Dressler v. Wilson, 155 F. Supp. 373 (D.C. D.C. 1957)

Green, Ray Ellis

English

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Buffalo Law Review Volume 7 Number 2 Article 12 1-1-1958 Due Process and National Security Ray Ellis Green Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Constitutional Law Commons Recommended Citation Ray E. Green, Due Process and National Security, 7 Buff. L. Rev. 312 (1958). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol7/iss2/12 This Recent Decision is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWDue Process and National SecurityPlaintiff, a telephone company employee, was denied a security clearance onthe basis of his active participation in an organization on the Attorney General'slist. A hearing was accorded at which plaintiff appeared but failed to offer anyevidence in his own behalf. Plaintiff was not confronted with the witnessesagainst him. The hearing board affirmed the denial of clearance, and the telephonecompany discharged plaintiff from its employ. In an action for declaratoryjudgment, plaintiff moved for temporary injunction, held: motion denied on theground that due process does not require confrontation of witnesses in this type ofproceeding. Dressler v. Wilson, 155 F. Supp. 373 (D.C. D.C. 1957).The Court's decision denying the motion is justifiable on the facts as givenin the opinion. It appears that plaintiff offered no rebuttal evidence whatsoever.However, in the writer's view, the grounds of decision represent a choice betweenconflicting interests of national security and individual liberty. The followingdiscussion analyzes the principle laid down by this case in relation to the largerproblem created by the security-liberty conflict. Specifically, should due processunder the Fifth Amendment require confrontation and cross-examination in thistype of proceeding?The Court in the Dressier case holds, ..... there is no Constitutional require-ment of confrontation with witnesses in a proceeding outside of criminal courts."Dressler v. Wilson, supra at 376. This is the principle to be considered. To be sure,this conclusion finds full support in the Sixth Amendment which confines itsguarantee of confrontation to ".... all criminal proceedings .. ." But a discussionof the confrontation issue requires looking beyond the Sixth Amendment to aconsideration of the historical development of procedural due process guaranteedby the due process clause of the Fifth Amendment. What has it been held toencompass, and how has it been applied to various proceedings?In the first place, procedural due process as guaranteed by the due processclause of the Fifth Amendment was early held to be basically a protection of theindividual from the Federal government, and not applicable to state proceedings.Barron v. Baltimore, 7 Pet. 243 (1833). The due process clause of the Four-teenth Amendment which controls state proceedings has been held to encompassonly those procedural elements which are "... of the very essence of a scheme ofordered liberty." Palko v. State of Connecticut, 302 U.S. 319 (1937). This ideathat certain principles of justice are fundamental will be later referred to. Weturn first to the procedural protection against governmental action secured by theConstitution. When the government brings prosecution for infamous crime, theprocedural right to confrontation of witnesses, the right to grand jury indictment,the right to jury trial, the right to refuse to give self-incriminating testimony, andRECENT DECISIONSthe other specifically enumerated rights are inviolate. Moreover, in Federalcriminal proceedings, procedural due process has been held to extend not only tothose elements of procedure specifically enumerated in the Constitution, but toall ". . . established modes of procedure devised for the security of life andliberty." Crain v. United States, 162 U. S. 625, 644 (1869). On the other hand,the procedural requirements to which Federal criminal proceedings must adhereare far stricter than those required in Federal non-criminal proceedings. Forexample, a proceeding to punish for contempt of court does not even requirethe presence of the defendant, if there has been suitable notice and adequateopportunity to appear and be heard. Blackmer v. United States, 284 U.S. 421, 440(1932). In Ex Parte Wall, 107 U.S. 265 (1883), the Court held it to be a"... mistaken idea that due process of law requires a plenary suit and a trial byjury, in all cases where property or personal rights are involved." (emphasissupplied), and cited many instances of civil proceedings, such as bankruptcy,admiralty, probate and the special habeas corpus proceeding, where such rightswere not accorded. The Court summarized the extent of procedural protectionin non-criminal matters as follows: "In all cases, that kind of procedure is dueprocess of law, which is suitable and proper to the nature of the case, andsanctioned by the established customs and usages of the courts." With respect toadministrative proceedings conducted by the government, the procedural require-ments are often far less stringent. The Court has held that the demands of dueprocess do not require a hearing at the initial stage, or at any particular point inthe proceeding, so long as a hearing is held before the final order becomes effective.Opp Cotton Mills v. Administrator, 312 U.S. 126, 152, 153 (1941). In Bowles v.Willingham, 321 U.S. 503, 521 (1944), the exigencies of the war effort led theCourt to hold that a statutory right to judicial review of orders fixing maximumrents, vitiated the right to a hearing at any administrative stage. This case wouldseem to mark the outer boundary on the range of protection afforded by theconcept of procedural due process. Significantly, the Court in the Bowles caserecognized that ". . . even the war power does not remove constitutional limita-tions safeguarding essential liberties," but felt that "A nation which can demandthe lives of its men and women in the waging of that war is under no constitu-tional necessity of providing a system of price control ... which will assure eachlandlord a 'fair return' on his property." It is clear that the security clearancehearing is not in this area of least procedural protection. Today, there is no"shooting" war being waged, and no American lives being lost in the effort.Judicial reaction, though prompted by genuine concern about Communist infil-tration efforts, should be tempered accordingly. Moreover, the security clearancehearing threatens more than merely a 'fair return' on property of landlords. Itthreatens the right of a man to pursue his chosen vocation. Intangible thoughthis right may be, it is inseparable from the concepts of liberty and propertyexpressed in the Fifth Amendment. Parker v. Lester, 227 F.2d 708, 717 (9thCir. 1955). Under these circumstances, the substitution of judicial review for anBUFFALO LAW REVIEWadministrative hearings, deemed sufficient in the Bowles case, will not suffice. Adesire for fairness would seem to be at the core of the procedural requirementsof due process. Even in a loyalty or security proceeding, such as the instant casegrew out of, fairness is not to be abandoned. See Adler v. Board of Education,342 U.S. 485, 495 (1952). Not fairness in the abstract, but fairness under allthe relevant circumstances.The industrial security clearance hearing is somewhat novel and, as will beseen in more detail later, presents a conflict between liberty and security. Resolu-tion of this conflict requires consideration of the circumstances underlying and- surrounding this type of situation.The Communist attack on the internal security of the United States hastaken many forms, including espionage to discover governmental, scientific, andindustrial secrets. Undertaking to meet this challenge, the United States hasadopted unprecedented measures to preserve internal security. Personnel securityprograms were initiated in the middle 1940's and now cover five separate areasof employment. See REPORT OF THE SPECIAL COMMITTEE ON THE FEDERALLOYALTY-SECURITY PROGRAM OF THE ASSOCIATION OF THE BAR OF THE CITYOF NEw YORK, p. 4 and pp. 51-69 (1956). In the instant case, plaintiff'semployment is covered by the Industrial Personnel Security Program, adminis-tered by the Department of Defense. The program is designed to insure thatneither government contractors under contracts from the military departments, noremployees of such contractors are security risks. The standard applied is whethercontinued employment is ". . clearly consistent with the interests of the nationalsecurity." Department of Defense Directive 5220.6, 32 C.F.R. part 67, §67.1-3(1957 Supp.). By its provisions, the Directive allows denial of the rights of con-frontation and cross-examination of witnesses when the Hearing Board estab-lished by the Directive determines that permitting confrontation would be con-trary to the best interests of national security. Department of Defense Directive,supra, §§67.1-4, 67.4-5 (e). The denial of these procedural safeguards is basedon a desire to facilitate investigative techniques in the interest of national security.Obviously, the disclosure of undercover agents working on vital counter-espionageassignments would be injurious to national security. The need for undercoveragents and other anonymous informants as sources of security information haslong been recognized. See 40 OPINION OF Am. GEN. 45 (1941), and Hoover,A Comment on the Article:, 58 YALE L. J. 401, 409 (1949). Compare thegovernment's privilege against disclosure of written matter it deems confidential.Chicago & S. Airlines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1947).Unquestionably, the government has a right to control access to its classified data,15ut it is dear that this, and other such programs, create a threat to individualliberty. See O'BRIAN, SECURITY AND INDIVIDUAL FREEDOM, (1955); Douglas,Due Process in a Time of World Conflict, 39 A.B.A.J. 871 (1933). Determina-RECENT DECISIONStions under the programs may have the practical effect of excluding a man fromhis employment. If the nature of a person's vocation is such that the governmentand its contractors are the only likely employers, for example, the vocation of anatomic weapons expert, denial of security clearance may have the practical effectof excluding a man from this vocation. See GELLHORN, SEcuRITY, LOYALTY ANDSCIENCE, p. 111 (1950). Further, and perhaps more significant, denial of securityclearance generally results in dismissal by the employer. Cf. Comment, Loyaltyand Private Employment, 62 YALE L. J. 954, 956 (1953).The above quoted principle of the Dressier case to the effect that there isno confrontation requirement outside of criminal proceedings, seems whollyconcerned with the specific guarantee in the Sixth Amendment. This is anunnecessarily narrow view of the problem and displays a hardened attitude towardindividual liberties. The due process concept is flexible. Should it require moreprotection here? It is the writer's view that confrontation and cross-examinationshould be qualified rights. That is, they should be recognized as inuring to everyemployee who requests a hearing, and they should be modified only under certainlimited situations. This view rests on two grounds. First, because substantialrights are involved. In Parker v. Lester, supra at 718-721, 723, it was held thatcohfrontation should be afforded six hundred seamen who had been denied securityclearance. The opinion laid great stress on the right of the plaintiffs to pursuetheir chosen occupations. Fifth Amendment rights to life, liberty and propertydeserve the fullest protection of the law. They should be scrupulously protected.Secondly, because the tradition of fairness which has pervaded our legal societyshould not be abandoned on the ground of preserving national security. Theimportance of national security should not be minimized because it is dear thatwithout national security there can be no personal security. But jettison of thedefensive weapon of cross-examination in security cases, should be carefullyconsidered. As Justice Frankfurter pointed out in dissent from the holding inJoint Anti-Fascist Refugee Com. v. McGrath, 341 U.S. 123, 170 (1951), fairnessis rarely obtained in a secret, one-sided determination. It is true that the employeein these proceedings has an opportunity to be heard. But what meaning has thiswithout the concomitant opportunity to test the validity of the government'sproof by the use of cross-examination? For a full statement of the case for cross-examination, see 5 WIGMORE, EVIDENCE, §1368 (3rd ed. 1940). Isn't the prin-ciple of justice embodied in the right of confrontation and cross-examination so".... rooted in the traditions and conscience of our people. . ." as to be consideredfundamental and well-nigh indispensable? This was the test of due process underthe Fourteenth Amendment applied in the Palko case, supra at 325. Confronta-tion of the actual person who supplied the security information to the governmentis not advocated in each and every instance. As pointed out above, in the caseof an undercover agent, this would be foolhardy. What is advocated is abalancing of the interest of personal liberty, epitomized in the procedural right toBUFFALO LAW REVIEWconfrontation, against the interest of national security, represented by the denialof confrontation. Admittedly, no one balance can be struck to insure justice in allfuture cases, but certain guiding principles can, and should, be laid down. Forinstance, where the information supplied to the Defense Department is not swornto by the informant under oath, the suspected employee should be accorded theright to question the F.B.I. agent, or any other investigator who elicited theinformation. Similarly, where the informant is not an undercover agent, he shouldbe brought before the employee at the hearing and cross-examined. This will, ofcourse, necessitate a change in existing regulations to empower the HearingBoard to subpoena witnesses.. No such power now exists. Department of DefenseDirective, supra, §67.4-4(c): In a sentence, the choice between the interests ofsecurity and liberty should be pre-disposed in favor of the citizens' liberty.Ray Ellis GreenHeart-Balm Statute No Bar to Restitution of PropertyAn eighty-year old plaintiff sought the return of substantial cash gifts thathe bestowed upon a thirty-year old woman on the condition that she marry him,which condition was broken. Her defense was based upon the Pennsylvania Heart-Balm Statute, PA. STAT. ANN. tit. 48 §171 (1935), which abolished actionsbased upon breach of contract to marry. Held: the act did not affect contractssubsidiary to the actual marriage compact and in no way discharged obligationsbased upon a fulfillment of the marital contract. The plaintiff received restitutionof his property. Pavlicic v. Vogtsberger, 136 A.2d 127 (Pa. 1957).Heart-Balm statutes have been a main line legislative attack at abuses of th6law of contracts as applied to contracts of engagement to marry and the breachthereof. In many jurisdictions today, in New York as well as Pennsylvania, priorto 1935, the case books are full of decisions such as O'Brien v. Manning, 10Misc. 123, 166 N.Y. Supp. 760 (Sup. Ct. 1917), that had awarded exorbitantamounts to sorrowful young ladies who had claimed damages of the heart and mar-riage market, caused usually by wealthy men who unwisely associated with them andthen paid-off to avoid the notoriety of such a law suit. The difficulty of proof asto whether or not the contract was agreed upon at all, or who broke it, if it wasagreed upon, gave the courts much concern. Since there were seldom anywitnesses or written evidence of the agreement, the proof depended entirelyupon who gave the most convincing story. The juries in turn were never seriouslyin doubt as to the path of justice when confronted with a weeping femalecomplainantThe states that have adopted a heart-balm statute remedy for such haplessmales are quite generally worded as are New York's and Pennsylvania's, "All causeb

Due Process and National Security

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