Ducking the Issue

Those who give the FBI information about Government employees have the law's promise of secrecy if they want it; the person under investigation does not necessarily know who said what about him. In 1951 the Supreme Court split 4 to 4 when asked to rule that the Government could not dismiss an employee for security reasons unless it allowed him to confront the persons who had given information about him on which the Government based its decision. This spring the issue again reached the highest court (TIME, May 2), in the case of Yale's Professor of Medicine John Punnett Peters, who was discharged as a part-time consultant to the U.S. Public Health Service two years ago after a security investigation.

Dr. Peters' lawyer, Thurman Arnold, built his arguments on the Fifth Amendment. He said that since Dr. Peters could not confront his informers, he had been denied the right to "due process of law" guaranteed in the Fifth Amendment. The Government answered that it has a need and a right to protect its informants; if it did not do so, the whole security system would break down. It also contended that its firing procedures are administrative acts, not judicial proceedings with legal penalties, and therefore not subject to the due process clause.

Many (including Attorney General Brownell) expected one of the most important decisions of the year when the Supreme Court passed on the Peters case. But when Justice Harlan questioned Lawyer Arnold about the power of the Loyalty Review Board to review the Peters case, he opened an escape hatch through which the court could dodge the hot constitutional issue of confrontation. Arnold spotted it, tried to head the court off, saying he "would not like to win the case on that ground." But Justice Frankfurter told Arnold: "The question is not whether you want to win the case on that ground or not. This court reaches constitutional issues last, not first."

In a decision announced last week, the court ducked the main issue. It found, 7-2, that the Loyalty Review Board had no authority to review the Peters case, since Peters had previously been cleared by a departmental board. Even dissenting Justices Burton and Reed dodged the constitutional issue, argued that the Loyalty Review Board did have the power to find against Peters. That question was hardly vital. The board was abolished two years ago, and 67-year-old Dr. Peters' appointment has long since run out.

This file is automatically generated by a robot program, so reader's discretion is required.