Evening star., 1949-10-05
Appea|sCourt
Asked toAct in
Loya|tyCase
Brief for Miss BuiIey
Cites Dreyfus and
Nuremberg Trials

Attorneys for Dorothy Bailey
have fired the opening shots in
second-round court test Of the
Presidents loyalty program, it wa.
learned today.
In an unusual brief filed with
the Court of Appeals here, the law.
yers contended the loyalty pro-
gram, as now administered, EN-.
ploys judicial principles which
were repudiated In Frances famec
Dreyfus case.
They said that in dischargine
Government employees on evidence
not disclosed to the accused. the
Loyalty Boards are employing tac'
tics for which Nazi judges were
condemned at Nuremberg.
Miss Bailey, a former $8,000-a.
year official of the United State:
Employment Service, was dis
missed year ago for alleged
Communist sympathies. She took
her case to court after first ex-
hausting all administrative rem.
edies provided in the loyalty
order.
Thrown Out by Holtzoff.
Judge Alexander Holtzoff threw
the case out of District Court
July %, declaring a judge had nc
right to set aside Loyalty Board
findings.
In their argument to the Ap-
peals Court, as they did before
Judge Holtzof, Miss Bailey's at
torneys of the firm of Arnold,
Fortas g. Porter concentrated on
the provision of the Presidents
LOYALTY order that dismissal IN
loyalty cases must be ION all the
evidence"
Judge Holtzof had cited French
law in ruling that secret informa-
ton received by the loyalty boards
from the Federal Bureau OF In
vestigation might be termed "evi-
dence." Miss Bailey was dis
missed as a result Of such in
formation.
In their brief Miss Bailey's law
yers declared that even under
French law hearsay or secret evi-
dence is admissible only when the
accused has the right Of cross
examination as to its reliability
a right denied their client.
Dreyfus Case Cited.
The brief cited the Dreyfus case
as a rare instance in continental
law where conviction was based
on secret information, unknown
to the accused.
(Capt. Alfred Dreyfus was a
French artillery officer OF Jew
ish birth convicted OF betray-
ing his country on the basis OF
forged papers and sent to
Devils IslandD
I'm that case" the attorneys
wrote, unlike the case at bar
there was considerable evidence
against the defendant, but il
seemed clear the court was not
convinced by the evidence. How
ever, the French minister of wal
Gas did the FBI here) gave the
court sealed envelope containing
secret information against Dreyfus
and conviction followed.
"The conviction was in 1894
Five years later, public indigna-
ton had risen to such a height
that a majority of the ministers
Of justice asked to be shown secret
dossier which had been submitted
to the judges of the court-martial
Following that resolution. the
court of cessation reopened the
appeal which finally led to the
acquittal of Dreyfus."
Nuremberg Decision Recalled.
The lawyers said Judge Holt
zof had based his decision on the
procedure in French courts-"the
very courts which reopened the
Dreyfus case because the proceed
ure defended here) had been en-
ployed to obtain a conviction"
In citing the Nuremberg decis-
ion on the shortcomings of Naz
law, Miss Bailey's attorneys de-
clared:
I'VE do not suggest that the
Loyalty Board should be com.
pared to the Nazi judges tried al
Nuremberg. We imply no criti.
cism of them as individuals anc
we realize they acted in the bes'
of faith. But in the interest Of
our client. we are compelled tt
denounce the procedure they
adopted and to point out it!
shocking deviation from the Pres
ident's direction to decide case!
on the evidence"
The Justice Department ha'
one month in which to answer tn.