Loyalty-Security Programs

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LOYALTY-SECURITY PROGRAMS

This hyphenated phrase refers chiefly to the measures that were taken under Presidents harry s. truman and dwight d. eisenhower to exclude from public employment, and from defense industries, persons who were believed to pose risks to national security. Because the gravest threat to security was believed to flow from world communism, loyalty and security programs were designed almost entirely to counter communist influence and penetration.

In earlier periods of tension attendant upon wars, loyalty oaths were the preferred device for separating the loyal from the disloyal. If oaths were taken seriously, they were self-enforcing. But when necessity or duplicity led to bales of unreliable oaths, the authorities responded by empowering officials to go behind the oaths with investigations and to make their own judgments. Such procedures, usually under military control and untrammeled by judicial control, were widespread during the civil war and reconstruction.

world war i was distinguished by the overzealous prying of the American Protective League and other amateurs who were given extraordinary aid and comfort by the Department of Justice. In world war ii the military departments, both determined to avoid the excesses of the crusade against the Kaiser, effectively centralized loyalty screening. They emerged with a minimum of criticism. After the war, the Soviet Union abruptly came to be viewed as enemy rather than ally. The insecurities of the postwar world aroused mistrust and anxiety. President Truman, aiming to forestall harsher congressional action, launched a new kind of program with his executive order 9835 of March 21, 1947.

The Truman loyalty program covered all civilian employees. The Department of Defense had its own program for the armed services. Defense and the Atomic Energy Commission had programs for employees of defense contractors. The Coast Guard screened maritime workers. A few states developed systematic programs of their own. Many millions thus became subject to proceedings that sought to establish whether, in the language of E.O. 9835, there were "reasonable grounds" for a belief that they were disloyal (softened in 1951 to require only a finding of "reasonable doubt" as to loyalty). In 1953 President Eisenhower's Executive Order 10450 replaced the Truman program. It required employment to be "clearly consistent with the interests of the national security." That standard remains in effect.

All of these programs worked from personal histories supplied by the employee (or applicant) backed up by investigative reports. If "derogatory information" led to a tentative adverse judgment, that was usually the end for an applicant's chances of employment. But an incumbent could have the benefit of formal charges, a hearing, and review. The trouble was that the investigations ranged widely into associations, opinions, and flimsy appraisals. The sources of none of these were accessible to the employee. He could only guess who his detractors were.

These programs were only one array in the frantic mobilization against subversion. They were flanked by oaths and affidavits and questionnaires. To falsify any of these was a criminal offense. In order to establish what associations were forbidden, the 1947 executive order systematized the secret preparation and open use of the Attorney General's List of Subversive Organizations. Long before and for some years after the heyday of Senator Joseph R. McCarthy (1950–1954), congressional investigating committees took as their specialty the exposure of groups and individuals with communist ties. Their disclosures encouraged blacklists in private employment, notoriously in films and broadcasting. Senator McCarthy took the lead in stigmatizing the "Fifth-Amendment Communist"—a witness who invoked the right against self-incrimination. Senator Patrick A. McCarran initiated the idea that naming names was the only true badge of repentance for those who said they were no longer communists. A mass of legislation sought to expose and condemn the Communist party and its affiliates, while the Department of Justice jailed its leaders for sedition.

All of these measures raised intertwining constitutional problems, so those of loyalty-security programs are not easily isolated. However, two strands can be picked out. First, there were demands for fair process, notably to confront the source of accusations. Second, there were claims for First Amendment rights, set against the supposed necessities of national security. However, the courts often trimmed the reach of the programs without deciding such issues. They would invoke their usual preference for avoiding constitutional collisions, and simply find that executive or legislative authority was lacking.

The position that due process of law was wanting in the rules and administration of employment tests first had to surmount the proposition that employment was not a right but only a privilege that could be summarily withheld. First Amendment claims also encountered this barrier, curtly expressed in Justice oliver wendell holmes's now battered epigram: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." After some early hesitation, this dismissive argument was itself dismissed, notably by Justice tom c. clark, who was usually a steadfast supporter of security measures. In an oath case, wieman v. updegraff (1952), he wrote for the Court: "We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion … is patently arbitrary or discriminatory."

What process is then due? The government perennially opposes the right of confrontation by invoking the need to protect confidential informants. The court came close to requiring a trial-type hearing, with confrontation and cross-examination, in the industrial security case of Greene v. McElroy (1959). But it used the avoidance technique. It said that there would have to be, at the threshold, explicit authorization from the President or Congress to conceal sources, and that it could not find such authorization. The decision had little effect. The statute authorizing security removals of government employees still requires only that charges "be stated as specifically as security considerations permit." It is doubtful that, in a time of perceived crisis, and in sensitive employment, the Constitution would be read to compel confrontation.

The Court worked its way to a firmer position on narrowing grounds for removal. It found that First Amendment rights to freedom of association were impaired by a flat proscription of employing communists in a "defense facility." In united states v. robel (1967) the employee, a shipyard worker, was an avowed Communist party member. A majority of the Court, declaring that "the statute quite literally establishes guilt by association alone," held that some less restrictive means would have to be employed to guard against disruption or sabotage. If Robel and like cases are followed where charges of disloyalty are brought, and where the accusation stems from political associations, the government may be unable to remove an employee except for conduct that would support a criminal prosecution.

This does not mean an end to the reliance on prying and gossiping that made loyalty-security programs disreputable. In satisfying itself of the reliability of applicants for employment, the government (or a private employer) can still probe for flaws of character, so long as standards for expulsion do not invade areas protected by the First Amendment or by antidiscrimination legislation. Investigators may even demand answers to questions, for example, on communist connections, that come close to protected zones, as long as the ultimate standards are correct, and the questions are helpful in seeing that the standards are satisfied. This seems to be the upshot of a tortuous line of cases involving admission to the practice of law.

From these unavoidable clashes between individual rights and security claims, a remarkable course of events has followed. Once the fevers of the 1950s had subsided, loyalty-security programs simply shrank to very modest levels. It is noteworthy that the vietnam war did not check the decline. Yet the korean war, which broke out in 1950, undoubtedly deepened the fears of that era.

The contraction has been helped along by the courts. Congress and the executive have perhaps done more to limit the scale at which the federal programs have been operating (the last dismissal on loyalty grounds was in 1968). The privacy act of 1974 and similar statutes greatly restricted the flow of official information about misbehavior. President richard m. nixon abolished the Attorney General's List in the same year. Nudged by lower court decisions, the Civil Service Commission first stopped asking applicants for nonsensitive positions about subversive associations, and then in 1977 scrapped the questions for sensitive jobs too. Appropriations for investigative staff both in the Federal Bureau of Investigation and in the Defense Department have declined.

Do recent developments represent a slackening of our defenses? A revulsion against the excesses of McCarthyism? Because the prime mover in all the loyalty-security programs was hostility to communism, the programs may revive if our relations with the Soviet Union worsen. If the programs do revive, it seems unlikely that the courts will check recurrence of past excesses.

Ralph S. Brown
(1986)