Novotny, D. J.

English

Chicago-Kent College of Law

Chicago-Kent Law Review Volume 36 Issue 1 Article 4 April 1959 Constitutional Law - Due Process - Whether the Denial of Loyalty Clearances May Be Based on Faceless Informer Evidence D. J. Novotny Follow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreview  Part of the Law Commons Recommended Citation D. J. Novotny, Constitutional Law - Due Process - Whether the Denial of Loyalty Clearances May Be Based on Faceless Informer Evidence, 36 Chi.-Kent L. Rev. 63 (1959). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol36/iss1/4 This Notes is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact jwenger@kentlaw.iit.edu, ebarney@kentlaw.iit.edu. DISCUSSION OF RECENT DECISIONSof Peoria v. The Nichols & Shepard Company.10 However, in that case,the agent was a mere sales representative whereas, in the principal case,the agents were the officers of the plaintiff. The cases are distinguishablebecause officers are charged with the management of a corporation's dailyaffairs and are vested with more discretion than a mere sales representative.The analogy is further weakened because the forgers had since becomeauthorized signers, although that information had not yet been communi-cated to the bank. It would appear that the defendant was correct inreturning the voucher to the officers because the only other apparent al-ternative was to return it to the board of directors which met only inter-mittently and which was effectively incapable of receiving it."The statute, by imposing an absolute duty, placed an extreme limitupon the period during which the depositor could perfect its cause ofaction and thus offered the bank an opportunity to seek restitution sea-sonably. It, in effect, provided that the account between the depositorand the bank became an account stated no later than one year after thereturn of the voucher unless the depositor gave notice within that period.The statute enhances the equities between the parties because its effectwas to give the bank a definite advantage which it did not previouslypossess. On the other hand, it works no particular hardship on the de-positor by imposing the duty of giving notice within one year. While thisrequirement is inconsistent with the common law of Illinois, the onlyreal obstacle to its easy fulfillment is the carelessness of the depositor inmanaging its own affairs.H. Q. ROHDECONSTITUTIONAL LAW-DUE PROCESS-WHETHER THE DENIAL OFLOYALTY CLEARANCES MAY BE BASED ON FACELESS INFORMER EVIDENCE-Much recent controversy has centered on the problem of whether or not aperson working with classified government material can be denied a loyaltyclearance through an administrative proceeding in which he is not allowedto confront and cross-examine adverse witnesses. The "cold war" hastended to accentuate the issues presented, so that both sides of the con-troversy have now been fully represented by vigorous exponents. Typicallythis problem has embraced two classes of individuals who have been deniedloyalty clearances; those engaged in governmental projects who are pri-vately employed by firms working on government contracts, and thoseemployed directly by the government.10223 Il. 41, 79 N. E. 38 (1906).11 A case from another jurisdiction supports this conclusion. The Court of Ap-peals of New York held that when vouchers are returned to the president of thedepositor, they have been returned to the depositor within the meaning of theNew York statute: Shattuck v. Guardian Trust Co. of New York, 204 N. Y. 200,97 N. E. 517 (1912).CHICAGO-KENT LAW REVIEWThe leading case reviewing this point is that of Bailey v. Richardson,'which resulted in a four-to-four affirmance of a lower court decision bythe United States Supreme Court. Therein, it was determined that thegovernment could dismiss an employee in its executive branch withoutdisclosing the sources of the information on which it based her dismissal.This administrative proceeding was upheld against the contention that itviolated the due process clause of the fifth amendment to the federal con-stitution. It was allowed to stand affirmed, principally because nationalsecurity was found to have been intimately related to the non-disclosureof the evidence and its sources.In analyzing all of the considerations, the reviewing courts have firstturned to the matter of jurisdiction. The petitioner must first show thathe has been denied a right to life, liberty or property before he can dem-onstrate that he has sufficient standing to raise a question of due processof law. At the outset, he is at a loss to show that he has been deprived oflife, and his liberty has not been curtailed in any way, so he must neces-sarily turn to his property rights in order to spell out a standing.It has been repeatedly held that public employment is not "property"and that a loyalty clearance is not a contract.2 The criterion for appoint-ment and removal of governmental employees is the confidence of theirsuperior officers, and confidence is not a concept which can be tested underdue process of law. Further, a loyalty clearance, itself, is a matter ofprivilege, not a vested right. Even after the privilege of a loyalty clear-ance has been granted, it still does not ripen into a property right, as dolicenses to engage in learned professions.3Petitioners who have successfully spelled out property rights havedone so on the theory that they have acquired special training at con-siderable expense, that they are prepared to engage only in a narrow fieldof endeavor, that this field is entirely occupied by government-controlledprojects, that without a loyalty clearance they cannot be so employed, andthey would thus be forced to accept a lesser position at a loss of salaryif denied a loyalty clearance. 4 But even if a petitioner established aproperty right of which he has been denied, a further jurisdictional hurdlefaces him. There is a strong line of cases that indicates that the courtswill not review actions of executive officials in the dismissal of their em-ployees, except to insure compliance with statutory requirements. 5 It has186 U. S. App. D. C. 248, 182 P. (2d) 46 (1949), affirmed in 341 U. S. 918, 71S. Ct. 669, 95 L. Ed. 1352 (1950).2 Taylor v. Beckham, 178 U. S. 548, 20 S. Ct. 890, 44 L. Ed. 1187 (1900).3 Bridges v. Wixon, 326 U. S. 548, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945).4 Cole v. Young, 351 U. S. 569, 76 S. Ct. 861, 100 L. Ed. 1396 (1955).5 Harmon v. Brucker, 137 F. Supp. 475 (1956).DISCUSSION OF RECENT DECISIONSbeen decided, for example, that allegations that a petitioner was innocent,that an investigation was biased, or that removal was prejudiced, wereall immaterial so long as the executive department has acted within itsstatutory limitations.6 No claim on which relief can be granted is thusstated by the petitioner.7It has been contended that certain cases have been decided contraryto the doctrine of the Bailey case,8 but these decisions can be distinguishedon one of two grounds; they either involve criminal prosecutions or havebeen cases where national security was not critically at stake. The caseof United States v. Reynolds9 stands for the proposition that the courtswill not tolerate faceless-informer evidence when the petitioner is facedwith a criminal charge, and the case of United States v. Jencks10 indicatedthat even the confidential files of the Federal Bureau of Investigationwill be opened to a person who is faced with a criminal penalty.The second distinguishing feature is introduced in cases where nationalsecurity could not be seriously jeopardized if a full disclosure of allevidential sources were ordered by the court. These cases have indicatedthat a petitioner will be allowed to confront and cross-examine all adversewitnesses if the government cannot demonstrate a real danger to nationalsecurity." The burden of proof is on the government to establish dangerto national security, and no such claims will be flatly accepted withoutsubstantiation.12It has been contended that denial of a loyalty clearance is comparableto conviction of a crime in the stigma it places upon a person's character.The results have been viewed as being similar; loss of employment op-portunity, detriment to social standing and disgrace to family reputation.This position has been rejected by the courts, because no fine or imprison-ment is meted out when a loyalty clearance is denied. Therefore, the ruleof United States v. Reynolds1" is inapplicable to cases of this nature in thatsuspicion of disloyalty has been determined to have peculiarities whichdistinguish it from a criminal conviction.A further factor to be considered in these cases is whether or not thesensitivity of the position of the petitioner should be weighed in estab-6 Eberlein v. United States, 257 U. S. 82, 42 S. Ct. 12, 66 L. Ed. 140 (1921).7 Saggau v. Young, 138 F. Supp. 142 (1956).a86 U. S. App. D. C. 248, 182 F. (2d) 46 (1949), affirmed in 341 U. S. 918, 71S. Ct. 669, 95 L. Ed. 1352 (1950).9345 U. S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1952).10353 U. S. 657, 77 S. Ct. 1007, 1 L. Ed. (2d) 1103 (1957).11 Cole v. Young, 351 U. S. 569, 76 S. Ct. 861, 100 L. Ed. 1396 (1955).12 Peters v. Hobby, 349 U. S. 331, 75 S. Ct. 790, 99 L. Ed. 1129 (1954).13 345 U. S. 1, 73 S. Ct. 528, 97 L. Ed. 727 (1952).CHICAGO-KENT LAW REVIEWlishing the risk to national security. The theory propounded is that anatomic physicist would be potentially more dangerous than would someclerk in the executive branch. The cases have rejected this proposition,for the reason that access to classified material is the critical factor,whether the petitioner is a secretary,1 4 a merchant seaman, 15 a civil serviceemployee, 16 or an atomic scientist.1'7  The danger is perceived in the accessto the material and its disclosure, rather than in the understanding of itsimplications.A further facet of this problem is illustrated by the case of Parker v.Lester,'8 wherein a merchant seaman who was privately employed wasdenied a loyalty clearance. A loyalty clearance was required in his case,because he worked with classified government material in the normal courseof his employment. When a clearance was denied, he was dismissed fromhis position. He contended that the government could deal with its ownemployees in this manner, as an inherent right, but that it could not do soin the case of persons privately employed. This contention was rejected bythe court, because the danger to national security was said to be equally asgreat in private employment as it was in public employment.In support of the government's position, one designed to justify theuse of faceless-informer evidence, there is a persuasive line of cases whichtend to favor its use in loyalty-clearance cases. This type of evidence hasbeen upheld in immigration cases' 9 for the same reasons. The discretionof the attorney general has been upheld where the surrounding circum-stances have made it necessary to resort to faceless-informer evidence inthe interest of national security.20There are two basic considerations which have led the courts to favorthe position of the government. First, it has been demonstrated thatgovernment agents cannot function effectively after they have been madeto appear and testify in open judicial proceedings. After that, they canbe identified and avoided by others under suspicion. Secondly, it hasbeen argued that cross-examination and the full disclosure of all evidencewould in itself, damage national security. The confidential material soughtto be protected by loyalty-clearance proceedings might thus be prejudi-cially revealed.14 86 U. S. App. D. C. 248, 182 F. (2d) 46 (1949) ; affirmed in 341 U. S. 918, 71 S.Ct. 669, 95 L. Ed. 1352 (1952).15 Parker v. Lester, 112 F. Supp. 433 (1953).16 Scher v. Weeks, 231 F. (2d) 494 (1956).17 Nadelhaft v. United States, 131 F. Supp. 930 (1955).18112 F. Supp. 433 (1953).19 Jay v. Boyd, 351 U. S. 345, 76 S. Ct. 919, 100 L. Ed. 1242 (1956).20 United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 70 S. Ct. 309,94 L. Ed. 317 (1950).DISCUSSION OF RECENT DECISIONSIt is submitted, however, that there is another side to the policy lyingbehind this problem that must be considered. If the government seeks toprotect national security, it must procure the finest personnel available,to further the advancement of atomic research. Such prospective personnelcertainly would not be encouraged to engage in activities which requireloyalty clearances, if those clearances could be revoked on a basis offaceless-informer evidence. The possible hardship involved may discouragemany who might otherwise be willing to make a career of public employ-ment.Opposed to the position of the government is the case of the individualwho stands under suspicion of disloyalty. The harm to him is substantial;he may lose his employment, his social status may suffer, he may sufferfinancially, and his family may be subjected to hatred and ridicule. Withsuch serious consequences involved, the government should not be per-mitted to make unfounded charges, shielded by considerations of nationalsecurity.2 There is always a danger that a faceless-informer will comeforth, prompted by spite or malice, secure in the knowledge that his realmotives cannot be revealed by confrontation or cross-examination on thewitness stand.22There is a conflict of interests, thus presented, which places nationalsecurity on one side and the right of the individual on the other. Thebenefit to the country as a whole must be balanced against the possiblehardship on the individual under suspicion of disloyalty. A nation can-not allow full freedom and immunity to those who are reasonably sus-pected of engaging in subversive activities against it, or its destructionfrom within might certainly follow. 23  When and if a real danger tonational security is demonstrated, the rights of the individual must giveway, even to the point of hardship.24D. J. NOVOTNYCONSTITUTIONAL LAW-PERSONAL CIVIL AND POLITICAL RIGHTS-WHETHER, AFTER ACQUITTAL OR RELEASE WITHOUT CONVICTION, RETENTIONOF IDENTIFICATION DATA IN THE FILES OF A LOCAL POLICE DEPARTMENTCONSTITUTES AN INVASION OF AN INDIVrDUAL'S RIGHT OF PRlvACY-Untilthe decision in the case of Kolb v. O'Connor,' Illinois Appellate Courts21 Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 71 S. Ct. 624,95 L. Ed. 817 (1951).22 See the dissenting opinion of Edgerton, C. J., in Bailey v. Richardson, 86 U. S.App. D. C. 248, at p. 268, 182 F. (2d) 46, at p. 67 (1949).23 Schenk v. United States, 249 U. S. 47, 39 S. Ct. 247, 63 L. Ed. 471 (1919).24 Lochner v. New York, 198 U. S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905).1 14 I1. App. (2d) g1, 142 N. E. (2d) 818 (1957).

Constitutional Law - Due Process - Whether the Denial of Loyalty Clearances May Be Based on Faceless Informer Evidence

bepress Legal Repository

https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1891&context=cklawreview

Constitutional Law - Due Process - Whether the Denial of Loyalty Clearances May Be Based on Faceless Informer Evidence

Abstract

Similar works

Full text

Available Versions

Chicago-Kent College of Law

bepress Legal Repository