Testing the Loyalty Program

Dr. John Punnett Peters, 67, senior professor of medicine at Yale University, served as a consultant to the U.S. Public Health Service until, in 1953, the Loyalty Review Board decided: "On all the evidence, there is a reasonable doubt as to Dr. Peters' loyalty to the Government of the United States." Last week the Supreme Court heard arguments on his appeal; its ruling is expected this month. A decision in his favor could virtually demolish the present federal loyalty program, because the issue in this case goes to the heart of the matter.

Secrecy--or Peril? Dr. Peters, who is due to retire from Yale next year, appealed entirely "as a matter of principle." As a Government consultant, he served only from four to ten days yearly (at $39.50 a day plus expenses) passing on applications for Public Health research grants. He admitted having taken part in causes with Communist connections. At three loyalty proceedings, he answered all questions, affirmed his loyalty, and denied under oath that he was a Communist.

The Supreme Court is not concerned with the factual evidence about Dr. Peters' loyalty. Instead, all argument revolved around the federal loyalty program and procedures which had found him wanting. His lawyer, Thurman Arnold, charged that Dr. Peters' constitutional right to trial by due process was violated because--as in all federal loyalty proceedings--he could not see the secret

FBI reports or confront and cross-examine the FBI informants that weighed against him.

In reply, the Government's brief insisted on its need and right to keep FBI reports and informants secret: "A large area of vital Government intelligence depends on undercover agents, paid informers and casual informers who must be guaranteed anonymity . . . Disclosure of these confidential sources would not only imperil the employee loyalty and security program but would also endanger the effective functioning of investigative agencies in the espionage and sabotage fields." A balance must be struck "between protection of the individual and the demands of national security."

More--or Nothing? In 1951 the Supreme Court split 4 to 4 on a similar loyalty case. In the Peters case, the Government claimed the right to hire or fire anyone it pleases as a simple management function. Peters' counsel granted the Government's right to hire or fire, but declared: "The loyalty program is a process of trial and condemnation and is not an exercise of the managerial power."

"It would be better," said the brief, "to have no hearings at all than unfair hearings." Before the Supreme Court last week, Attorney Arnold suggested that the Government should either have provided Dr. Peters and all loyalty suspects with the protection of trial court procedures, or else simply fired them offhand with no public hearings and no public disgrace. "Is it your point," asked new Associate Justice John Marshall Harlan, pinpointing the paradox, "that having set its hand at the plow in choosing a hearing method, the Government is then stuck with a due process hearing, and nothing short of a due process hearing?" Replied Arnold: "I wish I had said it that briefly. That is precisely my point."

"This is the conviction of a man. not on testimony, but on secret information," said Arnold. Asked Justice Reed: "What was the punishment?" Arnold's reply: "The punishment is a badge of infamy, and in many of these cases the absolute ruin of a man's career ... It is agony, it is disgrace."

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