Greene v. McElroy/Dissent Clark

by Tom C. Clark

United States Supreme Court

360 U.S. 474

Greene  v.  McElroy

 Argued: April 1, 1959. --- Decided: June 29, 1959

Mr. Justice CLARK, dissenting.

To me this case is both clear and simple. The respondents, all members of the President's Cabinet, have, after a series of hearings, refused to give Greene further access to certain government military information which has been classified 'secret.' The pertinent Executive Order defines 'secret' information as

'defense information or material the unauthorized disclosure of which could result in serious damage to the Nation, such as by jeopardizing the international relations of the United States, endangering the effectiveness of a program or policy of vital importance to the national defense, or compromising important military or defense plans, scientific or technological developments important to national defense, or information revealing important intelligence operations.' Exec. Order No. 10501, Nov. 5, 1953, 18 Fed.Reg. 7049, 3 CFR (1949-1953 Comp.), p. 979, § 1(b), 50 U.S.C.A. § 401 note.

Surely one does not have a constitutional right to have access to the Government's military secrets. ^[1] But the Court says that because of the refusal to grant Greene further access, he has lost his position as vice president and general manager, a chief executive officer, of ERCO, whose business was devoted wholly to defense contracts with the United States, ^[2] and that his training in aeronautical engineering, together with the facts that ERCO engages solely in government work and that the Government is the country's largest airplane customer, has in some unaccountable fashion parlayed his employment with ERCO into 'a constitutional right.' What for anyone else would be considered a privilege at best has for Greene been enshrouded in constitutional protection. This sleight of hand is too much for me.

But this is not all. After holding that Greene has constitutional protection for his private job, the Court has ordered the President's Cabnet members to revoke their refusal to give Greene access to military secrets. ^[3] It strikes down the present regulations as being insufficiently authorized by either the President or the Congress because the procedures fail to provide for confrontation or cross-examination at Board hearings. Let us first consider that problem.

After full consideration the Court concludes '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 so doing, as I shall point out, it holds for naught the Executive Orders of both President Roosevelt and President Truman and the directives pursuant thereto of every Cabinet officer connected with our defense since 1942 plus the explicit order of General Dwight D. Eisenhower as Chief of Staff in 1946. In addition, contrary to the Court's conclusion, the Congress was not only fully informed but had itself published the very procedures used in Greene's case.

I believe that the Court is in error in holding, as it must, in order to reach this 'authorization' issue, that Greene's 'right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference' is protected by the Fifth Amendment. It cites four cases in support of this proposition and says compare four others. As I read those cases not one is in point. ^[4] In fact, I cannot find a single case in support of the Court's position. Even a suit for damages on the ground of interference with private contracts does not lie against the Government. The Congress specifically exempted such suits from the Tort Claims Act. 28 U.S.C. § 2680(h), 28 U.S.C.A. § 2680(h). But the action today may have the effect of by-passing that exemption since Greene will now claim, as has Vitarelli, see Vitarelli v. Seaton, 1959, 359 U.S. 535, 79 S.Ct. 968, reimbursement for his loss of wages. See Taylor v. McElroy, 360 U.S. 709, 79 S.Ct. 1428. This will date back to 1953. His salary at that time was $18,000 a year.

In holding that the Fifth Amendment protects Greene the Court ignores the basic consideration in the case, namely, that no person, save the President, has a constitutional right to access to governmental secrets. Even though such access is necessary for one to keep a job in private industry, he is still not entitled to the secrets. It matters not if as a consequence he is unable to secure a specific job or loses one he presently enjoys. The simple reason for this conclusion is that he has no constitutional right to the secrets. If access to its secrets is granted by the Government it is entirely permissive and may be revoked at any time. That is all that the Cabinet officers did here. It is done every day in governmental operation. The Court seems to hold that the access granted Greene was for his benefit. It was not. Access was granted to secure for the Government the supplies or services it needed. The contract with ERCO specifically provided for the action taken by the Cabinet officers. Greene as General Manager of ERCO knew of its provisions. If every person working on government contracts has the rights Greene is given here the Government is indeed in a box. But as was said in Perkins v. Lukens Steel Co., 1940, 310 U.S. 113, 127-128, 60 S.Ct. 869, 876, 84 L.Ed. 1108:

'Like private individuals and businesses the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases. * * * Judicial restraint of those who administer the Government's purchasing would constitute a break with settled judicial practice and a departure into fields hitherto wisely and happily apportioned by the genius of our polity to the administration of another branch of Government.'

The Court refuses to pass on the constitutionality of the procedures used in the hearings. It does say that the hearings provided for in the program permit the restraint of 'employment opportunities through a denial of clearance without the safeguards of confrontation and cross-examination.' I think the Court confuses administrative action with judicial trials. This Court has long ago and repeatedly approved administrative action where the rights of cross-examination and confrontation were not permitted. Chicago & Southern Air Lines v. Waterman S.S.C.orp., 1948, 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568; Carlson v. Landon, 1952, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547; United States v. Nugent, 1953, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417; United States v. Reynolds, 1953, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727; United States ex rel. Knauff v. Shaughnessy, 1950, 338 U.S. 537, 70 S.Ct. 309, 94 L.Ed. 317; Shaughnessy v. United States ex rel. Mezei, 1953, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956, and Jay v. Boyd, 1956, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242.

At no time since the programs now in vogue were established in 1942 have the rights of cross-examination and confrontation of witnesses been required. In fact the present regulations were patterned after the Employee Loyalty Program, first inaugurated upon the passage of the Hatch Act in 1939, 5 U.S.C.A. § 118i, in which the rights of confrontation and cross-examination have never been recognized. Every Attorney General since that time has approved these procedures, as has every President. And it should be noted, though several cases here have attacked the regulations on this ground, this Court has yet to strike them down. ^[5]

I shall not labor the point further than to say that in my opinion the procedures here do comport with that fairness required of administrative action in the security field. A score of our cases, as I have cited, support me in this position. Not one is to the contrary. And the action of the Court in striking down the program for lack of specific authorization is indeed strange, and hard for me to understand at this critical time of national emergency. The defense establishment should know-and now-whether its program is constitutional and, if not, wherein it is deficient. I am sure that it will remember that in order times of emergency-no more grave than the present-it was permitted, without any hearing whatsoever-much less with confrontation and cross-examination-to remove American citizens from their homes on the West Coast and place them in concentration camps. See Hirabayashi v. United States, 1943, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Korematsu v. United States, 1944, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194. My examination of the Japanese exclusion orders indicates clearly that the Executive Order was a general authorization just as the two here. Congress at the time only created criminal offenses for violation of exclusion or curfew orders of the military commander. Likewise we have criminal statutes here. And while the Japanese orders were in time of war, those involved here had their inception in war and have been continued during the national emergency declared by the President. No one informed in present world affairs would say that our safety is less in jeopardy today. In fact we are now spending nearly as much money to protect it as during the war period. In this light it is inescapable that the existing authorizations are entirely sufficient. Let us examine them.

II. THE PRESIDENT AND THE CONGRESS HAVE GRANTED SUFFICIENT AUTHORITY TO THE CABINET OFFICERS.

Since 1941 the industrial security program has been in operation under express directives from the President. Within a week after the attack on Pearl Harbor, President Roosevelt issued Exec. Order No. 8972, 6 Fed.Reg. 6420, Dec. 12, 1941, which authorized both the Secretary of War and the Secretary of the Navy 'to establish and maintain military guards and patrols, and to take other appropriate measures, to protect from injury and destruction national-defense material, national-defense premises, and national-defense utilities, * * *.' (Emphasis added.) In 1942, under the authority of that Executive Order, the Secretary of War undertook the formulation and execution of a program of industrial security. ^[6] The procedures in operation from 1942 and 1943 are outlined in a 1946 publication of the Department of War entitled 'Suspension of Subversives from Privately Operated Facilities of Importance to the Security of the Nation's Army and Navy Programs.' ^[7] Interestingly enough, the instructions were issued in time of peace, did not give the suspect a hearing, and were signed by the then Chief of Staff-now President-Dwight D. Eisenhower.

In 1947, the National Security Act, 61 Stat. 495, 5 U.S.C.A. § 171 et seq., effected a reorganization of the military departments and placed the Secretary of Defense at the head of the National Military Establishment. Section 305(a) of the Act transferred to the new organization '(a)ll laws, orders, regulations, and other actions applicable with respect to any function * * * transferred under this Act * * *.' Section 213 created a Munitions Board within the military establishment and under the supervision of the Secretary of Defense. Among its functions were

'(1) to coordinate the appropriate activities within the National Military Establishment with regard to industrial matters, including the procurement * * * plans * * *; (2) to plan for the military aspects of industrial mobilization; * * * and (10) to perform such other duties as the Secretary of Defense may direct.' ^[8]

In his first report to the President in 1948, Secretary of Defense Forrestal reported that:

'* * * the Munitions Board is responsible for necessary action to coordinate internal security within the National Military Establishment with regard to industrial matters. This work is being planned and in some phases carried forward by the following programs:

'c. Development of plans and directives to protect classified armed forces information in the hands of industry from potential enemies;

'd. Establishment of uniform methods of handling of personnel clearances and secrecy agreements * * *.' First Report of the Secretary of Defense (1948) 102-103.

The forerunner of the exact program now in effect was put in operation in 1948 under the supervision of that Board. And, in the Annual Report to the President, in 1949, the Secretary, then Louis Johnson, reported that

'Industrial Security.-A program to coordinate and develop uniform practices to protect classified military information placed in the hands of industry under procurement and research contracts was continued by the Munitions Board. Criteria were developed for the granting or denial of personnel and facility clearances in the performance of classified contracts. Work was started to establish a central security clearance register to centralize clearance data for ready reference by all departments and to prevent duplication in making clearance investigations. A joint Personnel Security Board administers this program, and the Industrial Employment Review Board hears appeals from security clearance denials.' Second Report of the Secretary of Defense, for the Fiscal Year 1949 (1950), 85.

Transmitted with that report to the President was the Annual Report of the Secretary of the Army, where the number of security cases processed by the Army-Navy-Air Force Personnel Board, and the number of appeals handled by the Industrial Employment Review Board were detailed. ^[9]

Again in 1950 the Secretary of Defense informed the President, in a report required by law, of the status of the industrial security program.

'In the past 6 months, the Munitions Board activated the Industrial Employment Review Board, established procedures under which the latter will operate, and developed a set of uniform criteria stipulating the circumstances under which security clearances will be denied. The Munitions Board also established a Central Index Security Clearance File to serve as a clearing house for all indvid ual and facility clearances and denials, (and) developed a standard security requirements check list * * *.

Uniform standards for security investigations of facility and contractors' personnel are being developed * * *. A standard military security agreement is being coordinated to bind potential suppliers to security regulations before a classified contract is awarded, and a manual to give security guidance to industry is being prepared.' Semiannual Report of the Secretary of Defense, July 1 to Dec. 31, 1949 (1950), 97.

The President, in 1953, in Reorganization Plan No. 6, 67 Stat. 638, 5 U.S.C..A. § 133z-15 note, transferred all of the 'functions of the Munitions Board' to the Secretary of Defense and dissolved that Board. Since then the program has been in operation under the authority of the Secretary. Also in 1953, the President issued Exec. Order No. 10450, Apr. 27, 1953, 18 Fed.Reg. 2489, 3 CFR (1949-1953 Comp.), p. 936, 5 U.S.C.A. § 631 note. That order dealt with the criteria and procedures to be used in the Federal Loyalty Security Program, which had been instituted under Exec. Order No. 9835, 12 Fed.Reg. 1935, 3 CFR (1943-1948 Comp.), p. 630, Mar. 21, 1947, 5 U.S.C.A. § 631 note. The latter order made clear that federal employees suspected of disloyalty had no right of confrontation. ^[10] And the regulations promulgated under the order provided no such right. See 13 Fed.Reg. 9365, 5 CFR (1949), § 210, Dec. 31, 1948. These procedures were revised under Exec. Order No. 10450, supra, although again, confrontation and cross-examination were not provided. See 19 Fed.Reg. 1503, 32 CFR, p. 288, Mar. 19, 1954. Thus, it was clear that the President had not contemplated that there would be a right of confrontation in the Federal Loyalty Security Program. And the report of the Secretary of the Army-transmitted to the President by the Secretary of Defense-made clear that the criteria of Exec. Order No. 10450 were being utilized not only where the loyalty of a government employee was in doubt, but also in carrying out the industrial security program. Semi-annual Report of the Secretary of the Army, Jan. 1, 1954, to June 30, 1954, 135 136.

Thus we see that the program has for 18 years been carried on under the express authority of the President, and has been regularly reported to him by his highest Cabinet officers. How the Court can say, despite these facts, that the President has not sufficiently authorized the program is beyond me, unless the Court means that it is necessary for the President to write out the Industrial Security Manual in his own hand.

Furthermore, I think Congress has sufficiently authorized the program, as it has been kept fully aware of its development and has appropriated money to support it. During the formative period of the program, 1949-1951, the Congress, through appropriation hearings, was kept fully informed as to the activity. In 1949 D. F. Carpenter, Chairman of the Munitions Board, appeared before a Subcommittee of the House Committee on Appropriations to testify concerning the requested appropriation for the Board. While the report indicates much of the testimony was 'off the record,' it does contain specific references to the program here under attack. ^[11] Significantly the appropriation bill for 1950 included an item of $11,300,000 for the maintenance, inter alia, of the Board.

Again, in 1950 General Timberlake, a member of the Board, testified:

'Then we are going to intensify the industrial mobilization planning within the Department of Defense, with particular emphasis on industrial security * * *.' House of Representatives, Hearings before a Subcommittee of the Committee on Appropriations on the Supplemental Appropriation for 1951, 81st Cong., 2d Sess. 264.

While, again, some of the testimony was 'off the record' it was sufficiently urgent and detailed for the Congress to appropriate additional funds for the Board for 1951. ^[12]

By the 1953 Reorganization Plan, the functions of the Munitions Board were transferred to various Assistant Secretaries of Defense. The industrial security program was put under the Assistant Secretary of Defense for Manpower, Personnel, and Reserve Forces. Of course, this office received an appropriation each year. These hearings, to cite but two, certainly indicate an awareness on the part of Congress of the existence of the industrial security program, and the continued appropriations hardly be-speak an unwillingness on the part of Congress that it be carried on. In 1955, the Eighty-fourth Congress, on the motion of Senator Wiley for unanimous consent, caused to be printed the so-called Internal Security Manual, S. Doc. No. 40, 84th Cong., 1st Sess. It is a compilation of all laws, regulations, and congressional committees relating to the national security. Contained in the volume is the 'Industrial Personnel Security Review Regulation,' i.e., a verbatim copy of the regulations set up by the Secretary of Defense on February 2, 1955. This Manual outlined in detail the hearing procedures which are here condemned by the Court. And it is important to note that the final denial of Greene's clearance was by a Board acting under these very regulations. Still not one voice was raised either within or without the Halls of Congress that the Defense Department had exceeded its authority or that contractor employees were being denied their constitutional rights. In other cases we have held that the inaction of the Congress, in circumstances much less specific than here, was a clear ratification of a program as it was then being carried out by the Executive. Why, I ask, do we not do that here where it is so vital? We should not be 'that 'blind' Court * * * that does not see what '(a)ll others can see and understand' * * *' United States v. Rumely, 1953, 345 U.S. 41, 44, 73 S.Ct. 543, 545, 97 L.Ed. 770.

While it certainly is not clear to me, I suppose that the present fastidiousness of the Court can be satisfied by the President's incorporating the present industrial security program into a specific Executive Order or the Congress' placing it on the statute books. To me this seems entirely superfluous in light of the clear authorization presently existing in the Cabinet officers. It also subjects the Government to multitudinous actions and perhaps large damages-by reason of discharges made pursuant to the present procedures.

And I might add a nota bene. Even if the Cabinet officers are given this specific direction, the opinion today, by dealing so copiously with the constitutional issues, puts a cloud over both the Employee Loyalty Program and the one here under attack. Neither requires that hearings afford confrontation or cross-examination. While the Court disclaims deciding this constitutional question, no one reading the opinion will doubt that the explicit language of its broad sweep speaks in prophecy. Let us hope that the winds may change. If they do not the present temporary debacle will turn into a rout of our internal security.

Notes

1. My brother HARLAN very kindly credits me with 'colorful characterization' in stating this as the issue. While I take great pride in authorship, I must say that in this instance I merely agreed with the statement of the issue by the Solicitor General and his co-counsel in five different places in the Brief for the United States. See pp. 2, 17, 19, 29, 59.
2. ERCO agreed in its government contract, as was well known to Greene, to exclude any individual from any part of its plant at which work under the contract was being performed who had not been cleared by the Navy for access to military secrets.
3. Brother HARLAN states that I suggest 'that the Court's action today requires 'the President's Cabinet members to revoke their refusal to give' the petitioner 'access to military secrets,' despite any views they may have as to his reliability. * * *' Government officials, well versed in the application of this Court's judgments to the practicalities of government operation, say that the relief which Greene seeks here-and which the Court now grants-is 'in substance, a mandatory injunction requiring that the Government show him (or, in practice, allow contractors to show him) defense secrets, notwithstanding the judgment of the executive branch that such disclosure might jeopardize the national safety.' Brief for the United States, 48.
4. Dent v. State of West Virginia, 1889, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623, held that a West Virginia statute did not deprive one previously practicing medicine of his rights without due process by requiring him to obtain a license under the Act. Schware v. Board of Bar Examiners, 1957, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796, likewise a license case, did not pass upon the 'right' or 'privilege' to practice law, merely holding that on the facts the refusal to permit Schware to take the examination was 'invidiously discriminatory.' In Peters v. Hobby, 1955, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129, the Court simply held the action taken violated the Executive Order involved. The concurring opinion, Douglas, J., 349 U.S. at page 350, 75 S.Ct. at page 800, went further but alone on the question of 'right.' The Court did not discuss that question, much less pass upon it. Slochower v. Board of Higher Education, 1956, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, held that the summary dismissal without further evidence by New York of a school teacher because he had pead ed the Fifth Amendment before a United States Senate Committee violated due process. The case merely touched on the 'right' to plead the Fifth Amendment, not to 'property' rights. Truax v. Raich, 1915, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131; Allgeyer v. State of Louisiana, 1897, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832, and Powell v. Commonwealth of Pennsylvania, 1888, 127 U.S. 678, 8 S.Ct. 992, 1257, 32 L.Ed. 253, were equal protection cases wherein discrimination was claimed. Greene alleges no discrimination.
5. See Bailey v. Richardson, 86 U.S.App.D.C. 248, 182 F.2d 46, affirmed by an equally divided Court, 1951, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed. 1352; Peters v. Hobby, 1955, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129.
6. Report of the Commission on Government Security (1957), S.Doc. No. 64, 85th Cong., 1st Sess. 237, n. 7.
7. War Department Pamphlet No. 32-4 (1946) provided both criteria and procedures for removal of subversives. The basic criterion was 'good cause to suspect an employee of subversive activity * * *', the latter being defined as 'sabotage, espionage, or any other wilful activity intended to disrupt the national defense program.' The basic procedure for removal was set out in 10:
8. The National Security Act Amendments of 1949, 63 Stat. 578, amended § 213 so as to delete subparagraph 10.
9. Annual Report of the Secretary of the Army for the Fiscal Year 1949 (1950), 192.
10. Part IV, § 2 of Exec.Order No. 9835 specifically stated that: '* * * the investigative agency may refuse to disclose the names of confidential informants, provided it furnishes sufficient information about such informants on the basis of which the requesting department or agency can make an adequate evaluation of the information furnished by them, and provided it advises the requesting department or agency in writing that it is essential to the protection of the informants or to the investigation of other cases that the identity of the informants not be revealed. * * *'
11. House of Representativs, Hearings before the Subcommittee of the Committee on Appropriations on the National Military Establishment Appropriation Bill for 1950, 81st Cong., 1st Sess. 91.
12. The reason for the dearth of legislative reference to the program appears in some 1955 hearings on an appropriation bill. Under consideration at the time was a proposal for a fund to reimburse contractor employees who had been suspended during a security check and subsequently cleared. General Moore testified that, in the past, such reimbursement had been made by the service secretaries out of their contingency funds. Then followed this colloquy:

'Mr. Mahon. Under that (the contingency fund) you can buy a boy a top, or a toy, provided the Secretary of Defense thinks it is proper?

'Gen. Moore. That is right, and we come down here and explain to this committee with respect to this in a very secret session how much we have spent and precisely what we have spent it for.' House of Representatives, Hearings before the Subcommittee of the Committee on Appropriations on Department of Defense Appropriations for 1956, 84th Cong., 1st Sess. 780.