LEGAL BASIS

The Atomic Energy Commission, like the Department of Defense, has major security responsibilities not only with respect to its own civilian personnel but also for employees of contractors having classified contracts with the Commission. Unlike the Department of Defense, however, the Atomic Energy Commission operates just one security program for both types of employees. For that reason, we here cover the legal basis of the Atomic Energy Commission's security program as it affects both its own personnel and those of its defense contractors.

Civilian Employees of the Commission

1. The security program of the Commission as it applies to its own personnel is based upon the provisions of the Atomic Energy Act of 1954 (42 U.S. C. 2011 et seq.). (a) Section 2165 thereof provides:

(b) Except as authorized by the Commission or the General Manager upon a determination by the Commission or General Manager that such action is clearly consistent with the national interest, no individual shall be employed by the Commission nor shall the Commission permit any individual to have access to restricted data until the Civil Service Commission shall have made an investigation and report to the Commission on the character, associations, and loyalty of such individual, and the Commission shall have determined that permitting such person to have access to restricted data will not endanger the common defense and security.

(b) Section 2190 thereof provides:

In the performance of its functions the Commission is authorized to

(d) ... The Commission shall make adequate provision for administrative review of any determination to dismiss any employee;

2. While these sections of the statute constitute an express statutory authorization to the Commission to establish a personnel security program for its own employees, reference should be made to the chapter on the federal civilian loyalty-security program for a discussion of the fact that the head of any department or agency has plenary control over the appointment and removal of his own employees, subject to statutory restrictions. Section 2165 (b) and section 2190 (d) of the Atomic Energy Act of 1954 constitute such a statutory restriction or limitation upon the Atomic Energy Commission, as well as an authorization to it.

3. Consideration must also be given to the relationship between the Atomic Energy Commission's personnel security program based upon section 2165 (b) and section 2190 (d), and the program authorized and provided for by Public Law 733 and Executive Order 10450, which apply to all Government agencies. In view of the fact that the Commission had been authorized by the Atomic Energy Act of 1946 to establish a personnel security program for

its own personnel, Public Law 733 of 1950 provided in section 2 thereof that

Nothing herein contained shall impair the powers vested in the Atomic Energy Commission by the Atomic Energy Act of 1946 or the requirements of section 12 of that act that adequate provision be made for administrative review of any determination to dismiss any employee of said Commission.

Executive Order 10450 also recognized the existence of personnel security programs based upon statutory authorization other than Public Law 733, for section 10 of the Executive order provided that—

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.

Shortly after the issuance of the Executive order, therefore, the Commission and the Department of Justice agreed that no change in the Commission's personnel security program would be required, particularly as the Commission was meeting at least the minimum standards specified by the President and the Department of Justice in the sample regulations of the Department of Justice.52

4. For the reasons set forth in the chapter on the Federal civilian loyalty. security program, there is no doubt but that section 2011 (b) and section 2190 (d) of the Atomic Energy Act of 1954 is a proper exercise of Congress' constitutional powers in this field.

Contractor Employees

1. The industrial security program of the Atomic Energy Commission is based upon the provisions of the Atomic Energy Act of 1954 (42 U. S. C. 2011 et seq.). Section 2165 thereof provides:

(a) No arrangement shall be made under section 2051 of this title, no contract shall be made or continued in effect under section 2061 of this title, and no license shall be issued under sections 2133 or 2134 of this title, unless the person with whom such arrangement is made, the contractor or prospective contractor, or the prospective licensee agrees in writing not to permit any individual to have access to restricted data until the Civil Service Commission shall have made an investigation and report to the Commission on the character, associations, and loyalty of such individual, and the Commission shall have determined that permitting such person to have access to restricted data will not endanger the common defense and security.

2. This section of the statute constitutes an express authorization to the Atomic Energy Commission for the establishment of an industrial security program.

3. There is, therefore, no question but that there is adequate statutory authority for the industrial security program of the Atomic Energy Commission.

62 Atomic Energy Commission's answer to Commission on Government Security dated Aug. 9, 1956.

4. As is set forth in some detail in the discussion of the legal basis of the industrial security program of the Department of Defense, appearing below, Congress has the constitutional authority to enact legislation expressly providing for the exclusion or removal of private employees of Government contractors from jobs in which they have access to classified information or material, if the Government determines that such exclusion or removal is necessary in the national interest. It is clear that section 2165 (a) of the Atomic Energy Act of 1954 is a valid exercise by Congress of its constitutional authority to authorize an industrial security program.

PRESENT PROGRAM

The Atomic Energy Commission (AEC) was established by the Atomic Energy Act of 1946, which act was amended in 1952. The present atomic energy security program is governed by the Atomic Energy Act of 1954, which supersedes the act of 1946 as amended, and which provides that the commissioners may issue such rules and regulations as may be necessary to implement the Act.

Personnel Security

The procedures hereinafter outlined apply to employees (including consultants) of, and applicants for employment with, AEC, and its contractors, agents, access permittees and licensees and other persons designated by the General Manager of AEC.

A security clearance is based upon an investigation by the Civil Service Commission or the FBI, the extent of which is governed by the importance of the restricted data involved. The FBI handles all highly sensitive cases, and takes over all investigations in which derogatory information is uncovered by CSC or obtained by AEC. When clearance is granted access is permitted to that restricted data, materials, or areas which may be reasonably anticipated as being necessary in the performance of duties involved in the employment specified in the request for clearance.

Clearances are of two varieties: "L" clearance for confidential access, and for workmen who are employed in sight of secret structures and equipment; and "Q" clearance for secret and top secret access. "Q" clearance is required for all AEC employees and consultants, for employees of contractors and licensees in need of secret or top secret access, and for others in sensitive positions such as various hearing examiners, counsel, union representatives, and congressional investigators.

The decision as to security clearance is a comprehensive, commonsense judgment, made after consideration of all the relevant information, favorable or unfavorable, as to whether or not the granting of security clearance would endanger the common defense and security. Taken into account is the value of the individual's services and the operational consequences of denial of clearance. If it is determined that the common defense or security will not be endangered, security clearance will be granted; otherwise, security clearance will be denied.

Clearances for employees of a contractor are initiated by the submission of personnel security questionnaires and fingerprint cards by the contractor to the AEC Manager of Operations assigned responsibility for the administration of the contract. The AEC Operations Office determines whether an "L" or "Q" clearance is necessary, then, after screening for completeness, they are forwarded to the Civil Service Commission or the FBI for investigation. Upon receipt of completed investigations, the Operations Office screens the reports and, if no derogatory information has been developed, clearance is authorized. If derogatory information of a nonsubstantive nature (not falling within AEC's criteria for determining clearance eligibility) has been uncovered, the case moves to an analyst who reviews the file and recommends clearance on the record, or that the individual be informally interviewed. In either case, a second analyst or the chief of the local security division reviews the file and authorizes the clearance or the interview, and clearance after the interview.

The procedure in the case of AEC employees is similar, except that a contractor is not involved and a "Q" clearance in all cases is required.

Derogatory information of a substantive nature is divided into category A, for the more serious, and category B for the less serious information involving the individual or his spouse. Category A includes seditious acts, sabotage, espionage, association with objectionable foreign agents, membership in subversive organizations, significant falsification of personal history, willful security violations, mental illness, criminal tendencies, and drug addiction. Unless an individual can successfully rebut category A information, denial of clearance will follow.

Category B information is evaluated in light of time of occurrence, extent of activity, and present attitude of the individual. B items include advocating subversive political ideologies, associating with persons so advocating, affiliation with objectionable organizations or association with members of such organizations, presence of close relatives in Iron Curtain countries, rejection for military service, carelessness with classified information, immoral or disgraceful conduct, perversion, alcoholism, or refusing to testify regarding loyalty or misconduct.

These criteria are not exhaustive and AEC is not limited thereto. The criteria are subject to review and revision by AEC.

Upon receipt of a "hold" case, indicating adverse information, the AEC Division of Security may request additional investigation, may authorize the Manager of Operations 53 to grant clearance on the record, may recommend that the Manager of Operations conduct an informal interview in an effort to obtain satisfactory explanations of the adverse information, or may authorize an administrative review of the evidence.

Hearings

At present, anyone who is denied clearance because of adverse information may request a hearing. This privilege formerly was limited to current employees only and not to applicants. The individual is notified as to the substance of the derogatory information, together with his clearance status pending final determination, and if he does not respond within 20 days and request a hearing, his case will be decided upon the basis of the existing record.

If a hearing is requested, the Manager of Operations appoints a local hearing board and the individual is advised as to his right to challenge for cause, to be represented by counsel and to present witnesses. The board consists of 3 members and, if practical, 1 is an attorney and 1 is familiar with the individual's general field of work. The board members may include employees of AEC or the contractor, but an employee of the contractor may not hear a case involving another employee of the same contractor. As a matter of practice, the contractors do not furnish hearing board members. They feel that clearance is a matter between the Government and the individual, and that the contractor should not take part. The members are usually outstanding citizens of the community, and they must have "Q" clearances.

The Manager also appoints an attorney to serve as counsel to the board. He must have a "Q" clearance and may be an AEC employee or be specifically retained. It is his duty to advise the board concerning procedures and to advise the individual of his rights, but he may not participate in deliberations of the board or express opinions concerning the merits of the case. He must not assume the role of a prosecutor.

Legal procedure at the hearing does not follow trial court practices, and the utmost latitude is permitted with respect to relevancy, materiality, and competency. However, every effort is made to obtain the best evidence available. Hearsay evidence is accorded such weight as the circumstances warrant. The proceedings are not open to the public, and it is the duty of the chairman to guard against disclosure of restricted data to unauthorized persons.

53 The country is divided into 10 districts, each headed by a Manager or Manager of Operations. The entire program is headed by the General Manager under the supervision of the Atomic Energy Commission.