On a Loyalty Case

For seven successive years (1947-53) Congress tacked on to the State Department Appropriation Act a rider giving the Secretary of State "absolute discretion" to fire any State Department or Foreign Service employee "whenever he shall deem such termination necessary or advisable in the interests of the U.S." This discretion was to be exercised, said the rider, "notwithstanding the provisions of ... any other law." At the same time the State Department's own internal regulations prescribed a procedure for clearance that, in some cases, gave the Secretary of State no power at all to act. Last week, by a vote of 8-0 (with Justice Clark not taking part*), the Supreme Court ruled in effect that the State Department's internal regulations took precedence over the congressional rider and thus over the national law. Specifically the court found that Secretary of State Dean Acheson had improperly dismissed Diplomat John Stewart Service, 47, even though Acheson had specifically taken his legal grounds from the "absolute discretion" granted in the congressional rider.

The Service case had been around Washington a long time before Acheson got to it. One spring day in 1945, Service, one of the band of Foreign Service "China hands" who urged the U.S. during World War II to dump the Chinese Nationalists and plump for Communist Mao Tse-tung, was discovered by the FBI in the hotel room of Philip Jaffe. editor of the pro-Chinese Communist magazine Amerasia. The FBI had earlier raided Amerasia's offices, found there about 40 of Service's State Department documents, which he had stamped "Secret" or "Confidential." Service was arrested along with Jaffe and four others on charges of espionage; two months later he was cleared of espionage by a grand jury and was reinstated in the State Department with a note from Secretary of State James Byrnes ("I predict for you a continuance of the splendid record . . .").

Six times in the ensuing six years, the State Department internal loyalty board pondered in effect whether Service should be kept on or let go; six times Service was cleared. Then in December 1951 the Civil Service Commission Loyalty Review Board recommended that Service should be fired. "To say that his course of conduct does not raise a reasonable doubt as to Service's own loyalty would, we are forced to think, stretch the mantle of charity much too far." Acheson sacked Service, whereupon Service appealed all the way to the Supreme Court.

Last week's opinion, written by Justice Harlan, reversed the lower courts' stand, held that the State Department's regulations amounted to "substantive and procedural" limitations upon the Secretary's "absolute discretion."

*As Attorney General he had functioned in the case.

This file is automatically generated by a robot program, so reader's discretion is required.