More than a half-century ago I.F. Stone, a pre-internet blogger forced to make do with a paper-and-ink broadsheet called I.F. Stone’s Weekly, wrote this in a posting headlined “Fetish of the Fifties: Security”—
Few will dare to say it now, but the time is coming when the truth will be recognized, a truth which the Framers of our Constitution wove into the fabric of American government. They saw that there could not be freedom without risk, that no stable society could be built except on a foundation of trust, and that when trust was violated —and only then — a man could be punished. They did not think it was the province of government to police men’s minds, or that it had a right to punish them unless they committed some wrongful act. They would have been horrified at our growing system of thought police, of guessing-game “law” about prospective crime, and indeed most of all by our obsession with “security.”
His full essay follows below, and it’s worth taking the time to read. Some of it will seem a little “quaint,” as one of Bush’s lawyers called the Geneva Convention’s anti-torture provisions. For example Stone is concerned about the Fifth Amendment, and of course we have gotten way beyond that under Bush. Not only are suspects now obliged to give testimony against themselves, they are tortured until they do.
But most of Stone’s arguments seem to be, like Law and Order episodes, ripped from today’s headlines. Probably tomorrow’s too. In the election just over, after all, few Democratic candidates called for repeal of the “Patriot” act. And their colleagues-to-be just got finished passing Bush’s even more vicious military commission bill.
If we stop to compare what happens in the trial of a crime with what happens in the trial of a loyalty-security case, we will begin to see that a more fundamental attack on the problem is necessary if the miasma of suspicion is to be dissipated. Here are some of the differences:
1. The matter of proof. A trial deals with something that happened. A loyalty-security hearing deals with something that might happen. When a crime has been committed or attempted, objective proof is possible: a body, a cracked safe, a forged check, witnesses, may all be put in evidence.
But when a man is up on loyalty or security charges, nothing has happened. The tribunal is not dealing with an act but with future possibilities. It is engaged in an exercise in clairvoyance. It must determine whether a man might commit a crime some time in the future, whether he might steal or sell secrets. There are no ways to prove what a man might do. The essence of the loyalty-security procedure is not the trial of a fact but a guess as to future conduct.
2. How any doubt is resolved: In the trial of a crime, even for the most heinous, such as murder or treason, any reasonable doubt is resolved in favor of the accused. As Blackstone phrased the rule, already venerable in his time, “The law holds that it is better that ten guilty persons escape than the one innocent suffer.” Law enforcement is thereby made more difficult. But justice to the individual, not the security of society, is the primary concern.
All this is reversed in loyalty-security cases. To bar a man from a job and label him disloyal because in your opinion he might do something bad in the future is by its nature a decision which resolves the doubt in favor of the State and against the individual. “Security” means to take as few chances as possible, even at the expense of injustice to some people who never have committed a crime and never will.
This is vividly illustrated by Fifth Amendment cases. A man summoned before a magistrate and asked whether he had ever committed larceny who thereupon pleaded the Fifth Amendment could not be thrown in jail or even prosecuted. But a worker in the government or at General Electric or Bethlehem Steel who invokes the Fifth Amendment loses his job. No evidence that he ever committed a crime or was ever a radical — the two are equated by now in the public mind — is required. The invocation of his constitutional right is enough to ruin his reputation and his right to work.
Those who defend these standards fall back on a totalitarian logic. David Lawrence protested recently against what he terms a “left-wing drive” to “surround governmental employees with complex procedural safeguards which would supersede the right of the American government to protect its own safety.” Mr. Lawrence forgets that much of the Constitution and the common law is devoted to surrounding people of all kinds, including the disreputable, with complex procedural safeguards which supersede the right of government to protect itself. In such restrictions lies the essence of free government.
3. Avoidance: The difference in the two procedures becomes clearer if you ask yourself how you avoid getting into trouble. To avoid arrest and trial for a crime, one has to obey the law. But what does one avoid to keep out of loyalty-security trouble? One has to avoid political activity. Since you never know what organization may some day be regarded as suspect, better join none. Since almost any cause may some day be regarded as subversive, better keep away from all. Since there are now informers everywhere, including the campus, say as little as possible, avoid the discussion of dangerous subjects. Be careful what books you have in your library and what publications you read. These may be held against you. Safety lies in the abnegation of one’s rights.
4. Standards: Here, too, the difference becomes sharp. There is little doubt as to what is murder, larceny, or espionage. These are defined in the law books.
But what is “subversion” or “Un-Americanism”? The latter is an epithet, the former is a wholly relative term. Much that we take for granted today seemed un-American and subversive a century ago — income taxes for example. Much that existed then would seem “un-American” today — for example, the earlier restriction which limited the right to vote to those citizens who owned property. What one man sees as subversion another man sees as progress.
5. The mode of defense: In a criminal trial, the accused is furnished with a bill of particulars. It informs him that the government will allege that a safe was cracked at such and such an address in such and such a city at such and such a time. The accused may then prove he was elsewhere.
But anything remotely approaching a bill of particulars is rare in loyalty-security cases. The accused is usually asked to rebut vague charges of Communist sympathy or association. The task of the defense is to prove a negative.
Even where particulars are furnished, the outcome is not necessarily conclusive. A man may indeed “clear” himself by proving that he never engaged in liberal or left-wing activity of any kind. But what if he did belong to a radical organization? Does that mean that he is a security risk?
The only espionage case turned up in the whole security program is one which would never be suspected by normal “loyalty” standards. Joseph Petersen had no left-wing connections. A Catholic, graduated from a Catholic school, he never belonged to any organization on the Attorney General’s or any similar “list.” Whatever this code expert did was for a friendly power, Holland, and for no ideological reasons. He could slip easily through the sieve of customary loyalty standards.
On the other hand a Ladejinsky, for all his demonstrated value as an agricultural expert, could never hope to qualify under them for government employment if he were a new applicant. A man who had once worked for Amtorg, with two sisters in Russia, whose name had been on the mailing list of several “front” organizations during the war would never be freshly hired today. The liberals would never dare defend him. The Ladejinsky case shows the advantage of judging a man by what he does when employed, by the record he makes rather than by a system based on paranoid surmise.
6. Witnesses: The difficulty is made the greater by the mode of presenting evidence. In a criminal trial, the accusing witness must be produced in court and subjected to cross-examination. The right to confront one’s accuser is fundamental. The government may use informers, as in narcotic or smuggling cases, but it cannot come into court and ask for conviction. on undisclosed evidence by undisclosed persons on the ground that to reveal them would endanger its sources of information. The conviction can be obtained only on the basis of whatever evidence and witnesses the government produces in open court.
But in loyalty-security cases nothing is more familiar than the submission of allegations from undisclosed informers. The accused has no chance to confront the accuser. Such confrontations in criminal cases often disclose mistaken identity. Cross-examination may uncover perjury. All these safeguards are absent in loyalty-security cases because here again the security of the state, its secrets and informers, is ranked ahead of justice to the individual.
The anxiety over security reflects its widening impact on our society. As more people are drawn into its orbit, more become aware of its injustices. The government is having trouble; the loyalty program, designed originally to purge the government of liberals and radicals, has ended by making people of all kinds afraid to take government jobs. Something has to be done, and the politicians scent popularity in the issue. But they, like all of us, take the lines of least resistance, and talk only of correcting the “abuses” of the security program.
Few will dare to say it now, but the time is coming when the truth will be recognized, a truth which the Framers of our Constitution wove into the fabric of American government. They saw that there could not be freedom without risk, that no stable society could be built except on a foundation of trust, and that when trust was violated — and only then — a man could be punished. They did not think it was the province of government ‘to ‘police men’s minds, or that it had a right to punish them unless they committed some wrongful act. They would have been horrified at our growing system of thought police, of guessing-game “law” about prospective crime, and indeed most of all by our obsession with “security.”
An administrative official has a right and duty to judge the reliability of a man he hires. But what is proper and necessary in private administrative judgment is improper when erected into a system of universal surveillance and public defamation of character that chokes off free political discussion in ever wider areas and brands men as “disloyal” or “security risks” on the basis of pseudo-judicial guessing as to whether they might possibly some day commit a crime.The loyalty-security program cannot be reformed. Given peace, it will eventually be abolished.