Security and Dr. Peters

In 1949, someone told the F.B.I. that Dr. John P. Peters, senior professor of medicine at Yale, had been a member of the Communist Party. Since Peters was also employed at the time as a part time consultant to the United States Public Health Service, the treadmill of a government security proceeding began to turn. Later that same year, a loyalty board cleared Peters of all suspicion of disloyalty. In 1951, the same process began again; he swore under oath that he had never been a Communist and again the government declared him loyal.

Finally, in 1953 the accusation caught up with Peters. The Loyalty review Board announced that there was reasonable doubt as to his loyalty to the United States and dismissed him from his consultant's post. To this day, Peters does not know who supplied the F.B.I. with its information, although current Washington rumors credit Louis Budenz with some of the charges. Peters never confronted his accusers. Neither did the loyalty board which discharged him.

Peters has know carried his case, along with the possible fate of the government security system, to the United States Supreme Country. Two weeks ago, his lawyers field briefs demanding his re-instatement on a claim the government had fired him without regard for due process of law. Despite reports of high-level dissension over the case, the Justice Department struck back strongly at the Peters arguments, defending the government's unrestricted right to dismiss employees without a formal judicial process and without interference by the Federal judiciary. A Supreme Court judgement against the government, one Justice Department official said forebodingly, "would knock the whole security program galley-west."

Due Process Invoked

Despite a multitude of complex legal arguments Dr. Peters takes his stand on one main ground--that the government security set-up, by dismissing him for possible disloyalty without a chance to confront and cross-examine his accusers, denied him due process and violated his Constitutional rights. Both the Fifth and the Sixth Amendments to the Constitution are thus involved in the case. The specific right to confront accusers is guaranteed by the Sixth Amendment only in "criminal prosecutions." The courts have interpreted this phrase however, to mean that wherever "punitive action" against an individual is involved, the full safeguards of judicial process under the Amendment do apply.

Ordinary dismissal from a government job has never been considered legally punitive. Does a dismissal on loyalty grounds, however, inflict real punishment on an individual because of the undeniable stigma it casts on his name in the present climate of opinion? And has this stigma of a "loyalty discharge" impaired Peters' future ability to earn a livelihood and hence deprived him of property, as well as liberty, in violation of the Fifth Amendment? On these central issues may hinge the outcome of the Peters case and the future status of the loyalty program.

It its claims of unlimited dismissal power over its employees, the government depends largely on Bailey V. Richardson, a five-year-old case in the Circuit Court of Appeals. "Never in our history has a government administrative employee been entitled to a hearing of the quasi-judicial type upon his dismissal from government service," the majority of the judges held. Therefore, "the due process clause does not apply to the holding of a government office." The Bailey case is a precarious precedent for the Justice Department, however. One of the three Circuit Court judges, in dissent, held that a loyalty dismissal is a punitive action and entitles the accused to full judicial safeguards. And the supreme Court affirmed the Bailey decision by the narrowest possible margin, a 4 to 4 tie. While none of the high tribunal's opinions were officially announced, several of the justices have since gone out of their way to assail the Bailey case verdict. Justice Black has written that the case "demonstrates how the entire loyalty program grossly deprives government employees of the benefits of Constitutional safeguards," and Justice Douglas has expressed similar fears about the security set-up.

In the end, the Court may well find an answer to the loyalty dilemma in the flexibility of the term "due process." As Justice Frankfurter has pointed out, "due process" is not a legal conception "unrelated to time place and circumstances what is unfair in one situation may be fair in another." As part-time employee in a non-sensitive position, without access to government secrets, Peters may win his claim because of the particular circumstances of his case. Despite, alarming phrases like "galley-west" (from the) Justice Department, however, the Court is hardly likely to overturn the whole security program in its decision, since there is an obvious need for protection of government secrets in a time of crisis. A real overhand of the security system will probably have to come, not form the courts, but from the Executive Department itself.