CHARLES H. SLAYMAN, Jr., Chief Counsel and Staff Director BELUA T. SIMMONS, Research Assistant II CONTENTS Ralph S. Brown, Jr., professor of law, Yale Law School, New Haven, Joseph L. Rauh, Jr., Washington, D.C., attorney, accompanied by William Taylor, legislative representative, Americans for Democratic Action.. Articles: McKay, Robert B., "The Right of Confrontation," Washington 1856 S. 776, A bill to authorize the Federal Government to guard strategic defense facilities against individuals believed to be disposed to commit acts of sabotage, espionage, or other subversion (Senator S. 1916, a bill to establish a Central Security Office to coordinate the administration of Federal personnel loyalty security programs, to prescribe administrative procedures for the hearing and review of cases arising under such programs, and for other purposes (Senators S. 2392, a bill to reestablish the effectiveness of the Federal loyalty security program and the industrial security program (Senators (e) Supplemental memorandum for petitioner on mootness, February 1491 APPENDIX-Continued EXHIBITS-Continued Correspondence exchange between Senator Thomas C. Hennings, Jr., Chairman, Subcommittee on Constitutional Rights and Attorney Gen- Correspondence exchange between Senator Thomas C. Hennings, Jr., Chairman, Subcommittee on Constitutional Rights and the Secretary of (b) Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, No. 14689, decided by the U.S. Circuit Court of Appeals for the District of Columbia, August 21, 1959... (c) Greene v. McElroy, 360 U.S. 474, decided by the U.S. Supreme Excerpt from a study of U.S. foreign policy: Summary of views of retired Foreign Service officers, "Security Procedures in the Department of State," prepared for the Committee on Foreign Relations, 86th Congress, Memorandums by Constitutional Rights Subcommittee staff: The industrial personnel security review program and some comments The Attorney General's List of Organizations, July 1, 1959. Organizations designated by the Attorney General under Executive Order (b) Department of Defense, February 2, 1955 (amended): "Industrial Personnel Security Review," Directive No. 5220.6. (c) Department of Justice, the Attorney General, April 29, 1953: "Rules of procedure with respect to notice, hearing, and desig- nation of organizations in connection with the Federal employee Statements by Senator Thomas C. Hennings, Jr., chairman, Subcommittee (a) Announcement of public hearings to examine due process of law in Federal loyalty security programs, May 25, 1959. (b) Announcement to the Senate of hearings relating to due process of law by Subcommittee on Constitutional Rights, Congres- 992 SECURITY AND CONSTITUTIONAL RIGHTS THURSDAY, JULY 2, 1959 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.C. The subcommittee met, pursuant to call, at 10:30 a.m., in room 2228, New Senate Office Building, Senator Thomas C. Hennings, Jr., presiding. Present: Senators Hennings, Johnston, and Hruska. Also present: Charles H. Slayman, Jr., chief counsel. Senator HENNINGS. The committee will please come to order. I must apologize. It was necessary for me to go to the floor of the Senate early this morning. I might also say in advance to Senator Hruska, who has been good enough to come here this morning in spite of the fact that the Senate is in session, that I have an appointment with the Attorney General on some very important matters relating to constitutional rights. Attorney General Rogers will be in my office at 11 o'clock this morning. Senator Hruska has said he will conduct the hearings until such time as I can get away and return from the study of certain other matters relating to this subcommittee's work. With your indulgence, then, and without further delay, I will undertake now to make a very brief opening statement. Three days ago, the Supreme Court of the United States, in its decision in Greene v. McElroy a case arising under the industrial personnel security program-stated: Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on factfindings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that is is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots. They find expression in the sixth amendment which provides that in all criminal cases the accused shall enjoy the right "to be confronted with the witnesses against him." This Court has been zealous to protect those rights from erosion. The Court concluded: We decided that in the absence of explicit authorization from either the President or Congress the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination. In 1955, as many may remember, this subcommittee examined into practices in the loyalty-security programs which conflicted with a citi zen's rights under the first amendment-his rights of free speech and press and assembly and association. I think it goes without saying that our interest in these rights continues. However, in our present hearings we will be concerned principally with the matter of fair hearing procedures the right of "“due process of law" and the right, so recently emphasized by the Supreme Court, to be confronted with adverse witnesses. The case of Greene v. McElroy was one of the last cases decided by the Supreme Court before it recessed earlier this week for the summer months. The term of court just completed has seen a number of difficult and highly controversial cases decided, not the least of which was the Greene case, itself, and I would like to take this occasion to express my personal commendation to the members of the Court for the oustanding job they have done in the past term. Despite the fact that many of the cases passed upon by the Court were so difficult and controversial in nature, all of the Justices, in my opinion, displayed not only learning and wisdom, but some measure of courage in deciding each case as they saw it despite the criticism, abuse and even vilification they must have realized would arise from some quarters. While this is no more than members of the Court should do, still it does take considerable courage and I think the Court deserves the highest praise. Today we have as witnesses two distinguished attorneys. Ralph S. Brown, Jr., is a member of the faculty at the Yale Law School. He has given intense study to the loyalty-security programs and their effect on our Government and society. Pursuant to this study he has published articles in a number of law reviews and has also published a book entitled, "Loyalty and Security." He appears here today in a dual capacity. He will speak as a representative of the American Civil Liberties Union. He will also express some opinions which are his own. Our second witness is Mr. Joseph L. Rauh, Jr., who is well known to all members of this committee and to the public generally, who began his legal career as law secretary to Justice Cardozo, one of our greatest Justices, and then to Justice Frankfurter. He will appear before us today as a practicing attorney who has handled a great number of loyalty security cases including many arising under the industrial personnel security program, among which was Taylor v. McElroy, on which the Supreme Court ruled last Monday. And I would like to say parenthetically here, that Mr. Rauh has devoted much of his time and his considerable talent and ability to protecting the rights of individuals, without compensation, as a citizen and as an exemplification of what some of us who are lawyers like to think represents the best motivations and obligations of a member of the bar. Not so long ago, unhappily, more rarely now, lawyers were known to take many, many cases, criminal and civil, in order to protect the rights of individuals, some of whom were charged with heinous offenses and crimes. Now, they are taking them without compensation simply as a duty, a legal duty, a duty which is not forced upon them but a duty they have willingly and gladly accepted, and I want at this time to commend Mr. Rauh again, especially for his great interest and dedication to these things which some of us think are not tran |