Carlson v. Landon & Butterfield/Dissent Black

by Hugo Black

United States Supreme Court

342 U.S. 524

Carlson  v.  Landon & Butterfield

 Argued: Nov. 26, 1951. --- Decided: March 10, 1952

Mr. Justice BLACK, dissenting.

Today the Court holds that law-abiding persons, neither charged with nor convicted of any crime, can be held in jail indefinitely, without bail, if a subordinate Washington bureau agent believes they are members of the Communist Party, and therefore dangerous to the Nation because of the possibility of their 'indoctrination of others.' Underlying this harsh holding are past decisions of this Court declaring that Congress may constitutionally direct the summary deportation of aliens for any reason it sees fit. I agree with Mr. Justice DOUGLAS for the reasons he gives in his dissenting opinion in Harisiades v. Shaughnessy, 342 U.S. 580, 598, 72 S.Ct. 512, 523, that these prior declarations should now be reconsidered and rejected. This would dispose of these cases. But the Court today not only adheres to, but greatly expands the constitutional doctrine of the former cases. The Court also relies on the Internal Security Act of 1950, 64 Stat. 987, for its holding. Mr. Justice FRANKFURTER presents strong arguments for construing the Act so as to reach an opposite result. But even if authorized by that Act, as the majority holds, the denial of a right to bail under the circumstances of these cases strikes me as a shocking disregard of the following provisions of the Bill of Rights: Eighth Amendment's ban against excessive bail; ^[1] First Amendment's ban against abridgment of thought, speech and press; ^[2] Fifth Amendment's ban against depriving a person of liberty without due process of law. ^[3] Before a detailed discussion of my several grounds of dissent it is necessary to state the facts and the precise issues the records present.

Respondent Zydok, petitioners Carlson and others were all arrested ('detained') in connection with proceedings which might lead to their deportation. A subordinate of the Commissioner of Immigration, not the Attorney General, directed that they be held in prison without bail. Of necessity, consideration of these deportation proceedings by bureaus and courts may last for years. Carlson's has already dragged on for over four years. Moreover, even deportation orders at the end of such proceedings might not end their indeterminate jail sentences since the foreign countries to which they are ordered might refuse to admit them. Such refusals have prevented deportation in thousands of cases. ^[4] Thus denial of bail may well be the equivalent of a life sentence, at least for Zydok, 56 years old, and Carlisle whose health is bad. Such has become the fate of ordinary family people selected and classified, on secret information, as 'dangerous' by Washington bureau agents.

Zydok's case illustrates what is happening. He has lived in this country 39 years, owns his home, has violated no law, is 'not likely to engage in any subversive activities,' has a wife, two sons, a daughter and five grandchildren, all born in the United States. Both sons served in the armed services in World War II. Zydok himself, then a waiter, sold about $50,000 worth of U.S. war bonds and 'donated blood on seven occasions to the Red Cross for the United States Army.' This jailing of Zydok, despite a patriotic record of which many citizens could well be proud, is typical of what actually happens when public feelings run high against an unpopular minority.

While the Court gives Zydok a momentary technical respite, its holding means that he too, pursuant to the government's present program, can and will be held in jail without bond as a 'dangerous' character. The others, with equally enviable records as law-abiding persons, are not even given a technical respite. Mrs. Stevenson is the wife of a citizen and is the mother of a young man who is also a citizen. Her son has long been subject to attacks of undulant fever. He and his 70-year-old grandmother need Mrs. Stevenson's help as does her husband who does her housework while she is 'detained' as 'dangerous' to our national security. The District Judge tried to persuade the representatives of the Immigration Bureau and the Attorney General to agree for him to enter an order fixing bail for her and for Mr. Carlisle. His request was refused.

The record does not leave us in doubt as to why bail was denied Mrs. Stevenson, Mr. Carisle, or any of these allegedly 'dangerous' aliens. Denial was not on the ground that if released they might try to evade obedience to possible deportation orders. The District Judge in No. 35 conceded that 'there is nothing here to indicate the Government is fearful that they are going to leave the jurisdiction'; he said, 'I am not going to release men and women that the Attorney General's office says are security risks'; he also said, 'I am not going to turn these people loose if they are Communists, any more than I would turn loose a deadly germ in this community. If that is my duty let the Circuit Court say so and assume that burden.' ^[5] These remarks to counsel show that he kept these people in jail only because he thought Communists, as such, were too dangerous to the Nation to be allowed to associate with other people. The Court of Appeals' denial of bail was also based on the premise that Communists were too dangerous to the Nation to be left out of jail, not on the premise that deportation would be delayed or frustrated by granting bail. 9 Cir., 187 F.2d 991. And the Solicitor General has admitted here that 'the only evidence advanced to support their detention without bail was that they had been active in the Communist movement.' The majority here also appears to rest on the same basis. It must, unless it is now drawing inferences that some might flee and be unavailable for deportation. As the Government admits, there is not a vestige of support for such an inference. ^[6] Besides, an alien 'who shall willfully fail or refuse to present himself for deportation * * * shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years * * *.' 64 Stat. 987, 1012.

Thus it clearly appears that these aliens are held in jail without bail for no reason except that 'they had been active in the Communist movement.' From this it is concluded that their association with others would so imperil the Nation's safety that they must be isolated from their families and communities. On this premise they would be just as dangerous whether aliens or citizens, deportable or not. Since it is not necessary to keep them in jail to assure their compliance with a deportation order, their imprisonment cannot possibly be intended as an aid to deportation. They are kept in jail solely because a bureau agent thinks that is where Communists should be. A power to put in jail because dangerous cannot be derived from a power to deport. Consequently prior cases holding that Congress has power to deport aliens provide no support at all for today's holding that Congress has power to authorize bureau agents to put 'dangerous' people in jail without privilege of bail.

The stark fact is that if Congress can authorize imprisonment of 'alien Communists' because dangerous, it can authorize imprisonment of citizen 'Communists' on the same ground. And while this particular bureau campaign to fill the jails is said to be aimed at 'dangerous' alien Communists only, peaceful citizens may be ensnared in the process. For the bureau agent is not required to prove that a person he throws in jail is an alien, or a Communist, or 'dangerous.' The agent need only declare he has reason to believe that such is the case. The agent may be and here apparently was acting on the rankest hearsay evidence. The secret sources of his 'information' may have been spies and informers, a class not usually rated as the most reliable by people who have had experience with them. ^[7] In this record the nearest approach to any identifiable source of information is that some of the jailed persons had admitted past membership in organizations listed by the Attorney General as 'Communist,' or 'Communist front.' These listings are made by the Attorney General ex parte on secret dossiers containing statements from sources that the Attorney General refuses to reveal. A majority of this Court has held that such listings are illegal. Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. This alone should be enough to reverse the judgments in No. 35. My own judgment is that Congress has not authorized the Bureau of Immigration to hold people in jail without bond solely because it believes them 'dangerous.' Nor do I think that Congress has power to grant any such authority even if it had attempted to do so.

First. Section 23 of the Internal Security Act, 64 Stat. 987, 1011, 8 U.S.C.A. § 156, provides that 'Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General, such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole.' I read this language as attempting to authorize the Attorney General to hold aliens without bail within his discretion. I think that means the Attorney General's discretion, not that of a subordinate in the Bureau of Immigration. This record does not show that these people were jailed by virtue of an exercise of discretion by the Attorney General. Decision to put deportable aliens in jail without bond (with very minor exceptions) was made by subordinates in the Bureau of Immigration. I agree wiht Mr. Justice FRANKFURTER that this decision to jail aliens en masse was not based on the kind of 'discretion' the Act intended. But I further think § 23 should not be construed as permitting the Attorney General to delegate this tremendous power to others.

The Government finds a power to so delegate in provisions of the Alien Registration Act of 1940, 8 U.S.C. s 458(a), 8 U.S.C.A. § 458(a), and in the President's Reorganization Plan No. 2 of 1950, 5 U.S.C. (Supp. IV) following § 133z-15, 5 U.S.C.A. § 133z-15 note. These provisions are in such broad general terms that they could be read as allowing the Attorney General to delegate all his discretionary duties. But the gravity of a discretionary power to seize people and keep them in jail without a right of bail warns against implying such an unlimited power to delegate it. It is bad enough to read an Act as vesting even the Nation's chief prosecutor with power to determine what individuals he prosecutes should be held in jail without bail. Delegating and redelegating this dangerous power to subordinates entrusted with duties like those of deputy sheriffs and policemen raises serious procedural due process questions. I am not willing to imply that Congress has granted power to make such delegations which so ominously threaten the liberty of individuals. Consequently, assuming constitutionality of § 23, I would hold that it vests power in the Attorney General alone to decide whether a person should be denied bail.

Second. The fifth Amendment commands that no person shall be deprived of liberty without due process of law. I think this provision has been violated here.

Surely it is not consistent with procedural due process of law for prosecuting attorneys or their law enforcement subordinates to make final determinations as to whether persons they accuse of something shall remain in jail indefinitely awaiting a decision as to the truthfulness of the accusations against them. In effect that was done here. I have already referred to the trial judge's statement in No. 35 that he was not going to release people the Attorney General deemed to be bad security risks. Moreover, the immigration official's mere belief based on statements coming from unidentified persons was accepted by both trial judges as casting on each alleged 'alien Communist' the burden of proving he was not a Communist by clear and convincing evidence. And their refusal to incriminate themselves by denying the immigration officer's suspicions was accepted as sufficient proof to keep them behind the jail doors. I think that condemning people to jail is a job for the judiciary in accordance with procedural 'due process of law.' ^[8] To farm out this responsibility to the police and prosecuting attorneys is a judicial abdication in which I will have no part.

Third. As previously pointed out, the basis of holding these people in jail is a fear that they may indoctrinate people with Communist beliefs. To put people in jail for fear of their talk seems to me to be an abridgment of speech in flat violation of the First Amendment. I have to admit, however, that this is a logical application of recent cases watering down constitutional liberty of speech. ^[9] I also realize that many believe that Communists and 'fellow travelers' should not be accorded any of the First Amendment's protections. My belief is that we must have freedom of speech, press and religion for all or we may eventually have it for none. I further believe that the First Amendment grants an absolute right to believe in any governmental system, discuss all governmental affairs, and argue for desired changes in the existing order. This freedom is too dangerous for bad, tyrannical governments to permit. But those who wrote and adopted our First Amendment weighed those dangers against the dangers of censorship and deliberately chose the First Amendment's unequivocal command that freedom of assembly, petition, speech and press shall not be abridged. I happen to believe this was a wise choice and that our free way of life enlists such respect and love that our Nation cannot be imperiled by mere talk. This belief of mine may and I suppose does influence me to protest whenever I think I see even slight encroachments on First Amendment liberties. But the encroachment here is not small. True it is mainly those alleged to be present or past 'Communists' who are now being jailed for their beliefs and expressions. But we cannot be sure more victims will not be offered up later if the First Amendment means no more than its enemies or even some of its friends believe it does.

Fourth. I think § 23 as construed and as here applied violates the command of the Eighth Amendment that 'Excessive bail shall not be required * * *.' Under one of the Government's contentions, which the Court apparently adopts, the Eighth Amendment's ban on excessive bail means just about nothing. That contention is that Congress has power, despite the Amendment, to determine 'whether or not bail may be granted, or must be granted, and the Constitution then forbids the exaction of excessive bail * * *.' Under this contention, the Eighth Amendment is a limitation upon judges only, for while a judge cannot constitutionally fix excessive bail, Congress can direct that people be held in jail without any right to bail at all. Stated still another way, the Amendment does no more than protect a right to bail which Congress can grant and which Congress can take away. The Amendment is thus reduced below the level of a pious admonition. Maybe the literal language of the framers lends itself to this weird, devitalizing interpretation when scrutinized with a hostile eye. But at least until recently, it has been the judicial practice to give a broad, liberal interpretation to those provisions of the Bill of Rights obviously designed to protect the individual from governmental oppression. I would follow that practice here. The Court refuses to do so because (1) the English Bill of Rights 'has never been thought to accord a right to bail in all cases * * *' and (2) 'in criminal cases bail is not compulsory where the punishment may be death.' As to (1): The Eighth Amendment is in the American Bill of Rights of 1789, not the English Bill of Rights of 1689. And it is well known that our Bill of Rights was written and adopted to guarantee Americans greater freedom than had been enjoyed by their ancestors who had been driven from Europe by persecution. See Bridges v. California, 314 U.S. 252, 264-265, 62 S.Ct. 190, 194, 86 L.Ed. 192. As to (2): It is true bail has frequently been denied in this country 'when the punishment may be death.' I fail to see where the Court's analogy between deportation and the death penalty advances its argument unless it is also analogizing the offense of indoctrinating talk to the crime of first degree murder.

Another governmental contention is this: 'The bail provisions of the Eighth Amendment and of the statutes relating thereto have always been considered as applicable only to criminal proceedings. Since deportation proceedings are not criminal in character, the Eighth Amendment has no application.' I reject the contention that this constitutional right to bail can be denied a man in jail by the simple device of providing a 'not criminal' label for the techniques used to incarcerate. Imprisonment awaiting determination of whether that imprisonment is justifiable has precisely the same evil consequences to an individual whatever legalistic label is used to describe his plight. Prior to this Amendment's adoption, history had been filled with instances where individuals had been imprisoned and held for want of bail on charges that could not be substantiated. Official malice had too frequently been the cause of imprisonment. The plain purpose of our bail Amendment was to make it impossible for any agency of Government, even the Congress, to authorize keeping people imprisoned a moment longer than was necessary to assure their attendance to answer whatever legal burden or obligation might thereafter be validly imposed upon them. In earlier days of this country there were fond hopes that the bail provision was unnecessary, that no branch of our Government would ever want to deprive any person of bail. On this subject Mr. Justice Story said, 'The provision would seem to be wholly unnecessary in a free government, since it is scarcely possible that any department of such a government would authorize or justify such atrocious conduct.' Story on Constitutional Law, 5th Ed., Vol. 2, p. 650. Perhaps the word 'atrocious' is too strong. I can only say that I regret, deeply regret, that the Court now adds the right to bail to the list of other Bill of Rights guarantees that have recently been weakened to expand governmental powers at the expense of individual freedom.

I am for reversing in No. 35 and affirming in No. 136.

Mr. Justice FRANKFURTER, whom Mr. Justice BURTON joins, dissenting.

If the Attorney General, after the Internal Security Act, had made a general ruling that thereafter he would not allow bail to any alien against whom deportation proceedings were started and who was then a member of the Communist Party-an undiscriminating, unindividualized class determination-it would disregard the clear direction of Congress for this Court not to hold that the Attorney General had exceeded the limits of his discretion. It would wilfully disregard the adjudications on bail in deportation cases which preceded the Act and the unambiguous legislative history of the law based upon this judicial history. Congress unequivocally chose not to give nonreviewable discretionary power to the Attorney General to deny bail. In substance though not formally he has made such a general ruling. The records before us disclose that since the Internal Security Act the Attorney General has in fact followed the general practice of denying bail to all active Communists. Such blanket exercise of the power granted him by the Act calls for review and cannot stand.

The controlling questions in this case are: What standards of discretion does the Internal Security Act of 1950 ^[10] impose upon the Attorney General in granting or denying bail to persons arrested for deportation proceedings; and has the Attorney General here observed those standards? The Government concedes that Congress made reviewable the discretion of the Attorney General on the bail question. This subjection of the Attorney General's action to judicial scrutiny is not to be formally or lightly exercised. The bill which ultimately became § 23 of the Internal Security Act was initially passed by the House with a provision making absolute and unreviewable the Attorney General's action. ^[11] The bill as enacted, however, omitted the finality clause; the Attorney General's authority was thus defined: 'Pending final determination of the deportability of any alien * * * (he) may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole.' ^[12] Before the passage of the Act Congress had before it conflicting views of Courts of Appeals: according to Prentis v. Manoogian, 6 Cir., 16 F.2d 422, bail was a matter of the alien's right; the Second Circuit ruled that it was a matter within the Attorney General's discretion subject to judicial review. United States ex rel. Potash v. District Director, 2 Cir., 169 F.2d 747. ^[13] Congress chose the latter view. It deserves emphasis that it was discretion that was given the Attorney General, not power to decide arbitrarily. ^[14]

In granting the Attorney General discretion subject to judicial review, Congress legislated against a historical background which gives meaning to bail provisions. Only the other day this Court restated the concept of bail traditional in American thought and reflected in the Constitution:

'This traditional right to freedom before conviction (or before order for deportation) permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. * * * Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. * * * To infer from the fact of indictment (or warrant for deportation) alone a need for bail in an unusually high amount is an arbitrary act.' Stack v. Boyle, 342 U.S. 1, 4, 5, 6, 72 S.Ct. 1, 3, 4.

'The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty. * * * Each defendant stands before the bar of justice as an individual. * * * Each accused is entitled to any benefits due to his good record, and misdeeds or a bad record should prejudice only those who are guilty of them.' 342 U.S. at pages 7, 8, 9 (concurring opinion), 72 S.Ct. 1, 5, 6.

This historical meaning of 'bail,' familiar even to laymen, must infuse our interpretation of the words of a Congress of whom, in fact, a majority were lawyers. When Congress provided for bail, within the Attorney General's discretion, for persons arrested for deportation proceedings, it was extending to resident aliens still lawfully in our midst the same privileges that are granted as a matter of course to dangerous criminals. The factors relevant to the exercise of discretion are factors that pertain to each individual as an individual. 'Discretion is only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.' ^[15]

If these aliens, instead of awaiting deportation proceedings, were held for trial under a Smith Act indictment, 18 U.S.C.A. § 2385, they could not be denied bail merely because of the indictment. Stack v. Boyle, supra. Membership in the Communist Party-the charge which is the foundation for the deportation proceedings-is surely not as great a danger as a leading share in a conspiracy to advocate the overthrow of the Government by force, which was the essence of the indictment in Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. And the opportunity for 'the unhampered preparation of a defense' is quite as important to the alien arrested for deportation proceedings as it is to the Smith Act defendant. We would hestitate to impute to Congress, in the absence of some more explicit command, an intent to make bail more readily available to those held on a serious criminal charge than to those awaiting proceedings to determine the question of deportability. Congress made no such distinction. Instead, it cast the Attorney General's authority in terms descriptive of the customary power of commissioners or district judges in admitting to bail.

The factors stated by the Second Circuit in the Potash case, supra, at page 751 of 169 F.2d, which guided the enactment, are presumably the standards which Congress expected to be observed: 'The discretion of the Attorney General * * * is to be reasonably exercised upon a consideration of such factors, among others, as the probability of the alien being found deportable, the seriousness of the charge against him, if proved, the danger to the public safety of his presence within the community, and the alien's availability for subsequent proceedings if enlarged on bail.'

Congress thus made provision for a fair assurance of each alien's availability in the event he is eventually ordered deported. There is, however, not the slightest indication in the Government's returns or in the records before us that each petitioner's ties to family and community and each one's behavior under an earlier warrant against him do not assure his presence throughout the deportation proceedings and thereafter. The records affirmatively indicate the contrary. Moreover, in deportation cases-as compared, for example, with prosecutions under the Smith Act-the consideration that the individuals concerned may depart from the country is minimized in significance, first, because compulsory departure from the United States is just what they are contesting, and secondly, if they do depart, the purpose of the deportation proceedings is realized.

It would be unfair to Congress to deny that it followed the traditional concept of bail by making 'the danger to the public safety of his presence within the community' a criterion for bailability. No less must it be presumed that Congress required that each criterion should be applied in the traditional manner, that is, by individualized application to each alien. In each case, the alien's anticipated personal conduct-and that alone- must be considered. Also, how expeditiously each deportation proceeding can be concluded, and therefore how long the bail in each case need be in effect, are relevant considerations.

But it is argued that, since an introductory section of the Internal Security Act makes a 'legislative finding' of the threat represented by the Party, ^[16] Congress intended membership in the Communist Party alone to serve as a reasonable basis for believing individual aliens too dangerous to leave at large. Such an interpretation renders meaningless the discretion granted the Attorney General wherever the deportation charge is membership in the Communist Party. The argument means that he may exercise discretion as to bail only to deny bail. Congress did not write such a Hobson's choice into law. True, the bail provisions apply to deportation proceedings brought on other grounds. However, the absorbing concern of Congress in the Internal Security Act was with the problem of the Communist Party; that Act for the first time explicitly made membership in the Communist Party a ground for deportation. ^[17] It puts Congress in a stultifying position to suggest that it gave with one hand only to take away with the other.

In these cases the Attorney General has not exercised his discretion by applying the standards required of him. He evidently thought himself under compulsion of law and made an abstract, class determination, not an individualized judgment. When the five aliens were arrested originally (one as late as June, 1950), all were released on bail, ranging from $5,000 for one to $1,000 for another; three were released on $2,000 bail. Much is made of the fact that the enactment of the Internal Security Act on September 22, 1950, intervened between the original grant of bail and the subsequent rearrest and detention of the aliens. The only change in that Act relevant to these deportation proceedings was the provision making membership in the Communist Party specifically a basis for deportation. ^[18] New warrants charging membership in the Communist Party at some time after entry were served on the rearrested aliens in Los Angeles, though not on Zydok in Detroit. The immigration authorities were by the Act relieved of proving-in order to make a prima facie case-that the Communist Party is an 'organization * * * that believes in, advises, advocates, or teaches * * * the overthrow by force or violence of the Government.' ^[19] But in the circumstances of today a legislative definition of the Communist Party as an organization advocating violent overthrow of government made little difference in the required proof. ^[20] At any rate, a complete answer is that nowhere-either in his returns to the writs of habeas corpus or elsewhere-has the Attorney General made any assertion that the Internal Security Act eased the proof of deportability, indicating by his silence that such a factor did not influence his judgment. ^[21] The returns in the Los Angeles cases supported the denial of bail solely by the statement, 'said facts cause the said Acting Commissioner to believe that if the said petitioner(s) were enlarged on bail (they) would engage in activities which would be prejudicial to the public interest, and would endanger the welfare and safety of the United States.' The return in Zydok's case stated no reasons for the Attorney General's decision. The only evidence at the hearings was also directed solely to the Communist activities of the aliens.

The insubstantiality of the evidence for showing any danger in freeing each individual alien on bail raises ample doubt whether the Attorney General exercised a discretion as instructed by statute. In Zydok's case the claim is that he had been a member of the Communist Party and financial secretary of a Hamtramck, Michigan, section in 1949, a year before his rearrest and denial of bail on October 23, 1950. From Zydok's failure to deny present membership during his testimony, the District Court drew the conclusion that he was 'knowingly and wilfully participating in the Communist movement.' This was clearly a violation of Zydok's privilege against self-incrimination, which he many times claimed. ^[22] But assuming that the Attorney General had evidence before him that Zydok was at present a member of the Communist Party, that alone is insufficient to show danger in freeing him on bail during the deportation proceeding. To deny bail, the Attorney General should have a reasonable basis for believing that the circumstances attending Zydok present too hazardous a risk in leaving him at large.

There is also no evidence on the activities of the other four aliens that is more recent than 1949-a year before the issuance of the relevant warrants for deportation and the denials of bail here under review-with the exception of a newspaper article by Carlson published in late 1950. In fact, in the case of Carlisle and Stevenson the Government had no evidence of activity or membership in the Communist Party more recent than the 1930's. Since all these aliens when previously arrested were released on bail, we cannot escape the conclusion that the Attorney General after the enactment of the Internal Security Act did not deny bail from an individualized estimate of 'the danger to the public safety of (each person's) presence within the community.' ^[23]

We are confirmed in this conclusion by the Attorney General's practice. For we are advised by the Solicitor General that it has been the Government's policy since the Internal Security Act to terminate bail for all aliens awaiting deportation proceedings whom it deems to be present active Communists, barring only those for whom special circumstances of physical condition or family situation compel an exception. The ordinary considerations of availability to respond to the final judgment of the courts have apparently been ruled out by the Attorney General since the enactment of the Internal Security Act. All those whom the Government believes to be active Communists are considered unbailable without individualized consideration of risk from their continued freedom. It must therefore be inferred that the Attorney General acted on the assumption that, because he was convinced that the aliens here were present Communist Party members, they were not bailable. These persons should have the benefit of an exercise of discretion by the Attorney General, freed from any conception that Congress had made them in effect unbailable. We think that the California case should be returned to the District Court for discharge of the four persons detained unless the Attorney General within a reasonable time makes a new determination on the bail question using the standards here outlined. And it Zydok is rearrested under a new warrant, the Attorney General will have a fresh opportunity to exercise his discretion in setting bail.

Notes

1. 'Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.' U.S.Const., Amend. VIII.
2. 'Congress shall make no law * * * abridging the freedom of speech, or of the press; * * *.' U.S.Const., Amend. I.
3. 'No person * * * shall be * * * deprived of life, liberty, or property, without due process of law; * * *.' U.S.Const., Amend. V.
4. 96 Cong.Rec.10449; H.R.Rep.No.1192, 81st Cong., 1st Sess., pp. 7, 9, 10.
5. And the District Judge in No. 35 said 'When there is a claim, and I don't know whether it is true or not * * * that these people are security risks and that their release is dangerous to the security of the United States, until that is either disproved or proved I am not going to release them. My first vote in that respect is for the security of the country. We have had 42,000 casualties already.'
6. In this state of the record and particularly in view of the Solicitor General's contrary admission, I am at a loss to understand note 35 in the Court's opinion. It is there intimated that these aliens might flee and be unavailable for deportation. I cannot believe that the Court is resting, or would rest, its approval of denial of bail on a ground which even the Solicitor General had not deemed supportable by the record.
7. '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.' Written near 100 A.D. by Emperor Trajan to Pliny the Younger in response to Pliny's interesting report of his prosecution of Christians. 9 Harvard Classics, 428. Pliny was 'in great doubt' even then as to 'whether the very profession of Christianity, unattended with any criminal act, or only the crimes themselves inherent in the profession are punishable * * *.' Supra, 426. 'If they (informers against Christians) succeeded in their prosecution, they were exposed to the resentment of a considerable and active party, to the censure of the more liberal portion of mankind, and to the ignominy which in every age and country, has attended the character of an informer. If, on the contrary, they failed in their proofs, they incurred the severe, and perhaps capital, penalty which, according to a law published by the emperor Hadrian, was inflicted on those who falsely attributed to their fellow-citizens the crime of Christianity.' 2 Gibbon, The History of the Decline and Fall of the Roman Empire (Oxford Univ.Press), 107, 108.
8. See Mozorosky v. Hurlburt, 106 Or. 274, 198 P. 556, 211 P. 893, 15 A.L.R. 1076 and note pages 1079-1083.
9. See, e.g., American Communications Assn. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Feiner v. New York, 340 U.S. 315, 71 S.Ct. 303, 328, 95 L.Ed. 267, 295.
10. Pub.L.No.831, 81st Cong., 2d Sess., 64 Stat. 987.
11. H.R. 10, 81st Cong., 1st Sess. read in relevant part thus: '(g) No court shall have jurisdiction to release on bond or otherwise any alien detained under any provision of law relating to the exclusion or expulsion of aliens at any time prior to a decision of court in his favor which is not subject to further judicial reviews.' See 96 Cong.Rec. 10448-10460. H.R.Rep. No. 1192, 81st Cong., 1st Sess. 10-11 had this comment: 'The provision is designed to leave the question of releasing an alien from custody in an immigration case entirely in the hands of the Attorney General * * *. It is no way denies the right of any alien to test the legality of his detention through the courts; it merely states that the alien cannot be released by the court until judicial proceedings have been finally terminated in the alien's favor.'
12. Internal Security Act of 1950, § 23, 64 Stat. 987, 1010, 8 U.S.C. (Supp. IV) § 156(a), 8 U.S.C.A. § 156(a) (emphasis added).
13. H.R.Rep.No.1192, 81st Cong., 1st Sess. 5-6, commenting on H.R. 10, which made the Attorney General's discretion unreviewable, yet gave 'discretion' to the Attorney General, said: 'This (existing law) has often been found to be lacking in clarity and doubtful in purpose when questions have arisen concerning procedure following arrest of an alien, or during the interim between his arrest and his hearing and decision on his case * * *. The committee believes that this bill will greatly simplify such details.'
14. Compare the language 'in the discretion of the Attorney General' with the clause 'Where the Controller has reasonable grounds to believe,' which the Privy Council had before it in Nakkuda Ali v. Jayaratne, (1951) A.C. 66. It was held, in the judgment of Lord Radcliffe, 'that there must in fact exist such reasonable grounds, known to the Controller, before he can validly exercise the power' conferred. And for this reason: 'After all, words such as these are commonly found when a legislature or law-making authority confers powers on a minister or official. However read, they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power. But if the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in effect nothing. No doubt he must not exercise the power in bad faith: but the field in which this kind of question arises is such that the reservation for the case of bad faith is hardly more than a formality.' Id., at 77.
15. Professor Mark De Wolfe Howe in The Nation, Jan. 12, 1952, p. 30.
16. Internal Security Act of 1950, § 2, 64 Stat. 987, 50 U.S.C.A. § 781.
17. Internal Security Act of 1950, § 22, 64 Stat. 987, 1006, 8 U.S.C. (Supp. IV) §§ 137, 137-3, 8 U.S.C.A. §§ 137, 137-3.
18. Ibid.
19. 40 Stat. 1012, 8 U.S.C. § 137(c), 8 U.S.C.A. § 137(c).
20. See Dennis v. United States, 341 U.S. 494, 510-511, 71 S.Ct. 857, 867-868, 95 L.Ed. 1137, and the concurring opinion of Mr. Justice Jackson in American Communications Assn. v. Douds, 339 U.S. 382, 422, 70 S.Ct. 674, 695, 94 L.Ed. 925.
21. A radiogram to the District Director of Immigration and Naturalization in Los Angeles from the Acting Commissioner in Washington compendiously justified holding the four Los Angeles aliens without bail thus: '* * * the instruction * * * was issued only after the cases had been examined in the light of the Internal Security Act * * * and the spirit and intention thereof and all of the factors concerning the likelihood of the deportability and the activities of said alien had been given careful consideration as well as the factors of undue hardship which continued detention might impose.'
22. See 20 Stat. 30, 18 U.S.C. § 3481, 18 U.S.C.A. § 3481; Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 766, 37 L.Ed. 650. See also Blau v. United States, 340 U.S. 159, 71 S.Ct. 223, 95 L.Ed. 170.
23. In a case just decided, the Court of Appeals for the Second Circuit found a not unreasonable exercise of discretion by the Attorney General in circumstances that are here wanting. An extract from the opinion of Judge A. N. Hand illumines the differences: 'In his petition for the writ, Young alleged facts indicating that if released he would be available for any further proceedings at which his presence would be required. The return to the writ, however, contained allegations which, if accepted, established a reasonable foundation for the denial of bail by the Attorney General. Thus the return, in addition to containing allegations of membership in the Communist party, alleged that Young had once before escaped from custody during earlier proceedings; that he had previously attempted to enter the United States by furnishing a false identity and with a fraudulent passport; and that during his present detention he refused to answer questions relating to prior identification, places of residence, employment and home life. Section 2248 of the Judicial Code, 28 U.S.C. § 2248 (28 U.S.C.A. § 2248), requires that the facts alleged in the return be taken as true unless impeached, and Young in his traverse to the return did not refute those statements, nor did he in his motion for reargument, make any offer to prove the contrary, nor did he assert new facts, which under 28 U.S.C. § 2246 (28 U.S.C.A. § 2246) could have been accomplished by affidavit. As the Supreme Court has recently said in Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 3: 'The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty." United States ex rel. Young v. Shaughnessy, 2 Cir., 194 F.2d 474.