Your rights are on trial; Right to face accusers

The following tape recorded program is distributed by the National Association of educational broadcasters. Let me say something if I may about the Peters case because it reflects better perhaps than any other single case. The notion what I think is the hideously mistaken notion that national security is promoted somehow or other by overriding and discarding the traditional rights of American citizens. That was the actual voice of Alan Barth author of the loyalty of free men. Mr. Barth will appear now on the case of Dr. Peters loyalty. The ninth program in this series of authoritative discussions and authentic dramatizations of High Court cases in which your writings are on trial. Your rights are on trial. Is produced by the University of Minnesota radio station you will win. Under a grant from the Educational Television and Radio Center in

cooperation with the National Association of educational broadcasters and the University of Minnesota Law School. On today's true authenticated story the case of Dr. Peters loyalty. You will hear Dr. Peters attorneys and nationally known authority. But first here is one of the consultant commentators for your rights are on trial professor of law at Columbia University. Mr. Amman read Paulson our story today may be the most frustrating and incomplete in this series of programs. Perhaps this also makes it the most meaningful and demanding a situation such as the one you will hear about might still occur although the case went to the Supreme Court. The conflict over the fundamental right involved has not been settled by the highest court in our land. The right to which I refer is the right of confrontation. It is a part of the Sixth Amendment of the Bill of Rights in the Constitution of the United States. It reads the accused shall enjoy the right to be informed of the nature and

cause of the accusation and to be confronted with the witnesses against him. It seemed as if nothing could be simpler. After all how can you answer a charge if you don't know what it is or who has made it. I think we can all agree the Sixth Amendment right of confrontation is fundamental and fair enough but what happens when this simple constitutional guarantee runs up against this kind of statement as set forth in December of 1047 by Seth Richardson then chairman of the loyalty review board for the civil service of the United States. The FBI has many agents operating secretly for the purpose of ferreting out facts to aid the president. The disclosure of their identity of circumstances indicative of identity would not only completely destroy their usefulness but in many cases subject them to serious physical danger. Other confidential informants are members of the public who will give information to the FBI only under a strict seal of confidence. Their reasons being the obvious ones of the

ordinary citizen who refuses to get involved in a public controversy as a result. The FBI rigorously observes its promises of confidence and will not disclose to anyone these evidential sources. At the outset we should note that no one denies that the right to confront one's accusers is not an important right. Indeed a fundamental one the right is limited only because of what those who are responsible for national security feel is necessary. That is protecting certain informants from the gaze of public safety. To put it most dramatically they say we should not unmask a spy who has spent years working his way into the confidence of the Communist higher command just to fire a disloyal file clerk. We have a right to face our accusers. On the other hand the FBI and our national security program feel that they have an absolute right to keep accusers and even accusations confidential and secret.

What happens when a supposedly absolute right runs slam bang head on into a supposedly absolute need. This is our story today. John Bennett Peters was a physician and professor of medicine at Yale University who served occasionally as a consultant to the surgeon general of the United States Public Health Service has stated that Dr. Peters was an eminent medical scientist whose service throughout the period of such employment was of value to the United States. In January 1949 Dr. Peters was questioned about his loyalty to the United States. An inquiry was held and the loyalty board notified him that it had no evidence for holding him disloyal. In December 1951 the board of inquiry notified Dr Peters that a secret and anonymous informant had said he had been a member of the Communist Party. Dr Peters denied this under oath. Produce outstanding witnesses and affidavits and again was cleared in April of 1953. Dr. Peters was notified for the third time that as royalty

was under investigation. I can't understand it and I can't explain it. Explanations would make you feel any better Dr. Peters. I only work for the government. Perhaps one week out of the year and then it's only in that unit 5 usery capacity. Well the theory is that every position is potentially sensitive so I conclude twice that. I don't even know what subversion and disloyalty and all this means I know I've had an affidavit says to my loyalty from a from a college president and a federal judge. Professional people the most respected citizens in the community. I put my record and activities before them I've answered every question under oath. Now what else do they want. Now you're a lawyer you must have some answer. Answer. How can I even prepare a case. I don't know who's accused you. I don't even know what you've been accused of doubt as to

loyalty. How do I prepare a case against the haziest of charges with the most anonymous of accusers. Yes yes I'm a lawyer but a lawyer has to know what he's fighting. He has to ask questions. He has to answer a black and white accusation in a flesh and blood accuser or he's well he's playing a baseball game without a ball and without a bat. I'm a lawyer but where are the processes of law here. I'm sorry Dr. Peters. I want to help you. You know that but I've never known a more frustrating situation in my life. I know I know. It's like a nightmare. They're all my old friends don't drop around anymore. Lifelong associates feel something mysterious and fearful about me may rub off on them. And they're your voices have a different toll.

You know it it it's not even ostracism or or disease or guilt. It's just a terrible all consuming on your listeners that's eating away my reputation and my life. And why one of my accused who was my accuser three times now what are they looking for. What do they want from me. What was the result of Dr. Peters third loyalty hearing in four years from the petitioner's brief to the Supreme Court. On this third hearing the board made its decision that there was a reasonable doubt as to petitioners loyalty to the government of the United States. It notified petitioners that he was barred from government service for three years and the Civil

Service Commission issued an order to that effect acting on the board's recommendation. The surgeon general discharge Dr. Peters on June 12th 1953. Peter's counsel was not permitted to file a motion for hearing before the full Royalty Board of the Civil Service Commission. Thus all administrative remedies exhausted petitioner instituted the present action. The present action in this case was seeking review from the United States Supreme Court. This may seem like an extreme step for a very minor matter. Dr. Peters did not need probably did not want his advisory position back with the Public Health Service. He did want the loyalty board's conclusion stricken from the record however and so he took his case to the United States Supreme Court in understanding Dr Peters action one might consider the words of William Shakespeare which he wrote for an ousted officer in a fellow with a

reputation. I have lost my reputation. I have lost the O'Moore part of my life and what remains is best. Before we present the decision of the United States Supreme Court in this case let us not overlook the government's position here. Attorney General Herbert Brownell Jr. and his assistants in their brief in the Peters cases dated in so far as petitioner has been injured by the stigma to his reputation. We see no basis for holding that that stigma is a thing apart which gives rise to constitutional rights not applicable to other dismissals from the government servants. Granted that the stain of a dismissal on loyalty grounds is a deep one which has become a badge of infamy. This fact neither invalidates petitioners dismissal without a quasar judicial hearing nor gives him a right to redress. Recent decisions of this court and other

fields reinforce this conclusion of particular importance here. The court further hild that executive action could validly be based on confidential information. It is crucial to remember that due process is a variable concept to be measured in the light of all surrounding circumstances. Here the measuring circumstances consist of the balance to be struck between the protection of the individual and the demands of national security. And it was the informed judgment of the president and those charged by him with administering the loyalty program that in many instances disclosure of the identity of informants disclosure of investigative techniques and disclosure of sources of information would be strongly against the public interest. That was part of the government's brief in the Supreme Court case of Peters vs. hobby.

Here now is the majority opinion in the case of Peters vs. hobby as written by the chief justice of the United States the Honorable Earl Warren on the constitutional level petitioner complains chiefly of the denial of any opportunity to confront and cross-examine his secret accusers. He alleges that his removal and diba and deprived him of liberty and property without due process of law and that they branded him as a person disloyal to his country arbitrarily without basis in fact and without a fair procedure and hearing. Finally petitioner alleges that his remove all Andy Balmond solely on the basis of his political opinions violated his right to freedom of speech. We find however that the case can be decided without reaching the constitutional issues from a very early date. This court has declined to anticipate a question of constitutional law in advance of the necessity of deciding it. In petitioner's case the loyalty review board to failed to respect its

limitations. Petitioner had been twice cleared by the agency board and hence did not fall in the category of persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency. Moreover the petitioners case was never referred to the loyalty review board by petitioner or the agency. Instead the loyalty review board acting solely on its own motion undertook to hold a hearing and reach its own decision on both grounds the board's action was plainly beyond its jurisdiction. That was part of Chief Justice Earl Warren's opinion as written for the majority. In the Peters case it meant that all charges of disloyalty against Dr. John Pandit Peters were dropped and that he was to be reinstated in his federal advisory position for our purpose of evaluating our constitutional rights in a certain sense the Peters case is hardly satisfactory. Only William O Douglass of the Supreme

Court justices in the Peters case wrote an opinion in which the constitutional issues received priority. The case and particularly the following opinion are most satisfactory however for pointing the way the direction in which this challenging issue might go. Here is part of the important concurring opinion as written in the Peters case by Mr Justice Douglas. Dr. Peters was condemned by faceless informers some of whom were not known even to the poor of that condemned yet some of these informers were not even under oath. None of them had to submit to cross-examination. None had to face Dr Peters 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. 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. It has touched countless hundreds of men and women and ruined many. It is an un-American practice which we should condemn. That was a part of a concurring opinion written by Mr Justice Douglas in the Peters case although virtually no one supported the view that Dr John P. Peters should be viewed as a security risk. After the Supreme Court decision the reactions to the High Court opinion were varied. For example Joseph L. Ron Jr. Washington counsel for the Congress of Industrial Organizations who submitted a brief in the Peters case. I felt that the Supreme Court evaded the

real issue as recorded in his law office in Washington D.C.. Here is one of the see Io's attorneys Mr. Joseph Romm it seems to me the Supreme Court for reasons best known to Webb ducked the big constitutional issues. The big issue there was does a man have a right to confront his accusers before being discharged from government employment. Supreme Court didn't decide that question instead they said that this doctor Peters had been wrong in the sense of the review board to consider his case and they didn't have any right to consider it I wish the Supreme Court had decided the big question in that case that was Mr. Joseph Elrod Jr. an attorney for the CIO who submitted a brief on Dr. Peters behalf. How do Dr. Peters own attorneys view the results of his case. As recorded in the Law Offices of Arnold Fortas and Porter in Washington D.C. Here are two of Dr. Peters attorney Holly Porter and William

Dee Rogers. And you know I was interviewed by the producer of the series Philip Galba first Mr. Rogers. John Peters was the senior professor of medicine at Yale University and a part time consultant with the Department of Health. He had worked for the government in that capacity for several years. However in 1951 he received a communication from the department saying that they had information that he was a member of the Communist Party. He denied that under a written statement several times. Finally the Department of Health decided to hold a hearing private of course on the allegation it submitted no evidence whatsoever to Dr. Peters in support of the charge. The crux of the case. When it got into the courts arose from the fact that Dr Peters had not been confronted with the accusers and as a matter of fact the board would turn his case

did not have any idea who that anonymous accuser was. It was around this central fact that the case revolved in the courts. What the writers do we have a right to face our accusers with this result at all or is it still unresolved. The question has never been answered with respect to federal government loyalty procedures and Peter's case came to the court. It did not enter a decision on the crucial issue of the right to face accusers but rather the side of the case on a technicality. Well this seems like kind of a strange issue to take him to court Mr Rogers I mean in an ordinary criminal cases the criminal titled to know what is accusation and isn't his accusers are. You need to say that in a lot of the case the individual has less rights than a person in ordinary criminal prosecution. What about that Mr Porter. There is absolutely no doubt that a person indicted

for a crime has more procedural rights more procedural safeguards than a government employee involved in a loyalty proceeding under the executive order. During the World War Two the FBI had charge of our internal security. Now there we were threatened with a shooting war in which there were the prospects of sabotage espionage and the FBI did a simply superb job and using matters of police detection methods of protection. Ingenious techniques where there was not a single major episode of sabotage and this country during World War 2 and we made the argument in the Peters case that these agents should go back to not those of direct protection rather than poking their fingers into people's opinions beliefs attitudes and state of mind. I recorded especially for your rights are on trial. You have just heard Paul

Porter and William D Rodgers two of the attorneys for Dr. Peters in this case. Another organization that submitted a brief on Dr. Peters behalf was the American Civil Liberties Union. Why. As recorded in his office in New York City. Here is the executive director of the American Civil Liberties Union Mr. Patrick Murphy Maylon one of the rough and ready ways which democracy has devised over the course of the centuries for learning as nearly as it can what is true in a given dispute is to have the two parties to the dispute come together in each other's presence and battle it out by argument and cross-questioning. This was the question. The basic question an issue. In the Peters case of which you have heard in the preceding portion of this program.

That was Patrick Murphy Maylon executive director of the American Civil Liberties Union as recorded in New York City. Still another group that saw fit to enter the Peters case on Dr. Peters behalf was the engineers and scientists of America. The brief for this group was prepared by attorneys Leo Lightner and Joseph a Fanelli Jr. as recorded especially for this program in Washington D.C.. Here are attorneys Lightner and finale and we had no knowledge. Dr. Peters personally and it might be said that we had no direct interest in the outcome of his case except insofar as it might resolve these apparent conflicts of concepts. The argument has been made in the security cases that these are not criminal in nature and that the criminal procedures do not apply. The fact remains. But if a person is charged with some type of offense and he is unable to put his finger on it as one of

our groups once described it. If he asked years the soul searching approach of going back to his babyhood to try to find everything that he did he may still not come up with something that is considered significant in a secret closed file and he doesn't have access to. It's not important whether or not he ultimately is found to be a security risk or not the important thing is whether he has obtained a fair hearing or not the case with Dr Peter is rather an unusual one. Do you think this could happen to anyone Mr finale. To quote from the brief of the engineers and scientists of America in this case I think sums it up. It becomes more and more true that no one is so highly placed in America. For example Mr X was so lonely placed in obscurity for example Mrs. Morris as to be certain that his reputation will not be ruined and his livelihood prejudiced tomorrow by a legislative hearing or other

action lacking in due process. The last voice you heard was Joseph NLE the first leader Lightner. Together these two Washington lawyers prepared the brief for the engineers and scientists of America who backed Dr Peters position in the case under review and an official view of this case was presented by journalist Alan Bard. Mr. Barth has been a reporter and editorial writer in Washington for over 20 years and is the author of the loyalty of free men and government by investigation as recorded in Washington D.C. Alan Barr. Let me say something if I may about the Peters case because it reflects better perhaps than any other single case. The notion what I think is the hideously mistaken notion. That national security is promoted somehow or other by overriding and discarding the traditional rights of American citizens. Dr Peters was

ousted from a job which he hadn't sought and which he rendered as a public service on the basis of anonymous accusations and without specific charges. Now now I think that the security of the United States is not protected by that kind of procedure. I think that when a bird undertakes to make a judgment as to the loyalty out of any American of any individual it needs to know at the very least the source of the accusations on which its judgment is to be based. If it doesn't know. The identity of accusers then it has no means whatever of judging whether the accuser is a paragon of veracity or a name. Or for that matter the village idiot. It has no means of weighing the essential element of the case. That is whether the

information against the defendant is reliable information. If it doesn't know that it is engaged in something which ought to be called guesswork and it might better make its decisions on a basis of lottery or if you like of Russian roulette because it is not engaged in anything. Which can be called rational procedure. Now I'm talking about this not in terms of its terrible impact on the individual involved and Dr. Peters for example but in terms of its terrible impact upon the national security which it is supposed to protect. So if you will of what an instrument for mischief this reliance on accusations from anonymous sources put into the hands of mischief makers of a communist if you like or of persons who have some particular grudge or malice which they wish to discharge.

Security national security is much too important to be left to this kind of guesswork. And if any malicious person or enemy of the United States can bring about the dismissal of able loyal devoted government services servants simply by whispering accusations about them anonymously then they have a weapon in their hands which is infinitely dangerous to the security of the country. That was Alan Barth Washington journalist and author of the loyalty of free men and government by investigation. And now once again professor of law a man right Ponson. Dr. Peters died not long after the Supreme Court's decision. But the problem raised by his federal employment remains. You have heard strong statements both from those who would deny the right to know one's accusers when dismissal from government employment is an issue. And from those who would preserve the right here

as fully as in a criminal case. These strong statements on both sides suggest that perhaps the soundest and wisest course is a middle way. Perhaps we could suggest that as a general matter federal employees who are about to be discharged for loyalty reasons. Want to know who their accusers are. But if the police and security agencies assert in a given case a special need for secrecy their judgment on this question could be checked by a non police body. You have just heard the case of Dr Peters loyalty program in the series. Your rights are run riot produced by station KUNM in cooperation with the University of Minnesota Law School under a grant from the Educational Television and Radio Center. This is distributed

by the National Association of educational broadcasters. What is meant by the right to counsel. This question will be answered next week on the case of the missing lawyer. And the other in this series of authoritative discussions on authentic dramatizations of High Court cases in which all rights are on trial. This is the end of a radio network.