm for its prophetic qualities.

Mr. RAUH. May I explain why I think that is in there, because in the Taylor case we argued this point at length. We argued that the President didn't have the inherent power to set up a security system without confrontation. There was a great deal of questioning of the Solicitor General and of Mr. Doub on this very point. Indeed, Justice Black asked what seemed a very sharp question. He said: “If you have power to do this, to require the contractors with the Government to do all this, how come you need statute setting up the Walsh-Healey standards?"

This seemed to me a very sharp point, that it was Congress who had to handle or had to give the Defense Department authority to have that relationship with the Defense Department suppliers. And I have a feeling in the end Justice Black's question there is going to be

extremely prophetic, that in the end if Congress does not act and if: the President should set up an Executive order extending the present system, that the Steel Seizure case would apply. But why should we risk that? I think we should agree on this point: Since Congress does not have this hurdle of inherent power, since Congress only has the hurdle of due process, which the President also has, why have the President act when there is a question of inherent executive authority which does not apply when Congress acts.

So I simply say that I think the President felt this in his statement. I really feel in this last line that I was reading here that the President really was groping for this same feeling. He has a lot of other things on his mind besides this problem, but I think he dealt with this thing yesterday exactly right. He said, "There is some doubt, if I do delegate it, whether they are going to uphold that in further decisions." I think he is right, and I hope that this is prophetic, that he is going to turn it over to Congress.

Senator HRUSKA. Fortunately, the President is quite articulate. He will have an opportunity to deal with the subject in a more deliberate way and after some study, rather than in response to a question which necessarily leads to an off-the-cuff answer. I don't want to say that that type of discussion is not in order. It is highly in order, and it is well to speculate on it, but I say, fortunately for all concerned, in due time he will undoubtedly make a decision which will have all of the elements in consideration.

Mr. RAUH. Now, in conclusion, sir, I feel Congress should act. I feel it should act most strongly in support of the Court, should buttress the Court's majority view, its dictum, its grounds of decision, part of the reasoning or whatever you call it, but it is clear that it is their view of the Bill of Rights.

I would call upon Congress to adopt a code of fair procedure for all security programs, not only for this one, but for all of them.

I would like to read the code of procedure I suggest and conclude with that, subject only to answering any further questions you might have. We propose the following guarantees of procedural fairness: 1. The right to full confrontation and cross-examination of accusers, and I mean in all cases.

2. The right to detailed charges specifying exactly what is charged. 3. The right to subpena witnesses.

4. The right to be questioned only about activities, statements, and associations which directly relate to the likelihood of the accused making an unauthorized disclosure of secret information to our cold war enemies.

Mr. SLAYMAN. Mr. Rauh, on that point, were you thinking of some of the questions in the Vitarelli background?

Mr. RAUH. Precisely. It was exactly the Vitarelli point I was making there, Mr. Slayman.

5. The right to be found secure unless the record demonstrates substantial reason to believe that the accused might make an unauthorized disclosure of secret information to our cold war enemies.

6. The right to a detailed written decision by the deciding authority. 7. The right to have counsel and subpena fees paid by the Government. May I say there, because this may sound somewhat unusual, Mr. Chairman, that I consider security screening a necessary evil of the cold war. Nobody likes it. Nobody likes to screen his neighbor. I

am sure you don't like to question the security of people, but it is a necessary evil as long as the cold war goes on.

Senator HRUSKA. Why should there be discrimination in this type of case as against a case where a man sitting behind a bank counter is accused of defalcation; why should there be a difference?

Mr. RAUH. Precisely, sir, because this is not the man's fault that he is accused of being a security risk. If there were no cold war, there wouldn't be any security system. A security risk is not a man accused of a crime. He sometimes gets treated by the public as though he is, but it is a different thing. Let me give you an example of what might make me a security risk. Suppose my mother lived in Russia. Now, that might be a relevant consideration. The Russians might put the heat on me to give them some information because they would threaten my mother. I assume this is SOP for the Russians. Now, in that sort of situation I am just a victim of the cold war when I have to undergo security proceedings because my mother is in Russia. I agree that the Government has to have a security screening system as a part of the cold war, it is a necessary evil of it, but it is something that we should minimize to the extent that it is humanly possible, and one of the ways to minimize the damage would be this way.

Mr. SLAYMAN. Well, Mr. Rauh, in such a factual situation as you described, you believe you should know on what ground the Government considers you a security risk? And not the matter of calling you in and saying "you are suspected of being a security risk; what have you got to say in your own defense?"

Mr. RAUH. Precisely, Mr. Slayman, on our item 2 of the guarantees, the right of detailed charges, you must have that, but I am assuming now they tell me "Your mother is in Russia and I think you are the kind of guy who loves his mother too much, and to help her out you would likely give up secret information." This is the sort of thing that isn't my fault, it is not the Government's fault it has to put me through it, it is the fault of the cold-war situation, and I say let the Government help shoulder the burden of this type of necessary evil. Senator HRUSKA. Do we want to say that before the advent of the cold war we never had any situations where the national well-being depended upon confidence with respect to certain matters. It may be in a higher degree now with the cold war, but certainly we cannot say absent the cold war with Russia, or with any other power, that problem didn't exist. I can't quite follow your reasoning.

Mr. RAUH. Mr. Chairman, I won't put this as a challenge, I put this as a suggestion. My suggestion is that never in our history have we had 10 million men subject to security screening, never.

Senator HRUSKA. That goes to degree, doesn't it?

Mr. RAUH. Yes, and I think degree is not unimportant.

Senator HRUSKA. But it doesn't mean the problem didn't exist before, or that it won't exist after the cold war ceases, if that day ever comes in your time or mine.

Mr. RAUH. Well, we can both pray for that. I think the screening is far different here than at any previous time in our history. Let me say why I think so. Communism is lots of things. It is a conspiracy; it is a political party; it is all sorts of things. We get into lots of arguments. You might say it is only a conspiracy, and somebody else