Congress should consider legislation providing a basis for judicial review of the type of discharge given in such separations. Judicial review of the type of discharge or of the facts underlying the military separation leading to the certificate of discharge itself, has been consistently denied by the courts. The latest judicial expression on this matter is as follows: The courts have held many times that they have no power to review the administrative processes by which the President and Secretaries administer affairs of the Army, and this doctrine has extended to the nature of discharges from the service. . . .” The Commission feels that the Department of Defense may choose to review its discharge policy on loyalty separations in light of the Commission's recommendation, which would preclude the necessity for recommending legislation in this matter. If its policy continues to be one other than that recommended by the Commission, it is believed that in order to protect the rights of the individual, Congress should consider providing legislation for judicial review in cases of other than honorable discharges in loyalty separations. 27 Harmon v. Brucker, C. A. D. C. No. 13230, Jan. 31, 1957. Introduction Although there can be no serious objection to the premise that the executive branch has the right and duty to protect official papers and other material from unwarranted disclosure, serious objections have been raised by the public and the Congress to some of the practices and policies employed in carrying out that function. Recognizing these objections, the Administration has taken action to meet major criticisms of departmental and agency practices. The principal step toward clarification and simplification of Federal policies in the field was the issuance of Executive Order 10501, effective December 15, 1953. After studying this Executive order, the Commission on Government Security made detailed inquiries of 15 Federal departments and agencies concerned in varying degrees with problems of document classification and information control affecting the national security. All these departments and agencies cooperated in furnishing the information requested. The Commission also considered the hearings and other detailed data compiled by the Special Subcommittee on Government Information of the House Committee on Government Operations during the 84th Congress in the course of the subcommittee's study of document classification practices and policies in the executive branch. In addition, the Interdepartmental Committee on Internal Security furnished information of value to the Commission in studying departmental and agency practices and problems involved in the document classification program. The comments and criticisms of scientists, engineers, and representatives of industry in respect to the operation and effect of the program have likewise been taken into account. HISTORY Introduction The recognized right of the Federal Government to withhold certain types of information from unauthorized disclosure dates from the earliest days of the Republic. While the Founding Fathers would probably not have recognized their procedures as "document classification" the basic elements of their reasoning would have been the same as that prevailing today, namely the responsibility of Government to protect the interests of the people. In retrospect, the problem of document classification in the early days was simple in comparison with the immense complexity of the problem today. The most casual study of the background of this problem reveals, however, that the differences arise from the natural growth and expansion of our country from the small, isolated society of thirteen colonies to the first class world power which the United States is today. The complexities of instantaneous worldwide communications plus the ever-lessening time element in intercontinental travel places us in an entirely different position from that of our Founding Fathers. In the interest of national and international security it is self-evident that we must build up protective barriers around our national secrets. Early leaders and political philosophers were as keenly aware of the importance of an informed public as are the proponents of freedom of information today. For example, Thomas Jefferson wrote: "The basis of our Government being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter." While one might prefer a compromise to this unequivocal stand it illustrates the importance attached to information availability even in that day. It should be apparent that it is no less important today. Historical Background 1 From the beginning of our national existence a primary problem of document classification has been the difficulty of defining the areas of information which must necessarily be denied in the interests of national security and those areas of information which should be reasonably available to all. The trend in public and official viewpoints on these aspects is in itself an excellent index of the importance which we have historically placed upon document classification and information control. From the beginning there has been universal acceptance of the fact that vital military information must be protected from unauthorized disclosure. There has likewise been general acceptance that diplomatic negotiations and correspondence should be subject to restrictions on its availability. The third category, neither military nor diplomatic matter, but that which is currently described as "the public's business," is the area over which the 1 Thomas Jefferson, The Writings of Thomas Jefferson, Washington, D. C., 1905, vol. VI, pp. 55-57; cited in Availability of information from Federal departments and agencies, Twenty-fifth intermediate report, (House report), Committee on Government Operations, House of Representatives, 84th Cong., 2d sess., July 27, 1956, p. 100. |