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Published online by Cambridge University Press: 02 September 2013
Since the promulgation on March 21, 1947, of Executive Order 9835 “prescribing procedures for the administration of an ‘employees’ loyalty program in the executive branch of the government,” there has been widespread discussion concerning the nature of disloyalty, its probable extent in the federal service, and the desirability of the loyalty program.
One point of view, among some members of Congress and elsewhere, is that this loyalty program does not go far enough to meet what is regarded as the serious menace of foreign (that is, Russian) directed or inspired subversives in the government. A sharply contrasting attitude, also voiced by a few Congressmen and by others, is that the menace is exaggerated for various reasons and that the program constitutes a “witch hunt” aimed at liberals generally and a dangerous attack upon civil liberties. Between these two extremes are gradations of opinion accepting the principle of the program but with reservations of varying intensity as to some of its standards and procedures, and with a watchful eye on its operation and on its effect within the federal service and outside.
1 53 Stat. 1148, Sec. 9(A). Allegations of disloyalty—usually in terms of “un-American” or “subversive” activities—had been leveled against federal employees previously from Congress, especially by the House Committee on Un-American Activities and its predecessors. Also, it has been reported that the Civil Service Commission during the First World War conducted loyalty investigations; but the documents explaining the reason and authority for them are still secret. See Riper, Paul Van, The Politics of Office-Holding, Ph.D. dissertation, University of Chicago, Aug., 1947, 196.Google Scholar
2 Report of the President's Temporary Commission on Employee Loyalty, Mar. 22, 1947, 3.
3 Statement by Seth Richardson, chairman, Loyalty Review Board, Dec. 23, 1947, 1.
4 Report of Attorney-General to Congress, June 30, 1942, 77th Cong., 2nd Sess., House Doc. 833, p. 5.
5 Pub. Law 135, 77th Cong., 1st Sess., June 28, 1941.
6 Report of Attorney-General, cited, 20.
7 Ibid., 5. Representative Martin Dies, then chairman of the House Committee on Un-American Activities, took a different view of this matter. He obtained a photostatic copy of these memoranda and had them inserted in the Congressional Record, Sept. 24, 1942, 7442–8. He attacked the report, contending that the Justice Department should simply have given the names of the subversive organizations and of employees belonging to them to Congress, which would determine for itself the extent of the inroads being made by subversive groups into the federal service. (Ibid.) Cf. also the annual report of his committee of Jan. 2, 1943 (H. Rept. 2748, 77th Cong., 2nd Sess., 8). A minority view from this committee was expressed by Rep.Voorhis, Jerry, who held that the investigation had been made “effectively, carefully, and conscientiously.” (Cong. Rec., Sept. 3, 1942, 7270).Google Scholar
8 Report of Attorney-General, cited, 26. Of a total of 4,579 complaints (including 1,100 from the Dies Committee), which included some duplications and names of persons not in executive agencies, only 34 resulted in separations and 12 in other ad ministrative actions, as reported by the agencies. Some Congressmen charged that the agency heads had not been sufficiently aggressive.
9 Pub. Law 644, 77th Cong., 2nd Sess. The sum of $200,000 was allotted.
10 Cf. House Doc. 162, 78th Cong., 1st Sess. (Apr. 17, 1943). The procedures of this investigation are described in detail in Cushman, Robert, “Employees Accused of Disloyalty,” Pub. Admin. Review, Vol. 3, No. 4, pp. 310–311 (Autumn, 1943).CrossRefGoogle Scholar
11 Executive Order 9300, Feb. 5, 1943 (Fed. Register, Feb. 9, 1943, 1701). This incorporated the term “subversive activity,” without definition.
12 Report of the President's Temporary Commission on Employee Loyalty, 16–17. This compilation was supplemented by a report by the second interdepartmental committee, covering the period from February 5, 1944, to December 2, 1946 (involving about five months' overlapping), indicating 654 cases on which final action was reported, which produced 24 discharges and three other disciplinary actions. (Ibid., 20.)
13 Cf. Cushman, op. cit., 313. A similar criterion was applied to war service appointees. Cf. Friedman v. Schwellenbach et al., 159 F. (2d) 22 (C.C.A., D.C., Dec. 16, 1946). The Commission's letter of May 5, 1944, to Friedman explained that he had been removed from the War Manpower Commission mainly because of his activities in connection with the American Peace Mobilization (a “front” group) and his Communist “party line” attitude.
14 Testimony by Commissioner Arthur Flemming before the House Civil Service Committee on June 4, 1947. (Hearings on H. R. 3588, a bill to provide for a Federal Employee's Loyalty Act, 80th Cong., 1st Sess., 54.) The total included 714 Communists or followers of the Communist party line, the other 599 being members of Nazi, Fascist, and Japanese groups.
15 Criticism of the executive branch was expressed in extreme form by the House Committee on Un-American Activities and in 1943 by the Kerr subcommittee of the House Appropriations Committee, which held several prominent officials “subversive” and therefore “unfit to continue in government employment” and recommended the withholding of payment of their salaries. “Subversive activity” was loosely defined as that “which seeks to undermine its [U. S. government's] institutions … to distort its functions … to impede its efforts, the ultimate end being to overturn it all….” (H. Rept. 448, 78th Cong., 1st Sess., 5.) Cf. Schuman, F., “Bill of Attainder in the Seventy-eighth Congress, in this Review, Vol. 37, p. 819 (Oct. 1943)Google Scholar; Macmahon, A. W., “Congressional Oversight of Administration,” Polit. Science Quarterly, Vol. 58, p. 170 (June 1943).Google Scholar
16 Cf. Cong. Record, July 20, 1946, 9601 ff.
17 Executive Order 9806. This commission included A. D. Vanech, special assistant to the Attorney-General, as chairman; Harry Mitchell, president of the Civil Service Commission; John Peurifoy, Acting Assistant Secretary of State for Administration; Edward Foley, Jr., Assistant Secretary of the Treasury; Kenneth Royall, Under Secretary of War; and John Sullivan, Under Secretary of the Navy. Rep. Rees, a member of the House subcommittee, had opposed a commission of executive officials, favoring instead a continued study by the House Civil Service Committee to devise means for “eliminating without delay employees … when there is reasonable doubt concerning their loyalty.”
18 Report, op. cit., 7.
19 Ibid., 23. Italics in the original.
20 Ibid., 21. The employee organization mentioned was undoubtedly the United Public Workers of America (C.I.O.), which had received considerable Congressional criticism.
21 Ibid., 22.
22 Ibid.
23 Cf. Cushman, Robert, “The Loyalty Order,” Survey Graphic, Vol. 36, p. 284 (May, 1947).Google Scholar
24 Part V.
25 An interesting attempt has been made by the Friends of Democracy, Inc., directed by Mr. L. M. Birkhead, to explain “How to Identify an American Communist” (in Feb., 1947) and “How to Recognize an American Pro-Fascist” (in May, 1947)—summarized in New York Times, Feb. 26 and May 26, respectively. Even these formulae, however, have elements of ambiguity and could be given a more inclusive application than the authors may have intended.
26 Cf. Cushman, op. cit., note 23; also letter to the New York Times, Apr. 13, 1947, from Dean Griswold and Professors Chafee, Katz, and Scott of the Harvard Law School.
27 Cf. Bridges v. Wixon, 326 U. S. 135 (1945); Chafee, Z. Jr., Free Speech in the United States (Harvard University Press, 1941), 470–484.CrossRefGoogle Scholar
28 In a “Statement on Loyalty,” issued by President Truman on November 14, 1947, it was specified that “membership in an organization is simply one piece of evidence which may or may not be helpful in arriving at a conclusion as to the action which is to be taken in a particular case.” New York Times, Nov. 15, 1947. This was repeated in the statement of “Regulations for the Operations of the Loyalty Review Board,” adopted by the Board on Dec. 17, 1947, p. 8.
29 Letter, dated Feb. 10, 1948, to the writer from Assistant Attorney-General T. Vincent Quinn.
30 New York Times, Dec. 7, 1947.
31 Cf., e.g., article by Stokes, Dillard and editorial in Washington Post, Dec. 6, 1947Google Scholar; ed. New York Times, Dec. 8, 1947.
32 A copy of the seven-page list and letter may be obtained from the Civil Service Commission.
33 New Republic, Vol. 118, p. 5 (Feb. 23, 1948).
34 The supplemental budget request for the current fiscal year totalled $24,900,000, including $16,160,000 for the Civil Service Commission and $8,740,000 for the FBI. (H. Doc. 242, 80th Cong., 1st Sess., p. 1, May 9, 1947.) Any additional expenses in other agencies would be met by transfer from this amount.
35 H. R. 3588. Hearings were held during June 3–10 by a subcommittee of the House Civil Service Committee. A detailed analysis of its administrative implications and a comparison with the Executive Order were presented by Civil Service Commissioners Mitchell and Flemming. In general, the bill sought to concentrate responsibility in the FBI and to authorize a central, independent review board, with six-year terms, to remove disloyal employees or appointees. H. R. 3813, with slight modifications, was substituted for it and presented to the House on June 12.
36 Passed in the House by 319–61, with 49 not voting. Cong. Rec., July 15, 1947, 9156. Debate, including some discussion of the Executive Order, on pp. 9118–9156.
37 Including $3,500,000 for the Civil Service Commission and $7,500,000 for the FBI (H. Rept. 1053, transmitting 2nd Supp. Approp. Bill, 1948, July 24, 1948, approved by both houses). Rep. Taber reported the Appropriation Committee's dissatisfaction with the Commission's plans, adding that its activity should be restricted “to the barest minimum” and that it should rely on the FBI for investigative reports. The cut in the FBI estimate was made because of the passage of time since May.
38 Form 84-A, Request for Report on Loyalty Data, Aug. 4, 1947. The only question concerning organizations asked about affiliations, other than religious or political. Rep. Daniel Reed called this an “escape clause for Communists.” Cong. Rec., Jan. 14, 1948, A 173. Rep. Wigglesworth, chairman of a House appropriations subcommittee, questioned Commissioner Flemming about this. The latter explained that the question was included solely to aid in identification. A question as to political affiliation would be contrary to civil service principles and, in any case, would not disclose disloyal affiliations, since Communist party or “front” organization members generally conceal such fact. (Hearings on Independent Offices Appropriation Bill for 1949, 80th Cong., 2nd Sess., Feb. 14, 1948, 853.)
39 Professor Colston Warne, an unpaid consultant to the Council of Economic Advisers, refused to sign, on principle (New York Times, Oct. 30, 1947; see also his letter in that paper on Nov. 11; he was retained but required to pay his own expenses.) The first regular employee reported to have refused was Walter Davis, a disabled veteran in the Veterans Administration, who declared he was not a Communist but that he had not fought for the kind of government “that tells you—‘sign this, or else’.” (New York Times, Dec. 7, 1947). The sequel, if any, was not reported.
40 Flemming, op. cit., supra, note 14, at p. 28.
41 Five were found to be no longer employed, and 38 resigned during the investigation. New York Times, Mar. 17, 1948. An interesting by-product of this finger-print check is that of the 410,211 prints received from August 1 to December 1, 1947, 11,511, or 8.5 per cent, were revealed as having police records. (J. E. Hoover, in testimony before the House Appropriations Committee, Hearings on the Justice Department Appropriation Bill for 1949, 80th Cong., 2nd Sess., Dec. 10, 1947, p. 238.
42 A list of the 23 members, with brief biographical sketches, was inserted in the Hearings of the House Appropriations Subcommittee on the Independent Offices Appropriation Bill for 1949, Feb. 14, 1948, 841–2.
43 A general ten-page statement was published on Dec. 23 by the chairman, Mr Seth Richardson. Mimeographed copies of these documents may be secured from the Civil Service Commission.
44 Mr. Fleming, in Hearings, op. cit., supra, note 38, at p. 245.
45 Mr. L. V. Meloy, executive secretary, Loyalty Review Board, in letter to writer on Jan. 26, 1948.
46 Mr. Meloy, in interview with writer on Dec. 30, 1947. A master index of investigations since 1939 will be maintained by the Civil Service Commission.
47 Hearings, op. cit., supra, note 41, at p. 245.
48 Cf., e.g., letter to the Washington Post, Jan. 17, 1948, from Mr. Abe Fortas former Under Secretary of the Interior.
49 War and Navy: 56 Stat. 1053 (1942) (until six months after the official termination of war); State: 60 Stat. 453 (1946) (“McCarran rider” to the appropriation act). Executive Order 9835 excepted these laws from its applicability. The President's Temporary Commission on Employee Loyalty recommended that this authority be made permanent and extended to the Atomic Energy Commission. This was proposed in S. 1561 (by Sen. Gurney) on July 2, 1947, but the bill was not reported. The Atomic Energy Act, however, requires an FBI investigation of every employee of the AEC (60 Stat. 767). An effort has been made by Senator Knowland to require this also of the members of the AEC (Cf. Cong. Rec., Feb. 2, 1948, 888).
50 New York Times, Nov. 17, 1947. It was reported that they could have appealed to the Civil Service Commission for possible clearance for other “non-security” government employment, but that they did not seek other government work. Space limitations prevent a review of the developments. See especially the articles in the New York Herald-Tribune by Bert Andrews during that period.
51 Text of Security Principles, New York Times, Oct. 8, 1947.Google Scholar
52 Cf. editorial, Washington Post, Nov. 8, 1947. Civil Service Commissioner Flemming is quoted as having stated that the Lloyd-LaFollette Act of 1912 provides adequate machinery for handling such cases.
53 Cf. Pike, Sumner, “Witch Hunting Then and Now,” Atlantic Monthly, Nov., 1947, 93–4.Google Scholar The author is a member of the Atomic Energy Commission.
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