*1 230 sightseeing, practical difficulties would local carriers re- All of these delay, quiring expense it and seems out-of-state carriers obtain create
probable any event, be local certification. neither burden passed tangential of on the these charter factors has more than users services, making impossi- divining problem it difficult relevance the of the Congressional many underlying Na- ble for citizens to visit the intent Article time, Capital. XII, Compact; ac- section tion’s At the same 1 of the we ceptance correctly the con- of Commission’s strict believe the as- Commission jurisdictional bearing of struction the section sessed the on available performance question. impede will not of the func- legisla- recognized tion which the Affirmed. history5 tive the law6 as case objective primary Compact: of uni- the regulation form and efficient of mass
transportation for commuters within
Washington metropolitan pe- area. The may
titioner’s it contention competition
vulnerable
ruinous
hands of
interstate carriers
are
Larry ADAMS,
Robert
Appellant,
subject
to the
local
restrictions of
v.
unexplained
certification was
un-
LAIRD,
Melvin R.
Secretary of Defense.
supported by any proffer
evidence,
No. 22506.
and we
weight
cannot accord substantial
United
Appeals
States Court of
speculative
such a
assertion.7' Similar
District of Columbia Circuit.
apply
argument
considerations
Argued
5,
affirmance of the
1969.
Commission’s
order will
major
frustrate one of the
ob-
12,
Decided Dec.
1969.
jectives
Compact,
of the
the alleviation
April 20,
Certiorari Denied
congestion
of traffic
within the metro-
See
J.
sented.
February Fed.Reg. 1960. 25 Secretary Defense, It directs among others, regulations prescribe safeguarding of classified infor- industry. mation within admonishes *3 that an authorization for access to such given “only upon information a be finding clearly it is consistent with pre- the national to do so.” range procedural scribes broad Barnard, Washington, M. Mr. William rights seeking for or individuals Temple, D.C., Ralph whom J. with Mr. holding such authorization. brief, Washington, D.C., for on the was directed, appellant. As of De- July 28, 1960, fense its Direc- issued on Gutnick, Atty., Depart- Mr. H. Yale 5220.6, which embodies In- tive Atty. Justice, ment whom Asst. with dustrial Personnel Access Authorization Yeagley and T. Kevin Gen. J. Walter Program. Fed.Reg. 14399. Review Justice, Atty., Department Maroney, comprehensive DOD 5220.6 is a docu- brief, appellee. for were on the policy ment which states its to be the WRIGHT, McGOWAN Before implementation of Executive Order Judges. TAMM, Circuit by taking adequate mea- grant- person “to sures insure that no is ed, retain, McGOWAN, Judge: or is allowed to an authoriza- Circuit tion for classified information complaint Appellant’s in the District justifies unless the information available declaratory injunctive sought Court that such access authorization Secretary requiring of De- relief * * * clearly is consistent with certain secu- fense accord organization national interest.” for rity for access to classi- authorizations program the administration is of the alleged by appellant fied information spelled out in detail. A “Standard” employment be essential to his continued access authorization is in terms defined engaged by private companies in defense grant of a or continuation of access summary Each side moved for work. “only if it such ac- determined that judgment, appeal is from clearly cess consist- order, District entered without a Court’s ent with national interest.” granting reasons, appellee’s statement are also enumerated several “Criteria” motion. We affirm. for the of the Standard individuals; particular and this section completed Directive with grows This of the Federal case out principles statement of several program protect the in- Government’s designated “Guidance” .pri- tegrity, possession of while in the plication of the Standard the Criter- industry, of classified vate first, central, ia. The most relating That defense. national principles asserts iden- the matters program reorganized and establish- tified in the criteria ed in 1960 as a con- on new foundations “may, light of all the surround- sequence Supreme inabili- of the Court’s ing circumstances, for de- the basis ty procedural pro- adequate find in it nying revoking access authoriza- seeking an tections individual implica- The conduct tion. varies holding security Greene v. clearance. signif- degree tion, of seriousness and McElroy, S.Ct. depending all the factors icance L.Ed.2d 1377 The basic charter Therefore, particular in case. program Or- revised Executive an of whether ultimate determination der issued the President thought granted processing. further authorization should investigation necessary, appel- continued must be over-all com- requested present lant was himself on the all the monsense one basis may properly at for an interview the Potomac River information which Regulation appeared in- Naval Command. considered under morning cluding on the but not to such fac- there 9:00 A.M. restricted 30, 1964, tors, July appropriate, the follow- and was interviewed ing: investigators conduct, two from the Na- the seriousness of the Office of Intelligence. recency, They implications, moti- val advised to refrain extent to which outset vations answering voluntary questions, and that and undertaken gave might knowledge against circumstances answers he be used *4 and, Appellant can him. did not elect to stand to extent volved mute, began, appropriate in and the con- a conversations be estimated and is tinuing case, probability particular and until four afternoon being in resumed for short time on Au- will continue the future. gust mainly 4. These discussions were The remainder of DOD 5220.6 is appellant’s concerned with involvement largely prescription to a detailed devoted homosexuality, in as to which he made a processed are as to how cases to be and of number revelations. procedures which are to be observed. adjudicatory hierarchy comprised The Secret authori- Thereafter Screening Board, Board, of a a Field suspended and his zation was Personnel Ac- Central Industrial Top A denied. “Statement Secret cess Authorization Board. to him was furnished Reasons” Screening Board, which, Appellant employed private by in in- time dustry margin,1 four In as an in identified electronics set forth technician. 1957, incompatible employed Melpar, Inc., with cer- while Criteria as given a Secret au- attributed tain homosexual conduct sought more employer, pellant. thorization. In 1962 his then When sup- Inc., last, Laboratories, particulars he was National Scientific 1965, 30, Top urged apply plied, Secret au- him to letter dated thorization, applica- characterized which he did. This a list of what were Screening a let- sent tion went to the Board for details.” “further set 1. information Criterion 16: Information available 2. Criterion 14: above, 1, paragraph Screening you the sub- and Board in indicates forth behavior, thereunder, engaged paragraphs reflects in criminal and immoral perversion activities, which tend to and conduct acts of sexual and associations may you reliable or trust- and continue to This do so. informa show that worthy. tion is: set The information 17: Criterion July 30, 1964, you a. On acknowl- 1, above, paragraph the sub- and in forth edged persons you to several had thereunder, paragraphs reflects engaged in numerous acts of sexual reckless, irresponsible, nature wanton perversion, beginning you were judgment poor such which indicate years age continuing up to that you might suggest instability as to date. to un- disclose you b. “X”] while and [Mr. persons, assist or otherwise authorized working jointly were on a local science deliberately persons, in- whether such you project, fair solicited said advertently, inimical activities in engage im- in unlawful [“X”] interest. national perversion. moral acts sexual information set 19: The 4. Criterion 1, above, paragraph (Further respect and the sub- in forth details with thereunder, alleged paragraphs furnishes reason paragraph be matters will subjected may you you your to co- believe that re- furnished to written influence, pressure ercion, which quest will in event be included contrary you likely act cause the record on which the determina- your made.) national interest. tion in case will by way specifica- ter answer these and Criterion the Statement tions, he admitted which some Reasons furnished him under date of them, May acts but denied most and ended However, pointed by appearing say perhaps made out April 7, letter some admissions his interviewers signifi- attributed no adverse bringing interroga- purpose cance to the matters detailed in sub- paragraphs tion to end. a.(l), a.(2), a.(3), a.(7), and paragraph b. of letter of June Appellant aslyed hearing, for a signed by Mr. Herbert Lewis of place took before the Field Board this Office. The Board concluded Washington. Appellant represented its final determination and find- hearing, at this and testified counsel ings adequately supported by, on his own behalf. One of the ONI of, independent the result con- person. testified in Cross-ex- terviewers sideration of record, the evidence of place. amination of each witness took excluding immediately the matters permitted Each side was to make docu- above-mentioned.” mentary part record. Board, matters to which the made, The record so the Field both its tentative and final determi report, Board Examiner’s went nations, derogatory signif attributed no *5 Appellant for Central Board review. icance related to homosexual acts before subsequently by letter, notified dat- appellant adulthood, frequenting reached April 7, 1966, ed of a tentative adverse public hangout restaurant said to abe by Board, determination the Central homosexuals, refraining during and appellant’s conclusion which counsel at- the ONI interview self-incrimination argument in oral tacked before the Cen- grounds answering any questions tral Board. That Board thereafter noti- relationships sexual since 1960 appellant fied of its final determination “A”, employee Mr. a fellow at Mel- in these terms: par, Inc. This left' as the factual basis inability for the Board’s find se considering “After all of the informa- curity clearances for were in it, including tion ad- available to —in (1) the national homosexual dition to the items enumerated in let- engaged in with two fellow em argument April ter of 1966 —the ployees Melpar, Inc., whom presented appearance before identify only as Messrs. “A” and and the additional Central Board “B”, (2) a homosexual act with “Y” one your letter of material submitted with (3) in the solicitation of “X” 9, 1966, the Board has Central in working jointly granting au- determined on a project, engage science fair in to Mr. Adams thorization for homosexual acts.* any pursuant information clearly Order 10501 is not Executive II national interest. consistent with the reaching determination, The record in the In District Court was against compiled the administrative in Board found Mr. Adams with record agency proceedings.2 respect allegation, paragraph to each On this * disposed opinion throughout Reference bint of the reasons no represent summary judg- “X”, “Y”, “Z” Messrs. sub- the cross-motions symbols real the same stitutions as it We start at ment did. point in in the where Con- names stated the record. as we do cases provision gress for direct review has made agen- by Appeals appear 2. This would those federal to be another of the Courts of interposition cy of the Dis- This double review of cases where the action. process by judicial the in- review administrative record two of trict Court especially purpose, commented no ferior federal courts has been serves visible here, gives where, upon adversely before. See Gold- us the District Court vestigation recognized in peal, appellant assert that decision does not Rather, argued inadequate to was violated here.3 it is that record is evidence unseemly police interrogation support the factual determinations practices Supreme relied conduct which were adverted Miranda, denying opinion by appellee upon the clear- Court were in- dulged here, should, accordingly, claims that evi- ances. nullifying respects, was, made the two obtained basis the use dence during developed under circumstances violative admitted law, Executive Order interview. beyond or DOD 5220.6. Over against resolving appel- this issue alleged procedural defects, appel- these lant, upon any we do not rest distinction urges process in of due lant a failure interrogation and that between criminal weighed (1) under evidence invoking purposes involved here requi- with the standards not articulated against self-incrimination. degree specificity, site deny Mi- do Neither we the relevance of findings were made dem- or conclusions it, strictly viewed, randa because turned onstrating denials provide the failure to counsel —a were, puts “required in the na- as he rath- not in issue We look matter here. tional interest.” er to what the record reveals for our happened of whether what measurement Interview. ONI gross- patently here was so uncivilized or appel record judicial intimidating ly require as to history comprised lant’s terference, of constitution- in vindication part in considerable of memoranda by the principles, with this execution al during testimony to what was said responsibili- Defense the ONI the interview under Order ties Executive August agents July Appel *6 30 on and Screening urges by lant this interview was the now The decision ap- inherently so render unre an interview of coercive to seek largely pears liable he the result the statements made been have thereof, discrepancies the face of his course for the Board either on certain Top Secret pending application to reach conclusions on such for the by to countenance such coercion enter He was invited authorization. taining interview, incompatible and he present evidence is himself voluntarily Upon at command of due his arrival with the constitutional did so. A.M., process. pivot argument The this at 9:00 he the ONI office 436, agents. Arizona, by greeted 86 It is conceded Miranda v. 384 U.S. two (1966), any questioning 1602, they prefaced 16 694 al S.Ct. L.Ed.2d though advising it is not claimed that his the him of self-incrimination during part rights.4 in- counsel criminal custodial first interview The Brown, U.S.App.D.C. 222, wasser v. 135 trials to criminal com- reach of Miranda ; 1, (1969) mencing 13, if n. F.2d 1 v. 1966. Even 417 1169 n. Scott Macy U.S.App.D.C. 93, type [II], applicable 131 96 n. of interro- to the deemed 644, (1968) ; 6, here, interrogation gation 402 Con- F.2d 647 n. 6 involved nelly 1, Nitze, U.S.App.D.C. 351, place 130 n. Field Board v. in 1964 took ; 416, prior hearings completed 401 1 see also this F.2d 417 n. had been Dabney U.S.App.D.C. Freeman, cut-off date. F.2d 533 seems provides is “essen- 5220.6 4. DOD propriate exploration in the first by giving applicants cooperate tial” that by the Review stance Judicial Committee in re- full and accurate tlie Administrative Conference of inquires. p. sponse See to official United States. prohibits release Elsewhere infra. Jersey, New In Johnson v. Branch of informa- outside the Executive investigations. gained (1966), in these S.Ct. L.Ed.2d 882 tion Supreme Court restricted backward clearing doing so, up some errors was devoted would in effect have papers. calling It then turned to been his attention to the follow- subject homosexuality. ing paragraph contained the “Guid- principles ance” stated in DOD 5220.6 July 30 con- on conversations application of the Standard and afternoon; tinued until four Criteria; recess, two included one-hour luncheon efficient, It is essential to the breaks, appear econom- coffee and what to have ical, equitable operation been at two comfort least breaks. of the Industrial suggest Personnel nothing Access is appellant record to Program, Authorization Review physical custody and, but of inwas procedures whereby total indeed, De- are affirmative indications there partment of contrary. building Defense authorizes He left the information, appli- go lunch, himself to under no provide full, cants away. frank truthful surveillance while he was He did they complete answers when fatigue plead official or other reason for questionnaires or similar and, other terminating interview, docu- when it ments, respond inquiries. arrangements official up o’clock, broke four Accordingly, giving the deliberate agreement were mutual made for him misleading testimony false or days complete or in- to return to it five later. matters, may formation on relevant agreed upon, He returned the time standing justify sufficient alone to de- agents protest talked without nying revoking access authorization for two more hours at that time. A weighed carefully and shall be before telephone throughout was available a determination is reached under appellant’s free and unrestricted use Program. and, day, first in fact used it employer say to call his that he would The moment that decided to getting press be late back to work. in the face of in- vestigation and to submit himself for what conversation was about one purpose interrogation, pressures might expect dialogue such a to be. The They him were inevitable. includ- agents professional persistent, ed the answering distasteful business investigators way being. Ap- questions investigators of two who pellant obviously torn between dis- appeared must have to him at one time revealing highly taste for intimate de- *7 potential quest as allies in his for clear- personal life, tails of his on the one ance, proved but inwho the end to be hand, and, other, on his desire not to instrumentalities of his frustration. endanger the success of his by appellant role, Viewed in the one by seeming uncooperative or to be to be with conversations them must have concealing inferentially matters which quite they seemed different from how might regarded as.much worse than appear came to fact. they short, lot, were in fact. His was surely surprising what at the unhappy one, an and uncomfortable as is appeared opportunity anyone time occupies be an to be true of who as ambiva- position trap lent a seized as does the later looked homosexual like a be de- contemporary social order. It was nounced. not, view, significantly in our worse unsympathetic We are not towards normally than would if obtain it be highly subjective appellant’s nature of thought properly subject he feelings interrogation, about the but we questioning subject. all on this anything do find the record so interroga- shocking transgress We do not doubt that his it as to conflicting pulls process wholly tors were aware limits of to render due or upon him, or that reminded him of unreliable the statements attributed appellant varying degrees subtlety. them with in the course that interview. certainly would that I indicated have “X” 2. The Affidavit. submit him of assure Hearing, the Board the Field At cross-interrogatories. fac- I offer a an affi in evidence offered Government copy reproduction, and simile 1964, by Mr. davit, one dated say, furnished, I I have University That “X”, student. a Duke him. known “X” had related that affidavit appellant right. All MR. GRAVES: years; some or six for five as Govern- helped of Affidavit before, appellant 2y2 years [Admission had to cross-examine “X” during well as a regulations portunity and current must 5220.6 is through asked “X” to cross-examine the applicant ments cross-examine has been made *8 was offered: information either interrogatories.” ing colloquy at the time the affidavit der. contain no less (appellant) Field Board that a Executive Order his ment] contact been in ceeding and he is davit of unable to MR. TILTON recounting with implementing him, representing to “X” that willingness person those the information or its substance : written Executive Order 10865 now is afforded afforded an afforded * * * departure from the [Mr. “X”] issued information adverse hearing under the science engage situated as was urges persons “ * * * testify meetings appellant available to “X” an active by telephone controverted interrogatories”; “X” was person him orally I have a language contains the follow- appear in homosexual fair [for appear. who has indicated appellee transcript of the * * * either “opportunity to Constitution, to confront and to him and the the record opportunity providing project; the Govern- contemplates experiences. homosexual sworn lack with denial orally issue un- of DOD thereun require written I have affi- past him, pro- has op he plated variably comport was content to avail himself vit of written er restriction to written plicant duced regulations. ing cross-examination. in lieu of direct confrontation would due opportunity to submit to Mr. [“X”] ment’s Exhibit er] counsel indicated Mr. davit so? with him that able from the conclusion suggest right to terrogatories have like ing, It thus statement, tories should davit Mr. [“Z”]. MR. ROCHE to the admission process MR. TILTON: MR. MR. ROCHE: [******] : That [sic] Chairman, Mr. insisting both of in the Executive Order objects of Mr. GRAVES: for the applicant, appear, and appears that, far from submit cross-examination, appellant * * in interrogatories, that a period We need not those you so us, No. should he also [“Z”] applicant for [Field with the * [“X”]—on cross has been for me to submit may prospective witness proceeding By [Mr. But cases 2] Each of of the “X” affida- to submit desire. * we Graves I have submit of this interrogatories. submit subject affiant be * * interrogatories interrogatories there was “Z”], where the decide desire to same demands extended of the use previously interroga- stipulated you Examin- proceed- [sic] and the an without contem- wheth- object- token, [“X”] affi- affi- days pro- will un- my in- an do no here, part He has indicated that he re- such at least insistence ply interrogatories. appellant himself had a fur- to the fact that have copy present through nished a of the statement to Mr. witness af- wished appellant] [attorney person, for and was Graves fidavit rather than gov- Program. accordingly ready stipulate It a criminal Review was prosecution consent counsel that each would under the Subversive Ac- ernment Act to admission of the tivities Control of a Communist other’s affidavit, subject Party remaining member in the form of an right employ plant of a inter- of each to submit written defense rogatories.5 Party had been found to be a Commun- organization. Supreme ist-action light foregoing, the con- . Court reversed the on First conviction of the “X” tention that admission grounds because, Amendment in its with the re- conflict affidavit view, swept broadly the statute too quirements Order' of Executive did not take into account such considera- regulations and the on the frivo- borders job tions whether individual’s lous. Neither did the admission a sensitive one in of national se- terms affidavit occur under circumstances curity. was, however, The Court amounting impingement upon to an pains recognize power, some standing Ap- Due Process alone. Clause duty, govern- indeed the of the national pellant freely agree elected to to the ad- protect ment its secrets. It declared rely upon mission the affidavit and government deny that “[t]he can interrogatories any testing written to its secrets to those who would use of it that he chose to make. These are such information to harm the Nation.” something less than the conditions of Fastening upon phrase use,” “would procedural fundamental unfairness security insists that which are the focus the due only govern- be withheld when the concept.6 present “point ment can to a clear and danger that a breach of is ac- Findings. 3. Standards and tually threatened,” and that is not Appellant’s appeal enough applicant “may final an be sub- Due ject Process coercion, Clause formulated pressure.” influence (a) any terms of an asserted absence of really Thus what seems adequately enunciated standard for eval urging presently is not that there disqualifying uation of conduct one for no identifiable standard but clearance, (b) findings wrong standard followed is the one. showing a need for denial. Both of certainly clear that ex- the President departure these claims take their from a plicitly standard, articulated concept appellant pro substantive which adopted Defense it. That fesses to derive from United States v. is, above, standard as stated that classi- Robel, S.Ct. 19 L. fied information tois be made accessible Ed.2d (1965), weight and their “only upon to an largely validity turns of this clearly it is consistent with the national premise. significant to do so.” That is a Robel, course, did not involve proposed variation the standard Industry Personnel Access Authorization appellant, namely, access is to denied that, event, 5. The Appel- record shows it in bis interest to do so. deems government counsel elected to avail him- lant now that his waiver asserts stipulation, submitting self of meaningless an because the Board had no interrogatory honoring elicited answer “X” tention appellant. favorable to indi- present is, however, There no person. cation of counsel de- speculation. in the record for this basis *9 interrogatories cided not to submit to rather reflects a tactical deci- The record “X.” forego by appellant a cross- sion ap- which, out, examination it turned is in intimation Mc- Green v. pellant pursue Elroy, p. 232, even supra, concluded not that the interrogatories voluntarily for he had the confrontation cannot be re- which linquished party consciously bargained. where a rationality. government can demonstrate DOD 5220.6 sets forth the if danger many “Criteria,” ample present that it will which include a clear and practicing that indications may a be misused. problems pose the serious for De- require- We know of no constitutional Department making requi- in the fense seeking must, in the President ment that finding security site for clearance. integrity safeguard of classified the They expressly to of refer the factors information, provide that a instability possible emotional granted it be unless clearance must be affirmatively subjection pressures and to sinister proven applicant that the traditionally been fluences have improperly. are not it “would use” We is, living in what lot of homosexuals knowledge experience in an area worse, society better still obtain, grant or and the where absolutes strongly oriented towards heterosexuali- an inex- clearances is denial of ty. act at Those who have science best. true, argues, responsibility do the best is they have, they principles in out set can what “Guidance” range discretionary repose determinations must DOD 5220.6 dis- wide not, administering inevitably make a matter of authorities. are cretion process least, required conform in the last due When determinations left analysis ap- standard as to “an over-all common-sense” such alternative being particular situation, predict- pellant Appellant view the is advances. being something pre- jail; ability perhaps told rather of a sent he is anyone that, developed But we in on the information and mium. doubt hearing, appellee pellant’s position really it found want facts after otherwise, giving especially him that “com- cannot make a judgment expressly “clearly di- secret information is mon-sense” access to to be informed such factors as with the national interest.” rected consistent conduct, im- “the seriousness of the plications, prescription of the standard recency, the motivations field is for the Presi- in this observed it extent to which was volun- discharge of his ex- dent to make knowledge tary and undertaken with do not second- functions. We ecutive and, involved, circumstances guess that choice unless the Constitution it and is extent that can be estimated actually us to so. The one commands do case, particular appropriate in view, falls, in chosen in this instance our probability that it will continue range choice vest- within rational Surely is, in terms es- future.” ined the constitutional the President approach fairness, pre- to be sential concept of his office. making any history ferred to homosexuality basis for whatever do we think Neither withholding clearance, one not to be lacking in a here standard involved grounds on due because faulted adequate particularized enunciation eschews latter.7 satisfy process elements of notice heterosexuality. Appellant lights possibilities complains of the found, to be one who has been discriminatory continues treatment inherent adequate hearing judg- evidence in the “common-sense” of a practicing record, regard to despite an adult homo- ment, points to an in this he is. sexual his denials granted clear- a secret who was instability personal potential freely despite that he ad- ance the fact vulnerability pressure implicit external while homosexual acts mitted several duality obviously substantial; in this Army during That Korean War. was, course, Criteria taken presented one applicant, however, what also See case. thought into account apparently to be credible Employment Note, Government-Created testimony lost his he had Homosexual, 82 Harv. homosexuality discovering the de- Disabilities *10 appellant Appellant’s final of invocation is characterized phrased complaint poor judgment instability” due as a “such suggest vulnerability find the failure to make to the Board’s to disclosure ings. gravamen Again, however, posses- of of the classified information his objection appears to in essence be sion. findings Board made no the adoption The Central Board’s but, rather, it made were the ones findings determinations in the sense wrong responsive The standard. being of a concrete of statement identi- had, appellant Board facts that found as Board, fiable reasons as to the on during years adult while his recent the record before it decided as did. engaged employed plant, in a defense We not find do them deficient in terms during repeated acts, homosexual procedural process, appellant period the had friend to same solicited a do; and, although appel- would have us activities, participate him in with such urge really upon lant does not us an representing (ap that friend that he to any abuse of discretion in substantive pellant) was an active homosexual. sense,8 that, we are declare unable to put explicitly Board and refused to aside record, case and on this the denial take into other ei account circumstances appellant op- to reflects an involving prior ther eration the industrial acts, adulthood, establishing program transgresses the drawn distinct from inferences be Constitution falls outside Executive from self-in associations a claim of regulations imple- Order crimination. menting it.9 On the these factual determi- basis Affirmed. nations, inability the Board declared its granting to find that the of clearances WRIGHT, Judge J. Circuit SKELLY appellant “clearly consistent (dissenting): the national interest.” stated majority’s these facts relevant criteria the concur conclusion specified concerning Reasons the Statement is- of confrontation originally appellant furnished to sue and conduct of interview. Screening However, Board. Those includ- criteria I would remand this case ed such as reason to factors believe a determination Central “may appellant alleged the facts relationship found between subjected coercion, influence, pres- ability homosexual conduct and you likely protect sure which to cause informa- interest,” contrary act Therefore, national respectfully dissent. tion. qualifications L.Rev. 1749-1750 Nor- who sexual insists his Macy, U.S.App.D.C. 214, ton v. to maintain are no less than (July 1, 1969), anyone F.2d No'. 21625 those else. po- where we noted that “[B]ecause of the is not a where This ease tential for blackmail [in homosexual con- being prospect denied the kind of duct], jeopardize might employment with the Federal Govern- classified communications.” Compare Macy (II), ment. Scott v. n. Macy, supra, supra. 8. Nor did endeavor to make of and Norton n. 7 evidentiary hearing agency particular at the level here We deal with a dis- exploration responsibility charge a forum for the of the rela- the President’s tionship integrity protect between conduct with which of classified charged capacity protect must, he was and his formation which national purposes interest, placed private classified information. the hands put hearing industry. standpoint prevent which he was to From the judicial legitimate conduct had occurred. inter- foundations wholly approach legitimate vention, This was a the differences between two part, hardly but casts him in the situations are obvious. aggrieved role of the avowed but homo-
241
rity
eight years
dur-
clearance after
of relia-
Appellant held a Secret
comport
ing
and ble service did
1957
not
with the re-
of the time between
most
quirements
1962,
years
process. Assump-
of due
after obtain-
In
five
predicated
appellant's
ing
clearance,
applied
he
tions
unfortu-
his first Secret
facts,
Top
nate
a
No immedi-
affliction unrelated to
Secret clearance.
provide
legal
application.
on this
this case cannot
a
basis for
taken
ate action was
effectively
during
ap-
denying
years,
him access to his
After two more
livelihood.
pellant
on classified
continued
work
projects,
explain
for an interview
he was called
The Board does
a
not
appellant
Intelligence.
had
involved
been
the Office of Naval
in some isolated instances of homosexual
Through appellant’s
admissions at
conduct should lead to a conclusion that
interview,
learned
Government
appellant had
himself fit to
not shown
spite
he was a homosexual.
security
only
a
hold
ex-
clearance.
security
appellant’s
disclosures,
clear-
planation
a
is contained in “statement of
ance
not
continued
was
revoked—he
reasons”
furnished to
to secret documents—for
“reasons,”
lost his clearance. Those
year.
I
conclude
can
additional
however,
explain
did not
the Board’s ac-
delay
De-
that not
from this
even
merely
They
tions.
were
one-sentence
fense
was exercised
pre-
recitations checked off from list
risk.
as a
viously prepared
denying security
generally.
clearances
was no at-
Department’s lassitude
The Defense
tempt to show how these
conclu-
stock
a new
justified.
sions had been drawn from the circum-
employee.
From
and untested
fact,
stances of this case. In
several of
had not
that he
record we must assume
the enumerated “reasons”
seem bear
any
over
misused
relationship
little
no
facts of
eight years.
period
nearly
But de-
example,
For
the Board de-
case.
reliability,
spite
Board
this record
partially
nied the clearance
because
why its
show
made no real effort
pellant’s
indicated that
findings relating to homosexuali-
factual
ty precluded
trustworthy.”
he was not “reliable or
clear-
continued
iso-
But
connection between
rational
Compare
Norton v.
ance
Macy,
this case
reliability
activity
lated homosexual
U.S.App.D.C. 214,
135
F.2d
417
demonstrated
distin-
facts
(1969).
assumptions
Generalized
guished
assumptions.
unsupported
security risks1
that all homosexuals are
indicating
If the Board has
eight
certainly
outweigh
cannot
almost
appellant specifically, or
either that this
years of
Even before
474,
faithful service.
group,
taken as
homosexuals
McElroy,
Greene v.
360 U.S.
79 S.Ct.
reliable,
ought
trustworthy or
1400,
(1959),
firm-
The Board’s
might subject to blackmail for his ac- may
tivities well have some basis experience. However, appellant
common interrogators
freely told his his ho- experiences supervisor
mosexual and his charges against Certainly him. BRIGHTHEART, Appellant, Willie G. surrounding publicity alleged homosexuality suit,
court his longer blackmail, if basis for al., Ted Appellees. et McKAY
deed it ever was. No. 21813. sum, impression In the clear left Appeals United States Court of reading the record in this case is that appellant was denied his clearance sim- District of Columbia Circuit. Argued Dec. 1968. ply acts, because without April 9, Decided any effort to determine whether his sta- Rehearing Petition for Denied tus as homosexual related his abili- May 14, 1969. protect ties to classified information. ruling The Board’s in effect bill of against homosexuals, attainder all at obtaining security
least insofar as clear-
ance is concerned. In cases where national at
stake, wide discretion must of course be
accorded determinations of However,
Board. cases there must all relationship
be some rational between
the facts found and the actions of the relationship,
Board. Without such pointless
would be to accord
any procedural rights. The burden prove his entitlemement to Top clearance, Secret even continu-
ing great Secret clearance is indeed.3 expect
The least he should be able effectively
from the Board before it away living
takes his to earn his altogether regu- clear from See of Defense Directive person 5220.6, IV(C) (July 28, 1960), lations that a has the same burden § continuing Fed.Reg. (1960). clearance as obtain- This Execu- ing clearly indicates, required tive first instance. Order event, supra McElroy, either least must Greene v. Note given a “written statement of the rea- the Board’s written statement facts, sons his access authorization reasons should contain rather than revoked, unsupported assumptions, denied or which shall be as com- least “as prehensive comprehensive and detailed as the national and detailed as the nation- permits.” security permits.” Executive Order al Fed.Reg. 3(1), §