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CHARLES H. SLAYMAN, Jr., Chief Counsel and Staff Director
WILLIAM D. PATTON, First Assistant Counsel and Deputy Staff Director
CURTIS E. JOHNSON, Research Consultant

BELUA T. SIMMONS, Research Assistant

II

CONTENTS

APPENDIX

EXHIBITS

Articles:

McKay, Robert B., "The Right of Confrontation," Washington
University Law Quarterly, 1959, No. 2, p. 122. .

1856

1903

APPENDIX-Continued

EXHIBITS Continued

(b) Announcement to the Senate of hearings relating to due_process

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

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