phis area (all or most of them employees or former employees of the Veterans Administration Hospital), had signified an intention to testify at the hearing. When the employee requested that the Board reconvene in New York City after taking the testimony of the government witnesses in Memphis, in order to hear the employee's witnesses who resided in New York, the employee was informed that this procedure was not authorized and his request denied. The employee and his counsel then travelled to Memphis, Tennessee. Immediately after the hearing commenced, the employee was informed that he would not be permitted to confront or cross-examine any witness, nor be informed of their identities (although he knew who some of them were), even though the agency regulations specifically provided that the Hearing Board inform the employee of his right to cross-examine any witness offered in support of the charges and that the employee or his counsel would be permitted to cross-examine all witnesses. The reason given for this action was that while each witness had stated that he would be happy to testify against the employee in private, all of them had informed the Board that they did not "desire" to testify in the employee's presence or be crossexamined by his counsel.

The Board justified its action by interpreting the Veterans Administration regulations (which provided that the employee be informed of his right "to cross-examine any witness offered in support of the charges" and that "reasonable cross-examination of witnesses by the employee or his counsel would be permitted"), to mean that the employee or his counsel was entitled to cross-examine only those "witnesses who appeared before the Board in his presence." Thus, an employee who had been suspended from his job without pay, travelled from New York to Memphis, Tennessee, in the sole hope of proving that his continued employment was no risk to the national security through the cross-examination of adverse witnesses, one of whom he believed by a psycopathic liar, only to find that

since no adverse witnesses "desired" to be cross-examined by his counsel, all he could do was deny under oath the charges against him.

Perhaps the most striking illustration of the desperate need for confrontation and cross-examination in these cases is to be found in the "Smith" proceeding.19 In that case, "Smith" was charged, among other things, with having attended Communist Party meetings in 1935 and 1939. Inasmuch as counsel had already shown through documentary evidence that the other charges were false or irrelevant, the Hearing Board, displaying an extreme sense of fairness, attempted to secure permission from the FBI to release the informant's name in order to give Smith an opportunity to refute the accusation beyond mere denials. Two days before the hearing, Smith's counsel was informed that the informant's name was Captain Charles G. Bakcsy, and that the alleged Communist Party meeting in 1935 took place in Carmel, California, at the home of Ella Winter, then the wife of Lincoln Steffens. During the hearing, the Board Chairman informed "Smith" that Bakcsy, on a recheck by the FBI, had withdrawn the accusation that Smith had attended a Communist Party meeting in 1939, but affirmed his prior charge that Smith had attended a meeting in 1935 at the home of Ella Winter. The Board Chairman then asked "Smith" why Bakesy would make such a statement if it were not true. At this point, Smith's counsel asked the Chairman if he knew that Bakcsy was a perjurer. When the Chairman said that he did not, and asked counsel if he had such information, counsel asked leave to ascertain what the facts were, and an opportunity to submit evidence on this issue was granted.

Four days later, documentary evidence was submitted that Captain Charles G. Bakcsy was a professional witness whose testimony on other occasions had been repeatedly and publicly rejected by government officials as incredible

19 See note 10, supra.

and unworthy of belief. Bakcsy, who had offered to testify for a fee against Harry Bridges in the 1939 Bridges' deportation proceedings and whose offer had been refused by the West Coast Immigration Director, turned up at the hearing as a defense witness for Bridges. Dean Landis, the trial examiner in the Bridges case stated at p. 74 of the "Findings and Conclusions of The Trial Examiner," (a government document printed by the United States Printing Office):

"Bakcsy testified to other matters also, but his testimony need not be reviewed. Bakcsy failed to carry conviction to the examiner. It is impossible to separate truth from fiction in his testimony. It was bizarre and at times fantastic. It seems best not to permit the testimony of either Captain or Mrs. Bakcsy to play a real part in reaching such ultimate conclusions as must be reached in connection with the matters that are at issue in this proceeding."

If we assume, for the sake of argument only, that Captain Bakcsy was one of the unidentified informants who testified in secret before the Loyalty Board in Petitioner's hearing in the case at bar, the absence of cross-examination and an opportunity to rebut a fantastic accusation made by him against Petitioner resulted in an incredible miscarriage of justice, completely abhorrent to every one of our traditional concepts of "fair-play." For all Petitioner knows, Captain Bakcsy or someone just like him, either testified against him or otherwise supplied the information which resulted in the Loyalty Board's determination that Petitioner was disloyal.

The occasions in judicial history, even in systems in which hearsay evidence is permitted, where this sort of material has been considered as "evidence," are remembered today only as examples of the perversion of the principles of justice. Cf. Pierre Dreyfus, The Dreyfus Case, 26 (1937); United States v. Joseph Alstoetter, et al., Vol. III, War Crimes at Nuremberg ("The Justice Case"), at p.

1024. This then, is the sorry record resulting from the alleged need of preventing restriction of FBI investigations; the justification being the "national security interest" involved in keeping the identity of confidential informants secret.

We respectfully submit that in the case of the employee holding a "non-sensitive," "non-policy-making" position, there is neither necessity nor justification for withholding one iota of confidential information, or for refusing the employee the right to.cross-examine each and every adverse witness. If the government would be embarrassed by such disclosure, the charge on which it is based should be withdrawn 21-in the "non-sensitive" positions there is no need to tolerate an obliteration of the Constitution and the essence of fair procedures. In "sensitive" jobs, which involve either access to classified material or other information important to national defense and foreign relations, or in "policy-making" positions in these areas, the professional or "under-cover" informant should be separated "from neighbors, maiden-aunts, and casual busybodies who have no legitimate reason for secrecy." 22 If it be claimed in answer to this simple solution that the private citizen would then be unwilling to supply testimony important to the safety of the nation, Congress has ample authority to give loyalty-security boards the power of subpoena. Poorly drawn, slip-shod and politically expedient loyalty-security regulations do not sit well in answer to the documented claim that the fundamental liberties of so many people are fast becoming as extinct as the bison.

21 Cf. United States v. Coplon (2 Cir.), 185 F. 2d 629.

22 Lewis, Our Security Procedures Need Not Be Unfair, "The Reporter", November 4, 1954, at p. 23.

BRIEFS FOR THE PARTIES IN THE CASE OF CHARLES ALLEN TAYLOR, PETITIONER v. NEIL MCELROY, A. TYLOR PORT, RESPONDENTS. NO. 504 IN THE SUPREME COURT OF THE UNITED STATES, OCTOBER TERM, 1958

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

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