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

DISSENTING OPINION OF HENRY DE WOLF SMYTH

I dissent from the action of the Atomic Energy Commission in the matter of Dr. J. Robert Oppenheimer. I agree with the "clear conclusion" of the Gray Board that he is completely loyal and I do not believe he is a security risk. It is my opinion that his clearance for access to restricted data should be restored.

In a case such as this, the Commission is required to look into the future. It must determine whether Dr. Oppenheimer's continued employment by the Government of the United States is in the interests of the people of the United States. This prediction must balance his potential contribution to the positive strength of the country against the possible danger that he may weaken the country by allowing important secrets to reach our enemies.

Since Dr. Oppenheimer is one of the most knowledgable (sic.) and lucid physicists we have, his services could be of great value to the country in the future. Therefore, the only question being determined by the Atomic Energy Commission is whether there is a possibility that Dr. Oppenheimer will intentionally or unintentionally reveal secret information to persons who should not have it. To me, this is what is meant within our security system by the term security risk. Character and associations are important only insofar as they bear on the possibility that secret information will be improperly revealed.

In my opinion the most important evidence in this regard is the fact that there is no indication in the entire record that Dr. Oppenheimer has ever divulged any secret information. The past 15 years of his life have been investigated and reinvestigated. For much of the last 11 years he has been under actual surveillance, his movements watched, his conversations noted, his mail and telephone calls checked. This professional review of his actions has been supplemented by enthusiastic amateur help from powerful personal enemies.

After reviewing the massive dossier and after hearing some forty witnesses, the Gray Board reported on May 27. 1954, that Dr. Oppenheimer "seems to have had a high degree of discretion reflecting an unusual ability to keep to himself vital secrets." My own careful reading of the complete dossier and of the testimony leads me to agree with the Gray Board on this point. I am confident that Dr. Oppenheimer will continue to keep to himself all the secrets with which he is entrusted.

The most important allegations of the General Manager's letter of December 23 related to Dr. Oppenheimer's conduct in the so-called H-bomb program. I am not surprised to find that the evidence does not support these allegations in any way. The history of Dr. Oppenheimer's contributions to the development of nuclear weapons stands untarnished.

It is clear that Dr. Oppenheimer's past associations and activities are not newly discovered in any substantial sense. They have been known for years to responsible authorities who have never been persuaded that they rendered Dr. Oppenheimer unfit for public service. Many of the country's outstanding men have expressed their faith in his integrity.

In spite of all this, the majority of the Commission now concludes that Dr. Oppenheimer is a security risk. I cannot accept this conclusion or the fear behind it. In my opinion the conclusion cannot be supported by a fair evaluation of the evidence.

Those who do not accept this view cull from the record of Dr. Oppenheimer's active life over the past 15 years incidents which they construe as "proof of fundamental defects in his character" and as alarming associations. I shall summarize the evidence on these incidents in order that their proper significance may be seen.

Chevalier incident.-The most disturbing incidents of his past are those connected with Haakon Chevalier. In late 1942 or early 1943, Chevalier was asked by George Eltenton to approach Dr. Oppenheimer to see whether he would be willing to make technical information available for the Soviet Union. When Chevalier spoke to Dr. Oppenheimer he was answered by a flat refusal. The incident came to light when Dr. Oppenheimer, of his own accord, reported it to Colonel Pash in August 1943. He did not at that time give Chevalier's name and said that there had been 3 approaches rather than 1. Shortly thereafter, in early September, Dr. Oppenheimer told General Groves that, if ordered, he would reveal the name. Not until December 1943, did General Groves direct him to give the name. It is his testimony that he then told General Groves that the earlier story concerning three approaches had been a "cock and bull story." Not until 1946 were Eltenton, Chevalier, and Dr. Oppenheimer himself interviewed by security officers in this matter. When interviewed by the FBI in 1946, Dr. Oppenheimer recounted the same story of the incident which he has consistently maintained ever since. He stated explicitly in 1946 that the story told to Colonel Pash in 1943 had been a fabrication. In the present hearings before the Gray Board he testified, before the recording of the Pash interview was produced, that the story told to Colonel Pash was a fabrication to protect his friend Chevalier. The letter which he wrote Chevalier in February 1950, concerning Chevalier's role in the 1943 incident, stated only what Dr. Oppenheimer has consistently maintained to the FBI and to the Gray board concerning Chevalier's lack of awareness of the significance of what he was doing.

The Chevalier incident involved temporary concealment of an espionage attempt and admitted lying, and is inexcusable. But that was 11 years ago; there is no subsequent act even faintly similar; Dr. Oppenheimer has repeatedly expressed his shame and regret and has stated flatly that he would never again so act. My conclusion is that of Mr. Hartley Rowe, who testified, "I think a man of Dr. Oppenheimer's character is not going to make the same mistake twice."

Dr. Oppenheimer states that he still considers Chevalier his friend, although be sees him rarely. In 1950 just before Chevalier left this country to take up residence in France, he visited Dr. Oppenheimer for 2 days in Princeton; in December 1953, Dr. Oppenheimer visited with the Chevaliers in Paris at their invitation. These isolated visits may have been unwise, but there is no evidence that they had any security significance. Chevalier was not sought out by Dr. Oppenheimer in Paris but, rather, the meeting was proposed by the Chevaliers in a letter to Mrs. Oppenheimer. The contact consisted of a dinner and, on the following day, driving with Chevalier to meet Andre Malraux, the famous French literary figure for whom Chevalier was a translator. Malraux in the later years of his political life has been an active anti-Communist adviser to General deGaulle. These short visits were followed 2 months later by Chevalier's use of Dr. Oppenheimer's name in connection with clearance for employment by UNESCO. Dr. Oppenheimer's action in this matter seems quite correct. When Chevalier mentioned the problem, Dr. Oppenheimer suggested that the proper place for advice was the American Embassy and that Dr. Geoffrey Wyman, the scientific attaché might be in a position to give the advice. Before seeing Chevalier, Dr. Oppenheimer had lunched at the Embassy with Dr. Wyman, a former classmate, but it is clear from Dr. Wyman's affidavit in the record that Dr. Oppenheimer did not at that time or later mention or endorse Chevalier.

Associations.-It is stated that a persistent and continuing association with Communists and follow travelers is part of a pattern in Dr. Oppenheimer's actions which indicates a disregard of the obligations of securtiy (sic.) . On examination, the record shows that, since the war, beyond the two visits with the Chevaliers, Dr. Oppenheimer's associations with such persons have been limited and infrequent. He sees his brother, Frank Oppenheimer (an admitted former Communist who left the party in 1941) not "much more than once a year" and then only for "an evening together," By chance, while returning from the barber, he ran into Lomanitz and Bohm on the streets of Princeton in May 1949. Dr. Peters called on him once to discuss testimony given by Dr. Oppenheimer before the House Committee on Un-American Activities. He has seen Bohm and 1 or 2 other former students at meetings of professional groups. I find nothing in the foregoing to substantiate the charge that Dr. Oppenheimer has had a "persistent and continuing" association with subversive individuals. These are nothing more than occasional incidents in a complex life, and they were not sought by Dr. Oppenheimer.

Significance has been read into these occasional encounters in the light of Dr. Oppenheimer's activities prior to 1943.

The Gray Board found that he was an active fellow traveler, but that there was no evidence that he was a member of the party in the strict sense of the word. Dr. Oppenheimer's consistent testimony, and the burden of the evidence, shows that his financial contributions in the 1930's and early 1940's were directed to specific causes such as the Spanish Loyalists, even though they may have gone through individual Communists.

The Communists with whom he was deeply involved were all related to him by personal ties: his brother and sister-in-law, his wife (who had left the party before their marriage), and his former fiance, Jean Tatlock. Finally, while there are self-serving claims by Communists on record as to Dr. Oppenheimer's adherence to the party, none of these is attributed to Communists who actually knew him, and Steve Nelson (who did know him) described him in a statement to another Communist as not a Marxist. The evidence supports Dr. Oppenheimer's consistent denial that he was ever a Communist.

Dr. Oppenheimer has been repeatedly interrogated from 1943 on concerning his associations and activities. Beyond the one admitted falsehood told in the Chevalier incident, the voluminous record shows a few contradictions between statements purportedly made in 1943 and subsequent recollections during interrogations in 1950 and 1954. The charges of falsehood concerning Weinberg and Lambert relate to such contradictions, and are dependent on a garbled transcript. In my opinion, these contradictions have been given undue significance.

Peter's letter.-I find it difficult to conclude that the letter written by Dr. Oppenheimer in 1949 following his testimony about Dr. Bernard Peters before a congressional committee is evidence of any fault in character. This carefully composed letter, a copy of which was sent to the congressional committee, was not an attempt to repudiate the testimony relating to Dr. Peters' background but, rather, was a manifestation of a belief that political views should not disqualify a scientist from a teaching job. He was led to this action by the protests of Dr. Bethe, Dr. Weisskopf, and Dr. Peters himself, and of Dr. Condon, and by the "overwhelming belief of the community in which I lived that a man like that ought not to be fired either for his past or for his views, unless the past is criminal or the views led him to wicked actions." One might disagree with this belief without taking it as evidence of untrustworthiness.

Lomanitz deferment.-It is clear that in cross-examination in 1954, Dr. Oppenheimer was led into contradictions concerning the induction into the Army of Rossi Lomanitz in 1943. These contradictions, understandable as errors of memory, are serious only if Dr. Oppenheimer's behavior at that time was improper. Actually, Dr. Oppenheimer's letter to Colonel Lansdale in 1943 says: "Since I am not in possession of the facts which led to Mr. Lomanitz's induction, I am, of course, not able to endorse this request in an absolute way. I can, however, say that Mr. Lomanitz's competence and his past experience on the work in Berkeley should make him a man of real value whose technical service we should make every effort to secure for the project." The letter was sent to Colonel Lansdale, the man to whom Dr. Oppenheimer had given information on Lomanitz' Communist affiliation and the man who had told Dr. Oppenheimer that Lomanitz had been indiscreet with information.

Obstruction of security officers.-The majority opinion cites the Chevalier incident as an instance of obstruction of security officers and states without specification that there are other instances. I have sought to identify these other instances. The only instance I have found is a refusal by Dr. Oppenheimer in 1950 to answer FBI questions about Dr. Thomas Addis and Dr. Jean Tatlock on the ground that they were dead and could not defend themselves. This reticence to discuss the activities of a friend and of a former fiance years after their deaths may have been an error. But in the circumstances, it seems understandable hesitation, and does not indicate a persistent "willful disregard" of security.

Seaborg letter.-Before the October 1949 meeting of the General Advisory Committee at which the H-bomb program was discussed, Dr. Seaborg, a member of the General Advisory Committee who was unable to be present, sent Dr. Oppenheimer a letter on the topics to be discussed. In Dr. Oppenheimer's letter to the Commission reporting the unanimous view of the eight members present at the General Advisory Committee meeting, there is no mention of Dr. Seaborg's views. It is hard to see how Dr. Oppenheimer could have forgotten the letter, but it is still harder to see what purpose he could have hoped to achieve by intentionally suppressing it-and then turning it over to the Commission in his files. At the next meeting of the General Advisory Committee in December 1949, the action of the October meeting was reviewed, and the minutes show that Dr. Seaborg raised no objection. It seems likely that Dr. Seaborg himself did not consider that he had expressed any formal conclusions. His letter of October 14, 1949. opens as follows:

"I will try to give you my thoughts for what they may be worth regarding the next GAC meeting, but I am afraid that there may be more questions than answers-it seems to me that conclusions will be reached, if at all, only after a large amount of give and take discussion at the GAC meeting" (Tr., p. 238).

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The instances that I have described constitute the whole of the evidence extracted from a lengthy record to support the severe conclusions of the majority that Dr. Oppenheimer has "given proof of fundamental defects in his character" and of "persistent continuing associations." Any implication that these are illustrations only and that further substantial evidence exists in the investigative files to support these charges is unfounded.

With the single exception of the Chevalier incident, the evidence relied upon is thin, whether individual instances are considered separately or in combination. All added together, with the Chevalier incident included, the evidence is singularly unimpressive when viewed in the perspective of the 15 years of active life from which it is drawn. Few men could survive such a period of investigation and interrogation without having many of their actions misinterpreted or misunderstood.

To be effective a security system must be realistic. In the words of the Atomic Energy Commission security criteria:

"The facts of each case must be carefully weighed and determination made in the light of all the information presented, whether favorable or unfavorable. The judgment of responsible persons as to the integrity of the individuals should be considered. The decision as to security clearance is an overall, commonsense judgment, made after consideration of all the relevant information as to whether or not there is risk that the granting of security clearance would endanger the common defense or security."

Application of this standard of overall commonsense judgment to the whole record destroys any pattern of suspicious conduct or catalog of falsehoods and evasions, and leaves a picture of Dr. Oppenheimer as an able, imaginative human being with normal human weaknesses and failings. In my opinion the conclusion drawn by the majority from the evidence is so extreme as to endanger the security system.

If one starts with the assumption that Dr. Oppenheimer is disloyal, the incidents which I have recounted may arouse suspicion. However, if the entire record is read objectively, Dr. Oppenheimer's loyalty and trustworthiness emerge clearly and the various disturbing incidents are shown in their proper light as understandable and unimportant.

The "Chevalier incident" remains reprehensile (sic.); but in fairness and on all of the evidence, this one admitted and regretted mistake made many years ago does not predominate in my overall judgment of Dr. Oppenheimer's character and reliability. Unless one confuses a manner of expression with candor, or errors in recollection with lack of veracity, Dr. Oppenheimer's testimony before the Gray Board has the ring of honesty. I urge thoughtful citizens to examine this testimony for themselves, and not be content with summaries or with extracts quoted out of context.

With respect to the alleged disregard of the security system, I would suggest that the system itself is nothing to worship. It is a necessary means to an end. Its sole purpose, apart from the prevention of sabotage, is to protect secrets. If a man protects the secrets he has in his hands and his head, he has shown essential regard for the security system.

In addition, cooperation with security officials in their legitimate activities is to be expected of private citizens and Government employees. The security system has, however, neither the responsibility nor the right to dictate every detail of a man's life. I frankly do not understand the charge made by the majority that Dr. Oppenheimer has shown a persistent and willful disregard for the obligations of security, and that therefore he should be declared a security risk. No gymnastics of rationalization allow me to accept this argument. If in any recent instances, Dr. Oppenheimer has misunderstood his obligation to security, the error is occasion for reproof but not for a finding that he should be debarred from serving his country. Such a finding extends the concept of "security risk" beyond its legitimate justification and constitutes a dangerous precedent.

In these times, failure to employ a man of great talents may impair the strength and power of this country. Yet I would accept this loss if I doubted the loyalty of Dr. Oppenheimer or his ability to hold his tongue. I have no such doubts.

I conclude that Dr. Oppenheimer's employment "will not endanger the common defense and security" and will be "clearly consistent with the interests of the national security." I prefer the positive statement that Dr. Oppenheimer's further employment will continue to strengthen the United States.

I therefore have voted to reinstate Dr. Oppenheimer's clearance.

HENRY D. SMYTH, Commissioner.
JUNE 29, 1954.