United States Code

Board or its hearing examiner, there to produce evidence if so ordered, or there to give testimony touching the matter under review; and any failure to obey such order of the court may be punished by said court as a contempt thereof.

(e) Service of papers; fees and mileage; information from other Government agencies.

(1) Notices, orders, and other process and papers of the Board, or any hearing examiner thereof, shall be served upon the detainee personally and upon his attorney or designated representative. Such process and papers may be served upon the Attorney General or such other officers as may be designated by him for such purpose, and upon any other interested persons either personally or by registered mail or by telegraph or by leaving a copy thereof at the principal office or place of business of the person required to be served. The verified return by the individual so serving the same setting forth the manner of such service shall be proof of the same, and the return post-office receipt or telegraph receipt therefor when registered and mailed or telegraphed as aforesaid shall be proof of service of the same. Witnesses summoned before the Board, or any hearing examiner thereof, shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the United States.

(2) All process of any court to which application may be made under this subchapter may be served in the judicial district wherein the person required to be served resides or may be found.

(3) The several departments and agencies of the Government, when directed by the President, shall furnish the Board, upon its request, all records, papers, and information in their possession relating to any matter before the Board.

(f) Rights of detainee at hearing.

Every detainee shall be afforded full opportunity to be represented by counsel at the preliminary hearing prescribed by this subchapter and in all stages of the detention review proceedings, including the hearing before the Board and any judicial review, and he shall have the right at hearings of the Board to testify, to have compulsory process for obtaining witnesses in his favor, and to cross-examine adverse witnesses.

(g) Consideration of confidential evidence; reduction of evidence to writing; additional testimony and argument.

In any proceeding before the Board under this subchapter the Board and its hearing examiners are authorized to consider under regulations designed to protect the national security any evidence of Government agencies and officers the full text or content of which cannot be publicly revealed for reasons of national security, but which the Attorney General in his discretion offers to present. The testimony taken before the Board or its hearing examiners shall be reduced to writing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take further testimony or hear argument.

(h) Evidentiary matters considered in deciding questions as to security risks.

In deciding the question of the existence of reasonable ground to believe a person probably will engage in or conspire with others to engage in espionage or sabotage, the Attorney General, any preliminary hearing officer, and the Board of Detention Review are authorized to consider evidence of the following:

(1) Whether such person has knowledge of or has received or given instruction or assignment in the espionage, counterespionage, or sabotage service or procedures of a government or political party of a foreign country, or in the espionage, counterespionage, or sabotage service or procedures of the Communist Party of the United States or of any other organization or political party which seeks to overthrow or destroy by force and violence the Government of the United States or of any of its subdivisions and to substitute therefor a totalitarian dictatorship controlled by a foreign government, and whether such knowledge, instruction, or assignment has been acquired or given by reason of civilian, military, or police service with the United States Government, the governments of the several States, their political subdivisions, the District of Columbia, the Territories, the Canal Zone, or the insular possessions, or whether such knowledge has been acquired solely by reason of academic or personal interest not under the supervision of or in preparation for service with the government of a foreign country or a foreign political party, or whether, by reason of employment at any time by the Department of Justice or the Central Intelligence Agency, such person has made full written disclosure of such knowledge or instruction to officials within those agencies and such disclosure has been made a matter of record in the files of the agency concerned;

(2) Any past act or acts of espionage or sabotage committed by such person, or any past participation by such person in any attempt or conspiracy to commit any act of espionage or sabotage, against the United States, any agency or instrumentality thereof, or any public or private national defense facility within the United States;

(3) Activity in the espionage or sabotage operations of, or the holding at any time after January 1, 1949, of membership in, the Communist Party of the United States or any other organization or political party which seeks to overthrow or destroy by force and violence the Government of the United States or of any of its political subdivisions and the substitution therefor of a totalitarian dictatorship controlled by a foreign government. (i) Necessity for reasonable ground for belief.

The authorization of the Attorney General and the Board of Detention Review to consider the evidence set forth in subsection (h) of this section shall not be construed as a direction to detain any person as to whom such evidence exists, but in each case the Attorney General or the Board of Detention Review shall decide whether, on all the evidence,

there is reasonable ground to believe the detainee or possible detainee probably will engage in, or conspire with others to engage in, espionage or sabotage.

(j) Claims for indemnity; receipt of evidence having probative value.

In any proceeding involving a claim for the payment of any indemnity pursuant to the provisions of this subchapter, the Board and its hearing examiners may receive evidence having probative value concerning the nature and extent of the income lost by the claimant as a result of his detention. (Sept. 23, 1950, ch. 1024, title II, § 109, 64 Stat. 1025.)

APPLICATION TO COMMUNIST PARTY MEMBERS Application of this section to members of the Communist Party and other subversive organizations, see section 843 of this title, and References in Text note under that section.

CROSS REFERENCES

Witnesses, per diem and mileage fees, see section 1821 et seq. of Title 28, Judiciary and Judicial Procedure. FEDERAL RULES OF CIVIL PROCEDURE

Process, see rule 4, Title 28, Appendix, Judiciary and Judicial Procedure.

Subpena, contempt for refusal to obey, see rule 45(f), Title 28, Appendix, Judiciary and Judicial Procedure. § 820. Orders of Board.

(a) Revocation of detention order.

If upon all the testimony taken in any proceeding for the review of any order of detention issued pursuant to section 814 (d) of this title, the Board shall determine that there is not reasonable ground to believe that the detainee in question probably will engage in, or conspire with others to engage in, espionage or sabotage, the Board shall state its findings of fact and shall issue and serve upon the Attorney General an order revoking the order for detention of the detainee concerned and requiring the Attorney General, and any officer designated by him for the supervision or control of the detention of such person, to release such detainee from custody; and shall forthwith serve a copy of such order upon the detainee.

(b) Orders sustaining or denying indemnity claims.

If upon all the testimony taken in any proceeding for the review of any such order for detention involving a claim for indemnity pursuant to this subchapter, or in any other proceeding brought before the Board for the assertion of a claim to such indemnity, the Board shall determine that the claimant is entitled to receive such indemnity, the Board shall state its findings of fact and shall issue and serve upon the Attorney General an order requiring him to pay to such claimant the amount of such indemnity; and shall forthwith serve a copy of such order upon such claimant. If upon all the testimony taken in any proceeding involving a claim for indemnity or for the ascertainment of any such claim, the Board shall determine that the claimant is not entitled to receive such indemnity, the Board shall state its finding of fact in sufficient detail to apprise the claimant of the grounds for its decision and shall issue and serve upon the claimant an order denying such claim and dismissing his petition so far as it pertains to such claim.

If upon all the testimony taken in any proceeding for the review of any such order for detention, the Board shall determine that there is reasonable ground to believe that the detainee probably will engage in, or conspire with others to engage in, espionage or sabotage, the Board shall state its findings of fact in sufficient detail to apprise the detainee of the grounds for its decision and shall issue and serve upon the detainee an order dismissing the petition and confirming the order of detention. (d) Report and recommended order of hearing examiner; effectiveness after expiration of time period. In case the evidence is presented before a hearing examiner such examiner shall issue and cause to be served on the parties to the proceeding a proposed report, together with a recommended order, which shall be filed with the Board, and if no exceptions are filed within twenty days after service thereof upon such parties, or within such further period as the Board may authorize, such recommended order shall become the order of the Board and become effective as therein prescribed. (e) Modification or setting aside by Board of its own findings or orders prior to court review. Until the record in a case shall have been filed in a court, as hereinafter provided, the Board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it. (Sept. 23, 1950, ch. 1024, title II, § 110, 64 Stat. 1027; Aug. 28, 1958, Pub. L. 85-791, § 30(a), 72 Stat. 950.)

AMENDMENTS

1958 Subsec. (e). Pub. L. 85-791 eliminated "a transcript of" preceding "the record".

§ 821. Judicial review.

(a) Rights of petitioner.

Any petitioner aggrieved by an order of the Board denying in whole or in part the relief sought by him, or by the failure or refusal of the Attorney General to obey such order, shall be entitled to the judicial review or judicial enforcement, provided hereinafter in this section.

(b) Orders granting indemnity; right of Attorney General.

In the case of any order of the Board granting any indemnity to any petitioner, the Attorney General shall be entitled to the judicial review of such order provided hereinafter in this section.

(c) Courts of appeals; place; petition; time; service; record; statement; powers of court; conclusiveness of Board's finding.

Any party entitled to judicial review or enforcement under subsection (a) or (b) of this section shall be entitled to receive such review or enforcement in any United States court of appeals for the circuit wherein the petitioner is detained or resides by filling in such court within sixty days from the

date of service upon the aggrieved party of such order of the Board a written petition praying that such order be modified or set aside or enforced, except that in the case of a petition for the enforcement of a Board order, the petitioner shall have a further period of sixty days after the Board order has become final within which to file the petition herein required. A copy of such petition by any petitioner other than the Attorney General shall be forthwith served upon the Attorney General and upon the Board, and a copy of any such petition filed by the Attorney General shall be forthwith served upon the person with respect to whom relief is sought and upon the Board. The Board shall thereupon file in the court the record of the proceedings before the Board with respect to the matter concerning which judicial review is sought, as provided in section 2112 of Title 28. In the case of a petition for enforcement, under subsection (a) of this section, the petitioner shall file with his petition a statement under oath setting forth in full the facts and circumstances upon which he relies to show the failure or refusal of the Attorney General to obey the order of the Board. Upon the filing of such petition the court shall have jurisdiction of the proceeding, which upon the filing of the record with it shall be exclusive, and shall have power to affirm, modify, or set aside, or to enforce or enforce as modified the order of the Board. The findings of the Board as to the facts, if supported by reliable, substantial, and probative evidence, shall be conclusive.

(d) Additional evidence; modification of, or new, findings by Board; recommendations; exclusiveness of court jurisdiction; finality of judgment; review by Supreme Court.

If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board or its hearing examiner, the court may order such additional evidence to be taken before the Board or its hearing examiner and to be made a part of the record. The Board may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact if supported by reliable, substantial, and probative evidence on the record considered as a whole shall be conclusive, and shall file its recommendations, if any, for the modification or setting aside of its original order. The jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of Title 28.

(e) Commencement of review proceeding as stay of Board's order.

The commencement of proceedings by the Attorney General for judicial review under subsection (b) of this section shall, if he so requests, operate as a stay of the Board's order.

(f) Time of finality of Board's order. Any order of the Board shall become final

(1) upon the date of entry thereof by the Board, if such order is not subject to judicial review; or (2) upon the expiration of the time allowed for filing a petition for review or enforcement, if such order is subject to judicial review and no such petition has been duly filed within such time; or

(3) upon the expiration of the time allowed for filing a petition for certiorari, if such order is subject to judicial review and the order of the Board has been affirmed or the petition for review or enforcement dismissed by a United States court of appeals, and no petition for certiorari has been duly filed; or

(4) upon the denial of a petition for certiorari, if such order is subject to judicial review and the order of the Board has been affirmed or the petition for review or enforcement dismissed by a United States court of appeals; or

(5) upon the exiration of ten days from the date of issuance of the mandate of the Supreme Court, if such order is subject to judicial review and such Court directs that the order of the Board be affirmed or that the petition for review or enforcement be dismissed.

(g) Applicability of Administrative Procedure Act.

Nothing contained in this section shall be construed to deprive any person of any relief to which he may be entitled under the Administrative Procedure Act. (Sept. 23, 1950, ch. 1024, title II, § 111, 64 Stat. 1028; Aug. 28, 1958, Pub. L. 85-791, § 30 (b), (c), 72 Stat. 950, 951.)

REFERENCES IN TEXT

The Administrative Procedure Act, referred to in subsec. (g), is classified to sections 551 et seq. and 701 et seq. of Title 5, Government Organization and Employees.

AMENDMENTS

1958 Subsec. (c). Pub. L. 85-791, § 30 (b), in third sentence, eliminated "a duly certified transcript of" following "court", and "entire" preceding "record" and substituted "as provided in section 2112 of Title 28" for "including all evidence upon which the order complained of was entered, the findings and order of the Board", and which, in fifth sentence, substituted "Upon the filing of such petition" for "Thereupon", and inserted "which upon the filing of the record with it shall be exclusive". Subsec. (d). Pub. L. 85-791, § 30 (c), substituted "record" for "transcript" at the end of the first sentence.

CROSS REFERENCES

Supreme Court, time for appeal or certiorari, see section 2101 of Title 28, Judiciary and Judicial Procedure.

§ 822. Resisting, disregarding or evading apprehension; escape or attempt to escape; conspiracy; penalty.

Whoever, being named in a warrant for apprehension or order of detention as one as to whom there is reasonable ground to believe that he probably will engage in, or conspire with others to engage in, espionage or sabotage, or being under confinement or detention pursuant to this subchapter, shall resist or knowingly disregard or evade apprehension

pursuant to this subchapter or shall escape, attempt to escape or conspire with others to escape from confinement or detention ordered and instituted pursuant to this subchapter, shall be fined not more than $10,000 or imprisoned not more than ten years, or both. (Sept. 23, 1950, ch. 1024, title II, § 112, 64 Stat. 1029.)

CROSS REFERENCES

Federal retirement benefits, forfeiture upon conviction of offense described under these sections, see section 8312 of Title 5, Government Organization and Employees. Felony, definition of, see section 1 of Title 18, Crimes and Criminal Procedure.

Forfeiture of veterans' benefits upon conviction under these sections, see section 3505 of Title 38, Veterans' Benefits.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 5 section 8312; and title 42 section 402.

§ 823. Aiding evasion of apprehension, or escape; concealment; conspiracy; penalty.

Whoever knowingly

(a) advises, aids, assists, or procures the resistance, disregard, or evasion of apprehension pursuant to this subchapter by any person named in a warrant or order of detention as one as to whom there is reasonable ground to believe that such person probably will engage in, or conspire with others to engage in espionage or sabotage; or

(b) advises, aids, assists, or procures the escape from confinement or detention pursuant to this subchapter of any person so named; or

(c) aids, relieves, transports, harbors, conceals, shelters, protects, or otherwise assists any person so named for the purpose of the evasion of such apprehension by such person or the escape of such person from such confinement or detention; or

(d) attempts to commit or conspires with any other person to commit any act punishable under subsections (a), (b), or (c) of this section, shall be fined not more than $10,000, or imprisoned not more than ten years, or both. (Sept. 23, 1950, ch. 1024, title II, § 113, 64 Stat. 1030.)

CROSS REFERENCES

Federal retirement benefits, forfeiture upon conviction of offense described hereunder, see section 8312 of Title 5, Government Organization and Employees.

Felony, definition of, see section 1 of Title 18, Crimes and Criminal Procedure.

Forfeiture of veterans' benefits upon conviction under this section, see section 3505 of Title 38, Veterans' Benefits. SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 5 section 8312; and title 42 section 402.

§ 824. Resistance of, or interference with, Board members or agents; penalty.

Any person who shall willfully resist, prevent, impede, or interfere with any member of the Board

or any of its agents or agencies in the performance of duties pursuant to this chapter, sections 137 to 137-8, 156, 456, 457 (b), 704, 705, 725, 729 (c), 733, 734 (b) and 735 of Title 8, sections 793 and 1507 of Title 18, and sections 611 (c) (5) and 618 (e) of Title 22 shall be punished by a fine of not more than $5,000 or by imprisonment for not more than one year, or both. (Sept. 23, 1950, ch. 1024, title II, § 114, 64 Stat. 1030.) REFERENCES IN TEXT

Sections 137 to 137-8, 156, 456, 457 (b), 704, 705, 725, 729 (c), 733, 734 (b) and 735 of Title 8, referred to in the text, were repealed by Act June 27, 1952, ch. 477, title IV, § 403 (a) (13) (16) (39) (42), 66 Stat. 279, 280, and are now covered by subchapters II and III of chapter 12 of Title 8, Aliens and Nationality.

Section 611 (c) (5) of Title 22, referred to in first par. was repealed Aug. 1, 1956, c. 849, § 1, 70 Stat. 899.

CROSS REFERENCES Misdemeanor, definition of, see section 1 of Title 18, Crimes and Criminal Procedure.

§ 825. Definitions.

For the purposes of this subchapter, the term "espionage" means any violation of sections 792 to 797 of Title 18, and the term "sabotage" means any violation of sections 2151 to 2156 of Title 18. (Sept. 23, 1950, ch. 1024, title II, § 115, 64 Stat. 1030.)

§ 826. Preservation of privilege of habeas corpus.

Nothing contained in this subchapter shall be construed to suspend or to authorize the suspension of the privilege of the writ of habeas corpus. (Sept. 23, 1950, ch. 1024, title II, § 116, 64 Stat. 1030.)

CODIFICATION

Section constitutes the second sentence only of section 116 of act Sept. 23, 1950. The first sentence of section 116, relating to separability of provisions of this subchapter, is set out as a note under section 811 of this title.

CROSS REFERENCES

Habeas corpus generally, see chapter 153 of Title 28, Judiciary and Judicial Procedure.

Suspension of privilege of writ of habeas corpus, see Const., Art. 1, § 9, cl. 2.

SUBCHAPTER III-PERSONNEL SECURITY PROCEDURES IN NATIONAL SECURITY AGENCY

§ 831. Regulations for employment security.

Subject to the provisions of this subchapter, the Secretary of Defense (hereafter in this subchapter referred to as the "Secretary") shall prescribe such regulations relating to continuing security procedures as he considers necessary to assure

(1) that no person shall be employed in, or detailed or assigned to, the National Security Agency (hereafter in this subchapter referred to as the "Agency"), or continue to be so employed, detailed, or assigned; and

(2) that no person so employed, detailed, or assigned shall have access to any classified information;

unless such employment, detail, assignment, or access to classified information is clearly consistent with the national security. (Sept. 23, 1950, ch. 1024, title III, § 301, as added Mar. 26, 1964, Pub. L. 88–290, 78 Stat. 168.)

§832. Full field investigation and appraisal.

(a) Conditional employment; other current security clearance; circumstances authorizing employment on temporary basis.

No person shall be employed in, or detailed or assigned to, the Agency unless he has been the subject of a full field investigation in connection with such employment, detail, or assignment, and is cleared for access to classified information in accordance with the provisions of this subchapter; excepting that conditional employment without access to sensitive cryptologic information or material may be tendered any applicant, under such regulations as the Secretary may prescribe, pending the completion of such full field investigation: And provided further, That such full field investigation at the discretion of the Secretary need not be required in the case of persons assigned or detailed to the Agency who have a current security clearance for access to sensitive cryptologic information under equivalent standards of investigation and clearance. During any period of war declared by the Congress, or during any period when the Secretary determines that a national disaster exists, or in exceptional cases in which the Secretary (or his designee for such purpose) makes a determination in writing that his action is necessary or advisable in the national interest, he may authorize the employment of any person in, or the detail or assignment of any person to, the Agency, and may grant to any such person access to classified information, on a temporary basis, pending the completion of the full field investigation and the clearance for access to classified information required by this subsection, if the Secretary determines that such action is clearly consistent with the national security.

(b) Boards of appraisal; establishment; membership; appointment; appraisal in doubtful cases; report and recommendation; qualifications of members; Secretary's clearance contrary to board's recommendation.

To assist the Secretary and the Director of the Agency in carrying out their personnel security responsibilities, one or more boards of appraisal of three members each, to be appointed by the Director of the Agency, shall be established in the Agency. Such a board shall appraise the loyalty and suitability of persons for access to classified information, in those cases in which the Director of the Agency determines that there is a doubt whether their access to that information would be clearly consistent with the national security, and shall submit a report and recommendation on each such a case.

However, appraisal by such a board is not required before action may be taken under section 863 of Title 5, section 22-1 of Title 5, or any other similar provision of law. Each member of such a board shall be specially qualified and trained for his duties as such a member, shall have been the subject of a full field investigation in connection with his appointment as such a member, and shall have been cleared by the Director for access to classified information at the time of his appointment as such a member. No person shall be cleared for access to classified information, contrary to the recommendations of any such board, unless the Secretary (or his designee for such purpose) shall make a determination in writing that such employment, detail, assignment, or access to classified information is in the national interest. (Sept. 23, 1950, ch. 1024, title III, § 302, as added Mar. 26, 1964, Pub. L. 88-290, 78 Stat. 168.)

REFERENCES IN TEXT

Section 863 of Title 5 and section 22-1 of Title 5, referred to in subsec. (b), are now covered by sections 3315, 3571, 5594, 7312, 7501, 7512, 7532, and 7701 of Title 5, Government Organization and Employees.

§ 833. Termination of employment.

(a) Generally; finality.

Notwithstanding section 863 of Title 5, section 22-1 of Title 5, or any other provision of law, the Secretary may terminate the employment of any officer or employee of the Agency whenever he considers that action to be in the interest of the United States, and he determines that the procedures prescribed in other provisions of law that authorize the termination of the employment of that officer or employee cannot be invoked consistently with the national security. Such a determination is final. (b) Employment in other departments or agencies.

Termination of employment under this section shall not affect the right of the officer or employee involved to seek or accept employment with any other department or agency of the United States if he is declared eligible for such employment by the United States Civil Service Commission.

Notwithstanding section 133 (d) of Title 10 any authority vested in the Secretary of Defense by subsection (a) may be delegated only to the Deputy Secretary of Defense or the Director of the National Security Agency, or both. (Sept. 23, 1950, ch. 1024, title III, § 303, as added Mar. 26, 1964, Pub. L. 88-290, 78 Stat. 169.)

REFERENCES IN TEXT

Section 863 of Title 5 and section 22-1 of Title 5, referred to in subsec. (a), are now covered by sections 3315, 3571, 5594, 7312, 7501, 7512, 7532, and 7701 of Title 5, Government Organization and Employees.

§ 834. Definition of "classified information".

For the purposes of this section, the term "classified information" means information which, for reasons of national security, is specifically designated by a United States Government agency for limited or restricted dissemination or distribution. (Sept. 23, 1950, ch. 1024, title III, § 304, as added Mar. 26, 1964, Pub. L. 88-290, 78 Stat. 170.)

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