Jay v. Boyd/Dissent Black

Mr. Justice BLACK, dissenting.

This is a strange case in a country dedicated by its founders to the maintenance of liberty under law. The petitioner, Cecil Reginald Jay, is being banished because he was a member of the Communist Party from 1935 to 1940. His Communist Party membership at that time did not violate any law. The Party was recognized then as a political organization and had candidates in many state elections. Jay's Communist Party membership ended 10 years before such membership was made a ground for deportation by Congress. 64 Stat. 1006-1008. It is for this past Communist membership, wholly legal when it existed, that Jay has been ordered deported.

Even though an alien has been found to be deportable, Congress has provided a procedure which he can invoke to have his deportation suspended. 66 Stat. 163, 214-216, 8 U.S.C. §§ 1254(a)(5), 1254(c), 8 U.S.C.A. § 1254(a)(5), (c). He is entitled to suspension 'in the discretion' of the Attorney General if he 'proves' that during the preceding 10 years he has been a person of good moral character and if deportation would result in exceptional and unusual hardship. The language of the statute plainly shows that an alien must be given an opportunity to 'prove' these things if he can. This of course means that he must have a full and fair hearing. Jay asked to be allowed to give such proof and in fact proved his case to the complete satisfaction of the hearing officer who passed on it. But the hearing officer 'after considering confidential information' refused to suspend deportation. The Board of Immigration Appeals dismissed Jay's appeal.

Jay is now 65 years of age. He came to this country from England for permanent residence in 1914. He has remained here even since except for time he served in the army of our ally Canada during the First World War. Despite the Government's far-flung investigative network it has not been able to dig up one single incident of misconduct on the part of Jay during his entire 65 years which it is willing to produce in court. That Jay is a person of good moral character and that his enforced exile from this country will work an 'exceptional and extremely unusual hardship' have been found by the hearing officer.

I agree with The CHIEF JUSTICE, Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS that the Attorney General's regulation authorizing Jay and others like him to be deported upon alleged anonymous information should be held invalid as beyond the statutory power of the Attorney General. But a majority of the Court holds otherwise. This makes it necessary to consider the constitutionality of the use of anonymous information for such a purpose. In Footnote 21 of its opinion the Court states, somewhat as an aside, that 'the constitutionality of § 244 as herein interpreted gives us no difficulty.' In this easy fashion the Court disposes of a challenge to the power of Congress to banish people on information allegedly given federal officers by persons whose names are not revealed and whose statements (if made) are shrouded in the darkness which surrounds 'confidential information.'

What is meant by 'confidential information'? According to officers of the Immigration Service it may be 'merely information we received off the street'; or 'what might be termed as hearsay evidence, which could not be gotten into the record * *  * '; or 'information from persons who were in a position to give us the information that might be detrimental to the interests of the Service to disclose that person's name *  *  * '; or 'such things, perhaps, as income-tax returns, or maybe a witness who didn't want to be disclosed, or where it might endanger their life, or something of that kind *  *  * .' No nation can remain true to the ideal of liberty under law and at the same time permit people to have their homes destroyed and their lives blasted by the slurs of unseen and unsworn informers. There is no possible way to contest the truthfulness of anonymous accusations. The supposed accuser can neither be identified nor interrogated. He may be the most worthless and irresponsible character in the community. What he said may be wholly malicious, untrue, unreliable, or inaccurately reported. In a court of law the triers of fact could not even listent to such gossip, must less decide the most trifling issue on it.

The Court today is not content with allowing exile on the basis of anonymous gossip. It holds that the hearing officer who condemned Jay could act in his 'unfettered discretion,' subject only to review by the Board of Immigration Appeals. Of course the Court refers to the Attorney General's 'unfettered discretion,' but participation of the Attorney General in this case is a fiction. The Court concedes in Note 8 of its opinion that the Attorney General does not personally exercise discretion in these cases. Therefore, the 'unfettered discretion' to which the Court subjects persons like Jay is the unfettered discretion of inquiry officers of the Immigration Service, reviewable only by the Board of Immigration Appeals. Under our system of government there should be no way to subject the life and freedom of one individual to the 'unfettered' or, more accurately, the 'arbitrary' power of another. Article III of our Constitution and the Bill of Rights intend that people shall not have valuable rights and privileges taken away from them by government unless the deprivation occurs after some kind of court proceeding where witnesses can be confronted and questioned and where the public can know that the rights of individuals are being protected.

Unfortunately, this case is not the first one in recent years where arbitrary power has been approved and where anonymous information has been used to take away vital rights and privileges of people. The Court disposes of what has been done to Jay to its satisfaction by saying that his right to stay here if he proves he is a good citizen 'comes as an act of grace,' like 'probation or suspension of criminal sentence.' But probation and suspension of criminal sentence come only after conviction of crime. Cf. Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. Here the Government with all of its resources has not been able to prove that Jay ever committed a crime of any kind. And Congress provided the suspension procedure so that one in Jay's situation could get special relief if he proved his good moral character. Viewed realistically this suspension procedure is an integral part of the process of deciding who shall be deported.

No amount of legal reasoning by the Court and no rationalization that can be devised can disguise the fact that the use of anonymous information to banish people is not consistent with the principles of a free country. Unfortunately there are some who think that the way to save freedom in this country is to adopt the techniques of tyranny. One technique which is always used to maintain absolute power in totalitarian governments is the use of anonymous information by government against those who are obnoxious to the rulers. In connection with another case like this I referred to a statement made by the Roman Emperor Trajan to Pliny the Younger around the end of the First Century. Rome at that time was prosecuting the Christians for alleged subversive activities. Pliny expressed his doubts to Trajan as to the best method of handling the prosecutions. He wrote Trajan, 'An anonymous information was laid before me containing a charge against several persons, who upon examination denied they were Christians, or had ever been so. * *  * ' Trajan replied, 'You have adopted the right course, my dearest Secundus, in investigating the charges against the Christians who were brought before you. * *  * Anonymous informations ought not to be received in any sort of prosecution. It is introducing a very dangerous precedent, and is quite foreign to the spirit of our age.'

It was also foreign to the brave spirit of the American age that gave birth to our constitutional system of courts with their comprehensive safeguards for fair public trials. In those courts a defendant's fate is to be determined by independent judges and juries who hear evidence given by witnesses in their presence and in the presence of the accused. But this case shows how far we have departed from the carefully conceived plan to safeguard individual liberty. Although the Court today pays lip service to judicial review, a hearing officer's condemnation of Jay is held final and unreviewable. His condemnation is in open defiance of all the public testimony given, and rests exclusively on 'confidential information' he claims to have received from unrevealed sources. Unfortunately this condemnation of Jay on anonymous information is not unusual-it manifests the popular fashion in these days of fear. Legal rationalizations have been contrived to shift trials from constitutional courts to temporary removable appointees like the hearing officer who decided against Jay. And when an accused rises to defend himself before such an officer he is met by a statement that 'We have evidence that you are guilty of something, but we cannot tell you what, nor who gave us the evidence.' If, taking the Bill of Rights seriously he complains, he is met by the rather impatient rejoinder that the Government's safety would be jeopardized by according him the kind of trial the Constitution commands. But the core of our constitutional system is that individual liberty must never be taken away by shortcuts, that fair trials in independent courts must never the dispensed with. That system is in grave danger. This case emphasizes that fact. Prosecution of any sort on anonymous information is still too dangerous, just as it was when Trajan rejected it nearly two thousand years ago. Those who prize liberty would do well to ponder this.