(concurring).
With the result herein and the legal principles upon which it is based, I am in accord ; I should not think it necessary to add anything but for fear that certain expressions, particularly at the close of the opinion, are possibly susceptible of an interpretation suggesting a more perfunctory hearing below than, I believe, is intended or legally required. Though the issue is one as to the exercise of discretion in granting or denying bail by or on behalf of the Attorney General, that, after all, is a legal issue, reviewable in the 'courts, and not a mere matter of the bona fides or indeed of the sincerity of belief of the official involved. Matters involving opinions and personal convictions are prone to bring forth more sharp, if not arbitrary, action than are matters about which we feel less deeply; and, as experience shows, it has been easy in the past at times to forget that our country has grown strong in part *753because of the tolerance of views it permits and that the danger required in historic phrase by the Supreme Court to justify suppression of beliefs must be at once “clear” and “present.”1 *Hence here the question is not so much the state of mind of the officials involved as it is whether they can justifiably feel that there is a good probability of the ultimate sustaining of the charges and that meanwhile the public good justifies confinement of these relators notwithstanding the obviously protracted nature of the proceedings before the Supreme Court will have passed upon the issues.
While it is true that the case is not to he finally tried in the district court, either on this hearing or on a later one, yet we cannot shut our eyes to the fact that all previous proceedings based on charges of this nature have failed in the Supreme Court.2 Hence it would seem that to justify such confinement here there must be better evidence than has been presented in the past and that some at least should be disclosed to the district court to avoid the charge of arbitrary decision. Upon the allegations here these relators appear to have rather long and deep roots in this country; there even seems question as to where they could he sent, should they he found deportable. But, passing that, it would seem that they should not he wrested from their positions of substantial leadership in the labor movement or the like and held in confinement for several years if their cases are to be no more successfully prosecuted than were the others cited. Several of these relators now appear to be at large upon substantial, though not unusual, bail upon criminal charges. If such hail is adequate there, it does seem an anomaly to require absolute imprisonment upon noncriminal charges. Moreover, if the charges involve substantially the same issues as here, the result of an open and adversary trial before judge and jury would seem a better ground upon which to base eventual deportation than that of an administrative hearing. If so, long-continued confinement administratively would seem yet more of an anomaly.
Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470; Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346. “But the First Amendment represents this nation’s belief that the spread of political ideas must not be suppressed.” Black, J., in Ludecke v. Watkins, 335 U.S. 160, 181, 68 S.Ct. 1429, 1439. See also O’Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592; Chafee, Free Speech in the United States, 1941, c. 5; The Enforcement of the Deportation Laws, 2 Rep. National Commission on Law Observance and Enforcement, 1931, 5-8, 135-137.
Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103; Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082.