Outside the Law

An eminent Washington lawyer, ABE FORTASis outspokenly opposed to the invasion of judicial power by the legislative branch of the government. Mr. Fortas served on the Yale Law Faculty for five years; he left New Haven for Washington. where he was Under Secretary of the Interior from 1942 to 1946. Then with Thurman Arnold and Paul Porter he formed the firm, Arnold, Fortas & Porter. The article which follows is based upon a talk he made in a panel discussion sponsored by the American Law Institute.

by ABE FORTAS

1

ON the first day of June, 1953, a distinguished Federal judge appeared before a subcommittee of the Judiciary Committee of the House of Representatives. He had been subpoenaed to testify as to the conduct of the Federal courts and grand juries in California with respect to tax cases. Backed by a letter signed by seven of the Federal District Judges of California expressing their unwillingness for one of their members to testify “with respect to any judicial proceedings,” the subpoenaed judge declined to answer the committee’s questions. He was, of course, entirely correct. As the judges’ letter pointed out, “the Constitution does not contemplate” that judicial proceedings may be reviewed by the legislative branch, but only by the courts.

Lawyers and judges are likely to applaud this action. By and large, their guardianship of constitutional principles has been fairly good where the courtroom is involved. They have resisted efforts to curtail the jurisdiction of the courts. In judicial proceedings, violations of the requirements for a full and fair opportunity to defend as well as prosecute, which lawyers call due process, have been relatively rare. But now there are alarming indications that, so far as individual freedom is concerned, the courtroom is tending to become a Maginot line.

The arena in which the war for freedom is being fought has shifted. It is no longer the courts. It is the room of a committee of Congress and the hearing chamber of a loyalty board of an agency of government. Imprisonment may not result before these agencies — at least directly — but the penalties are hardly less severe: ostracism and impoverishment and denial of access to one’s profession and the society of one’s friends.

I believe that this is a startling and fundamental fact of our time: that the reality of power over the freedom of individuals has shifted from the courts and judges and lawyers to committees of Congress and bureaucratic boards — to committees and boards of men who frequently have had no training in the law or familiarity with its principles; who do not even pretend to exercise judicial power or to proceed in the tradition of the law.

This is a shift of profound importance in the American Constitution. It is in fact if not in form a redistribution of power over the most fundamental subject of constitutional concern: the life and liberty of the individual.

In the late twenties and early thirties we confronted a similar constitutional crisis because of a vast expansion of the executive power. This primarily took the form of the creation of a multitude of administrative boards — bureaucratic agencies with vast power over property rights. In their early operations, these boards conducted themselves with little regard for the traditional rules of procedure. They frequently took the position that their proceedings and decisions were not subject to review by the courts. There resulted a long and difficult struggle to subordinate these agencies to the rule of law and to compel them to bring their procedures into harmony with the basic requirements of fair play which our traditions of due process demand.

Many qualified people thought that to subject these agencies to procedural restrictions, and their decisions to court rev iew, would make it impossible for them to do their work. They felt that the acute economic emergency required that the administrative process should not be subject to judicial restraint or to the hindrance of procedural due process. “Liberals” were particularly energetic in expressing this opinion. However, the “conservative” view prevailed. The administrative process was subjected to due process requirements, and the result was clearly beneficial. Their performance of assigned functions was not materially impaired, and their procedures and decisions were brought into closer conformity with our traditions of fair play.

We are now confronted with a similar struggle, not as to property rights, but in a vastly more important area: the field of individual freedom and national conscience. The existence of this struggle, together with its fundamental implications, has been obscured because it arises in the context of our battle with Communism. But I am convinced that our present method of dealing with the freedom of individuals in disregard of fundamental legal principles and procedures presents us with an acute constitutional crisis.

Our concern is and must be to safeguard liberty, not merely to protect the courtroom. It will be of little comfort that we have preserved the traditions of judicial process in the courthouse if assaults upon liberty are licensed in the committee room or the administrative chambers.

2

IT is hard for persons who are not familiar at first hand with loyalty proceedings before Congressional committees and executive boards to realize how far these tribunals have departed from basic principles of procedural regularity and elementary fairness.

A lawyer who leaves his usual work to represent a person caught up in the processes of a loyalty board or Congressional committee investigating subversion finds himself in a strange world. One of the odd features of this world is that the lawyer’s job is generally at an end when he sets foot in the hearing room.

In the Congressional proceedings, no matter what defense witnesses may be available to the lawyer, he may not produce them. He may not speak to his client unless his client takes the initiative to request advice. In fact, he may not speak aloud at all; and this rule is vigorously enforced by the gavel and threats of eviction. No matter how outrageous the question or statement, if it is uttered by a member of the committee, the lawyer may not object.

Except for lawyers who represent clients claiming the privilege against self-incrimination, the only purpose that counsel really serves at these hearings is to lend an illusion of legal process to a thoroughly unjudicial proceeding. At best, his presence serves only to give moral support to the accused. But the lawyer himself is bound to feel not only a sense of futility but also a deep concern. Is he participating in an ominous deception? Has he become a party to an elaborate and dangerous pretense that the accused has been given the right to counsel, when in fact counsel is a mere spectator? Where does his duty lie? Is it to give dubious psychological aid to his client by his paralyzed presence; or does he owe it to his profession and to a decent regard for the traditions of the law to decline to lend himself to this distortion of a cherished right? I suggest that the bar might well ponder whether it will permit, without protest, the degradation of the right to counsel which is taking place in the hearing rooms of these Congressional committees.

The denial of the right to counsel is not the only novelty of these proceedings. In substance and in procedure, they are like a bad dream. Familiar trappings have a strange unreality. Things are out of perspective; proportions are distorted. The proceedings seem to concern something of reality, but what goes on appears unrelated to that reality.

Whether the hearing is before a Congressional committee or a departmental loyalty board, there are no issues — no specific points to be determined —except that everything that the accused has thought, done, or read, and everybody whom he has ever seen or with whom he has ever talked, are within the scope of inquiry. There arc no standards of judgment, no rules, no traditions of procedure 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.

The real danger of this situation can be comprehended only in the light of some of its specific characteristics as they appear in proceedings involving persons who are not Communists.

The purpose of the proceeding is not to determine whether the accused did something, or even whether he has had, uttered, or been associated with “subversive” ideas. Rather, it is whether on the basis of his entire life he does or does not meet the tribunal’s conceptions of freedom from disloyalty. In substance, the burden of establishing virtue and conformity is on the accused.

Before Congressional committees, of course, there is no statement of charges whatever. Among the departmental loyalty boards there is some variation in procedure, but it is almost always true that there are important accusations of which the respondent is not advised before the hearing; and sometimes there are some which are not disclosed even at the hearing but which are the basis of decision.

At the hearings before Congressional committees, there is no confrontation and no opportunity for cross-examination. This is also substantially true of departmental loyalty boards. The loyalty board procedures purport to permit cross-examination, but this is largely a hoax because in most cases no witnesses are produced. The lawyer may have the right to cross-examine, but there are no witnesses to work on. The boards need not call witnesses at all; they have no subpoena power; they are not at liberty to produce or even to identify confidential informants— a category which includes anyone who gave adverse information with a request for nondisclosure; and the boards may nevertheless rely on the entire contents of the file.

Before Congressional committees, counsel may not even examine the accused to develop his defense. Indeed, the accused has no real opportunity to volunteer his own defense or explanation. He has no foreknowledge of the lines of inquiry and no access to documents that the committee may use. In notorious instances, the form and technique of questioning seem designed to confuse or entrap him, and to prevent explanation rather than to elicit it.

In fact, some aspects of the procedure used by at least one of the leading committees invite the suspicion that the marshaling of the so-called evidence is designed not to test a point, but to convey a sensational and damaging impression to the press and public. One technique frequently employed by a committee is to ask the accused to identify — merely to identify — a named person. Let’s call him Mr. Ting. The accused states he has read in the press that Mr. Ting is a leading Communist. Committee counsel then asks an investigator, who has been solemnly sworn, to identify a document. The document is elaborately identified, in what seems to the lawyer to be a parody of courtroom behavior. Next, it is read into the record; and it shows that Mr. Ting was engaged in some nefarious Communist activity. The committee then proceeds to question the accused about a totally different subject.

Throughout all of this drama, the accused sits bewitched, bothered, and bewildered — the focus of hundreds of eyes in the hearing room and perhaps at the television sets. He may have had no connection with Mr. Ting. He knows nothing about the incident in the exhibit. The committee does not even suggest that he was connected with it. But the accused is as definitely implicated in the minds of the audience as if he himself had committed the described act of subversion or Communism.

I refer to this monstrosity not because I am interested in criticizing the committee members or their staffs, but because it illustrates the type of thing that is likely to happen when there are no standards or traditions of procedural regularity. I do not challenge the sincerity of purpose of most of the members of these committees and their staffs. I suppose that they invariably believe that the accused is guilty of failure to measure up to their particular standards of loyalty; and they believe that it is a public service to publish this fact to the world in a way that will be effective and convincing.

The kind of display that is staged is ideal for their purposes. It provides the committee with unique opportunities for drama and publicity; and at the same time it avoids the complications and doubts that might be created if counsel for the accused were allowed to participate, if the accused were allowed to testify under examination by his own counsel, if adverse testimony were subjected to cross-examination, or if argument were permitted. It is represented and generally accepted as a hearing. A hearing conveys to the public a sense of comfort and satisfaction. They feel that the proper legal forms have been employed and that the accused has had an opportunity to defend himself. They do not realize that the proceedings are so conducted that practically none of the substance of a hearing is present. It is a hearing in name only.

The net result of all of this is a dangerous deception, however sincere the committee members may be and whether or not they are aware of the implications of their procedures. The net result is a sham, not a hearing. Hearings are supposed to serve the purpose of permitting the accused to defend his innocence or to present facts in mitigation of guilt, and to assure that all factors are considered by his judges. They are not supposed themselves to be punishment or to be vehicles for condemnation or abuse. But that is exactly what a hearing has become in the hands of some — not all, but some — of our legislative inquisitors. In their rough grasp, the hearing has become a weapon of persecution, a useful tool to the demagogue, a device for the glory of the prosecutor, and a snare for the accused. And it is an alarming fact that through the medium of television and radio the American people are being educated to the notion that these spectacles are hearings which satisfy democracy’s insistence upon due process.

3

THERE is cause for concern not only about procedures, but also about the standards of judgment that are applied in cases where a person is accused of deviation from loyalty. It is of the utmost significance to realize that judgments, whether by Congressional committees or loyalty boards, are not limited to facts involving 1 He accused’s current activities, attitudes, or affiliations. If the accused has once fallen from grace — that is, if he has at any time failed to meet the tribunal’s present notions of loyal conduct, attitude, and belief—he is condemned. There is no locus poenitentiae. The accused may be fortunate enough to have a public record of anti-Communist activities for the past eight or ten years; but if prior thereto he was a member of the Young Communist League, or even if he attended meetings of organizations whose Communist connections were unknown to him, he is roundly excoriated and his career and livelihood are forfeited or placed in jeopardy. The cases of the State Department official, Mr. Kaghan, and of the editor of the New York Post, Mr. Wechsler, illustrate this point.

In general, a characteristic of the proceedings is the complete absence of discriminating judgment in selecting persons to accuse or to condemn. Everybody, I assume, now knows that in the thirties and part of the forties, thousands of fine, thoroughly non-Communist people contributed to Spanish relief organizations, attended anti-Fascist meetings, participated in rallies against Hitler, joined in organizations to promote friendship with the Soviet Union when it was our wartime ally, and even took out memberships in book clubs to get books and phonograph records at a discount. The names of illustrious Americans were identified with many of these groups in those days of illusory promise — even the names of leading conservative businessmen and bankers. But with monotonous regularity these so-called associations are the basis, and often the entire basis, for loyalty proceedings and investigations of American citizens; and they are familiar grist of the mill to Congressional committees.

It is small comfort to say that well over 90 per cent of Federal employees are cleared after loyalty board proceedings, and that a great many people and institutions no longer accept flimsy charges, however vigorously asserted, as proof of subversion. The fact is that the accusation itself is terrible in its consequences to the individual; that the damage to his reputation is never completely overcome; and that he never fully recovers from the shock and anguish to his soul caused by this incredible process of inquisition.

4

I DO not believe that this process of inquiry into personal belief and loyalties should be outside the law. I believe in the necessity of Congressional investigations and in the urgent need for the government to protect itself against subversion and subversives. But I do not believe that this — any more than the power of administrative agencies dealing with property rights — need be above and in reckless violation of our basic constitutional guaranties and the substantial safeguards of procedural due process. I do not believe that we can save the nation by destroying our principles of fair play and a decent regard for the dignity and liberty of others.

There are a few fundamental reforms that I would suggest for consideration: —

1. That no one may be subjected to a hearing or proceeding as to any matter relating to his loyalty or security unless probable cause for challenge has been found. In the case of departmental proceedings this finding should be made by judicial officers within the department, and not by officials responsible for investigations. In the case of Congressional committees, the finding should be by a majority of the members. In making a judgment as to probable cause, the standard should be whether there is probable cause to believe that at present or within the past few years — perhaps three or five years — the person is or has been engaged in activities inimical to the United States.

2. There should be excluded from consideration and from public inquiry questions relating to associations with Communist-front organizations during the years prior to their public or official recognition as such, unless it appears that the accused participated in the Communist control-group or in the specifically Communist activities of the organization.

3. Counsel for the accused should have the right to examine the accused, to object to the form and substance of questions, and generally to perform the accepted functions of counsel. This recommendation represents a change of position on my part. I have only recently come to the conclusion that broad participation by counsel for the accused is so essential to fairness in these hearings that any difficulties which may result should be willingly incurred. Committees and boards which operate in the area of individual freedom must be prepared to submit to essential safeguards in the interests of justice even at the cost of some inconvenience. I am reasonably confident that no serious impairment of their work will result, and I have become convinced that we must abandon hope that the committees will so conduct themselves as to make it unnecessary to accord this right to counsel for the accused. Committees should—and, I believe, would — be alert to prevent abuse of this right.

4. The accused should not be asked about any issue unless he has been apprised of it in advance, and he should be given reasonable access to documents. This is essential if he is to be afforded a real instead of an apparent right to defend himself, and if committees arc to be prevented from utilizing a failure of recollection as if it were deceit.

5. The accused should always have the right to present evidence of reasonable extent and clear materiality in his own defense. This, of course, is fundamental to defense. I should add that if committees are to be permitted to continue to use trial-by-television, equal television time should be accorded to the defense.

6. No evidence should be used or made public against the accused unless he has been confronted with it and given a reasonable opportunity to refute it, and no testimony or statements should be used against him unless he has been confronted by the accuser and has been given a reasonable opportunity for cross-examination. This position also represents a change of views on my part. Experience haspersuaded mo that committees and boards cannot be discriminating in the use of anonymous or untested “evidence.”We have never believed that even the judiciary can be allowed to hear or consider such evidence. “Confidential informants” who cannot be produced to testify, either because they are secret agents or because they have been promised immunity from testifying, should be utilized only as leads to witnesses and materials that can be subjected to tests of accuracy and reliability. Insistence upon these rights will, of course, prolong proceedings, but that is not too great a price to pay for the protection of personal freedom.

Some of the opposition to procedural reforms of the type that I have described is based upon the understandable fear that due process will be used to shield Communists. I believe that this fear has been considerably exaggerated. To grant due process to the accused is not to encumber committee and loyalty board proceedings with the technicalities of a common-law trial. Even our modern court proceedings are relatively free of these encumbrances, and committees and loyalty boards can be much less formal and elaborate in their procedures without sacrificing the essential elements of a fair hearing.

Beyond this, it must be noted that if we deny due process because it will aid the guilty, we necessarily deny it to the innocent. Free society has always considered this too great a price to pay for expedition in the discovery and punishment of malefactors. Essentially this reasoning rejects the presumption of innocence. It reflects a prejudgment of guilt and denies that the very purpose of a hearing is to determine guilt or innocence. Man is fallible, and even after a full and fair trial the innocent are too often branded guilty, and the guilty castigated beyond their deserts.

Indeed, the ironical fact in the current wave of sedition inquiries is that the persons who have been deprived of due process are not the Communists, but the non-Communists. The Communists have taken refuge in the constitutional privilege against self-incrimination and have not participated in the proceedings. There is no reason to assume that they will change their position in this respect merely because a fair hearing is available to them. Their apparent policy is to avoid any hearing, fair or unfair.

Apart from the validity or invalidity of particular suggestions, what is needed is the clear recognition of this principle: that in the sensitive and fragile area of personal life and liberty, the fundamental law of our Constitution and our democratic tradition may not stop at the courthouse steps. They must follow whatever life and liberty are placed at issue. The basic rights of our people are now at issue in the chambers of the Congress and the executive agencies. It is our duty to see that they are dealt with in decent regard for the guaranties of our democratic traditions and our code of fair play.