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.