From New International, Vol.21 No.2, Summer 1955, pp.76-81.
Marked up up by Einde O’Callaghan for ETOL.
On June 6, the Supreme court by a vote of 7-2 determined that Dr. John Punnett Peters, Professor of Medicine at Yale University, had been unjustifiably fired by the government from his position as part-time Public Health Service consultant. The Court ordered the Civil Service Commission to expunge from its records the finding of the now defunct Loyalty Review Board that there was a “reasonable doubt” of Peters’ loyalty.
Dr. Peters had been twice tried and twice cleared by security boards of his governmental agency. These hearings were brought on by charges of disloyalty including membership in the Communist Party made by unnamed informers whose identities were never disclosed to the accused. A considerable portion of the “derogatory information” was not even given under oath. Peters’ first hearing was early in 1949, with Truman’s Executive Order 9835 already in effect for two years. This Executive Order directed all departments and agencies of the Executive Branch to form one or more loyalty boards which would hear loyalty cases and make recommendations for dismissal or clearance. Truman’s Order also provided for the organization of a central Loyalty Review Board in the Civil Service Commission which would, among other functions, review cases of individuals recommended for dismissal by departmental or agency loyalty boards.
In May, 1951, Truman’s Executive Order was amended, making even more nebulous the basis for dismissal: from finding “reasonable grounds” of disloyalty the revised criteria became “reasonable doubt” of an employee’s loyalty. Following this revision, the central Loyalty Review Board ordered the loyalty board of the Federal Security Agency to hold a second hearing. This second hearing was held and Dr. Peters, again, was absolved of any “reasonable doubt” of loyalty.
Obviously dissatisfied, the Loyalty Review Board decided to hold its own hearing and in May, 1953, a board panel met in New Haven confronting Peters with accusations but no accusers, with unsworn charges and allegations. Peters’ counsel was denied the right to learn the accusers’ identities and question them. Peters denied all the allegations under oath and a number of prominent individuals testified to his unquestionable loyalty. The evidence which Peters provided his own agency’s review board which had cleared him twice was produced at this third hearing. But as could have been expected of it, the Loyalty Review Board found that on the basis “of all the evidence, there is a reasonable doubt as to Dr. Peters loyalty to the Government of the United States.” Peters was fired from his part-time job. His job, incidentally, consisted of a four to ten day visit each year to Washington where he discussed Federal grants to medical research institutions with the Surgeon General or members of his staff. It was not even disputed that Peters’ job was not of a confidential nature and offered no access to classified information. Peters attempted to get a re-hearing and, failing this, he immediately went to the courts.
As the Peters case neared the Supreme Court hearing stage it achieved national prominence for it involved the constitutionality of some of the ugliest aspects of the security-witchhunt program. Peters claimed that because he was denied the right to face his accusers or even to learn who they were and precisely what they alleged, he had been deprived of “liberty and property without due process of law” clearly in violation of the Fifth Amendment. Had the Supreme Court ruled in Peters favor on this constitutional ground the security-witchhunt would have been dealt a mighty legal blow. The so-called security program, vicious to begin with under Truman, has matured under Eisenhower into a truly scabrous object continuously galvanized by the venom of anonymous bigots, stool-pigeons, psychopaths, professional informers, character assassins, all protected by the government woven cloak of secrecy and anonymity. The interest of “national security” is made largely dependent on anonymous informers and the rights of the accused have been largely supplanted by the government’s self-assumed right to protect its sources of unevaluated and uncontested testimony.
By reaching the Supreme Court the Peters case posed the problem directly before the nation and to the courts. The government was unquestionably alarmed, and even divided on how to handle the issue. It was a month late in filing its brief, which, when finally submitted, was signed by Attorney General Brownell rather than by Simon Soboleff, the Solicitor General, who invariably signs such documents, thus indicating publicly for the first time a division of opinion within the Department of Justice.
Both the Peters Counsel and the government fought for a decision on the fundamental issues. The government brief denied the right of a fired federal employee to enjoy the privileges of judicial review and stated that the government security program had to rely largely on “undercover agents, paid informers and casual informers” who “must be guaranteed anonymity.”
The government brief further made clear its position in the following passage from its brief:
“Evidence which would be rejected under established legal doctrine in a criminal proceeding could well be the compelling reason for the dismissal of an employee on loyalty grounds.”
IN THE LIGHT of the fundamental issues posed by Peters and the government the actual Supreme Court decision came as a whopping anti-climax. It completely evaded the all-important constitutional issue. Instead, it ruled in Peters favor, but on technical grounds that his counsel and the government had properly shied away from, and which, apparently, took both sides by surprise. The court decided that the Loyalty Review Board had no right to take it upon itself to “post-audit” the Peters case after he had been cleared by his own agency’s loyalty board. The central Loyalty Review Board could review cases of those found disloyal but its self-made “Regulation 14” assuming the right to review all cases of local boards was, in the opinion of the court, in contradiction with the literal meaning of the Executive Order which established it.
The Supreme Court did not ignore the question of constitutionality. On the contrary it acknowledged the constitutional problem but deliberately refused to vote on it on the ground that “this court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it.” As the court found a procedural question on which to base its decision it felt relieved of the responsibility to vote on the real issue.
That the constitutional question weighed heavily on the minds – and backbones – of the Supreme Court justices was made quite clear in the following paragraph from the majority decision written by Chief Justice Warren:
“This [constitutional] issue, if reached by the court, would obviously present serious and far-reaching problems in reconciling fundamental constitutional problems with the procedures used to determine the loyalty of government personnel.”
This amazing passage can only be interpreted as an admission of the legal incompatibility of the security system with the constitution. Otherwise what would be the need for “reconciling fundamental constitutional problems with the procedures” of the loyalty program? Reconciliations are not as a rule effected among compatible forces, particularly when fundamental issues are at stake.
Two of the seven majority votes were cast by Justices Douglas and Black, each of whom wrote his own concurring opinion which hit at the heart of the constitutional problem and in no uncertain terms criticized the rest of the majority for failure to meet the issues squarely. Justice Douglas was of the opinion that the Loyalty Review Board did exercise technically proper jurisdiction over Dr. Peters and its subordinate agency board. But he was even more firmly of the opinion that the Supreme Court majority had failed in its responsibility “to reach the constitutional issue.” Douglas wrote:
The question of construction of the Executive Order was so well settled that neither the Government nor Dr. Peters suggested the absence of authority in the review board to take jurisdiction of this case on its own motion. I agree that it had such authority. It, therefore, becomes necessary for me to reach the constitutional issue.
Dr. Peters was condemned by faceless informers, some of whom were not known even to the board that condemned him. Some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr. Peters. So far as we or the board know, they may be psychopaths or venal people, like Titus Oates, who revel in being informers. They may bear old grudges. Under cross-examination their stories might disappear like bubbles. Their whispered confidences might turn out to be yarns conceived by twisted minds or by people who, though sincere, have poor faculties of observation and memory.
Confrontation and cross-examination under oath are essential, if the American ideal of due process is to remain a vital force in our public life. We deal here with the reputation of men and their right to work – things more precious than property itself. We have here a system where government with all its power and authority condemns a man to a suspect class and the outer darkness, without the rudiments of a fair trial. The practice of using faceless informers has apparently spread through a vast domain. It is used not only to get rid of employees in the Government, but also employees who work for private firms having contracts with the Government.
Justice Hugo Black also wrote a separate concurring opinion, one which was even more to the point than Douglas’. Unlike Douglas, he was of the opinion that the majority was correct to rule that the Loyalty Review Board exceeded its prerogatives in holding a hearing for Peters after he had been cleared by his agency loyalty board. At the same time Black makes the point very effectively that there is no binding principle demanding that questions of procedure be decided first and constitutional problems avoided whenever possible. Black writes on this point: “... this generally accepted practice should not be treated as though it were an inflexible rule to be inexorably followed under all circumstances.” Black then proceeds to denounce the security system itself:
But I wish it distinctly understood that I have grave doubt as to whether the Presidential Order has been authorized by any act of Congress. That order and others associated with it embody a broad, far-reaching espionage program over Government employees. These orders look more like legislation to me than properly authorized regulations to carry out a clear and explicit command of Congress. I also doubt that the Congress could delegate power to do what the President has attempted to do in the Executive Order under consideration here. And of course the Constitution does not confer law-making power on the President.
The High Court’s ruling on the Peters’ case is patently a politically motivated decision. It did not want to vote on the constitutional issue so clearly required by the case before it because it feared the political consequences. It could not make any intelligible “fundamental reconciliation” between the constitution and the security system and it was obviously determined not to take too many bristles out of the witchhunts widesweeping broom. It preferred to compromise by evading the important question and ruling against the government on a relatively minor issue.
THE SUPREME COURT’S DECISION cannot be evalulated in any abstract fashion. It can only be viewed in the context of the real issues involved and the background of the case. Judged this way, the Court’s evasion was a setback for democracy. Insofar as this particular ruling is concerned the government still has the green light to fly the witchhunt’s airlanes. For the ruling in no way interferes with the government’s practice of firing employees on the basis of secret evidence given by secret witnesses.
In addition, the President’s Loyalty Review Board was a special feature of Truman’s security program which has been dispensed with by Eisenhower. Thus, as a precedent for future cases the court’s decision does not have . much practical meaning.
Though the court decision viewed in context was a setback for democracy, in its narrower, immediate sense it was also a setback for the government. The self-assumed right of the Loyalty Review Board to audit cases of cleared government personnel on its own initiative, a form of double jeopardy, was one of the more pernicious details of the government program. The court decision not only denies this practice to any future central loyalty board but it now leaves open to review other cases similar to Peters where the Loyalty Review Board had reversed the decision of agency loyalty boards. One such case is that of John Stewart Service who was fired from the State Department by Dean Acheson. Service had been cleared six times by his own loyalty board only to have these decisions reversed by the Loyalty Review Board. Service has already presented a petition to a Federal District Court asking for reinstatement on the basis of the court decision and the Justice Department has already conceded that the Peters decision has knocked out one half of its case against reinstating Service.
THE COURT’S DECISION, and its language, on the Peters case was more or less in line with a generally more relaxed mood in the nation. In recent months there have been any number of signs that the political temper of the nation has been somewhat annealed.
Part cause and part effect of this changing mood are several recent revisions in the security program. Attorney General Brownell proposed a number of “improvements” in protecting the rights of accused federal employees, which the President accepted. Any analysis of these “improvements” shows that they are primarily verbal, without any substantial change to protect the rights of accused government employees. But the government obviously felt the need to placate a more vocalized dissatisfaction with the security program. A second concession is the decision of the Subversive Activities Control Board – of which Harry Cain is a member – that organizations on the Attorneys General List of alleged subversive organizations which are defunct do not fall within the restrictions of the Internal Security Act.
Although there are signs of growing dissatisfaction with the excesses of the security system and evidence that the courts and the government prepared to remove some of its brittleness, it would be pure self-deception to read into this any deep, wide and popular rebellion against the witchhunt. The post-war reaction reached its peak when Senator McCarthy seemed omnipotent in all his madness. McCarthy’s demise, however, merely accelerated a process that did not make brave men out of timid souls and liberals out of reactionaries. What it did was to strengthen the feeling, less muted now, that it was time to call a halt to some of the vigilante madness that was taking a firm hold on the nation. The reactionary McCarthyite wave has receded to a more natural water level – submerging McCarthy in the process. The incidents which we have mentioned – the recent Supreme Court decisions, the Nathan case, the changes in security procedures, etc. – are reflections of a changing mood – which we welcome – but they are not symptomatic, unfortunately, of a political rebellion against the reaction itself.
This relaxation has followed the newest look to American foreign policy. With the accent now on achieving a “modus vivendi” with the Kremlin it is not possible for the administration to permit the security-witchhunt system to operate without some checks and balances.
But the limits are on both sides of the witchhunt. Just as the administration and the Democratic Party can no longer tolerate a witchhunt whose vigilante character knows no bounds, neither can they suffer any wholesale dismantling of the whole system of repression and curtailment of civil liberties in the coming period. The cold war has been relaxed but it has not been settled. Although some accommodations may be made between Washington and Moscow there can be no final, amicable resolution of the differences between these two mutually exclusive centers of world power. And with the continuation of the cold war we cannot look to either bourgeois party to become the inspirational source or the focal point of a wide, popular counter movement to the witchhunt system.
One of the pledges of the Democratic Party during its Congressional campaign was to carry on a thorough investigation of the security system and to expose the administration’s “numbers racket” on security “risks.” Once it won control of Congress, however, the Democratic Party was conspicuous by its failure to meet this commitment. It carried on but a few hearings supervised by a reactionary Southern senator. In a blast by the ADA, this Democratic controlled committee was sharply attacked:
Instead of an all-out investigation, the committee staff is riddled with defenders of the existing system such as a former paid consultant of Scott McCleod’s notorious operation in the State Dep’t ...
The Democratic Party, itself, is too committed to the witchhunt to undertake any serious investigation of it. And it feared the political consequences in the elections of any large-scale exposed of the administration’s security program. Instead it proposed to Congress a bipartisan committee to investigate the operation and procedures of the security program – a proposal which the administration accepted, with some misgivings. That the committee, nearly half of whose members will be Republicans, and which will have some of its members appointed by vice-president Nixon, will not make any proposals for a fundamental revision of the security program is a foregone conclusion. But that it will attempt to modify the program somewhat is no less indicated.
Thus the move for a bi-partisan committee is unquestionably a product of the generally felt need to relax, but the manner in which it was born and it’s likely members serves as a reminder of the limited nature of any such reform movement organized today by the leaders of American bourgeois politics.
Last updated on 7.10.2005