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

CONCURRING OPINION OF COMMISSIONER THOMAS E. MURRAY

I concur in the conclusion of the majority of the Commission that Dr. J. Robert Oppenheimer's access to restricted data should be denied. However, I have reached this conclusion by my own reasoning which does not coincide with the majority of the Commission. Therefore, I submit my separate opinion.

In my opinion the Personnel Security Board report and the recommendations of the General Manager as well as the majority opinion do not correctly interpret the evidence in the case. They do not make sharply enough certain necessary distinctions. They do not do justice to certain important principles. What is more important they do not meet squarely the primary issue which the case raises.

The primary issue is the meaning of loyalty. I shall define this concept concretely within the conditions created by the present crisis of national and international security. When loyalty is thus concretely defined and when all the evidence is carefully considered in the light of this definition, it will be evident that Dr. Oppenheimer was disloyal.

There is a preliminary question. It concerns Dr. Oppenheimer's opposition to the hydrogen bomb program and his influence on the development of the program. On this count I do not find evidence that would warrant the denial to Dr. Oppenheimer of a security clearance.

I find that the record clearly proves that Dr. Oppenheimer's judgment was in error in several respects. It may well be that the security interests of the United States were adversely affected in consequence of his judgment. But it would be unwise, unjust, and dangerous to admit, as a principle, that errors of judgment, especially in complicated situations, can furnish valid grounds for later indictments of a man's loyalty, character, or status as a security risk. It has happened before in the long history of the United States that the national interests were damaged by errors of judgment committed by Americans in positions of responsibility. But these men did not for this reason cease to merit the trust of their country.

Dr. Oppenheimer advanced technical and political reasons for his attitude to the hydrogen-bomb program. In both respects he has been proved wrong; nothing further need be said.

He also advanced moral reasons. Here two comments are necessary. First, in deciding matters of national policy, it is imperative that the views of experts should always be carefully weighed and never barred from discussion or treated lightly. However, Dr. Oppenheimer's opinions in the field of morality possess no special authority. Second, even though Dr. Oppenheimer is not an expert in morality, he was quite right in advancing moral reasons for his attitude to the hydrogen bomb program. The scientist is a man before he is a technician. Like every man, he ought to be alert to the moral issues that arise in the course of his work. This alertness is part of his general human and civic responsibilities, which go beyond his responsibilities as a scientist. When he has moral doubts, he has a right to voice them. Furthermore, it must be firmly maintained, as a principle both of justice and of religious freedom, that opposition to governmental policies, based on sincerely held moral opinions, need not make a man a security risk.

The issue of Dr. Oppenheimer's lack of enthusiasm for the hydrogen bomb program has been raised; so, too, has the issue of his failure to communicate to other scientists his abandonment of his earlier opposition to the program. Here an important distinction is in order. Government may command a citizen's service in the national interest. But Government cannot command a citizen's enthusiasm for any particular program or policy projected in the national interests. The citizen remains free to be enthusiastic or not at the impulse of his own inner convictions. These convictions remain always immune from governmental judgment or control. Lack of enthusiasm is not a justiciable matter.

The point that I shall later make in another connection is pertinent here. The crisis in which we live, and the security regulations which it has rendered necessary in the interests of the common good, have made it difficult to insure that justice is done to the individual. In this situation it is more than ever necessary to protect at every point the distinction between the external forum of action and omission, and the internal forum of thought and belief. A man's service to his country may come under judgment; it lies in the external forum. A man's enthusiasm for service, or his lack of it, do not come under judgment; they are related to the internal forum of belief, and are therefore remote from all the agencies of law.

The citizen's duty remains always that of reasonable service, just as the citizen's right remains always that of free opinion. There is no requirement, inherent in the idea of civic duty, that would oblige a man to show enthusiasm for particular governmental policies, or to use his influence in their favor, against his own convictions; just as there is no permission, inherent in the idea of intellectual freedom, that would allow a man to block established governmental policies, against the considered judgment of their responsible authors.

The conclusion is that the evidence with regard to Dr. Oppenheimer's attitude toward the hydrogen bomb program, when it is rightly interpreted in the light of sound democratic principles, does not warrant the denial to Dr. Oppenheimer of a security clearance.

The primary question concerns Dr. Oppenheimer's loyalty. This idea must be carefully defined, first, in general, and second, in concrete and contemporary terms.

The idea of loyalty has emotional connotations; it is related to the idea of love, a man's love of his country. However, the substance of loyalty does not reside solely in feeling or sentiment. It cannot be defined solely in terms of love.

The English word "loyal" comes to us from the Latin adjective "legalis," which means "according to the law." In its substance the idea of loyalty is related to the idea of law. To be loyal, in Webster's definition, is to be "faithful to the lawful government or to the sovereign to whom one is subject." This faithfulness is a matter of obligation; it is a duty owed. The root of the obligation and duty is the lawfulness of the government, rationally recognized and freely accepted by the citizens.

The American citizen recognizes that his Government, for all its imperfections, is a government under law, of law, by law; therefore he is loyal to it. Furthermore, he recognizes that his Government, because it is lawful, has the right and the responsibility to protect itself against the action of those who would subvert it. The cooperative effort of the citizen with the rightful action of American Government in its discharge of this primary responsibility also belongs to the very substance of American loyalty. This is the crucial principle in the present case.

This general definition of loyalty assumes a sharper meaning within the special conditions of the present crisis. The premise of the concrete, contemporary definition of loyalty is the fact of the Communist conspiracy. Revolutionary communism has emerged as a world power seeking domination of all mankind. It attacks the whole idea of a social order based upon freedom and justice in the sense in which the liberal tradition of the West has understood these ideas. Moreover, it operates with a new technique of aggression; it has elaborated a new formula for power. It uses all the methods proper to conspiracy, the methods of infiltration and intrigue, of deceit and duplicity, of falsehood and connivance. These are the chosen methods whereby it steadily seeks to undermine, from within, the lawful governments and communities of the free world.

The fact of the Communist conspiracy has put to American Government and to the American people a special problem. It is the problem of protecting the national security, internal and external, against the insidious attack of its Communist enemy. On the domestic front this problem bas been met by the erection of a system of laws and Executive orders designed to protect the lawful Government of the United States against the hidden machinery of subversion.

The American citizen in private life, the man who is not engaged in governmental service, is not bound by the requirements of the security system. However, those American citizens who have the privilege of participating in the operations of Government, especially in sensitive agencies, are necessarily subject to this special system of law. Consequently, their faithfulness to the lawful Government of the United States, that is to say their loyalty, must be judged by the standard of their obedience to security regulations. Dr. Oppenheimer was subject to the security system which applies to those engaged in the atomic energy program. The measure of his obedience to the requirements of this system is the decisive measure of his loyalty to his lawful Government. No lesser test will settle the question of his loyalty.

In order to clarify this issue of the meaning of loyalty, the following considerations are necessary. First, the atomic energy program is absolutely vital to the survival of the Nation. Therefore the security regulations which surround it are intentionally severe. No violations can be countenanced. Moreover, the necessity for exact fidelity to these regulations increases as an individual operoperates (sic.) in more and more sensitive and secret areas of the program. Where responsibility is highest, fidelity should be most perfect.

Second, this security system is not perfect in its structure or in its mode of operation. Perfection would be impossible. We are still relatively unskilled in the methods whereby we may effectively block the conspiratorial efforts of the Communist enemy without damage to our own principles. Moreover, the operation of the system is in the hands of fallible men. It is therefore right and necessary that the system should be under constant scrutiny. Those who are affected by the system have a particular right to criticize it. But they have no right to defy or disregard it.

Third, the premise of the security system is not a dogma but a fact, the fact of the Communist conspiracy.The system itself is only a structure of law, not a set of truths. Therefore this system of law is not, and must not be allowed to become, a form of thought control. It restricts the freedom of association of the governmental employee who is subject to it. It restricts his movements and activities. It restricts his freedom of utterance in matters of security import, not in other matters. It restricts his freedom of personal and family life. It makes special demands on his character, moral virtue, and spirit of sacrifice. But no part of the security system imposes any restrictions on his mind. No law or Executive order inhibits the freedom of the mind to search for the truth in all the great issues that today confront the political and moral intelligence of America. In particular, no security regulations set any limits to the free-ranging scientific intelligence in its search for the truths of nature and for the techniques of power over nature. If they were to do so, the result would be disastrous; for the freedom of science is more than ever essential to the freedom of the American people.

Fourth, the preservation of the ordered freedom of American life requires the cooperation of all American citizens with their Government. The indispensable condition of this cooperation is a spirit of mutual trust and confidence. This trust and confidence must in a special sense obtain between governmental officials and scientists, for their partnership in the atomic-energy program and in other programs is absolutely essential to the security interests of the United States. It would be lamentable if conscientious enforcement of security regulations were to become a danger to the atmosphere of trust and confidence which alone can sustain this partnership. In order to avert this danger, there must be on the part of Government a constant concern for justice to the individual, together with a concern for the high interests of the national community. On the part of scientists there should be a generous disposition to endure with patient understanding the distasteful restrictions which the security system imposes on them.

Finally, it is essential that In the operation of the security system every effort should be made to safeguard the principle that no American citizen is to be penalized for anything except action or omission contrary to the well-defined interests of the United States. However stringent the need for a security system, the system cannot be allowed to introduce into American Jurisprudence that hateful concept, the "crime of opinion." The very security of America importantly lies in the steady guaranty, even in a time of crisis, of the citizen's right to freedom of opinion and of honest and responsible utterance. The present time of crisis intensifies the civic duty of obedience to the lawful government in the crucial area of security regulations. But it does not justify abridgment of the civic right of dissent. Government may penalize disobedience in action or omission. It may not penalize dissent in thought and utterance.

When all these distinctions and qualifications have been made, the fact remains that the existence of the Security regulations which surround the atomic-energy program puts to those who participate in the program a stern test of loyalty.

Dr. Oppenheimer failed the test. The record of his actions reveals a frequent and deliberate disregard of those security regulations which restrict a man's associations. He was engaged in a highly delicate area of security; within this area he occupied a most sensitive position. The requirement that a man in this position should relinquish the right to the complete freedom of association that would be his in other circumstances is altogether a reasonable and necessary requirement. The exact observance of this requirement is in all cases essential to the integrity of the security system. It was particularly essential in the case of Dr. Oppenheimer.

It will not do to plead that Dr. Oppenheimer revealed no secrets to the Communists and fellow travelers with whom he chose to associate. What is incompatible with obedience to the laws of security is the associations themselves, however innocent in fact. Dr. Oppenheimer was not faithful to the restrictions on the associations of those who come under the security regulations.

There is a further consideration, not unrelated to the foregoing. Those who stand within the security system are not free to refuse their cooperation with the workings of the system, much less to confuse or obstruct them, especially by falsifications and fabrications. It is their duty, at times an unpleasant duty, to cooperate with the governmental officials who are charged with the enforcement of security regulations. This cooperation should be active and honest. If this manner of cooperation is not forthcoming, the security system itself, and therefore the interests of the United States which it protects, inevitably suffer. The record proves Dr. Oppenheimer to have been seriously deficient in his cooperation with the workings of the security system. This defect too is a defect of loyalty to the lawful government in its reasonable efforts to preserve itself in its constitutional existence. No matter how high a man stands in the service of his country he still stands under the law. To permit a man in a position of the highest trust to set himself above any of the laws of Security would be to invite the destruction of the whole security system.

In conclusion, the principle that has already been stated must be recalled for the sake of emphasis. In proportion as a man is charged with more and more critical responsibilities, the more urgent becomes the need for that full and exact fidelity to the special demands of security laws which in this overshadowed day goes by the name of loyalty. So too does the need for cooperation with responsible security officers.

Dr. Oppenheimer occupied a position of paramount importance; his relation to the security interests of the United States was the most intimate possible one. It was reasonable to expect that be would manifest the measure of cooperation appropriate to his responsibilities. He did not do so. It was reasonable to expect that he would be particularly scrupulous in his fidelity to security regulations. These regulations are the special test of the loyalty of the American citizen who serves his Government in the sensitive area of the Atomic Energy program. Dr. Oppenheimer did not meet this decisive test. He was disloyal.

I conclude that Dr. Oppenheimer's access to restricted data should be denied.