University forum; University roundtable; Are loyalty probes desirable?

Our loyalty probes desirable. Well there is a question which is likely to get a heated discussion going on almost any street corner in any classroom or living room almost anywhere in these United States. The question of loyalty to America has come down from the theoretical stratosphere of late and now all Americans have witness at least through second hand media such as the radio and motion pictures and newspapers. The workings of loyalty probes in action. The recent highly publicized investigation of communism in Hollywood probably revealed more clearly than ever before for the average citizen just how the Un-American Activities Committee functions. Most of us also have heard and read much about the president's recent order providing for a loyalty check of all governmental employees reactions resulting from the nation's increased loyalty consciousness are numerous. Some call the trend itself un-American and out of keeping with American traditions of free thought and expression short of treason. Others just as sincerely declare it altogether

proper and necessary for reasons of security in a time of great international mistrust. Each of our speakers here on the university forum will offer his view to help us clarify our thinking on this important issue. The opening talks approximately 13 minutes in length each will be followed by a period of cross-questioning between the speakers and this in turn will be followed by questions from the members of our audience here in the play circle and Memorial Union on the University of Wisconsin campus. And now let's turn to our opening statements from our two speakers. First we should like to introduce Mr. Harlan Kelley a prominent Milwaukee attorney and member of the Milwaukee Republican organization. Mr. Kelley majored in political science at Columbia University and received his law degree from our own University of Wisconsin. He's a former chief counsel for the state banking commission and presently is a candidate for delegate through the Republican National Convention. Incidentally he has pledged to General MacArthur for president. Now Mr. Kelly.

Thank you. Mr Vogelman Professor Feldman. Ladies and gentleman originally this subject was titled Our loyalty probes America. Any discussion is unknown we decided that all of us being Americans that word American meant good and un-American meant evil and that we were all in favor of anything American and against anything on America. We also felt that on this question of loyalty probes we might still be good Americans and object to the loyalty prole. Now for that reason we the subject was changed so that it now reads our loyalty prolapse desirable. In March of this year President

Truman issued an executive order which concerned itself with the loyalty of federal employees and he asked the Congress then in session to pass a neighboring legislation to implement the ideas expressed in his order so that the end result could be obtained that disloyal employees in the federal service could be discharged which up to that time was believe it or not impractical under their laws as they existed at that time. There were several bills introduced in the Congress one of which was by Mr J. Parnell Thomas of New Jersey of whom undoubtedly we will hear more further

which bill was not passed by the Committee on Ways and Means and another bill which was introduced by Congressman Reese. The bill introduced by Congressman Reese was passed in the House but Congress apparently adjourned before it could even be considered in the Senate. And there was implementing legislation passed by both houses of Congress in support of President Truman's executive order concerning investigation of loyalty of federal employees. On this question of loyalty we are going to have to go further afield in our discussion here than a question then referring merely to loyalty of federal employees. And I understand we are going to discuss the question

of the work of the Congressional Committee on Un-American Activities of persons regardless of whether or not they are federal employees. Now it is probably pertinent at this time to explain as far as I believe in this discussion anyway that there is a necessity for some type of investigation. As to loyalty not only of federal employees but of all of our citizens. And in that connection I want to read from the preamble of both the executive order of President Truman and the Bill of Congressman Reese which passed the House of Representatives.

Well as each employee of the government of the United States is involved with a measure of trusteeship over the democratic processes which are of the spirit and strength of the United States and whereas it is of vital importance that persons employed in the federal service be of complete and unswerving loyalty to the United States and whereas all goal of the loyalty of the overwhelming majority of all government employees is beyond question the presence within the government service of any disloyal and subversive person constitutes a threat to our security and democratic process. And whereas maximum protection must be

afforded the United States against infiltration of disloyal persons into the ranks of its employees and equal protection from unfounded accusations of disloyalty must be afforded the loyal employees of the government. Therefore Be it enacted and follows the act which was passed by the House of Representatives. This act set up in brief a so-called loyalty review board and it's an original form. This loyalty review board was to be selected by the various departments and agencies of the federal government. But after a hearing upon the bill and due objection being made it was finally decided that this loyalty review board should be

appointed by the president of the United States by and with the advice and consent of the Senate. Under this loyalty review board were set up several regional boards responsible to the five man loyalty review board. These loyalty review boards would make investigations not only of any new. Applicant or government service but of each and every person presently employed as government employees as to their loyalty and as to their loyalty soli. The bill differed from the executive order which is at the present time been enacted into law in that the executive order required that an

investigation should be made of all federal employees. A record on whom was already had by the Federal Bureau of Investigation. The executive order did not carry any probation about any federal employee who had no previous record with the Federal Bureau of Investigation. The bill as introduced into Congress required. That all federal employees be investigated as to their loyalty but set up certain provisions that if employees had been cleared by the Federal Bureau of Investigation no further investigation was necessary. The bill provided among some other things. However certain provisions that I am imagining Professor Feldman and I

are going to reach an issue upon. It is the question of the procedure in which action would be taken against an employee and we will broaden that undoubtedly later to extend beyond just federal employees and take in all citizens of the United States who are presently being investigated in various ways by different committees of Congress. But for the moment I want to speak only of federal employees. And what rights under the so-called Bill of Rights or other statutes of our federal government. Anyone accused of disloyalty should be tried. It was argued at the hearings upon the bill by the

National Lawyers Guild. To most of us lawyers who don't belong to what is used are usually referred as the Plains branch of the profession was argued by them that any investigation of any federal employee was taking away from him his rights under the Constitution for to give the first 10 Amendments the Constitution familiarly known as the Bill of Rights. This was thrashed out rather thoroughly in committee hearing but after both sides had been considered the bill was finally enacted into law as far as the House of Representatives was concerned with the provision that the accused would be presented with all of the evidence which had been introduced against him that he would be allowed

representation by counsel. That a statement or bill of particulars of the charges filed against him would be furnished to him in writing that he would be granted a time of appeal that he would be granted an a pellet barred before home to appeal. And that while not specifically stated in the bill he would still be granted the right to appeal and have recourse to the courts of our country. It was argued on behalf of the National Lawyers Guild and by other groups in these hearings that any man accused of disloyalty should be proceeded against any manner similar to a man who is accused of a crime and that he should be granted all of the rights privileges and immunities

which we in our country of which we are proud grant to any man accused of a crime no matter how heinous its nature may be and that he could not be that judged or declared guilty of that accusation. Unless he had a right to a trial by jury that he had a right to face his accusers and that he be protected by all of the provisions of all of the statutes of our country. It was argued and I think correctly in the hearings on this legislation and while I'm speaking of just this particular bill or act of this time I think the provisions for unfair to

will be equally Fortnum to any discussion of a an investigation of un-American activities. It was argued that service as an employee of the United States government is not a matter of vested right but as a matter of high privilege. And that an employer whether it be the government or a private employer has a right to investigate the loyalty of his employee and that he has a right to fire or discharge that employees without invoking any of the laws which we have passed in this country for the protection of a criminal. And I think those same principles that were involved there will be involved in any discussion that Professor Feldman and I may have in regard to the Committee on Un-American activity.

It is a pleasure for me to be here and. I am also pleased that everybody seems to be so interested in this question and I want to assure you that if I whatever I say here I'm going to say with. A true attitude of sincerity and there are going to be many places where I'm going to disagree with Professor felt. Thank you. Thank you Mr. Harlan Kelley. Our second speaker is Professor David Feldman of the University political science department. Professor Feldman joined our faculty as a permanent member only last September but he has been here as a visiting lecturer from the University of Nebraska his alma mater twice before a couple of his courses have been broadcast over the state station and a number of our listeners may already be familiar with Professor Feldman. Incidentally he modestly admits to having just

completed a book entitled readings in American national governments will inquire about the publisher later. Most of his other writings have been in his favorite field of American Public Law. Now I'm happy to present Professor David fountain. I should like to first date and my general attitude my general point of view about freedom of opinion and freedom of discussion and freedom of thought in a democracy or philosophic point of view if you will. And then I'd like to consider the three tender points. The un-American activity I should say the Committee on Un-American Activities. I'm not so sure that what I was right with the first misstatement. Secondly the special procedures if you can dignify them by calling them procedures of the State Department which are outside the range of the president's executive order. And

thirdly I should like to discuss the executive order itself and the procedure set up by the president under oath. I think that the general attitude which I take which I gather many liberals would say was very well expressed by the Supreme Court in the Barnett case in 1943 which the court held the flag salute law required of all pupils. Whatever their private convictions about saluting a symbol of authority may be the unconstitutional and Justice Jackson said in this opinion. Speaking for the court if there is any fixed star in our constitutional constellation it is that no official high or petty can prescribe what shall be orthodox in politics nationalism religion or other matters of opinion or force citizens to confess by a word or act their faith. There is

if there are any circumstances which permit an exception they do not now occur to us. And so I should say that in general I believe that the suppression of dissidents or differing opinions is bad bad for all of us and bad for a number of reasons. First I believe that the suppression of dissident opinion is contrary to both the letter and the spirit of the Constitution. Secondly I am concerned that the suppression of dissident opinion leads to witch hunting which creates an atmosphere of fear and suspicion within which the use of critical intelligence becomes very difficult if not impossible. I confess I do not share my colleague of the afternoon equipment with which he mentioned that we are on the verge not only of a loyalty check to the two million people in the

federal service but of the royalty check of all the other people who reside in the United States. Thirdly witch hunting is bad because it always hurts innocent people because it isn't genders hysteria and in hysteria. Good people democratically minded people are hurt along with those who perhaps deserve it. In this connection I should call your attention to a statement made by the president's committee on civil rights in a monumental report published a few days ago called to secure these rights which should be I hope the book of the year. You can get it from the superintendent of documents. A very nice chap who answers his correspondence proper probably for $1. Washington 25 DC the chairman of this committee on civil rights was a distinguished radical Mr. Charles Wilson president of General Electric.

And in the course of this great study and report the committee sent public excitement about communists has gone far beyond the dictates of good judgment and calmness. A state of near hysteria now threatens to inhibit the freedom of genuine Democrats. I should add that witch hunting once you are embarked upon is inevitably utilized for purposes not avowed at the outset and not avowedly or openly pursued. History will teach us that you begin at least with the excuse of hunting communists and end up by fighting co-ops and public housing price control and control of profiteering and other things by dragging in the issue of communism. And finally I think that the suppression of opinion is bad because it fails to accomplish its purpose. The real answer to dangerous opinion it

seems to me is open discussion. I think that the legal suppression of the Communist Party would merely drive it underground where it would be much more dangerous much more difficult to control. It is better for all concerned that whatever movements of opinion or politics we have in this country that they should operate above ground. And I am glad to say that on this point I find myself in full agreement with the considered opinion of Mr J Edgar Hoover and other famous radical in the government who is opposed to making the party the Communist Party illegal for that very reason that publicizing is good for all concerned and that full disclosure is better than an underground movement. Incidentally Thomas Jefferson who was sort of a radical in the great tradition of radicalism expressed this opinion many times that the real answer to those who wish to dissolve a union for him

is to let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated. One reason is left free to combat it. Now I'd like to turn first to the president's executive order of March 21st 1947 and at this point lest my colleagues be afraid that we will not have any issues I should like to say that he is in error in suggesting that we now have a loyalty statute embodying the substance of this executive order. You know the House of Representatives passed a bill the Risperdal late last July which is substantially the same as the executive order. Congress adjourned in August. The bill was sent to the Senate. And so far as I know it's still in some Senate committee. I think the poster a million not sure but in any event it's still there it will not be a matter. Of business in the special session which began today. And I don't know when the

Senate will get around to it when it will pass but fact is that the law on this subject and the procedure on this subject is not in the bill. It's in the president's executive order which is now in force and which is now being enforced by the Civil Service Commission the FBI and the other agencies that have something to do with it. Now under this bill there are certain procedures and I take it that my colleague Mr. Kelly and I are not in disagreement on the basic problem. I do not question the right or moral right as well as the legal right of any government to discharge from its own employment or service men who are disloyal to and would be a shocking thing to me to deny either on moral or legal grounds. The propriety of a discharge under these circumstances the only issue between those who prove of this order and those who do not and the proposed legislation in the recent bill is the adequacy of the procedures set up to

safeguard witch hunting to safeguard the reputations and careers of honorable men who made the subject of rumor and gossip and hearsay and slander them. For reasons of personal recrimination and so on. Now as I read the executive order it is not provided that there shall be a full disclosure of all the facts and as I recall reading it sometime now the recent bill. It does not provide for full disclosure and I'm afraid that on this point I shall have to ask Mr Kelly for an exact citation of chapter and verse I don't think it's there. In fact the real joke or the dangerous provision of the executive order of last March is this president's order reads as follows. Part 2 Section 1 v. the charges shall be stated as specifically and completely adds in the discretion of the employing department or agency. Security considerations were met which means

that each department is the judge. How much disclosure disclosure there shall be of the case against a particular employee. Now Mr. Kelly is a lawyer and he knows full well that in the criminal law you cannot make a defense unless you know what the charges are against you. You can't answer charges of which you are not aware. You can't answer witnesses that you don't see and you can't examine the evidence against you if you don't see the evidence. And there is nothing in the executive order which requires the government to make a full disclosure of either of the charges or the evidence or which provides for the defendant defendant's right to make a cross-examination of witnesses which I which I should assume is absolutely essential for. Getting at the justice if there are other objections to the executive order. Aside from the absence of the full state charges the accused has only the right to present

evidence he has no right to be confronted with the effort. He has no right of trial before an impartial jury or an impartial body. The review board which Mr. Kelly properly mentioned is at the same time the investigator the prosecutor and the judge. And there is no there is no separation of these functions among the review board. Furthermore the accused is presumed to be guilty at the start of the hearing. And the burden of proof is upon him to prove his innocence once the machinery for establishing guilt has been set in motion which is contrary to the obvious assumptions of our criminal. Code. Finally the executive order sets up the extremely dangerous principle of guilt by association. Our. Tradition our law has always provided for personal guilt never guilt by association. Yet in the executive order as well as in the Risperdal the last paragraph of the six paragraphs dealing with offenses sets up the possibility of conviction on the

basis of association with a subversive organisation. So far as the State Department is concerned which is not covered by the executive order and the free Defense Department are not covered either nor the Atomic Energy Commission. The state department's procedures entirely back. For no charges were made. No hearing was held and no opportunity was given to the defendant to state a case. Now I should object on similar grounds to the activities of Jay Parnell Thomas's Committee. I would be the last to deny the significance or the importance of investigations by congressional committees. I take a very tolerant view. Of these committees mission to which congressmen must have their fun. But I do object and I raise an illegal question here but a moral question. The tactics used to the denial of the right of defense to smear techniques to the absence of any right cross-examination

or any right to make a serious defense of charges. And I object also to pinning people down on crucial questions involving their livelihood their reputation and so on putting them down to a simple yes or no answer. Did you or didn't you beat your wife. These are I think the real objections or objections of procedural objections are added to also have further objections. Jay Parnell Thomas is a man. But that's another matter that one may very well consider when you have in a country a Lord High Inquisitor who this man is. And by virtue of what training by virtue of what background by virtue of what superior insight he has set up as the LORD HIGH INQUISITOR I have not impressed even with Mr. Parnell's background or personality or insight or education or method. And one may say this of a great many people who presume to investigate other people. I had intended though I didn't think my time would run so fast to say something about the closing act of the recent comedy

in which Jay Parnell Thomas thought he would stun the country by disclosing that there was some connection between Hollywood. And the disclosure of atomic bomb secrets. An extraordinary story that last bit of testimony the connection between the atomic bomb and how it came by a knowing even new CVS full diva from the front in the air for once and obtained and by this very remote process. Association five or six steps removed from any important point it was discovered that Hollywood had something to do with me. Of course there was nothing to it. It was an example of the smear technique we're all frightened about the atomic bomb and Hollywood radicals must have something to do with it. Perhaps we can go back into this a little later.