compounded by its failure to mandate that any information, relied upon to determine either the ultimate advisory opinion or the scope of the investigation, be checked for accuracy. Moreover, despite the lack of such a limitation, the Order permits the Office of Personnel Management to communicate any information that it considers "derogatory" to the Secretary of State for transmittal to the international organization at any stage of the investigation, without notice to the person whose loyalty is being assessed and certainly without affording the person concerned an opportunity to explain or refute such information.
Thus, depending upon the timing of the action taken, Part I 6 of the Order renders the due process provisions of Part IV a sham at the outset. Even if the person under investigation is afforded the notice and hearing set forth in Part IV, and satisfactorily refutes the information disclosed to him at that point, it may have already been passed along to his employer or prospective employer and have adversely affected his employment. Moreover, the Board also has the unfettered discretion to withhold any information in its possession, and upon which it may rely in making its advisory recommendation, from the individual concerned if it is deemed to affect "national security", also an undefined term. These limitations on procedural due process are inconsistent with the protections afforded a person caught in the act of committing the most heinous crime and yet may be applied to citizens whose activities do not even approach illegality simply because they seek to be employed by an international organization.
Those persons investigated under the Order may never be told how extensive was the investigation or what, if any, "derogatory information" surfaced in the course of the investigation. Thus, they can never be certain that the National Agency check described in Part I 3 (a) of the Order will not be conducted repeatedly even if they fulfill all the other requirements of Part I 3 (b), which limit the scope of some subsequent investigations but only if no "derogatory information" was disclosed during prior investigations. Consequently, even the receipt of a favorable advisory opinion as to loyalty is no guarantee that an extensive investigation will not be mounted each time a loyalty clearance is requested, even if, as in Hinton's case, such requests are made several years in succession. This, coupled with a "standard" completely devoid of certainty and the purely discretionary nature of its application, provides ample reason for any individual subject to its provisions to complain of the Order's investigative process no matter what the ultimate outcome. The process may unwittingly, unintentionally and even innocently be used to delay the employment of United States citizens on the basis of their exercise of First Amendment rights of association and free speech. Worse, the process may be used to harass an applicant or subject for engaging in protected conduct.
Since Hinton received a loyalty clearance that did not disclose the extent of the investigation to which he was subjected, whether "derogatory information" was discovered and/or disclosed to the Secretary of State and then transmitted to the Secretary General, we conclude that he was denied due process of law in connection with his latest loyalty clearance notwithstanding the determination that there was "no adverse recommendation to transmit". (Reproduced as Defendant's Exhibit E to Doc.#36).
Next, we address defendant's arguments that the Order must be read in the light of specific Supreme Court precedent and definition, meaning that this Court should hold that any language in the Order found to be vague or overbroad must be construed and applied in accordance with approved Supreme Court interpretations of it. Thus, for example, the government invites the Court to read the term "advocacy" as "advocacy directed to imminent lawless actions", a kind of advocacy which may be proscribed under the rule of Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969), (quoted in Defendant's Memorandum in Support of its Motion to Dismiss/Cross-Motion for Summary Judgment, Doc. #36 at 65).
Even if such a course were feasible in light of our conclusions as to each part of the Order, it finds no support in the case law that this Court has examined in the course of deciding the issues presented here, and indeed is precluded by the defendant's own arguments, marshalled to convince the Court of the legality of the Executive Order.
In the first instance, applying a "limiting construction" is inappropriate in this context. Such a course is usually followed where a reviewing court, to avoid facial invalidation of a statute, looks to the construction and application of the challenged language by a lower court or an authoritative state court. NAACP v. Button, supra; Ferguson v. Estelle, 718 F.2d 730 (5th Cir. 1983). Where a criminal statute is involved, the reviewing court looks to the elements of the crime, as defined and applied by the trial court, in deciding whether the challenged proscriptions are vague or overbroad. Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 (1961). However, where there has been no prior construction of the terms of a challenged statute or regulation, the Supreme Court has refused to rewrite it in order to make it conform to the Constitution, holding that such is the function of the legislating body. See, e.g., United States v. Robel, supra. Moreover, in its brief, the government has explicitly recognized that the responsibility for the revision of laws found vague or overbroad rests with the author of the legislation. See, Defendant's Memorandum, Doc. #36 at 59, n. 38.
In short, the sine qua non of any court's applying a "limiting construction" is some authoritative interpretation and example of how a challenged regulation has been applied. In this case, the record is devoid of such general guidance.
The Court can only look to the arguments and exhibits produced in this case. From these, we receive the unmistakable and disquieting impression that the government seeks to justify investigating applicants for employment with international organizations on the basis of political speech and other instances of protected conduct both with respect to Hinton and in general.
The foregoing analysis should also serve as a complete response to the government's contention that the Court should sever those parts of the Order found to be unconstitutional. There is simply nothing left that may lawfully be enforced. Although we have declined to hold that the President has absolutely no power to set any standards in connection with the employment of United States citizens by international organizations, this Executive Order is not a proper exercise of whatever power he may have in that regard. Having so concluded, it is futile to weigh the Order against the government's stated interest in retaining the loyalty clearance program. That, however, is an essential part of the analysis when a law is held to be unconstitutionally vague or overbroad.
IV. Nature of the Government's Interest
We begin this phase of the analysis by examining the government's stated interest as set forth in §  of the Preamble to Executive Order No. 10422:
" . . . it is in the interest of the United States that United States citizens who are employees of the Secretariat of the United Nations be of the highest integrity and not persons who have been, are, or are likely to be, engaged in espionage or subversive activities against the United States;".
(Quoted in Defendant's Memorandum in Support of Motion to Dismiss/Summary Judgment, Doc. #36 at 3). Conceding that this is an important interest, it would be ludicrous to conclude that the Order as it is written approaches the "precision of regulation" contemplated by the Supreme Court in situations where government regulation impinges upon First Amendment freedoms. Our exhaustive analysis of the means used to fulfill the government's stated purpose reveals that the procedures for obtaining a loyalty clearance are not narrowly drawn to reach only subversion, espionage or even lack of integrity. Instead, a wide range of activities and associations may be examined, and the resulting advisory opinion purports to pass upon the individual's "loyalty", a vague and sometimes illusory concept.
Another inherent problem is the fact that the need for an advisory opinion as to loyalty extends to all employees or prospective employees of international organizations regardless of their duty stations or the nature of their duties. In United States v. Robel, supra, the Supreme Court could find no justification for requiring that anyone employed in any defense facility be required to renounce his membership in the Communist Party. The Court concluded that while the government had a substantial and important interest in minimizing the danger of sabotage and espionage in the defense industry, it could not regulate the associations of workers in nonsensitive positions.
Here, the government made no effort to identify specific positions that might implicate significant foreign policy concerns of the United States. Instead, it seeks to justify the loyalty clearance program on the insubstantial and conclusory basis that all employees of international organizations are " de facto " representatives of the United States and have "affirmatively chosen to enmesh themselves in the delicate foreign affairs concerns of the United States". (Defendant's Memorandum in Support of Motion to Dismiss/Cross Motion for Summary Judgment, Doc.#36, at 54, 63). Just as the Supreme Court declined to allow "war powers" to "be invoked as a talismanic incantation" to support overbroad Congressional action because even that power "does not remove constitutional limitations safeguarding essential liberties", United States v. Robel, 389 U.S. at 263, 264 (citations omitted), so this Court, for the same reason, may not allow the President's power over foreign affairs to be invoked in that manner.
A closer scrutiny of the government's rationale for the loyalty clearance program, particularly as it concerns the plaintiff in this case, reveals the true nature of what the government seeks to accomplish and clearly illustrates why it is legally and constitutionally impermissible. The Ozonoff court concluded, and we agree, that the government's interest in regulating the employment of United States citizens by international organizations is more attenuated than if the individuals subject to investigation were employees of this government. In doing so, the court observed that:
The appellee is a medical doctor. He does not want to represent the United States abroad, engage in diplomacy, or practice politics. His object -- prolonging human life -- is technical and scientific, not political. His employer is an international organization, not the American government. Ozonoff at 232, 233.