Cole v. Young/Opinion of the Court

This case presents the question of the meaning of the term 'national security' as used in the Act of August 26, 1950, giving to the heads of certain departments and agencies of the Government summary suspension and unreviewable dismissal powers over their civilian employees, when deemed necessary 'in the interest of the national security of the United States.'

Petitioner, a preference-eligible veteran under § 2 of the Veterans' Preference Act of 1944, 58 Stat. 387, as amended, 5 U.S.C. § 851, 5 U.S.C.A. § 851, held a position in the classified civil service as a food and drug inspector for the New York District of the Food and Drug Administration, Department of Health, Education, and Welfare. In November 1953, he was suspended without pay from his position pending investigation to determine whether his employment should be terminated. He was given a written statement of charges alleging that he had 'a close association with individuals reliably reported to be Communists' and that he had maintained a 'sympathetic association' with, had contributed funds and services to, and had attended social gatherings of an allegedly subversive organization.

Although afforded an opportunity to do so, petitioner declined to answer the charges or to request a hearing, as he had the right to do. Thereafter, the Secretary of the Department of Health, Education, and Welfare, after 'a study of all the documents in (petitioner's) case,' determined that petitioner's continued employment was not 'clearly consistent with the interests of national security' and ordered the termination of his employment. Petitioner appealed his discharge to the Civil Service Commission, which declined to accept the appeal on the ground that the Veterans' Preference Act, under which petitioner claimed the right of appeal, was inapplicable to such discharges.

Petitioner thereafter brought an action in the District Court for the District of Columbia seeking a declaratory judgment that his discharge was invalid and that the Civil Service Commission had improperly refused to entertain his appeal, and an order requiring his reinstatement in his former position. The District Court granted the respondents' motion for judgment on the pleadings and dismissed the complaint. 125 F.Supp. 284. The Court of Appeals, with one judge dissenting, affirmed. 96 U.S.App.D.C. 379, 226 F.2d 337. Because of the importance of the questions involved in the field of Government employment, we granted certiorari. 350 U.S. 900, 76 S.Ct. 181.

Section 14 of the Veterans' Preference Act, 58 Stat. 390, as amended, 5 U.S.C. § 863, 5 U.S.C.A. § 863, provides that preference eligibles may be discharged only 'for such cause as will promote the efficiency of the service' and, among other procedural rights, 'shall have the right to appeal to the Civil Service Commission', whose decision is made binding on the employing agency. Respondents concede that petitioner's discharge was invalid if that Act is controlling. They contend, however, as was held by the courts below, that petitioner's discharge was authorized by the Act of August 26, 1950, supra, which eliminates the right of appeal to the Civil Service Commission. Thus the sole question for decision is whether petitioner's discharge was authorized by the 1950 Act.

The 1950 Act provides in material part that, notwithstanding any other personnel laws, the head of any agency to which the Act applies

'may, in his absolute discretion and when deemed necessary in     the interest of national security, suspend, without pay, any      civilian officer or employee of (his agency) *  *  *. The     agency head concerned may, following such investigation and      review as he deems necessary, terminate the employment of      such suspended civilian officer or employee whenever he shall      determine such termination necessary or advisable in the      interest of the national security of the United States, and      such determination by the agency head concerned shall be      conclusive and final: *  *  * .'

The Act was expressly made applicable only to the Departments of State, Commerce, Justice, Defense, Army, Navy, and Air Force, the Coast Guard, the Atomic Energy Commission, the National Security Resources Board, and the National Advisory Committee for Aeronautics. Section 3 of the Act provides, however, that the Act may be extended 'to such other departments and agencies of the Government as the President may, from time to time, deem necessary in the best interests of national security', and the President has extended the Act under this authority 'to all other departments and agencies of the Government.' While the validity of this extension of the Act depends upon questions which are in many respects common to those determining the validity of the Secretary's exercise of the authority thereby extended to her, we will restrict our consideration to the latter issue and assume, for purposes of this decision, that the Act has validly been extended to apply to the Department of Health, Education, and Welfare.

The Act authorizes dismissals only upon a determination by the Secretary that the dismissal is 'necessary or advisable in the interest of the national security.' That determination requires an evaluation of the risk of injury to the 'national security' that the employee's retention would create, which in turn would seem necessarily to be a function, not only of the character of the employee and the likelihood of his misconducting himself, but also of the nature of the position he occupies and its relationship to the 'national security.' That is, it must be determined whether the position is one in which the employee's misconduct would affect the 'national security.' That, of course, would not be necessary if 'national security' were used in the Act in a sense so broad as to be involved in all activities of the Government, for then the relationship to the 'national security' would follow from the very fact of employment. For the reasons set forth below, however, we conclude (1) that the term 'national security' is used in the Act in a definite and limited sense and relates only to those activities which are directly concerned with the Nation's safety, as distinguished from the general welfare; and (2) that no determination has been made that petitioner's position was affected with the 'national security,' as that term is used in the Act. It follows that his dismissal was not authorized by the 1950 Act and hence violated the Veterans' Preference Act.

In interpreting the 1950 Act, it is important to note that that Act is not the only, nor even the primary, source of authority to dismiss Government employees. The general personnel laws-the Lloyd-LaFollette and Veterans' Preference Acts- authorize dismissals for 'such cause as will promote the efficiency of the service', and the ground which we conclude was the basis for petitioner's discharge here-a reasonable doubt as to his loyalty-was recognized as a 'cause' for dismissal under those procedures as early as 1942. Indeed, the President's so-called Loyalty Program, Exec.Order No. 9835, 12 Fed.Reg.1935, 5 U.S.C.A. § 631 note, which prescribed an absolute standard of loyalty to be met by all employees regardless of position, had been established pursuant to that general authority three years prior to the 1950 Act and remained in effect for nearly three years after its passage. Thus there was no want of substantive authority to dismiss employees on loyalty grounds, and the question for decision here is not whether an employee can be dismissed on such grounds but only the extent to which the summary procedures authorized by the 1950 Act are available in such a case.

As noted above, the issue turns on the meaning of 'national security,' as used in the Act. While that term is not defined in the Act, we think it clear from the statute as a whole that that term was intended to comprehend only those activities of the Government that are directly concerned with the protection of the Nation from internal subversion or foreign aggression, and not those which contribute to the strength of the Nation only through their impact on the general welfare.

Virtually conclusive of this narrow meaning of 'national security' is the fact that, had Congress intended the term in a sense broad enough to include all activities of the Government, it would have granted the power to terminate employment 'in the interest of the national security' to all agencies of the Government. Instead, Congress specified 11 named agencies to which the Act should apply, the character of which reveals, without doubt, a purpose to single out those agencies which are directly concerned with the national defense and which have custody over information the compromise of which might endanger the country's security, the so-called 'sensitive' agencies. Thus, of the 11 named agencies, 8 are concerned with military operations or weapons development, and the other 3, with international relations, internal security, and the stock-piling of strategic materials. Nor is this conclusion vitiated by the grant of authority to the President, in § 3 of the Act, to extend the Act to such other agencies as he 'may, from time to time, deem necessary in the best interests of national security.' Rather, the character of the named agencies indicates the character of the determination required to be made to effect such an extension. Aware of the difficulties of attempting an exclusive enumeration and of the undesirability of a rigid classification in the face of changing circumstances, Congress simply enumerated those agencies which it determined to be affected with the 'national security' and authorized the President, by making a similar determination, to add any other agencies which were, or became, 'sensitive.' That it was contemplated that this power would be exercised 'from time to time' confirms the purpose to allow for changing circumstances and to require a selective judgment, necessarily implying that the standard to be applied is a less than all-inclusive one.

The limitation of the Act to the enumerated agencies is particularly significant in the light of the fact that Exec.Order No. 9835, establishing the Loyalty Program, was in full effect at the time of the consideration and passage of the Act. In that Order, the President had expressed his view that it was of 'vital importance' that all employees of the Government be of 'complete and unswerving loyalty' and had prescribed a minimum loyalty standard to be applied to all employees under the normal civil service procedures. Had Congress considered the objective of insuring the 'unswerving loyalty' of all employees, regardless of position, as a matter of 'national security' to be effectuated by the summary procedures authorized by the Act, rather than simply a desirable personnel policy to be implemented under the normal civil service procedures, it surely would not have limited the Act to selected agencies. Presumably, therefore, Congress meant something more by the 'interest of the national security' than the general interest the Nation has in the loyalty of even 'nonsensitive' employees.

We can find no justification for rejecting this implication of the limited purpose of the Act or for inferring the unlimited power contended for by the Government. Where applicable, the Act authorizes the agency head summarily to suspend an employee pending investigation and, after charges and a hearing, finally to terminate his employment, such termination not being subject to appeal. There is an obvious justification for the summary suspension power where the employee occupies a 'sensitive' position in which he could cause serious damage to the national security during the delay incident to an investigation and the preparation of charges. Likewise, there is a reasonable basis for the view that an agency head who must bear the responsibility for the protection of classified information committed to his custody should have the final say in deciding whether to repose his trust in an employee who has access to such information. On the other hand, it is difficult to justify summary suspensions and unreviewable dismissals on loyalty grounds of employees who are not in 'sensitive' positions and who are thus not situated where they could bring about any discernible adverse effects on the Nation's security. In the absence of an immediate threat of harm to the 'national security,' the normal dismissal procedures seem fully adequate and the justification for summary powers disappears. Indeed, in view of the stigma attached to persons dismissed on loyalty grounds, the need for procedural safeguards seems even greater than in other cases, and we will not lightly assume that Congress intended to take away those safeguards in the absence of some overriding necessity, such as exists in the case of employees handling defense secrets.

The 1950 Act itself reflects Congress' concern for the procedural rights of employees and its desire to limit the unreviewable dismissal power to the minimum scope necessary to the purpose of protecting activities affected with the 'national security.' A proviso to § 1 of the Act provides that a dismissal by one agency under the power granted by the Act 'shall not affect the right of such officer or employee to seek or accept employment in any other department or agency of the Government,' if the Civil Service Commission determines that the employee is eligible for such other employment. That is, the unreviewable dismissal power was to be used only for the limited purpose of removing the employee from the position in which his presence had been determined to endanger the 'national security'; it could affect his right to employment in other agencies only if the Civil Service Commission, after review, refused to clear him for such employment. This effort to preserve the employee's procedural rights to the maximum extent possible hardly seems consistent with an intent to define the scope of the dismissal power in terms of the indefinite and virtually unlimited meaning for which the respondents contend.

Moreover, if Congress intended the term to have such a broad meaning that all positions in the Government could be said to be affected with the 'national security,' the result would be that the 1950 Act, though in form but an exception to the general personnel laws, could be utilized effectively to supersede those laws. For why could it not be said that national security in that sense requires not merely loyal and trustworthy employees but also those that are industrious and efficient? The relationship of the job to the national security being the same, its demonstrated inadequate performance because of inefficiency or incompetence would seem to present a surer threat to national security, in the sense of the general welfare, than a mere doubt as to the employee's loyalty.

Finally, the conclusion we draw from the face of the Act that 'national security' was used in a limited and definite sense is amply supported by the legislative history of the Act.

In the first place, it was constantly emphasized that the bill, first introduced as S. 1561 in the 80th Congress and passed as H.R. 7439 in the 81st Congress, was intended to be applied, or be extended, only to 'sensitive' agencies, a term used to imply a close and immediate concern with the defense of the Nation. Thus the Senate Committee on Armed Services, in reporting out S.1561, stated:

'This bill provides authority to terminate employment of     indiscreet or disloyal employees who are employed in areas of      the Government which are sensitive from the standpoint of      national security.

'(Section 3 will permit) the President to determine     additional sensitive areas and include such areas in the scope of the authorities contained in this bill.

'Insofar as the (addition of § 3) is concerned, it was     recognized by all witnesses that there were other sensitive      areas within the various departments of the Government which      are now, or might in the future become, deeply involved in      national security. * *  * In view *  *  * of the fact that there      are now and will be in the future other sensitive areas of      equal importance to the national security, it is believed      that the President should have authority to make a finding      concerning such areas and by Executive action place those      areas under the authorities contained in this act.'

The House Committee on Post Office and Civil Service reported that 'The provisions of the bill extend only to departments and agencies which are concerned with vital matters affecting the national security of our Nation.' The committee reports on H.R. 7439 in the next Congress similarly referred to the bill as granting the dismissal power only to the heads of the 'sensitive' agencies. While these references relate primarily to the agencies to be covered by the Act, rather than to the exercise of the power within an agency, the standard for both is the same-in the 'interests of the national security'-and the statements thus clearly indicate the restricted sense in which 'national security' was used. In short, 'national security' is affected only by 'sensitive' activities.

Secondly, the history makes clear that the Act was intended to authorize the suspension and dismissal only of persons in sensitive positions. Throughout the hearings, committee reports, and debates, the bill was described as being designed to provide for the dismissal of 'security risks.' In turn, the examples given of what might be a 'security risk' always entailed employees having access to classified materials; they were security risks because of the risk they posed of intentional or inadvertent disclosure of confidential information. Mr. Larkin, a representative of the Department of Defense, which Department had requested and drafted the bill, made this consideration more explicit:

'They are security risks because of their access to     confidential and classified material. * *  * But if they do      not have classified material, why, there is no notion that      they are security risks to the United States. They are     security risks to the extent of having access to classified      material.'

'A person is accused of being disloyal, but is cleared by the     loyalty board, because there is not enough evidence against him. If that person is not in a     sensitive job, it is not of any further concern to us. We are     willing to take the view, that while we might have misgivings      about his loyalty, he cannot prejudice our security because      he does not have access to any of the classified or top      secret material.'

It is clear, therefore, both from the face of the Act and the legislative history, that 'national security' was not used in the Act in an all-inclusive sense, but was intended to refer only to the protection of 'sensitive' activities. It follows that an employee can be dismissed 'in the interest of the national security' under the Act only if he occupies a 'sensitive' position, and thus that a condition precedent to the exercise of the dismissal authority is a determination by the agency head that the position occupied is one affected with the 'national security.' We now turn to an examination of the Secretary's action to show that no such determination was made as to the position occupied by petitioner.

The Secretary's action in dismissing the petitioner was expressly taken pursuant to Exec. Order No. 10450, 18 Fed.Reg. 2489, promulgated in April 1953 to provide uniform standards and procedures for the exercise by agency heads of the suspension and dismissal powers under the 1950 Act. That Order prescribes as the standard for dismissal, and the dismissal notice given to petitioner contained, a determination by the Secretary that the employee's retention in employment 'is not clearly consistent with the interests of national security.' Despite this verbal formula however, it is our view that the Executive Order does not in fact require the agency head to make any determination whatever on the relationship of the employee's retention to the 'national security' if the charges against him are within the categories of the charges against petitioner-that is, charges which reflect on the employee's loyalty. Rather, as we read the Order, it enjoins upon the agency heads the duty of discharging any employee of doubtful loyalty, irrespective of the character of his job and its relationship to the 'national security.' That is, the Executive Order deems an adverse determination as to loyalty to satisfy the requirements of the statute without more.

The opening preamble to the Order recites, among other things, that 'the interests of the national security require' that 'all' Government employees be persons 'of complete and unswerving loyalty.' It would seem to follow that an employee's retention cannot be 'clearly consistent' with the 'interests of the national security' as thus defined unless he is 'clearly' loyal-that is unless there is no doubt as to his loyalty. And § 8(a) indicates that that is in fact what was intended by the Order. That section provides that the investigation of an employee pursuant to the Order shall be designed to develop information 'as to whether * *  * (his employment) is clearly consistent with the interests of the national security', and prescribes certain categories of facts to which 'such' information shall relate. The first category, § 8(a)(1), includes nonloyalty-oriented facts which, in general, might reflect upon the employee's reliability, trustworthiness, or susceptibility to coercion, such as dishonesty, drunkenness, sexual perversion, mental defects, or other reasons to believe that he is subject to influence or coercion. Section 8(a)(1) expressly provides, however, that such facts are relevant only 'depending on the relation of the Government employment to the national security.' The remaining categories include facts which, in general, reflect upon the employee's 'loyalty,' such as acts of espionage, advocacy of violent overthrow of the Government, sympathetic association with persons who so advocate, or sympathetic association with subversive organizations. § 8(a)(2)-(8). Significantly, there is wholly absent from these categories-under which the charges against petitioner were expressly framed-any qualification making their relevance dependent upon the relationship of the employee's position to the national security. The inference we draw is that in such cases the relationship to the national security is irrelevant, and that an adverse 'loyalty' determination is sufficient ex proprio vigore to require discharge.

Arguably, this inference can be avoided on the ground that § 8(a) relates only to the scope of information to be developed in the investigation and not to the evaluation of it by the agency head. That is, while loyalty information is to be developed in all cases regardless of the nature of the employment, that does not mean that the agency head should not consider the nature of the employment in determining whether the derogatory information is sufficient to make the employee's continued employment not 'clearly consistent' with the 'national security.' No doubt that is true to the extent that the greater the sensitivity of the position the smaller may be the doubts that would justify termination; the Order undoubtedly leaves it open to an agency head to apply a stricter standard in some cases than in others, depending on the nature of the employment. On the other hand, by making loyalty information relevant in all cases, regardless of the nature of the job, § 8(a) seems strongly to imply that there is a minimum standard of loyalty that must be met by all employees. It would follow that the agency head may terminate employment in cases where that minimum standard is not met without making any independent determination of the potential impact of the person's employment on the national security.

Other provisions of the Order confirm the inferences that may be drawn from § 8(a). Thus § 3(b) directs each agency head to designate as 'sensitive' those positions in this agency 'the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security.' By definition, therefore, some employees are admittedly not in a position to bring about such an effect. Nevertheless, the Order makes this distinction relevant only for purposes of determining the scope of the investigation to the conducted, not for purposes of limiting the dismissal power to such 'sensitive' positions. Section 3(a) is more explicit. That provides that the appointment of all employees shall be made subject to an investigation the scope of which shall depend upon the degree of adverse effect on the national security the occupant of the position could bring about, but which 'in no event' is to be less than a prescribed minimum. But the sole purpose of such an investigation is to provide a basis for a 'clearly consistent' determination. Thus the requirement of a minimum investigation of all persons appointed implies that an adverse 'clearly consistent' determination may be made as to any such employee, regardless of the potential adverse effect he could cause to the national security. Finally, the second 'Whereas' clause of the preamble recites as a justification for the Order that 'all persons * *  * privileged to be employed *  *  * (by the Government should) be adjudged by mutually consistent and no less than minimum standards', thus implying that the Order prescribes minimum standards that all employees must meet irrespective of the character of the positions held, one of which is the 'complete and unswerving loyalty' standard recited in the first 'Whereas' clause of the preamble.

Confirmation of this reading of the Order is found in its history. Exec. Order No. 9835, supra, as amended by Exec.Order No. 10241, 16 Fed.Reg. 3690, had established the Loyalty Program under which all employees, regardless of their positions, were made subject to discharge if there was a 'reasonable doubt' as to their loyalty. That Order was expressly revoked by § 12 of the present Executive Order. There is no indication, however, that it was intended thereby to limit the scope of the persons subject to a loyalty standard. And any such implication is negatived by the remarkable similarity in the preambles to the two Orders and in the kinds of information considered to be relevant to the ultimate determinations. In short, all employees, were still to be subject to at least a minimum loyalty standard, though under new procedures which do not afford a right to appeal to the Civil Service Commission.

We therefore interpret the Executive Order as meaning that, when 'loyalty' charges are involved, an employee may be dismissed regardless of the character of his position in the Government service, and that the agency head need make no evaluation as to the effect which continuance of his employment might have upon the 'national security.' We recognize that this interpretation of the Order rests upon a chain of inferences drawn from less than explicit provisions. But the Order was promulgated to guide the agency heads in the exercise of the dismissal power, and its failure to state explicitly what determinations are required leaves no choice to the agency heads but to follow the most reasonable inferences to be drawn. Moreover, whatever the practical reasons that may have dictated the awkward form of the Order, its failure to state explicitly what was meant is the fault of the Government. Any ambiguities should therefore be resolved against the Government, and we will not burden the employee with the assumption that an agency head, in stating no more than the formal conclusion that retention of the employee is not 'clearly consistent with the interests of national security', has made any subsidiary determinations not clearly required by the Executive Order.

From the Secretary's determination that petitioner's employment was not 'clearly consistent with the interests of national security', therefore, it may be assumed only that the Secretary found the charges to be true and that they created a reasonable doubt as to petitioner's loyalty. No other subsidiary finding may be inferred, however, for, under the Executive Order as we have interpreted it no other finding was required to support the Secretary's action.

From our holdings (1) that not all positions in the Government are affected with the 'national security' as that term is used in the 1950 Act, and (2) that no determination has been made that petitioner's position was one in which he could adversely affect the 'national security,' it necessarily follows that petitioner's discharge was not authorized by the 1950 Act. In reaching this conclusion, we are not confronted with the problem of reviewing the Secretary's exercise of discretion, since the basis for our decision is simply that the standard prescribed by the Executive Order and applied by the Secretary is not in conformity with the Act. Since petitioner's discharge was not authorized by the 1950 Act and hence violated the Veterans' Preference Act, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

'Executive Order 10450.

(18 Fed.Reg. 2489, as amended by Exec. Order No. 10491, Oct. 13, 1953, 18 Fed.Reg. 6583.)

'Whereas the interests of the national security require that     all persons privileged to be employed in the departments and      agencies of the Government shall be reliable, trustworthy, of      good conduct and character, and of complete and unswerving      loyalty to the United States; and

'Whereas the American tradition that all persons should     receive fair, impartial, and equitable treatment at the hands      of the Government requires that all persons seeking the      privilege of employment or privileged to be employed in the      departments and agencies of the Government be adjudged by      mutually consistent and no less than minimum standards and      procedures among the departments and agencies governing the      employment and retention in employment of persons in the      Federal service:

'Now, Therefore, by virtue of the authority vested in me by     the Constitution and statutes of the United States, including      section 1753 of the Revised Statutes of the United States (5 U.S.C. 631); the Civil Service Act of 1883      (22 Stat. 403; 5 U.S.C. 632, et seq.); section 9A of the act      of August 2, 1939, 53 Stat. 1148 (5 U.S.C. 118j); and the act     of August 26, 1950, 64 Stat. 476 (5 U.S.C. 22-1, et seq.),     and as President of the United States, and deeming such      action necessary in the best interests of the national      security, it is hereby ordered as follows:

'Sec. 1. In addition to the departments and agencies     specified in the said act of August 26, 1950, and Executive      Order No. 10237 of April 26, 1951, the provisions of that act      shall apply to all other departments and agencies of the      Government.

'Sec. 2. The head of each department and agency of the     Government shall be responsible for establishing and      maintaining within his department or agency an effective      program to insure that the employment and retention in      employment of any civilian officer or employee within the      department or agency is clearly consistent with the interests      of the national security.

'Sec. 3. (a) The appointment of each civilian officer or     employee in any department or agency of the Government shall      be made subject to investigation. The scope of the     investigation shall be determined in the first instance      according to the degree of adverse effect the occupant of the      position sought to be filled could bring about, by virtue of      the nature of the position, on the national security, but in      no event shall the investigation include less than a national      agency check (including a check of the fingerprint files of      the Federal Bureau of Investigation), and written inquiries      to appropriate local law-enforcement agencies, former      employers and supervisors, references, and schools attended      by the person under investigation: Provided, that upon      request of the head of the department or agency concerned,      the Civil Service Commission may, in its discretion,      authorize such less investigation as may meet the requirements of the national      security with respect to per-diem, intermittent, temporary,      or seasonal employees, or aliens employed outside the United      States. Should there develop at any stage of investigation     information indicating that the employment of any such person      may not be clearly consistent with the interests of the      national security, there shall be conducted with respect to      such person a full field investigation, or such less      investigation as shall be sufficient to enable the head of      the department or agency concerned to determine whether      retention of such person is clearly consistent with the      interests of the national security.

'(b) The head of any department or agency shall designate, or     cause to be designated, any position within his department or      agency the occupant of which could bring about, by virtue of      the nature of the position, a material adverse effect on the      national security as a sensitive position. Any position so     designated shall be filled or occupied only by a person with      respect to whom a full field investigation has been      conducted: Provided, that a person occupying a sensitive      position at the time it is designated as such may continue to      occupy such position pending the completion of a full field      investigation, subject to the other provisions of this order:      And provided further, that in case of emergency a sensitive      position may be filled for a limited period by a person with      respect to whom a full field preappointment investigation has      not been completed if the head of the department or agency      concerned finds that such action is necessary in the national      interest, which finding shall be made a part of the records      of such department or agency.

'Sec. 4. The head of each department and agency shall review,     or cause to be reviewed, the cases of all civilian officers      and employees with respect to whom there has been conducted a full field investigation under Executive      Order No. 9835 of March 21, 1947, and, after such further      investigation as may be appropriate, shall re-adjudicate, or      cause to be re-adjudicated, in accordance with the said act      of August 26, 1950, such of those cases as have not been      adjudicated under a security standard commensurate with that      established under this order.

'Sec. 5. Whenever there is developed or received by any     department or agency information indicating that the      retention in employment of any officer or employee of the      Government may not be clearly consistent with the interests      of the national security, such information shall be forwarded      to the head of the employing department or agency or his      representative, who, after such investigation as may be      appropriate, shall review, or cause to be reviewed, and,      where necessary, re-adjudicate, or cause to be      re-adjudicated, in accordance with the said act of August 26,      1950, the case of such officer or employee.

'Sec. 6. Should there develop at any stage of investigation     information indicating that the employment of any officer or      employee of the Government may not be clearly consistent with      the interests of the national security, the head of the      department or agency concerned or his representative shall      immediately suspend the employment of the person involved if      he deems such suspension necessary in the interests of the      national security and, following such investigation and      review as he deems necessary, the head of the department or      agency concerned shall terminate the employment of such      suspended officer or employee whenever he shall determine      such termination necessary or advisable in the interests of      the national security, in accordance with the said act of      August 26, 1950.

'Sec. 7. Any person whose employment is suspended or     terminated under the authority granted to heads of departments and agencies by or in accordance with the said act      of August 26, 1950, or pursuant to the said Executive Order      No. 9835 or any other security or loyalty program relating to      officers or employees of the Government, shall not be      reinstated or restored to duty or reemployed in the same      department or agency and shall not be reemployed in any other      department or agency, unless the head of the department or      agency concerned finds that such reinstatement, restoration,      or reemployment is clearly consistent with the interests of      the national security, which finding shall be made a part of      the records of such department or agency: Provided, that no      person whose employment has been terminated under such      authority thereafter may be employed by any other department      or agency except after a determination by the Civil Service      Commission that such person is eligible for such employment.

'Sec. 8. (a) The investigations conducted pursuant to this     order shall be designed to develop information as to whether      the employment or retention in employment in the Federal      service of the person being investigated is clearly      consistent with the interests of the national security. Such     information shall relate, but shall not be limited, to the      following:

'(1) Depending on the relation of the Government employment     to the national security:

'(i) Any behavior, activities, or associations which tend to     show that the individual is not reliable or trustworthy.

'(ii) Any deliberate misrepresentations, falsifications, or     omissions of material facts.

'(iii) Any criminal, infamous, dishonest, immoral, or     notoriously disgraceful conduct, habitual use of intoxicants      to excess, drug addiction, or sexual perversion.

'(iv) An adjudication of insanity, or treatment for  serious mental or neurological disorder without   satisfactory evidence of cure.'

'(v) Any facts which furnish reason to believe that the     individual may be subjected to coercion, influence, or      pressure which may cause him to act contrary to the best      interests of the national security.

'(2) Commission of any act of sabotage, espionage, treason,     or sedition, or attempts thereat or preparation therefor, or      conspiring with, or aiding or abetting, another to commit or      attempt to commit any act of sabotage, espionage, treason, or      sedition.

'(3) Establishing or continuing a sympathetic association     with a saboteur, spy, traitor, seditionist, anarchist, or      revolutionist, or with an espionage or other secret agent or      representative of a foreign nation, or any representative of      a foreign nation whose interests may be inimical to the      interests of the United States, or with any person who      advocates the use of force or violence to overthrow the      government of the United States or the alternation of the      form of government of the United States by unconstitutional      means.

'(4) Advocacy of use of force or violence to overthrow the     government of the United States, or of the alteration of the      form of government of the United States by unconstitutional      means.

'(5) Membership in, or affiliation or sympathetic association     with, any foreign or domestic organization, association, movement, group, or combination of persons which      is totalitarian, Fascist, Communist, or subversive, or which      has adopted, or shows, a policy of advocating or approving      the commission of acts of force or violence to deny other      persons their rights under the Constitution of the United      States, or whch seeks to alter the form of government of the      United States by unconstitutional means.

'(6) Intentional, unauthorized disdisclosure to any person of     security information, or of other information disclosure of      which is prohibited by law, or willful violation or disregard      of security regulations.

'(7) Performing or attempting to perform his duties, or     otherwise acting, so as to serve the interests of another      government in preference to the interests of the United      States.

'(8) Refusal by the individual, upon the ground of     constitutional privilege against self-incrimination, to      testify before a congressional committee regarding charges of      his alleged disloyalty or other misconduct.

'Sec. 10. Nothing in this order shall be construed as     eliminating or modifying in any way the requirement for any      investigation or any determination as to security which may      be required by law.

'Sec. 11. On and after the effective date of this order the     Loyalty Review Board established by Executive Order No. 9835      of March 21, 1947, shall not accept agency findings for      review, upon appeal or otherwise. * *  *

'Sec. 12. Executive Order No. 9835 of March 21, 1947, as     amended, is hereby revoked. For the purposes described in     section 11 hereof the Loyalty Review Board and the regional      loyalty boards of the Civil Service Commission shall continue      to exist and function for a period of one hundred and twenty      days from the effective date of this order, and the Department of Justice shall continue      to furnish the information described in paragraph 3 of Part      III of the said Executive Order No. 9835, but directly to the      head of each department and agency.

'Sec. 15. This order shall become effective thirty days after     the date hereof.

'Dwight D. Eisenhower.

'The White House,

'April 27, 1953.'

Mr. Justice CLARK, with whom Mr. Justice REED and Mr. Justice MINTON join, dissenting.