Letter from Dr. Oppenheimer's Attorneys to General Manager K. D. Nichols, United States Atomic Energy Commission, Replying to the Latter's Letter to Dr. Oppenheimer Transmitting the Findings and Recommendation of the Personnel Security Board

JUNE 1, 1954.

General Manager,
United States Atomic Energy Commission, Washington 25, D. C.

DEAR GENERAL NICHOLS: Dr. Oppenheimer has received your letter of May 28, 1954, in which you enclosed a copy of the "Findings and Recommendation of the Personnel Security Board" dated May 27. In this document the Board unanimously found that Dr. Oppenheimer was a loyal citizen, but by a 2 to 1 vote, Dr. Ward V. Evans dissenting, recommended that Dr. Oppenheimer's clearance should not be reinstated. Dr. Oppenheimer has asked me to send you this reply on his behalf.

You informed Dr. Oppenheimer that he might have until June 7 to notify the Commission whether he would request a review of the case by the Commission's Personnel Security Review Board. You also informed him that, after considering the record (including the recommendation of the Review Board if a review were taken), you would make your recommendation to the Commission and the Commission would finally determine the matter.

Since the Commission is in any event to decide the case, it seems to us that no useful purpose would be served by our requesting the Review Board to go over the matter afresh and to make a recommendation that would have no more finality to it than that which the Personnel Security Board has already made.

Such a review would entail further delay, which Dr. Oppenheimer is naturally anxious to avoid; moreover, Dr. Oppenheimer's annual contract as a Consultant to the Atomic Energy Commission expires on June 30, the end of the fiscal year, and with it his clearance (now suspended) would automatically expire, so that if this case is not finally determined by June 30, the possibility exists that the question of reinstating Dr. Oppenheimer's clearance might be regarded as moot and might be left in a state of confusion and uncertainty. We do not believe that such an outcome would be in the public interest. Accordingly, Dr. Oppenheimer waives his privilege of review by the Personnel Security Review Board and requests immediate consideration of the case by the Atomic Energy Commission.

In order to assist the Commission in its deliberations, and because of the great public importance of some of the issues raised by the majority and minority opinions of the Personnel Security Board, we request the Commission's permission to file a brief and to make oral argument. A brief is already in the course of preparation and can be delivered to the Commission by June 7 (the latest date specified in your letter to request review). Argument of counsel can, we are sure, be arranged to meet the Commission's convenience.

Meanwhile we think it fitting to identify for the Commission what we conceive to be certain issues of basic importance which are presented by the majority and minority opinions. We believe it essential, however, that the Commission have the benefit of critical analysis and illumination of these issues, which can only be supplied adequately by the brief and oral argument herein requested.

To begin with, the majority's conclusion not to recommend the reinstatement of Dr. Oppenheimer's clearance stands in such stark contrast with the Board's findings regarding Dr. Oppenheimer's loyalty and discretion as to raise doubts about the process of reasoning by which the conclusion was arrived at. All members of the Board agreed:

(1) That the Nation owed scientists "a great debt of gratitude for loyal and magnificent service" and that "This is particularly true, with respect to Dr. Oppenheimer" (p. 27).

(2) That "we have before us much responsible and positive evidence of the loyalty and love of country of the individual concerned" (p. 21), and "eloquent and convincing testimony of Dr. Oppenheimer's deep devotion to his country in recent years and a multitude of evidence with respect to active service in all sorts of governmental undertakings to which he was repeatedly called as a participant and as a consultant" (p. 29).

(3) That "even those who were critical of Dr. Oppenheimer's judgment and activities or lack of activities, without exception, testified to their belief in his loyalty" (p. 30).

(4) That "we have given particular attention to the question of his loyalty, and we have come to a clear conclusion, which should be reassuring to the people of this country, that he is a loyal citizen. If this were the only consideration, therefore, we would recommend that the reinstatement of his clearance would not be a danger to the common defense and security" (p. 33).

(5) That "It must be said that Dr. Oppenheimer seems to have had a high degree of discretion reflecting in unusual ability to keep to himself vital secrets"(p. 31).

In spite of these findings of loyalty and of discretion in the handling of classified data, the majority of the Board reached the conclusion that Dr. Oppenheimer's clearance should not be reinstated. How can this be? The majority advanced four considerations as controlling in leading them to their conclusion (p. 33).

The first two-an alleged "serious disregard for the requirements of the security system," and an alleged "susceptibility to influence"-rest upon an appraisal of the evidence which we do not think is justified by the record. Taking sharp issue, as we do, with the majority's treatment of the incidents cited in support of these two considerations, we cannot undertake here to review the detailed evidence, but propose to do so in the brief.

We would like, however, to draw attention to two of the incidents referred to by the majority in support of these considerations, merely to indicate the. care with which we think the record needs to be reviewed by the Commission. The majority held it against Dr. Oppenheimer, apparently as an example of his supposed susceptibility to influence, that despite a severe attack on him by Dr. Edward Condon in 1949, in a letter which appeared in the press, Dr. Oppenheimer is now prepared to support Dr. Condon in the latter's pending loyalty investigation (p. 31). It seems to us strange that a man should be criticized for refusing to let his personal feelings stand in the way of his giving evidence on behalf of a man he believes to be loyal. The majority further criticized Dr. Oppenheimer for his continuing associations and supposed disregard of security requirements in that "In 1946 or 1947 he assisted David Bohm [a former student] in getting a position at Princeton and, at least on a casual basis, continued his associations with Bohm after he had reason to know of Bohm's security status. He testified that today he would give Bohm a letter of recommendation as a physicist, and, although not asked whether he would also raise questions about Bohm's security status, he in no way indicated that this was a matter of serious import to him" (p. 32). Dr. Evans' comment on this incident was: "I think I would have recommended Bohm as a physicist. Dr. Oppenheimer was not asked if he would have added that Bohm was a Communist" (p. 35).

We propose to analyze in detail, in brief and argument, these and other incidents referred to by the majority as bearing on Dr. Oppenheimer's supposed "disregard" for "the security system" and "susceptibility to influence."

The third and fourth considerations advanced by the majority for concluding that Dr. Oppenheimer was a "security risk" warrant more extended comment here.

The third item-Dr. Oppenheimer's "conduct in the hydrogen bomb program," characterized as "disturbing"-and the fourth-alleged "lack of candor" in several instances in his testimony-require discussion, because they involve questions of policy and procedure which we wish particularly to draw to the Commission's attention in a preliminary way.

In the case of the third consideration-Dr. Oppenheimer's so-called disturbing conduct in the hydrogen bomb program-the Board's unanimous findings of fact again stand in stark contrast with the conclusion of the majority. Thus the Board unanimously found:

(1) That Dr. Oppenheimer's opposition to the H-bomb program "involved no lack of loyalty to the United States or attachment to the Soviet Union" (p. 30).

(2) That his opinions regarding the development of the H-bomb "were shared by other competent and devoted individuals, both in and out of Government" (p. 30).

(3) That it could be assumed that these opinions "were motivated by deep moral conviction" (p. 30).

(4) That after the national policy to proceed with the development of the H-bomb had been determined in January 1950, he "did not oppose the project in a positive or open manner, nor did he decline to cooperate in the project" (p. 20).

(5) That the allegations that he urged other scientists not to work on the hydrogen bomb program were unfounded (p. 20).

(6) That he did not, as alleged, distribute copies of the General Advisory Report to key personnel with a view to turning them against the project, but that on the contrary this distribution was made at the Commission's own direction (p. 20).

In short, all the basic allegations set forth in General Nichols' letter to Dr. Oppenheimer on December 23, 1953, regarding any improper action by him in the H-bomb problem were disproved.

In the face of these unanimous findings, the majority then conclude that "the security interests of the United States were affected" by Dr. Oppenheimer's attitude toward the hydrogen bomb program (p. 30). Why? Because, according to the majority of the Board:

"We believe that, had Dr. Oppenheimer given his enthusiastic support to the program, a concerted effort would have been initiated at an earlier date.

"Following the President's decision, he did not show the enthusiastic support for the program which might have been expected of the chief atomic adviser to the Government under the circumstances. Indeed, a failure to communicate an abandonment of his earlier position undoubtedly had an effect upon other scientists" (p. 30).

Without taking into account the factual evidence, which in our opinion should have led the Board to an opposite conclusion, we submit that the injection into a security case of a scientist's alleged lack of enthusiasm for a particular program is fraught with grave consequences to this country. How can a scientist risk advising the Government if he is told that at some later day a security board may weigh in the balance the degree of his enthusiasm for some official program? Or that he may be held accountable for a failure to communicate to the scientific community his full acceptance of such a program?

In addition to Dr. Oppenheimer's alleged lack of "enthusiasm," there are indications that the majority of the Board may also have been influenced in recommending against the reinstatement of Dr. Oppenheimer's clearance by judgments they had formed as to the nature and quality of the advice he gave to the AEC. While the majority of the Board stated-with sincerity, we are sure-that "no man should be tried for the expression of his opinions" (p. 33), it seems to us that portions of the majority opinion do just that.

For example, the opinion says that while the Board can understand "the emotional involvement of any scientist who contributed to the development of atomic energy and thus helped to unleash upon the world a force which could be destructive of civilization," nevertheless "emotional involvement" of this sort in the current crisis "must yield to the security of the Nation"; and Government officials "who are responsible for the security of the country must be certain that the advice which they seriously seek appropriately reflects special competence on the one hand, and soundly based conviction on the other, uncolored and uninfluenced by considerations of an emotional character" (p. 28). Does this mean that a loyal scientist called to advise his Government does so at his peril unless, contrary to all experience, he can guarantee that his views are unaffected by his heart and his spirit?

The opinion further stated that defense officials "must also be certain that underlying any advice is a genuine conviction that this country cannot in the interest of security have less than the strongest possible offensive capabilities in a time of national danger" (p. 28). Does this mean that a loyal scientist called to advise his Government does so at his peril if he happens to believe in the wisdom of maintaining a proper balance between offensive and defensive weapons?

It would appear from the following passage about Dr. Oppenheimer's advice that the majority of the Board assumed affirmative answers to both of the foregoing questions:

"We are concerned, however, that he may have departed his role as scientific adviser to exercise highly persuasive influence in matters in which his convictions were not necessarily a reflection of technical judgment, and also not necessarily related to the protection of the strongest offensive military interests of the country" (p. 30).

This poses a serious issue. If a scientist whose loyalty is unquestioned may nevertheless be considered a security risk because in the judgment of a board he may have given advice which did not necessarily reflect a bare technical judgment, or which did not accord with strategical considerations of a particular kind, then he is being condemned for his opinions. Surely our security requires that expert views, so long as they are honest, be weighed and debated and not that they be barred.

We quite agree with the Board's view that, "because the loyalty or security risk status of a scientist or any other intellectual may be brought into question, scientists and intellectuals are ill-advised to assert that a reasonable and sane inquiry constitutes an attack upon scientists and intellectuals generally" (p. 26). This statement, however, begs the fundamental question as to what are the appropriate limits of a security inquiry under existing statutes and regulations, and under a government of laws and not of men-a question of concern not merely to scientists and intellectuals but to all our people.

* * * * *

As to the majority's comments about Dr. Oppenheimer's alleged lack of "candor" in "several instances in his testimony," we shall ask the Commission to take special note of the observations in Dr. Evans' minority opinion that while Dr. Oppenheimer's "statements in cross-examination show him to be still naive," they also show him to be "extremely honest and such statements work to his benefit in my estimation" and that while "his judgment was bad in some cases" it was "most excellent in others but it is better now than it was in 1947," when the Atomic Energy Commission unanimously cleared him. We shall also direct the Commission's attention to the fact that the text of the Board's report contains only three specific references to alleged lack of candor, all having to do with the hydrogen bomb program (pp. 20 and 30). [We should point out that as to two of these references (p. 30) Dr. Evans specifically disassociated himself from the majority (p. 34) and as to the other (p. 20) he did so by clear implication (p. 35).] As to all these matters there was extensive testimony not only by Dr. Oppenheimer but also by others who served with him on the General Advisory Committee, including Dr. James B. Conant, Dr. I. I. Rabi (now Chairman of the GAC), Dr. Enrico Fermi, and Mr. Hartley Rowe of the United Fruit Co.; and also by Dr. Norris Bradbury (Dr. Oppenheimer's successor as director of Los Alamos) ; by Mr. Gordon Dean (former Chairman of the Atomic Energy Commission) ; by Dr. Hans Bethe; by Dr. Robert Bacher (a former member of the AEC); and by a number of other distinguished men.

In brief and argument we expect to analyze for the Commission's assistance the evidence they gave, which in our judgment bears out the truth and sincerity of Dr. Oppenheimer's account of the H-bomb controversy.

* * * * *

We wish to make two more observations of a general character.

First, we trust that the Commission in weighing the evidence, including the instances of alleged lack of candor, will take into account certain procedural difficulties which beset the presentation of Dr. Oppenheimer's case. Weeks before the hearing commenced we asked you and the Commission's general counsel for much information which we thought relevant to our case but which was denied us---documents and minutes concerning Dr. Oppenheimer's 1947 clearance and a variety of other material. Much of this information did come out in the hearings but usually only in the, course of cross-examination when calculated to cause the maximum surprise and confusion and too late to assist us in the orderly presentation of our case. Some of the information which was denied to us before the hearing was declassified at the moment of cross-examination or shortly before and was made available to us only during cross-examination or after.

It is true that Dr. Oppenheimer was accorded the privilege of reexamining, prior to the hearings, reports and other material in the preparation of which he had participated. But he was not given access to the broad range of material actually used and disclosed for the first time at the hearings by the Commission's special counsel who had been retained for the case. And of course Dr. Oppenheimer was not given access to the various documents which, according to the Board's report "under governmental necessity cannot be disclosed, such as reports of the Federal Bureau of Investigation" (p. 31).

The voluminous nature of this undisclosed material appears from the Board's report. It notes that in our hearings the Board heard 40 witnesses and compiled over 3,000 pages of testimony; and we then learn from the report that "in addition" the Board has "read the same amount of file material" (p. 2). We can only speculate as to the contents of this "file material." We cannot avoid the further speculation as to how much of this material might have been disclosed to Dr. Oppenheimer in the interests of justice without any real injury to the security interests of the Government if established rules of exclusion, which the Board felt bound to apply and we to accept, had not stood in the way.

Having in mind the difficulties and handicaps which have been recounted above, we urge upon the Commission as strongly as possible the following:

(1) That in weighing the testimony, and particularly those portions where documents were produced on cross-examination in the manner described above, the Commission should constantly bear in mind how, under such circumstances, the natural fallibility of memory may easily be mistaken for disingenuousness;

(2) That in the consideration of documentary material not disclosed to Dr. Oppenheimer, the Commission should be ever conscious of the unreliability of ex parte reports which have never been seen by Dr. Oppenheimer or his counsel or tested by cross-examination; and

(3) That if in the course of the Commission's deliberations the Commission should conclude that any hitherto undisclosed documents upon which it intends to rely may be disclosed to us without injury to what may be thought to be overriding interests of the National Government, they should be so disclosed before any final decision is made.

* * * * *

Our final observation has to do with the general structure of the Board's report, and with what has been omitted from it which we feel the Commission should put in the forefront of its-consideration if it is to view this case in anything like the true perspective of history-a history through which Dr. Oppenheimer has lived and which in part he has helped to create.

The Board's opinion, as required by the AEC Procedures, makes specific findings on each allegation of "derogatory information" contained in your letter of December 23, 1953. These findings, which are placed at the beginning of the report, are not thereafter, except in Dr. Evans' dissenting opinion, considered in the context of Dr. Oppenheimer's life as a whole. Dr. Oppenheimer's letter to you of March 4, 1954, in answer to yours of December 23, 1953, stated at the outset that "the items of so-called 'derogatory information' set forth in your letter cannot fairly be understood except in the context of my life and work."

In his letter Dr. Oppenheimer tried to describe the derogatory information about him in that context. There is, in fact, little in the Board's findings that did not appear from what Dr. Oppenheimer volunteered about himself in his original letter to you. Over and above that, he gave a picture of his life and times without which the items of derogatory information cannot fairly be understood-a picture to which many witnesses added who had known him intimately and had worked side by side with him in the positions of high responsibility which the Government, first in war and then in peace and then in the cold war, successively devolved upon him. This picture, which is glimpsed in Dr. Evans' vivid opinion, does not appear at all in the main body of the report, nor is any mention made of the many witnesses who testified at his behest. Some of these we have already named above. The others were Mervin J. Kelly, president of Bell Telephone Laboratories; Gen. Leslie R. Groves; T. Keith Glennan, president of Case Institute of Technology; Karl T. Compton, retired president of Massachusetts Institute of Technology; Col. John Lansdale, Jr., wartime senior security officer for the atomic-bomb project: James B. Fisk, vice president of Bell Telephone Laboratories; Prof. Jerrold B. Zacharias, of MIT; Oliver E. Buckley, of the GAC, retired chairman of Bell Telephone Laboratories; Gen. Frederick H. Osborn, Ambassador George F. Kennan; Prof Walter G. Whitman, of MIT; Harry A. Winne, former vice president of General Electric, chairman of the Defense Department's panel on atomic energy; Dr. Vannevar Bush, president of the Carnegie Institution; Sumner T. Pike, former Atomic Energy Commissioner; David E. Lilienthal, former Chairman of the AEC; Lee A. DuBridge, president of California Institute of Technology; James R. Killian, Jr., president of MIT; Prof. Norman F. Ramsey, Jr., of Harvard; Maj. Gen. James McCormack, Jr., vice commander of the Air Research and Development Command; John J. McCloy, chairman of the Chase National Bank; Prof. John von Neumann of the Institute for Advanced Study; Prof. John H. Manley of the University of Washington, former secretary of the GAC; and Prof. Charles C. Lauritsen of the California Institute of Technology. The witnesses included 10 former and present members of the General Advisory Committee, and 5 former Atomic Energy Commissioners.

Since all these witnesses testified to Dr. Oppenheimer's loyalty and since the Board unanimously found him to be loyal, the omission of their names from the report was understandable; but we mention them here and direct the Commission's attention particularly to their testimony, to which we hope to refer in brief and argument, because they did much more than vouch for Dr. Oppenheimer's loyalty. These, and the other men previously mentioned, were not ordinary character witnesses who tell about a man's reputation in the community. Every one of them had served with Dr. Oppenheimer, either at Los Alamos or on the many governmental boards and committees to which he was later appointed. They saw him on the job and off the job, and in their varied testimony about their contacts with him over many years they helped to fill in the picture of the "man himself" which the Atomic Energy Commission, in its 1948 opinion in Dr. Frank Graham's case, said should be considered in determining whether an individual is a good or bad security risk.

Because we believe that the "man himself" can only be understood, and therefore fairly judged, by the closest attention to the testimony of those who have known him and worked intimately with him, as well as to his own testimony, we are particularly hopeful that the Commission will permit us to file a brief and to be heard.

In closing this letter we wish to record our appreciation of the patience and consideration accorded to Dr. Oppenheimer and his counsel by Mr. Gray, Mr. Morgan and Dr. Evans throughout the nearly 4 weeks of hearings, and our recognition of the sacrifices which they made in the public interest in assuming the long and arduous task assigned to them.

Mr. John W. Davis has authorized me to say that he joins in this letter and will join in the brief.

Very truly yours,


cc. Adm. Lewis L. Strauss, Chairman.

Mr. Joseph Campbell.

Mr. Thomas E. Murray.

Dr. Henry D. Smyth.

Mr. Eugene M. Zuckert.

(NOTE-No deletions were made in reproducing this letter. Ellipses appeared in original document.)

127 Wall Street, New Haven, CT 06511.