dissenting.
That so strong a court and one so strong in literary endowment — Swan, C. J., Learned Hand and Frank, JJ.— should rely, as did the Court of Appeals in this case, 200 F. 2d 46, 49-50, on the opinion of a District Judge, impressively attests the persuasiveness of that opinion. Chief Judge Hincks has stated also for me the compelling reasons why the refusal to make available the FBI report on a registrant claiming exemption as a conscientious *11objector invalidates, on any fair construction of the requirements of the Selective Service Act, his classification as 1-A.
“It is true that on the precise point of law involved the [Selective Service] Act is not explicit: when it directs the board to refer the registrant’s claim of conscientious objection ‘for inquiry and hearing’ by the Department [of Justice], it does not specify that the product both of the inquiry and of the hearing shall be made available to the board. But neither does the Act suggest any reason why the product of the hearing should go forward to the board, as it did here as a matter of course, and the product of the inquiry should be withheld.
“There are, however, other provisions in the Act from which I think one must imply a Congressional intent that the board should have access to the investigative report. The same section of the Act proceeds to provide that after inquiry a hearing shall be had of which the registrant shall be notified. The natural import of this provision is, I think, that the investigative report resulting from the inquiry shall be made a part of the record for consideration by all directly concerned with the classification. Under the contemplated procedure the registrant has already had an opportunity before the draft board to put everything desired into the record. That being so there would be no point to notify him to appear in the departmental hearing just to put in more evidence. Thus, by elimination, the only useful purpose of notice at that stage was to give the registrant opportunity to meet the contents of the report. . . .
“Congress was not using empty words when in Sec. 451 of the Act it solemnly declared ‘that in a *12free society the obligations and privileges of serving in the armed forces and the reserve components thereof should be shared generally, in accordance with a system of selection which is fair and just, and which' is consistent with the maintenance of an effective national economy.’ A system in which selections might be made in uninformed reliance upon the recommendation of an executive officer bottomed perhaps on secret police reports, would indeed make a mockery of that high declaration of policy. Only if the Act be construed to require that the investigative reports shall become a part of the record open to the appeal board and all concerned is the 'system of selection ... fair and just’ within our Anglo-Saxon concepts of justice and due process.” United States v. Geyer, 108 F. Supp. 70, 71-72.
There is a note of uneasiness in the Court’s recognition of the difficulty of “devising” procedures “adequate to do justice in cases where the sincerity of another’s religious convictions” is in issue. Courts are, no doubt, closely circumscribed in “devising” such procedures where Congress has, with sufficient clarity, bound the allowable judicial discretion in applying legislation. And, of course, only within narrow limits may courts reject a procedure, devised by Congress, on constitutional grounds. The Due Process Clause cannot be bent to what a judge may privately think is wisdom in respecting dissident views. But here the Court ought not to feel an impotent uneasiness. It is not called upon to devise a just procedure; merely to apply one. Considering the traditionally high respect that dissent, and particularly religious dissent, has enjoyed in our view of a free society, this Court ought not to reject a construction of congressional language which assures justice in cases where the sincerity of another’s religious conviction is at stake and where prison *13may be the alternative to an abandonment of conscience. The enemy is not yet so near the gate that we should allow respect for traditions of fairness, which has heretofore prevailed in this country, to be overborne by military exigencies.
The suggestion that the registrants in these cases have waived their rights by not asking for “a fair résumé” of any adverse evidence in the investigator’s report seems to me an instance of keeping the word of promise to the ear and breaking it to the hope. The very purpose of a hearing is to give registrants an opportunity to meet adverse evidence. It makes a mockery of that purpose to suggest that such adverse evidence can be effectively met if its provenance is unknown. Nor is it possible to be confident that a “résumé is fair” when one cannot know what it is a résumé of. This does not suggest purposeful unfairness, still less, want of zeal. Language is treacherous and the meaning of what is written to no small degree derives from him who reads it. In a country with our moral and material strength the maintenance of fair procedures cannot handicap our security. Every adherence to our moral professions reinforces our strength and therefore our security.