George Cochran Doub: -- this program as I see it, is this that in the case of sensitive positions, whether in the Government or outside, the Government is entitled to the benefit of the doubt. But in the case of non-sensitive positions the ordinary employment by the State or by others then the employee is entitled to the benefit of the doubt and therefore ordinary due process requirements must be met. And it seems to me that that distinction is a reasonable and logical one. As the Solicitor General pointed out the only power asserted by the Government in this case is the refusal to disclose to a private person secret, top secret in this case military information and it's -- for which it's responsible.And that information is made available to private persons solely for the benefit of the United States.
Earl Warren: Well, Mr. Doub, does that carry into the conclusion that -- that you can -- the Government can cause the result that happened to this man without any procedure of any kind and without giving him any notice of any kind of the charges against him?
George Cochran Doub: Well, as a matter of fact, if the Court please, you'll find the statement of the derogatory information was furnished.
Earl Warren: No, no I didn't ask -- I didn't ask you that. I know there was happening here eventually but -- but does it carry you, does your argument that you just made, carry you to that conclusion?
George Cochran Doub: Yes, it -- it would Your Honor. It would.
Earl Warren: It would.
George Cochran Doub: In other words, it would presuppose that there may be in an individual case an injustice and an inequity. But when you balance that against the right itself, preservation of the Government, the greatest responsibility we have or we say the interests -- the people of the United States are entitled to the benefit of the doubt in this restricted area even though -- even though in denying a man access, it may have the consequential effect as it did here of loss of employment.
Earl Warren: Now, that isn't exactly the -- if I may finish this. That isn't exactly the way I understood the Solicitor General. I understood the Solicitor General this morning to -- to say that some procedure must be given to this man and that if it was arbitrary, completely arbitrary, that it -- it would violate his rights.
George Cochran Doub: Well, as I understood the Solicitor General, we're both in accord that no discriminatory policy can be adopted such as no Democrats may have access to secret information or Republicans. And -- but I don't believe he intended to go further than that, but in any event if you feel there must be the Constitution requires a form of hearing then I will address myself to the point that this limited, restricted hearing under these circumstances and you must consider all the circumstances may be adequate. But may I point that --
Earl Warren: We are not pointing it to that. May I ask, if it wasn't the fact that the petitioner in this case was discharged by -- caused to be discharged by the letter of the Secretary without affording him any procedure of any kind and without giving him any information of any kind.
George Cochran Doub: No, he -- he requested a hearing and was (Voice Overlap) --
Earl Warren: Well, I know, but he was already (Voice Overlap). He was already discharged, wasn't he? And he didn't get it for some seven months after that. I'm --
George Cochran Doub: Yes.
Earl Warren: -- referring to these two -- two items that were called to -- to our -- our attention. The one that -- on page -- on Page 29 of the record where on or about April 17th, 1953, Robert B.Anderson sent -- the letter set forth in paragraph 5 of the complaint, and then prior to the letter of April 17th referred to no communication of any kind relating to the action of Robert B.Anderson was sent to the plaintiff and his employer. And except his hearing set forth, there was no direct communication between the Department of Defense and the plaintiff. So, that's what caused his discharge. Now, later it's true he did have a hearing some seven months later or eight months later before the Eastern Industrial Personnel Security Board but at that time it stipulated that in making its decision the Board took into consideration the whole file to the case which includes information neither the content nor source of which has been -- has been revealed to plaintiff. Now, that's a stipulation of the parties as I understand it.
George Cochran Doub: Well, I would like to give Your Honors these page references in the transcript where he was -- where the Board told him that a witness says this, what comment do you have to make on it? And --
Earl Warren: Now, what do you do with this stipulation that I just read?
George Cochran Doub: Well I don't think it was -- I think it meant, Mr. Chief Justice, that they did not give him a separate summary of the information that they had in the file. But they did in when he was testifying, they did quote to him things that witnesses said and I would like to give you paper --
Earl Warren: No, but this stipulation says that he got neither the content nor source of which --
George Cochran Doub: Well, he certainly was not given the sources.
Earl Warren: Yes. And this says the content, your stipulation, what are you going to do with it?
George Cochran Doub: Well, he -- he was given the content of a great deal of material and I'd like to give you the page references where they appear. What I want --
Earl Warren: Well I -- I won't bother you to do that because I won't read them right now, but I just wondered how, what are you going to do with that stipulation?
George Cochran Doub: Well, I accept it as -- as it stands, but the record does show that if any one is interested that in 20 or 22 instances, statements of -- from what they had in their file were read to him or summarized to him during the course of the hearing. Now, if the court please, this power of -- of acting on a doubt or on whether someone is trustworthy is one that's freely used by every private employer in the world, so the effort here is not to subject the Government, that duty is comparable to that of a private person but to greater duties because it is the Government. Now, may I point out this. We would -- I think we'd have to agree that no one has any constitutional right to access to government secret, no one has any legal right. So then -- then to find a constitutional basis we're saying that Mr. Green is entitled to a constitutional trial type due process hearing. We have to find some interest that he has. Certainly it's not the right of access. So, you say, well it's -- it's financial determinant. Here, he consequentially lost his job. Now is that -- is that a sufficient interest? Certainly it's not enough as Mr. Justice Black said in Lukens Steel after stating that no legal rights were invaded when the Government refused to contract with a private corporation, he said this, “It is by now clear that neither damage nor loss of income in consequence of the action of the Government, which is not an invasion of recognized legal rights is in itself a source of legal rights in the absence of constitutional legislation recognizing it as such.”
Hugo L. Black: I wouldn't think that as in application here, maybe it does, that was said with reference to business people who wanted to claim they had a legally recognizable right to make contact with the Government.
George Cochran Doub: That's right.
Hugo L. Black: Your question is whether the Government can invade this man's undoubted right to hold his job unless there's some for some legal reason the Government can have him removed.
George Cochran Doub: That's right. And -- and you -- you pointed out, Mr. Justice Black, that the Government had the unrestricted power to determine with whom it will be --
Hugo L. Black: That's right, that's correct.
George Cochran Doub: Now --
Hugo L. Black: But we didn't have anything there about the conditions of employment that would --
George Cochran Doub: No.
Hugo L. Black: Affect anybody else?
George Cochran Doub: No. But your -- but if the language does to him -- to United States, applicable here, and suppose Greene had been transferred from a -- this sensitive job to a non-sensitive job, would he have had legal standing to say his constitutional rights were invaded? He would have had no financial loss but if he wouldn't, then you set up one constitutional standard for those who consequentially lose their position, not because although the Government did the same thing in each case, it denied clearance and because his employer doesn't have non-sensitive work for him, I -- I say that would be a completely illogical conclusion. So, I don't think it can be predicated upon a financial loss.
Earl Warren: Well, are you certain that -- that the Government could by a procedure of this kind or lack of procedure of this kind so circumscribe the activities of a -- of a man whether within or without the plant he is working in so that he cannot -- he cannot hold the kind of position that his -- his training and ability entitle him to? Would you say that is clear that they could do that, move him around in that way and eventually move him down where all he could do is clean up the building? Do --
George Cochran Doub: Well --
Earl Warren: -- you assume --
George Cochran Doub: -- if the Court please --
Earl Warren: -- but that's perfectly all right to take and do, that they can do that, but I don't know that they can do that. I -- I don't think that's been established, has it?
George Cochran Doub: Well of course --
Earl Warren: By --
George Cochran Doub: -- it's no.
Earl Warren: -- branding him -- by branding him as a man who is not fit to -- to have -- have these secrets because of his associations with subversives?
George Cochran Doub: Well, if the Court please, no characterization has been made of him by the Government beyond denying him access to government secrets, as in the case of a government employee who's denied access. That's, in other words, we go no further than we had to go in denying him access. Now, it's true that these unfortunate consequences have -- have fallen. Actually this administration destroyed, obviated the old President Truman loyalty standard which did involve stigma and we set up a standard that we tried to make as innocuous as possible and that was clearly consistent with the --
Hugo L. Black: Make it what?
George Cochran Doub: As innocuous as possible from the standpoint of the individual [Laughs] and that was clearly consistent with the interest of national security. Now -- now the New York Bar Committee has suggested pretty good standard. They say that is continued employment is undesirable.
Hugo L. Black: May I ask if your argument is something like this. And may lead to something else in connection with it, or may not. You are saying it for the good of the public, public welfare demand, something be done to this man whereby he surrenders for the public good his job with all the losses that may entail to him. Now, if he'd owned the laundry as an individual and done that could you -- could you take it with that (Inaudible)
George Cochran Doub: Certainly not.
Hugo L. Black: What's the difference?
George Cochran Doub: Well, if the court please --
Hugo L. Black: Well let's suppose he does on the growing concern, there's no inability --
George Cochran Doub: Well --
Hugo L. Black: Can you take it -- take it away from him without paying?
George Cochran Doub: Of course, we didn't direct his employer to dismiss him.
Hugo L. Black: Well, for that was --
George Cochran Doub: -- We --
Hugo L. Black: not -- that -- that wouldn't be -- that wouldn't a defense if -- if the compensation so as it applied, would it?
George Cochran Doub: No, no.
Hugo L. Black: What do say? Maybe it has nothing to do with it, but would -- would it not have something to do with the consideration of the whole subject?
George Cochran Doub: I don't know, Mr. Justice Black. I don't know the answer to that. May I say this on stigma, is there a more stigma here than if we had denied him a clearance without a criminal conviction for accepting a bribe or for theft or for rape, and in each of those cases the courts have refused to find the constitutional right entitling an employee to be protected by procedural due process when his employer, private or the Government, dismisses him for those reasons. Actually, this case seems stronger from the government's point of view because here you are dealing with secrets of the United States.
Earl Warren: Well, what if they want to say if a man had been convicted of -- of rape and another thing if they were just some anonymous or baseless charge against him that he -- he had done such a thing when he wanted to be confronted by the witness against him and was denied the opportunity? How would it then --
George Cochran Doub: There could be a difference.
Earl Warren: I would think that there --
George Cochran Doub: -- (Voice Overlap) but in the case that I cited Your Honor to you there was no conviction. The employee was dismissed on the ground that his employer believed he had committed a theft or a rape or somehow they're dishonest.
Hugo L. Black: But was he employed at will?
George Cochran Doub: Yes at will, now --
Hugo L. Black: But if the Government had done that, you wouldn't have any problem there, would you?
George Cochran Doub: No.
Hugo L. Black: If the Government had employed him at will, but what is it that causes --
George Cochran Doub: No.
Hugo L. Black: -- you to say that he's entitled to due process. I -- I'm asking you that because to me if he's entitled to due process, it's one thing. I find it a little difficult to shrink it to the dimension as it had been suggested in one type of case and expanded in another. If he's entitled to due process at all, how can we say that it's just the slight amount that is suggested here by weighing each time?
George Cochran Doub: Well, I was trying to consider all the factors involved in this very determination, is he entitled to a due process trial hearing? I pointed out financial determinant, is not enough. I was pointing out stigma, is not enough.
Hugo L. Black: So, you say he's not entitled to due process here?
George Cochran Doub: Not entitled to a due process trial type hearing because if he is entitled to it, why, of course, there's no reason for us to be here.
Hugo L. Black: What, you mean no he is -- the different ideas of due process as you know and all of us know, do you -- are you saying the government has a right, I can understand that argument, but for many years the Government had fired whosoever it chose whenever it saw fit, and nobody raised much questions about it. Are you standing now on the base that he -- he is entitled to some of the elements duly recognized as the part of due process and not entitled to others or that he is not entitled to any of them?
George Cochran Doub: Well, if the Court please, I think a very strong argument can be made, that in these sensitive areas that we are talking about no constitutional rights were involved at all. In other words, as the District Court and the Court of Appeals for the District of Columbia held, he has no constitutional right to confrontation. That this is a matter -- this question of the Government just determining to whom it will admit to access to its secrets is a matter for the executive determination. And unless that's one approach to it, even though there are these distasteful qualities to the legal mind, where you have no trial type due process hearing and they are distasteful. There's no -- no question about that. But in this restricted area there should be no such requirement. Now another approach is, well assuming, that -- that that's not correct, that there are rights to work that are effective here, why then we would -- there would be the position while this restricted type of proceeding meets the test of due process even though it's not the one that we ordinarily associate -- we like. In other words, it is limited, it is restricted. Actually, in spite of all our horrors of baseless informers, I think the statistics are -- are very interesting on the extent to which this limited restricted hearing has worked in favor of employees of 3400 cases, in a five-year period before hearing boards, clearance was restored as a result of these limited hearings in 2453 cases. That's, in other words, over 60%. Now, of course, the answer could be, well, if there was confrontation, it would be lower. But I think we do have to balance Mr. Justice Black, this -- these rights of the individual against the other interests that are involved here, and they are tremendous, they are tremendous, yes.
Speaker: Many of them.
George Cochran Doub: Yes.
Speaker: Good.
Earl Warren: Mr. Doub, when was this man denied access to these secrets? What date, then by what documents or by what act was he denied?
George Cochran Doub: He was denied access by the Secretary of the Navy in April 1953.
Earl Warren: That was the letter -- the letter that -- that Secretary Anderson wrote to him and just tell -- telling him that he was denied access. Now there were no procedure of any kind before that, was it?
George Cochran Doub: Yes, there'd been a hearing before that and --
Earl Warren: Well, I know but none according to the proceeding that the -- the regular procedure --Yes, there'd been a -- he's had a -- he'd had a hearing before a board that it cleared him.
Earl Warren: Cleared him, yes all right.
George Cochran Doub: Cleared and the Secretary of the Navy wrote this letter saying he'd reviewed those proceedings and he was revoking his clearance.
Earl Warren: Did he say that -- did he say that it was on a review of those proceedings?
George Cochran Doub: Yes, he did.
Earl Warren: That's what the letter said.
George Cochran Doub: Yes, sir.
Earl Warren: All right.
William J. Brennan, Jr.: So, this was under reversal was it in effect this time?
George Cochran Doub: And was reversal, yes.
William J. Brennan, Jr.: By the secretary of the Board.
George Cochran Doub: And then, then he referred it to this another hearing board when the employee requested it. Well just before leaving the constitutional issue I just conclude with this. There's one other facet here and that is what would be the consequences of a holding where the trial type hearing with confrontation as a constitutional prerequisite to a denial of access to secret information. Now, I'd like to suggest that the consequences of such a hearing may be far worse than the possibilities of inequity or injustice in a particular case under these regulations. First, it -- it would mean that the Government, unless it's prepared to produce its sources of information in a hearing, information that is classified, unless it's prepared to do that, it then cannot revoke the clearance or deny clearance to any industrial worker. It must trust those whom it doesn't trust. It must accept as reliable those who it doesn't consider reliable. The decree would amount to a mandamus of the executive to disclose publically to the petitioner one of two kinds of information, the secrecy of which the executive has determined to be required. Now, further more, when you define a constitutional principle of that kind, it means it's applicable in time of war as well as in peace. Now, can it be in time of war even, we must admit to access to government secrets, persons whom we don't trust? I think that would seem inexplicable to the, not merely the political branches of the Government, but to the people of the United States. And wouldn't it mean that a constitutional principle had been defined on such a metaphysical basis as even to endanger the security of the United States? Of course, it would deny to the Government the privilege of every private employer, to deny the -- to the executive in the case of military secrets the privilege to exercise by the judiciary in determining whom it will admit to its judicial secrets. So, I don't believe that this issue can be resolved merely in terms of -- no exact words so I say, on personal freedom. There are too many other factors here. Now I like to return, in the few minutes left to me to Mr. Justice Black's question about statutory authority. Our brief argues extensively --
William J. Brennan, Jr.: (Inaudible) Is there any indication what kind of informants do you have involved here?
George Cochran Doub: No, and I read this record carefully, Mr. Justice Brennan, and I could not tell from the record whether they were causal, whether they were intelligence agents or what they were. In other words, there were a number of quotations or -- or the -- the Board would say to -- to Greene, we have information as to this list. And in every case except one Mr. Greene said, yes that's right. But -- and he would explain why he saw this --
William J. Brennan, Jr.: By this time someone that had him under surveillance, doesn't they? Just knowing --
Earl Warren: I suppose it wouldn't make any difference to you and your argument whether they were -- were employees of the Government, undercover agents or whether they were just casual informers, neighbors, or -- or strangers, or whoever it might be? That -- that's your position?
George Cochran Doub: Well Mr. Chief Justice I have before me a statement of Attorney General Brownell.
Earl Warren: Well, no. I was -- I don't care about Brownell's, Mr. Brownell's statement, I just like to get your opinion in -- in how far you go on your argument. Would it make any difference to you in this case, whether it were known as a fact, how many of these were witnesses that you used to deprive the man of his rights, were employees of the Government and -- and therefore in a confidential relationship or how many of them might have been people who just wrote in and said we -- this man is a Communist. We know he does so and so. What is the fact? Will it make any difference to you or not?
George Cochran Doub: Well, I think that it's perhaps debatable. As a matter of fact, there's been criticism and there have been suggestions made that an improved policy would be to require casual informants to be produced. But my position is if there's no constitutional principle distinguishing between the two, in other words, I can ---- (Voice Overlap) how the -- it may be the executive should change this or the legislative power. But I can't comprehend the definition, or -- or I just can't formulate a constitutional principle that would apply to one, but not apply to the other. That's my difficulty. Now the -- what I was going to say was that it was stated, I think, by Mr. (Inaudible) that only the Chief of Intelligence, Mr. Hoover, had made the statements about the casual informers. Attorney General Brownell did make a comparable statement that they could not be produced. Now, on statutory authority, one statute defines the congressional policy that it's illegal for any person having defense or classified information to disclose the same to unauthorized persons. Now, this program we think represents an attempt to faithfully execute that law to define who are authorized and who are unauthorized. And another statute authorizes the head of these department to prescribe regulations for the custody, use, and preservation of records, papers and property and we think that would extend to the protection of property the title of which is not yet under the United States such as guns, aircraft parts, electronic parts being produced in United States because they are appertaining to the department. And the statute use the word ‘appertaining.' Further, there've been numerous appropriations by the Congress for the Defense Department upon representations by the Defense Department explaining that the money was to be used for this program says that further, there's a statute appointing the right commission and to study this and the other security programs and providing for the appointment of members of the Senate and members of the House, all showing a -- a close acknowledgement by the Congress of the existence of the program and knowledge of the program, and -- and indeed you'll find that the commission itself found statutory authority which included members of the Senate and the House. And you'll find a -- a very good analysis in its report of -- of the statutes involved.
Potter Stewart: When all is said and done now, Mr. Doub, is am I right in understanding that you don't rely fundamentally on -- on any statutory authority if that is -- that's your position that in the absence of any such statutes, what is here present is an inherited -- inherent power --.
George Cochran Doub: That's right.
Potter Stewart: -- of the executive which is fundamentally --
Potter Stewart: -- non reviewable by the judiciary.
George Cochran Doub: That's -- that's correct, Your Honor, and I might say that none of the
Felix Frankfurter: -- (Voice Overlap)
George Cochran Doub: -- critics --
William J. Brennan, Jr.: (Inaudible) executive orders as to inviolability of some of the confidential information.
George Cochran Doub: Well, our -- our position as we outlined it in our brief is first, that this is an inherent power of the executive, but if the executive has secrets, inherently it must protect them and has the power to protect them and determine and select who shall have access to them and as the Solicitor General says the Government's operated on that basis for 170 years, and, of course, every government must be on the same position and we've developed that. Now, the right commission takes a different position. They feel that -- that it's a matter of statutory authority, but they conclude there is statutory authority and they have a more extensive discussion of the statutes than I think we have in our brief. Mr. Justice Brennan, I -- I understand there is a statute with respect to oaths and if -- if we find there is, I'd -- I'd like to give you a reference to it later.
Felix Frankfurter: Mr. Doub, I assume this is -- is also an either or -- or -- either or proposition, namely, the Government has confidential information. It therefore, may withhold it and therefore it may generate a process by which a man loses his job, is that right? I suggest the third alternative, if they have confidential information and if they hold on to it, and forgo therefore the right to have this individual (Inaudible) if it doesn't want to disclose it.
George Cochran Doub: Well, I --
Felix Frankfurter: It has to do that in connection with criminal prosecution.
George Cochran Doub: That's right. That's right and if -- but as I pointed out, Mr. Justice Frankfurter, think what an intolerable choice that is for the Government in this sensitive area relating to its sequence.
Speaker: That's the penalty the man paid for being in high position.
George Cochran Doub: [Laughter]. Well, we respectfully --
Felix Frankfurter: (Inaudible) that's what being in high office we learn that.
George Cochran Doub: We respectfully submit that this judgement should be affirmed.
Potter Stewart: Did you see the -- the constitution has at least this much effect, that if the department head, if the secretary sets up regulations for everybody, he has to abide by his own regulations for everybody.
George Cochran Doub: Yes.
Potter Stewart: And if he fires -- if he denies or asks the employer to deny confidential -- classified information to John Smith, only after a hearing and to Tom Jones and Bill Green, then with respect to Richard Brown he has to have a hearing, he has to -- the procedures whatever they are, I gather it's your position that there --
George Cochran Doub: I think so.
Potter Stewart: -- need not be any, but if there are any they have to be non-discriminatory.
George Cochran Doub: Yes, I think there have to -- there has to be administrative regularity, I should think -- I think even though there --
Potter Stewart: And that's the constitutional.
George Cochran Doub: I still interpret your decision --
Potter Stewart: (Inaudible)
Hugo L. Black: Not merely non discriminatory but if you set up procedures (Inaudible)
George Cochran Doub: That's right -- that's right. And I might say that I think there's an arguable point on administrative regularity in connection with the authority of the Secretary of the Navy, to act after this man had been cleared, but that question was not raised by counsel on the other side.
Earl Warren: Thank you. Mr. Berueffy.
Carl W. Berueffy: Mr. Chief Justice, may it please the Court. Mr. Justice Harlan first you asked me a question and I couldn't find the -- the precise citation. My letter to the Board, in which I asked for a pretrial conference and which I asked for great deal of information begins on page 178 of the printed record and extends to page 181 of the printed record. I would like, if I may, to devote my time to two basic propositions. First, Mr. Doub, is I think not observing a very basic difference. It seems to me that Colonel Berliner as the head of ERCO could have fired Greene on any ground that he wished to fire Greene on, good, bad or indifferent. It seems to me that as to a government employee subject to limitations that we all know, that same power would exist. What we are talking about here, however, is a perfectly satisfactory relation between an employer and his employee and a third person, albeit, the Government, coming in and interfering with that employment and this is what I think, Truax against Raich, said was protected against constitutional --
Speaker: But the Government, after all, thought that they are not taxed to have that right in accordance with the sanction of that right that complement didn't it?
Carl W. Berueffy: The Government purported to make that contract with the company.
Speaker: No, it's not the question of barging in without any power or right that it should come to the conclusion that it pressurized (Inaudible)
Carl W. Berueffy: Well, I think in general, Mr. Justice Harlan, that might be considered and that -- that brings us to our problem of -- of what the Solicitor General said yesterday as I see it, which is as a practical matter, the Government has to deal with -- with private businesses now, if it wants to get these things done. Now, where does the authority for this kind of a contractual provision, which in reality and which in effect gives the Government control over the employees of -- the people who are employed by private business? Where does that come from? Well, the thing that seems to me most important is, that one might concede that the Government could exercise such an authority to him and could by some fair procedure exclude those persons as to whom it is has a doubt. I concede this for the purpose of argument only, but still I don't think that it is possible, inherently, in the American system of constitutional government, to have any government official with an absolutely arbitrary power to do this kind of thing. I think we are now talking in -- in very real terms of too much power in the hands of the Government. First proposition is this. Let's assume that on the basis of these things, if in context, these things that are said about Greene, if in context one might have a reasonable doubt as to whether it was wise to permit access or not, still it would have to be a reasonable doubt, and it can't be a reasonable doubt unless there's been something approximating a fair procedure. Now, I am not necessarily talking about a judicial trial or anything like that, but there has to be a fair procedure for determining what the facts are and how they fit into the context.
Potter Stewart: Well, I'm interested in what you just said, you said you are not contending here that the -- all the procedures that due process requires surround a judicial proceeding are applicable here.
Carl W. Berueffy: I think this is absolutely correct. I think --
Potter Stewart: Now what are you saying, what are the minimal requirements which are applicable?
Carl W. Berueffy: I think -- it think the minimum requirement if I may say so, is some kind of a procedure which looked at overall results in some confidence that this is a fair result and that it has been fairly arrived at.
Potter Stewart: What does that mean?
Carl W. Berueffy: All right.
Potter Stewart: Translate that into what you think, would have satisfied (Inaudible)
Carl W. Berueffy: Well, of course our position is that we didn't get anything and therefore anything we asked for, that we're entitled to gives us a right to the judgment here. I think you have to have some kind of a fair notice, which tells you what the real facts are, what the real facts upon which the government proposes to act by depriving you of your employment. This you must have. This is -- this is an absolute requirement of -- of anything to be described as a pair process. This by stipulation, I might say, signed by the Assistant Attorney General, we did not get.
Speaker: You've got the end result. You've got it on after the event so to speak, but after you demanded a hearing in that.
Carl W. Berueffy: We didn't get it even then, Mr. Justice Harlan. The stipulation that -- that they have never told us, either the source or the (Inaudible) of all these things that they brought against him. Now, I think if the Secretary of -- of the Navy is a reasonable person, I think he did not deny Mr. Greene clearance because Mrs. Greene, the former Mrs. Greene thought that sleeping on bed boards kept the common touch. So, we don't know what it is that this decision was based on. All we know is by stipulation there was something we didn't know about. Now, the second thing is I don't think you have to have a jury trial and I don't think you have to use the formal rules of evidence, but you do have to arrive at facts on some kind of a rational, factual basis. And it isn't fair and it isn't correct to say, that because Greene said that he knew Silvermaster who incidentally was Mrs. the former Mrs. Greene's superior in the Department of Agriculture and that I am comprehensible that he wouldn't have had some contact with his -- with his wife's superior. That isn't the equivalent of saying that Greene knew that Silvermaster back in these years, 15 years ago, that Silvermaster was a spy, if he was a spy. And I would like to call your attention on this point to what I consider, possibly, the most salient thing in this entire record, at the bottom of page 425. Greene was going to -- was being asked about his knowledge of these people and he said, “I had no indication that they were Communists, and when I was interviewed by the FBI, I said that”, and the FBI man, one of the FBI men said, “that's right, they didn't go around carrying signs that they were Communists because they were all working for the Government.” Now, I think if you're going to say that the Government has a doubt about Silvermaster, and therefore, we're going to have a doubt about Greene, that we need in some kind of a factual situation to determine the -- the things that give significance and lend content and then I wouldn't say that it -- it was an unfair or unreasonable request to say that we ought to know what the Government did decide.
Hugo L. Black: Suppose if the Secretary had said in opinion in which he said, “Since I have not had access to the FBI files I put those out of my mind.” And I make my determination solely upon the impression that Mr. Greene made on me, assuming that he himself had attended this hearing, so that the -- on the impression that Mr. Greene made on me from answering the questions that were put to him, what would have been your position?
Carl W. Berueffy: Well if I may refer to an earlier illustration, if this is not an arbitrary decision.
Hugo L. Black: I'm just asking that question on the premise that you had written, started around, namely, that you can recognized that you are not entitled or you don't claim that you are entitled to a full due process hearing.
Carl W. Berueffy: But I am entitled, or Greene is entitled it seems to me, basically and fundamentally to a restriction that the secretary must not make an arbitrary decision.
Hugo L. Black: Would that be arbitrary if he --
Carl W. Berueffy: It certainly was decided --
Hugo L. Black: -- (Voice Overlap)
Carl W. Berueffy: -- merely on my impression, I would like to make this illustration if I might, going to back to my earlier one. If you were going to predict future disloyalty or whatever it is that you are predicting here, it might be better if you do it by -- by looking at the intros or by sticking the -- the nine-tenths of the -- to the volume of purging, because at least you could say we're relying on divine providence and not upon a fallible man.
William J. Brennan, Jr.: But he's is not making any prediction, he's just saying I don't want to take a chance.
Carl W. Berueffy: Well, if I -- I just can't see that that's not taking and making a prediction because you're not going to take a chance that involves taking or making a prediction. The past has been Greene. The past as the record shows is that he was reliable, that he did do -- did make -- pay attention to security rules. That he did have the confidence and respect of the people that knew him. Now, you are saying an -- a stranger, a total stranger can -- can say, well I just have an impression that I don't want to take this man and I think, and I should point out here, that the mere fact that the result might ultimately turn out the same, in a due process hearing doesn't excuse the absence of procedural due process as this Court held in Coe against Armour Fertilizer. I -- I think at this point that -- that this I couldn't say was a fair procedure. I -- I think any government decision has to be made on facts and when you are making an individual adjudicatory finding of fact, it has to be on something more than just an impression --
Felix Frankfurter: Why do you -- why do you be as skewed as that in your statement? In the first place when you say adjudicatory you are already bringing a lot of preference. In the second place the President of United States very often makes that this Court had failed, very important determinations presumably on facts which we couldn't possibly review.
Carl W. Berueffy: That is correct, but never has this Court insofar as I know, given the President a power to make a completely arbitrary decision.
Felix Frankfurter: He may make it in -- in raising or lowering the tariff and he may make it in denying a -- an international flying certificate or whatever it's called.
Carl W. Berueffy: Certainly, there are certain legislative and general things that the President does on --
Felix Frankfurter: Merely suggesting it's not necessary to be extreme in order to be -- to present the problem in this case, the issues in this case.
Carl W. Berueffy: I -- I have no intention. I -- I think that any decision in this case that isn't -- isn't based on putting these facts in context, with some kind of a record we can look at is -- is necessarily in and on its face, arbitrary.
Arthur J. Goldberg: You know that is the number of governmental decisions that have serious consequences for everybody, that are not adjudicatory.
Carl W. Berueffy: That is true. But I don't think that anybody's ever been thrown out of a job without some --
Felix Frankfurter: Well, the President had fired members of the cabinet and law officials all the time arbitrarily because they didn't like him or they didn't go along with him or they didn't -- what not or like --
Carl W. Berueffy: Certainly --
Felix Frankfurter: -- always because that all is a (Inaudible) or -- or also a lady was involved in the center of a controversy regarding what the political decisions by by a person.
Carl W. Berueffy: Certainly, but those are subordinate to the President.
Felix Frankfurter: (Inaudible)
Carl W. Berueffy: Those are subordinate to the President, not somebody else as employed. Just one thing that I -- I would like to say and that is, it's beyond this --
Speaker: Isn't -- isn't it basic to your position the grounds on which this man was discharged? Isn't that basic to your position?
Carl W. Berueffy: Well, basic to my position is the fact that if -- if you're going to discharge a man there has to be some reasonable relations between something that's a legitimate ends of Government and what it is that he -- he is supposed to have done.
Charles E. Whittaker: (Inaudible)
Carl W. Berueffy: I would say that it is a legitimate end of Government, Mr. Justice Whittaker, to take a man of doubtful loyalty, but I think that off of the job, but I think that before, I want the Secretary of Navy or anyone else, designating any citizen of this country, as a doubtful -- person a doubtful loyalty, there has to be a relationship between what it is that he's supposed to have done and the problem of doubtful loyalty.
Charles E. Whittaker: In other words, it must be done by some kind of a fair process.
Carl W. Berueffy: Certainly.
Charles E. Whittaker: All right, now then imagine that was just (Inaudible)
Carl W. Berueffy: Yes, sir.
Charles E. Whittaker: (Inaudible)
Carl W. Berueffy: I don't think we need a judicial hearing.
Charles E. Whittaker: All right you mentioned one month, you know this (Inaudible)
Carl W. Berueffy: Yes, sir.
Charles E. Whittaker: Do you contend that there should -- must be confrontation and right of cross examination?
Carl W. Berueffy: I -- I think on confrontation, that clearly you cannot put allegations in Congress without knowing the identity of the witness and his opportunities for observation, his motivation, as well as just the -- the essence of what he has said. Now, I would say that we're getting into -- in (Inaudible) case, we got into this problem of confidential and casual importance. I think the answer to this is, that the judgment ought to be drawn on a record, uncomplicated by facts that are known only through the trier of facts and I think the Government's plea of necessity here is a specious one.
Charles E. Whittaker: I just don't understand to say you do not argue that use of your due process (Inaudible)
Carl W. Berueffy: Well, in an administrative hearing, you don't apply to technical rules of evidence, you can admit hearsay. But you can't make a decision resting wholly on hearsay.
Potter Stewart: Mr. Berueffy, before you sit down, may I ask you one question. Is it your contention that Mr. Greene was treated in a discriminatory way, that is treated unlike other people have been or are treated under this program?
Carl W. Berueffy: Well, that he was so treated, I think that's not subject to doubt.
Potter Stewart: Well?
Carl W. Berueffy: Because he didn't get any kind of a hearing. The hearing he got resulted in a clearance. Then he was arbitrarily thrown out of work, for -- for a year. Actually, before he ever got a hearing -- hearing was the following the act.
Potter Stewart: By -- by a reversal of the -- of the (Inaudible) was that it?
Carl W. Berueffy: This wasn't a reversal of the hearing board, Mr. Justice Potter, and all I can say at this point is -- is please just read the letter on page two of the record to see whether it was or it wasn't.
Speaker: Maybe I didn't --
Potter Stewart: Excuse me. Well, I'm sure I have the answer to my question.
Carl W. Berueffy: Well then if I --
Potter Stewart: You -- it is your point. It is your claim here that -- that there was discriminatory treatment of this man as --as contrasted to other men under this program.
Carl W. Berueffy: That's right, he didn't get any promise --
Potter Stewart: It's your further point then, is it that -- that the department did not follow its own regulations?
Carl W. Berueffy: Or in -- clearly -- it's clear they didn't follow their own regulations, because the Secretary of the Navy was instructed to apply the standards for interim clearances, which had been applied by the Board. But he wasn't instructed to review and he did not review. He didn't say I reviewed these findings. He said I reviewed the -- the case history file and concluded that his access is inconsistent. I mean, he just completely ignored the previous favorable finding of the Board.
Potter Stewart: Well, that's (inaudible)if I should say is true and I'm not familiar yet from the record, of course. If what you say is true, wouldn't you then prevail without going any further on the basis of what the Government's already conceded?
Carl W. Berueffy: I think so.
Potter Stewart: Without making any --
Carl W. Berueffy: I mean I -- I -- I've argued the constitutional questions, but there are many reasons why you need not reach them.