Amending the Subversive Activities Control Act of 1950-1968-2

8/14/2019 Amending the Subversive Activities Control Act of 1950-1968-2

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HARVARD COLLEGELIBRARY

GIFT OF THEGOVERNMENT

OF THE UNITED STATES


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HEARINGS RELATING TO H.R. 15626, H.R. 15649,H.R. 16613, H.R. 16757, H.R. 15018, H.R. 15092,H.R. 15229, H.R. 15272, H.R. 15336, and H.R. 15828,AMENDING THE SUBVERSIVE ACTIVITIES CONTROL

ACT OF 1950PART 2

APPENDIX TO HEARINGSBEFORE THE

COMMITTEE ON UN-AMERICAN ACTIVITIESHOUSE OE REPRESENTATIVES

NINETIETH CONGRESSSECOND SESSION

APRIL 30, MAY 1, 2, AND 22, 1968Printed for the use of the

Committee on Un-American Activities

ha:^"c^? collcGE libraryDhPUSIT0 br I HE

UNITED STATES GOVERNMENTAUG 6 1968

ti ''

U.S. GOVERNMENT PRINTING OFFICE


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COMMITTEE ON UN-AMERICAN ACTIVITIESUnited States House of RepbesentativesEDWIN B. WILLIS, Louisiana, Chairman

WILLIAM M. TUCK, Virginia JOHN M. ASHBROOK, OhioJOE R. POOL, Texas DEL OLAWSON, CaliforniaRICHARD H. ICHORD, Missouri RICHARD L. ROUDEBUSH, IndianaJOHN C. CULVER, Iowa ALBERT W. WATSON, Soutli CarolinaFrancis J. McNamaka, DirectorChester D. Smith, General CounselAlfred M. Nittle, Counsel

n


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CONTENTSCourt Decisions: ^^^^United States v. EJugene Frank Robel 1569Greene v. McEIroy 1601Dexter C. Shoultz v. Robert S. McNamara, Secretary of Defense,

et al 1652Herbert Schneider v. Willard Smith, Commandant, U.S. CoastGuard 1665Department of Defense Directive No. 5220.6 1677Executive OrdersNo. 10421Deeemiber 31, 1952 1710No. 10438March 13, 1953 1713No. 10501November 5, 1953 1714No. 10773July 1, 1958 1729No. 11051September 27, 1962 1731

"Security of Vessels and Waterfront Facilities" (Coast GuardRegulations) 1739Department of Defense Industrial Security LetterFebruary 29, 1968 1807

III


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The House Committee on Un-American Activities is a standingcommittee of the House of Representatives, constituted as such by therules of the House, adopted pursuant to Article I, section 5, of theConstitution of the United States which authorizes the House to de-termine the rules of its proceedings.

RULES ADOPTED BY THE 90TH CONGRESSHouse Resolution 7, January 10, 1967

RESOLUTIONResolved, That the Rules of the House of Representatives of the Eighty-ninth

Congress, together with all applicable provisions of the Legislative Reorganiza-tion Act of 1946, as amended, be, and they are hereby, adopted as the Rules ofthe House of Representatives of the Ninetieth Congress * * ********ule XSTANDING COMMITTEES1. There shall be elected by the House, at the commencement of each Congress,*******

r) Committee on Un-American Activities, to consist of nine Members.* * * * * *

Rule XIPOWERS AND DUTIES OF COMMITTEES*******8. Committee on Un-American Activities.(a) Un-American activities.

(b) The Committee on Un-American Activities, as a whole or by subcommittee,is authorized to make from time to time investigations of ( 1 ) the extent, charac-ter, and objects of un-American propaganda activities in the United States, (2)the diffusion within the United States of subversive and un-American propagandathat is instigated from foreign countries or of a domestic origin and attacks theprinciple of the form of government as guaranteed by our Constitution, and (3)all other questions in relation thereto that would aid Congress in any necessaryremedial legislation.The Committee on Un-American Activities shall report to the House (or to theClerk of the House if the House is not in session) the results of any such investi-gation, together with such recommendations as it deems advisable.For the purpose of any such investigation, the Committee on Un-AmericanActivities, or any subcommittee thereof, is authorized to sit and act at such timesand places within the United States, whether or not the House is sitting, hasrecessed, or has adjourned, to hold such hearings, to require the attendance ofsuch witnesses and the production of such books, papers, and documents, and totake such testimony, as it deems necessary. Subpenas may be issued under thesignature of the chairman of the committee or any subcommittee, or by any mem-ber designated by any such chairman, and may be served by any person desig-nated by any such chairman or member.*******

7. To assist the House in appraising the administration of the laws and indeveloping such amendments or related legislation as it may deem necessary,each standing committee of the House shall exercise continuous watchfulness ofthe execution by the administrative agencies concerned of any laws, the subjectmatter of which is within the jurisdiction of such committee : and, for that pur-pose, shall study all pertinent reports and data submitted to the House by theagencies in the executive branch of the Government.

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APPENDIX TO HEARINGS RELATING TO H.R. 15626,15649, 16613, 16757, 15018, 15092, 15229, 15272, 15336,AND 15828, AMENDING THE SUBVERSIVE ACTIVITIESCONTROL ACT OF 1950

Part 2

8UPBEME COUBT OF THE UNITED STATESNo. 8.October Term, 1967.

United States, Appellant,V.

Eugene Frank Robel.

On Appeal From the UnitedStates District Court forthe Western District ofWashington.

[December 11, 1967.]Mr. Chief Justice Warren delivered the opinion

of the Court.This appeal draws into question the constitutionality

of 5 (a)(1)(D) of the Subversive Activities ControlAct of 1950, 50 U. S. C. 784 (a)(l)(D),^ which providesthat, when a Communist-action organization ^ is undera final order to register, it shall be unlawful for any mem-ber of the organization "to engage in any employment

^ The Act was passed over the veto of President Truman. Inhis veto message, President Truman told Congress, "The Departmentof Justice, the Department of Defense, the Central InteUigenceAgency, and the Department of State have all advised me that thebill would seriously damage the security and the intelligence opera-tions for which they are responsible. They have strongly expressedthe hope that the bill would not become law." H. R. Doc. No. 708,81st Cong., 2d Sess., 1 (1950).

President Truman also observed that "the language of the billis so broad and vague that it might well result in penalizing thelegitimate activities of people who are not Communists at all, butloyal citizens." Id., at 3.

2 Section 3 (3) (a) of the Act, 50 U. S. C. 782 (3) (a), definesa "Communist-action organization" as:"any organization in the United States (other than a diplomaticrepresentative or mission of a foreign government accredited as such


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1570 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950

UNITED STATES v, ROBEL.dominated, or controlled by the foreign government or foreignorganization controlling the world Communist movement . . . and(ii) operated primarily to advance the objectives of such worldCommunist movement . . . ."in any defense facility." In Communist Party v. Sub-versive Activities Control Board, 367 U. S. 1, this Courtsustained an order of the SACB requiring the Commu-nist Party of the United States to register as aCommunist-action organization under the Act. TheBoard's order became final on October 20, 1961. At thattime appellee, a member of the Communist Party, wasemployed as a machinist at the Seattle, Washington,shipyard of Todd Shipyards Corporation. On August 20,1962, the Secretary of Defense, acting under authoritydelegated by 5 (b) of the Act, designated that ship-yard a "defense facility." Appellee's continued employ-ment at the shipyard after that date subjected him toprosecution under 5 (a)(1)(D), and on May 21, 1963,an indictment was filed charging him with a violationof that section. The indictment alleged in substancethat appellee had "unlawfully and willfully engage [d]in employment" at the shipyard with knowledge of theoutstanding order against the Party and with knowledgeand notice of the shipyard's designation as a defensefacility by the Secretary of Defense. The United StatesDistrict Court for the Western District of Washingtongranted appellee's motion to dismiss the indictment onOctober 5, 1965. To overcome what it viewed as a"hkely constitutional infirmity" in 5 (aj(l)(D), the Dis-trict Court read into that section "the requirement ofactive membership and specific intent." Because theindictment failed to allege that appellee's CommunistParty membership was of that quality, the indictmentwas dismissed. The Government, unwilling to acceptthat narrow construction of 5(a)(l)(D) and insistingon the broadest possible application of the statute, ini-tially took its appeal to the Court of Appeals for the


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AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1571

UNITED STATES v. ROBEL.was certified here as properly a direct appeal to thisCourt under 18 U. S. C. 3731. We noted probablejurisdiction. 384 U. S. 937.* We afiirm the judgmentof the District Court, but on the ground that 5 (a)(1)(D) is an unconstitutional abridgment of the rightof association protected by the First Amendment.^We cannot agree with the District Court that 5 (a)(1)(D) can be saved from constitutional infirmity bylimiting its application to active members of Communist-action organizations who have the specific intent offurthering the unlawful goals of such organizations. TheDistrict Court relied on Scales v. United States, 367U. S. 203, in placing its limiting construction on 5 (a)(1)(D). It is true that in Scales we read the elementsof active membership and specific intent into the mem-bership clause of the Smith Act. However, in Apthekerv. Secretary of State, 378 U. S. 500, we noted that theSmith Act's membership clause required a defendant tohave knowledge of the organization's illegal advocacy,a requirement that "was intimately connected with theconstruction limiting membership to 'active' members."

* We initially heard oral argument in this case on November 14,1966. On June 5, 1967, we entered the following order:"This case is restored to the calendar for reargument and counsel

are directed to brief and argue, in addition to the questions pre-sented, the question whether the delegation of authority to theSecretary of Defense to designate 'defense facilities' satisfies perti-nent constitutional standards."We heard additional arguments on October 9, 1967.

^ In addition to arguing that 5 (a)(1)(D) is invalid under theFirst Amendment, appellee asserted the statute was also unconsti-tutional because (1) it offended substantive and procedural dueprocess under the Fifth Amendment; (2) it contained an uncon-stitutional delegation of legislative power to the Secretary of De-fense; and (3) it is a bill of attainder. Because we agree that thestatute is contrary to the First Amendment, we find it unnecessaryto consider the other constitutional arguments.

18 U. S. C. 2385.


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UNITED STATES v. ROBEL.Id., at 511, n. 9. Aptheker involved a challenge to 6of the Subversive Activities Control Act, which providesthat, when a Communist organization is registered orunder a final order to register, it shall be unlawful forany member thereof with knowledge or notice thereof toapply for a passport. We held that "[t]he clarity andpreciseness of the provision in question make it impos-sible to narrow its indiscriminate cast and overly broadscope without substantial rewriting." Id., at 515. Wetake the same view of 5 (a)(1)(D). It is preciselybecause that statute sweeps indiscriminately across alltypes of associations with Communist-action groups,wilHbut regard to the quality and degree of membership,that it runs afoul of the First Amendment.

In Aptheker, we held 6 unconstitutional because ittoo broadly and indiscriminately infringed upon consti-tutionally protected rights. The Government has arguedthat, despite the overbreadth which is obvious on theface of 5 (a)(1)(D), Aptheker is not controlling inthis case because the right to travel is a more basic free-dom than the right to be employed in a defense facihty.We agree Aptheker is not controlling since it was de-cided under the Fifth Amendment. But we cannot agreewith the Government's characterization of the essentialissue in this case. It is true that the specific disabilityimposed by 5 (a)(1)(D) is to limit the employmentopportunities of those who fall within its coverage, andsuch a limitation is not without serious constitutionalimplications. See Greene v. McElroy, 360 U. S. 474, 492.But the operative fact upon which the job disabilitydepends is the exercise of an individual's right of asso-ciation, which is protected by the provisions of the FirstAmendment." Wherever one would place the right to

^ Our decisions leave little doubt that the right of association isspecifically protected by the First Amendment. E. g., Aptheker v.Secretary of State, supra, at 507; Gibson v. Florida Legislative


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AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 19 50 1573

UNITED STATES v. ROBEL.travel on a scale of constitutional values, it is clear thatthose rights protected by the First Amendment are noless basic in our democratic scheme.The Government seeks to defend the statute on the

ground that it was passed pursuant to Congress' warpower. The Government argues that this Court hasgiven broad deference to the exercise of that constitu-tional power by the national legislature. That argumentfinds support in a number of decisions of this Court.However, the phrase "war power" cannot be invoked asa tahsmanic incantation to support any exercise of con-gressional power which can be brought within its ambit."[E]ven the war power does not remove constitutionallimitations safeguarding essential liberties." Home Bldg.& Loan Asmi. v. Blaisdell, 290 U. S. 398, 426. Morespecifically in this case, the Government asserts that 5 (a)(1)(D) is an "expression of the growing concernshown by the executive and legislative branches of gov-ernment over the risks of internal subversion in plantson which the national defense depend [s]."^ Yet, thisconcept of "national defense" cannot be deemed an endin itself, justifying any exercise of legislative power de-signed to promote such a goal. Implicit in the term"national defense" is the notion of defending those val-ues and ideals which set this Nation apart. For almosttwo centuries, our country has taken singular pride inthe democratic ideals enshrined in its Constitution, andthe most cherished of those ideals have found expressionin the First Amendment. It would indeed be ironic if,in the name of national defense, we would sanction theInvestigation Committee, 372 U. S. 539, 543; Bates v. City of LittleRock, 361 U. S. 516, 522-523; NAACP v. Alabama ex ret. Patterson,357 U. S. 449, 460. See generally Emerson, Freedom of Associationand Freedom of Expression, 74 Yale L. J. 1 (1964).

See, e. g., Lichter v. United States, 334 U. S. 742, 754-772;Hirabayashi v. United States, 320 U. S. 81, 93.

* Brief for the Government, p. 15.


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UNITED STATES v. ROBEL.subversion of one of those libertiesthe freedom ofassociationwhich makes the defense of the Nationworthwhile.When Congress' exercise of one of its enumerated

powers clashes with those individual liberties protectedby the Bill of Rights, it is our "delicate and difficult task"to determine whether the resulting restriction on freedomcan be tolerated. See Schneider v. State, 308 U. S. 147,161. The Government emphasizes that the purpose of5 (a)(1)(D) is to reduce the threat of sabotage andespionage in the Nation's defense plants. The Govern-ment's interest in such a prophylactic measure is notinsubstantial. But it cannot be doubted that the meanschosen to implement that governmental purpose in thisinstance cuts deeply into the right of association. Sec-tion 5 (a)(1)(D) put appellee to the choice of surrender-ing his organizational affiliation, regardless of whetherhis membership threatened the security of a defensefacility," or giving up his job.^^ When appellee refusedto make that choice, he became subject to a possiblecriminal penalty of five years' imprisonment and a$10,000 fine.^^ The statute quite literally establishesguilt by association alone, without any need to establish^The appellee has worked at the shipyard, apparently without

incident and apparently without concealing his Communist Partymembership, for more than 10 years. And we are told that, followingappellee's indictment and arrest, "he was released on his own recog-nizance and immediately returned to his job as a machinist at theTodd Shipyards, where he has worked ever since." Brief for Ap-pellee, p. 6, n. 8. As far as we can determine, appellee is the onlyindividual the Government has attempted to prosecute under5 (a)(1)(D)." We recognized in Greene v. McElroy, 360 U. S., at 492, that"the right to hold specific private employment and to follow achosen profession free from unreasonable governmental interferencecomes within the 'liberty' and 'property' concepts of the FifthAmendment.""


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UNITED STATES v. ROBEL.Thus, 5 (a)(1)(D) contains the fatal defect of over-breadth because it seeks to bar employment both forassociation which may be proscribed and for associationwhich may not be proscribed consistently with FirstAmendment rights. See Elfbrandt v. Russell, 384 U. S.11; Aptheker v. Secretary of State, supra; NAACP v.Alabama ex rel Flowers, 377 U. S. 288; NAACP v.Button, supra. This the Constitution will not tolerate.We are not unmindful of the congressional concernover the danger of sabotage and espionage in nationaldefense industries, and nothing we hold today should beread to deny Congress the power under narrowly drawnlegislation to keep from sensitive positions in defensefacilities those who would use their positions to disruptthe Nation's production facilities. We have recognizedthat, while the Constitution protects against invasions ofindividual rights, it does not withdraw from the Govern-ment the power to safeguard its vital interests. KennedyV. Mendoza-MartiTiez, 372 U. S. 144, 160. Spies andsaboteurs do exist, and Congress can, of course, prescribecriminal penalties for those who engage in espionage andsabotage.^* The Government can deny access to itssecrets to those who would use such information to harmthe Nation.^? And Congress can declare sensitive posi-tions in national defense industries ofif limits to thosewho would u$e such positions to disrupt the productionof defense materials. The Government has told us thatCongress, in passing 5 (a)(1)(D), made a considered

^^ Congress has already provided stiff penalties for those whoconduct espionage and sabotage against the United States. 18U. S. C. 792-798 (espionage); 2151-2156 (sabotage).

^*The Department of Defense, pursuant to Executive Order10865, as amended by Executive Order 10909, has estabhshed de-tailed procedures for screening those working in private industrywho, because of their jobs, must have access to classified defenseinformation. 32 C. F. R. Part 155. The provisions of those regu-lations are npt before the Court in this case.


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UNITED STATES v. ROBEL.judgment that one possible alternative to that statutean industrial security screening programwould beinadequate and ineffective to protect against sabotagein defense facilities. It is not our function to examinethe validity of that congressional judgment. Neitheris it our function to determine whether an industrialsecurity screening program exhausts the possible alter-natives to the statute under review. We are concernedsolely with determining whether the statute before ushas exceeded the bounds imposed by the Constitutionwhen First Amendment rights are at stake. The taskof writing legislation which will stay within those boundshas been committed to Ck)ngress. Our decision todaysimply recognizes that, when legitimate legislative con-cerns are expressed in a statute which imposes a sub-stantial burden on protected First Amendment activities,Congress must achieve its goal by means which havea "less drastic" impact on the continued vitality of FirstAmendment freedoms.^" Shelton v. Tttcker, supra; cf.

2 It has been suggested that this case should be decided by "bal-ancing" the governmental interests expressed in 5 (a)(1)(D)against the First Amendment rights asserted by the appellee. Thiswe dechne to do. We recognize that both interests are substantial,but we deem it inappropriate for this Court to label one as beingmore important or more substantial than the other. Our inquiryis more circumscribed. Faced with a clear conflict between a fed-eral statute enacted in the interests of national security and anindividual's exercise of his First Amendment rights, we have con-fined our analysis to whether Congress has adopted a constitutionalmeans in achieving its concededly legitimate legislative goal. Inmaking this determination we have found it necessary to measurethe vahdity of the means adopted by Congress against both thegoal it has sought to achieve and the specific prohibitions of theFirst Amendment. But we have in no way "balanced" those respec-tive interests. We have ruled only that the Constitution requiresthat the conflict between congressional power and individual rightsbe accommodated by legislation drawn more narrowly to avoid theconflict. There is, of course, nothing novel in that analysis. Such


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1578 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 19 50

UNITED STATES v. ROBEL.United States v. Brovm, 381 U. S. 437, 461. The Consti-tution and the basic position of First Amendment rightsin our democratic fabric demand nothing less.

Affirmed.Mr. Justice Marshall took no part in the considera-

tion or decision of this case.

a course of adjudication was enunciated by Chief Justice Marshallwhen he declared: "Let the end be legitimate, let it be within thescope of the constitution, and all means which are appropriate,which are plainly adapted to that end, which are not prohibited,but which consist with the letter and spirit of the constitution, areconstitutional." M'CuUoch v. Maryland, 4 Wheat. 316, 421(emphasis added). In this case, the means chosen by Congressare contrary to the "letter and spirit" of the First Amendment.


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SUPBEME COUET OF THE UNITED STATESNo. 8.October Term, 1967.

United States, Appellant,V I^ ^ - _, , - the WesterEugene Frank Robel. w h' t

On Appeal From the UnitedStates District Court forthe Western District of

[December 11, 1967.]Mr. Justice Brennan, concurring in the result.I too agree that the judgment of the District Court

should be afl5rmed but I reach that result for differentreasons.

Like the Court, I disagree with the District Court that 5 (a)(1)(D) can be read to apply only to active mem-bers who have the specific intent to further the Party'sunlawful objectives. In Aptheker v. Secretary of State,378 U. S. 500, we rejected that reading of 6 of the Actwhich provides that, when a Communist organization isregistered Or under final order to register, it shall be un-lawful for any member thereof with knowledge or noticeof the order to apply for or use a passport. We held that"[t]he clarity and preciseness of the provision in questionmake it impossible to narrow its indiscriminately cast andoverly broad scope without substantial rewriting." 378U. S., at 515. I take the same view of 5 (a)(1)(D).Aptheker held 6 of the Act overbroad in that it de-prived Party members of the right to travel without

regard to whether they were active members of the Partyor intended to further the Party's unlawful objectives,and therefore invalidly abridged, on the basis of politicalassociations, the members' constitutionally protectedright to travel. Section 5 (a)(1)(D) also treats as ir-relevant whether or not the members are active, or knowthe Party's unlawful purposes, or intend to pursue those


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UNITED STATES v. ROBEL.purposes. Compare Keyishian v. Board of Regents, 385U. S. 589; Elfhrandt v. Russell, 384 U. S. 11, 17; ScalesV. United States, 367 U. S. 203; Schneiderman v. UnitedStates, 320 U. S. 118, 136. Indeed, a member such asappellee, who has worked at the Todd Shipyards with-out complaint or known ground for suspicion for over10 years, is afforded no opportunity to prove that thestatute's presumption that he is a security risk is invalidas applied to him. And no importance whatever is at-tached to the sensitivity of the jobs held by Party mem-bers, a factor long considered relevant in security cases.^Furthermore, like 6, 5 (a)(1)(D) affects constitu-tionally protected rights. "[T]he right to hold specificprivate employment and to follow a chosen professionfree from unreasonable governmental interference comeswithin the 'liberty' and 'property' concepts of the FifthAmendment. . . ." Greene v. McElroy, 360 U. S. 474,492. That right is therefore also included among the"[ijndividual liberties fundamental to American institu-tions [which] are not to be destroyed under pretext ofpreserving those institutions, even from the gravest ex-ternal dangers." Connmunist Party v. SACB, 367 U. S. 1,96. Since employment opportunities are denied by 5 (a)(1)(D) simply on the basis of political associations thestatute also has the potential of curtailing free expressionby inhibiting persons from establishing or retaining suchassociations. See Wieman v. Updegraff, 344 U. S. 183,191. "Broad prophylactic rules in the area of free ex-pression are suspect .... Precision of regulation mustbe the touchstone in . . . area[s] so closely touching ourmost precious freedoms." NAACP v. Button, 371 U. S.iSee Cole v. Ymmg, 351 U. S. 536, 546:

"[I]t is difficult to justify summary suspensions and unreviewabledismissals on loyalty grounds of employees who are not in 'sensitive'positions and who are thus not situated where they could bringabout any discernible adverse effects on the Nation's security."


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UNITED STATES v. ROBEL.415, 438; see Shelton v. Tucker, 364 U. S. 479; 488;Cantwell v. Connecticut, 310 U. S. 296, 304.

It is true, however, as the Government points out, thatCongress often regulates indiscriminately, through pre-ventive or prophylactic measures, e. g.. Board of Gover-nors v. Agnew, 329 U. S. 441 ; North American Co. v.S. E. C, 327 U. S. 686, and that such regulation hasbeen upheld even where fundamental freedoms are poten-tially affected, Hirabayashi v. United States, 320 U. S. 81Cafeteria Workers v. McElroy, 367 U. S. 886; Carlson v.Landon, 342 U. S. 524. Each regulation must be ex-amined in terms of its potential impact upon funda-mental rights, the importance of the end sought andthe necessity for the means adopted. The Governmentargues that 5 (a)(1)(D) may be distinguished from 6on the basis of these factors. Section 5 (a)(1)(D) limitsemployment only in "any defense facility," while 6 de-prived every Party member of the right to apply for orto hold a passport. If 5 (a)(1)(D) were in fact nar-rowly applied, the restrictions it would place upon em-ployment are not as great as those placed upon theright to travel by 6.^ The problems presented by the

2 The Government also points out that 5 (a) (1) (D) applies onlyto members of "Communist-action" organizations, while 6 appliedalso to members of "Communist-front" organizations, groups whichthe Government contends are less dangerous to the national securityunder Congress' definitions, and whose members are therefore pre-simiably less dangerous. This distinction is, however, open to somedoubt. Even if a "front" organization, which is defined as anorganization either dominated by or primarily operated for the pur-pose of aiding and supporting "action" organizations, could in somefashion be regarded as less dangerous, Aptheker held 6 invalidbecause it failed to discriminate among affected persons on the basesof their activity and commitment to unlawful purposes, and nothingin the opinion indicates the result would have been different ifCongress had been indiscriminate in these respects with regard onlyto "Communist-action" group members.


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UNITED STATES v. ROBEL.employment of Party members at defense facilities,moreover, may well involve greater hazards to nationalsecurity than those created by allowing Party membersto travel abroad. We may assume, too, that Congressmay have been justified in its conclusion that alternativesto 5 (a)(1)(D) were inadequate.^ FQr_t]iese.,>.i:eaSQilS,,I am not persuaded to the Court's view that overbreadthis fatal to this statute, as I agreed it was in other con-texts; see, . g., Keyishian v. Board of Regents, 385 U. S.589; Elfbrandt v. Russell, 384 U. S. 11; Aptheker v. Sec-retary of State, 378 U. S. 500; NAACP v. Button, 371U. S. 415.However, acceptance of the validity of these distinc-

tions and recognition of congressional power to utilizea prophylactic device such as 5 (a)(1)(D) to safe-guard against espionage and sabotage at essential defensefacilities, would not end inquiry in this case. Even ifthe statute is not overbroad on its facebecause Theremay be "defense facilities" so essential to our national

3 The choice of a prophylactic measure "must be viewed in thelight of less drastic means for achieving the same basic purpose."Shelton v. Tucker, 364 U. S. 479, 488. Since I would affirm onanother ground, however, I put aside the question whether existingsecurity programs were inadequate to prevent serious, possiblycatastrophic consequences.

Congress rejected suggestions of the President and the Departmentof Justice that existing security programs were adequate with onlyshght modifications. . See H. R. Doc. No. 679, 81st Cong., 2d Sess., 5(1950); Hearings on Legislation to Outlaw Certain Un-Americanand Subversive Activities before the House Un-American ActivitiesCommittee, 81st Cong., 2d Sess., 2122-2125 (1950). Those programscover most of the facihties within the reach of 5 (a)(1)(D) andmake Party membership an important factor governing access.32 CFR 155.5. They provide measures to prevent and punishsubversive acts. The Department of Defense, moreover, had screenedsome 3,000,000 defense contractor employees under these proceduresby 1956, Brown, Loyalty and Security 179-180 (1958), thereby pro-viding at least some evidence of its capacity to handle this problemin a more discriminating manner.


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UNITED STATES v. ROBEL.termines that the security of the United States re-quires . . ." that Party members should not be employedthere. Congress could easily have been more specific*Instead, Congress left the Secretary completely at largein determining the relevance and weight to be accordedsuch factors as the importance and secrecy of the facihtyand of the work being done there, and the indispensabihtyof the facility's service or product to the national security.Congress ordinarily may delegate power under broadstandards. E. g., Dakota Central Tel. Co. v. SouthDakota, 250 U. S. 163, 183; FPC v. Hope Natural Gas Co.,320 U. S. 591; NBC v. United States, 319 U. S. 190.No other general rule would be feasible or desirable.Delegation of power under general directives is an in-evitable consequence of our complex society, with itsmyriad, ever changing, highly technical problems. "The

* Congress, in fact, originally proposed to limit the Secretary'sdiscretion in designating "defense facilities." H. R. 9490, passedby both the House and Senate, provided that the Secretary shoulddetermine and designate each "defense plant" as defined in 3 (7)of the Act. The difference between that version and 5 (a)(1)(D)adopted at conference is commented upon in Conf. Rep. No. 3112,81st Cong., 2d Sess., 50 (1950):"Under section 3 (7) a defense plant was defined as any plant,factory, or other manufacturing or service establishment, or any partthereof, engaged in the production or furnishing, for the use of theGovernment of any commodity or service determined and designatedby the Secretary of Defense to be of such character as to affect themilitary security of the United States.

"Section 3 (7), and the provisions of section 5 relating to the desig-nation of defense plants by the Secretary of Defense, have beenmodified in the conference substitute so as to broaden the concept ofdefense plants to cover any appropriately designated plant, factorj'^or other manufacturing, producing, or service establishment, airport,airport facihty, vessel, pier, water-front facility, mine, railroad, publicutility, laboratory, station, or other establishment or facility, orany part, division, or department of any of the foregoing. Becauseof this broader coverage, section 3 (7) has been changed so as todefine the two terms 'facihty' and 'defense facihty.'


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UNITED STATES v. ROBEL.Winters v. New York, 333 U. S. 507; Thomhill v. Ala-bama, 310 U. S. 88; Hague v. C. L 0., 307 U. S. 496;Hemdon v. Lowry, 301 U. S. 242.

First. The failure to provide adequate standards in 5 (a)(1)(D) reflects Congress' failure to have made a"legislative judgment," Cantwell v. Connecticut, supra,310 XT. S., at 307, on the extent to which the prophylacticmeasure should be appUed. Formulation of policy is alegislature's primary responsibility, entrusted to it by theelectorate, and to the extent Congress delegates authorityunder indefinite standards, this policy-making function ispassed on to other agencies, often not answerable orresponsive in the same degree to the people. "[SJtand-ards of permissible statutory vagueness are strict . . ."in protected areas. NAACP v. Button, supra, 371 U. S.,at 432. "Without explicit action by lawmakers, decisionsof great constitutional import and effect would be rele-gated by default to administrators who, under our systemof government, are not endowed with authority to decidethem." Greene v. McElroy, 360 U. S. 474, 507.

Congress has the resources and the power to informitself, and is the appropriate forum where the conflict-ing pros and cons should have been presented andconsidered. But instead of a determination by Con-gress reflected in guiding standards of the types offacilities to which 5 (a)(1)(D) should be applied,the statute provides for a resolution by the Secretaryof Defense acting on his own accord. It is true thatthe Secretary presumably has at his disposal the in-formation and expertise necessary to make reasonedjudgments on which facilities are important to nationalsecurity. But that is not the question to be resolvedunder this statute. Compare Hague v. CIO, 307 U. S.496. Rather, the Secretary is in effect determiningwhich facilities are so important to the national securitythat Party members, active or inactive, well-intentioned


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UNITED STATES v. ROBEL.or ill, should be prohibited from working within themin any capacity, sensitive or innocuous, under threatof criminal prosecution. In resolving this conflict ofinterests, the Secretary's judgment, colored by his over-riding obligation to protect the national defense, is nota constitutionally acceptable substitute for Congress'judgment, in the absence of further, limiting guidance.^The need for a legislative judgment is especially acute

here, since it is imperative when hberty and the exer-cise of fundamental freedoms are involved that consti-tutional rights not be unduly infringed. Cantwell v.Connecticut, supra, 310 U. S., at 304. Before we can de-cide whether it is an undue infringement of protectedrights to send a person to prison for holding employmentat a certain type facihty, it ought at least to appear thatCongress authorized the proscription as warranted andnecessary. Such congressional determinations will notbe assumed. "They must be made explicitly not onlyto assure that individuals are not deprivecf of cherishedrights under procedures not actually authorized . . . butalso because explicit action, especially in areas of doubt-

^ The Secretary has published criteria which guide him in applyingthe statute:"The hst of 'defense facilities' is comprised of (1) facilities engaged

in important classified military projects; (2) facilities producingimportant weapons systems, subassemblies and their components;(3) facilities producing essential common components, intermediates,basic materials and raw materials; (4) important utility and servicefacilities; and (5) research laboratories whose contributions are im-portant to the national defense. The list, which will be amendedfrom time to time as necessary, has been classified for reasons ofsecurity."Department of Defense Release No. 1363-62, Aug. 20, 1962. Thesebroad standards, which might easily justify applying the statute tomost of our major industries, cannot be read into the statute tolimit the Secretary's discretion, since they are subject to unreviewableamendment.


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UNITED STATES v. ROBEL.ful constitutionality, requires careful and purposefulconsideration by those responsible for enacting andimplementing our laws." Greene v. McElroy, supra,360 U. S., at 507.

Second. We said in Watkins v. United States, 354 U. S.178, 205, that Congress must take steps to assure "respectfor constitutional liberties" by preventing the existenceof "a wide gulf between the responsibility for the useof . . . power and the actual exercise of that power."Procedural protections to avoid that gulf have beenrecognized as essential when fundamental freedoms areregulated, Speiser v. Randall, 357 U. S. 513; MarcusV. Search Warrant, 367 U. S. 717, 730; A Quantity ofCopies of Books v. Kansas, 378 U. S. 205, 213, evenwhen Congress acts pursuant to its "great powers,"Kennedy v. Mendoza-Martinez, 372 U. S. 144, 164.Without procedural safeguards, regulatory schemes willtend through their indiscriminate application to inhibitthe activity involved. See Marcus v. Search Warrant,supra, 367 U. S.. at 734-735.

It is true that "[a] construction of the statute whichwould deny all opportunity for judicial determinationof an asserted constitutional right is not to be favored."Lockerty v. Phillips, 319 U. S. 182, 188. However, thetext and history of this section compels the conclusionthat Congress deliberately chose not to provide for pro-test either to the Secretary or the courts from any desig-nation by the Secretary of a facility as a "defensefacility." The absence of any provision in this regardcontrasts strongly with the care that Congress took toprovide for the determination by the SACB that theParty is a Communist-action organization, and for judi-cial review of that determination. The Act "requiresthe registration only of organizations which . . . arefound to be under the direction, domination, or controlof certain foreign powers and to operate primarily to


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TJNITED STATES v. ROBEL.advance certain objectives. This finding must be madeafter full administrative hearing, subject to judicial re-view which opens the record for the reviewing court'sdetermination whether the administrative findings as tofact are supported by the preponderance of the evidence."Communist Party v. SACB, supra, 367 U. S., at 86-87.In contrast, the Act nowhere provides for an administra-tive hearing on the Secretary's designation, either publicor private, nor is his finding subject to review. A Partymember charged with notice of the designation must quitthe Party or his job; he cannot contest the Secretary'saction on trial if he retains both and is prosecuted.

This is persuasive evidence that the matter of thedesignation of "defense facilities" was purposely com-mitted by Congress entirely to the discretionary judg-ment of the Secretary. Unlike the opportunities forhearing and judicial review afiforded the Party itself, theParty member was not to be heard by the Secretary toprotest the designation of his place of emplo>ment asa "defense facility," nor was the member to have recourseto the courts. This pointed distinction, as in the caseof the statute before the Court in Schilling v. Rogers,

^ The statute contemplates only four significant findings beforecriminal liability attaches: (1) that the Communist Party is a"Conmiunist-action organization"; (2) that defendant is a memberof the Communist Party; (3) that defendant engaged in employ-ment at a "defense facility"; and (4) that he had notice that hisplace of employment was a "defense facility." The first finding wasmade by the Subversive Activities Control Board. The third find-ingthat the shipyard is a "defense facility"was made by theSecretary' of Defense. The fourth finding refers to the notice re-quirement which is no more than a presumption from the postingrequired of the employer by 5(b). Thus the only issue whicha defendant can effectively contest is whether he is a CommunistParty member. In view of the result which I would reach, how-ever, I need not consider appellee's argument that this affordsdefendants only the shadow of a trial, and violates due process.


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UNITED STATES v. ROBEL.363 U. S. 666, 674, is compelling evidence "that in thisAct Congress was advertent to the role of the courts,and an absence in any specific area of any kind of pro-vision for judicial participation strongly indicates a legis-lative purpose that there be no such participation."This clear indication of the congressional plan, coupledwith a flexibilityas regards the boundaries of the Sec-retary's discretionso unguided as to be entirely unguid-ing, must also mean that Congress contemplated thatan affected Party member was not to be heard to contendeven at his criminal trial that the Secretary acted beyondthe scope of his powers, or that the designation of theparticular facility was arbitrary and capricious. Cf.Estep V. United States, 327 U. S. 114.The legislative history of the section confirms this

conclusion. That history makes clear that Congress wasconcerned that neither the Secretary's reasons for adesignation nor the fact of the designation should bepublicized. This emerged after President Truman vetoedthe statute. In its original form the Act required theSecretary to "designate and proclaim, and from timeto time revise, a list of facilities ... to be promptly pub-lished in the Federal Register . . . ." 5(6). ThePresident commented in his veto message, "[s]pies andsaboteurs would willingly spend years of effort seekingto find out the information that this bill would requirethe Government to hand them on a silver platter."H. R. Doc. No. 708, 81st Cong., 2d Sess., 2 (1950). Shortlyafter this Court sustained the registration provisions ofthe Act in SACB v. Communist Party, supra, the Actwas amended at the request of the Secretary to eliminatethe requirement that the Ust of designated facilitiesbe published in the Federal Register. 76 Stat. 91. In-stead, the list is classified information. Whether or notsuch classification is practically meaningfulin light ofthe fact that notice of a designation must be posted in


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UNITED STATES v. ROBEL.the designated facilitythe history is persuasive againstany congressional intention to provide for hearings orjudicial review that might be attended with undesiredpublicity. We are therefore not free to imply limita-tions upon the Secretary's discretion or procedural safe-guards that Congress obviously chose to omit. CompareCole V. Young, 351 U. S. 536; United States v. Rumely,supra; Ex parte Endo, 323 U. S. 283, 299; Japanese Im-migrant Case, 189 U. S. 86, 101 ; see Green v. McElroy,supra, 360 U. S., at 507.

Third. The indefiniteness of the delegation in this casealso results in inadequate notice to affected persons. Al-though the form of notice provided for in 5 (b) affordsaffected persons reasonable opportunity to conform theirbehavior to avoid punishment, it is not enough that per-sons engaged in arguably protected activity be reason-ably well advised that their actions are subject to regula-tion. Persons so engaged must not be compelled toconform their behavior to commands, no matter howunambiguous, from delegated agents whose authority toissue the commands is unclear. Marcus v. Search War-rant, supra, 367 U. S., at 736. The legislative directivemust delineate the scope of the agent's authority so thatthose affected by the agent's commands may know thathis command is within his authority and is not his ownarbitrary fiat. Cramp v. Board of Public Instruction, 368U. S. 278; Scull v. Virginia, 359 U. S. 344; WatHns v.United States, supra, 354 U. S., at 208-209. There is noway for persons affected by 5(a)(l)(D) to knowwhether the Secretary is acting within his authority, andtherefore no fair basis upon which they may determinewhether or not to risk disobedience in the exercise ofactivities normally protected.

Section 5(a)(1)(D) denies significant employmentrights under threat of criminal punishment to personssimply because of their political associations. The Gov-


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UNITED STATES v. ROBEL.ernment makes no claim that Robel is a security risk.He has worked as a machinist at the shipyards for manyyears, and we are told is working there now. We are ineffect invited by the Government to assume that Robelis a law abiding citizen, earning a living at his chosentrade. The justification urged for punishing him is thatCongress may properly conclude that members of theCommunist Party, even though nominal or inactivemembers and beheving only in change through lawfulmeans, are more likely than other citizens to engage inacts of espionage and sabotage harmful to our nationalsecurity. This may be so. But in areas of protectedfreedoms, regulation based upon mere association andnot upon proof of misconduct or even of intention to actunlawfully, must at least be accompanied by standardsor procedural protections sufficient to safeguard againstindiscriminate application. "If . . . 'liberty' is to beregulated, it must be pursuant to the law-making func-tions of Congress . . . [a]nd if that power is delegated,the standards must be adequate to pass scrutiny by theaccepted tests." Kent v. Dulles, 357 U. S. 116, 129.


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SUPEEME COURT OF THE UNITED STATESNo. 8.October Term, 1967.

United States, Appellant,V.

Eugene Frank Robel.

On Appeal From the UnitedStates District Court forthe Western District ofWashington.

[December 11, 1967.]Mr. Justice White, with whom Mr. Justice Harlan

joins, dissenting.The Court holds that because of the First Amendment

a member of the Communist Party who knows that theParty has been held to be a Communist-action organiza-tion may not be barred from employment in defenseestablishments important to the security of the Nation.It therefore refuses to enforce the contrary judgments ofthe Legislative and Executive Branches of the Govern-ment. Respectfully disagreeing with this view, I dissent.The constitutional right found to override the public

interest in national security defined by Congress is theright of association, here the right of respondent Robelto remain a member of the Communist Party after beingnotified of its adjudication as a Communist-action orga-nization. Nothing in the Constitution requires thisresult. The right of association is not mentioned in theConstitution. It is a judicial construct appended to theFirst Amendment rights to speak freely, to asemble, andto petition for redress of grievances.^ While the right of

1 If men may speak as individuals, they may speak in groupsas well. If they may assemble and petition, they must have theright to associate to some extent. In this sense the right of associa-tion simply extends constitutional protection to First Amendmentrights when exercised with others rather than by an individual alone.In NAACP v. Alabama, the Court said that the freedom to associatefor the advancement of beliefs and ideas is constitutionally protected


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UNITED STATES v. ROBEL.association has deep roots in history and is supported bythe inescapable necessity for group action in a re-pubhc as large and complex as ours, it has only recentlyblossomed as the controlhng factor in constitutionallitigation ; its contours as yet lack delineation. AlthoughoflBcial interference with First Amendment rights hasdrawn close scrutiny, it is now apparent that the rightof association is not absolute and is subject to significantregulation by the State. The law of criminal conspiracyrestricts the purposes for wTiich men may associate andthe means they may use to implement their plans. Laborunions, and membership in them, are intricately con-trolled by statutes, both federal and state, as are politicalparties and corporations.The relevant cases uniformly reveal the necessity for

accommodating the right of association and the pubhcinterest. NAACP v. Alabama, 357 U. S. 449 (1958),by association pertain to political, economic, religious or culturalmatters . . . ." 357 U. S. 449, 460 (1958). That case involvedthe propagation of ideas by a group as well as litigation as a formof petition. The latter First Amendment element was also involvedin NAACP v. Button, 371 U. S. 415 (1963); Railroad Trainmen v.Virginia Bar, 377 U. S. 1 (1964); and United Mine' Workers v.Illinois Bar Assn., ante, p. . The activities in Eastern R. Presi-dents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127(1961), although commercially motivated, were aimed at influencinglegislative action. Whether the right to associate is an independentFirst Amendment right carrying its own credentials and will be car-ried beyond the implementation of other First Amendment rightsawaits a definitive answer. In this coimection it should be notedthat the Court recently dismissed, as not presenting a substantialfederal question, an appeal challenging Florida regulations whichforbid a Florida accoimtant from associating in his work, whether aspartner or employee, with any nonresident accountant; out-of-state associations are barred from the State unless every partneris a qualified Florida accountant, and in practice only Florida resi-dents can become qualified there. Mercer v. Hemmings, 36 U. S.L. Week 3167 (Oct. 23, 1967).


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UNITED STATES v. ROBEL.which contained the first substantial discussion of theright in an opinion of this Court, exemplifies the judicialapproach. There, after noting the impact of officialaction on the right to associate, the Court inquired"whether Alabama has demonstrated an interest inobtaining the disclosures it seeks from petitioner whichis sufficient to justify the deterrent effect which we haveconcluded these disclosures may well have on the freeexercise by petitioner's members of their constitutionallyprotected right of association." 357 U. S., at 463. Thesame path to decision is evident in Bates v. City of LittleRock, 361 U. S. 516 (1960) ; NAACP v. Button, 371 U. S.415 (1963); and Railroad Trainmen v. Virginia Bar,377 U. S. 1 (1964). Only last week, in United MineWorkers v. Illinois Bar Assn., ante, p. , the Courtweighed the right to associate in an organization furnish-ing salaried legal services to its members against theState's interest in insuring adequate and personal legalrepresentation, and found the State's interest insufficientto justify its restrictions.

Nor does the Court mandate a different course in thiscase. Apparently "active" members of the CommunistParty who have demonstrated their commitment to theillegal aims of the Party may be barred from defensefacilities. This exclusion would have the same deterrenteffect upon associational rights as the statute before us,but the governmental interest in security would overridethat effect. Also, the Court would seem to permit barringrespondent, although not an "active" member of theParty, from employment in "sensitive" positions in thedefense estabhshment. Here, too, the interest in antici-pating and preventing espionage or sabotage would out-weigh the deterrent impact of job disqualification. IfI read the Court correctly, associating with the Commu-nist Party may at times be deterred by barring membersfrom employment and nonmembership may at times be


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UNITED STATES v. ROBEL.imposed as a condition of engaging in defense work. Inthe case before us the Court simply disagrees with theCongress and the Defense Department, ruling that Robeldoes not present a sufficient danger to the nationalsecurity to require him to choose between membershipin the Communist Party and his employment in a defensefacility. Having less confidence than the majority inthe prescience of this remote body when dealing withthreats to the security of the country, I much preferthe judgment of Congress and the Executive Branchthat the interest of respondent in remaining a memberof the Communist Party, knowing that it has beenadjudicated a Communist-action organization, is lesssubstantial than the public interest in excluding himfrom employment in critical defense industries.The national interest asserted by the Congress is realand substantial. After years of study, Congress prefacedthe Subversive Activities Control Act of 1950, 64 Stat.987, 50 U. S. C. 781-798, with its findings that thereexists an international Communist movement which bytreachery, deceit, espionage, and sabotage seeks to over-throw existing governments ; that the movement operatesin this country through Communist-action oreganizationswhich are under foreign domination and control andwhich seek to overthrow the Government by any neces-sary means, including force and violence; that the Com-munist movement in the United States is made up ofthousands of adherents, rigidly disciplined, operating insecrecy, and employing espionage and sabotage tacticsin form and manner evasive of existing laws. Congresstherefore, among other things, defined the character-istics of Communist-action organizations, provided fortheir adjudication by the SACB, and decided that thesecurity of the United States required the exclusion ofCommunist-action organization members from employ-ment in certain defense facilities. After long and com-


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AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF lOoO 1597

UNITED STATES v. ROBEL.plex litigation, the SACB found the Communist Partyto be a Communist-action organization within the mean-ing of the Act. That conclusion was affirmed both bythe Court of Appeals, Communist Party v. SACB, 107U. S. App. D. C. 279, 277 F, 2d 78 (1959), and thisCourt, 367 U. S. 1 (1961). Also affirmed were theunderlying determinations, required by the Act, thatthe Party is directed or controlled by a foreign govern-ment or organization, that it operates primarily to ad-vance the aims of the world Communist movement, andthat it sufiiciently satisfies the criteria of Communist-action organizations specified by 792 (e), including thefinding by the Board that many Party members are sub-ject to or recognize the discipline of the controlling for-eign government or organization. This Court acceptedthe congressional appraisal that the Party posed a threat"not only to existing government in the United States,but to the United States as a sovereign, independentnation " 367 U. S., at 95.

Against this background protective measures wereclearly appropriate. One of them, contained in 784(a)(1)(D), which became activated with the affirmanceof the Party's designation as a Communist-action organi-zation, makes it unlawful "[f]or any member of suchorganization, with knowledge or notice . . . that such orderhas become final ... to engage in any employment inany defense facility . . . ." A defense facility is anyof the specified types of establishment "with respect tothe operation of which [the Secretary of Defense] findsand determines that the security of the United Statesrequires" that members of such organizations not beemployed. Given the characteristics of the Party, itsforeign domination, its primary goal of government over-throw, the discipline which it exercises over its members,and its propensity for espionage and sabotage, the exclu-sion of members of the Party who know the Party is a


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UNITED STATES v. ROBEL.Communist-action organization from certain defenseplants is well within the powers of Congress.Congress should be entitled to take suitable precau-

tionary measures. Some Party members may be nothreat at all, but many of them undoubtedly are, and itis exceedingly difficult to identify those in advance ofthe very events which Congress seeks to avoid. If Partymembers such as Robel may be barred from "sensitivepositions," it is because they are potential threats tosecurity. For the same reason they should be excludablefrom employment in defense plants which Congress andthe Secretary of Defense consider of critical importanceto the security of the country.The statute does not prohibit membership in the Com-

munist Party. Nor are respondent and other Com-munists excluded from all employment in the UnitedStates, or even from all defense plants. The touchstonesfor exclusion are the requirements of national security,and the facilities designated under this standard amountto only about one percent of all the industrial establish-ments in the United States.

It is this impact on associational rights, althoughspecific and minimal, which the Court finds impermis-sible. But as the statute's dampening effect on asso-ciational rights is to be weighed against the asserted andobvious government interest in keeping members ofCommunist-action groups from defense facilities, it wouldseem important to identify what interest Robel has injoining and remaining a member of a group whose pri-mary goals he may not share. We are unenlightened,however, by the opinion of the Court or by the recordin this case, as to the purposes which Robel and otherslike him may have in associating with the Party. Thelegal aims and programs of the Party are not identifiedor appraised nor are Robel's activities as a member of


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AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950

UNITED STATES v. ROBEL.the Party. The Court is left with a vague and form-less concept of associational rights and its own notionsof what constitutes an unreasonable risk to defensefacilities.The Court says that mere membership in an associa-

tion with knowledge that the association pursues unlaw-ful aims cannot be the basis for criminal prosecution,Scales V. United States, 367 U. S. 203 (1961), or fordenial of a passport, Aptheker v. Secretary of State, 378U. S. 500 (1964). But denying the opportunity to beemployed in some defense plants is a much smaller deter-rent to the exercise of associational rights than denialof a passport or a criminal penalty attached solely tomembership, and the Government's interest in keepingpotential spies and saboteurs from defense plants ismuch greater than its interest in keeping disloyal Ameri-cans from traveling abroad or in committing all Partymembers to prison. The "delicate and difl&cult judg-ment" to which the Court refers should thus result ina different conclusion from that reached in the Scalesand Aptheker cases.^The Court's motives are worthy. It seeks the widestbounds for the exercise of individual hberty consistentwith the security of the country. In so doing it arro-

1599

2 1 cannot agree with my Brother Brennan that Congress dele-gated improperly when it authorized the Secretary of Defense todetermine "with respect to the operation of which [defense facih-ties] . . . the security of the United States requires the apphcationof the provisions of subsection (a) of this section." Rather I thinkthis is precisely the sort of apphcation of a legislative determinationto specific facts within the administrator's expertise that today'scomplex governmental structure requires and that this Court hasfrequently upheld. E. g., Yakus v. United States, 321 U. S. 414(1944). I would reject also appellee's contention that the statuteis a bill of attainder. See United States v. Brown, 381 U. S. 437,462 (1965) (White, J., dissenting).


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UNITED STATES v. ROBEL.gates to itself an independent judgment of the require-ments of national security. These are matters aboutwhich judges should be wary. James Madison wrote:

"Security against foreign danger is one of theprimitive objects of civil society. . . .

". . . The means of security can only be regu-lated by the means and the danger of attack. Theywill in fact be ever determined by these rules, andby no others. It is in vain to oppose constitutionalbarriers to the impulse of self-preservation. It isworse than in vain; because it plants in the Consti-tution itself necessary usurpations of power, everyprecedent of which is a germ of unnecessary andmultiplied repetitions." ^

3 The Federalist No. 41 (Cooke ed. 1961) 269-270.


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[SUPBEME COURT OF THE UNITED STATESjOCTOBER TERM, 1958.

Syllabus. 360 U. S.

GREENE V. Mcelroy et al.CERTIORARI TO tHE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT,No. 180. Argued April 1, 1959.Decided June 29, 1959.

Petitioner, an aeronautical engineer, was general manager of a pri-vate corporation engaged in developing and producing for theArmed Forces goods involving military secrets, under contractsrequiring the corporation to exclude from its premises personsnot having security clearances. Under regulations promulgatedby the Secretary- of Defense without explicit authorization byeither the President or Congress, and after administrative hearingsin which he was denied access to much of the information adverseto him and any opportunity to confront or cross-examine wit-nesses against him, petitioner was deprived of his security clearanceon the grounds of alleged Conamunistic associations and sympathies.As a consequence, the corpwraticm discharged him and he wasunable to obtain other employment as an aeronautical engineer.He sued for a judgment declaring that the revocation of hissecurity clearance was unlawful and void and an order restrainingthe Secretaries of the Armed Forces from acting pursuant to it.Held: In the absence of explicit authorization from either thePresident or Congress, the Secretaries of the Armed Forces werenot authorized to deprive petitioner of his job in a proceedingin which he was not afforded the safeguards of confrontation andcross-examination. Pp. 475-508.

(a) Neither Executive Order No. 10290 nor Executive OrderNo. 10501 empowers any executive agency to fashion securityprograms whereby persons are deprived of their civilian ^iidploy-ment and of the opportunity of continued activity in their chosenprofessions without being accorded the chance to challenge effec-tively the evidence and testimony upon which an adverse securitydetermination might rest. Pp. 500-502.

(b) Neither the National Security Act of 1947 nor the ArmedServices Procurement Act of 1947, even when read in conjunction

communicate to


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GREENE V. Mcelroy.474 Opinion of the Court.

for an officer or employee of the United States to communicateclassified information to agents of foreign governments or officersand members of "Communist organizations/' constitutes an au-thorization to create an elaborate clearance program under whichperscms may be seriously resti^ined in their employment oppor-tunities through a denial of clearance without the safeguards ofcross-examination and confrontation. Pp. 502-504.

(c) Congressional ratification of the security clearance i^roce-dures cannot be implied from the continued appropriation of fundsto finance aspects of the program fashioned by the Department ofDefense. Pp. 504-505.

(d) In this area of questionable constitutionality, this Courtwill not hold that a person may be deprived of the right to followhis chosen profession without full hearings where accusers maybe confronted and cross-examined, when neither the President norCongress has explicitly authorized such procedure. Pp. 506-508.

103 U. S. App. D. C. 87, 254 F. 2d 944, reversed and cause remanded.

Carl W. Beruefjy argued the cause and filed a brief forpetitioner.

Assistant Attorney General Doub argued the cause forrespondents. With him on the brief were Solicitor Gen-eral Rankin, Samuel D. Slade and Bernard Cedarbaum.David I. Shapiro filed a brief for the American Civil

Liberties Union, as amicus curiae, urging reversal.

Mr. Chief Justice Warren delivered the opinion ofthe Court.

This case involves the validity of the Government'srevocation of security clearance granted to petitioner,an aeronautical engineer employed by a private manufac-turer which produced goods for the armed services. Peti-tioner was discharged from his employment solely as aconsequence of the revocation because his access to classi-fied information was required by the nature of his job.After his discharge, petitioner was unable to secure


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OCTOBER TERM, 1958.Opinion of the Court. 360 U.S.

employment as an aeronautical engineer and for all prac-tical purposes that field of endeavor is now closed to him.

Petitioner was vice president and general manager ofEngineering and Research Corporation (ERCO), a busi-ness devoted primarily to developing and manufacturingvarious mechanical and electronic products. He beganthis employment in 1937 soon after his graduation fromthe Guggenheim School of Aeronautics and, except for abrief leave of absence, he stayed with the firm until hisdischarge in 1953. He was first employed as a juniorengineer and draftsman. Because of the excellence ofhis work he eventually became a chief executive officer ofthe firm. During his career with ERCO, he was creditedwith the expedited development of a complicated elec-tronic flight simulator and with the design of a rocketlauncher, both of which were produced by ERCO and longused by the Navy.

During the post-World War II period, petitioner wasgiven security clearances on three occasions.* These wererequired by the nature of the projects undertaken byERCO for the various armed services.^ On November 21,

^ Petitioner was given a Confidential clearance by the Army onAugust 9, 1949, a Top Secret clearance by the Assistant Chief ofStaff G-2, Military District of Washington on November 9, 1949,and a Top Secret clearance by the Air Materiel Command on Feb-ruary 3, 1960.

^ ERCO did classified contract work for the various services. In1951, in connection with a classified research project for the Navy,it entered into a security agreement in which it undertook "to pro-vide and maintain a system of security controls within its . . . ownorganization in accordance with the requirements of the Departmentof Defense Industrial Security Manual . . ." The Manual, in turn,provided in paragraphs 4 (e) and 6: ,. '"The Contractor shall exclude (this does not imply the dismissalor separation of any employee) from any part of its plants, factories,or sites at which work for any military department is being per-


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GREENE V. Mcelroy.Opinion of the Court.

1951, however, the Army-Navy-Air Force Personnel Secu-rity Board (PSB) advised ERCO that the company'sclearances for access to classified information were injeopardy because of a tentative decision to deny petitioneraccess to classified Department of Defense informationand to revoke his clearance for security reasons.^ ERCOwas invited to respond to this notification. The corpora-tion, through its president, informed PSB that petitionerhad taken an extended furlough due to the Board's action.The ERCO executive also stated that in his opinion peti-tioner was a loyal and discreet United States citizen andthat his absence denied to the firm the services of anoutstanding engineer and administrative executive. OnDecember 11, 1951, petitioner was informed by the Boardthat it had "decided that access by you to contract workand information [at ERCO] . . . would be inimical todepartment concerned or his duly authorized representative, in theinterest of security, may designate in writing."No individual shall be permitted to have access to classified matterunless cleared by the Government or the Contractor, as the case maybe, as specified in the following subparagraphs and then he will begiven access to such matter only to the extent of his clearance. . . ."

^ The P*SB was created pursuant to an interim apreemctit datedOctober 9, 1947, between the Army, Navy, and Air Forcf and pursu-ant to a memorandum of agreement between x\w Provof-t MarshalGeneral and the Air Provost Marshal, dated March 17, 1948. "Itwas a three-man board, with one representative from eacli of themilitary departments .... Its functions were to print or denyclearance for employment on aeronautical or classified '')titrart workwhen such consent was required, and to "-usjK^nd individuals, whosecontinued employment was considered inimical to the security inter-ests of the United States, from employment on classified work."Report of the Commission on Government Security, 1957, S. Doc.No. 64, 85th Cong., Ist Sess. 239. It established its own procedureswhich were approved by the Secretaries of the Army, Navy, andAir Force. See "Procedures Governing tho .Army-Navy-Air Force

"


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the best interests of the United States." Accordingly, thePSB revoked petitioner's clearances. He was informedthat he could seek a hearing before the Industrial Employ-ment Review Board (lERB), and he took this course.*Prior to the hearing, petitioner received a letter inform-ing him that the PSB action was based on informationindicating that between 1943 and 1947 he had associatedwith Communists, visited officials of the Russian Embassy,and attended a dinner given by an allegedly CommunistFront organization.On January 23, 1952, petitioner, with counsel, appeared

before the lERB. He was questioned in detail concern-ing his background and the information disclosed in thelERB letter. In response to numerous and searchingquestions he explained in substance that specific "suspect"persons with whom he was said to have associated wereactually friends of his ex-wife. He explained in somedetail that during his first marriage, which lasted from

* The lERB was a four-member board which was given jurisdictionto hear and review appeals from decisions of the PSB. Its charter,dated 7 November 1949 and signed by the Secretaries of the Army,Navy, and Air Force, contemplated that it would afford hearings topersons denied clearance. And see "Procedures Governing Appealsto the Industrial Employment Review Board, dated 7 November1949."

' The letter read, in part:"That over a period of years, 1943-1947, at or near Washington,D. C, you have closely and sympathetically associated with persons

who are reported to be or to have been members of the CommunistParty; that during the period 1944-1947 you entertained and werevisited at your home by miUtary representatives of the RussianEmbassy, Washington, D. C; that, further, you attended social func-tions during the period 1944-1947 at the Russian Embassy, Wash-ington, D. C; and on 7 April 1947 attended the Southern Conferencefor Human Welfare, Third Annual Dinner, Statler Hotel, Washing-ton, D. C. (Cited as Communist Front organization. CongressionalCommittee on Un-American Activities)."


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1606 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950l


1942 through 1947, his then wife held views with whichhe did not concur and was friendly with associates andother persons witii whom he had little in common. Hestated that these basic disagreements were the prime rea-sons that the marriage ended in failure. He attributedto his then wife his attendance at the dinner, his member-ship in a bookshop association which purportedly was a"front" organization, and the presence in his home of"Communist" publications. He denied categorically thathe had ever been a "Communist" and he spoke at lengthabout his dislike for "a theory of Government whichhas for its object the common ownership of property."Lastly, petitioner explained that his visits to personsin various foreign embassies (including the RussianEmbassy) were made in connection with his attempts tosell ERCO's products to their Governments. Petitioner'switnesses, who included top-level executives of ERCOand a number of military officers who had worked withpetitioner in the past, corroborated many of petitioner'sstatements and testified in substance that he was aloyal and discreet citizen. These top-level executives ofERCO, whose right to clearance was never challenged,corroborated petitioner's testimony concerning his reasonsfor visiting the Russian Embassy.The Government presented no witness's. It was ob-

vious, however, from the questions posed to petitionerand to his witnesses, that the Board relied on confidentialreports which were never made available to i)ctitioner.These reports apparently were compilations of statementstaken from various persons contacted by an investigatoryagency. Petitioner had no opportunity to confront andquestion persons whose statements reflected adversely onhim or to confront the government investigators who tooktheir statements. Moreover, it seemed evident that theBoard itself had never questioned the investigators and


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AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195o| 1607

OCTOBER TERM, 1958.Opinion of the Court. 360 U. S.

had never seen those persons whose statements were thesubject of their reports.On January 29, 1952, the lERB, on the basis of the

testimony given at the hearing and the confidential re-ports, reversed the action of the PSB and informedpetitioner and ERCO that petitioner was authorized towork on Secret contract work.On March 27, 1953, the Secretary of Defense abolished

the PSB and lERB and directed the Secretaries of thethree armed services to establish regional Industrial Per-sonnel Security Boards to coordinate the industrial secu-rity program.^ The Secretaries were also instructed toestablish uniform standards, criteria, and procedures.^

The Boards were aboHshed pursuant to a memorandum of March27, 1953, issued by the Secretary of Defense to the Secretaries ofthe Arm}', Navy, and Air Force and to the Chairman of the Muni-tions Board. It provided in part:

"5. The Department of the Army, Navy and Air Force shall estab-lish such number of geographical regions within the United Statesas seems appropriate to the work-load in each region. There shallthen be established within each region an Industrial Personnel Secu-rity Board This board shall consist of two separate and distinctdivisions, a Screening Division and an Appeal Division, with equalrepresentation of the Departments of the Army,. Navy and Air Forceon each such division. The Appeal Division shall have jurisdictionto hear appeals from the decision of the Screening Division and itsdecisions shall be determined by a majority vote which shall befinal, subject only to reconsideration on its own motion or at therequest of the appellant for good cause shown or at the request ofthe Secretary of any military department."

^ The memorandum from the Secretary of Defense also provided:"6. The Secretaries of the Army, Navy and Air Force, shall within

thirty days (30), establish such geographical regions and develop jointuniform standards, criteria, and detailed procedures to implement theabove-described program. In developing the standards, criteria, andprocedures, full consideratioUj shall be given to the rights of indi-viduals, consistent with security requirements. After approval by


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Cases pending before the PSB and lERB were referred tothese new Boards." During the interim period betweenthe abolishment of the old program and the implementa-tion of the new one, the Secretaries considered themselvescharged with administering clearance activities underpreviously stated criteria."On April 17, 1953, respondent Anderson, the Secretaryof the Navy, wrote ERCO that he had reviewed peti-tioner's case and had concluded that petitioner's "con-tinued access to Navy classified security information[was] inconsistent with the best interests of NationalSecurity." No hearing preceded this notification. Herequested ERCO to exclude petitioner "from any partof your plants, factories or sites at which classified Navyprojects are being carried out and to bar him access toall Navy classified information," He also advised thecorporation that petitioner's case was being referred tothe Secretary of Defense with the recommendation thatthe lERB's decision of January 29, 1952, be overruled.ERCO had no choice but to comply with the request.^**the Secretaries of the Army, Navy, and Air Force, the standards,criteria, and procedures shall govern the operations of the Board.""The memorandum provided:"7. All cases pending before the Army-Navy-Air Force l*ersonnei

Security Board and the Indu.strial Employment I^eview Board .'hallbe referred for action under this order to the approi)riate IndustrialPersonnel Security Board."

The memorandum further provided"4. The Criteria Governing Actions by the Imlustrial Emi)loyment

Review Board, dated 7 November 1949, as revised 10 NovemWr 1050,and approved by the Secretaries of the Army, .Navy, and Air Force,shall govern security clearances of indut^trial farilitie,'^ and industrialpersonnel by the Secretaries of the Army, Navy .md Air Force untilsuch time as uniform criteria arc est,-blirh>d m connection withparagraph 6 of this memorandum."

^See note 2, supra.


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AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, 1609


This led to petitioner's discharge." ERCO informed theNavy of what had occurred and requested an opportunityto discuss the matter in view of petitioner's importanceto the firm.'* The Navy replied that "[ajs far as the Navy" The Chairman of the Board of ERCO, Colonel Henry Berliner,

later testified by affidavit as follows:"During the year 1953, and for many years previous thereto, I

was the principal stockhdder of Engineering and Research Corpora-tion, a corporation which had its principal place of business at River-dale, Maryland. I was also the chairman of the board, and theprincipal executive officer of this corporation.

"I am acquainted with William Lewis Greene. Prior to the monthof April, 1953, Mr. Greene was Vice-President in charge of engineer-ing and General Manager of Engineering and Research Corp


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Department is concerned, any further discussion on thisproblem at this time will serve no useful purpose."

Petitioner asked for reconsideration of the decision.On October 13, 1953, the Navy wrote to him stating thatit had requested the Eastern Industrial Personnel SecurityBoard (EIPSB) to accept jurisdiction and to arrive at afinal determination concerning petitioner's status." Var-factories or sites and to bar him from information, in the inter-ests of protecting Navy classiiSed projects and classified securityinformation.

"In accordance with your request, please be advised that sincereceipt of your letter this company has excluded Mr. Grei'ne fromany part of our plants, factories or sites and barred him access toall classified security information."For your further information, Mr, Greene tendered his resigna-

tion as an officer of this corporation and has left the plant. Weshall have no further contact with him until his status is clarifiedalthough we have not yet formally accepted his resignation."Mr. Greene is Vice President of this company in charge of en-

gineering. His knowledge, experience and executive ability haveproven of inestimable value in the past. The loss of his services atthis time is a serious blow to company operations. Accordingly, weshould like the privilege of a personal conference to discuss thematter further.

"Furthermore, you state that you are referring the case to theSecretary of Defense recommending that the Industrial EmploymentReview Board's decision of January 29, 1952 be overruled If it isappropriate, we should like very much to have the privilege ofdiscussing the matter with the Secretary of Defense.

"Please accept our thanks for any official courtesies which you arein a position to extend.

"Respectfully yours,"Engineering and Research Corporation"By /a/ L. A. Wells"

* On May 4, 1953, pursuant to the memorandum of the Secretaryof Defense dated March 27, 1953, see note 6, supra, the Secretariesof the military departments established regional Industrial PersonnelSecurity Boards governed by generalized standards, criteria, andprocedures.


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ious letters were subsequently exchanged between peti-tioner's counsel and the EIPSB. These resulted finallyin generahzed charges, quoted in the margin, incorporat-ing the information previously discussed with petitionerat his 1952 hearing before the lERB."

^* The specifications were contained in a letter to petitioner'scounsel dated April 9, 1954, which was sent nineteen days beforethe hearing. That letter provided in part:

"Security considerations permit disclosure of the following infomaa-tion that has thus far resulted in the denial of clearance to Mr.Greene

"1. During 1942 SUBJECT was a member of the WashingtonBook Shop Association, an organization that has been officially citedby the Attorney General of the United States as Communist andsubversive.

"2. subject's first wife, Jean Hinton Greene, to whom he wasmarried from approximately December 1942 to approximately De-cember 1947, was an ardent Communist during the greater part ofthe pt'riod of the marriage.

"3. During the period of SUBJECT'S first marriage he and hiswife had many Communist pubUcations in their home, including the'Daily Worker'; 'Soviet Russia Today'; 'In Fact'; and Karl Marx's'Das Kapital.'

"4. Many apparently reliable witnesses have testified that duringthe period of SUBJECT'S first marriage his personal political sym-pathies were in general accord with those of his wife, in that he wassympathetic towards Russia; followed the Communist Party 'line';presented 'fellow-traveller' arguments; was apparently influencedby 'Jean's wild theories'; etc. [Nothing in the record establishes thatany witness "testified" at any hearing on these subjects and every-thing in the record indicates that they could have done no morethan make such statements to investigative officers.]

"5. In about 1946 SUBJECT invested approximately $1000. inthe Metropolitan Broadcasting Corporation and later became a di-rector of its Radio Statimi WQQW. It has been reliably reportedthat many of the stockholders of the Corporation were CommunistAor pro-Communists and that the news oovert^e and radio programsof Station WQQW frequently paralleled the Communist Party 'line.'[This station is now Station WGMS, Was

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Amending the Subversive Activities Control Act of 1950-1968-2

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