The Loyalty Program: A Case for Termination
Stern, Philip M.
THE LOYALTY PROGRAM: A Case for Termination by Philip M. Stern “We are acutely aware that in a very real sense this case puts the security system of the United States on trial,” wrote the...
...a society in which everyone becomes the potential prey of the busybody next door who may not approve of the art in his home or the views he expounds at the PTA meeting...
...The use of the loyalty-security program- and other government powers as well- to penalize unorthodox opinions is not a thing of the past...
...That being the case, it seems of dubious utility, in spotting would-be spies, to dig into the political backgrounds and beliefs of applicants for federal jobs...
...There is no telling when they may detonate or, because they contain so many “related” names, who may be injured when they do explode...
...The Navy said it had taken this action because of Newell’s “admitted activities, associates and expressed opinions,” including the following: (1) He became President of one of the student organizations in which he was active...
...And do government investigative agencies deploy agents to scrutinize Ph.D...
...Louis Adamic has been listed as an official of the Progressive Party in Philadelphia in 1948, which has been cited as a Communist Front organization by the California Tenney Legislative Committee...
...One of the “unclearable” scientists, Brewster Smith, chairman of the psychology department at the University of Chicago, told Science he believes it is because of his membership in a leftist student organization while a sophomore and junior in college...
...citizens to travel to Cuba (2) He was an atheist...
...Many are filled with misinformation that the “subject” has no way of rebutting or correcting, for he has no way of knowing what the file contains or who furnished the information...
...A previously secret investigative report was used by Attorney General Brownell, a Republican, as the basis for a politically-charged claim that former President Truman had knowingly promoted a Soviet spy in the employ of the United States...
...It “rates persons for a wide variety of purposes including industrial security...
...Can anyone now predict who will summon the genie, or for what purposes...
...In the years immediately following World War 11, the government of the United States asserted a power it had never before claimed or exercised on a government-wide basis in peacetime: the power to investigate the private lives and the political beliefs and affiliations of its citizens and, from its findings, to appraise their “loyalty...
...And Dr...
...As noted in the cases of recent date, above, those laws are still invoked to penalize opinions and associations whose only offense is their controversiality...
...would you expect [ a dinner hostess] to appear in overalls...
...It is a thing of today...
...The Gray Board, in its opinion on the Oppenheimer case, asserted that “the government can search...
...Critics of the Vietnam war and of the draft are the prime targets for these federal actions...
...In late 1968 the Secretary of Health, Education and Welfare barred a prominent critic of the draft from speaking in the HEW building in Washington on the subject, “The Selective Service Bureaucracyan Administrative Nightmare.’’ (The prohibition was overruled by a federal court...
...Communist literature was observed in the bookshelves and Communist art was seen on the walls of your residence...
...When asked about this incident, she replied, “Well, generals wear their uniforms when they speak out in favor of the Vietnam war, so why can’t we...
...X, who (according to official charges) became suspect in part because his release from the Coast Guard had been requested by Mr...
...Among the more dismaying characteristics of the loyalty program is its reliance on dossiers - the investigative files on millions of Americans that repose in the files of the federal government...
...The new book is scheduled for publication later this month by Harper & Row...
...The Attorney General has no power to outlaw organizations...
...Today the FBI, a national police investigative force, armed with ever more ingenious and inconspicuous surveillance devices, continues to eavesdrop on citizens-even, as revealed in 1969, citizens of such national prominence and stature as Martin Luther King, Jr...
...The League also tells businessmen that for a donation of $25-tax-deductiblethey can get a rundown on any present or prospective employee...
...They may seem all too familiar to persons who have lived under totalitarian governments, which often use secretly acquired information to further the political aims of those in power: * In a campaign speech he made when he was Vice President, Richard Nixon quoted from a Naval Intelligence security report, based on data received from the FBI, to discredit and contribute to the defeat of a Democratic Congressman...
...One writer on the loyaltysecurity system, Professor Ralph Brown of the Yale Law School, comments that “we find no responsible claims that the loyalty-security programs have caught a single known spy...
...There had been attempts, during prior crises in American history, to limit freedom of expression, but, notes the distinguished attorney, John Lord O’Brian, this was the first instance since the Alien and Sedition Acts of 1798 of “any attempt . . .to establish [a] peacetime governmental policy aimed at the control of ideas thought to be subversive...
...for beliefs and associations entailing no criminal conduct”: Oppenheimer was condemned largely because of non-criminal “beliefs and associations...
...How can a federal employee who today speaks against, say, the antiballistic missile be sur: that his views will not likewise find their way into a security dossier that will one day be used against him...
...Thus, says a CBS report on the League, “businessmen can find out who was at the [Hemispheric Conference Against the War in Vietnam in Montreal in 19691 and can find out who disrupted an ROTC drill at Northwestern University...
...As the board said, the United States v. J. Robert Oppenheimer is more than an isolated security case...
...The abuses of the loyalty-security program are not as frequent or flagrant as they once were...
...THE LOYALTY PROGRAM: A Case for Termination by Philip M. Stern “We are acutely aware that in a very real sense this case puts the security system of the United States on trial,” wrote the Gray Board, the special panel that took away the security clearance of physicist J. Robert Oppenheimer...
...How did the information behind these charges get into government investigative files...
...The theory is that there is more risk of foreclosure when divorce is threatening...
...In November, 1968, before a U.S...
...As of mid-1969, for example, the Small Business Administration persisted in a policy of refusing business loans to members of “subversive” organizations or to persons who had pleaded the Fifth Amendment in declining to testify about “subversive” activities...
...More recently, the Court has said this right applies to all proceedings (administrative as well as judicial) in which the effect of the government’s action is to penalize or punish...
...But within a decade one job in Philip M. Stern is the author of The Great Treasury Raid...
...Was he right...
...During Senate hearings on the nomination of Lewis Strauss for Secretary of Commerce, it came to light that Strauss had called the Atomic Energy Commission for information concerning a scientist he heard was scheduled to testify against him...
...The results of the security screening of the past 20 years suggest that Americans are no less “loyal” today than they were during the first century and a half of this country’s history...
...HEW security officials deny that antiwar activity has been used as a disqualifying reason...
...This article is adapted from The Oppenheimer Case: Security on Trial, which Stern wrote in collaboration with Harold P. Green...
...There is, it seems, no limit on the use to which these files may be put, save the consciences of those who have access to them, and so these dossiers are, in effect, time bombs...
...The courts have yet to strike it down, despite the Supreme Court’s recent suggestion that the right to join lawful groups is guaranteed by the freedom-ofassembly provision in the First Amendment...
...Symptoms of Tyranny In 1951 Alan Barth, in his book, The Loyalty of Free Men, wrote what he called a “description of an authoritarian society...
...Barth went on to say that this description was in fact a fair likeness of America itself...
...Here follow examples of some of the uses to which these supposedly secret, supposedly nonpolitical files have been put...
...Some of the scientists who learned that HEW did not trust them were at the same time serving on high-level Defense Department panels...
...Q: Did you ever hear it said that X’s wife slept on a board in order to keep the common touch...
...He would enjoy a “better reputation for reliability,” said the Navy, were he to assert more vigorously, in his discussions, with “his peers,” his “loyalty to and support of duly established authority and to the policies of the government...
...This becomes grimly obvious when one considers the kind of information that finds its way into the government’s investigative dossiers and how that information gets there...
...It survived them all without any wideranging loyalty-security-screening program...
...Yet nothing in the legislation creating the Small Business Administration authorized it to consider such factors as grounds for disqualification for a business loan...
...of both...
...He shared “some of their views concerning the war in Viet Nam,” being against our involvement in that armed conflict...
...When someone writes in to us and says, ‘What’ve you got on so-and-so...
...Justice Department official in charge of internal security declared that the protection of secrets remained virtually the exclusive purpose of the personnelsecurityscreening system...
...2...
...and] maintains dossiers on 42 million people...
...Court of Appeals, the government sought to defend the “disenrollment” of a young man named George T. Newel1 from a college naval-officer training program...
...the soul of an individual...
...In connection with your study at the University of [XI in the pursuit of a Ph.D...
...Science mentioned a list of 37 scientists whom HEW considered “currently ineligible” to be consultants...
...The modern spy is apparently a mercenary rather than an ideologue...
...authorized to condemn individuals by starchamber proceedings”: Oppenheimer’s security case was heard-and the fate of his reputation decided-in strict secrecy...
...In 1961 President Kennedy privately acknowledged to UN Ambassador Adlai Stevenson that on the merits the American position toward China was “irrational...
...he became interested in “an organization known as Students for a Democratic Society (SDS...
...That power, built into the program by the men who devised it, came to be exercised in ways they may never have expected or intended...
...Clues to the sort of data lodged in these secret files are contained in the following charges, which were used in actual security-risk cases: A reliable source has disclosed that at a meeting held at the [ -1 School in [X housing development] during National Brotherwood Week in 1943-44, a motion was made by one Mr...
...as harmful...
...Robert H. Felix, director of the National Institute of Mental Health until 1964, told Science of “a good scientist, as loyal as George Washington,” who was barred from an NIMH panel because he had been arrested after demonstrating to integrate a swimming pool...
...one even had a top-secret “Q” clearance for atomic information...
...Of graver immediate import, does any American political leader today recommend making concessions to the Communists- about Vietnam or disthe fear of someday being accused of being “soft on Communism...
...Since the costs of the loyalty-security program are extensive and the results meager, is it sensible to continue vesting this opinion-probing power in the United States government...
...For example, the Federal Housing Administration has private agencies conduct investigations of more than a million annual applicants for FHA loans” and receives reports that include assessments of the “marital stability” of applicants...
...The system was initiated, supposedly, to counter a threat of internal subversion...
...armament or any other issue-free of If the introduction of a massive loyaltysecurity system has had its price, what has the country gained from it...
...It developed that the Counter Intelligence investigation had been initiated because the Communist newspaper The Daily Worker had reported one of the general’s campaign speeches...
...with full protection of the rights...
...For if this once independent, intensely skeptical radical could be made to play the security agent’s game, how many can be expected to resist, when fear is at large in the land...
...Since under the federal security program the kind of “association” a person has is one criterion of measuring his “security risk,” investigative dossiers invariably involve, and often incriminate, more than the “subject” himself...
...That guarantee was denied Robert Oppenheimer in his 1954 security proceeding...
...Barth must have used the word here, rather than in the sense of outlawing...
...authorized to proscribe lawful associations”:” This referred to the power of the Attorney General to pronounce organizations “subversive...
...Emphasis added...
...As recently as 1967 the U.S...
...The problem of defining loyalty remains difficult...
...Was the patriotism of the peace marchers suspect...
...Government should of course solicit the kind of information sought by any prudent employer concerning an applicant’s industry, honesty, reliability, and discretion, so long as “[no] inquiry [is] made concerning [ his] political or religious opinions or affiliations,” and so long as “all disclosures thereof shall be discountenanced...
...Former HEW executives cite other cases...
...Those reasons had to be extracted from the Army by a Senate committee to which the soldier appealed, since the Army declined to explain to him the, basis on which his security clearance was lifted...
...In no case have these scientists been presented with any charges or even told the reasons why they weren’t cleared...
...Other clues as to the contents of government investigative files may sometimes be found in the questions asked in security hearings...
...They also suggest that even in a world of new weapons and great enmities it is safe-and the extensive toll suggests it is imperativeto abolish the security system as it now stands and return to the strictures of Civil Service Rule I, The federal government should now put a stop to its wholesale investigations of citizens’ lives, end its amassing of oftenmisleading but seemingly imperishable dossiers, and discontinue its efforts to measure citizens’ loyalty...
...It would be comforting to dismiss what happened in the 1950’s as aberrations of a less enlightened time, now passed...
...In such an atmosphere political debate and decisions are apt to revolve more around the seeming “anti-Communism” of a given policy than around what is rational...
...Internal Security Committee) also has its list of “subversive” groups, and federal agencies continue to consult the committee’s files as they screen federal employees...
...In June, 1969, Science magazine reported that the U.S...
...Civil Service Rule I of 1884 stipulated: No question in any form of application or in any examination shall be so framed as to elicit information concerning the political or religious opinions or affiliations of any applicant, nor shall any inquiry be made concerning such opinions or affiliations, and all disclosures thereof shall be discountenanced...
...The laws and regulations that permitted this in 1954 are basically unchanged today...
...The number of these secret files has grown explosively over the last two decades...
...In such cases the applicant would merely be advised that the loan had been turned down “in the best interests of the United States,” and hence he would have no bill of particulars to rebut...
...its interest was then extended to “Race Relations, Poverty, World Peace, and University Reform...
...Although not recently invoked, that authority still exists...
...But the problem cannot be thus dismissed...
...Conventionally...
...Since the compilers of these files appear to be consummately skilled cross-indexers, especially since the advent of the computer, the dossiers often become links in virtually endless chains of guilt...
...every five in America-an estimated 13.5 million jobs in all-was affected by the blight of loyalty tests...
...But for the machinations of the small group [in the Institute of Pacific Relations],” said Senator Pat McCarran (D-Nev...
...Security hearings are still held behind closed doors, with the public barred (although the “subject” may later release the transcript of the hearing...
...But the chain did not stop there: C was also of questionable reliability because he had listed as references Robert E.Sherwood, Owen Lattimore and [E], “who have been identified as members of Communist Front Groups...
...The general belief that scientists are barred for political reasons has intimidating effects...
...3) He was marrying meerly [sic] to obtain additional monetary allowance...
...The following are drawn from hearing transcripts: Q: When you were in X’s home, did X’s wife dress conventionally when she received her guests...
...Although the Oppenheimer case was not actually a criminal court case, but an administrative proceeding, the Supreme Court had recognized, five years prior to the Oppenheimer hearing, that the right of confrontation was essential to a fair hearing in administrative proceedings as well as criminal cases...
...That is no hypothetical danger...
...It is, in part, the story of a decade in which America was caught up in fear-seemingly a fear of the outside world but actually a fear about itself...
...At this writing, seven years later, the policy is unchanged...
...During the first century and a half of its existence the American republic experienced panic, depression, riots, a bloody civil war, and two global wars...
...Also in 1969, a Senate investigating committee sought to subpoena from university administrators the names of students belonging to such antiwar organizations as Students for a Democratic Society...
...Consider each of the elements of Barth’s description: * A police force “authorized to search out the private Jives of lawabiding citizens”: The Gray Board hearing revealed how the most intimate aspects of Robert Oppenheimer’s life were observed and reported by government investigators...
...Could it, for example, be argued that the General’s efforts to discourage the free expression guaranteed by the Founding Fathers, and by the First Amendment, was a profoundly un-American actand that it is Westmorelands patriotism that is open to question...
...With the government officially in the business of measuring loyalty, it was only natural for General Roscoe Charles Wilson, after hearing Oppenheimer express his views at a top-secret Pentagon meeting, to SCUf ry to the Air Force Chief of Intelligence to express his doubts about Oppenhei’ mer’s allegiance to the United States...
...Frightening as are those possibilities, the more likely alternative is even more disquieting: Everyman is becoming the government’s agent, the eyes and ears of the national police force...
...Was a government agent present at the National Brotherhood Week meeting back in 2943-44...
...Should the government have the right and authority to inquire into such matters...
...Even more ominous, governmental power is increasingly invoked outside of the loyalty-security program to penalize officially unpopular opinions...
...Both arguments are, of course, simplistic -and ridiculous...
...In the early 1950’s for example, powerful men in public life were arguing that China did not f.all bur was pushed into Communist hands by a few pro-Red China experts...
...It assumed that Americans were, in general, loyal and that the laws against treason, espionage, and other dangerous acts were sufficient either to deter or to punish those who would deliberately do the nation ill...
...Even as vast and costly as the screening program has been, it has not been foolproof...
...One member of an NIMH consultant panel told Science, “Knowing what happened to Steve Chorover, I wondered whether I should endanger my career by marching in a Vietnam protest a couple of weeks ago...
...Or could an argument be directed the other way...
...For the first five months of 1967, the security clearance of a soldier stationed in Japan was suspended for the following reasons: (1) He favored the right of U.S...
...The House Un-American Activities Committee (recentlyrenamed the House *Part of the dictionary definition of the word “proscribe” is “to condemn...
...Guilt by association is an entrenched part of the security-screening process, and anyone even remotely connected with a questionable person may himself become tainted...
...Science reported that another, MIT psychology professor Stephan Chorover, suspects it is because of such activities as his getting professors in the Boston area to sign anti-Vietnam war statements...
...In mid-1969, the Navy brought charges of sedition (punishable by death) against a sailor, Roger Priest, for his off-duty writing and publication of an antiwar newspaper highly critical of, among other things, the Chairman of the Joint Chiefs of Staff...
...Even ten years later that line of argument still had potent effect...
...Was it a federal investigator who spotted the “Communist art” on the walls of the employee’s residence...
...Q: Were there any beds in X’s house which had no mattresses on them...
...government policies...
...So seriously did the Navy take the sailor’s activities that it enlisted the aid of the Washington, D.C., Sanitation Department to make a “special pickup” of Priest’s trash, for naval inspection, and assigned no less than 25 investigators to follow his activities...
...Even a Robert Oppenheimerthe antithesis of a gossip-was induced on several occasions to talk to security investigators about the views and activities of former colleagues and intimate friends...
...Moreover, says Westin, “there are investigations and dossiers that people never even learn about...
...Can there by any guarantee against a future Oppenheimer case...
...Administrative tribunals...
...Beyond the matter of who provided the government with the information underlying those questions (and why), other discomforting questions arise: Why should the government interest itself in such wholly private details of citizens’ lives as the manner of their dress, the tidiness of their housekeeping, or their preference for bed boards over mattresses...
...In short, Alan Barth’s description seems essentially as apt today as it was at the time of Oppenheimer’s ordeal...
...And it was also natural that the report of his misgivings became part of the investigative dossier later used in the physicist’s security proceeding...
...It had begun as a program to protect secrets...
...Today, while confrontation is more widely accorded in selected federal security programs, the principle of fairness which the Sixth Amendment seeks to guarantee is still not assured most federal employees...
...A government official...
...It is in this sense that Mr...
...The above examples tend to confirm the observation made by Alan Barth that the loyalty-security program “fundamentally alters the traditional American relationship of the individual to the State-a relationship that is the key characteristic of a free society...
...For over half a century-from 1884 to 1939-the federal government hired its personnel not only without the aid of loyalty screening but, on the contrary, under strict limitations on the inquiries it could make of applicants...
...But they had put a genie in a bottle, with little control over its use by future, unknown masters...
...C, whose file, in turn, had evidently been combed to reveal “information indicat[ing] that [C] was author of [title], a book which was advertised in a Louis Adamic publication...
...A secret Army Counter Intelligence investigation of a retired Army brigadier general came to light in the midst of a political campgign, and he was forced to withdraw as Republican candidate for Congress...
...But the significance of his actions to the society as a whole is even more disturbing...
...China would today be free...
...These limits were contained in the first rule promulgated under the nation’s first civil service law...
...The “Communist art” was stated in the investigative report to have been the work of “Picasso, Matisse, Renoir and Moddigliotti [sic...
...In February, 1969, a court-martial sentenced to six months at hard labor a Navy nurse who had participated in an antiwar demonstration in full uniform...
...degree...
...We are becoming a society in which, especially in times of national fear, everyone speaks with a guarded tongue and in which neighbor eyes neighbor with apprehension or mistrust...
...That era produced a loyalty program that is still in operation and has considerable effects on American society...
...One can find tragedy, and irony too, in the thought that such a man permitted himself to become the instrument of the very system that brought his downfall...
...Even without the use of subpoenas, the Senate committee could probably have obtained the desired information from the massive files of the Church League of America, a private organization that sends what it calls “undercover operatives” to anti-war demonstrations and conferences, photographing and collecting the names of the participants and entering the results on three-by-five index cards, which the League boasts now number seven million...
...A few months later, in the Presidential campaign itself, the Republican vice-presidential candidate, Spiro T. Agnew, accused Democrat Hubert Humphrey of being “soft on Communism” and apparently for “peace at any price...
...Shortly after his withdrawal, the general was cleared of “any suspicion of disloyalty...
...But he flatly told Stevenson that any major shift of policy at that time would be political disaster, both for him and for Stevenson...
...But of greater relevance to the current governmental opinion-probing powers is the striking fact that in recent years very few of the Americans indicted for espionage have had a leftwing background...
...Since World War I1 at least 11 persons who were able to pass the screening tests later turned out to be spies...
...J that “the Bible should be burned and start building from there,” and that you verbally seconded the motion and discussed it...
...The security system’s tendency to blur opinions and motives has spilled over into American politics, with important effects even at the political summit...
...says the League’s Executive Secretary, “we simply get all of the cards out on that particular individual and then write the report...
...Individuals [condemned...
...And what happens to the character of society if the state begins to attach some significance, however small, to the fact that X’s wife entertains in overalls or sleeps on a board...
...In June, 1969, General Hershey refused to circulate to draft boards a federal court ruling that declared his earlier instruction illegal and probably unconstitutional...
...These dossiers have an enduring quality (not even the death of the “subject” seems to bring about their removal from federal files), and they are secret...
...The power to probe opinions and affiliations and to appraise loyalty still finds sanction in the laws of the land...
...dissertations in search of those that draw from suspect source material...
...Department of Health, Education and Welfare was barring scientists from serving as HEW consultants for security reasons, even though the positions involved no secrets...
...One investigator acknowledged that at a “workshop” addressed by Priest at an antiwar conference in Cleveland, six of the 15 persons in attendance were Navy agents...
...It still is...
...As the Oppenheimer case showed, the security system permits, if indeed it does not encourage, the equating of disagreement with disloyalty...
...He left no doubt that domestic politics was the controlling factor in America’s China policy...
...A society that tolerates and accepts such an assertion does so at its peril...
...Professor Westin also tells of “the largest American private investigative agency,” the Retail Credit Company...
...A New York Times editorial characterized this as “an intolerable intrusion into freedom of association and opinion,” combining “those elements of intimidation and thought control that marked the witchhunting forays of the McCarthy era...
...General William Westmoreland, America’s military commander in Vietnam, returned to the United States in 1967 and spoke of peaceful, lawful demonstrations against the Vietnam war as “unpatriotic acts...
...In 1953, with the promulgation of the Eisenhower security program, the protection of secrets became the paramount consideration in the investigation and screening of federal employees...
...In 1967 Selective Service Director Lewis B. Hershey instructed local draft boards that they could cancel the draft deferment of anyone participating in an “illegal” antiwar or antidraft demonstration...
...Any American hearing of a foreign country in which the police were authorized to search the private lives of law-abiding citizens, in which a government official was authorized to proscribe lawful associations, in which administrative tribunals were authorized to condemn individuals by starchamber proceedings on the basis of anonymous testimony, for beliefs and associations entailing no criminal conduct, would conclude without hesitation that the country was one in which tyranny prevailed...
...you wrote a thesis which was based mainly on material obtained from the Institute of Pacific Relations which has been cited as a Communistic [sic] Front organization by the House Committee on Un-American Activities...
...There is, for example, the case of Mr...
...Was the interior of the house dirty...
...On the basis of anonymous testimony”: The Sixth Amendment to the Constitution guarantees to citizens accused of crimes the right to confront and cross-examine their accusers...
...But information flowing into government files does not originate solely with busybodies...
...In that sense they are still “starchamber” proceedings...
...Loyalty involves motive as well as belief, and both are secreted deep within the human person...
...In addition to those of the FBI and the CIA, Columbia Law School professor Alan F. Westin reports that the “Department of Defense has 14 million life histories in its security files, the Civil Service Commission eight million...
...Nor does he know what persons may have access to the file or what conclusions they may draw...
...in mentioning to Stevenson the possibility of a change of position on the matter of letting China into the UN, Kennedy noted that there would be Congressional elections in 1962 and spoke of “delay[ing] the admission of Red China until after the election...
...As recently as the spring of 1968, political representatives of the President of the United States openly argued that a vote for Senator Eugene McCarthy, a critic of the Vietnam war, “will be greeted with cheers in Hanoi...
...That would not mean barring the government from all inquiries concerning prospective employees...
...Philip R. Lee, an HEW Assistant Secretary until 1968, told of a scientist who was excluded from an HEW panel because his father-in-law had subscribed to a Jewish Communist newspaper in the time before his daughter was married to the scientist...
...Yet the potential for abuse still exists...
...Everyman As Informer But the program also affects the relationship of one citizen to another...
...Has the loyalty-security system been well suited to meet it...
...In 1967 the security clearance of a Navy petty officer was suspended because of “his quick espousing of radical - positions in any discussion of politics, social norms, and world affairs” and because he “deliberately baited those whose views support US...
...The public justification given for the 1947 loyalty program centered around the fear that disloyal federal employees would compromise secret information...
...China, with her newly perfected H-bomb, remains isolated...
Vol. 1 • November 1969 • No. 10
