Joint Anti-Fascist Refugee Committee v. McGrath/Concurrence Douglas
Mr. Justice DOUGLAS, concurring.

While I join in the opinion of Mr. Justice BURTON, which would dispose of the cases on procedural grounds, the Court has decided them on the Constitution. And so I turn to that aspect of the cases.

The resolution of the constitutional question presents one of the gravest issues of this generation. There is no doubt in my mind of the need for the Chief Executive and the Congress to take strong measures against any Fifth Column worming its way into government-a Fifth Column that has access to vital information and the purpose to paralyze and confuse. The problems of security are real. So are the problems of freedom. The paramount issue of the age is to reconcile the two.

In days of great tension when feelings run high, it is a temptation to take shortcuts by borrowing from the totalitarian techniques of our opponents. But when we do, we set in motion a subversive influence of our own design that destroys us from within. The present cases, together with No. 49, Bailey v. Richardson, 341 U.S. 918, 71 S.Ct. 669, affirmed today by an equally divided Court, are simple illustrations of that trend.

I disagree with Mr. Justice JACKSON that an organization whether it be these petitioners, the American Red Cross, the Catholic Church, the Masonic Order, or the Boy Scouts-has no standing to object to being labeled 'subversive' in these ex parte proceedings. The opinion of Mr. Justice FRANKFURTER disposes of that argument. This is not an instance of name calling by public officials. This is a determination of status-a proceeding to ascertain whether the organization is or is not 'subversive.' This determination has consequences that are serious to the condemned organizations. Those consequences flow in part, of course, from public opinion. But they also flow from actions of regulatory agencies that are moving in the wake of the Attorney General's determination to penalize or police these organizations.  An organization branded as 'subversive' by the Attorney General is maimed and crippled. The injury is real, immediate, and incalculable.

The requirements for fair trials under our system of government need no elaboration. A party is entitled to know the charge against him; he is also entitled to notice and opportunity to be heard. Those principles were, in my opinion, violated here.

The charge that these organizations are 'subversive' could be clearly defined. But how can anyone in the context of the Executive Order say what it means? It apparently does not necessarily mean 'totalitarian,' 'facist' or 'communist' because they are separately listed. Does it mean an organization with socialist ideas? There are some who lump Socialists and Communists together. Does it mean an organization that thinks the lot of some peasants has been improved under Soviet auspices? Does it include an organization that is against the action of the United Nations in Korea? Does it embrace a group which on some issues of international policy aligns itself with the Soviet viewpoint? Does it mean a group which has unwittingly become the tool for Soviet propaganda? Does it mean one into whose membership some Communists have infiltrated? Or does it describe only an organization which under the guise of honorable activities serves as a front for Communist activities?

No one can tell from the Executive Order what meaning is intended. No one can tell from the records of the cases which one the Attorney General applied. The charge is flexible; it will mean one thing to one officer, another to someone else. It will be given meaning according to the predilections of the prosecutor; 'subversive' to some will be synonymous with 'radical'; 'subversive' to others will be synonymous with 'communist.' It can be expanded to include those who depart from the orthodox party line-to those whose words and actions 'though completely loyal) do not conform to the orthodox view on foreign or domestic policy. These flexible standards, which vary with the mood or political philosophy of the prosecutor, are weapons which can be made as sharp or as blunt as the occasion requires. Since they are subject to grave abuse, they have no place in our system of law. When we employ them, we plant within our body politic the virus of the totalitarian ideology which we oppose.

It is not enough to know that the men applying the standard are honorable and devoted men. This is a government of laws not of men. The powers being used are the powers of government over the reputations and fortunes of citizens. In situations far less severe or important than these a party is told the nature of the charge against him. Thus when a defendant is summoned before a federal court to answer to a claim for damages or to a demand for an injunction against him, there must be a 'plain statement of the claim showing that the pleader is entitled to relief.'  If that is necessary for even the most minor claim asserted against a defendant, we should require no less when it comes to determinations that may well destroy the group against whom the charge of being 'subversive' is directed.  When the Government becomes the moving party and levels its great powers against the citizen, it should be held to the same standards of fair dealing as we prescribe for other legal contests. To let the Government adopt such lesser ones as suits the convenience of its officers is to start down the totalitarian path.

The trend in that direction is only emphasized by the failure to give notice and hearing on the charges in these cases and by the procedure adopted in Bailey v. Richardson, supra.

Notice and opportunity to be heard are fundamental to due process of law. We would reverse these cases out of hand if they were suits of a civil nature to establish a claim against petitioners. Notice and opportunity to be heard are indispensable to a fair trial whether the case be criminal or civil. See Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027; Palko v. State of Connecticut, 302 U.S. 319, 327, 58 S.Ct. 149, 152, 82 L.Ed. 288; In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92 L.Ed. 682. The gravity of the present charges is proof enough of the need for notice and hearing before the United States officially brands these organizations as 'subversive.' No more critical governmental ruling can be made against an organization these days. It condemns without trial. It destroys without opportunity to be heard. The condemnation may in each case be wholly justified. But government in this country cannot by edict condemn or place beyond the pale. The rudiments of justice, as we know it, call for notice and hearing-an opportunity to appear and to rebut the charge.

The system used to condemn these organizations is bad enough. The evil is only compounded when a government employee is charged with being disloyal. Association with or membership in an organization found to be 'subversive' weighs heavily against the accused. He is not allowed to prove that the charge against the organization is false. That case is closed; that line of defense is taken away. The technique is one of guilt by association-one of the most odious institutions of history. The fact that the technique of guilt by association was used in the prosecutions at Nuremberg  does not make it congenial to our constitutional scheme. Guilt under our system of government is personal. When we make guilt vicarious we borrow from systems alien to ours and ape our enemies. Those short-cuts may at times seem to serve noble aims; but we depreciate ourselves by indulging in them. When we deny even the most degraded person the rudiments of a fair trial, we endanger the liberties of everyone. We set a pattern of conduct that is dangerously expansive and is adaptable to the needs of any majority bent on suppressing opposition or dissension.

It is not without significance that most of the provisions of the Bill of Rights are procedural. It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law. The case of Dorothy Bailey is an excellent illustration of how dangerous a departure from our constitutional standards can be. She was charged with being a Communist and with being active in a Communist 'front organization.' The Review Board stated that the case against her was based on reports, some of which came from 'informants certified to us by the Federal Bureau of Investigation as experienced and entirely reliable.' Counsel for Dorothy Bailey asked that their names be disclosed. That was refused.

Counsel for Dorothy Bailey asked if these informants had been active in a certain union. The chairman replied, 'I haven't the slightest knowledge as to who they were or how active they have been in anything.'

Counsel for Dorothy Bailey asked if those statements of the informants were under oath. The chairman answered, 'I don't think so.'

The Loyalty Board convicts on evidence which it cannot even appraise. The critical evidence may be the word of an unknown witness who is 'a paragon of veracity, a knave, or the village idiot.'  His name, his reputation, his prejudices, his animosities, his trustworthiness are unknown both to the judge and to the accused. The accused has no opportunity to show that the witness lied or was prejudiced or venal. Without knowing who her accusers are she has no way of defending. She has nothing to offer except her own word and the character testimony of her friends.

Dorothy Bailey was not, to be sure, faced with a criminal charge and hence not technically entitled under the Sixth Amendment to be confronted with the witnesses against her. But she was on trial for her reputation, her job, her professional standing. A disloyalty trial is the most crucial event in the life of a public servant. If condemned, he is branded for life as a person unworthy of trust or confidence. To make that condemnation without meticulous regard for the decencies of a fair trial is abhorrent to fundamental justice.

I do not mean to imply that but for these irregularities the system of loyalty trials is constitutional. I do not see how the constitutionality of this dragnet system of loyalty trials which has been entrusted to the administrative agencies of government can be sustained. Every government employee must take an oath of loyalty.  If he swears falsely, he commits perjury and can be tried in court. In such a trial he gets the full protection of the Bill of Rights, including trial by jury and the presumption of innocence. I am inclined to the view that when a disloyalty charge is substituted for perjury and an administrative board substituted for the court 'the spirit and the letter of the Bill of Rights' are offended. 

The problem of security is real; and the Government need not be paralyzed in handling it. The security problem, however, relates only to those sensitive areas where secrets are or may be available, where critical policies are being formulated, or where sabotage can be committed. The department heads must have leeway in handling their personnel problems in these sensitive areas. The question is one of the fitness or qualifications of an individual for a particular position. One can be transferred from those areas even when there is no more than a suspicion as to his loyalty. We meet constitutional difficulties when the Government undertakes to punish by proclaiming the disloyalty of an employee and making him ineligible for any government post. The British have avoided those difficulties by applying the loyalty procedure only in sensitive areas and in using it to test the qualifications of an employee for a particular post, not to condemn him for all public employment.  When we go beyond that procedure and adopt the dragnet system now in force, we trench upon the civil rights of our people. We condemn by administrative edict, rather than by jury trial.  Of course, no one has a constitutional right to a government job. But every citizen has a right to a fair trial when his government seeks to deprive him of the privileges of first-class citizenship.

The evil of these cases is only emphasized by the procedure employed in Dorothy Bailey's case. Together they illustrate how deprivation of our citizens of fair trials is subversion from within. 

Notes