Informers' Dilemma: Conscience or Committee?

From the "talebearer" condemned in Ecclesiastes to the "stool-pigeon" villain of the modern-day comic book, the informer has traditionally been the object of peculiar contempt on the part of his fellow citizens. Perhaps this hatred of the man who betrays his fellows has reached its height in the United States--from childhood on, almost every. American absorbs a dread of "tattling". The emotion has become deeply ingrained in our society.

But in an age of widespread insecurity, Americans have become acutely aware of the complex demands of national security, and increasingly fearful that many historic American attitudes may no longer be adequate for the present day. The problem of the informer has arisen in new and vivid forms since the war, largely as an outgrowth of the intensive search for subversion of recent years.

Congressional committees and other investigating bodies have questioned literally thousands of Americans who have at one time participated in Communist activities. And witnesses have inevitably been asked to answer questions not only concerning their own activities, but those of friends and associates as well.

Informing Repugnant

Some witnesses have assented to the demands of investigating committees almost gladly, virtually assuming the role of professional informers. Others, perhaps the great majority of all witnesses, have testified about associates grudgingly. And yet a third group has simply been unable to overcome its repugnance to disclose information about others--these witnesses, while often describing their own activities in detail, have refused to testify about others altogether.

A number of members of the American academic community have found themselves face to face with this unwelcome dilemma in the past few years. Witnesses such as Harvard's Wendell H. Furry, Cornell's Marcus Singer, and several New York City public school teachers, have steadfastly refused to speak about former associates before investigating groups on grounds of conscience. As a consequence of their defiance, they face the possibility of explicit, legal punishment, as well as the more intangible sanctions that many former Communists have encountered.

Their dilemma resolves itself in essence into a series of perplexing questions: "Should considerations of personal friendship and the desire to shield friends from public humiliation prevail over the demands of national security?" "Do I as a teacher have greater moral and legal obligations than my fellow citizens?" "Should I accept departures from the historic ideal of due process in apparent questions of national security?" "Have I the right to question the power and motives of a committee which claims to uphold national security?"

Procedure Challenged

These questions appear in what is perhaps their fullest complexity in the case of Professor Furry. The basic moral problem of informing on one's associates is present not only in abstraction, but reappears again and again because of the special procedural circumstances of the case.

In a sense, the overriding moral issue can in fact be seen only in terms of the procedural aspects of the case. Furry's lawyers have challenged the government's case on a number of grounds: the scope of the authority of the Government Operations Committee of the Senate under the legislative reorganization act of 1946; the pertinency of the investigators' questions; the motives and objectives of Senator McCarthy's subcommittee; the conduct of the particular hearings at which Professor Furry testified in January, 1954; the presence of television cameras in the learning room.

Each of these must be decided on technical legal grounds; each, however, has introduced additional moral considerations into Furry's refusal to reveal the names of former Communist associates to the subcommittee. For as Mark DeWolfe Howe, Professor of Law, has asserted, "clear authority and decent procedure" are fundamental to "these matters of conscience."

To a noted Washington lawyer, Abe Fortas, many Congressional investigations such as the McCarthy hearings have failed flagrantly to meet these tests. Fortas has said, "There are no standards of judgment, no rules, no traditions of procedures or judicial demeanor, no statute of limitations, no appeals, no boundaries of relevance, and no finality. In short, anything goes; and everything frequently does--and often on television."

In the Furry case, there is initial dispute as to the authority of the McCarthy subcommittee. Its parent committee was originally designed, Furry's lawyers claim, to oversee only the General Accounting Office and the Bureau of the Budget, and was delegated the task of "studying the operation of government activities at all levels with a view to determining its economy and efficiency." Alan Barth, editorial writer of the Washington Post and a sharp critic of congressional investigative techniques, has argued that "It is one thing to strip Congress of its investigatory power and quite another to strip a committee of power which Congress never delegated to it... The deference due Congress ... is not due a committee of subcommittee spuriously acting in the name of Congress."

It has been further argued that McCarthy's intentions were not directed toward gathering information, with an eye to possible legislation, presumably the proper function of a legislative investigative committee. In his discussion of Congressional investigations, Bath has commented, "the purpose of an inquiry seems the significant key to its validity. Questioning aimed at inhibiting expression or harassing non-conformity of conducting a legislative trial entails purposes that are unconstitutional. It is certainly possible to ban such questioning without impairing the ability of congressional committees to discharge their vitally important part of the legislative process." Here again, it seems impossible disentangle substantial moral questions from the purely legal aspects of Furry's refusal to testify concerning others before the McCarthy committee.

The abstract moral question of informing, obscured somewhat in the Furry case with its complex procedural issues, perhaps emerges most clearly in the controversy over the responsibilities of former Communist teachers in the New York public schools.

The authority and jurisdiction of the New York Board of Education over its public school teachers has so far been upheld by the courts. And the Board, in demanding that certain teachers testify concerning their former associates in the Community Party, has explicitly reject all claims of a right of conscience and private judgment.

"Those who claim on any ground the right to refuse should make good the sincerity of their claim by resigning; and if they fail to do so, they should be removed," the Board has said. The Superintendent of Schools has been granted a considerable amount of discretion in deciding whether or not to require teachers to name their associates; but once he does decide to request information about others form a teacher, that teacher faces the starkest of alternatives--either he must make the decision to inform or he follows the dictates of conscience at the risk of almost certain dismissal from his job.

Refusal to inform solely on grounds of conscience and moral duty has been defended most eloquently by Barth. "A witness who feels certain that the persons with whom he was associated in the party were as idealistic and misguided as himself, and were as innocent of espionage or sabotage or any criminal activity, can in good faith refuse to expose them to odium and humiliation. He writes, "if these persons have left the party and established respectable positions for themselves which would be destroyed by his disclosures, he can understandably be unwilling to offer them and their families up as sacrificial victims."

"This kind of defiance... may be altogether unwarranted in law; it may also reflect a mistaken estimate of a particular persons it is intended to protect. Nevertheless, it is an open and candid assumption of individual moral responsibility of a sort that is expected of men and women in a society where the individual conscience is recognized as the supreme authority. It is a course more likely to produce public respect and self-respect than any pleading of a constitutional immunity. And if it does not save the pleader from prison, it will save him at least from an enduring sense of shame."

Telford Taylor, another recent writer on the problems of investigations, share many of Barth's criticisms of investigative practices. But he takes a much more restricted view of all individual's moral right to refuse testimony about others.

"Generally speaking", he writes, "a witness before a Congressional committee has the same duty to answer questions about other persons as about himself...Congress (or a state legislative body) is entitled to whatever information it reasonably needs to discharge its functions, and that may well include--whether the subject of inquiry be stock exchanges or subversion--testimony from a witness which is derogatory of others, or even which implicates them criminally. And neither before a committee nor in court do considerations of personal friendship or of reluctance to injure other individuals, justify the witness in defying the power of inquiry for the public good."

Taylor lays considerable emphasis on the question of the scope of committee power and argues that "Personal compunctions cannot be permitted to obstruct valid official inquiries, but they are entitled to weight in the scales when legal authority is lacking." Even then, Taylor finds an apparent obligation on the part of witnesses to deliver information about others to authorized government officials, especially where considerations of national security may be involved.

For example, he writes "...I would find it difficult to justify Professor Furry's refusal to disclose, to the authorized government authorities, the identity fo his five fellow members in the Party while he was working for the Army Signal Corps... this affair lies so close to the security of the state that I believe a citizen with knowledge off its details should put that information in the Government's hands."

Taylor does express serious doubts as to whether the McCarthy committee met the test of proper authority when Furry testified before it; he finds a possible moral justification for Furry's action in the procedural elements of the case, if not in the generalized claim of individual conscience that Barth is willing to allow.

Perhaps in the final analysis, however, the question of an individual's refusal to inform on grounds of conscience is a theological one. To be sure, no moral theology offers explicit maxims to guide the decisions of a witness, but all lay down borad base lines.

A Higher Law

In a discussion of Catholic teachings on the subject of conscience and the individual, Monsignor Francis J. Lally. editor of the Pilot, official newspaper of the Boston archdiocese, emphasized the pre-eminence of moral law over statutory law. "There is a higher law than the law of the land. We must put moral law above the law of the land; conscience must always receive the first choice."

In making the moral decision whether or not to testify, a witness must balance the demands of his conscience against his view of what constitutes the common good of the community, for "we have social as well as personal responsibilities." Answers to the dilemma may vary with individuals depending upon their mental makeups, Msgr. Lally continued, but the sincerity of the decision is all important in determining its moral quality.

A public school teacher occupies a leading position in the community, and should be held to a high degree of moral obligation. Yet the paramount consideration at this time, in particular, should probably be the necessity to preserve individual rights. "Because of the mood of our time and the totalitarian menace, we should emphasize opposition to that mood--the rights of the individual."