LAW REVIEW ARTICLE ON CONFRONTATION IN SECURITY PROCEEDINGS

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP62-00631R000400040009-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 2
• Document Creation Date: December 15, 2016
• Document Release Date: December 4, 2002
• Sequence Number: 9
• Publication Date: June 26, 1958
• Content Type: MFR

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CC/24494:
26 June 1958
MEMORANDUM FOR THE RECORD
SUBJECT: Law Review Article on Confrontation in Security Proceedings
1. The March 1958 issue of the Notre Dame Lawyer containsan article
entitled "Confrontation by Witnesses in Government Employee Security Pro-
ceedings" by Jan Z. Krasnowiecki, a member of the Illinois Bar. .The author
reviews the case law including early English and American cases involving
the separation of Government employees and interprets these cases to mean
that unless an employee is given a hearing as a part of the removal pro-
cedure there may be a denial of due process. He also concludes that where
a hearing is required, to conform with due process, it must be full and
onen. An abstract of the article follows,
2. At present civilian employees of the Federal Government. are subject
to three programs touching security: (1) Txecutive Order 10450 'Under
Public Law 733 which is a continuation of earlier programs under the Lloyd-
LaFollette and Veterans Preference Acts; (2) the Atomic-Energy Commission
program; and (3) Civil Service regulations.. There js not one case which
squarely holds that .no hearing of any kind need,begiven to a Government
employee .who is discharged for 'a specified cause as against the constitutional
Objections that he must have a hearing. All ofthe:-eases involve attempts
by employees to obtain ,a review of the fact determination by the removing
officer and allegations that the opportunity to answer in writing supported
by affidavits is insufficient are made,' not on constitutional grounds but
in order to indicate the weakness Of the fact determination attack. The
right to a hearing where a removal is for cause, recognized in Shurtleff v.
U.S. (189 US 311, 1902) is rot of recent origin but dates back to English
cases which held that dismissal for a stated cause without a hearing is
against "justice and right".
3. Where a Government has power to dismiss at will it will be glad
to do so. The trouble in security proceedings has arisen in cases where
the Government did not, or thought it did not, have the power to dismiss
at will. The restrictive interpretation of the early English cases and
the American cases concerning the right to a hearing, affects only those
security cases where tbe Government has mistakenly stated the reason for
dismissal when there waF; no need for it to do so. There appears to be
grave doubt as to the constitutionality of the section of the Lloyd-
LaFollette Act which states: "No examination of witnesses nor any trial
or hearing shall be required except in the discretion of the officer or
employee directing the removal or suspension without pay."
OGC Has Reviewed
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4. There must be a right to a hearing where the employee contests
the truth of-the fact inferred itself and this right is not disposed of
sub-silentio. It is not disposed of either by saying that after all, if
given a hearing, the employee will only continue to refuse to answer the
critical question, or to take the oath, as before. An employee may not
be discharged for a publicly stated cause without his being afforded a
hearing as to the existence of such cause. Where an employee fails to
avail himself of the opportunity to introduce evidence on his behalf in
opposition to the inference drawn from his refusal to answer there still
remains the constitutional impediment that no sinister meaning can be
attributed to his silence.
5. If an employee "is terminated in the interests of the United States"
there probably would be no constitutional objection to that determination
without a hearing. The right to a hearing does not tie the Government's
hands as an employer to hire and fire at will. It does, however, prevent
the Government from exercising its rights in this respect in such a manner
as to permanently and publicly record a serious charge against the employee
without giving him an opportunity to defend.
6. The question is not whether an employee about to be discharged
as a security risk has a property right in his employment. He has a
right to his good standing in the community which ought to be protected
under the due process, clause of the fifth amendment against arbitrary
destruction by the Government. From the earliest days of the common law,
Englishmen claimed the right to be accused by others before they be put
to answer, and this claim involved the claim to have the accusers brought
face to face at trial. They Were aware that the right to confrontation
was a major guarantee against oppression. What is necessary to support
the conclusion that confrontation by witnesses in all cases would endanger
national security is a showing that in some cases, at least, it would be
impossible to obtain enough testimony from persons other than undercover
agents and casual informants who request anonimity to satisfy even the
very small Quantum of proof required for a security discharge.
7. No conclusion is reached on the question of whether the recognition
of an unqualified right to confrontation would endanger national security
but there is hope that when the answer to that question is finally under-
taken the assumptions that a Government employee has no constitutional
claim to a hearing will not be allowed to weigh in the balance against the
individual.
Office of General Counsel
OGC:MCM: jem
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Signer
Chrono
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