Evening star. [volume] (Washington, D.C.) 1854-1972, 1956-06-24

Mr.. Tucker is member Of the District
ond Virginia Dor and specialist in the
fields Of public and Federal personnel low.
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before dismissine Mr.. Cole, there
was "a determination by the agency
head that the position occupied is
one affected with the national
security"
Seeretory's Determination
First. it recognized that "the
dismissal notice given to petitioner
tMr. Cole) contained determine
ton by the Secretary that the EN-
ploye's retention in employment is
not clearly consistent with the in
terests of the national security"
Nevertheless, the Court decided
that this determination by the
Secretary did not include de-
termination that Mr.. Coles position
was related to the national security.
1t arrives at this conclusion by an
analysis of the Executive Order
10450 under which the Secretary
was acting.
1t recognized that the order, like
the dismissal notice. gave as the
standard of dismissal the determi-
nation that the employees reten-
ton ''is not clearly consistent with
the interests of the national secur-
ity." But the court said: Despite
this verbal formula, however, it is
our view that the executive order
does not in fact require the agency
head to make any determination
whatever on the relationship of the
employees retention to the national
security" and: Rather, as we
read the order, it enjoins upon the
agency heads the duty Of discharg-
ing any employee of doubtful loyalty
irrespective Of the character of his
job and its relationship to the ma
tional security"
In its reading" Of the order, the
courts opinion cites number Of
provisions in it which seem to call
for a relationship between action
by the agency head and the in
terestS of the national security.
Nevertheless, the court concludes
that the order leaves room for the
agency head to dismiss an employee
merely on the basis of doubtful
loyalty. without considering the
character of the employees position,
and without making an evaluation
of the effect which continuance of
his employment might have upon
the national security" Then,
speaking very frankly. 1t states:
I'VE recognize that this interpre-
tation of the order rests upon a
chain Of differences drawn from less
than explicit provisions"
Questions Remain
Even assuming, as the courts
opinion argues, that the executive
order allowed for dismissals Of per-
sons on grounds of doubtful loyal
ty alone, without regard to the
sensitivity of their jobs or direct
connection with national security,
the question remains: Is not Sus-
pension or firing for doubtful
loyalty" an exercise of the "abso-
lutte" and conclusive" discretion
that the law gives agency heads to
take action when deemed necessary
or advisable in the interest OF ma
tional security?
In the reasoning supporting its
decision, the Supreme Court said
that: 1T is difficult to justify sum-
mary suspensions and unreview-
able dismissals on loyalty grounds
of employees who are not in SEN
Sitive' positions" and that: In the
absence of an immediate threat of
harm to the national security the
normal dismissal procedures seem
fully adequate"
These words in particular have
been seized upon by those who
praise the courts decision as inn
proving the security procedures and
as introducing common sense into
the security program. But even if
the decision does this, the question
is raised: Has the Court, by legal
Interpretation. done piece of legis-
lative writing that should be a mat
ter for Congress?