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attorney, former law clerk to Supreme Court Justices Cardozo and Frankfurther, and legal counsel for Charles Allen Taylor in the current Supreme Court case. In November 1955, the subcommittee conducted extensive hearings covering these subjects; the printed record of those hearings is entitled "Security and Constitutional Rights." A few copies are still available in the subcommittee

office.

[For release Thursday p.m., June 25, 1959]

WASHINGTON, D.C.-U.S. Senator Thomas C. Hennings, Jr., (Democrat of Missouri), chairman of the Senate Constitutional Rights Subcommittee, today made the following statement in connection with the Vitarelli case:

"It has come to my attention that William V. Vitarelli is having difficulty obtaining back pay due him because he was wrongfully discharged as a so-called "security risk" more than 5 years ago by the Department of the Interior.

"Both the Departments of Interior and Justice seem to agree that he is entitled to such back pay.

"Mr. Vitarelli originally appeared as a witness before the Constitutional Rights Subcommittee in 1955 during the course of our investigation of the Federal loyalty-security programs. As I understand the facts, Vitarelli was discharged approximately 5 years ago by the Department of the Interior as a socalled 'security risk'. He fought his case through the courts and on June 1 of this year the Supreme Court of the United States held that he had been improperly dismissed, and held, in effect, that he should be reinstated. Now, despite this Supreme Court decision in his favor, and despite the fact that the Department of the Interior and the Department of Justice both agree that he should receive back pay, the General Accounting Office takes the position that there is no statutory authority by which Mr. Vitarelli can be paid. Арparently the only recourse Mr. Vitarelli now has under the law is to sue the Government for his back pay in the Court of Claims.

"Simple justice demands that Mr. Vitarelli be given his back pay as quickly as possible. If, as the General Accounting Office asserts, no statutory authority now exists by which a person in Mr. Vitarelli's position can be paid, Congress should act immediately to remedy this defect in the law. It is ridiculous to have a man spend 5 years vindicating his rights against the Government, only to find after he is proved right by the Courts that he must bring another suit against the Government in order to obtain money everyone agrees is due him. "I have asked the staff of the Constitutional Rights Subcommittee to give me a complete report on the current state of the law as it applies to Mr. Vitarelli's case, and if legislation actually is needed to remedy this type of situation, I intend to draft such legislation and introduce it in the U.S. Senate at the earliest opportunity."

SENATE CONSTITUTIONAL RIGHTS SUBCOMMITTEE

STAFF MEMORANDUM

JUNE 17, 1959.

INDUSTRIAL PERSONNEL SECURITY REVIEW PROGRAM-AND SOME COMMENTS THEREON BY THE COMMISSION ON GOVERNMENT SECURITY

The industrial personnel security review program is concerned only with authorizations for access to Government-classified information and materials. The persons concerned are contractors to the Government and their employees. The program does not apply to Government employees.

The Department of Defense and the Atomic Energy Commission account for practically all contracts which involve classified information. The number of persons in industry requiring clearance is about 3 million.

In the fiscal year ending July 31, 1956, 418 cases had been considered by the Office of Industrial Personnel Security Review in the Department of Defense. Currently, about 300 cases are considered annually.

CONSTITUTIONAL AND STATUTORY AUTHORITY

The Commission on Government Security observed in its report dated June 1957:

"It is clear that there is no statute (or Executive Order) which expressly authorizes the Department of Defense to establish an industrial security program. A legal basis for the program may, however, be found in the implied authority contained in one or more * ** statutes (or Executive Order) [Emphasis supplied.] [Report, p. 250.]

In recent litigation, the Government contended that

"The power of the executive department to control, in the internal operations of the executive branch, the dissemination of secret military information in its custody is peculiarly and primarily an executive power. It does not depend upon a congressional grant of power, but flows from the constitutional vesting of the 'executive power' in the President and the President's powers as 'Commander in Chief of the Army and Navy' * * *

"If, contrary to our view, it be thought that there must be some statutory grant of power for the executive branch to have and keep military secrets, it can be inferred, as a necessarily implicit authority, from the generalized provisions of the legislation providing for the organization of the defense establishment and giving to the Secretaries the power to administer their respective departments and to control departmental property and procurement. National Security Act of 1947, 61 Stat. 495, as amended, 5 U.S.C. 171, et seq." (Government's brief in Greene v. McElroy.)

The Armed Services Procurement Act of 1947, 62 Stat. 21, 41 U.S.C., 151–161 (1952) has also been cited by the Government in its brief in Taylor v. McElroy as authorization for the program.

The industrial personnel security review program was established under “authority" of Executive Order 10501 (Dec. 3, 1953-18 Fed. Reg. 7049).

STRUCTURE OF THE PROGRAM

The Office of Industrial Personnel Security Review in the Department of Defense is headed by a civilian director. The quasi-judicial functions are assigned to three boards (1) a central screening board located in Washington, (2) three hearing boards-New York City, Chicago, and San Francisco, and (3) a review board located in Washington.

The screening board is composed of three members, military or civilian. The hearing board is composed of three members, one of whom must be a civilian. The chairman of the hearing board must be a civilian. The review board must have at least one civilian member and one qualified lawyer member. Appointments are by the Secretaries of the three military services.

PROCEDURES SCREENING BOARD

Cases involving questions of clearance are forwarded by the concerned military department to the Washington office. They are first considered by the cen

tral screening board. Favorable determinations must be by unanimous vote. If a determination is made to suspend or deny clearance, the individual concerned is notified and supplied with a statement of reasons. The individual may then request a hearing.

HEARING BOARD

Hearings are not conducted with the formality of a court proceeding, but rather as administrative inquiries. The board may request the attendance of witnesses, but has no authority to pay witness fees or travel expenses. The person concerned may be represented by counsel and may present witnesses in his behalf. The board is assisted by a security adviser and a legal adviser.

Strict rules of evidence are not to be followed. The board may admit in evidence any material it regards of probative value. Hearsay evidence may be admitted and is to be accorded such weight as, in the opinion of the board, the circumstances warrant.

Determination is reached by majority vote.

If the vote is unanimous and the director is satisfied with the record, he may announce the determination as final. If the decision is not unanimous or he feels the case presents novel issues or unusual circumstances he forwards the case to the review board.

REVIEW BOARD

The review board, after examination of the case, may modify or reverse the decision of the hearing board. The decision is final, subject to reconsideration on its own motion, or at the request of the Secretary of Defense or the Secretary of one of the military departments. The review board may be reversed by the Secretary of Defense or by the Secretaries of the military departments by joint agreement.

APPRAISAL OF THE PROGRAM

The Commission on Government Security reported:

"Approximately 60 percent of the cases considered by the central screening board since its establishment in 1955 have resulted in clearance for the individual concerned at that level. This figure contrasts with experience under the preceding program (1953-55) where clearances were issued in only 37 percent of the cases by the regional screening boards. At the same time, when the cases unfavorable to the employee were subjected to the test of the hearing and review procedures, decisions reached by the central screening board were sustained in approximately 60 percent of the cases, as compared with 44 percent sustained under the 1953-55 program” (report, p. 263).

The Commission on Government Security recommended the continuation of an industrial security program. However, it made a number of recommendations modifying the present program.

1. Change of standard.—Present: Clearance shall be denied or revoked if it is determined, on the basis of all the available information by the person concerned is not clearly consistent with the interests of national security.

Recommended: Clearance should be denied or revoked if it is determined, on the basis of all the available information, that access to classified information and materials will endanger the common defense and security.

2. Criteria. The present 22 criteria to be reduced to 14, eliminating multiple association criteria and that of remote association.

3. Coverage. Under present practice applications for clearance will not be accepted for job applicants. The Commission has recommended a procedure for prehiring clearances for access to secret and top-secret work.

4. The Commission recommended against expansion of the industrial security program so as to authorize the exclusion of designated individuals from access to any part of a defense facility.

5. The Commission recommended retention of the central screening board in the Office of Security in the Office of the Secretary of Defense.

6. The Commission recommended that confrontation of persons who have supplied derogatory information should be allowed except for regularly established confidential informants engaged in obtaining intelligence and internal security information for the Government, and casual informants who have given information on the condition that they will not be called upon to testify or otherwise be subject to subpena. In the industrial security program such confrontation would be limited to the question of loyalty.

7. The Commission recommended the right of subpena of witnesses where there is a right of confrontation.

BILLS RELATING TO FEDERAL LOYALTY SECURITY PROGRAMS, INTRODUCED IN THE SENATE IN THE 86TH CONGRESS, 1ST SESSION

[S. 776, 86th Cong., 1st sess.]

A BILL To authorize the Federal Government to guard strategic defense facilities against individuals believed to be disposed to commit acts of sabotage, espionage, or other subversion

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Defense Facilities Protection Act."

SEC. 2. The Congress hereby finds that—

(1) the history of modern warfare has established that the defense of any country is greatly dependent upon the effective and continued operation of its industrial economy and the full utilization of its productive capabilities. In time of war or of preparation for defense from attack by a potential aggressor, injury to the industrial economy, or impairment of the productive capabilities of a country may severely curtail its military effec tiveness, and such injury or impairment has become a major objective of aggressor nations in their preparation for and prosecution of war;

(2) there exists in the United States a limited number of individuals as to whom there is reasonable ground to believe they may engage in sabotage of the industrial economy and productive capabilities of the United States, espionage, or other subversive acts, in order to weaken the power and ability of the United States to cope with actual or threatened war, invasion, insurrection, subversive activity, disturbance, or threatened disturbance of international relations;

(3) in such circumstances it is essential that, without impairing the rights or privileges of the great bulk of loyal United States citizens, such individuals be barred from access to facilities injury to which would be harmful to the industrial economy and productive capabilities of the United States, and, therefore, to its military effectiveness.

SEC. 3. (a) Whenever the President finds by proclamation or Executive order that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or of disturbance or threatened disturbance of the international relations of the United States, the President is authorized to institute such measures and issue such rules and regulations as may be necessary to bar from access to any defense facility or facilities individuals as to whom there is reasonable ground to believe they may engage in sabotage, espionage, or other subversive acts. The President may perform any function vested in him by this Act through or with the aid of such officers or agencies as he may designate.

(b) Except as provided in subsection (c) of this section, no measure instituted, or rule or regulation issued, pursuant to subsection (a) of this section shall operate to deprive any individual of access to any defense facility or facilities unless such individual shall first have been notified of the charges against him and given an adequate opportunity to defend himself against the charges. Such charges shall be sufficiently specific to permit the individual to respond to them, and such opportunity shall, if the individual so desires, include a hearing. The Administrative Procedure Act shall not be applicable to proceedings under this Act. Nothing contained in this Act shall be deemed to require any investigatory organization of the United States Government to disclose its informants or other information which in its judgment would endanger its investigatory activity: Provided, however, That in the event that such information is not disclosed the individual charged shall be furnished with a fair summary of the information in support of the charges against him.

(c) The measures instituted, or rules or regulations issued, pursuant to subsection (a) hereof may operate to bar summarily any individual from access to any defense facility or facilities provided that such individual shall be notified in writing of the charges against him within fifteen days from the time he is so barred and given an adequate opportunity to defend himself against such charges, including, if he so requests, a hearing within thirty days of the date of such request. Reasonable continuances may, however, be permitted if consistent with expeditious disposition of the matter. A determination shall be made and transmitted to the individual affected within thirty days from the date of the termination of the hearing or, if no hearing is requested, of the submission of the individual's defense to the charges, and if administrative proceedings are provided by the rules or regulations for review of any such determination they shall be promptly determined. In the event that the summary bar against such individual is removed as a result of any proceeding, the individual shall be compensated by the United States solely for his loss of earnings in or in connection with any defense facility during the period he was so barred.

(d) As used in this Act the term "defense facility" shall have the same meaning as it has in title I of the Internal Security Act of 1950, as amended, but shall not include vessels, piers, or waterfront facilities.

SEC. 4. Whoever willfully violates any rule, regulation, or order issued pursuant to the provisions of this Act, or knowingly obstructs or interferes with the exercise of any power conferred by this Act shall, upon conviction thereof, be punished by a fine of not more than $10,000 or by imprisonment for not more than five years, or both.

SEC. 5. Nothing contained in this Act shall be construed to deprive any individual of any rights or benefits conferred upon him by the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947.

[S. 1916, 86th Cong., 1st sess.]

A BILL To establish a Central Security Office to coordinate the administration of Federal personnel loyalty and security programs, to prescribe administrative procedures for the hearing and review of cases arising under such programs, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cit as the "Federal Security Act".

SEC. 2. Definitions.

TABLE OF CONTENTS

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CHAPTER 3. HEARING AND REVIEW OF LOYALTY AND SECURITY QUESTIONS

SEC. 30. Hearings required.

SEC. 31. Review required.

CHAPTER 4. CIVILIAN EMPLOYEES LOYALTY PROGRAM

SEC. 40. Investigation of civilian employees and applicants.
SEC. 41. Evaluation of personnel investigations.

SEC. 42. Loyalty hearings and determinations.

SEC. 43. Transfer and suspension of civilian employees.

SEC. 44. Readjudications.

CHAPTER 5. INDUSTRIAL PERSONNEL SECURITY PROGRAMS

SEC. 50. Personnel security programs required.
Sec. 51. Investigation of contractor representatives.
SEC. 52. Evaluation of personnel investigations.
SEC. 53. Security hearings and determinations.

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