"liberty" and "property" concepts of the Fifth Amendment, Dent v. West Virginia, 129 U. S. 114; Schware v. Board of Bar Examiners, 353 U. S. 232; Peters v. Hobby, 349 U. S. 331, 352 (concurring opinion); cf. Slochower v. Board of Education, 350 U. S. 551; Traux v. Raich, 239 U. S. 33, 41; Allgeyer v. Louisiana, 165 U. S. 578, 589590; Powell v. Pennsylvania, 127 U. S. 678, 684, respondents contend that the admitted interferences which have occurred are indirect by-products of necessary governmental action to protect the integrity of secret information and hence are not unreasonable and do not constitute deprivations within the meaning of the Amendment. Alternatively, respondents urge that even if petitioner has been restrained in the enjoyment of constitutionally protected rights, he was accorded due process of law in that he was permitted to utilize those procedural safeguards consonant with an effective clearance program, in the administration of which the identity of informants and their statements are kept secret to insure an unimpaired flow to the Government of information concerning subversive conduct. But in view of our conclusion that this case should be decided on the narrower ground of "authorization," we find that we need not determine the answers to these questions.22

The issue, as we see it, is whether the Department of Defense has been authorized to create an industrial security clearance program under which affected persons may

22 We note our agreement with respondents' concession that petitioner has standing to bring this suit and to assert whatever rights he may have. Respondents' actions, directed at petitioner as an individual, caused substantial injuries, Joint Anti-Fascist Committee v. McGrath, 341 U. S. 123, 152 (concurring opinion), and, were they the subject of a suit between private persons, they could be attacked as an invasion of a legally protected right to be free from arbitrary interference with private contractual relationships. Moreover, petitioner has the right to be free from unauthorized actions of government officials which substantially impair his property interests. Cf. Philadelphia Co. v. Stimson, 223 U. S. 605.

lose their jobs and may be restrained in following their chosen professions on the basis of fact determinations concerning their fitness for clearance made in proceedings in which they are denied the traditional procedural safeguards of confrontation and cross-examination.

Prior to World War II, only sporadic efforts were made to control the clearance of persons who worked in private establishments which manufactured materials for national defense. Report of the Commission on Government Security, 1957, S. Doc. No. 64, 85th Cong., 1st Sess. 236. During World War II the War Department instituted a formalized program to obtain the discharge from war plants of persons engaged in sabotage, espionage, and willful activity designed to disrupt the national defense program. Id., at 237. In 1946, the War Department began to require contractors, before being given access to classified information, to sign secrecy agreements which required consent before their employees were permitted access to Top Secret or Secret information. Id., at 238. At the outset, each armed service administered its own industrial clearance program. Id., at 239. Later, the PSB and IERB were established by the Department of Defense and the Secretaries of the armed services to administer a more centralized program. Ibid. Confusion existed concerning the criteria and procedures to be employed by these boards. Ibid. Eventually, generalized procedures were established with the approval of the Secretaries which provided in part that before the IERB "[t]he hearing will be conducted in such manner as to protect from disclosure information affecting the national security or tending to compromise investigative sources or methods. . . .” See "Procedures Governing Appeals to the Industrial Employment Review Board, dated 7 November 1949," note 4, supra, § 4 (c). After abolition of these boards in 1953, and the establishment of the IPSB, various new sets of procedures were promulgated which likewise provided for the non-disclosure of informa

tion "tending to compromise investigative sources or methods or the indentity of confidential informants." 23

All of these programs and procedures were established by directives issued by the Secretary of Defense or the Secretaries of the Army, Navy and Air Force. None was the creature of statute or of an Executive Order issued by the President.24

Respondents maintain that congressional authorization to the President to fashion a program which denies security clearance to persons on the basis of confidential information which the individuals have no opportunity to

23 The Industrial Personnel Security Review Regulation, 20 Fed. Reg. 1553, recommended by the Secretaries of the Army, Navy, and Air Force, and approved by the Secretary of Defense, provided:

"§ 67.1-4. Release of Information. All personnel in the Program will comply with applicable directives pertaining to the safeguarding of classified information and the handling of investigative reports. No classified information, nor any information which might compromise investigative sources or methods or the identity of confidential informants, will be disclosed to any contractor or contractor employee, or to his lawyer or representative, or to any other person not authorized to have access to such information. In addition, in a case involving a contractor employee the contractor concerned will be advised only of the final determination in the case to grant, deny, or revoke clearance, and of any decision to suspend a clearance granted previously pending final determination in the case. The contractor will not be given a copy of the Statement of Reasons issued to the contractor employee except at the written request of the contractor employee concerned."

24 See "Charter of the Industrial Employment Review Board, dated 7 November 1949," note 4, supra; "Charter of the Army-Navy-Air Force Personnel Security Board, dated 19 June 1950," note 3, supra; Memorandum issued by the Secretary of Defense to the Secretaries of the Army, Navy, and Air Force and to the Chairman of the Munitions Board, dated March 27, 1953, notes 6, 7, 8 and 9, supra; "The Industrial Personnel and Facility Security Clearance Program," effective May 4, 1953, note 13, supra; "The Industrial Personnel Security Review Regulation," 20 Fed. Reg. 1553, 32 CFR Part 67 (1958 Supp.); Industrial Security Manual for Safeguarding Classified Information, 20 Fed. Reg. 6213, 21 Fed. Reg. 2814.

confront and test is unnecessary because the President has inherent authority to maintain military secrets inviolate. And respondents argue that if a statutory grant of power is necessary, such a grant can readily be inferred "as a necessarily implicit authority from the generalized provisions" of legislation dealing with the armed services. But the question which must be decided in this case is not whether the President has inherent power to act or whether Congress has granted him such a power; rather, it is whether either the President or Congress exercised such a power and delegated to the Department of Defense the authority to fashion such a program.

Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots.25 They find expression in the Sixth

25 When Festus more than two thousand years ago reported to King Agrippa that Felix had given him a prisoner named Paul and that the priests and elders desired to have judgment against Paul, Festus is reported to have stated: "It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have license to answer for himself concerning the crime laid against him." Acts 25:16.

Professor Wigmore explains in some detail the emergence of the

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Amendment which provides that in all criminal cases the accused shall enjoy the right "to be confronted with the witnesses against him." This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, e. g., Mattox v. United States, 156 U. S. 237, 242-244; Kirby v. United States, 174 U. S. 47; Motes v. United States, 178 U. S. 458, 474; In re Oliver, 333 U. S. 257, 273, but also in all types of cases where administrative and regulatory action were under scrutiny. E. g., Southern R. Co. v. Virginia, 290 U. S. 190; Ohio Bell Telephone Co. v. Commission, 301 U. S. 292; Morgan v. United States, 304 U. S. 1, 19; Carter v. Kubler, 320 U. S. 243; Reilly v. Pinkus, 338 U. S. 269. Nor, as it has been pointed out, has Congress ignored these fundamental requirements in enacting regulatory legislation. Joint Anti-Fascist Committee v. McGrath, 341 U. S. 168-169 (concurring opinion).

Professor Wigmore, commenting on the importance of cross-examination, states in his treatise, 5 Wigmore on Evidence (3d ed. 1940) § 1367:

"For two centuries past, the policy of the AngloAmerican system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement (unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience."

principle in Anglo-American law that confrontation and crossexamination are basic ingredients in a fair trial. 5 Wigmore on Evidence (3d ed. 1940) § 1364. And see O'Brian, National Security and Individual Freedom, 62.