Mr. Justice CLARK, dissenting.
To me this case is both clear and simple. The respondents, all members of the President's Cabinet, have, after a series of hearings, refused to give Greene further access to certain government military information which has been classified 'secret.' The pertinent Executive Order defines 'secret' information as
'defense information or material the unauthorized disclosure of which could result in serious damage to the Nation, such as by jeopardizing the international relations of the United States, endangering the effectiveness of a program or policy of vital importance to the national defense, or compromising important military or defense plans, scientific or technological developments important to national defense, or information revealing important intelligence operations.' Exec. Order No. 10501, Nov. 5, 1953, 18 Fed.Reg. 7049, 3 CFR (1949-1953 Comp.), p. 979, § 1(b), 50 U.S.C.A. § 401 note.
Surely one does not have a constitutional right to have access to the Government's military secrets. But the Court says that because of the refusal to grant Greene further access, he has lost his position as vice president and general manager, a chief executive officer, of ERCO, whose business was devoted wholly to defense contracts with the United States, and that his training in aeronautical engineering, together with the facts that ERCO engages solely in government work and that the Government is the country's largest airplane customer, has in some unaccountable fashion parlayed his employment with ERCO into 'a constitutional right.' What for anyone else would be considered a privilege at best has for Greene been enshrouded in constitutional protection. This sleight of hand is too much for me.
But this is not all. After holding that Greene has constitutional protection for his private job, the Court has ordered the President's Cabnet members to revoke their refusal to give Greene access to military secrets. It strikes down the present regulations as being insufficiently authorized by either the President or the Congress because the procedures fail to provide for confrontation or cross-examination at Board hearings. Let us first consider that problem.
After full consideration the Court concludes 'that in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.' In so doing, as I shall point out, it holds for naught the Executive Orders of both President Roosevelt and President Truman and the directives pursuant thereto of every Cabinet officer connected with our defense since 1942 plus the explicit order of General Dwight D. Eisenhower as Chief of Staff in 1946. In addition, contrary to the Court's conclusion, the Congress was not only fully informed but had itself published the very procedures used in Greene's case.
I believe that the Court is in error in holding, as it must, in order to reach this 'authorization' issue, that Greene's 'right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference' is protected by the Fifth Amendment. It cites four cases in support of this proposition and says compare four others. As I read those cases not one is in point. In fact, I cannot find a single case in support of the Court's position. Even a suit for damages on the ground of interference with private contracts does not lie against the Government. The Congress specifically exempted such suits from the Tort Claims Act. 28 U.S.C. § 2680(h), 28 U.S.C.A. § 2680(h). But the action today may have the effect of by-passing that exemption since Greene will now claim, as has Vitarelli, see Vitarelli v. Seaton, 1959, 359 U.S. 535, 79 S.Ct. 968, reimbursement for his loss of wages. See Taylor v. McElroy, 360 U.S. 709, 79 S.Ct. 1428. This will date back to 1953. His salary at that time was $18,000 a year.
