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The Federal Loyalty-Security Program. A Report by a Special Committee of The Association of the Bar of the City of New York (Book Review)

St. John's University School of Law

St. John's Law Review Volume 31 Number 1 Volume 31, December 1956, Number 1 Article 23 May 2013 The Federal Loyalty-Security Program. A Report by a Special Committee of The Association of the Bar of the City of New York (Book Review) Barent Ten Eyck Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Ten Eyck, Barent (1956) "The Federal Loyalty-Security Program. A Report by a Special Committee of The Association of the Bar of the City of New York (Book Review)," St. John's Law Review: Vol. 31 : No. 1 , Article 23. Available at: https://scholarship.law.stjohns.edu/lawreview/vol31/iss1/23 This Book Review is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. BOOK REVIEWSTHE FEDERAL LOYALTY-SECURITY PROGRAM. A report by a SpecialCommittee of The Association of the Bar of the City of NewYork. New York: Dodd, Mead & Company, 1956. Pp. XXVI,301. $5.00.Many committees, of many bar associations, have done valuablework in fields of special interest to lawyers. Not often, however, hasa commercial publisher made the report of such a committee availableto the general public. The recently published Report of the SpecialCommittee on the Federal Loyalty-Security Program of the Associa-tion of the Bar of the City of New York has now been made so avail-able. The Special Committee has done its work so well, and thesubject of its Report is of such vital importance, that the Report herereviewed ought to be read by every thoughtful citizen and carefullystudied by every member of the bar.Since the cold war started there has been general recognition thatthe United States must protect itself against infiltration and corrup-tion by the hostile forces of what the Report calls "a new kind ofimperialism." At the same time there is general, if not unanimous,agreement that this country's greatest weapon in the battle for men'sminds is (in the Report's language) "the moral values for which westand and toward which we and free peoples everywhere have longbeen striving." 1It is against the background of such convictions that a distin-guished Special Committee, composed of members of the New York,Chicago, Los Angeles, New Orleans and Washington bars, under thechairmanship of Dudley B. Bonsai, Esq., of New York, and aided byan able professional staff, has considered the Federal Loyalty-SecurityProgram presently in force.At the outset the Committee has recognized, or rather proclaimed,that there is "no irreconcilable conflict between liberty of the citizenson one side and national security on the other." The keynote of theCommittee's philosophy is sounded in these words: "if fear of totali-tarianism were to force us into coerced uniformity of thought andbelief, we should lose security in seeking it." 2 The Report makes thefurther valid point that it is our "ideal of freedom and liberty, farmore than our economic system, which appeals to other peoples andattracts them to our side, and so contributes to our national security." 3Quoting from President Eisenhower's 1956 message to Congress onthe State of the Union, the Report reminds us that our weapons, inthe struggle that now engages the free world, "are the principles andideas embodied in our historic traditions applied with the same vigor1P. 21.2 P. 27.3P. 41.1956]ST. JOHN'S LAW REVIEWthat in the past made America a living promise of freedom for allmankind." 4Finding that "the emphasis on liberty as well as security isessentially conservative in its adherence to established and testedprinciples," 5 the Report recommends certain modifications in ourGovernment's personnel security program. Lest it be thought "pre-sumptuous for private citizens to take upon themselves the responsi-bility of proposing to our Government far-reaching changes in thisfield" 6 the Committee has justifiably expressed the opinion that it is"appropriate" for members of the bar to do this; for the Americanbar "has always been, and must always be, alert in the protection ofthe liberties on which our country was founded as well as of othermeasures essential to national security." 7 The Committee suggeststhat, if the present Loyalty-Security Program is modified in accor-dance with its proposals, that Program will "have its proper placein halting those who would abuse liberty and will at the same timeencourage the continuing growth of the nation's strength through theachievements of its citizens." 8Part One of the Report, only eight pages long, consists of a singlechapter entitled "Liberty and Security." Concluding that chapterthe Committee quotes with telling effect the following statement bythe Chief Justice of the United States, taken from an article he wrotefor the November 1955 issue of the magazine Fortune:In the present struggle between our world and Communism, the temptation toimitate totalitarian security methods is a subtle temptation that must be resistedday by day, for it will be with us as long as totaliarianism itself.9The Report tells us that 6,000,000 public and private employeesare subject to seven federal personnel security programs. The onlycivilian federal employees not covered are those who work for Con-gress and the federal courts. Civilian employees of the government'sexecutive branch are subject to Executive Order 10450; and regula-tions of the Civil Service Commission are applicable to classified civilservice personnel. On June 30, 1955, 2,371,373 persons were coveredby these programs.In March, 1955, 86,000 persons were covered by the program ofthe Atomic Energy Commission, which applies to that agency's em-ployees and also to employees of firms contracting with it. There isalso the Armed Forces Industrial Security Program, administered bythe Department of Defense, which reported late in 1955 that clearancehad then been given to almost 3,000,000 industrial employees of mili-4 P. 41.5 P. 27.6 P. 24.7 P. 24.8 Pp. 27-28.9P 28.[ VOL. 31BOOK REVIEWStary service contractors, who had access to "classified" information.Then there is the Port Security Program, under .vhich as of December31, 1955, clearance had been granted to 425,334 American seamen and395,271 longshoremen. Finally, there is a separate program coveringthe relatively few Americans who are employed by internationalorganizations.These figures provide some idea of the enormous sweep of theLoyalty-Security Program as a whole, under which is determined the"suitability" for employment (in government service and in industry)of a large segment of our employable population.Part Two of the Committee's Report is only eighteen pages long.It consists of Chapter II, dealing with "The Communist Threat," andChapter III, outlining "The Counter-Measures by the United States,Including the Loyalty Security Program." Those chapters presentthe reasons why personnel security programs are considered necessaryand refer to various security measures, fraditionally available or morerecently devised: e.g., prosecution for treason, -or under the Smith Actof 1940 for advocacy of the overthrow of the government by force,as well as counterespionage, loyalty oaths and the like. This part ofthe Report is a proof of the lawyer's passion for thoroughness inmaking a record. Like Part One it may be quickly skimmed.Chapter II fairly sets forth a variety of popular notions of "TheCommunist Threat," which may strike some as being superficial, oreven outdated. This reviewer finds it not so much a reasoned analysisof the present situation in world politics (which may be shifting anddevel6ping new and significant trends), as a workmanlike marshallingof established points of view. But it would be ungracious, and unfair,to criticize the Report for not testing and evaluating some of the con-clusions it sets forth regarding the nature and direction of "The Com-munist Threat" today. The Committee's assignment was to considerthe security program-not to reinterpret the situation that makes theprogram necessary.The meat of the Committee's Report appears in its Part Three,which consists of Chapters IV through VII. There, in eighty-threeclosely packed and solidly documented pages, one finds an admirabledescription of the present personnel security programs, their admin-istration, their effect on the employees and applicants for employmentwho are subject to them, and their cost in money. In Chapter VII,which merits the most thoughtful consideration, the achievements ofthe programs are weighed on the scales of national interest againstthe damage they may have done to the very security they were in-tended to serve.Limitations of space make it impossible to do more than empha-size the principal shortcomings of the existing system to which theReport calls attention. The seven programs now in force apply stan-dards of suitability for employment which are not uniform. Theyemploy varying procedures to attain their ends-some of which arefairly subject to criticism on the ground that they do not sufficiently,1956 ]ST. JOHN'S LAW REVIEWsecure the rights of the individuals concerned. Administration of themachinery of security clearance is far from uniform. "Derogatoryinformation," in a security file, may block the employment of an ap-plicant for a position (or his transfer from one position to another)without his being given the opportunity of meeting it. There is theproblem of the professional informant, who may or may not be worthyof credence. Similarly, there is perhaps unnecessary concern withpositions that are "nonsensitive" in character.One of the worst features of the present system may be its effecton the scientific research that is so important to national defense inthe modern world. The Report quotes a statement by the Los AlamosChapter; Federation of American Scientists which must give pause:In granting clearance to anyone there is always involved a calculated risk,but it seems to us that in the past the calculation has given the greatest weightto the negative aspect of keeping secrets inviolate and very little weight to thepositive aspect of keeping ahead of our competitors by means of fresh ideasand positive achievements. 10Putting it differently, the Report paraphrases a statement by theformer president of the Federation, Dr. M. Stanley Livingston:a security system which was sufficiently tight and compartmentalized tohave forestalled the loss of secrets through the treachery of Klaus Fuchs wouldhave restricted scientific progress so severely that the atomic bomb could nothave been completed in time to be used in the war against Japan.1"Part Three of the Report, in its entirety, together with AppendixB (setting forth the pertinent statutes, orders and regulations), maybe regarded as an indispensable manual for any practicing lawyer whois called upon to represent .a client caught in the toils of the presentsecurity system. The Committee and its staff have done a praise-worthy job of collating and analyzing the materials he will need. Theonly reservation to be noted is that if the Report's index were a littlemore complete, its nuggets of knowledge would be easier to dig out.However, the conscientious lawyer will wish to read all of Part Threeand Appendix B; and it will both deepen his understanding andsharpen his professional tools to read it with great care.Part Four, consisting of Chapter VIII, presents the Committee'srecommendatioris for improving the existing system, with a convinc-ing statement of supporting reasons. The Committee favors a unifiedsecurity program, centrally administered, which would recognize theclose logical relationship between suitability for the job (personnelsecurity) and the need to "classify" information that really ought tobe closely guarded. It is proposed that job clearance be required for"sensitive positions and for no others." 12 A sensitive position, ac-10 p. 127.11 p. 126.12 p. 141.[ VOL. 31BOOK REVIEWScording to the Committee, should be defined as one whose occupantwould have access to material classified as "secret" or "top secret";and, in addition, one that has "a policy-making function" bearing"a substantial relation to national security." IsA uniform standard for judging suitability for employment in asensitive position is proposed: "whether or not in the interest of theUnited States the employment or retention in employment of the in-dividual is advisable." 14 Such a standard seems quite adequate. TheCommittee proposes procedures for the preferring of charges, and fortheir hearing and determination, that are effectively keyed to Americanconcepts of due process of law. (Laymen sometimes call it ordinaryfair play.)The Committee has expressed the belief that adoption of its pro-posals would free our personnel security system of "the weakness anddefects" it now exhibits, and would simultaneously afford adequateprotection to the nation's security. The present reviewer whole-heartedly concurs.BARENT TEN EycK.*13 P. 141. A position which effects national security, has been defined bythe Supreme Court as one which ". . . relates only to those activities whichare directly concerned with the Nation's safety, as distinguished from the generalwelfare." Cole v. Young, 351 U.S. 536, 543 (1956) (emphasis added).24 P. 149.* Member of the New York Bar.1956]

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The Federal Loyalty-Security Program. A Report by a Special Committee of The Association of the Bar of the City of New York (Book Review)

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