vol. 27, no. 3

American

Civil Liberties

Union

Volume XXVII

San Francisco, March, 1962

Marine Corps "Loyaity" Case

Fonorable

After

Discharge `

line

von

Years

The Board for Correction of Naval Records last month re-

versed itself and granted an honorable discharge, for the

convenience of the Government, to a former Marine who had

received an undesirable discharge on February 4, 1953. The

favorable action is the fruit of almost four years of work by

the ACLU in San Francisco and

the firm of Dickstein and Shapiro,

volunteer ACLU attorneys, in

Washington, D.C.

Loyalty Proceeding

On May 8, 1952, the veteran, a

Corporal, then stationed at Bar-

stow Annex, Barstow,. California,

received a communication from

the Commandant of the Marine

Corps, advising him that his dis-

charge was contemplated be-

cause of "alleged conduct or as-

sociation casting doubt upon

Chis) loyalty." The specific

charges were:

"1, There is reliable informa-

tion that (the individual) joined

the Communist Party, USA in

Arkansas during 1947... .'

"2. (The individual) has been

reliably reported to have been a

member of the Civil Rights Con-

gress in 1950... .

"3. Reliable information indi-

cates that (the individual) sub- -

Scribed to the `Daily Worker'

from 1947 to 1951. The `Daily

Worker' is the official East Coast

organ of the Communist Party,

USA.

"4. There is reliable informa-

tion that (the individual) was a

member of the Progressive Party

of Missouri in 1950. The Progres-

sive Party of Missouri is re-

ported to have been under the

complete domination and control)

of the Communist Party, USA.

"5, (The individual) was reli-

ably reported to have indicated

that he was going to be cautious

in his Communist Party activi-

ties until he received a discharge

from the U.S. Marine Corps...."

Fradulent Enlistment

Following a hearing before a

Board of Officers convened to

hear evidence on the above

charges, the individual was is-

sued an undesirable, discharge,

NOT FOR DISLOYALTY but.

"by reason of undesirable mis-

conduct (perpetration of a fradu-

Jent enlistment) ..." The Marine

Corps refused to furnish a tran-

script of the hearing to the in-

dividual or his counsel or to per-

mit counsel to examine a copy

of the transcript.

In 1958, the ACLU filed an ap-

plication for review with the

Navy Discharge Review Board in

which the claim was made that

the discharge was predicated on

pre-induction activities and con-

sequently was contrary to the de-

ci-ion of the U.S. Supreme Court

in Harmon vy. Brucker which re-

quires that discharges be deter-

In This Issue ..

Challenge Laws Punishing

Draft Evaders ......... p.4

Confrentation Required in

Passport Cases ........ p.4

Dismissal for Union Activity

Now on Appeal ....... p. 3

Fair Trial Denied by

Segregated Courthouse ..p. 2

Petition of Apolitical

Alien Opposed ........ p. 3

Washington Fair Housing 5

Law Ruled Invalid ...... p. 2

mined "solely on the soldier's

military record."

Review Board Disagrees

A majority of the Review

-Continued on Page 2

Navy Will Be

Mere Cautious

In the Future

The Department of the Navy

has informed the ACLU that

certain material used in the

November 3, 1961, issue of `The

Carrier," published at the U.S.

Naval Air Station in Alameda

and distributed te both service

men and civilians "was obtained

from an unofficial source." The

letter goes on to say that "The

Commanding Officer of the Na-

val Air Station Alameda has

been enjoined to exercise cau-

tion in the future when using

unofficial material which-might

be subject to interpretation."

The ACLU had protested an

article in the publication in

question which attempted to in-

fluence the political opinions of

Air Station personnel. It attack-

ed our taxing system as social-

istic and declared that "it must

be admitted that even here in

the. United States, representa-

tive democracy as conceived by

the others of the Constitution

has not remained untinged by

socialistic concepts and meas-

ures."

In depicting Socialism, the ar-

ticle indicated that it relies on

Labor violence for its support.

Number 3

Stockton |

Membership

Drive Meeting

MARCH 31

8:00 P.M.

AUDITORIUM

Speech Arts Bidg.

Stockton College

NATHANIEL COLLEY

member, State

Board of Education

BRING YOUR FRIENDS

AND PROSPECTS

Date:

Time:

Place:

Speaker:

Barring of

Moise Tshombe

Protested

The American Civil Liberties

Union called on the State De-

partment last month to reverse

its decision against allowing Ka-

tanga President Moise Tshombe

to speak in the United States.

The civil liberties group, in

a letter to Secretary of State

Rusk, deplored the decision not

to grant Tshombe a visa on the

ground that his coming here for

a series of public meetings was

not desirable under current cir-

cumstances,

The ACLU letter, signed by

its executive director, Patrick

Murphy Malin, said the govern-

ment's action "leaves little

doubt that his visit to the United

States was barred only because

it was not in the Administra-

tion's interest to have Mr.

Tshombe publicly express his

point of view on the Congo situ-

ation-a point of view which

differs: considerably from the

Administration's policy.

"This is a classic kind of gov-

ernment interference not only

with the right of a foreign visi-

tor to express his opinion, but

with the right of the American

people to form their own politi-

cal judgment on a remarkably

complicated situation on the

. basis of as much information,

from all points of view, that can

be made available. What the gov-

ernment has done ... (is to)

sacrifice the right of the people

to hear-the indispensable cor-

relative right to freedom of

speech-in order to save its

policy from criticism." :

Fiousing Discrimination

Case Before High Court

The California Supreme Court heard arguments last

month in an ACLU case which will decide whether two

statutes passed by the 1959 Legislature are constitutional

and, if so, whether they provide a cause of action for a per-

son prevented from buying a heme solely because of his

Negro race against the developer

of a large housing tract.

Unruh Act

The case is entitled Burks v.

Poppy Construction Company

and the statutes involved are the

Unruh Civil Rights Act (Civil

Code section 51) which provides

a cause of action for discrimina-

tion in "all business establish-

ments of any kind whatsoever,"

and Health and Safety Code sec-

tions 45700 et. seq. which pro-

vides a cause of action for dis-

crimination in certain types of

publicly assisted housing.

Contentions

The ACLU argued in the

`Burks case that neither statute

is unconstitutional as taking

property without due process of

law because neither statute takes

property but they only require

that race not be used to disqual-

ify a potential buyer. The second

major argument was that the

Unruh Civil Rights Act was

clearly intended to cover sales of

tract homes because this is a

business and the Legislature

clearly intended to cover all busi-

nesses,

Major Break Through

If the case is won in the Su-

preme Court, the ACLU believes

it will be a major break through

in the vicious cycle of segregated

housing, semi-segregated schools,

inferior education, inadequate

employment opportunity, all

leading to inadequate economic.

and social advancement for mi-

nority groups.

Companion Cases

Three companion cases were

argued with the Burks case. Two

of these attempt to raise the

problem of discrimination by

real estate brokers while the

remaining case involves discrim-

ination in the rental-of an apart-

ment.-M.W.K.

Third Legal Round

The highest appellate courts in California have, in two

separate appeals, ruled in favor of former San Francisco City

College English instructor John W. Mass. However, an ada-

mant school board has again refused to reinstate him to his

position and once again the ACLU has taken the case to

court in its fight to prove that

the board had no legal right to

suspend Mass over eight years

ago after the teacher had exer-

cised his privilege not be a wit-

hess against himself when called

before the House Committee on

Un-American Activities in 1953.

Writ of Mandate Sought

This time ACLU Staff Counsel

Marshall Krause has filed a peti-

tion for a writ of mandate ask-

ing the Superior Court to order

the San Francisco Board to com-

ply with this clear provision of

the Education Code: `Section

13439. If the employee has been

suspended pending the hearing,

he shall be reinstated within five

days after the entry of judgment

in his favor, and shall be paid

full salary by the governing

board for the period of his sus-

pension."

Board Fails To Act

Pursuant to the decision of the

District Court of Appeal (after

the Supreme Court had refused

to review the decision), Superior

Court Judge Edward O'Day

caused judgment to be entered

on January 31, 1962, dismissing

the school board's suit to dismiss

Mass from his teaching position.

At its February 6 meeteng the

school board was informed of

this judgment in Mass's favor but

referred the matter to its legal

advisor for further legal opinion.

Reinstatement, Salary and

Damages

The petition for a writ of

mandate asks that Mass be rein-

stated to his former position at

the same salary level which he

would have attained had he not

been suspended, that he be paid

Drop Security

Charges Against

AEC Employee

The A.E.C. has dropped se-

curity charges against a Uni-

versity of. California graduate

student employed at the Radia-

tion Laboratory, apparently on

the ground that he doesn't need

a security clearance. While his

job does not require access to

classified military information

he has heretofore had what is

known as an "access clearance,"

which allows him to enter into

the general area where classi-

fied information is being used.

The employee had been ac-

cused of having bad associates,

to wit, his parents, During the

past six years, however, the

young man hasn't lived:at home

and he has seen his parents only

during holidays. In fact, his par-

ents have been separated for a

number of years. :

One would conclude from the

charges, if they are to be relied

upon, that the parents had not

had left-wing connections for

years. In one instance, the alle-

gations claim activity with two

groups as late as 1955 and 1953

respectively, while in the other

case membership is claimed fif-

teen years ago.

The employee had demanded

a hearing at which he would

have been represented by Er-

nest Besig, ACLU Executive Di-

rector.

his full salary to the date of re-

`instatement (estimated to be

$65,000), that he be credited with

all retirement benefits, that he

be paid interest at the legal rate

for each back salary payment as

it accrued, that he be paid the

sum of $50,000 as general dam-

ages for economic hardship,

lowered standard of living and

mental suffering during the time

-Continued on Page 2

`Operation

Correction'

in Deman

Thirty prints of "Operation

Correction" have now been sold

at $100 per print and copies

are now available for rental from

ACLU affiliates in `Baltimore,

Boston, Dallas, Dayton, Des

Moines, Detroit, Los Angeles,

Madison, Miami, Newark, Pitts-

burgh, Portland, Ore., San Diego,

and Seattle. Prints are also avail-

able at the American Jewish

Commitiee in Kansas City, the

Nationwide Insurance, Columbus,

. Ohio, U.S. National Student Asso-

ciation, Philadelphia, Rochester

Public Library, First Unitarian

Society of Schenectady, the Un-

ited Christian Missionary Society,

Indianapolis, Indiana, Michigan

State University, Dartmouth

College and Cinema 16 in New

York.

During February, the ACLU

handled over 30 rentals at $15

per screening, plus transportation

charges, to such places as Goshen,

Indiana, Phoenix, Schenectady,

Houston, Lubbock, Texas, Mem-

phis, Sussex and Glassboro, New

Jersey, Honolulu, Northfield,

Minn., Valley Stream, New York,

Portland, Maine, Brooking, South

Dakota, Nashville, River Falls,

Wisconsin, Missoula, Mont., and

Boulder, Colorado.

The film will soon be adver-

tised in the Christian Century,

The Nation, New Republic and

Progressive magazines. The AC-

LU will also shortly undertake

to secure placement of "Opera-

tion Correction" in film libraries

throughout the country.

The film continues to receive

an excellent reception. "We were

so impressed by the film `Opera-

tion Correction'," said Marvin

Menaker in Dailas, "that we de-

cided to buy it instead of rent-

ing it." And, from Howard F.

McGaw in Houston came this

message: "Thank you very much

for giving us the opportunity of

showing `Operation Cerrection.'

You and your committee did a

wonderful job. Congratulations

from all of us." And from Schen-

ecfady, New York, Jerome Tie-

mann declared: "I have. seen

`Operation Correction' and I think

you have done a good piece of

work.... Enclosed is a check for

$100 to cover the cost of one

print." From Sacramento, Don G.

Bennett writes as follows: "Con-

gratulations on the long needed

eorrection of `Operation Aboli-

tion.' This should have been pro-

duced a year ago! Thanks to

Channel 6, KVIE TV, I had an

opportunity to. preview the film

and I was extremely impressed."

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG . .. Editor

503 Market Street, San Francisco 5, California, EXbrook 2-4692

Subscription Rates -- Two Dollars a Year

Twenty Cents Per Copy

Dr. Alfred Azevedo

' Theodore Baer

Prof. Arthur K. Bierman

~ Rey. Richard Byfield

Prof. James R. Caldwell

John J. Eagan .

Samuel B. Eubanks. .

Prof. Van D. Kennedy

Rey. F. Danford Lion

v John R. May

vyen Lloyd L. Morain

a x

te,

Honorary Treasurer:

Joseph M. Thompson

Honorary Board Member.

Sara Bard Field

Mrs. Gladys Brown

' Mrs. Paul Couture

Joseph Eichler

Morse Erskine

Dr. H. H. Fisher

Mrs. Margaret C. Hayes

Prof. Ernest Hilgard

Mrs. Paul Holmer

Mrs. Mary Hutchinson

Richard Johnston

Roger Kent

Mrs. Ruth Kingman

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN; Howard A. Friedman ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 ACLUN_1949.MODS ACLUN_1949.batch ACLUN_1950 ACLUN_1950.MODS ACLUN_1950.batch ACLUN_1951 ACLUN_1951.MODS ACLUN_1951.batch ACLUN_1952 ACLUN_1952.MODS ACLUN_1952.batch ACLUN_1953 ACLUN_1953.MODS ACLUN_1953.batch ACLUN_1954 ACLUN_1954.MODS ACLUN_1954.batch ACLUN_1955 ACLUN_1955.MODS ACLUN_1955.batch ACLUN_1956 ACLUN_1956.MODS ACLUN_1956.batch ACLUN_1957 ACLUN_1957.MODS ACLUN_1957.batch ACLUN_1958 ACLUN_1958.MODS ACLUN_1958.batch ACLUN_1959 ACLUN_1959.MODS ACLUN_1959.batch ACLUN_1960 ACLUN_1960.MODS ACLUN_1960.batch ACLUN_1961 ACLUN_1961.MODS ACLUN_1961.batch ACLUN_1962 ACLUN_1962.MODS ACLUN_1962.batch ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1969 ACLUN_1969.MODS ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log

VICE-CHAIRMEN: Dr. Alexander Meiklejohn

Helen Salz :

Rev. Harry B. Scholefield

SECRETARY-TREASURER: John M. Fowle

EXECUTIVE DIRECTOR: Ernest Besig :

Committee of Sponsors

Prof. Charles Muscatine

Prof. Herbert L. Packer

William M. Roth

Clarence E. Rust

Prof. Nevitt Sanford

Mrs. Alec Skeolnick

yen Mrs. Martin Steiner

~ Gregory S. Stout

Donald Vial

GENERAL COUNSEL

Wayne M. Collins

ome KS

Prof. Theodore Kreps

Prof. Carlo Lastrucci

Norman Lezin

Prof. John Henry Merryman

Hon. Clem Miller

Rev. Robert W. Moon

Dr. Marvin J. Naman

Prof. Hubert Phillips

Prof. Wilson Record

Dr. Norman Reider

Prof. Wallace Stegner

Mrs. Theodosia Stewart

Mrs. Kathleen D. Tolman

Rt. Rev. Sumner Walters

Stanley Weigel

Franklin H. Williams

lousing Law

| Invalid

The Washington state Supreme Court, in a 5 to 4 deci-

sion, has held unconstitutional the state law prohibiting

racial discrimination in the sale of publicly-assisted housing.

The case grew out of a complaint filed in 1959 with the

State Board Against Discrimination (SBAD) by Robert Jones,

a Negro Postal Service employee,

who charged that Coast Guard

Commander John J. O'Meara had

refused to sell him the residence

he had put on the market, solely

because of his race. Following a

public hearing, SBAD ordered

O'Meara to sell the house, which

carried an FHA-insured mort-

gage, to Jones.

R. E. Board Intervenes

Local real estate interests, in-

cluding the Seattle Real Estate

Board, stepped in and bought the

house from the O'Mearas, who

were being transferred East. The

SBAD order was then challenged

in the courts; and in July, 1959,

the Superior Court of Washing-

ton State vacated the order and

held the law unconstitutional, on

the ground that it made an un-

reasonable distinction between

publicly-assisted and non-public-

ly-assisted housing. The case was

then appealed to the State Su-

preme Court.

Denial of Equal Protection

The Supreme Court upheld the

lower court's ruling that the law

violates the "equal protection"

clause of the Fourteenth Amend-

ment to the U. S. Constitution,

and a similar section of the state

constitution, on the ground that

the anti-bias law gives those with

conventional mortgages, or no

mortgages, social privileges and

immunities not accorded to per-

sons with FHA mortgages on

their homes.

Two of the five majority judg-

es also held the statute uncon-

stitutional on additional grounds,

including "due process," unrea-

sonable classification, improper

delegation of jurisdiction to an

administrative agency, and un-

ACLU NEWS

March, 1962

Paae 2

constitutional disturbance of "pri-

vate affairs."

Minority Views

The four minority members of

the high court, who termed the

act "a crack in the wall of the

ghetto," strongly upheld its con-

stitutionality, noting that federal

and state civil rights legislation

has followed a "step by step"

pattern. They stated that discrim-

ination in the sale of housing is

harmful to the community, and

found the distinction between

sellers of publicly-aided housing

and sellers who have not received

such aid, logical and reasonable.

The state Attorney General's

petition for a rehearing of the.

case was denied, and he is now

exploring an appeal to the U. S.

Supreme Court. A number of or-

ganizations joined in a friend of

the court brief, including the AC-

LU of Washington state, NAACP,

National Urban League, Ameri-

can Jewish Congress, Anti-Defa-

mation League, Japanese-Ameri-

ean Citizens League, and numer-

ous other organizations combat-

ing housing discrimination.

Other Test Cases

Test cases of similar character

are pending in other states, not-

ably in Pennsylvania and Colo--

rado, whose courts will no doubt

be influenced by the Washing-

ton State Supreme Court ruling.

Radical Right

The refusal of Portland, Ore-

gon's City Council to grant a

permit to Freedom Center, Inc.,

a militant ultra-right-wing group,

to solicit $88,000 for a "fight

against the Communist conspira-

cy" brought a protest from the

ACLU.

Marin Chapter

Elects New

Bd. of Directors

At its annual meeting last

month, the Marin Chapter of the

ACLUNC elected the following

Board of Directors: Breece T.

Howell and Helen Kerr of Sausa-

lito; Dan Chaffin, Maren Hackett

and Martin Katzman of San

Rafael; Frederic Coolidge, Sam

Hanzel and Richard Werthimer

of Kentfield; Betty Hemingway

and Carl Shapiro of Fairfax; Mi-

len Dempster, Naomi Kirschner,

Sali Liberman, Marion Miller,

Robert Pence and Morton Ruben-

stein of Mill Valley; Libby Gins-

berg and Roz Watkin of San An-

selmo: William Luft of Novato

and Jerry Rubin of Corte Ma-

dera; Gordon Robinson, Belve-

dere.

Last year's officers, headed by

Chairman Milen Dempster, have

been re-elected for the current

year, :

Following the election, Dr.

Benjamin A, Reist of San Fran-

cisco Theological Seminary, San

Anselmo, Phillip W. Schneider,

superintendent of San Jose

School District and Ernest Be-

sig, ACLU Executive Director

spoke on the topic "Church and

State, Where Do They Sepa-

rate?"

Dr. Reist declared that the

church today "has got to clean

house on a whole fistful of is- |

sues" of its own special privi-

lege. He felt "troubled" by such

matters as religious observances

in the public schools, tax exemp-

tion for church property and ex-

emption of the clergy from mili-

tary service,

Religion Is Citizens' Business

Ernest Besig declared that

"The Constitution conferred no

power on the Government to in-

volve-itself in religious matters.

Religion is the business of the

citizen, not the Government, and

the First Amendment in prohib-

iting the establishment of re-

ligion and in guaranteeing re-

ligious freedom merely empha-

sized that the Government may

not intrude into areas where it

has been given no power. Both

religious freedom and separation

of Church and State have equal

standing under the Constitution

and separation of Church and

State is NOT subordinate to re-

ligious liberty."

Free Inquiriy

Phillip Schneider found no ob-

jection to "free intellectual in-

quiry into the churches" on the

part of schools, but found the

skills for such inquiry somewhat

inadequate below the college

level, He protested against the

general assumption of a Chris-

tian culture,

ACLU Centention

Fair Trial Denied by

Segregated Courthouse

The ACLU last month urged a federal appeals court to

rule that a Negro was denied a fair and public trial because

it was conducted in a racially segregated courthouse. "Segre-

gation within the halls of justice mocks the judicial process

and the entire trend of current Supreme Court opinion,"

the civil liberties group asserted

in a friend of the court brief on

behalf of Willie Seals, Jr. "This

is a frontier question in the law,"

the ACLU said.

Due Process Denied

Seals, a Mobile County, Ala-

bama, Negro, wag convicted in

1958 by an all-white jury of rap-

ing a white woman and was en-

tenced to die. In a brief submit-

ted to the U.S. Court of Appeals

for the Fifth Circuit, the ACLU

argued that the very fact that

courtroom spectators were seated

separately according to race, that

separate washroom facilities were

maintained for whites and Ne-

groes, and that all court judicial

employees were white, combined

to deny Seals a fair hearing. These

practices violated the due proc-

ess clause of the 14th Amend-

ment and the Sixth Amendment

guarantee of a fair trial, the Un-

ion said.

Different Treatment

"Negro witnesses were general-

ly addressed by first names dur-

ing cross-examination, with no

reprimand from the bench, while

white witnesses were addressed

by the term `Mr.' or `Mrs.'," AC-

LU reminded in its brief. "The

State's case rested entirely upon

the testimony of white witnesses,

while the defense (the alibi that

defendant was elsewhere when

the crime was- committed) de-

pended exclusively upon Negro

witnesses. The jurors were asked

to evaluate the conflicting testi-

mony and in particular to pass

upon the testimony of Negro wit-

nesses who testified in support

of appellant's defense. Although

12 Negrees testified defendant

was not at the scene of the crime,

Mass Suit Filed

Continued from Page 1-

of his suspension, and that he be

paid the costs of his suit.

Board Also Sues

The school board has also filed

a suit in the case asking the

court to declare what their legal

obligations to Mass are. It is be-

lieved that the petition for a

writ will take precedence over

this suit.

John Mass. is now living in

Los Angeles where he and his

wife and children are supported

by his private tutoring of reme-

dial reading students and his

wife's nursery school teaching.

Honorable Discharge Won

Continued from Page 1-

Board found "The activities, as-

sociations or attributes which

formed the basis for (the indi-

vidual's) discharge was pre-Serv-

ice. There is no evidence of falsi-

fication of official documents in

this case, however, there is some .

evidence of continued associa-

tions after his entry in M.C."

Nevertheless, the Board allowed

the undesirable discharge to

stand. :

/Yhe Chairman of the Board

dissented from the opinion of

the majority. He declared he

was "of the opinion that a dis-

charge by reason of fradulent

enlistment is not now supported

by the record." He suggested that

an undesirable discharge could

be based on alleged associations

while the individual was in the

Marine Corps but he would have

to be confronted with the deroga-

tory information and be given

an opportunity to rebut it. "In

view of the failure to do so in

this case and lack of evidence of -

fraud," the chairman recom-

mended that "the discharge be

changed to Honorable by reason

of Convenience of the Govern-

ment."

FBI Was Informed

Moreover, the Marine Corps

admitted that the individual had

given a statement to the Federal

Bureau of Investigation prior to

induction, "Since the government

was aware of (the individual's)

pre-induction activities at the

time he was inducted," his coun-

sel argued, "it would be the

height of injustice to compel his

entry into the armed forces and

then impose an undesirable

discharge based upon those very

same activities."

Board Reverses Itself

On August 2, 1960, the Board

for Correction of Naval Records

refused to correct the individ-

ual's naval records, but on Feb-

ruary 1, 1962, it reversed itself

by granting an honorable dis-

charge. This was done with the

approval of the Secretary of the

Navy. The corrective action in-

terrupted plans for legal action

in the Federal Court in Washing-

ton, D.C. Of course, the individ-

ual has financial claims against

the Government which must now

be resolved. a

the jury convicted him and he

was sentenced to die.... In the

ease at bar, the segregation of the

courtroom, under the aegis of the

judiciary itself, was a continuing

testimonial by the state that the

two races were unequal."

In such circumstances, the brief

continued, jurors have difficulty

maintaining objectivity. "The re-

sult necessarily is to impart a

feeling of unreliability and un-

trustworthiness toward Negroes

generally, and towards the de-

fendant and his witnesses partie

ularly."

No "Public" Trial

Seals' trial was not "public" in

the fullest sense of the word, the

ACLU held, because segregated

seating discouraged Negro at-

tendance. "Because Negroes more

and more are turning to the

courts to enforce their rights, it

is more important than ever for

Negroes to attend court proceed-

ings. Their very attendance af-

fords a strong measure of protec-

tion for defendants. Nonetheless,

in cases like the one at bar, the

State discourages that attendance

by enforcing segregation in the

courtroom, and defendant's basic

protections are substantially un-

dermined.

As for segregated seating, the

ACLU commented: "At this late

date, after the rash of municipal

golf course, bus line, air termi-

nal, parks and other cases, there

can be no doubt that a Negro has

a right to sit anywhere in a state

courtroom and this right cannot

be denied to him by the presid-

ing judge."

Santa Clara

Valley Chapter

Receives Charter

The Santa Clara Valley Chap-

ter of the ACLUNC was char-

tered at the February 8 meeting

of the Board of Directors and

becomes the branch's fifth chap-

ter besides the Student Civil

Liberties Union at the Univ. of

California,

The first chairman of the Santa

Clara Valley Chapter is attorney

Edwin L. Laing of San Jose, a

graduate of Stanford Law School

and a member of the ACLU since

1954. Other officers are: Larry

Johsens, First Vice-Chairman, a

teacher; Walter R. Howes, Sec-

ond Vice-Chairman, a labor un-

ion official; Alden Campen,

Third Vice-Chairman, property

manager; Dr. Stanley Milstone,

Fourth Vice-Chairman; and _ at-

torney H. Reed Searle, Fifth

Vice-Chairman. The Secretary-

. Treasurer is Mrs. W. L. Crafford,

3104 Woodcrest Drive, San Jose

24, Calif., housewife and active

in civic affairs.

Members of the Board of Di-

rectors, besides the foregoing of-

ficers, are Mrs. Helen Lincoln,

teacher; attorney Solomon Zelt-

zer; David C. Heilbron, com-

puter programmer; Arthur Peter-

son, teacher; Mrs. Ben Neren-

berg, housewife, who is active in

civic affairs; attorney Maurice

H. Hardeman; Prof. Keith Johns-

gaard and Prof. James E. Wat-

son.

Communities Covered.

The Santa Clara Valley Chap-

ter includes the communities of

San Jose, Santa Clara, Sunnyvale,

Saratoga, Los Gatos, Campbell,

Cupertino, Gilroy, and Milpitas.

There are presently 180 ACLU

members in good standing in this

area and the membership is

growing, Members who desire to

become active in the Chapter

should contact the Secretary-

Treasurer or the Chairman.

eA en teak yee Ae Mea yon es Cale

Naturalization Service

`The incredible Immigration and Naturalization Service

which, like the Canadian Mounties, are out to get their man,

is on the hunt again.

Back in 1955 they sought an alien's

deportation on the ground that he advocated world commu-

nism.

peals, the deportation order was

set aside. Incidentally, the hear-

ings in that case occupied many

days and the transcript runs to

776 single-spaced pages.

Oppose Citizenship

Last month, the Immigration

and Naturalization Service ruled

against the alien's citizenship ap-

plication on the ground that he

"did not give full, open, and

complete answers at his prelim-

inary examination," and that he

failed to prove that he is at-

tached to the principles of the

Constitution, The only evidence

cited in support of the Govern-

ment's position are the following

statements torn out of context:

"Do you believe that the Com-

munist Party of the United

States is a domestic enemy of

this country?. His answer: Again

I say I am just apolitical to the

question, completely. Whether it

is a socialist party or a fascist

party or democratic or republi-

ean, it makes no difference. I am

just apolitical, strange to say.

"Q. What is your opinion today

as to whether the Communist

Party is one seeking the destruc-

tion of our Government? A. I

just don't know and I don't care.

I am just apolitical. I assure you

this is my stand. No matter what

the party is or where it is, and I

know the implications of this too ~

well."

Applicant Apolitical

While the ACLU has not yet

been able to secure a copy of

the transcript of the preliminary

hearing, counsel's recollection is

that the alien had explained that

as a result of his deportation

proceeding experience he had

carefully sought to keep out of

any difficulties with the Immi-

gration Service by ignoring poli-

tics. Therefore, for six years he

had been apolitical. |

During the hearing, the Im-

migration Service Investigator

objected to the petitioner de-

scribing the United States as a

democracy and, like a good John

Bircher, he wanted it described

as a republic.

Misguided Informers

The alien's previous deporta-

tion difficulties resulted from

the misguided efforts of two

couples he met briefly in 1950.

The wives of the couples were

- childhood friends and sorority

sisters of the alien's wife. Their

outlook was wholly provincial

and they had nothing in com-

mon with the young intellectual

from a foreign land who was so

different from them. Their ac-

tions suggest that they undertook

to save their schoolmate from

what appeared to them an un-

wise marriage, On the basis of

single conversations in Novem-

ber, 1950, and January, 1951, cov-

ering such topics as life in China

under Chiang and the Commu-

nists, the Korean conflict which

had just begun, the Levering Act

loyalty oath controversy on the

State College campus, etc., the

husbands of the two women re-

ported the alien to the Immigra-

tion and Naturalization Service

as a Communist.

Testimony of One Couple

One of the couples testified at

the deportation hearings that the

alien had said the following: The

this country

But, on an appeal to the Board of Immigration Ap-

Russian government had a won-

derful system and a great cause,

that the United States govern-

ment could benefit by their sys-

tem, that this country could gain

a lot by using their system, that

their system is much better than

ours, that the administration of

could only be

changed by force, and that voting

was merely to fool the public.

They also testified that the

alien's first words to them upon

being introduced were, "I am a

Communist." This statement was

so improbable that it was even

ignored by the hearing officer in

his adverse ruling. (c)

Soccer Football Un-American

The testimony of the other

couple was disregarded. It was

utterly fantastic, biased, and

prejudiced. For example, the

man testified that the alien had

expressed himself in favor of

soccer football as against Ameri-

can football, so he concluded the

alien was un-American, He also

thought it was un-American for

the alien to enjoy Russian

Easter, which he believed had

something to do with commu-

nism.

The alien and his wife both

testified that the former's re-

marks had been either misunder-

stood or misinterpreted. Indeed,

thirteen witnesses who had

known him for as long as seven

years also testified in his behalf

and stated that the opinions at-

tributed to him were completely

inconsistent with his point of

view. :

Hearing March 28

`The adverse recommendation

of the Designated Naturalization

Examiner will be heard by the

Federal District Court in San

Francisco on March 28.

1962 Membership

Mid-Peninsula

Chapter Elects

New Board

At its second annual meeting

. on February 16, the. Mid-Penin-

sula ACLUNC chapter elected the

following slate to make up its

board of directors for the current

year:

Michael Chriss, Palo Alto mis-

sile engineer;

Karel deLeeuw, Stanford Uni-

versity mathematics professor,

board member for past five

months;

_ Louis Fein, Palo Alto consult-

ing physicist;

Richard Gould, Menlo Park re-

search engineer, board member .

for past five months;

Norman Howard, Los Altos

Hills attorney, program chair-

man for the past two years.

Sandra Levinson, Menlo Park

teaching assistant and Ph.D. can-

didate in Stanford's political sci-

ence department;

Dr. Leroy Lucas, Palo Alto den-

tist, treasurer for past five

months;

William McElhinney, Palo Alto

architect, past chairman of mem-

bership participating committee;

Daniel J. Miller, Los Altos ma-

rine biologist; :

Ernest Norback, Menlo Park

attorney, board member for past

five months;

Wesley Pomeroy, San Mateo

County undersheriff and director

of the Northern California Serv-

ice League;

Mrs. Joy Rosaaen, Palo Alto

housewife;

John Rutherford, Los Altos

Hills consulting engineer, board

member for past year;

Peter Szego, Los Altos teacher,

membership chairman for past

two years.

At its first meeting the board

will designate its officers and

draw straws for the one- and two-

year terms. Staggered terms of

office will insure continuity while

allowing transfusion of new blood

in chapter programs. The meet-

ing adopted changes in the chap-

ter by-laws, to be submitted to

the Northern California Board

for approval.

After the elections and by-law

discussion, Assemblyman John A.

O'Connell spoke on "Narcotics

and Law Enforcement." In a

thorough analysis of state laws

affecting narcotics in California,

Mr, O'Connell stressed the ten-

dency toward stiffer laws rather

than improvement in therapy or

rehabilitation. Until the legal

outlook changes, he pointed out,

there will continue to be limited

treatment available for victims

of narcotic addiction.

Drive

To Be Launched March 19

With over 3,300 persons recommended as members in

answer to the "names' appeal," the membership drive is

building up for the official opening on March 19. Members

have sent in many more recommendations. That number is

the total after screening out duplications and those already

members. And more names are

coming in,

`Local Meetings

Membership committees have a

variety of interesting plans in

the hopper to highlight the drive

in their local areas. San Fran-

cisco's committee is starting off

with an "Operation Correction"

evening, March 2, at the Hall of

Flowers, Ninth Ave. and Lincoln

Way. Castro Valley prospects

will be introduced to ACLU's

program at the Edward New-

man's, March 23. Stockton mem-

bers are holding a public meet-

ing March 31 with Nathaniel

Colley as the headline speaker

(see announcement page 1).

Membership committees of Berk-

eley, Hayward, Oakland, Orinda

and Walnut Creek are working

together for a Saturday after-

ternoon's conference late in

April.

New Campaign Committees

For the first time in the his-

tory of ACLU membership cam-

paigns, Redding and Marysville-

Yuba City will have the advan-

tage of committees on the job

locally, William Coyle reflects a

broad enthusiasm with the prom-

ise of waking "people up to the

value of civil rights" in the Red-

ding area.

Prospects received their first -

mailing, a copy of the NEWS,

the end of Feb. Invitation to

join will be going out to them

before `mid-March, with a bro-

chure explaining ACLU's im-

portant work and a membership

envelope.

Volunteers Invaluable

Numerous volunteers at home

and in the office - during the

day, after work, week-ends-have

made it possible to meet the

drive's tight schedule. Some days

they've numbered so many, of-

fice facilities and staff had to be

moved about to make elbow

room for all -J.H.

Post Office Picketing

Dist

issal for

The U. S. Court of Appeals for the District of Columbia

last month was asked to set aside the dismissal of Conrad C.

Eustace, San Francisco postal clerk, who was discharged on

March 19, 1958 for "the efficiency of the service." The re-

quest was contained in a brief filed by volunteer ACLU attor-

neys Dickstein and Shapiro of

Washington, D. C., together with

attorney Joel Jay Rogge of that

firm.

Facts Not Disputed

The facts in the case are not

disputed. "At approximately

eight o'clock on the morning of

November 27, 1957, appellant,

President of Local 1136, United

Postal Workers Union, and other

off-duty members had gathered

on the public streets adjoining

the Main Post Office, San Fran-

cisco, California. For the next

hour they. walked along the

streets in a peaceful and orderly

manner carrying placards and

distributing handbills which in-

formed the public of their work-

ing conditions. A press release

was issued to members of the

local press.

Discharged in 1958

"On February 12, 1958 Postal

Inspector Uttley notified appel-

lant that the Post Office pro-

posed to discharge him. On Feb-

-ruary 24 appellant replied to

each of the nine charges against

him. He pointed out that the

demonstration was the product

of the lawful and proper activ-

ities of a postal employees' or-

ganization and maintained that

his participation on his own time

and as a representative of the

Union was beyond the jurisdic-

tion of the Post Office. On March

19, 1958 appellant was dis-

charged."

Administrative Appeals Lost

Eustace appealed first to the

Regional Office of the Civil Serv-

ice Commission and then to the

Commission's Board of Appeals

and Review. As a result, all but

two of the charges were dis-

missed. The Board of Appeals

and Review found

"1. Placards were displayed

with emphasis in their format on

such words as `Strike' and `Un-

fair.'

"9 Handbills were distributed

with emphasis in their format

upon such words as `Strike' and

`Unfair, complaining of the pay

and other employment considera-

tions established by law which

implied that postal employees

have no rights when in fact they

do have specific rights, and

`called upon the public to brand

the Post Office Department as

unfair to organized labor for ad-

hering to laws governing pay

and employment.

"3: A mimeographed press re-

lease of November 27, 1957 was

distributed which refers to the

postal management as an `auto-

cratic dictatorship,' which states,

`we do not have a grievance pro-

cedure, only a Kangaroo Court,

and which is contemptuous

toward and insulting to Mr. Mel-

vin A. Ostrom, then Acting As-

sistant Postmaster, San Fran-

cisco, in that it likens him to

Mao-Tse-Tung, a Communist

.China Leader."

The Board of Appeals and Re-

view held that appellant "in-

tended (thereby) to bring the

Post Office Department into dis-

repute and that such conduct

(was) unbecoming to a postal

employee."

The Issue

The issue presented by the ap-

peal is whether the dismissal of

Eustace from the postal service

for engaging in lawful concerted

union activity is proscribed' by

the Lloyd-LaFollette Act and -

the First Amendment to the Con-

stitution of the United Staes.

The Act allows postal em-

ployees to join organizations

which do not impose an obliga-

tion to engage in any strike

against the United States and

which may have for their ob-

jects "among other things, im-

provements in the condition of

labor of its members, including

hours of labor and compensation

therefor and leave of absence,

by any person or groups of per-

sons in said postal service, or

the presenting by any such per-

son or groups of persons of any

grievance or grievances to the

Congress or any Member there-

Of :

Long Struggle

The brief points out that prior

to the enactment of the Lloyd-

LaFollette Act in 1912, and espe-

cially from 1895 to 1912, "the

Executive branch issued numer-

ous `gag orders' in an attempt to

prevent postal employee unions

from publicizing their griev-

ances. These `gag orders' were

devices by which the Post Office

Department erected a wall of

silence between undominated

postal employee unions on the

one hand, and Congress and the

American people on the other.

The most infamous of these was

the order of 1906 which was de

signed to prevent postal em-

ployees from giving publicity to

the unsafe and unsanitary condi-

tions existing in the railway mail

service. The order provided that

`railway postal clerks must not

engage in controversies with or

criticisms of railroad officials in- -

volving the administration of the

postal service by furnishing in-

formation to the newspapers or .

publicly discussing or denounc: (c)

ing the acts or `omissions' of

such officials as affecting the

postal service. By 1911 the Post

Office Department was openly at

war with all employee organiza-

tions it could not control or dom-

inate."

Inert' Exercise

"Congress intended `to protect

employees against oppression

and in the right of free speech'

in seeking improvement in

(their) condition of labor," the

brief argues. "It did not intend

to engage in an `inert (exercise)

in literary composition.'" The

lower court, on the other hand,

decided that in allowing mem-

bership in any organization of

postal employees Congress in-

cluded only adhesion to member-

ship and direct presentation of

grievances to Congress. "There

is no provision authorizing Gov-

ernment employees to engage in

external concerted activities of

the nature involved in this ac

tion," the lower court declared.

No decision is expected in the

case for several months.

ACLU NEWS

March, 1962

Page 3

New Regulations

The State Department was

praised recently for making a

"major civil liberties advance"

by decreeing that suspected or

known Communists who apply

for passports must be allowed to

confront and cross-examine their

-aecusers. But while congratulat-

ing the government agency for

its action, the ACLU reiterated

its belief in the right to travel

freely and served notice it is will-

ing to support an appropriate

legal test of the Subversive Ac-

tivities Control Act provisions

barring passports to Communist

Party members.

Due Process Principle

"The acceptance of the cardi-

nal due process principle that an

accused has the right to confront

and cross-examine his accusers

(provided in the new State De-

partment regulations) is a pro-

found step forward," the ACLU

told Secretary of State Dean

Rusk in a letter. "The absence

of this vital protection, not only

from the Department's earlier

passport regulations but from all

of the government's loyalty-secu-

rity programs over the past 15

years, deprived many Americans

of their constitutional rights....

Ever since 1947, when the first

federal employee loyalty-security

program was instituted, and in

every loyalty-security program

subsequently established (the in-

dustrial security program, the

armed forces security program,

and the Coast Guard port secu-

rity program), the failure to pro-

vide direct confrontation and

cross-examination has encouraged

the use of faceless informers,

hearsay evidence, rumor, and

vague and irrational accusations

against the person involved. The

consequences of these arbitrary

proceedings... have been to in-

still within our nation the idea

`that constitutional standards of

fairness can be circumvented

when it is claimed that there are

countervailing interests which

justify their dilution....

Example for Other Agencies

"The new State Department

regulations announce that our

government finally recognizes

that constitutional standards

must be rigidly adhered to at all

times and in all places. We will

recommend to other agencies of

the government that in adminis-

tering their loyalty-security pro-

grams, the concept of fair treat-

ment recognized in the Depart-

ment's regulations be adopted by

them."

The Regulations

The Subversive Activities Con-

trol Act makes it a crime for a

present member of the Commu-

nist Party to apply for a U. S.

passport or for a government

agent to issue one. Implement-

ing that provision, the State De-

partment on January 12 issued

regulations providing an adminis-

trative hearing for a person de-

nied a passport because of sus-

pected party membership. All

evidence against him and its (c)

source must be produced at the

hearing, and he must be able to

cross-examine witnesses. He may

present evidence in his own be-

half and be represented by coun-

sel. Confidential information not

made available to the passport

applicant may not be used in con-

ACLU NEWS

March, 1962

Page 4

sidering the case. Further, if a

security agency insists upon

maintaining the anonymity of its

confidential informants and thus

prevents them from appearing at

a hearing, the State Department

is required to issue a passport.

Decisions rendered against an

applicant may be carried by him

to a Board of Passport Appeals

and if necessary subsequently to

the Secretary of State,

Offensive Question Omitied

"We also note that the passport

application will not contain a

question asking whether the ap-

plicant is or was a member of

the Communist Party," the ACLU

observed in its letter. "The De-

partment will instead print a

warning about the passport provi-

sion at the top of every applica-

tion and post notices in passport

offices calling attention to the

Internal Security Act's provision

barring passports to Communists.

We regard this as a vast improve-

ment over the inclusion of a spe-

cific question regarding member-

ship, as in the.past, which was

highly offensive to Americans

who regarded it as a loyalty de-

vice impinging on the deep-rooted

American principle of freedom of

political opinion and the right of

the individual to be free of gov-

ernment pressure in declaring or

not declaring his innermost be-

liefs. The former requirement

violated the ingrained concept of

our system of justice, that an in-

dividual is presumed to be inno-

cent of wrongdoing until the con-

trary is proven by the state."

Freedom. of Movement

The ACLU will "...continue

to assert that the right to travel

is part of the liberty guaranteed

by the Constitution," the ACLU

warned. "This right should not

be infringed merely on the basis

of membership in any organiza-

tion, and barring actual warfare,

can only be curbed when an indi-

vidual is under indictment for the

commission of a crime.... Thus,

in appropriate cases, we will sup-

port a challenge, on constitution-

al grounds, of the Subversive Ac-

tivities Control Act provision

which allows passports to be with-

held from Communist Party

members."

Regulations Under Attack

The State Department regula-

tions governing passport hearings

are being attacked by Represent-

ative Francis E. Walker. The

Pennsylvania Democrat, who is

chairman of both the House Im-

migration and Naturalization sub-

committee and the House Com-

mittee on Un-American Activities,

is seeking approval of legislation

to nullify them.

Lie Detectors

The increased use of the lie

detector by private firms in

Texas has been reported by the

Texas Observer, a weekly pub-

lication, The newspaper stated

that Clayton Evans, co-owner of

Employment Services, which ad-

ministers such test, estimates

that 5,000 Texas firms now re-

quire their employees to take

periodic tests.

Fred Schmidt, secretary-treas-

urer of the Texas AFL-CIO, re-

cently called the tests "a _ ter-

rible- invasion of privacy" and

said they were "as invidious as

wire-tapping."

Pamphlets and Revocation of Citizenship

Books for

SalebyACLU

The following books and pam-

phiets are available at the ACLU

office, 503 Market St., San Fran-

cisco 5, Calif., at the prices indi-

dated. Mail orders accepted if

accompanied by payment:

1. Academic Freedom and Aca-

demic Responsibility - A state.

ment of the principles concern-

ing the civil liberties of teachers

in public and private schools, col-

leges, and universities, published

by the ACLU. 16 pages. Price 10

cents.

2 Academic Freedom and Civil

Liberties of Students in Colleges

and Universities - Published by

the ACLU in November, 1961.

15 pages. Price 10 cents.

3. A Movie With a Message-A

reprint of a 1-page article on "Op-

eration Abolition" film, by Paul

Jacobs, which appeared in The

Reporter Magazine. 5 cents per

copy.

4. Biennial Report -American

Civil Liberties Union of North-

ern California-June, 1958 - June,

1960. 32 pages. Free to members.

Price to non-members, 25 cents.

5. By the People-40th annual

report of the national ACLU-

July 1, 1959, to June 30, 1960. 80

pages. Price, 75 cents.

6. Grand Inquest, by Telford

Taylor - Ballantine Books, Inc.

This excellent book was first pub-

lished in 1955 and deals generally

with congressional investigations.

Price, 75 cents.

7. The Supreme Court and

Civil Liberties, by Osmond K.

Fraenkel. How the court has pro-

tected the Bill of Rights. Pub-

lished for the American Civil

Liberties Union by Oceana Pub-

lications. 173 pages. Price: $1.75.

8. Let's Look at the Facts-An

analysis of the inaccuracies and

distortions of `Operation Aboli-

tion,' by the Rev. Robert W.

Moon of Fresno. Reprinted from

the March 22, 1961, issue of "The

Christian Century." Price 5 cents

for postage and handling charges.

9. Loyalty and Security in a

Democracy-A roundtable report.

Public affairs pamphlet, 28 pages.

Price, 25 cents.

10. Operation Abclition: Some

Facts and Some Comments - A

comprehensive, objective, well-

written analysis of distortions in

the film, giving clear evidence of

what actually happened at S. F.'s

City Hall in May, 1960. Published

by the National Council of

Churches. Price, 50 cents.

11. Religion and the Free So-

ciety.-Articles by William Lee

Miller, William Clancy, Arthur

Cohen, Mark DeWolf Howe and

Maximilian W. Kempner. Pub-

lished by the Fund for the Repub-

lic. 107 pages. Price, 50 cents.

12. Religion and the Public

Schools, by Marvin Braiterman-

Published by the Commission on

Social Action of Reform Judaism.

72 pages. Price, 35 cents.

13. Secret Detention by the

`Chicago Police-A report by the

American Civil] Liberties Union,

Illinois Division. 47 pages. Price,

$1.00. _

14. Some [Illustrations of the

Harms Done to Individuals by the

House Committee on Un-Ameri-

can Activities-A mimeographed

illustrative digest of the harms

suffered by persons called to tes-

tify, named in hearings or in-

volved in other ways with HUAC.

Published by national ACLU.

Price, 25 cents.

15. The Un-Americans, by

Frank J. Donner-Published by

Ballantine Books, Inc. Presents

in a popular manner the commit-

tee's abuses over the years. Price,

60 cents.

16, When Congress Investigates,

by Alan Barth-A concise account

of the legislative power of in-

quiry, its history, usefulness, and

its limitations. Public Affairs

pamphlet. 28 pages. Price, 25

cents.

lenge Laws

ing

Pratt Evaders

_ Two important cases bearing on American nationals'

rights to retain and defend their citizenship against en-

croaching laws are nearing final resolution in the U.S.

Supreme Court.

Both tests concern men whose citizenship was revoked

after administrative determina-

tions that they remained outside

this country to escape military

service. Both seek invalidation

of statutes authorizing such ac-

tion. One, in addition, poses an

important procedural question,

whether an expatriated citizen

abroad may gain access to the

courts of the United States to

challenge the revocation of his

citizenship. The high court's de-

cision on that question is expect-

ed to influence rulings in several

lower court cases now pending.

Deportation Sought

Francisco Mendoza - Martinez,

a native born U, S. citizen, left

the United States for Mexico dur-

ing World War II to evade the

draft. The 1940 Nationality Act,

permitting revocation of citizen-

ship for such action, was invoked

and in 1953 Mendoza - Martinez

was ordered deported as an alien.

He filed suit and won in the Fed-

eral District Court in Southern

California. Following the U. S.

Supreme Court's reasoning in an

earlier case, Trop v. Duiles, deal-

ing with another section of the

1940 Nationality Act, the lower

court declared the applicable pro-

vision of the Nationality Act un-

constitutional. The government

appealed.

Unusual Punishment

Supporting Mendoza - Martinez

before the Supreme Court, the

ACLU argued in a friend of the

court brief, first that the Na-

tionality Act violates the Eighth

Amendment's prohibition against

cruel and unusual punishment.

Government powers affecting for-

eign affairs, war, or exercise of

sovereignty are not involved here,

the ACLU brief contended, be-

cause the legislative history of

the statute demonstrates that its

purpose is solely to punish draft

delinquents. It also declared that

due process is denied by the pro-

vision that denationalization may

be imposed without a prior con-

viction for the proscribed con-

duct,

Administrative Fiat

"In bald words," the brief as-

serted, "the national who has

been ruled expatriated for draft

evasion by.an administrative de-

cision, without a prior hearing,

without prior conviction, without

final sanction by a court, must

nonetheless submit himself to the

jurisdiction of the courts and

ST noes

The first right of a citizen

Is the right

To be responsible.

agencies of the United States as

though he were an alien. If he is

an expatriated citizen outside the

United States, his posture is that

of an alien seeking admission to

this country for the first time...

it seems scarcely necessary to

argue that a national of the Unit- .

ed States may not be stripped of

his citizenship, under the expa-

triation provisions of the nation-

ality laws, by administrative fiat

and then left to vindicate his

rights before the courts as an

alien outside the United States." |

Government Appeals

It was to this matter that the

ACLU devoted attention in a

friend of the court brief on be-

half of Joseph Henry Cort, who

was judged by administrative de-

cree to have forfeited his Ameri-

can citizenship for having stayed

outside the United States from

1951 until 1960 to avoid military

service, an assertion he denied.

The Federal District Court in

Washington, D.C., ruled that the

section of the Immigration and

Nationality Act of 1952 under

which Cort's citizenship was re-

voked was unconstitutional. The

government appealed upon two

grounds. First, it argued that the

courts of the United States are

not open to an expatriated citizen

who remains abroad. Second, it

contended that the statute is con-

stitutional. | /

`Denial of Due Process

To force a person whose citi-

zenship has been taken away by

administrative decision of the

Secretary of State to apply for

entrance and a hearing like any

alien first reaching the U. S., and

then for a writ of habeas corpus (c)

to determine the legality of his

detention by the Attorney Gen-

eral "is not- only egregiously

wrong," the ACLU declared, but

the arguments of the Solicitor

General for the government are

out of step with President Ken-

nedy's prior advocacy of simpli-

fying judicial procedures in im-

migration and nationality cases,

as well as with the intent of Con-

gress. To do so, it concluded

would be contrary not only to the

provisions of the Administrative

Procedure Act guaranteeing ju-

dicial review of any agency ac-

tion, but would "constitute a tak- _

ing of life, liberty and property

without due process of law in vio-

lation of the Fifth Amendment."

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