Due Process in Security Dismissals

• Date: 01 July 1955
• DOI: 10.1177/000271625530000115
• Author: Eleanor Bontecou
• Published date: 01 July 1955
• Subject Matter: Articles

102

Due

Process

in

Security

Dismissals

By

ELEANOR

BONTECOU

WAS

given

as

a

topic

&dquo;Due

Process

I

in

Security

Dismissals.&dquo;

Instead,

for

reasons

that

I

shall

make

plain,

I

am

going

to

discuss

a

slightly

broader

subject;

namely,

procedure

as

defined

by

Judge

Curtis

Bok

when

he

spoke

last

year

at

the

national

book

award

cere-

monies.

&dquo;Procedure,&dquo;

he

said,

&dquo;is

not

only

due

process,

but

the

proper

rela-

tion

between

ends

and

means.&dquo;

He

added

that

&dquo;unless

people

have

an

in-

stinct for

procedure,

their

conception

of

basic

human

rights

is

a

waste

of

effort.&dquo;

DUE

PROCESS

DEFINED

In

so

far

as

due

process

represents

&dquo;the

deep-rooted

demands

of

fair

play&dquo;

it

is

a

broad

and

untechnical

concept.

But

it

still

is

a

matter

of

law.

On

the

whole,

that

law

finds

its

specific

expres-

sion

in

the Fifth

and

Sixth

Amendments

to

the

Constitution,

in

the

Administra-

tive

Procedure

Act,

and

in

court

de-

cisions.

The

requirements

of

the

Fifth

and

Sixth

Amendments

are

familiar.

They

are

part

of

our

custom

and

our

tradition

and

our

law.

They

provide

that

there

shall

be

no

double

jeopardy;

that

no

man

shall

be

compelled

to

be

a

witness

against

himself;

that

an

accused

must

be

informed

of

the

nature

of

the

ac-

cusations

against

him,

be

confronted

with

the

adverse

witnesses,

and

have

the

right to

counsel.

The

Administrative

Procedure

Act

requires

that

in

adminis-

trative

tribunals

even

a

man

seeking

benefits

shall

have

the

right

to

notice,

hearing,

counsel,

full

disclosure

of

evi-

dence,

and

the

right

to

cross-examine

witnesses

against

him.

He

must

be

heard

by

an

impartial

tribunal

in

which

the

function

of

prosecutor

and

judge

are

separated

and

all

presumptions

shall

be

in

his

favor.

The

constitutional

requirements

apply

only

to

criminal

prosecutions.

Security

proceedings,

though

certainly

punitive

in

the

nontechnical

sense,

are

not

crim-

inal.

The

boards

always

say

that

they

are

not

prosecutions

but

inquiries.

The

Administrative

Procedure

Act

specifi-

cally

excludes

from

its

purview

matters

relating

to

personnel

administration.

So

far,

the

courts

have

not

developed

stand-

ards

of

fair

hearing

in

security

dis-

missals.

It

seems,

therefore,

that

as

of

today

there

is

no

due

process

of

law

in

security

cases.

In

the

Peters

case

that

is

now

before

the

courts

the

government

is

contending

that

there

never

can

be.

In

these

cases,

they

say,

the

President

is

the

law.’

RULES

FOR

CONDUCT

OF

SECURITY

CASES

The

President

has

issued

rules

for

the

conduct

of

security

cases.

They

permit

double,

treble,

and

quadruple

jeopardy.

In

fact,

an

employee

cannot

be

sure

that

he

is

out

of

jeopardy

until

he

has

left

the

government,

and

perhaps

not

even

then-as

Val

Lorwin

discovered.

The

accused

is

given

only

an

imperfect

right

of

disclosure

of

evidence,

since

it

may

be

concealed

in

the

interest

of

security.

His

right

to

a

hearing,

as

that

word

is

now

understood

in

our

law,

is

also

imperfect.

He

is

denied

the

right

to

be

confronted

with

the

adverse

wit-

nesses

and

may

not

even

know

their

1

At

the

argument

of

this

case

before

the

Supreme

Court

the

government

abandoned

this

position.