Decision and Opinions of the United States Atomic Energy Commission in the Matter of Dr. J. Robert Oppenheimer

CONCURRING OPINION OF COMMISSIONER CAMPBELL

On November 7, 1953, Mr. William L. Borden, legislative secretary to the late Senator Brien McMahon in 1948 and later executive director of the Joint Committee on Atomic Energy from 1949 to June 1953, addressed a letter to the Director of the Federal Bureau of Investigation relative to Dr. J. Robert Oppenheimer.

In this letter Mr. Borden, who had previously had access to the Atomic Energy Commission files and FBI reports concerning Dr. Oppenheimer, made very grave accusations, allegations, and charges pertaining to the character, loyalty, and associations of Dr. Oppenheimer. Upon receipt of this letter, the FBI prepared a summary report on Dr. Oppenheimer and November 30, 1953, distributed that report and the Borden letter to interested agencies of the Government, including the Office of the President.

On December 10, 1953, the Commission unanimously voted to institute the regular procedures of the Commission to determine the veracity or falsity of the charges. At the direction of, and with the unanimous approval of the Commission, the General Manager on December 23, 1953, informed Dr. Oppenheimer of the substance of the information which raised the question concerning his eligibility for employment on Atomic Energy Commission work and notified him of the steps which he could take to assist in the resolution of the question.

At the request of counsel for Dr. Oppenheimer, an extension of time was granted Dr. Oppenheimer for the preparation of his case. Other extensions were subsequently granted. On March 15, 1954, Dr. Oppenheimer was notified that Mr. Thomas A. Morgan, Mr. Gordon Gray, and Dr. Ward V. Evans had been selected for the Personnel Security Board. On March 17, 1954, Dr. Oppenheimer, by letter, advised the Commission that he had received the notification of the membership of the Board and that he knew of no reason why he should challenge any member of that Board, as it was his right to do under the Personnel Security Procedures of the Atomic Energy Commission.

As early as January 18, 1954, Dr. Oppenheimer's counsel discussed the possibility of securing Q clearance with the Chairman and the General Manager of the Commission, and he was notified that clearance would be expedited as rapidly as possible if be would submit the required papers. These papers were not submitted until March 26, 1954-over 60 days later.

During the week of April 5 through 9, the Personnel Security Board met and familiarized themselves with the pertinent files relative to Dr. Oppenheimer. On April 12 the hearings began and were continued until May 6. After a 10-day recess the Board convened again on May 17.

On May 17, 1954, counsel for Dr. Oppenheimer submitted a brief to the Personnel Security Board which was included in the record.

On May 18, 1954, the Commission moved that at each step the case of Dr. Oppenheimer be brought to the Commission for a vote. This motion was carried 3 to 2. I voted against this motion since I felt that this was a very definite change in the official procedures. In my opinion, it was not desirable to change the rules in the midst of the proceedings. At this same Commission meeting on May 18, I moved that the procedures, as published in the Federal Register, be revised to indicate that, after determination had been made by the General Manager, the Commission would make the final determination in this matter. This motion did not carry by a vote of 3 to 2.

A recommendation was submitted by the Personnel Security Board to the General Manager on May 27, 1954. In essence the recommendation of the Personnel Security Board, by a 2 to 1 majority, was that: "We have, however, been unable to arrive at the conclusion that it would be clearly consistent with the security interests of the United States to reinstate Dr. Oppenheimer's clearance and, therefore, do not so recommend."

Upon receipt of the recommendation of the Board, the General Manager notified counsel for Dr. Oppenheimer on May 28 of the majority and minority recommendations of the Board and furnished a copy of the Personnel Security Board report. At the same time notification was given that Dr. Oppenheimer was entitled to make an appeal to the Personnel Security Review Board. The General Manager further stated that following such an appeal he would make a recommendation and the Commission would then make a final determination in the case.

By letter of June 1, counsel for Dr. Oppenheimer responded that they would waive the right of appeal to the Personnel Security Review Board and instead wished to present oral arguments and a written brief directly to the Commission for a final determination.

On June 3, 1954, the Commission denied the counsel for Dr. Oppenheimer the privilege of oral argument before the Commission but granted permission to file a written brief with the provision that the brief be presented on or before June 7. It was my personal opinion that this permission constituted another departure from the procedures, but my view was not sustained by my colleagues.

Counsel for Dr. Oppenheimer filed a brief with the Commission on June 7, 1954.

On June 12, the General Manager submitted his findings to the Commission in which he reaffirmed the recommendation of the Gray Board. The General Manager's letter stated:

"I have reviewed the entire record of the case, including the files, the transcript of the hearing, the findings and recommendation of the Personnel Security Board and the briefs filed by Dr. Oppenheimer's attorneys on May 17, 1954, and June 7, 1954, and have reached the conclusion that to reinstate the security clearance of Dr. Oppenheimer would not be clearly consistent with the interests of national security and would endanger the common defense and security."

In addition, Mr. Nichols stated:

"In regard to Dr. Oppenheimer's net worth to atomic energy projects, I believe, first, that through World War II he was of tremendous value and absolutely essential. Secondly, I believe that since World War II his value to the Atomic Energy Commission as a scientist or as a consultant has declined because of the rise in competence and skill of other scientists and because of his loss of scientific objectivity probably resulting from the diversion of his efforts to political fields and matters not purely scientific in nature. Further, it should be pointed out that in the past 2 years since he has ceased to be a member of the General Advisory Committee, his services have been utilized by the Atomic Energy Commission on the following occasions only:

"October 16 and 17, 1952.
"September I and 2, 1953.
"September 21 and 22, 1953.

"I doubt that the Atomic Energy Commission, even if the question of his security clearance had not arisen, would have utilized his services to a markedly greater extent during the next few years. * * * Dr. Oppenheimer * * * is far from being indispensable. * * * Dr. Oppenheimer's clearance should not be reinstated."

On June 28, 1954, the question of the clearance of Dr. Oppenheimer was presented to the Commission and by a vote of 4 to 1 it was decided that clearance should be denied him.

My vote was to sustain the recommendations of the Gray Board and the General Manager for the following reasons:

1. I have had no personal association with Dr. Oppenheimer and no personal knowledge as to his contributions to the atomic energy program. Neither do I have any personal knowledge as to his character, loyalty, and associations.

The responsibility of a Commissioner of the Atomic Energy Commission in a proceeding of this type is, in my view, an appellate responsibility.

2. Having examined the transcript of the hearings, it is established that Dr. Oppenheimer had an opportunity prior to the hearings to challenge the members of the Board and did not choose to do so. At all times, Dr. Oppenheimer was represented by four attorneys. At no time during the course of the hearings has the integrity, honesty, and impartiality of any of the Board members been subject to challenge by any parties to the proceedings. Dr. Oppenheimer, through his counsel, has had the opportunity to produce any witnesses he desired to call on his behalf. Through his counsel he had opportunity to cross-examine any persons who testified on items which he might have considered to be of a derogatory nature. Ample opportunity was given to Dr. Oppenheimer's counsel to present their case. In fact, extensions and delays were granted, which by some might be considered unreasonable, so that there can be no possibility that there was any pressure of time in the presentation of the information which Dr. Oppenheimer desired to place before the Board.

3. From an examination of the transcript and from the report, both majority and minority of the Board, it is evident that the members of the Board were fully aware of the criteria which had been established by the Atomic Energy Commission and by the various executive orders and public laws relative to the clearance of individuals for classified work. At no time was any question raised by any party to the proceedings as to the competence of the Board insofar as its knowledge of the criteria and procedures under which the hearing was being conducted.

4. I have carefully studied the recommendations of the General Manager and have concluded that from the presentation of the testimony before the Personnel Security Board and the information made available to the parties in the proceedings from the investigative files, the General Manager has arrived at the only possible conclusion available to a reasonable and prudent man.

The finding, by the General Manager, that the services of Dr. Oppenheimer are not indispensable to the atomic energy program, is compelling.

5. I have read the brief submitted by counsel for Dr. Oppenheimer to the Atomic Energy Commission and though this brief is argumentative and perhaps persuasive to some, it contains no new evidence and it does not directly or indirectly charge that Dr. Oppenheimer has been unfairly treated or deprived of a full and complete opportunity to make the best possible presentation available in his defense.

(I neither concur nor dissent from the findings of the Personnel Security Board and the General Manager relating to the allegation that Dr. Oppenheimer initially opposed and later declined to cooperate in the program for the development of thermonuclear weapons. It is my view that the opinions and judgments of Dr. Oppenheimer on this subject were not relevant to the inquiry. I, therefore, have made my determination as to Dr. Oppenheimer's illness for continued employment upon other evidence and testimony presented which bears on his loyalty, character, and associations.)

CONCLUSION

I conclude, therefore, that serious charges were brought against Dr. Oppenheimer; that he was afforded every opportunity to refute them; that a board was appointed, composed of men of the highest honor and integrity, and that in their majority opinion Dr. Oppenheimer did not refute the serious charges which faced him; that the record was reviewed by the General Manager, keenly aware of his serious responsibility in this matter, and that he concurred, and even strengthened the findings of the Personnel Security Board.

If the security system of the United States Government is to be successfully operated, the recommendations of personnel security boards must be honored in the absence of compelling circumstances. If the General Manager of the Atomic Energy Commission is to function properly, his decisions must be upheld unless there can be shown new evidence, violations of procedures, or other substantial reasons why they should be reversed.

Therefore, I voted to reaffirm the majority recommendation of the Personnel Security Board and to uphold the decision of the General Manager. Clearance should be denied to Dr. Oppenheimer.