Taylor v. McElroy

PETITIONER:Taylor
RESPONDENT:McElroy
LOCATION:Sherry Frontenac

DOCKET NO.: 504
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 360 US 709 (1959)
ARGUED: Mar 31, 1959 / Apr 01, 1959
DECIDED: Jun 29, 1959

Facts of the case

Question

  • Oral Argument – March 31, 1959
  • Audio Transcription for Oral Argument – March 31, 1959 in Taylor v. McElroy

    Audio Transcription for Oral Argument – April 01, 1959 in Taylor v. McElroy

    Earl Warren:

    Number 504, Charles Allen Taylor, Petitioner, versus Neil McElroy et al.

    Mr. Solicitor General, you may continue your argument.

    J. Lee Rankin:

    Mr. Chief Justice, may it please the Court.

    I would like to first read a letter from the general counsel of the Defense Department addressed to Mr. Taylor.

    During — This is dated March 31st.

    During the argument before the United States Supreme Court today, the question was raised as to whether in your case there was a difference between the standards of national interest and clearly consistent with the interest of national security.

    I’m authorized to inform you that the acting Secretary of Defense in determining on December 31st, 1958 that you were eligible for clearance for access to defense information classified secret did not intend by its reference to the national interest to differentiate your status from that of all other employees eligible for such clearance including employees as to whom a board has made determination that access at such level is clearly consistent with the interest of national security.

    In other words, your clearance has been determined to be clearly consistent with the interest of national security.

    Mr. Rauh has responded to that as of April 1st referring to that fact that he telegraphed the Secretary on January 10th asking if the Secretary’s action as of the prior date amounted to certain findings in regard to Mr. Taylor and the findings are reversing the earlier findings, withdrawing false charges, announcing that Mr. Taylor has never been a member of the Communist Party, never paid Communist Party dues and never attended Communist Party meetings and so forth and establishing that he has been truthful and so asserting.

    The answer to that is that the Government does not say that this is making such findings.

    Felix Frankfurter:

    Would you mind — be good enough to read me that letter out of the (Voice Overlap) —

    J. Lee Rankin:

    Yes, sir.

    He refers to the January 10th telegram.

    Felix Frankfurter:

    This is in response to the letter you’ve read from the — the general counsel.

    J. Lee Rankin:

    That’s right.

    Felix Frankfurter:

    All right.

    J. Lee Rankin:

    And he says, in quoting that, “Does this amount to these findings.

    One, reversing the earlier findings, two, withdrawing the false charges, three, announcing that Mr. Taylor has never been a member of the Communist Party, never paid Communist Party dues, never attended Communist Party meetings and so forth.

    And four, establishing that he has been truthful in asserting — in so asserting.”

    And the answer of the Government is that this does not amount to such findings.

    The answer is further as I told you yesterday that the prior proceedings are expunged as he was so advised.

    William J. Brennan, Jr.:

    And now you said — what was the first of those reversing the earlier findings?

    J. Lee Rankin:

    Reversing the earlier findings, the findings themselves.

    And the action of the Secretary was to grant him clearance.

    William J. Brennan, Jr.:

    What’s the result of expunging?

    J. Lee Rankin:

    Is though they never were there.

    That’s exactly what happened in the Peters case in accordance with the direction of the Court and in Cole against Young.

    And it’s the usual practice in all these cases to erase them as though they never happened.

    But he asks from informative new findings that these things were in his favor separate (Voice Overlap) —

    William J. Brennan, Jr.:

    Well, I — I suppose reversing the finding is a little different from asking affirmative findings, isn’t it?

    J. Lee Rankin:

    Well, the further part is asking for affirmative findings in regard to this Congress membership and so forth.

    William J. Brennan, Jr.:

    But as I understand the Government’s position is that none of the action reverses anything in the way findings merely expunges that fact.

    J. Lee Rankin:

    That’s right, as though it never happened.

    Tom C. Clark:

    Mr. Solicitor, suppose he wants to be able through his skills, to get a promotion to a higher — how unreasonable or whatever you call that here, and then — but he would have to have top secret classification with this data then bu used, would that occur — could that occur?

    J. Lee Rankin:

    I’m advised that it wouldn’t be used in that regard.

    I’m also advised that by the very nature of his work, he probably never would be asking for access to top secret but it would — that could be true of other employees in the program.

    Felix Frankfurter:

    Mr. Solicitor, I’m — I’m not suggesting about — about what I’m about to put to you, if there is any impropriety or out of the witness about this — about this (Inaudible) enlightened correspondents.

    J. Lee Rankin:

    Yes.

    Felix Frankfurter:

    But I do suggest that since it’s before the Court, it might be just as well to put in writing the reply you’ve orally made to Mr. Rauh’s (Inaudible).

    Could it be — I mean the doctrine, it didn’t say they’re merely resting on pleading words.

    What you’ve just said.

    J. Lee Rankin:

    Yes, I’ll be pleased to do that in the courtroom.

    One further thing the inquiry was made by Justice —

    Earl Warren:

    General, may I ask you this question.

    You said that it would not be used if there was a further screening of this man, do you mean under your proceedings, it — it could not — could not be used or do you mean as a matter of grace in the department and as a matter of fairness that the present incumbents of the office would not use it.

    J. Lee Rankin:

    No.

    I would understand that it — as a matter of procedures that they are regularly followed that it would not be used.

    That it’s a matter that has been determined and that it isn’t — can’t be gone back over.

    That’s my —

    Earl Warren:

    Yes.

    Well, I think that’s just — that — that’s a problem that bothers me.

    I imagine you did — Justice Clark when he asked the — the question.

    Is the mere expunging of the — of the records tantamount to — to a finding on the subject one way or the other?

    Isn’t it — isn’t it just loose there, isn’t it just in limbo and — and couldn’t the — couldn’t that information against this man become available again from a standpoint of — of your procedures?

    J. Lee Rankin:

    Well, I —

    Earl Warren:

    What is there — what is there in — in your procedure that are in the statute or in any manner that says that — that when — when this disposition is made of a case if we put this — is not — the finding hasn’t been reversed, everything has just been expunged from the record except the documents on which he was originally found to be not consistent with the security of the country.

    What is there to prevent that from being used again?

    J. Lee Rankin:

    There is nothing in the regulations or in any statute that would prevent it.

    The practice is the only thing.

    The expunging does not amount to an affirmative finding in his favor.

    J. Lee Rankin:

    It is an erasure of the prior findings against it.

    Earl Warren:

    I think one of the — one of the things that bothers me in this case is that — that one of the hearings before the Board, they found that he was a member of the Communist Party at a certain — certain time and he was expelled for that reason.

    Then he asked for a hearing before the Board and — no, after that hearing rather, they took his testimony to the effect that he was not a member at that particular time that he was actually anti-communist in his approach to problems.

    And they then supplemented the record and using the same records that they have found he was a communist.

    They found that he wasn’t a communist because he had been expelled before that time.

    Now what — what would prevent the same thing from happening here in another circumstance?

    J. Lee Rankin:

    Well, let me clarify the facts.

    In the first place they found the he was a member of the Communist Party in 1942 and 1943.

    Earl Warren:

    Yes.

    J. Lee Rankin:

    There is — they never found otherwise they found the next time that he was a member between 1942 and 1943 that he was expelled from the party because of his lack of sympathy with it in 1943.

    The interim between the two hearings was taken up by further investigation.

    None of these witnesses has charged by counsel change their testimony at all.

    That is not true.

    The fact is that the FBI and the Department of Defense made further investigation of the matter and it — that investigation supported the fact that he was expelled but the witnesses who had testified continued to adhere to the stories that they had presented — that it presented the confidential information.

    So there was the additional finding by the additional investigation of his lack of sympathy with the party and his expulsion.

    But there is nothing in the record that he was not except his own testimony and his own witnesses are confidential.

    Now, in regard to the question of Mr. Justice Douglas about compensation from the time he had been out of work, I’m advised that he will be fully compensated that his counsel have already asked for the forms that he could get his compensation, the difference between what he will receive and what he should have received if he had been employed during that period and that this is not a special treatment on Mr. Taylor, but the regulations in Section 26 or I guess it’s paragraph 26 on page 32 of the supplement, expressly provide for monetary restitution in this kind of a case and he is to be paid the amount of that difference.

    Now, in regard to the job position, I should like to clarify that.

    That was an idea of the Department of Justice as trying to put in further element of consideration for the need of access in the regulations.

    And when it was presented and examined on a working level in the department that have the administration of the program, it was found that it was not workable and this is the reason that it was not.

    It was found that with the Bell Aircraft Company when they made a reduction enforced under the seniority program which is generally called bumping that with a reduction of 4,500 members of the union, it involved 26,000 shifts of position of the employees so that you would be busy in the government examining on a job basis continuously because every time that someone was eliminated, a man could move into that position and be at a different job and instead of being like it is now where you would have a clearance, he would have to go through the procedures every few days or weeks depending upon the situation and it also would involve the administrative problem and it did not seem at all practical and also would put a burden upon the employees that was not realistic and would be a hindrance to the proper development carrying on the defense program.

    Same is indicated by the fact that there is a 20% turnover in this company of employees, we were advised.

    And in view of that, the job position movement in which every time there was turnover, the man, if it was a problem of seniority has the right to bid for the better position would be constantly subjected to that kind of situation and that’s why the idea of a job position element of consideration was abandoned.

    Earl Warren:

    And that was abandoned in all defense industry?

    J. Lee Rankin:

    That’s right.

    It seemed — it just seemed impracticable in view of the relationships between the unions and the companies and what it would involve for the employees.

    Now, I would like to call your attention to another factor and that is this problem of the inherent power of the — the President, the executive to have the protection of the military secrets of the country.

    This has been claimed by the President for 170 years and it is of primary consideration and that any interval that there might be in the conduct of the defense program between any kind of legislation or other action if the Court would find there was not such a power which would be a constitutional question in itself would involve the fact that the president had no power to protect the secrets of the country during such a period.

    Your position is that (Inaudible) the security in this case that the Government has tried to discharge about (Inaudible)

    J. Lee Rankin:

    Well, the problem you get into there is the question of interest and it’s the question of the — I think there would be no question about that except for the cases such as Wieman against Updegraff and the Slockhower case.

    J. Lee Rankin:

    And —

    That case is there?

    J. Lee Rankin:

    That’s right.

    And I think they are different in this regard.

    There, you’re dealing with a standard and you said that the standard cannot be one that’s irrational.

    You didn’t say that he had any interest in Wieman if you’ll recall.

    You passed that question on whether he had the right to the job at all.

    But you did say that you can’t classify and use the example of — on the basis that he was either a Negro or a Republican or a Jew.

    Those were the three various classifications that were used as examples.

    And you could not make a classification of that type which was irrational as your standard.

    But this is — the basic question here, is whether or not this man has a right to the clearance that is to see the Government’s secrets.

    Does he have a constitutional right to that as a matter of due process?

    And the question that must be considered as I see it — all of them this case is whether or not if the administrator has a hearing and he has information of a confidential character from someone who is an agent, who is an undercover agent as the most extreme case.

    And that person has seen the particular employee in a communist cell actively participating in that activity to try to defeat the whole program of this country having that, but not being able to reveal it because this undercover agent cannot be presented without destroying his effectiveness.

    He may have been planted there and somehow as much as 15 years ago.

    Then, does this Court — is this Court going to tell that administrator that this man who has no legal right to access as such to the military secrets of the United States, the administrator must disregard such information as he has and give to the man the greatest secrets that we have, which give us an edge over our enemy.

    Earl Warren:

    Mr. General, here, you have not only that kind of a witness.

    I understood you to say that one of them — one of the witnesses was of that character, but you also have five casual witnesses who were neighbors or perhaps business associates or someone — or someone else.

    They might have been people with — with a motive.

    They might have been people that malice against the man.

    And as to those — as to those, why wouldn’t he have a right to be confronted by them if my neighbor accuses me of anything else, anything else but this and they’re going to put me in jail and they’re going to take away my livelihood.

    I have the right to be confronted by the witness.

    Now, why wouldn’t a neighbor in those circumstances be just as much required to confront the person whom he accuses and subject himself to cross-examination?

    I think it’s not just as simple as that one undercover man that you speak of.

    J. Lee Rankin:

    Well, I don’t want to say to this Court and I don’t say to this Court that the case of the confidential informant who is not an undercover agent is the same problem that those who are more casual informants are.

    I think that is a different problem and there, you have to face up to the question of whether drying up the general sources of information of that character, which is the belief of the intelligence agencies in good faith that will have the effect is better to do in regard to this where there is no right to access to military secrets.

    There is no constitutional right to that.

    Whether the Court wants to say that that is necessary to do or whether that testimony which is not a question of guilt or innocence but whether this person should have access to these military secrets, whether he should — the administrator should disregard that information entirely.

    Now, that’s what it faces up to in that particular category of informants.

    William J. Brennan, Jr.:

    Mr. Solicitor —

    What you’re saying in effect as I take it that the due process is satisfied if the (Inaudible)

    J. Lee Rankin:

    I think that’s —

    (Inaudible)

    J. Lee Rankin:

    In the first place, I say that there is no right to due process because there’s no substantive right to see the secrets of the United States.

    I mean, can you go so far as decide that this man is charged, couldn’t ask for a hearing, (Inaudible) had the Government have done that?

    J. Lee Rankin:

    Well, that might be so irrational under a Weiman case that he couldn’t do that.

    So that you’re implicit in your position that due process requires some kind of a hearing.

    The question is what — is that it?

    J. Lee Rankin:

    What?

    Yes, I think it’s a balancing of the best that can be done and preserving, doing as much as possible for his interest in preserving the primary interest of the military secrets of the country too.

    The Government couldn’t deny a right to come before the agency to say that you’re (Inaudible).

    Expose myself to (Inaudible)

    J. Lee Rankin:

    I don’t believe so.

    But it can deny his right (Inaudible)

    J. Lee Rankin:

    Only if the Court is satisfied that that which is claimed to be a threat to the country and the maintenances of its intelligence processes is a real threat and then balancing his interest against the interest of the country.

    It is not an unreasonable impingement upon him.

    Does that require some selected judgments if witnesses can be produced (Inaudible)?

    J. Lee Rankin:

    Well, I think that —

    (Inaudible)

    J. Lee Rankin:

    I think the Court — that’s one of the difficulties that the Court should not get into of trying to have a trial in every case of whether or not this particular witness should have been produced or not and whether the governmental processes or such.

    It seems to me that it will so involve the courts in examining the material and matter in that regard and without having the basis for judgment that in regard to it — that maybe the only alternative would be for the courts to set up the whole program which I don’t think the courts would want to or in our separation of powers would do.

    It’s so difficult without getting to case by case in every witness judging.

    And I don’t think that the interest involved legally, historically, are such that they’re entitled to that kind of the decision by the Court in every instances to every witness.

    William J. Brennan, Jr.:

    Mr. Solicitor, I noticed that there’s monetary substitution, Section 26, currently is available only to the contract of employee as to whom a final determination is favorable.

    Does Taylor fit with that category?

    J. Lee Rankin:

    Yes, he does.

    Now, I want you to understand, however, that as to those who did not have confrontation and because of that claim that they didn’t have a fair hearing when therefore still denied a clearance that they would not get the benefits of this section.

    But Taylor is clearly entitled to it and will proceed (Inaudible) —

    Earl Warren:

    Mr. Rauh.

    Joseph L. Rauh, Jr.:

    May it please the Court.

    Joseph L. Rauh, Jr.:

    I do not believe there is anything to answer on the merit.

    The Solicitor General has conceded.

    I believe in open Court that there is no statutory basis for this program.

    He has argued inherent power but he has failed to show this Court an executive order asserting inherent power and I cannot believe it consistent with the principle of avoiding constitutional issues this Court will decide inherent power until a president of the United Sates under whom the program is set up, asserts the power.

    Furthermore, there has been no defense of the facts of this case and therefore I would like to save my remaining time on the question of mootness.

    The question boils down to this.

    Is petitioner to be turned away from the courts without protection against future recurrence of the substantially conceded unauthorized in arbitrary conduct of the Government?

    Now, I think I may have not been as clear yesterday as I would have liked to have been and may have confused the difference between a request — a suit for money damages and a suit for equitable and declaratory relief.

    In a suit for money damages where payment of the damages is made in full, where the person has been fully compensated then of course the case is moot.

    In however, suit for equitable and declaratory relief, future protection is as significant as the immediate problem, and this Court has recognized time and again that where there is a likelihood of recurrence then the case is not moot.

    Take Walling against Helvering where the man stopped his wage in our law valuation.

    Take the Grant case where the man resigned as the director.

    Unless you’re going to say it’s a double standard and the Government can stop and there’s no — and there’s still a danger of recurrence and it’s different with a private party but this Court rejected the double standard in the Southern Pacific Terminal case.

    And so, we get back to this fact, is there a likelihood of recurrence and to that, I would like to devote the remaining time here.

    Now, Mr. Rankin suggested this morning that the practice is to wipe this information clean when in fact a man is cleared.

    Why that an amazing statement really in this Court, because of the fact that this Court has three cases proving the exact opposite.

    The first case, of course was Peters against Hobby where Mr. Peters, on the same evidence, the same evidence in which he was cleared with was subsequently used to find him guilty and it came to this Court.

    The case of Mr. Service which came to the Court, the identical evidence had found him clean four times, was used the fifth time to find him guilty.

    And finally, and this it seems to me has the most complete answer, is the Greene case.

    In the very Greene case the same evidence — the case is only here because the same evidence which once was used to find him innocent was later used to find him guilty.

    These are not wiped out in any way, shape or form as — indeed one of the criticisms of the program by so many of the students has been the fact that there is no res judicata, that the same materials used over and over again.

    In our opposition for example, we quote the New York City Fire Association —

    Potter Stewart:

    Mr. Rauh, aren’t you using a little bit two concepts and perhaps misunderstanding what I understood the Solicitor to say.

    He said these findings are wiped out.

    He wasn’t suggesting that this evidence had been taken out and burned and thrown in a waste basket or the garbage can but that the findings based on the evidence had been wiped out.

    Joseph L. Rauh, Jr.:

    I then stand corrected.

    I understood —

    Potter Stewart:

    That’s why I (Voice Overlap) —

    Joseph L. Rauh, Jr.:

    — in answer to the Chief justice to be that the “evidence” itself, evidence in quotes because it’s equally important that this material could not be used against.

    I so understood his answers, Chief Justice, if I missed understood the answer, I then would be willing — and then that’s fine.

    Joseph L. Rauh, Jr.:

    We all agree then that the “evidence” can be used over and over again and that’s all I’m trying to prove.

    Felix Frankfurter:

    Suppose this Court reversed it.Supposing the key of your argument on the lowest level of your argument (Inaudible) lowest level of quality of your argument that the law speak about — suppose it reversed it, what judgment would you get that would do other than saying that that the determinations of the departments are vacated, what else would you get?

    Joseph L. Rauh, Jr.:

    You would get an injunctive relief against re —

    Felix Frankfurter:

    They never — they never can reconsider his clearance or not clear it?

    Joseph L. Rauh, Jr.:

    You can get it as I was trying to say injunctive —

    Felix Frankfurter:

    I thought it was declaratory judgment.So there’s no injunctive relief.

    Joseph L. Rauh, Jr.:

    It is — we sought both of the declaratory judgment and Injunctive relief if you are —

    Felix Frankfurter:

    And what would be the injunction against him that he should never be getting inquired into?

    Joseph L. Rauh, Jr.:

    No — no, Your Honor.

    That — at any future procedure that was gone into, it would follow the requirements of due process.

    In this case, it would be a simple statement because in this case I believe Your Honors are going to decide there’s no authorization for the program so that the injunctive relief would be —

    Felix Frankfurter:

    We might not decide if there’s no authorization for the program and yet reversed the case.

    Joseph L. Rauh, Jr.:

    The reversal would be very —

    Felix Frankfurter:

    The program is a big term.

    It doesn’t mean that everything is null and void.

    Joseph L. Rauh, Jr.:

    It may not.

    I suggested yesterday that the narrowest ground would be the Congress hadn’t authorized none confrontation.

    It would simply be an injunction for the future that the non — at future hearings involving this petitioner, the procedures of nonconfrontation could not be adopted.

    This would be all the protection he needs.

    It is all the protection for which we here plead.

    Now, may I just —

    Felix Frankfurter:

    But they could use the materials as lead to other things, could they?

    Joseph L. Rauh, Jr.:

    I am only using the material point to show that this man stands in danger of recurrence, Your Honor.

    Felix Frankfurter:

    But he would even if we reverse —

    Joseph L. Rauh, Jr.:

    But he wouldn’t stand in —

    Felix Frankfurter:

    — so far as — unless there is a decency of respect which must be attributed to a member of the cabinet that he is going to do in effect by circumvention what the court said he shouldn’t do.

    Joseph L. Rauh, Jr.:

    I think if Your Honor, if I may, say that that what the future hearing we’re complaining about is not that they use this material or not.

    It’s nonconfrontation.

    And what the declaratory and injunctive relief, we are seeking is the fact that there cannot be tomorrow the same two and a half years of finding him guilty without confrontation.

    And I am showing that this evidence is not wiped out.

    Joseph L. Rauh, Jr.:

    That they use it over and over again to reach different results and then if there isn’t a decree of this Court, they may very well use it over again to reach the opposite result without confrontation and we will be forced to come up to this Court through District Court, Court of Appeals, Supreme Court at the risk of two and a half more years of the same thing.

    Supposing that in the next case (Inaudible)

    Joseph L. Rauh, Jr.:

    I’m sorry I —

    Supposing that in the next case, the merits of what you’re arguing here were decided in favor of (Inaudible)

    Joseph L. Rauh, Jr.:

    I don’t think it would leave — it will change.

    Our case is not moot because there’s a likelihood of recurrence.

    If the court’s order, thereby completely ends the program, I don’t think that renders our case moot.

    I think it would simply mean that our case would be decided as part of the other case.

    I don’t see how your action in one case can render our case moot other than the fact the decision in our case also, by the same token, renders the other case moot.

    It seems to me that — that obviously, your decision is going to be dispositive of — of both causes of action.

    Now, not only is there a likelihood of recurrence because of the nature of the — of the program over and over and over again with the same evidence but this is a peculiar situation.

    Mr. Rankin informed the Court this morning that they would not make findings in our favor.

    Now, they always — now I’d like to call the Court’s attention.

    If you’ll look at the supplemental memorandum with the regulations in them, at page 27, there’s a provision for making findings at page 27-D.

    Now, it’s true that this says that the Hearing Board shall make the findings.

    But we stand without the findings which are the normal protection.

    I would say this case isn’t moot.

    If we had gotten everything in our clearance, because of the fact that the same evidence has been used over and over again but we didn’t get everything.

    Mr. Rankin, in answer to Mr. Justice Brennan’s question made perfectly clear.

    They were refusing us affirmative findings which would be a minimum protection for the future.

    Felix Frankfurter:

    May I ask whether when there is a clearance, are there affirmative findings?

    Joseph L. Rauh, Jr.:

    Yes, Your Honor.

    Felix Frankfurter:

    I mean, they say that isn’t — must there be?

    Joseph L. Rauh, Jr.:

    Yes, Your Honor.

    At page 27 —

    Felix Frankfurter:

    That’s what you have read but I’m asking you what the practice is.

    Joseph L. Rauh, Jr.:

    Oh, it’s always been for clearance finding.

    In every case, I have been in, there have been clearance findings.

    In every single case I have ever been and I think the regulation speak to themselves —

    Felix Frankfurter:

    What do they say?

    Joseph L. Rauh, Jr.:

    Well, what the findings, say, here are take the —

    Felix Frankfurter:

    Well, I don’t mean here.

    What are they —

    Joseph L. Rauh, Jr.:

    Well, they — they would say the reverse.

    If for example at page 120 — 120 of the record, it says that these findings were true as stated in the following — in the following respects.

    They would otherwise say that the finding that we find that you were not.

    William O. Douglas:

    I asked the Solicitor General a question on this line yesterday and I understood him to say that he — that you referred to on page 27 covers findings by the Board not by the Secretary.

    And that the findings of the Secretary are governed by C on page 30 that does not require the same specific requirement of Board findings.

    Joseph L. Rauh, Jr.:

    That — that is correct, Your Honor.

    That in the ordinary situation, the findings will come from the Board.

    I’m only showing again.

    I didn’t show this to — as I say, they were violating the regulations showing the peculiar vulnerability of the petitioner to repeated process because of the fact that he does not have the findings that the ordinary person will get.

    I am not saying —

    Felix Frankfurter:

    He’s addressing the Board, isn’t he?

    Because here, he’s addressing the Board.

    Joseph L. Rauh, Jr.:

    Here he — whatever he is doing you —

    Felix Frankfurter:

    He’s not doing what the Board —

    Joseph L. Rauh, Jr.:

    Yes.

    Felix Frankfurter:

    And therefore the point as the question that (Inaudible) why did Justice Douglas has put to you becomes relevant if it is not the practice of the Secretary to make affirmative findings if we are to reject to what the Board does.

    You are not actually here to do what is normally done.

    Joseph L. Rauh, Jr.:

    I am asking — I’m pointing out only the vulnerability of this defendant because he didn’t get findings in his favor which will make it even more likely when people who have to have findings in their favor have had it over and over again.

    Those who don’t have findings in their favor are peculiarly vulnerable.

    Felix Frankfurter:

    Does your question of non — was your position if it is not moot get down to this that after the most solemn and responsible representation by the government through the Solicitor General speaking for the Secretary of Defense that this is wiped out and that there will not be a reuse of these materials, it’s not to be accepted by the Court.

    Is that what it gets down to?

    Joseph L. Rauh, Jr.:

    I was — no, sir.

    And I was explaining, if Your Honor please, that they do reuse the material.

    Felix Frankfurter:

    I’m saying that in this case, we have the representation of the Government to the responsibility of the Solicitor General speaking on behalf of the Secretary of Defense, stating the general rule applied to this case and isn’t the fact that it isn’t moot only if he must reject those representations.

    Joseph L. Rauh, Jr.:

    On the Contrary, as Mr. Justice Stewart pointed out, the representation was no that this evidence wouldn’t be used over again.

    I can only say that there’s apparently a —

    Felix Frankfurter:

    Well I thought it was.

    Joseph L. Rauh, Jr.:

    Well, I can only say there’s apparently a dispute that I cannot solve as to what the representation is.

    I’m only saying if the representation by Mr. Rankin was that the practice is not to use this material over and over again that has been many times answered because it has.

    And if I may just in conclusion in the limited time available, point out, not only is he vulnerable under the regular practice.

    Not only as he peculiarly vulnerable because there’s no findings but he is essentially more vulnerable because there’s been no basis for his clearance.

    Now, Mr. Rankin this morning said they had given up the basis of job security, the particular job against the derogatory information.

    On February 13th, Mr. Rankin reported to this Court on the basis of a representation from the Defense Department.

    I am not in any way saying that Mr. Rankin didn’t have this representation.

    I’m saying he reported to the Court that the Defense Department already had in effect this program of weighing the job against the derogatory information.

    This morning he reported to the Court, the Defense Department had informed him that no such regulation could be workable and put in to effect.

    That leaves the case in a posture that it depends upon the new regulation which was handed to the Court on September — March 24th and which is here.

    Now, I want to make perfectly clear that this new regulation has nothing to do with this case.

    If you will look on page 4 of this new regulation, in the last sentence before the word policy and this sentence is the old regulation.

    It’s not in italics.

    It says “In a case of a contractor employee, a clearance is an approval for the employee to have access to specified categories of classified information”.

    Everything that’s later italicized, there’s a change in the regulation is identical with what was in the regulation before.

    This regulation changes nothing.

    Now, Mr. Rankin isn’t seriously telling this Court that a man who on October 13th was found guilty of perjury.

    October 13, 1958 was found guilty of perjury, was found a communist that he can have access to all secret information.

    The Government isn’t saying that.

    The Government is saying that we have no explanation of this to Your Honors.

    We have no regulation that does this.

    And all I can say, if the unfairness which the government doesn’t here seek to defend can only be compounded now by a failure to find relief which would protect this petitioner against a recurrence of the same unfairness.

    Felix Frankfurter:

    Before you sit down.

    I’d like to ask you one question on the merit.

    I noticed that at least in the indices of both your brief and the Government’s brief.

    There’s no reference to the Nugent case.

    Is that because that involves FBI’s?

    Joseph L. Rauh, Jr.:

    There is a reference to it, if Your Honor please in the Greene brief.

    You’ll see the government didn’t respond.

    Felix Frankfurter:

    There’s no reference in your brief.

    Joseph L. Rauh, Jr.:

    There’s no reference in our brief.

    Felix Frankfurter:

    I think because — because in that case it involved undisclosed confidential information of FBI’s?

    Is that the distinction?

    Joseph L. Rauh, Jr.:

    I find several distinctions to the —

    Felix Frankfurter:

    That’s what I’m inviting you to make.

    Joseph L. Rauh, Jr.:

    — Nugent case on the merits, if Your Honor please.

    That was an exercise of the —

    Felix Frankfurter:

    It’s not my favorite case as you know.

    Joseph L. Rauh, Jr.:

    Well, [Laughter] — it was by a decree decision.

    The Nugent case appears to hold that you weigh the need of the — in form of the government against the need of the person who has the procedure.

    Now, my first and foremost distinction would be that I demonstrated yesterday that on the facts of this case, synapses aren’t worth the paper they are written on.

    Felix Frankfurter:

    I didn’t think they were in the Nugent case.

    Joseph L. Rauh, Jr.:

    Well, if Your Honor [Laughs] — I am not in the position to argue Your Honor —

    Felix Frankfurter:

    What are the — what are the other distinctions?

    Joseph L. Rauh, Jr.:

    The reliance there completely upon the war — that was a war time operation which the — which the Court has found relevant.

    Again, I — I don’t know —

    Felix Frankfurter:

    Well, doesn’t that apply to current conscientious objectives or are we still in war?

    Joseph L. Rauh, Jr.:

    Well, I — this — the — this was referred to.

    That point was made by the majority.

    I — I don’t feel that there are distinctions and I don’t feel to call upon to — to deal with the — there are clear distinctions, I don’t — and it seems to me that it’s — now your suggesting I argue what was wrong with that case.

    Felix Frankfurter:

    No, no, no.

    I’m merely suggesting that that case is a decision of the Court.

    I happened to dissent.

    But that isn’t enough of a ground for me to reject, it doesn’t say it doesn’t exist.

    That decision is not expunged in any sense.

    Joseph L. Rauh, Jr.:

    I have not suggested that it is expunged.

    What I am — what I am suggesting is that the Government’s contention is a weighing of the need of the Government not to show against the need of the individual to see.

    Apparently, a majority of the court felt that that need of the individual to see had been satisfied, although Your Honor did not see so — did not agree.

    It seems to me that I showed yesterday that the need to see here was so great that without seeing, it was impossible and the synapses was not worth the paper it was written on.

    Now maybe here, a majority felt that the synapses was adequate.

    Joseph L. Rauh, Jr.:

    I cannot just go — go beyond that, Your Honor.

    Felix Frankfurter:

    The consequences there are almost as serious as here aren’t they?

    A man goes to jail.

    Joseph L. Rauh, Jr.:

    Those were serious consequences and if I were arguing that case, I believe I would be arguing on Your Honor’s side.

    This case, however, is clearly different and the Government here has made such a half part of defense on the merits that I hardly feel that they thought it’s peculiarly applicable.

    And thank you.