June 9, 1954
Major General K. D. Nichols
DEAR GENERAL NICHOLS:
Pursuant to my telegram to you of June 7, we filed with you and with the Commission yesterday copies of our brief on behalf of Dr. Oppenheimer.
Your letter to me of June 3, which you made public on June 7, informed me of the Commission's decision not to hear oral argument, as requested in my letter of June 1. I repeat the hope, expressed in my telegram to you of June 7, that the Commission will se fit to reconsider this decision. Since the Commission in determining to take the case itself is to that extent departing from usual procedure, we had hoped that it would take the same latitude as its Review Board does in exercising its discretion to grant oral argument. As indicated in my telegram, we asked you to reconsider your decision about oral argument, not because of Dr. Oppenheimer's prominence but because such argument is one of the most important means of arriving at a clear understanding or voluminous and complex records.
I regret that you construed my letter of June 1 as having implied that there had been any unjustified delay in the proceedings. I meant only to emphasize our desire for a prompt decision by the Commission consistent with due consideration of the case. I am sure the Commission shares this desire.
Your letter of June 3 also contained a comment on certain procedural difficulties which in my letter of June 1st I said had beset the presentation of Dr. Oppenheimer's case. I regret having to go into this matter further, but I feel that for your understanding of the situation I should make this additional explanation since both you and the Commission may find it relevant and helpful in appraising the testimony of witnesses.
Your letter noted the fact that in an earlier letter from you to us dated February 12 you had reported the Commission's willingness to make available to us documents we reasonably believed to be relevant, reserving the right to decide "whether particular documents to which you request access are relevant and whether your access to such documents or parts thereof would be consistent with the national interest." This offer did not in fact turn out to be of help. Among other things we asked on Dr. Oppenheimer's behalf for the minutes and other papers relating to Dr. Oppenheimer's clearance by the Commission in 1947. This request was denied. The papers and the minutes later came out piecemeal in the hearings through Commission counsel in a way which confused both the board and ourselves, and for some time obscured the fact that the Commission had cleared Dr. Oppenheimer after serious consideration of the derogatory information in his file. Indeed, the relevant minutes were supplied only on the thirteenth day of the hearings after the chairman of the board had transmitted to the Commission our urgent request for them, and after it was clear that the story could not be complete without them. We cite this as an example of the difficulties which might have been avoided if relevant documents, about which there was no security problem, had been furnished to us in advance.
In your letter of June 3 you also noted the fact that Dr. Oppenheimer had been granted an opportunity, which he had not exercised, to read the minutes of the October 1949 GAC meeting, and that counsel had not asked for clearance until too late. Neither of these facts had any relationship to the procedural difficulties described in my letter of June 1. As you know, we decided very early in the proceeding that Dr. Oppenheimer's case could most clearly be understood if it were presented to the board on a nonclassified basis, in lay terms, and without resort to secret data. The board cooperated in this plan, and so far as we know, except for a very few items, counsel for the Commission used in the proceedings no documents which were not declassified. Some of these documents were declassified at the moment of cross-examination and some of them earlier, but we were not told of their existence until they were actually used in cross-examination. Since it was possible to declassify them for use in cross-examination, it is clear that their disclosure in no way involved the national security, and there is no reason why they should not have been made available in advance to Dr. Oppenheimer and other witnesses concerned, in order to refresh their recollections of events of past years before cross-examining them.
In view of the massive volume of Dr. Oppenheimer's file which the government had taken from him last January, and of the quantity of documents in other files, there was no possible way in which Dr. Oppenheimer or his counsel could have anticipated in advance what documents would be so produced and used. Some of them, on the other hand, consisted of letters taken from his files whose existence, if he had remembered them, he would have had no motive in concealing; yet without notice that counsel for the Commission had them before him, Dr. Oppenheimer was questioned about matters referred to in them. The letter from Dr. Seaborg, referred to by Dr. Evans in his minority opinion, is an example.
As a result of these tactics, which were used in the case of certain other witnesses, it is understandable that at some points in the testimony limitations of memory may have been mistaken for disingenuousness.
In my letter of June 1st I pointed out these and related facts about the procedure in order to make as certain as possible that the Commission would be aware of them and would take account of them in weighing the testimony.
I think I should add that besides the findings of fact specifically commented on in our brief to the Commission, there are a number of other findings on which we do not agree, but it has seemed to us that these findings would not substantially affect the result and we have therefore not prolonged the brief by arguing them.
Lloyd K. Garrison
cc: Admiral Lewis L. Strauss