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SECURITY AND LIBERTY THE PI{OBLEM Of NATIVE COMMUNISTS 1947-1955

HA!iOLD w. CHAS.E Princeron Unive.r.sity

·sHORT STUDIES IN POLI'fiCAL SCIENCE SECURITY AND LIBERTY SHORT STUDIES IN POLITICAL SCIENCE Richard C. Snyder Consulting Editor Professor of Political Science, Northwestern University

Political Community at the International Level: Law as a Political Instrument Problems of Definition and Measurement Victor G . Rosenblum, University of California, Karl W . Deutsch, Massachusetts Institute of Berkeley Technology The Political Novel The Revolution in American Foreign Policy, Joseph l. Blotner, University of Virginia 1945-1954 Modern Colonialism: Institutions and Policies William G. Carleton, University of Florida Thomas R. Adam, New York University France: Keystone of Western Defense Rural Versus Urban Political Power Edgar S. Furniss, Jr., Princeton University Gordon E. Baker, University of California, The Problem of Internal Security in Great Brit­ Santo Barbaro ain, 1948- 1953 Modern German Political Theory H. H. Wilson, Princeton Un iversity, and Har­ Otto Butz, Swarthmore College vey Glickman, Harvard University Natural Resources and the Political Struggle Germany: Dilemma for American Foreign Norman Wengert, North Dakota Agricultural Policy College Otto Butz, Swarthmore College Federal Courts in the Political Process Democratic Rights Versus Communist Activity Jock W. Peltason, Un iversity of Illinois Thomas I. Cook, The Johns Hopkins University Security · and Liberty: The Problem of Native The Role of the Military in American Foreign Communists, 1947-1955 Policy Ha rold W. Chase, Princeton University Bu rton M. Sapin, Princeton University, and Richard C. Snyder, Northwestern University Studies in Scope and Methods The Social Background of Political Decision­ The Study of Public Administration Makers Dwight Waldo, University of Cal iforn ia , Donald R. Matthews, Smith College Berkeley

Readings in Game Theory and Political Be­ The Study of Political Theory havior Thomas P. Jenkin, University of California, Martin Shubik, Princeton University Los Angeles

The American Vice-Presidency: New Look Problems of Analyzing and Predicting Soviet Irving G. Williams, St. John's University Behavior John S. Reshetar, Jr., Princeton University Contemporary International Law: A Balance Sheet The Study of Comparative Government Quincy Wright, University of Chicago Roy C. Macridis, Northwestern University

The Political Process: Executive Bureau-Legis­ The Study of International Law lative Committee Relations Percy E. Corbett, Princeton University J. Leiper Freeman, Harvard University The Study of Political Parties The Fate of the French Non-Communist Left Neil A. McDonald, Douglass College, Rutgers E. Drexel Godfrey, Williams College University SHORT STUDIES IN POLITICAL SCIENCE

SECURITY AND LIBERTY

The Problem of Native Communists, 1947-1955

BY HAROLD W. CHASE Princeton University

DOUBLEDAY & COMPANY, INC.

Garden City, New York, 1955 COPYRIGHT @, 1955, BY DOUBLEDAY & COMPANY, INC.

This book is fully protected by copyright, and no part of it, with the exception of short quotations for review, may be reproduced without the written consent of the publisher.

All Rights Reserved

LIBRARY OF CONGRESS CATALOG NUMBER 55-7022 PRINTED IN THE UNITED STATES OF AMERICA AT THE COUNTRY LIFE PRESS, GARDEN CITY, N.Y. Acknowledgments

To list the people who have aided me in this undertaking may invite the re­ joinder that never has so little owed so much to so many. Professors Marver Bern­ stein, William Beaney, Edward S. Corwin, Paul Strayer and Gabriel Almond, all of Princeton University, read the manuscript either in part or in whole, as did the late Bert Andrews of the New York Herald Tribune and Phil Quigg, Editor of The Princeton Alumni Weekly. Let me make it clear, however, that those who read the manuscript in whole or in part did not always agree with my conclusions. I alone must bear responsibility for them. To Professor Alpheus T. Mason, mentor and friend, I owe a great debt for encouragement, criticism, and help. I am grateful to James McKee for helping to put the story of the last two years together and to Professor Richard Snyder for his good advice in getting the manuscript in final shape. \Vhatever accomplishment this work may represent, I must share it with my wife, Bernice, who encouraged me to do it. Contents

Acknowledgements v

Chapter One. AssESSING THE MENACE 1 \Vhat Is the Menace? 2 The Danger of a Coup 4 The Danger of a Fifth Column 8

Chapter Two. MusT LIBERTY BE SACRIFICED? ll The Clear-and-Present-Danger-Doctrine Method ll The Doctrine, 1 919-19 3 7 ll The Doctrine as Method, 1937-1948 12 Criticisms of the Method 16 Evaluation of the Method 19 Japanese Segregation in World War II 20

Chapter Three. GENERAL CoNTROLS 24 Background 24 Enforcement of the Smith Act 24 The Internal Security Act of 19 50 27 The Communist Control Act of 1954 32 Loss of Citizenship Act of 19 54 33 Other Recent Legislation 34 Congressional Investigations 34 Immunity Legislation, 1954 35

Chapter Four. CoNTROL OF CoMMUNISTS IN GovERNMENT EMPLOY- MENT 37 The Truman Loyalty-Security Program 38 Organization 38 Mechanics 42 Sensitive Agencies 43 Results 44 The Eisenhower Security Program 44 American Employees of the United Nations 47 The Role of the FBI in the Loyalty-Security Programs 48

Vll Vlll CONTENTS Evaluation of the Loyalty-Security Programs 49 Conclusions 55

Chapter Five. CoNTROL OF CoMMUNISTS IN ORGANIZED LABOR 56 Evidence of Communist Domination of Certain Unions 57 How It Happened 59 The Democratic Approach, 1948-1952 60 Enforcement of Taft-Hartley 60 Other Controls 61 The Republican Approach, 1953-1955 62 Evaluation of the Controls 63 Ousting of Communists from Union Leadership 64 Surveillance by the FBI 66

Chapter Six. CoNTROL OF CoMMUNIST ALIENS 67 Cold War Controls 67 The Internal Security Act of 1950 68 The McCarran Act of 1952 70 The Republican Approach, 1953-1955 73 Evaluation of the Controls 74

Chapter Seven. CoNCLUSIONS 77 Failures of the Security Program 77 A Distinction That Makes a Difference 78 The Lessons Learned 79

Footnotes to the Study 81 CHAPTER ONE Assessing the Menace

The story of the efforts of our national government to deal with the problem of Communists in our midst, might well be told by a political satirist like Jonathan Swift. Imagine how a modern Gulliver cast upon American shores in the 1940's would report the public denunciation of General George C. Marshall as a traitor and a "living lie" by two United States Senators at a time when the nation's President was wont to refer to the General as "the greatest living American." What would Gulliver make of the charges of disloyalty leveled by congressmen at David Lilienthal, Dr. Edward Condon, Dr. Frank Graham, and Oscar Chap­ man while the Administration retained them in high offices where they had access to the most vital security information? What of the furor over Wolf Ladejinsky, sought after by the Foreign Operations Administration for the highly sensitive work of supervising land-reform projects in politically important South Vietnam even while the Department of Agriculture was finding him a security risk and re­ moving him from his post as agricultural attache at Tokyo? And what kind of an account would Gulliver give of the activities of the obscure Wisconsin politician who soared to the heights of fame and political power on the wings of serious charges which he never substantiated? Grist for the satirist's mill was supplied by President Truman when he dis­ missed a congressional probe into Communist activities as a "red herring" at a time when it was beginning to hit pay dirt and about a year after he himself had instituted an Employee Loyalty Program because he believed that American Communists did present a danger to the security of the nation. There was a comic aspect to the spectacle of witnesses refusing to answer questions before Con­ gressional investigating committees on the grounds of self-incrimination and then proclaiming through the press that they never did anything for which their answers could have incriminated them. There was a grim kind of humor to the proceedings incident to the appoint­ ment of Anna Rosenberg to the post of Assistant Secretary of Defense. Her appointment was held up and investigated on the charge that she was a Com­ munist. She and the nation were subjected to the humiliating experience of an official investigation of the charge, in spite of the fact that she had been accused by a person who was called "unreliable" even by the people who he asserted would corroborate his accusation and in the face of "unqualified support" from such people as Dwight D. Eisenhower, W. Stuart Symington, Bernard M. Baruch, James F. Byrnes, Oveta Culp Hobby, Robert P. Patterson, and Walter B. Smith. Then there was the occasion when John Carter Vincent was badgered by the McCarran committee for supposedly aiding the Chinese Communists when he assisted Vice-President Henry Wallace in writing a report on Wallace's trip to China in 1944. Subsequently, the report was released, and it was revealed that the I 2 SECURITY AND LIBERTY former Vice-President had recommended that the government take anti-Com­ munist measures in China. Another situation for the satirist was the loyalty-oath craze which swept the nation. Although it was generally acknowledged that no Communist really en­ gaged in subversive activities would hesitate to sign, organizations of all kinds, like the New York State Medical Society, required its members to take loyalty oaths. The American Bar Association passed a resolution urging all states to pass laws making it mandatory for lawyers to sign oaths. Even the Newark (N.J.) Housing Authority for a time required its tenants to swear that they were loyal Americans. Just recently the State of Indiana forbade professional boxers and wrestlers to perform in that state without first swearing their allegiance. Bitter controversies arose when many unquestionably loyal Americans refused to take the oath as a matter of principle. The University of California was rocked by just such a conflict and lost substantial faculty strength. Efforts to meet the Communist menace at times resulted in even more gro­ tesque incidents, such as the apprehension and conviction in Switzerland of the self-proclaimed private spy of Senator Joseph McCarthy. The spy, according to the Swiss court, was gathering and manufacturing information on the then American Minister to Switzerland, John Carter Vincent. Again, after his agency had been decimated by an unduly vindictive congressional investigation, Director Theodore C. Streibert of the United States Information Service designated Nov. 1, 1954, a regular work day, as "overseas recruitment day." All employees in the agency's Washington headquarters were required to drop their regular duties and go recruiting for qualified personnel to man some one hundred vital overseas posts in that agency. Author Louis Bromfield, who is also an Ohio dairy farmer, seriously explained to a congressional committee that the unrestricted sale of yellow oleomargarine would encourage Communism. Congressman John Rankin stopped consideration of a bill to give North Carolina peanut growers additional acres of peanuts under the allotment program on the grounds that the bill was "pro-Communist." While Congress and the Administration were taking drastic action to insure the security of the nation, Senator Russell felt compelled to scold his colleagues on the Senate Armed Services and Foreign Relations Committees regarding "leaks" of secret testimony. A surplus safe containing secret papers was sold to two former servicemen who could not interest the Department of Defense in taking the papers back until they went to the newspapers with their story. And the Atomic Energy Commission created a furor when it unaccountably lost some uranium. Despite these glaring absurdities, the control of subversion is a serious and continuing problem. Anything less than skillful handling of this extremely com­ plicated problem raises two of the greatest perils imaginable to our nation. On the one hand, we may imperil our national security; on the other, we may lose our traditional regard for the dignity and worth of the individual. This seems justification enough to take stock at this time and attempt to determine how wisely and well our national government has been dealing with the problem.

What Is the Menace? Despite the fact that the national government has been taking bold steps to combat the "Communist menace," there has been no common understanding Assessing the Menace 3 of what that menace is. Generally speaking, there have been three leading schools of thought on the subject. One school has alleged that the Communists con­ stitute a menace for two reasons: ( 1) Communists desire to overthrow the gov­ ernment by force and violence; ( 2) Communists have a loyalty to Russia greater than their loyalty to the United States. For example, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated in regard to the aims of the Com­ munists that: As such, it [the Communist movement] stands for the destruction of our American form of government; it stands for the destruction of free enter­ prise; and it stands for the creation of a "Soviet of the United States" and ultimate world revolution .... The Communist once he is fully trained and indoctrinated, realizes that he can create his order in the United States only by a "bloody revolu­ tion" .... 1 In regard to the loyalty of the Communists, Mr. Hoover asserted that: There is no doubt as to where a real Communist's loyalty rests. Their allegiance is to Russia, not the United States. The second school has viewed the Communists as a menace only because of an alleged prior loyalty to a foreign power. This school has denied that there has been a danger of the Communists staging a "revolutionary coup." The thinking of this group was reflected in these remarks by James Wechsler: Two persuasive premises guide the thinking of the men who are now shaping government policy in this elusive realm. The first is that we ·are engaged in a world-wide diplomatic struggle with Russia, with little prospect that the conflict will be swiftly or easily resolved; the second is that one of Russia's most valuable weapons-present and potential-is an international army of agents organized as "native" communist parties. Reasonable men must be legitimately frightened by the dimensions this two world conflict has reached and the danger that it will end in the ultimate catastrophe of war, but unless one argues ... that the burden of guilt in this duel rests on America and unless one dismisses as fantasy the modern record of Communist parties, the need for minimum safeguards seems inescapable. Obviously the American Communists are incapable of staging a revolu­ tionary coup in the foreseeable future . ... (Author's italics.) 2 The third school of thought has insisted that the Communists of the United States in no way have constituted a threat. Benjamin Davis, while a member of the New York City Council and a member of the National Committee of the Communist Party of the United States, stated before the House Un-American Activities Committee: Those who seek to outlaw the Communist Party by basely slandering it as a fifth column conspiring to set up a police state, are themselves the architects of a police state in America .... The "supposed danger" used to "justify" all anti-Communist measures stems from the false portrayal of the Communist Party as an advocate of the "overthrow of the government by force and violence," and as the "sub­ versive agent of a foreign power.s SECURITY AND LIBERTY Communists have not been the only ones to take this position. The late Arthur Garfield Hays, former counsel for the American Civil Liberties Union and long a leading champion of civil liberties, told the same House committee categorically that "the idea of being afraid of the Communists is ridiculous." 4 Patently, the validity of these assessments of the Communist threat rests upon the actual danger to the nation of, on the one hand, a Communist coup, and of espionage or sabotage, on the other.

The Danger of a Coup The concept that the Communists of the United States have constituted a menace because of an alleged desire to engineer a revolutionary coup must be predicated on two propositions: ( 1) that the Communists have desired and have intended to overthrow the government by force and violence; ( 2) that, if they have so intended, they have been capable of jeopardizing peace and good order in the United States. The first question, then, is: Have the Communists desired and intended to overthrow the government by force and violence? In 1945, in the case of Bridges v. Wixon, the Supreme Court observed: Proof that the Communist Party advocates the theoretical or ultimate overthrow of the government by force was demonstrated by resort to some rather ancient party documents, certain other general Communist literature and oral corroborating testimony of government witnesses. Not the slightest evidence was introduced to show that Bridges or the Communist Party seriously and imminently threatened to uproot the government by force and violence. Subsequently, the House Committee on Un-American Activities endeavored to prove conclusively that at least the Communists in the Communist Party of the United States did so desire and intend.5 Proof was offered in the following manner. First, it was argued that "the teachings of Marx, Engels, Lenin, and Stalin constituted the credo of the Communist Party, U.S.A." As evidence the report cited the Constitution of the Communist Party, U.S.A., adopted on July 28, 194 5, which was still in effect and which read in part: The Communist Party of the United States is the political party of the American working class, basing itself upon the principles of scientific social­ ism, Marxism-Leninism. As further evidence, the report demonstrated that party spokesmen, including William Z. Foster, Chairman of the Party, had prior to the report reiterated that the teachings of Marx, Engels, Lenin, and Stalin constituted the credo of the Communist Party of the United States. Second, it was argued that "advocacy of overthrow of the government by force and violence is an organic and inescapable part of these doctrines." As evidence, the report quoted extensively from the writings of Marx, Engels, Lenin, and Stalin. For example, the words of Lenin: Only the violent overthrow of the bourgeoisie, the confiscation of its property, the destruction of the whole of the bourgeois state apparatus from top to bottom-parliamentary, judicial, military, bureaucratic, administra­ tive, municipal, etc., right up to the very wholesale deportation or intern­ ment of the most dangerous and stubborn exploiters ... only these measures can ensure the real subordination of the whole class of exploiters. Assessing the Menace 5 Third, it was pointed out that 44 the original Communist Party of America, acknowledged predecessor of the Communist Party of the United States of America, openly advocated armed insurrection, civil war, and violent revolution." The constitution and program of the original party was quoted in evidence: The Communist Party will keep in the foreground the idea of the necessity of violent revolution for the destruction of the capitalist state and the estab­ lishment of the dictatorship of the proletariat based on Soviet power. It was shown also that William Z. Foster at one time openly advocated overthrow of the government by force and violence. Further, the report charged that even as late as 1934, 44 the Communist Party, U.S.A., was still making no bones about its advocacy of the need of an armed uprising and civil war." As evidence, the report quoted an article which appeared in 19 34 in The Communist, a magazine ((published monthly by the Communist Party of the United States of America." But along with the growth of revolutionary mass actions, such as demon­ strations, strikes in basic industries, munitions works, waterside, rail transport, etc., the general strike-as the supreme form of the mass strike movement­ can be a mighty weapon, and as a transition to the armed uprising it consti­ tutes a stage in the transformation of the imperialist war into civil war. In answer to such charges Communist Party Leaders maintained their inno­ cence. Earl Browder, former head of the party answered, 44 I can say very definitely 'no' to both aspects of your question," when he was asked by the House On­ American Activities Committee in 1946 this question: I just wondered if you thought the old Communist Party or the new Communist Association, if they believed in revolution to overthrow the capitalist state? William Z. Foster in answer to the question, 44 Does the Communist Party advocate the overthrow of the United States Government by force and violence or by any other unconstitutional means?" replied: We'll let the Supreme Court of the United States answer this question for us. In its decision in the Schneiderman case, June 1943, after examining exhaustively, on the one hand, the charges that the Communist Party advo­ cates a violent seizure of power and on the other hand, the practices and doctrines of the party, including the writings of Marx, Lenin, and Stalin, the Court said: 44A tenable conclusion from the foregoing is that the party in 1927 desired to achieve its purpose by peaceful and democratic means, and as a theoretical matter justified the use of force and violence only as a method of preventing an attempted forcible counter-overthrow once the party had obtained control in a peaceful manner, or as a method of last resort to enforce the majority will if at some indefinite time in the future because of peculiar circumstances constitutional or peaceful channels were no longer open." We Communists accept this formulation as a fair statement of our atti­ tude toward the question of political violence. American Communists have always recognized the historical fact that parties with advanced social pro­ grams cannot secure government power by conspiratorial methods or by minority coups d'etat.... The danger of violence in such situations always 6 SECURITY AND LIBERTY comes from the reactionary elements, who refuse to bow to the democratic majority will.6 Indeed, the constitution of the Communist Party of the United States at that time disavowed the use of force; it read: · The purposes of this organization are to promote the best interests and welfare of the working class and the people of the United States, to defend and extend the democracy of our country, to prevent the rise of fascism, and to advance the cause of progress and peace with the ultimate aim of ridding our country of the scourge of economic crises, unemployment, insecurity, poverty, and war through the realization of the historic aim of the working class-the establishment of socialism by the free choice of the maiority of the American people. (Author's italics.) The Un-American Activities Committee wrote off these protests of innocence merely as proof that the Communists were acting in accord with Lenin's advice to "resort to all sorts of devices, maneuvers, and illegal methods, to evasion and subterfuge." As for the earlier Supreme Court decisions giving the Communist Party a clean bill of health regarding their intentions of overthrowing the Government, the Un-American Activities Committee correctly predicted that these would be over- ruled: - It is generally conceded by legal authorities at the present time that the fact that Russia was an ally at the time of the decision and the pressing need of national and international unity for the task of defeating the Axis Powers, created an atmosphere conducive to a favorable decision in this precedent­ making case [the Schneiderman case], of which the Court could not have been unmindful. ... There is good ground for the belief that a future test case before the United States Supreme Court will result in a decisive opinion regarding the party's advocacy of overthrow of the government by force and violence. The question of whether or not the leading American Communists really advocated, desired, and intended overthrow of the government was settled in 1949 in the trial of the Communist Party leaders. In order to obtain convictions under the Smith Act, the government produced an array of unusual witnesses. Seven people who had joined the Communist apparatus either with the cogni­ zance or at the suggestion of the FBI testified that they had been taught in Communist schools in the United States that socialism could, should, and would be achieved by revolution. Ironically, these people-Herbert A. Philbrick, Garfield Herron, Angela Calomiris, Thomas Younglove, William Cummings, John Blanc, and Balmes Hidalgo, Jr.-had been singled out by the Communists for the special schooling presumably because of their promise as organization leaders. Why the Government had been reluctant to offer this kind of evidence earlier becomes apparent when one considers that the testimony of the seven witnesses rendered them useless for continued surveillance of Communist activities and that cross­ examination of the witnesses gave helpful information to Communist leaders as to how the FBI had maintained its surveillance of their activities. Inasmuch as the Communist leaders in the United States were bent on revo­ lution at the appropriate time, did they by virtue of that fact constitute a danger to the United States? Assessing the Menace 7 The best estimates available indicate that there have never been many more than 100,000 Communist Party members in the United States and that member­ ship has declined progressively from a high point in 1932. J. Edgar Hoover's estimates of Party strength were 54,174 members in 1950, 43,217 in 1951, 31,608 in 1952, 24,796 in 1953, and 23,000 in 1954. As Attorney General Brownell has recently pointed out, the 23,000 must represent a hard core of militant Com­ munists. For, as he says, "certainly they must know by this time the intent and purpose of the party in this country is to overthrow the Government by force and violence and that it takes its cue from Moscow." 7 That less than 100,000 people could have engineered a coup in a country with a population in excess of 150,000,000 seems fantastic. But J. Edgar Hoover warned in 1947: The numerical strength of the party's enrolled membership is insignificant ... it is well known that there are many actual members who because of their position are not carried on the rolls .... What is important is the claim of the Communists themselves that for every party member there are 10 others ready, willing, and able to do the party's work. Herein lies the greatest menace of communism. For these are the people who infiltrate and corrupt various spheres of American life .... The size of the party is relatively unimportant because of the enthusiasm and iron-clad discipline under which they operate. In this connection, it might be of interest to observe that in 1917 when the Communists overthrew the Russian Government there was 1 Communist for every 2,277 persons in Russia. In the United States today there is 1 Communist for every 1,814 persons in the country. The use of figures to show that there were proportionately more Communists in the United States than there were in Russia in 1917 and to prove a danger thereby implies a belief that the total situation in Russia then and in the United States, during the past ten years, was somewhat analogous.8 If the situations were some­ what analogous, it would have meant among other things ( 1) that the FBI could have been compared in inefficiency with the Czarist police; ( 2) that economic conditions in the United States made the people ripe for revolution; ( 3) that a significant number of Americans would have acquiesced in and helped to perpe­ trate a coup. Let us briefly examine these three propositions. First, in regard to the Federal Bureau of Investigation, the Bureau's reputation belied the idea that there was any comparison with the Czarist police. The record, too, spoke well for the Bureau. Important, pertinent examples of Bureau efficiency were offered by Mr. Hoover himself: I recall in the pre-war years that the FBI was criticized on the ill-founded premise that nothing was being done to meet the Nazi-Fascist-Japanese threat to our internal security. The real facts are now a matter of record. What was being done, and done successfully, could not then be discussed and publi­ cized. When the time came to act the FBI was fully prepared to carry out its responsibilities. There was not one successful enemy-directed act of sabo­ tage during the war and enemy espionage was kept under complete control. (Author's italics.) Also, he informed a congressional committee in 19 50 that the FBI could round up in a moment's notice 12,000 of the nation's most dangerous Communists. More recently, Mr. Hoover reported that as a result of prosecutions under the 8 SECURITY AND LIBERTY Smith Act the Communists have become more careful and consequently more difficult to keep under surveillance. He went on to reassure his listeners, however, that ((we have been able to penetrate their organization just the same. We are keeping in touch with their activities and feel that the security of the country is being carefully watched." Second, in regard to the dismal economic situation in Czarist Russia and the booming economy of the United States from 1945 on, it can be stated categorically that there was nothing analogous. Third, the small minority of Communists have had an impossible task in trying to acquire sympathetic adherents among the American people. Communist Party workers and fundamental communistic principles have never appealed to any substantial segment of the American population. The typical party worker in this country, in many cases foreign born and/or suffering from personality problems, is not likely to be a successful procurer of followers. The fundamental goals of Communism have no widespread appeal for Americans. For example, of the typical cross section of Americans polled by Fortune Magazine in the 1940s only a very low percentage believed in government ownership and operation of business properties. A large majority considered themselves Hmiddle class"; a large majority thought the United States Government was as ((near perfect as can be." 9 Of such stuff Communist sympathizers are not made. It is difficult to believe that the Communists of the United States have con~ stituted a danger because they have advocated the overthrow of the Government by force and violence. With the people preponderantly opposed to Communism, with a vigilant and efficient FBI, it is inconceivable that the Communists could have attempted revolution. A distinction should be made however, between the situation in the United States and other countries where the Communists have constituted a considerable minority as in post-World War II Italy. Analogies drawn from such countries are misleading.

The Danger of a Fifth Column Patently, the Communists pose a fifth column threat only if all of the following propositions are true: ( 1) the United States and Russia are dangerously close to war; ( 2) the Communists have a prior loyalty to Russia and are or would be willing to act as Russian agents; ( 3) the Communists, acting as Russian agents, could wreak havoc with the security of the United States. First, the proposition that the United States and Russia have been dangerously near to war since 194 7 scarcely needs documentation. Second, in regard to the loyalty of American Communists, Benjamin J. Davis, National Committeeman of the Communist Party, could as late as 1948 defy the House Un-American Activities Committee to prove that the Communist Party was an agent of a foreign power. He chided the Committee: Attorney General Tom Clark is not the first to stub his toe on the hard reality of fact. Since the days of the infamous Palmer raids, ] . Edgar Hoover has been sleuthing for a real Communist foreign agent and a real Com­ munist bomb thrower against whom the G-men could bring evidence that would stand up in court. This committee has tirelessly assisted the Attorney General and Hoover by rounding up a never-ending parade of stool pigeons and renegades. Assessing the Menace 9 Wire tapping, shadowing, paid informers, and every legal and illegal device has been employed to entrap or frame Communist Party leaders and members .... Equally sorry was the Attorney General's admission to the committee that he could not produce in court evidence showing an agent-principal relation­ ship between the American Communist Party and the Government of the Soviet Union .... The reason for the abortion of these efforts is not hard to find. They failed because the Communist Party serves, and always will serve, only the sovereign power that resides in the American people.1o

And it was true, as Mr. Davis had suggested and as the Attorney General con­ ceded, that the Department of Justice up to that time "could not produce in court evidence showing an agent-principal relationship between the American Communist Party and the Government of the Soviet Union." 11 However, it was not long before startling revelations of individual American citizens acting in behalf of the Soviet Union came to light. The spectacular Hiss inquiries and trials gave conclusive proof that secrets had been given to a foreign power by faithless employees of the State Department. Henry Julian Wadleigh, an economist in the trade agreements section of the State Department, admitted in court that he had given government documents to Communists every week between March of 1936 and March of 1938 for transmission to Russia. Alger Hiss, protected by the statute of limitations from indictment and conviction for passing government documents or copies thereof to Whittaker Chambers for transmission to Russia, was indicted and found guilty of perjury for telling a grand jury that he had never done so. The papers, which had been concealed in a pumpkin by Mr. Chambers, were identified by Francis B. Sayre, former Assistant Secretary of State, Sumner Welles, former Under-Secretary of State, and John E. Peurifoy, Assistant Secretary of State, as papers which must have been stolen from the files of the State Department. Congressional investigation of the Amerasia case also brought to public notice that secrets had been taken from the State Department files. Further, Emmanuel Larsen, a State Department employee and a -defendant in the case, pleaded nolo contendere to the charge that he took part in the plot to remove secret papers, and was fined $500. Why the case was handled as it was originally and why Larsen was punished so lightly for his part in the affair are questions which need not be answered here. Suffice it to say that the Amerasia case revealed conclusive evidence that secret papers did find their way from government files to people who had no business having them. In 19 50, Americans were shocked to learn that Dr. Klaus Fuchs, one of Britain's top scientists, had been giving the Soviet Union secrets for seven years. Later we learned that Dr. Fuchs was aided by at least three Americans who worked at some time in some capacity for the government. In the same year, a nineteen­ year old United States Air Force corporal on duty in Germany was apprehended, court-martialed, and convicted for attempting to deliver to representatives of a foreign power classified information relating to national defense and a political analyst in the Department of Justice was convicted for engaging in espionage for the Soviet Union. Considerable drama attended the trial, conviction, and execution of the Rosenbergs, who transmitted atomic secrets to the Russians. In spite of the impressive list of individuals involved in disloyal acts, one could 10 SECURITY AND LIBERTY argue that this does not prove that all American Communists had a prior loyalty to the Soviet Union. This question of the loyalty of people who remained in the Party after 1949 was resolved once and for all when, in early 1949, the National Committee of the Communist Party of the United States followed the lead of French and ' Italian Communists in issuing an incredible pledge of cooperation with "all democratic forces to defeat the predatory war aims of American im­ perialism and bring such a war to a speedy conclusion on the basis of a democratic peace." As the then Senator Claude Pepper maintained in regard to this state­ ment: "In its significance, if not in its intent, it is obviously a statement of disloyalty." The third proposition then is, if some of the American Communists did operate or would operate as agents of Soviet Russia, did they or do they in fact constitute a menace to the United States? Where Communists working on their own behalf to overthrow the government would not constitute a danger, the same people working in conjunction with a hostile foreign power could endanger the security of the United States and perhaps did so. Had there been open warfare between the two countries, the toll of disloyalty might have been irreparable. The experience of France in World War II demonstrates what a fifth column can conceivably do to a nation at war. This is not to imply that a fifth column would have been as effective here as it was in France, but even a much less effective one would have constituted a considerable danger. But even without war between Russia and the United States the damage attributable to disloyalty is as impressive as it is dismaying. It was revealed in the Hiss inquiries that foreign power ( s) knew our most secret codes by virtue of having possession of papers stolen from the State Department. Both Assistant Secretary of State Peurifoy and former Under-Secretary of State Welles testified that some documents which had already been turned over to Russia could not even then be made public, since their publication would be prejudicial and dangerous to the national security. In the Rosenberg trial, experts testified that duplicates of the sketches which had been handed over to the Russians revealed detonation details of the atom bomb and of a "substantially perfected bomb." William L. Laurence, noted science news reporter, reported that associates of Dr. Fuchs at Los Alamos felt that Fuchs's espionage efforts (with the help of three or more Americans) made it possible for Russia to develop her A-Bomb at least a year ahead of schedule. Mr. Laurence himself guessed that espionage "made it possible for them [the Russians] to attain their goal at least three-and possibly as much as ten-years sooner than they could have done it on their own." 12 Mr. Laurence also suggested the possibility that Fuchs may have given the Russians a five-year edge in the race to develop H-bombs. This was certainly not a wholesome development in an era when, as Winston Churchill has suggested, only the United States' lead in the production of A-bombs has prevented wide-spread Russian aggression. The real Communist menace then has not been as wide as many of our people in and out of the government believed; there has been no danger of a revolutionary coup. However narrow the danger, limited as it was to espionage and sabotage, it has been deeper than a good many of us have realized. CHAPTER TWO

Must Liberty Be Sacrificed?

On its face it would seem that the threat of espionage and sabotage should be dealt with swiftly, comprehensively, and severely by the national government. There can be no doubt that the government must apprehend and convict persons engaged in subversive activities. On the theory that an ounce of prevention is worth a pound of cure, it would appear that the government should go further and take measures aimed at preventing potential subversion from materializing into the real thing. Carried to extremes, preventive measures may be violent assaults on liberty, such as the Japanese segregation in World War II. While this poses no special problems in a totalitarian society, it creates a dilemma for a society like ours which places the highest kind of premium on liberty. How far should our government go in taking preventive security measures at the expense of liberty? From the time of its inception, the American democracy has been committed to respect and protect the rights of individuals. In the Declaration of Inde­ pendence it was set down as a self-evident truth that men "are endowed by their Creator with certain unalienable rights; among these are life, liberty, and the pursuit of happiness" and that "to secure these rights, governments are instituted among men." Important rights, such as freedom of speech, press, assembly, and religion were safeguarded to the individual by law in the Constitution. To be sure, the record of the United States in safeguarding rights of the individual has been far from perfect. Nevertheless, in spite of the abuses on the record, the govern­ ment is committed by law and heritage to protect and respect the rights of individuals and most of us want it that way.

The Clear-and-Present-Danger-Doctrine Method Because our political system allows the judiciary to determine whether or not the other branches of government have acted constitutionally, the Supreme Court from its beginning has had to deal continuously with cases involving the question of whether or not a particular law or administrative action exceeded constitutional limits in restricting individual rights. The zenith of Supreme Court thinking in this area was reached in the 1940s when it developed the clear-and-present-danger­ doctrine method. As will be demonstrated presently, this method goes far in answering the question, "How can a democracy meet the menace of subversive activity?" THE DOCTRINE, 1919-1937 The method evolved in the 1940's was derived from the clear-and-present-danger doctrine first enunciated by Justice Holmes in the Schenck case shortly after World War I. In determining the limits to which a legislature might go in curbing freedom of speech, Holmes wrote for a unanimous court: 11 12 SECURITY AND LIBERTY The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic .... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Schenck was convicted for violation of the Espionage Act of 1917. Conviction was based on evidence that Schenck had caused or attempted to cause insubor­ dination in the military and naval forces of the United States and to obstruct recruiting and enlistment when the United States was at war. Schenck argued that the application of the Espionage Act in this case abridged free speech. In examining this argument, the Court stated: We admit that in many places and in ordinary times the defendants in saying all that was in the circular would have been within their constitutional rights, but the character of every act depends upon the circumstances in which it is done. In reaching its decision to affirm the judgments of the lower court, the Supreme Court found that Schenck's attempt to obstruct the draft by mailing to drafted men pamphlets which urged them to assert their opposition to the draft and charged that the draft was despotism and in the interest only of Wall Street's chosen few had presented a "clear and present danger" to the nation: When a nation is at war many things that can be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.

The majority of the Court evidently had not appreciated the full implication of Holmes's decision in the Schenck case, a decision which they had accepted unani­ mously. In subsequent cases, the majority refused to employ the doctrine, although never specifically repudiating it. From 1920 to 1937, the doctrine was employed sparingly and never by a majority of the Court. Suitable opportunities to use the doctrine were not lacking; rather, the majority questioned its appropriateness. The majority had acquiesced in the use of the doctrine where it had justified an abridgment of individual liberty in the Schenck, Frohwerk and Debs cases; how­ ever, they were not of a mind to employ the doctrine where such employment might have the opposite effect of limiting governmental power to abridge freedom. Instead, the majority employed the "bad tendency" test (that is, "that a State in the exercise of its police power may punish-those who abuse this freedom by utterances inimicable to the welfare, tending to corrupt morals, incite to a crime, or disturb the public peace, is not open to question"). It is significant that in each case application of the "bad tendency" test resulted in a decision in favor of state or congressional power as opposed to the individual's rights under the First and Fourteenth Amendments. Thus, in the period 1919-1937, in cases involving freedom of speech and of the press, the clear-and-present-danger doctrine appeared only in minority opinions. DOCTRINE AS METHOD, 1937-1948 Never in the history of the Supreme Court have so many seats been occupied by devotees of civil liberties as in the 1940s when Justices Black, Douglas, Murphy, and Rutledge sat together. In the words of Professor Cushman, they "developed a new and important judicial Must Liberty Be Sacrificed? 13 philosophy or doctrine" with respect to freedom of religion, speech, press, and assembly.1 They were assisted by an earlier decision by Justices Roberts, Hughes, Brandeis, Stone, and Cardozo, who first tentatively employed the "new doctrine" in 1937.2 Professor Cushman described the new doctrine in this fashion: In this judicial doctrine, three principles are fused. The first is that the four liberties protected by the First Amendment are so indispensable to the democratic process and to the preservation of the freedom of our people that they occupy a preferred place in our scheme of constitutional values. They are of more fundamental importance than the other provisions of the Con­ stitution. This priority was, of course, recognized in the action of the Court, beginning with the Gitlow case back in 1925, in assimilating these liberties, and not others, into the concept of liberty in the due process clause of the Fourteenth Amendment. The Court, however, did not stop here, but moved to the second principle, which is that freedom of speech, press, religion, and assembly are so vitally important that the usual presumption of constitution­ ality will not attach to a statute which on its face appears to abridge any of them. On the contrary, such a statute will be presumed to be unconstitutional. The third principle is that this presumption of unconstitutionality can be successfully rebutted only by convincing the Court that a legislative restric­ tion on any one of the four great civil liberties is justified by the existence of a "clear and present danger." s

The clear-and-present-danger doctrine in the hands of the libertarians on the Court was something more than a doctrine. It became a method for dealing with governmental actions which appeared to curtail the liberties guaranteed in the First Amendment, a method which required: ( 1) an assumption that any act or action which curtailed one of the paramount liberties was unconstitutional; ( 2) an inquiry into the facts of the case at issue; ( 3) a determination to be made by the Court based on the facts as to whether or not the exercise of liberty did present a real danger; ( 4) a determination by the Court whether or not there was a "rational connection between the remedy provided and the evil to be curbed," where the Court found a "clear and present danger" did exist. Perhaps the method can be best demonstrated by a review of a specific case in which it was used. Thomas v. Collins serves as a good illustration. R. J. Thomas, who at that time was president of the United Auto Workers' Union and a vice-president of the CIO, was convicted for violating a temporary restraining order issued by a Texas court. The order had been issued in compliance with a state statute which required all union organizers operating in Texas to apply for an organizer's card before soliciting members for his organization and em­ powered the district courts of the state to issue proper restraining orders. Con­ viction was based upon evidence that Thomas had solicited memberships in a speech delivered at Houston before three hundred people under the auspices of the Oil Workers Industrial Union. Thomas argued that the statute as applied required a license for addressing a group of workers, that the statute restrained free speech in requiring one who asks others to join a union to first procure a card. The Court agreed with Thomas that the case involved the question of free speech and as such the Court stated its basis for using the clear-and-present-danger-doctrine method: The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. 14 SECURITY AND LIBERTY Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation which determines what standard governs the choice. The Court then went on to indicate its presumption in favor of individual rights: For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. .. whatever occasion would restrain orderly discussion and persuasion, at the appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. Thus the Court, in reaching a decision, was compelled to inquire into the facts of the case to see if there was a clear and present danger. The facts were essentially these. Thomas addressed a peaceful, orderly meeting of three hundred people. In his speech, Thomas urged "those of you who are not now members of the Oil Workers International Union to join now-I solicit you to become a member of the union ...." On the basis of the evidence offered, the Court found that: The assembly was entirely peaceable, and had no other than a wholly lawful purpose. The statements forbidden were not in and of them-.elves unlawful, had no tendency to incite to unlawful action, involved no element of clear and present, grave and immediate danger to the public welfare. The Court concluded in a five-four decision that: We have here nothing comparable to the case where use of the word "fire" in a crowded theater creates a clear and present danger which the State may undertake to avoid or against which it may protest. We cannot say that "solicit" in this setting is such a dangerous word. So far as free speech alone is concerned, there can be no ban or restriction or burden placed on the use of such a word except on showing of exceptional circumstances where the public safety, morality or health is involved or some other substantial interest of the community is at stake. If therefore use of the word or language equivalent in meaning was illegal here, it was so only because the statute and order forbade the particular speaker to utter it. When legislation or its application can confine labor leaders on such occasions to innocuous and abstract discussion of the virtues of trade unions and so becloud even this with doubt, uncertainty and the risk of penalty, freedom of speech for them will be at an end. A restriction so destructive of the right of public discussion, without greater or more imminent danger to the public interest than existed in this case, is incom­ patible with the freedoms secured by the First Amendment. From 1937 through 1948 a majority of the Court applied this method in fourteen cases. In each of these the Court assumed that the governmental action at issue was invalid. This is not to say that in every case the Court assumed that Must Liberty Be Sacrificed? 15 a particular statute was unconstitutional; in some cases the Court assumed that only the particular application of a broadly drawn statute was unconstitutional. This stand of the Court, in each case, compelled the states or their agents to attempt to prove that the exercise of liberty did in fact present a "clear and present danger." In the three cases where the Court, after an inquiry into the facts, found that a clear and present danger did exist, it inquired into the appropriateness of the remedy. The question which logically follows is, how good is the method? To test the validity of a method, it is necessary to establish whether the method achieves what it is intended to achieve. In the application of the method in question, the Court endeavored to achieve a balance between individual rights and majority rule. It is important then to determine whether or not the Court actually did so by applying the "clear and present danger" doctrine method. It cannot be stressed here too strongly that the small number of cases involved makes it impossible to reach a conclusive decision on the validity of the method on the basis of the record alone. A study of the record, however, may give us some idea as to its validity. In eleven of the fourteen cases, the Court's decision favored the rights of the individual. As we scan the record now, we can discern that no great danger has resulted to the security of the nation by those decisions. In one of the cases where the Court decided against the individual, there was actual violence involved.4 In another, it was found that child labor per se was an evi1. 5 The Court, in the third case, found that where an ice peddlers' union sought to picket in an effort to force wholesale distributors into an illegal agreement to sell their goods ex­ clusively to union members there was a danger to the nation in such a use of free speech.6 Although it is impossible to employ an effective objective test of the record, it does appear that the Court did a good job in these cases of balancing off the competing demands of individual rights and majority rule. That the Court should have found for the individual in eleven out of fourteen cases should not be regarded as surprising or disproportionate, for, as James Madison pointed out in Federalist X, in a representative government there is more danger of infringement of individual rights by the majority than vice versa. Though the present Supreme' Court has rejected the clear-and-present-danger doctrine, this fact neither establishes nor disestablishes its validity. There is no reason to believe that the present Court is more or less wise than its predecessor of the 1940s. In short, it is necessary to evaluate the specific objections to the method offered by the present Court along with those of other critics. This will be done presently. Before dealing with the specifics, we should remember that the deaths of Justices Murphy and Rutledge, who were staunch devotees of civil liberties, and their subsequent replacement by Justices Clark and Minton account in general for the change in the approach of the Court to these cases. In the 1940's there were four men on the Court-Murphy, Rutledge, Black, and Douglas-who employed the method constantly. Generally, the facts of a case attracted one or more of the other justices to their side in the decision even though they did not specifically approve of the method. It has been pointed out impressively elsewhere that in times of great stress, the Supreme Court follows public opinion, par­ ticularly with respect to cases involving individual liberty 7 and that strict use of the "clear and present danger" method might well have made for unpopular decisions from 1949 on. 16 SECURITY AND LIBERTY

Criticisms of the Method The method that has been extolled in these pages has not been universally accepted as a valid approach to solving the problem of achieving a balance between individual rights and national security. As indicated previously, the present Supreme Court has rejected it. Chief Justice Vinson speaking for the Court m the Douds case asserted: ... the attempt to apply the term, "clear and present danger," as a mechanical test in every case touching First Amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea.

The new approach favored by the Court is the one the venerable jurist Learned Hand applied in the Dennis case when it came before his court. Hand said: In each case they [the courts] must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. We have purposely substituted "improbability" for "remoteness," because that must be the right interpretation. (Author's italics.) The Supreme Court specifically endorsed Hand's "statement of the rule" when the case came to them. Justification of this approach was offered in this way by Judge Hand: Given the same probability, it would be wholly irrational to condone future evils which we should prevent if they were im.mediate. Shades of the "bad tendency" test! In short, the Court has changed the presump­ tion in such cases. Instead of presuming that invasions of First Amendment free­ doms are invalid, the Court will presume that the government has the right to prevent substantive evils and go on to decide the case from there. Inherent in the change of approach is the fundamental criticism that the clear-and-present-danger­ doctrine method places too high a premium on individual rights. In the words of the Court: Overthrow of the Government by force and violence is certainly a sub­ stantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of our society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. What the Court seems to be forgetting is that under the method espoused here, when there is a clear and present danger to national security, the government is free to act. This kind of hairsplitting may seem to be much ado about nothing. It might be helpful, however, in gaining perspective to consider how proud we are that in our judicial process we assume a man is innocent until proven guilty. There can be no serious question that the presumption of innocence in some cases makes a difference in favor of the individual. By the same token, if individual rights are to be preserved the need for a presumption in favor of them has been indicated pragmatically. As pointed out previously, under the "bad tendency" test the individual always lost. Must Liberty Be Sacrificed? 17 It seems pertinent to point out here that had the Court employed the method in the more recent cases like Douds and Dennis, the results would have been different. The anticipated public reaction to decisions which would have seemed pro-Communist may well have had an appalling effect on the Court's thinking, for in 1950 and 1951 we as a people were profoundly impressed with the menace of Communism. This aspect of the Douds and Dennis cases will be treated more fully Ia ter. Undoubtedly, the most persistent and able critic of the method has been Mr. Justice Frankfurter. Frankfurter has bitterly criticized the method on five counts. First, he argued that use of the doctrine gave a broader scope to judicial review than is proper; second, that the Court is "employing a felicitous phrase out of the context of the particular situation where it arose and for which it was adopted." Neither of these criticisms are pertinent to our present inquiry, however. We are now attempting to determine the validity of the method itself. The question of judicial review becomes pertinent only if we determine that the method is valid and then turn to a consideration of the problem of who is to apply the method. On the second point, Professor Corwin has settled the question of Holmes's intentions in favor of Justice Frankfurter.8 However, the question of whether or not Holmes intended that the Court employ his doctrine as method is patently beside the point in evaluating the validity of the method the Court later employed in the name of the doctrine. Of course, as Corwin points out, it would be unfair to invoke Holmes's prestige to bulwark the claims for the method.9 Third, Justice Frankfurter objected to the Court's use of the doctrine as a "pat formula." Formulas embodying vague and uncritical generalizations offer tempting opportunities to evade the need for continuous thought. But so long as men want freedom they resist the temptation. Such formulas are most beguiling and most mischievous when contending claims are those not of right and wrong but of two rights, each highly important to the well-being of society. Seldom is there available a pat formula that adequately analyzes such a problem, least of all solves it.1o The Court, however, did not use the method as a means of avoiding "continuous thought" but rather as a means for insuring that it would do what Justice Frank­ furter said it should do: In common with other questions of degree, this is to be solved not by shorthand phrases but by consideration of the circumstances of the particular case.11 Fourth, Justice Frankfurter objected because the doctrine was not a "pat formula": To determine what interferences may be made the basis for contempt tenders precisely the same kind of issues as that to which the "clear and present danger" test gives rise. "It is a question of proximity and degree." And this according to Mr. Justice Brandeis "is a rule of reason. . . . Like many other rules for human conduct, it can be applied correctly only by the exercise of good judgment." What the justice demonstrated is the fact that even after the clear-and-present­ danger-doctrine method is employed, reasonable men may and do come to different conclusions as to what constitutes a clear and present danger in a particular case. In short, what Justice Brandeis wrote twenty years ago still applies: 18 SECURITY AND LIBERTY The Court has not yet fixed the standards by which to determine when a danger shall be deemed clear; how remote the danger may be and yet be deemed present; and what degree of evil shall be deemed sufficiently sub­ stantial to justify resort to abridgment of free speech and assembly as the means of protection.12 The difficulty of deciding what is and what is not a clear and present danger was pointed up dramatically by Morris Ernst: Let me ask you: At what time was there a clear and present danger from Quisling in Norway until he came to power? When was there a "clear and present danger" before the Communist coup in Czechoslovakia? There was no such time.13 The Supreme Court in the Dennis case raised much the same objection to the method: Obviously, the words ["clear and present danger"] cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. These objections beg t}_le question. The method provides only that an inquiry be made to determine on the basis of fact rather than fancy if there is a real danger. Of course, if there is a real danger of a coup or a putsch the method does not preclude the government from taking appropriate action; the remedy must fit the danger, however. When the facts do not indicate a danger, then individual liberty should not be curtailed. Lastly, Frankfurter has protested that there is no basis for according the First Amendment freedoms a "preferred position": This is a phrase that has uncritically crept into some recent opinions of this Court. I deem it a mischievous phrase, if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity.14 Frankfurter demonstrated that judicial recognition of such a concept was indeed recent and that a majority of the Court had never really accepted the claim that "any legislation is presumptively unconstitutional which touches the field of the First Amendment." Furthermore, he once again explained that this was not what Holmes had intended. When Justice Frankfurter neglected to consider was that the founding fathers had given a "preferred position" to the First Amendment freedoms even though the judiciary had been a long time in recognizing that fact; 15 also, that we as a people in our calmer moments still do. Thomas Jefferson long ago supplied the answer as to why it is necessary to accord a "preferred position" to certain freedoms in the preamble to the Virginia Act of Toleration: Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil -incapacitations, tend only to beget habits of hypocrisy and meanness ... ; that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all liberty, because he being of course judge of that tendency will make his opinions the rule of Must Liberty Be Sacrificed? 19 judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order; and finally, that truth is great and will prevail if left to herself, and she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them .... (Author's italics.) 16 Not all the criticisms of the method have stressed the point that it affords the government too little protection. For example, Alexander Meiklejohn criticized the clear-and-present-danger doctrine on the grounds that it was "a peculiarly inept and unsuccessful attempt to formulate an exception to the principle of freedom. of speech." 17 He argued that the freedom to speak "upon issues with which the voters have to deal" is an absolute and invokes the unequivocal lan­ guage of the First Amendment as proof that the founding fathers of the United States intended it that way. But even a libertarian like John Stuart Mill would not go so far in exalting freedom of speech. He wrote: ... there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered ... the act of a private citizen in striking down a criminal, who, by raising himself above the law, has placed himself beyond the reach of legal punishment or control, has been accounted by whole nations, and by some of the best and wisest of men, not a crime, but an act of exalted virtue; and that, right or wrong, it is not of the nature of assassination, but of civil way. As such, I hold that the instigation to it, in a specific case, may be a proper subject of punishment, but only if an overt act has followed, and at least a probable connection can be established between the act and the instigation. (Author's italics.) Pragmatically, we know that there can be no absolute freedom of speech in a peaceful, orderly state. The record reveals that the Court in employing the clear­ and-present-danger-doctrine method did not in fact attempt "to formulate excep­ tions to freedom of speech" where "freedom of speech" is defined in Meiklejohn's terms. There was not a single case in which the Court applying the method abridged that kind of freedom of speech. Of the twelve cases which involved freedom of speech (and/or press), in only two did the Court find that there was justification for abridgment of that freedom. In one case, the Court found that violence had been a concomitant of the exercise of free speech; in the other that the purpose of the speech was to force a group to act illegally. According to Meiklejohn, "words which incite men to crime are themselves criminal."

Evaluation of the Method The limitations of the method are apparent. It offers no guarantee of a perfect solution in all cases involving a clash between individual rights and majority rule. The method, nevertheless, is important. It is a bar to arbitrary action in behalf of either the majority or the individual. The method which requires close examination of the facts plus the stipulation that those facts must demonstrate a "clear and present danger" makes it extremely difficult to rationalize arbitrary action. Arbi- 20 SECURITY AND LIBERTY trary action limiting individual liberty has the difficulty of running the methodo­ logical gauntlet required by the clear-and-present-danger-doctrine method. On the other hand, an arbitrary stand that certain individual liberties are absolute becomes untenable intellectually where facts demonstrate a clear and present danger. How the use of the method does serve as a bar to arbitrary action can be demonstrated by a comparison of two decisions of the Supreme Court regarding statutes which required school children to salute the national flag. In the first case the majority, not applying the clear-and-present-danger doctrine, decided that the flag salute is an appropriate means for attaining national unity where "national unity is the basis of national security." In the second case Justices Black and Douglas felt compelled to change their minds and formed a new majority which found the statute invalid. Applying the method, they found: No well-ordered society can leave to the individuals an absolute right to make final decisions, unassailable by the State, as to everything they will or will not do. The First Amendment does not go so far. Religious faiths, honestly held, do not free individuals from responsibility to conduct them­ selves obediently to laws which are imperatively necessary to protect society as a whole from grave and pressingly imminent dangers or which, without any general prohibition, merely regulate time, place or manner of religious activity. Decision as to the constitutionality of particular laws which strike at the substance of religious tenets and practices must be made by this Court. The duty is a solemn one, and in meeting it we cannot say that a failing because of religious scruples, to assume a particular physical position and to repeat words of a patriotic formula creates a grave danger to the nation. (Author's italics.) But the value of the clear-and-present-danger-doctrine method as protection against arbitrariness becomes most apparent when we examine the most flagrant arbitrary restriction on liberty in the United States in our recent past-the segre­ gation of Americans of Japanese ancestry during World War II.

Japanese Segregation in World War II • On December 7, 1941, there resided in the far western states of the United States approximately 112,000 people of Japanese ancestry. Of these, an estimated 70,000 were American citizens. Many of them were living near or adjacent to strategic areas such as shore installations and war plants. Large numbers of these Japanese-Americans in one way or another manifested close ties of kinship and sympathy with Japan. Japanese language schools were maintained as were many Japanese cultural societies. Nine thousand American-born Japanese living on the West Coast had been back to Japan for three or more years of schooling. During Japan's war with China, tinfoil and money had been collected for Japan. Many parents had taken steps to secure or protect dual nationality for their children. In the early days of the war, invasion of the Pacific Coast by the Japanese seemed to many not only possible but imminent. The Pacific Fleet had been all but decimated at Pearl Harbor, and the Japanese inexorably rolled on to victory after victory in the Pacific. Against such a backdrop, certain events loomed om­ inous. First, Secretary of the Navy Frank Knox upon his return from surveying the damage at Pearl Harbor announced that "the most effective fifth column work of the entire war was done in Hawaii, with the possible exception of Norway." Must Liberty Be Sacrificed? 21 Second, unauthorized radio communications were intercepted which had been identified as emanating from certain areas along the coast. Third, for a period of several weeks following December 7, "substantially every ship leaving a West Coast port was attacked by an enemy submarine." Fourth, there was large-scale anti-Japanese agitation involving important people, organizations, and press. On Feb. 14, 1942, Lt. Gen. J. L. DeWitt, Commanding General, Western Defense Command, submitted a final recommendation to the Secretary of War regarding the need for evacuation of "Japanese and other subversive persons from the Pacific Coast." The recommendation contained a "brief estimate of the situa­ tion" which read in part:

In the war which we are now engaged, racial affinities are not severed by migration. The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become "Americanized," the racial strains are undi­ luted. To conclude otherwise is to expect that children born of white parents on Japanese soil sever all racial affinity and become loyal Japanese subjects ready to fight and, if necessary, to die for Japan in a war against the nation of their parents. That Japan is allied with Germany and Italy in this struggle is no ground for assuming that any Japanese, barred from assimilation by convention as he is, though born and raised in the United States, will not turn against this nation when the final test of loyalty comes. It, therefore, follows that along the vital Pacific Coast over 112,000 potential enemies of Japanese extraction, are at large today. There are indications that these are fact that no sabotage has taken place to date is a disturbing and confirming organized and ready for concerted action at a favorable opportunity. The very indication that such action will be taken.IB

It was upon this estimate of the situation that United States citizens of Japanese extraction were deprived of liberty, for in a few days Executive Order 9066 was released. The order authorized and directed the Secretary of War and the Mili­ tary Commanders whom he should from time to time designate: Whenever he or any design a ted Commander deems such action necessary or desirable, to prescribe military areas in such places and of such an extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restriction the Secretary of War or the appropriate Military Commander may impose in his discretion. Congress in the following month registered its approval of the Executive Order by enacting Public Law 50 3 which provided penalties for violation of restrictions or orders resulting from it. It is true that General DeWitt was not committed to apply a clear-and-present danger test to his recommendation of segregation and, indeed, he did not. In the general's own words: The evident aspirations of the enemy emboldened by his recent successes made it worse than folly to have left any stone unturned in the building up of our defenses. It is better to have had this protection [segregation of the Japanese] and not to have needed it than to have needed it and not to have had it-as we have learned to our sorrow. (Author's italics.) 19 22 SECURITY AND LIBERTY In effect, the general was saying that even where a clear and present danger could not be demonstrated by the facts, action had to be taken. When the issue of Japanese Segregation came before the Supreme Court, the Court speaking through Justice Black stated: True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement at home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safely can constitutionally justify either.20 Yet in answer to the petitioner's challenge that by May 1942 all danger of Japa­ nese invasion of the West Coast had disappeared, the Court answered: Here as in the Hirabayashi Case ... "we cannot reject as unfounded the judgment of the military authorities and of the Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it." ... Compulsory exclusion of large groups of citizens from their homes, ex­ cept under circumstances of direct emerge~cy and peril is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. (Author's italics.) The Court, then, did not assume, as the clear-and-present-danger method re­ quires, that the action was invalid until it was proved by facts that there was a clear and present danger. In short, the Court did not employ the clear-and­ present-danger-doctrine method. No precedent required the Court to do so, for the doctrine had been employed exclusively in cases involving the liberties of the First Amendment. But what liberty is more important than the right not to be physically restrained except for good cause? Because of the importance of the liberty involved, the Court had good reason to apply the doctrine, if it so chose. Why the Court did not employ the doctrine is open to conjecture, but the im­ portant point that is pertinent to our present inquiry is that had the Court ap­ plied the clear-and-present-danger-doctrine method, it would have been virtually impossible to decide the case as they did without making the injustice apparent. The majority of the Court did not insist upon a presentation of facts to prove that there was a real danger. We have this on good authority, for Justice Jackson stated in his dissent: How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, un­ tested by any cross-examination, that what he did was reasonable. Had the Court insisted in the first instance that the action was invalid and second that it would only change its mind upon presentation of facts indicating that the Must Liberty Be Sacrificed? 23 liberty of Japanese-Americans constituted a real danger, what would the Court have found? No resident Japanese-American in either the United States or Hawaii had in the period from December 7 to February 14 engaged in any espionage activity. By February 14, it was known that, despite Secretary Navy Knox's previous indi­ cation, no acts of sabotage had been committed in Hawaii by Japanese-Americans. What agents were apprehended were "native-born white Americans." In fact, General DeWitt's final recommendation (Feb. 14, 1942) justified exclusion on the basis that "the very fact that no sabotage has taken place to date is a dis­ turbing and confirming indication that such action will be taken." The Japanese­ Americans had made great and convincing efforts to demonstrate their loyalty to the United States. There were excellent explanations for such suspicious­ looking facts as the location of Japanese-American homes and farms near strategic areas. Canneries compelled their workers to live near the canneries; Japanese-American farmers were compelled for economic reasons to live on un­ desirable land near oil refineries, factories, and strategic installations. The fact of dual citizenship was explained by the Japanese Nationality Code which was predicated upon the doctrine of jus sanguinis, a doctrine which claimed for Japan as citizens children of fathers who were Japanese nationals at the time of the children's births. Japanese not born in the United States were denied citizenship by American law. The conclusion seems inescapable that, had the Court assumed the segregation unconstitutional, and a case had to be made, predicated on fact rather than fancy, that freedom from restraint for the Japanese-Americans pre­ sented a clear and present danger, the Court would have had to concur in Justice Murphy's angry dissent:

In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal, or had generally conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their ex­ clusion as a group. Justification for exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence .... The main reasons relied upon by those responsible for the forced evacua­ tion, therefore, do not prove a reasonable relation between the group char­ acteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices-the same people who have been among the foremost advocates of the evacuation.21 CHAPTER THREE

General Controls

The executive and legislative arms of the national government have proceeded in two ways to combat the Communist menace. One, they have acted against Communists and subversives generally; two, they have contrived measures aimed specifically at Communists who were government employees, labor-union leaders, and aliens. This chapter will treat the general control measures-

Background Contrary to popular belief, the nation was not, prior to the Cold War, woefully devoid of laws which could be invoked against those who would subvert us. Treason was a crime. It was a crime for "two or more persons . . . [to] conspire to overthrow, put down, or destroy by force the Government of the United States, ... or to oppose by force the authority thereof, or by force to hinder, delay or prevent the execution of any law of the United States." This is the law of seditious conspiracy. To gain a conviction for seditious conspiracy, proof that the enterprise has been a success is not needed, nor is proof of an overt act re­ quired. Further, with the passage of the Smith Act in 1940, it became criminal to knowingly advocate or conspire to advocate the overthrow of the government. A great many of the overt acts to which fifth columnists would have necessarily had to resort in order to spy and sabotage were illegal. For example, it was a crime to obtain, disclose, or conspire to disclose information concerning national defense where it was intended that such information be used to the injury of the United States; to cause or attempt to cause insubordination in the armed forces; to pretend to be a United States officer; to enter a military reservation, fort, or arsenal without authorization; to purloin, steal, or injure property of the United States or property manufactured under contract for the War or Navy Departments. In addition there were laws which required persons and organizations which were agents of a foreign principal to register and describe their relationship with the foreign principal. True, some of these laws were rarely if ever invoked prior to the Cold War. No real effort was made to enforce the registration acts largely because the Attorney General, Tom Clark, felt that it was well nigh impossible to do so.1 Only a few indictments were sought under the Smith Act prior to 1948 for reasons which will be indicated presently.

Enforcement of the Smith Act From. the moment the decision was first made to enforce the Smith Act vigorously, it became the most effective means for punishing the nominal leaders 24 General Controls 25 of the indigenous Communist movement. Paradoxically, it also made it more difficult to control subversive activities. The most important provisions of the Smith Act were those which made it "unlawful for any person ( 1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence ... ; ( 2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; ( 3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof" and the one which made it unlawful for any person to "conspire" to commit the aforementioned acts. These provisions of the Smith Act had been urged upon Congress by the McCormack committee in its investigation of Nazi and other propaganda pre­ sumably upon the grounds that, "any organized propaganda that seeks to teach the American people that other systems of government ... are preferable to our own is dangerous to a degree .... " These portions of the Smith Act on their face were marked abridgments of important liberties, freedom of speech, and freedom of the press. Nor were the abridgments predicated on a real, clear danger. In 1940, the possibility of large numbers of people being persuaded to accept as a principle the desirability of overthrowing the government was remote, to say the least. Yet the only con­ ceivable logical purpose which can be attributed to these provisions was to pre­ vent attempts to do so. For bear in mind that even before the Smith Act, under the law of seditious conspiracy, it was unlawful to conspire to overthrow the government. In other words, the Smith Act only made it a crime to advocate or to conspire to advocate overthrow of the government. So it must be concluded that an invasion of important liberties was approved by the Congress and the President where no clear and present danger had been demonstrated by an inquiry into facts. Why? Senator Connally supplied the answer: The Committee on the Judiciary is very anxious to secure action on this measure [Smith Act], because it believes it will have a fine effect on the public mind and assure the public that Congress is doing something about the so-called "fifth column" and in correcting subversive activities. (Au thor's italics.) 2 On such flimsy grounds were freedom of speech and press abridged. Untif 1948, the Smith Act was rarely enforced. One reason was that Attorney Generals Biddle and Clark chose a policy of moderation.a Another reason was that enforcement officers believed it would be difficult to obtain convictions in court under the provisions of the Act. Attorney General Tom Clark explained to a subcommittee of the House On-American Activities Committee: As you know, this act [Smith Act] is aimed at the individual rather than the group or party. Adequate proof against the individual in this regard is most difficult to adduce. In fact, the dignitaries of the American Communist 26 SECURITY AND LIBERTY Party have each denied that they have any aim or purpose to overthrow the Government by force or violence. Because of the shifting program and the character of the party line, which can adjust itself to suit almost any limi­ tation, we have found it more practical, effective, and much more speedy to proceed under other Federal statutes.4 A third reason was that the Department of Justice was reluctant to prosecute for fear that it would expose its own efforts at counter-espionage in obtaining convictions.5 In a recent discussion on the radio, Herbert Philbrick stated that the Communists did not know until the first trial of Communist leaders that the FBI had contacts like himself within the Party. In 1948, the government indicted the Communist Party leaders in dramatic fashion. The well-publicized trial lasted nearly a year with the court subjected to all the harassment that the American Communists could devise. At times it ap­ peared that the trial might get completely out of hand. The determination and perseverance of the trial judge prevailed and the trial reached a conclusion. The Communist leaders were found guilty of "willfully and knowingly" conspiring to organize the Communist Party of the United States as a group to "teach and advocate the overthrow and destruction" of the government "by force and vio­ lence," and knowingly and willfully advocating and teaching the duty and neces­ sity of overthrowing and destroying the government by "force and violence." As indicated earlier, the case made its way through the judicial hierarchy until eventually the Supreme Court sustained the convictions. Encouraged by this victory in the courts, the government systematically continued to pick up and indict Communist leaders; by January 19 53, the outgoing Truman Administration had indicted eighty-five Communist leaders of whom forty-four were convicted before the end of 19 52. By the close of 19 54, Senator Know land could boast that the Republican Administration had convicted an additional fifty high-ranking Communists.6 In addition, in a precedent-making move, the government sought and obtained the indictment and the conviction of Claude Lightfoot under the provision of the Smith Act which makes it a crime merely to be a member of an organization, knowing it advocates overthrow of the government by force and violence. If upheld, this decision, now in the process of appeal, opens the way to indictments of all Communist Party members. How far the Administration will go in this endeavor remains to be seen. There can be no question that the Communist leaders were guilty of doing what the Smith Act expressly forbade. But the question for us to consider now is, were the convictions under the Smith Act consonant with a democratic approach to the control of subversive activities? In short, once the Smith Act was on the books (even if it should not have been), should it have been applied as it was against Communist leaders after 1948? Applying the clear-and-present-danger­ doctrine method, the answer is "no." In his decision in the case, the decision upon which the Supreme Court relied, Judge Hand indicated that there was a clear and present danger because there was a tense international situation: Any border fray, any diplomatic incident, any difference in construction of the modus vivendi-such as the Berlin blockade ... might prove a spark in the tinder-box and lead to war. We do not understand how we could ask for a more probable danger, unless we must wait till the actual eve of hostilities. General Controls 27 The judge went on: True, we must not forget our own faith; we must be sensitive to the dangers that lurk in any choice; but choose we must, and we shall be silly dupes if we forget that again and again in the past thirty years, just such preparations in other countries have aided to supplant existing governments, when the time was ripe. (Author's italics.) But not a word to show that the Communists' leaders in fact were dangerous because of what they had been saying and writing. As a matter of fact, Hand's reliance on the argument that "it would be wholly irrational to condone future evils which we should prevent if they were immediate" indicates that he was conceding that there was no real present danger in the speaking and writing ac­ tivities of the Communist leaders at the time of indictment and conviction. There are two other persuasive arguments for believing that the advocacies and teachings of the Communists did not constitute a menace. One, the Govern­ ment did not see fit to outlaw the Party until very recently although this would have seemed to be the only logical course if these activities were dangerous. Two, no one seriously intimated that J. Edgar Hoover and the FBI did not know what was going on inside the Communist apparatus. At any rate, the trial re­ vealed conclusively that the FBI was well-schooled in the Communists' activities. That being the case, how could their writings and speeches constitute a danger of forceful overthrow of the government? This brings us now to the question Judge Hand posed. Is it rational "to con­ done future evils which we should prevent if they were immediate?" The answer to that question is that a democracy must and can without danger wait until the moment words are about to be translated into deeds. With the FBI exercising surveillance to the degree where it is capable of rounding up on short notice "the 12,000 dangerous Communists," it is certainly in a position to know when the overt steps toward revolution are about to be taken. Patently, up to the present time any attempt at a Communist coup would have been nipped in the bud. It is significant that the first indictments of Communist leaders came in the election year, 1948, when one of the major campaign issues was the alleged "softness" of the Democratic Administration to the Communists and after Re­ publican leaders had attempted to make political capital over the failure of the Administration to indict Communists under the Smith Act. In addition to being an unwarranted abridgment of liberty, the Smith Act has actually made it more difficult for the government to meet the real danger of Communism. Not long ago, ]. Edgar Hoover reported to a congressional com­ mittee: I would like to point out that the task of covering the field of subversion today is more difficult than it has ever been before in the history of this country. As a result of the prosecutions under the Smith Act, the Com­ munists and other such groups are resorting to every means possible to pre­ vent detection, going into the underground, holding meetings in out-of-the­ way places, avoiding the use of telephones, using couriers for the trans­ mission of messages, and in every way trying to effect their security program.7

The Internal Security Act of 1950 The origins of the Internal Security Act of 19 50 date back to 1948 when the Republican-controlled House Un-American Activities Committee contrived and 28 SECURITY AND LIBERTY submitted to the House the wide-ranging, Communist-control Mundt-Nixon Bill. The bill was fiercely and at times brilliantly debated throughout the nation. When it came to a vote in the House, the Mundt-Nixon Bill was passed by a3 overwhelming margin. The concern of the Republican leaders in the Senate over the many possible ramifications of the bill made them pause, and they allowed the bill to languish in Committee pending the coming elections. Because of the antipathy of President Truman and other Democratic Party leaders toward anti-Communist legislation which they considered to be drastic restrictions on liberty, it was generally believed, immediately following the surpris­ ing Democratic victory at the polls in 1948, that legislation similar to the Mundt­ Nixon Bill was unlikely. But it soon became apparent that the change in com­ mittee chairmanships in Congress was not going to diminish congressional concern over the Communist problem. Senator McCarran and Representative Wood, chairmen of the Senate Judiciary Committee and the House Un-American Activi­ ties Committee respectively, proved to be as eager as their Republican predecessors for additional anti-Communist legislation. Congress as a whole was oriented strongly in the direction of desiring additional controls. Once the President was aware that Congress was intent upon pressing for more controls, he endeavored to head them off by offering a proposal of his own. He was aided in this endeavor by a coterie of liberals in the Senate who proposed a bill requiring internment of "dangerous" persons in times of emergency. This earned them the sobriquet of "concentration camp liberals" from the Chicago Tribune.8 The net result of inept handling of the issue by the President and the liberal Senators was enactment of legislation which not only included most of the provisions of the old Mundt­ Nixon Bill but also their own proposals. Ironically, they had misgivings about some of them. Justification for the new legislation was based on the congressional finding that: The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Await­ ing and seeking to advance at a moment when the United States may be so far extended by foreign engagements, or far divided in counsel, or so far in industrial or financial straits, that overthrow of the government by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present a clear and present danger to the security of the United States and to the existence of free American institutions, and make it necessary that Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and to guarantee to each State a republican form of government, enact appro­ priate legislation recognizing the existence of such worldwide conspiracy and designed to prevent it from accomplishing its purpose in the United States.9 Although Congress used the words "clear and present danger," they obviously were not using the method. That they were dealing with a remote danger is in­ dicated by the second sentence of the quotation above. Also, the attempt to General Controls 29 prove that the United States was endangered by a possible Communist coup "because of the recent successes of Communist organizations in other countries" is an example of the dangers of argument by analogy when the analogy is non­ existent. To compare the situation in the United States to that of Czechoslovakia prior to the coup there when the Communist Party was that nation's largest single party is patently ridiculous.I0 There was no clear and present danger of the Communists perpetrating a coup in the United States at that time. Despite these facts, the Act provides dangerous possibilities for abridging fundamental free­ doms. Section 4 reads: It shall be unlawful for any person knowingly to combine, conspire, or agree with any other person to perform any act which would substantially contribute to the establishment within the United States of a totaliarian dictatorship ... When a like provision was first proffered in the Mundt-Nixon Bill, it had been the subject of intense criticism because of its sweeping nature. Consequently, it was modified somewhat in the Internal Security Act by the stipulations ( 1) that it will not "apply to the proposal of a Constitutional amendment" and ( 2) that "neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation." Since previous legislation already made overt acts aimed at overthrow of the government and advocacy of overthrow of the government by force and violence criminal, and since the language of Section 4 of the bill was so sweeping as to make it unlawful to attempt to conspire to perform any act which would sub­ stantially contribute to the establishment of a totalitarian dictatorship in the United States, it must be assumed that Section 4 was drawn up to make unlawful that which was not already unlawful. The testimony of Representative Nixon on the original Mundt-Nixon Bill before the Senate Judiciary Committee gives credence to this assumption. He testified that the bill was intended to go further than previous legislation because "Communists have developed techniques for taking over governments without using force or violence, and it is against these techniques that this legislation is directed" (author's italics.) 11 Mr. Nixon never did make it clear how the government of the United States could be taken over without force or violence, without violating existing law, unless the people voted the Communists into power. In short, it would seem that the purpose of Section 4 is to prevent the Communists from propagandizing their point of view by speaking, writing, and holding meetings. Yet these activities are not what make the Communists dangerous. Consequently, Section 4 is an unjustified abridg­ ment not only of the liberty of Communists but of all Americans. Further, Section 4 is repugnant on the grounds of vagueness. What constitutes an act "which substantially contributes to the establishment within the United States of a totalitarian dictatorship?" Would Congressmen be subject to indictment for voting cuts in the size of the army? Our courts have traditionally held that vague laws are subversive to our liberties because enforcement of them would allow law enforcement officers wide discretionary power and this, of course, would be inconsistent with the concept that ours is a government of laws and not of men. It is not so strange, then, that the Government has chosen not to use this provision to indict Communists and there has been no test of its con­ stitutionality. The law also contains registration provisions drawn from the Mundt-Nixon Bill. Communist-action and Communist-front organizations are required to reg- 30 SECURITY AND LIBERTY ister and any member of such organizations "with knowledge or notice that such organization is so registered" cannot seck, accept, or hold " any non-elective office or employment under the United States." Nor can any person who is a member of a registered Communist-action organization "engage in any employ­ ment in any defense facility." Further, registered organizations are required to label their publications and broadcasts as being disseminated or sponsored by a "Communist organization." No registered organization is entitled to a federal income tax exemption nor are contributions to such organizations deductible for federal income tax purposes. The law provides that a bipartisan Subversive Activi­ ties Control Board be set up to determine whether organizations should register. The Board is given power to hold hearings, administer oaths, examine witnesses, and issue subpoenas. The law provides standards by which the Board should de­ termine whether or not an organization is a Communist-action organization or a Communist-front organization. Judicial review of orders of the Board is af­ forded by the law; however, "the findings of the Board as to facts, if supported by the preponderance of the evidence, shall be conclusive." These provisions enacted into law the widely heralded principle of disclosure. "Disclosure," that is, "requiring all groups, which attempt to influence public opinion, to disclose the pertinent facts about themselves through systematic registration procedures," had prominent backing as early as 1947 as a measure necessary to combat subversive forces. For example, the President's Committee on Civil Rights urged that it be adopted: ... one of the things totalitarians of both left and right have in common is a reluctance to come before the people honestly and say who they are, what they work for and who supports them. Those persons in our country who try to stir up religious and racial hatreds are no exception .... This Committee is eager to guarantee their civil rights as those of the people they attack. But we do not believe in freedom to avoid all responsibility for one's opinions. This would be an unwise and disastrous weakening of the democratic process. If these people wish to influence the public in our national forum or opinion they should be free to do so, regardless of how distasteful their views are to us. But the public must be able to evaluate their views. It has been argued that disclosure limits freedom of speech and press because it inhibits people. This is true; but it certainly does not prohibit speech and the argument of the President's Committee is persuasive. The question of whether or not members of Communist-front or Communist­ action agencies should be allowed to seek employment with the government or in a defense facility will be discussed in subsequent chapters. As the minority of the Senate Judiciary Committee had predicted in their report on the bill, it has taken a long time to obtain a final order requiring an organization to register. The Subversive Activities Control Board was organized on Nov 1, 1950. Through 1952, the Board had before it only one proceeding, the case involving whether or not the Communist Party should be required to register. On Oct. 20, 19 52, after lengthy hearings, the panel which heard the case recommended that the Board issue "an appropriate order requiring the party to register with the Attorney General as a Communist-action organization." This the Board did in April 1953.12 Of course, the Communist Party appealed to the Courts; and it was not until December 19 54 that a decision was reached General Controls 31 in the United States Circuit Court of Appeals upholding the Board's action.13 The Supreme Court has already agreed to hear an appeal to it in the fall of 19 55. Once this matter is finally settled in the Courts, it is assumed that many more organizations will be haled before the Board quickly. A start has been made in this direction already, and it is reported that the FBI has under investi­ gation some two hundred other organizations which may be cited.14 As in the Mundt-Nixon Bill, the 19 50 law provides that members of registered organizations can not seek, use, or attempt to use a passport, nor can any officer or employee of the United States issue or renew a passport to any individual "knowing or having reason to believe that such individual is a member of such organization." Since no organization had been required to register through 19 53, this part of the law could not be applied initially. However, the State Depart­ ment, taking cognizance of Congressional concern over the issuance of passports to men with "notorious Communist records," acted on its own. In May 1952 the State Department issued a press release which stated that since February 19 51 it had been refusing to issue a passport to any person "if information in its files gave reason to believe that he is knowingly a member of a Communist organization or that his conduct abroad is likely to be contrary to the best in­ terests of the United States." 15 The wisest and most uncontroversial features of the Act are some of the provisions which had been urged on the Congress by the Administration since early 1949. These provisions, incorporated in sections 18 and 19 of the law, make it unlawful for persons to "obtain information respecting national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation" and extends the statute of limitations so that for any such violations an indictment could be found any time within ten years. Perhaps, the most potentially restrictive elements of the Law are those pro­ viding for emergency detention. In the event of invasion, declaration of war, or insurrection, the President is empowered to declare an "Internal Security Emergency." During the existence of such an emergency, the President, acting through the Attorney General "is authorized to apprehend and by order de'tain ... each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage." Once apprehended, a person will have a hearing before a preliminary hearing officer. Prior to this hearing he will have the op­ portunity to learn the grounds on which he was being detained and to secure counsel. During the hearing he will be able to present evidence in his own behalf and cross-examine witnesses against him, except where disclosure of the identity or evidence or government agents or officers will be, in the opinion of the At­ torney General, "dangerous to the national security." If the preliminary hearing officer finds that "probable cause for the detention" has not been shown, the person will be discharged. If the hearing officer rules for continued detention, his ruling may be appealed to a Detention Review Board, which will be bipartisan. It will be up to the Board to determine whether "there is reasonable ground to believe that such detainee probably will engage in, or conspire with others to engage in, espionage or sabotage." Persons aggrieved by an order of the Board can seek judicial review of their cases. Actually, these detention provisions are consonant with past wartime practice in the United States. In the first days of World War II, the FBI rounded up 32 SECURITY AND LIBERTY and detained people whom it considered dangerous. There can be no question that in the event of war, invasion, or insurrection the government must act to meet the very real danger of espionage and sabotage. The virtue of having a law such as the emergency detention provisions on the statute books is that it regu­ larizes procedures most consonant with democratic principles. Presumably such a statute will be a bar to arbitrary wholesale round-ups like that of the Japanese­ Americans in World War II. The portions of the 19 50 Act dealing with government employees and the extensive provisions dealing with aliens will be treated in the following chapters.

The Communist Control Act of 1954 It was a foregone conclusion after the Republican victory in 1952 that additional anti-Communist legislation was in the offing. For years Republican congressmen had complained that not enough was being done to meet the Communist menace and most of the Republican candidates for national offices in the fall of 19 52 had played variations on that theme. By early 1954, both the President and the Attorney General were ready to tell Congress what they wanted specifically. Primarily, they were after three things: ( 1) to strip citizenship from persons found guilty of conspiring to advocate overthrow of the government; ( 2) to bar from defense plants any workers likely to engage in subversive activities; ( 3) to eliminate Communist control of labor unions. The Republican leadership in the Congress was receptive. However, when they brought forth for consideration a bill to strip unions which followed the Communist Party line of their rights to bargain collectively, they set off a debate as ludicrous as it was heated. Not to be outdone by the Republicans in anti-Communist fervor in an election year, Democratic leaders in the Senate proposed to amend the bill so as to make it a crime to be a Communist. Proposals of this kind had been brought up time and again previously and had been rejected usually on the grounds that it would be of doubtful constitutionality and that it would drive the Communists further ·underground and make it more difficult to watch them. Further, J. Edgar Hoover and a long line of attorneys general were on record against such a move. But now support for such a measure was coming from unexpected sources, from senators who previously had meticulously opposed major Communist control measures as unnecessary abridgments of liberty. Those who pressed for making it a crime to be a Communist included Senators Humphrey, Lehman, Fulbright, and Kilgore. At first thought, it was just as surprising to find among their op­ ponents in this move such avid adherents of controls as Senators McCarthy, Mundt, Schoeppel, and McCarran. Although advocates of the measure expressed great concern over the need for such legislation, most observers felt that it was a political maneuver tailored to the requirements of an election year. Who could accuse them of being "soft" on Communism now? In any case proponents of the measure rarely made the best case for it on libertarian grounds.16 They could have stressed that, in view of legislation already on the books, the cause of liberty would be better served by making it clear to all and sundry that it is a crime to be a Communist. Second, such a measure would take congressional investigating committees out of the business of hunting and "punishing" Communists and put it where it more properly belongs in the law enforcement agencies and the courts. Third, it would provide a "cut-off" date which would serve to end the harassment of people for having been Communists and put the emphasis. on seek­ ing out those who are currently in the Party. General Controls 33 In the course of the hectic jockeying for position in the Congress, President Eisenhower let it be known that he was unalterably opposed to such a measure and urged members of his own party to oppose it. Republican leaders wanted to do the President's bidding, yet the prospect of having their candidates face the voters after having opposed a measure which on its face was so anti-Communist frightened them. Consequently, they sought a course which would satisfy the President and the voters. The resulting compromise was a measure that took from the Communist Party whatever "rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof." It further provided that whoever knowingly remains a member of the Communist Party "shall be subject to all the provisions and penalties of the Internal Security Act of 1950, as a member of a 'Communist action' organization." Fourteen criteria were set up which juries, under instruction from the Courts, should consider as evidence of membership or participation; these included such things as making financial contributions and preparing docu­ ments for the Party. There were also extensive provisions aimed at controlling Communists in labor which will be reserved for discussion in a later chapter. The substance of the Communist Control Act is that the Communist Party cannot seek places on election ballots for its candidates for public office. This was recently demonstrated when a court, on the basis of the Act, upheld a decision by a local election board forbidding Bert Salwen from seeking office as a Com­ munist Party candidate in Mercer County, New Jersey. In short, for the first time in American history a political party has been outlawed. Such action strikes at the heart of our system of government, free elections, the right for any one to seek office or to vote for whomever he pleases. And although it is difficult to find sympathy for members of the Communist Party, the precedent established is disturbing. The drastic action was justified in the findings of fact incorporated in the Act on the grounds that the Party as such "rendered its existence a clear, present and continuing danger to the security of the United States" and that the Party "is the means whereby individuals are seduced into the service of the world Communist movement." If by this is meant that spies and saboteurs are recruited by the "open" party, the facts do not bear out such a contention.

Loss of Citizenship Act of 1954 Of all the points made in his state-of-the-union address in January 1954, none was so warmly greeted as the President's proposal "to provide that a person who is convicted of conspiring to advocate the overthrow of this government by force or violence be treated as having, by such act, renounced ·his allegiance to the United States and forfeited his United States citizenship." Congress obliged the President later that year by enacting his proposal. Since the measure increases the penalty for what is already a crime, it must be presumed that it was enacted to provide a more fitting punishment. Whether or not one regards loss of citizen­ ship a fitting punishment for those who violate the Smith Act depends on what one thinks of the Smith Act. Without reviewing the Smith Act again, it seems pertinent to consider that loss of citizenship has traditionally been considered a punishment of such magnitude as to be used only for a few of the most odious of crimes like treason and desertion from the armed services. And however ap­ propriate loss of citizenship may be as punishment for treason, is it appropriate as punishment for conspiracy to advocate? 34 SECURITY AND LIBERTY

Other Recent Legislation In 19 54, Congress passed other laws which, taken within the present legis­ lative framework, could hardly be considered deprivations of liberty and which seem desirable from the standpoint of security. The penalty for harboring or concealing fugitives from justice was increased as was the penalty for bail jump­ ing; Communists convicted under the Smith Act have sometimes been hard to find. In legislation pertaining to espionage and sabotage, the definition of sabotage was modernized to include acts involving the use of radioactive, biological, and chemical agents not previously covered by law, and the penalty for peace-time espionage was made more severe, punishment "by death or by imprisonment for any term of years or for life." Communist-action and Communist-front organiza­ tions which must register under the 19 50 Act are required now to submit full information on printing equipment under their control. And payment of annuities by the United States to former officers and employees who have been convicted for certain criminal offenses including making false statements regarding past or present membership in the party is forbidden. It is perhaps important to note that two Administration proposals did not be­ come law in 19 54. One was the bill to legalize wire-tapping, the other the bill to grant the federal government broad powers to bar an individal from access to any defense facility where there is reasonable grounds to believe such individual may engage in subversive acts. It goes without saying that laws of this kind would constitute real abridgments of liberty which could be justified by only the gravest threat to national security. It is significant, therefore, that despite the prodigious efforts of the Attorney General to obtain this legislation, neither bill became law.

Congressional Investigations In addition to drafting and enacting legislation, Congress has sought to control Communists by investigation. Some committees have set out to expose Communists and to punish them by subjecting them to public ridicule and loss of jobs.17 For example, the Sub-Committee to Investigate the Administration of the Internal Security Act and Other Internal Laws of the Senate Judiciary Committee once reported that its hope was that after its hearings "when the rank and file of the membership of the United Public Workers of America learn the truth concerning the Communist leadership of the organization, they will take effective action to rout such leadership." 18 Very recently the Senate as a whole seemed to give its blessing to this purpose for investigations of Communists when it resolved unanimously that "it is the sense of the Senate that its ap­ propriate committees should continue diligently and vigorously to investigate, ex­ pose and combat this conspiracy and all subversive elements .... "19 At first only a few committees concerned themselves with investigating Com­ munists. But later, whether motivated by a genuine concern about subversive activities or by a desire to make political capital by crusading in what appeared to be a popular cause, the following Congressional committees joined in investi­ gating Communists: in the House, the Public Works, District of Columbia, Immigration and Naturalization, House Military Affairs, Foreign Affairs, Veterans' Affairs, and House Education and Labor Committees; in the Senate, the Judiciary, General Controls 35 Expenditures in Executive Departments, Interstate and Foreign Commerce, and Labor and Public Welfare Committee. Where the committees have intentionally tried to mete out punishment outside the regular judicial process, they have been doing exactly what the founding fathers sought to prevent by setting forth in the Constitution a prohibition against bills of attainder. For as the Supreme Court decided in 1866: A bill of attainder is a legislative Act, which inflicts punishment without a judicial trial. If the punishment be less than death, the Act is termed a bill of pains and penalties. Within the meaning of the Constitution, bills of attainder include bills of pains and penalties. In these cases the legislative body, in addition to its legitimate functions, exercises the powers and office of judge; it assumes, in the language of the text books, judicial magistracy; it pro­ nounces upon the guilt of the party, without any of the forms or safeguards of trial; it determines the sufficiency of the proofs produced, whether con­ formable to the rules of evidence or otherwise; and it fixes the degree of punishment in accordance with its own notions of the enormity of the offense.2o The prohibition against legislative Acts which are bills of attainder should logically apply to legislative acts, too. No justification in a "clear and present danger" or anything else can be made for congressional inquiries aimed primarily at punishing people; it is patently an inappropriate remedy to meet any danger. For Congress to engage in such a practice is totally unnecessary. If it is argued that it is necessary for Congress to engage in this practice because the law enforcement agencies are singularly inept, it must be pointed out that the solution is not for Congress to take over the job of the law enforcement agencies but rather to investigate them. In this connection, it is important to note that at no time has a significant ele­ ment of Congress even vaguely intimated that the FBI was not doing its job or that the FBI ought to be investigated. At this late date, it would be facetious to argue that Congress cannot or should not engage in investigations at all. It is well established that there are good and legitimate reasons for its doing so.21 The point being made here is that legislative inquiries are a dangerous and clumsy means for enforcing controls over Communists.

Immunity Legislation, 1954 Ever since congressional committees started investigating Communists, a host of witnesses have invoked the Fifth Amendment's provision that no person "shall be compelled in any criminal case to be a witness against himself" as grounds for not testifying. By interpretation the courts have come to regard that this provision applies to witnesses before congressional committees. To meet this situation, Congress enacted legislation which permits two-thirds of the members of a full committee conducting an investigation relating to national security to seek a court order co~pelling a witness to testify. The Attorney General must be informed of the application and be given an opportunity to be heard. A witness who is com­ pelled to testify cannot be prosecuted for any act other than perjury or contempt on the basis of his testimony. Also, in cases before a grand jury or court involving 36 SECURITY AND LIBERTY the national security, a United States attorney with the approval of the Attorney General may seek a court order to compel a witness to testify. In view of the immunity granted, the law cannot be considered an abrogation of liberty. In addition, where a committee is pursuing one of its legitimate pur­ poses for inquiry like investigating the operation of one of the executive agencies, it is essential that they have the means for compelling witnesses to give them the information they need in order· to make intelligent decisions. A significant built-in safeguard against abuse of the power to compel testimony is the immunity which must be granted. It is not likely that the Attorney General or committees of Congress will relish granting immunity to those who have effectively jeopardized the nation's security. The constitutionality of the law is currently being tested in the courts. CHAPTER FOUR

Control of Communists in Government Employment

While successive congresses and administrations were taking measures to con­ trol indigenous Communists in general, they manifested an even more marked concern for Communist activity in certain special groups. The employees of the national government constituted one such special group. Congress first demonstrated anxiety about the loyalty of government employees long before the Cold War. The Hatch Act, enacted in 1939, provided that: It shall be unlawful for any person employed in any capacity by any agency of the Federal Government, whose compensation, or any part thereof, is paid from funds authorized or appropriated by any Act of Congress, to have mem­ bership in any political party or organization which advocates the overthrow of our constitutional form of government in the United States. In June 1940, Congress empowered the secretaries of War and Navy to remove summarily any employee without regard to any provisions of laws, rules, or regu­ lations governing the removal of employees if the removal was iu the interest of national security. The next year Congress instituted the- practice of stipulating in all appropria­ tion acts that no part of the appropriation could be used as salary or wages for any employee who advocated the overthrow of the government or belonged to an organization that so advocated. A little later Congress appropriated $100,000 to the FBI for the sole purpose of investigating federal employees who belonged to "subversive" organizations and/or advocated overthrow of the national govern­ ment. Shortly after, the Attorney General ordered the FBI to investigate com­ plaints about the loyalty of individual federal employees. At the outset of World War II, the Administration took the initiative in keep­ ing subversives out of the national government. The Civil Service Commission with the approval of the President stipulated that employees of the national gov­ ernment were to be dismissed if there was a reasonable doubt as to their loyalty to the United States. A special interdepartmental committee was set up by the Attorney General to study and suggest procedures for dealing with disloyalty. Further, the committee was available for review of cases which departments might wish to refer to it. Significantly, dismissals were few during the war. Once the Cold War began, Congress became more concerned about the possi­ bilities of Communist infiltration in sensitive government agencies. In 1946 the Secretary of State was empowered by the "McCarran Rider": ... in his absolute discretion, on or before June 30, 1947, to terminate the employment of any officer or employee of the Department of State or of 37 38 SECURITY AND LIBERTY the Foreign Service of the United States whenever he shall deem such termination necessary or advisable in the interests of the United States .... The Atomic Energy Act, enacted the same year, stipulated that no individual was to be employed by the Atomic Energy Commission until the FBI had made an investigation and reported to the Commission on the character, associations, and loyalty of such individual except as authorized by the Commission in case of emergency.

The Truman Loyalty-Security Program ORGANIZATION In March 1947, President Truman instituted a comprehen­ sive program for ferreting out disloyal government employees. It has been charged that the Truman Administration developed the loyalty program because of the Committee on On-American Activities, which had been making a political attack on Communists in government since 1938.1 There is good reason to believe, how­ ever, that the Administration program was inspired by a sincere concern that there might be disloyal people in the government and that such people constituted a real threat.2 The executive order setting up the program provided that: 1. A loyalty investigation of every person entering the civilian employment of any department or agency of the executive branch of the government be held; 2. The head of each department and agency be personally responsible for seeing to it that disloyal employees were not retained in his department or agency; 3. Each department and agency set up one or more loyalty boards; 4. Employees charged with being disloyal have a right to a hearing; 5. The decision of a department or an agency be subject to appeal to the Civil Service Commission's Loyalty Board-to be set up later; 6. The Loyalty Board give only advisory recommendations; 7. The Attorney General furnish the Loyalty Review Board with a list of groups designated as subversive. The order further provided that the investigative agency may refuse to disclose the names of confidential informants, provided it furnishes sufficient information about such informants on the basis of which the requesting department or agency can make an ade­ quate evaluation of the information furnished by them, and provided it advises the requesting department or agency in writing that it is essential to the protection of the informant or to the investigations of other cases that the identity of the informants not be revealed. Under the order, the standard for refusal of employment or dismissal was that 440n all evidence, reasonable grounds exist for the belief that the person involved is disloyal to the government of the United States." It was stipulated that, in deter­ mining disloyalty, consideration should be made as to whether or not the 44accused" had ever: 1. Engaged in sabotage or espionage, or associated with spies and sabo­ teurs; 2. Committed treason or sedition; 3. Advocated overthrow of the government; Control of Communists in Government Employment 39 4. Given away classified information obtained as a result of the "ac­ cused's" employment by the Government; 5. ,Served the best interests of another government in preference to the interests of the United States; 6. Been a member of or in sympathetic association with organizations to be designated by the Attorney General as subversive. The order specifically stated that it was not to apply to persons removed under any other statute conferring power of summary removal. Employees of the State Department, the armed forces, and the Atomic Energy Commission were still subject to summary removal. Undertaking the task of investigating government employees then in service, the Civil Service Commission instructed departments and agencies with rosters of more than one hundred employees to send to the FBI each month a list of 15 per cent of their total personnel to be checked against the FBI files. The Civil Service Commission's Loyalty Review Board was organized late in 1947, after twenty leading educators and lawyers had been persuaded to serve on it. Seth Richardson, the Washington lawyer who had been counsel for the con­ gressional committee investigating the Pearl Harbor disaster, was designated chairman; significantly, he was a Republican. The Board had been given the authority under the executive order "to review cases involving persons recommended for dismissal on grounds relating to loyalty by the loyalty board of any department or agency and to make advisory recom­ mendations thereon" and "to make rules and regulations ... deemed necessary to implement statutes and executive orders relating to employee loyalty." The order further provided that the Loyalty Review Board should "advise all departments and agencies on all problems relating to employee loyalty," disseminate pertinent information, coordinate loyalty policies and procedures, and make reports and recommendations to the Civil Service Commission. Six weeks after it was organ­ ized, the Loyalty Review Board gave some indication as to how it intended to operate. The Board announced that: 1. In connection with the required basic investigation, the board proposed to turn to the FBI for cooperation and assistance. 2. Preliminary investigations would be secret in order that the loyal em­ ployee would not suffer the stigma of having been investigated. 3. In all cases, a speedy hearing would be granted employees desiring a hearing. They would be permitted to be represented by an attorney, with full right to introduce evidence. The hearings would be private. 4. It would not be necessary to confront the "accused" with his accusers or to subject the accusers to cross-examination. The Board was split on the issue of nonconfrontation. It was decided, however, that the "objection to nonconfrontation and no cross-examination, while impor­ tant, is not essentially controlling." The majority of the Board reasoned: In the first place, the board is of the opinion, that legally the Government is entitled to discharge any employee for reasons which seem sufficient to the Government, and without extending to such employee any hearing whatso­ ever. We believe that the rights of the Government in that respect are at least equal to those possessed by private employers. We also think that the Government, if necessary, may conclude that any suspicion of disloyalty 40 SECURITY AND LIBERTY whatsoever, however remote, might, in view of the dangerous possibilities involved, suffice to warrant employee dismissal without hearing. It is significant also that the Board went so far as to extend the policy of non­ confrontation to preclude the disclosure of the contents of FBI reports. It said: We recognize that the use of such a report as evidence by the various Loyalty Boards, without disclosure of the contents to the employee does sub­ ject the employee to nonconfrontation of witnesses against him, and does deprive him of the right of cross-examination of such witnesses,-a situation which ought to, and does, give rise to most serious questions in the minds of the general public. (Author's italics.)

Earlier J. Edgar Hoover had stated:

While the FBI does not approve its reports being made public, never­ theless, it expects the contents of its reports to be used, and it has no objec­ tion to a loyalty hearing board confronting an individual with charges based upon the contents of its report. The President's executive order provides that the investigating agency may refuse to disclose the names of confidential informants. (Author's italics.)S

The Board indica ted that consideration would be given to the fact that the employee had been handicapped by the lack of an opportunity to confront his accusers. In keeping with the prescription set forth in the executive order that The Loyalty Review Board shall currently be furnished by the Department of Justice the name of each foreign or domestic organization, association, movement, group or combination of persons which the Attorney General, after appropriate investigation and determination, designates as totalitarian, fascist, communist or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny others their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means, the Attorney General released on December 4 a list of ninety groups. The At­ torney General carefully reiterated that membership in these groups per se did not furnish full proof of disloyalty. In the fall of 1948, the Loyalty Review Board was officially advised by the Attorney General that it should consider the Communist Party as coming under the scope of Section 9A of the Hatch Act, that it was the intention of Congress to exclude from government employment members of the Communist, Fascist, or German Bund parties. The Attorney General suggested that the Loyalty Board, in reviewing cases before it, must consider whether or not an employee was a member of an organization proscribed by the Hatch Act. Where the employee was found to be a member of such an organization, "the provisions of the Hatch Act came into operation and the Board's advisory opinion must necessarily affirm the dismissal." Further, the Attorney General made it clear that the Board did not have the power to review designations of organizations made by the Attorney General. The Loyalty Board subsequently accepted the Attorney General's con­ ception of its duty with regard to the Hatch Act: Control of Communists in Government Employment 41 If in the consideration of a case a Loyalty Board finds as a fact that an employee or an applicant is a member of such an organization [designated by the Attorney General as being within the scope of Section 9A of the Hatch Act], or that he advocated overthrow of the Government of the United States by force or violence, then removal of the employee, or the refusal of employment to the applicant is mandatory. The Loyalty Review Board in late December 1948 prescribed in comprehensive fashion the procedures which were to be used in the program. Each department and agency was directed to establish loyalty boards of at least three members. Members of such boards were cautioned to remember that they were not prose­ cutors and that "the proceedings are in the nature of an investigation and not of a prosecution." It was directed that employees should not be suspended until after an unfavorable determination except in "exceptional" cases where the em­ ployee's continuing at his job is "detrimental to the interests of the Government." In such cases, it was directed that the employee be assigned to other duties where there would be no danger, or placed on leave, except where the agency board found that removal action was warranted under authority of Section 9A of the Hatch Act; in such circumstances, the employee could be suspended immediately. No employee was to be dismissed until the Loyalty Board made its determination. In cases "not seriously threatening national security," agency boards with ap­ proval of agency heads might under mitigating circumstances allow an employee to resign. The Loyalty Review Board reaffirmed the standard for disloyalty laid down in the Executive Order "that, on all evidence, reasonable grounds exist for belief that the person involved is disloyal to the Government of the United States." From the inception of the President's loyalty program, Congress exhibited an uneasiness about the effectiveness of the program and attempted to make it stronger. In the National Security Act of 1947, the Director of the Central Intelli­ gence Agency was empowered "in his discretion, [to] terminate the employment of any officer or employee of the Agency whenever he shall deem such termina­ tion necessary or advisable in the interests of the United States. " In the United States Information and Educational Exchange Act of 1948, Congress stipulated that no citizen or resident of the United States could be employed under the Act without an investigation and a report to the Secretary of State. In the Economic Cooperation Act of 1948, Congress required that no citizen or resident of the United States be employed by the ECA or by the State Department for the ECA for a period in excess of three months without a loyalty and security check by the FBI and without certification in writing to the Senate Committee on Foreign Affairs and the House Committee on Foreign Affairs by the Secretary of State or the Administrator that "after full consideration of such report, he [the Secretary or the Administrator] believes such individual is loyal to the United States, its constitution, and form of government, and is not now and has never been a member of any organization advocating contrary views." Similar provisions were written into other acts setting up or providing funds for specific agencies. And in the summer of 19 50, Congress empowered the secretaries of State, Defense, Army, Navy, Air Force, Treasury (for the Coast Guard), and Commerce as well as the Attorney General, the Atomic Energy Commission, the chairman of the National Security Resources Board, the director of the National Advisory Com­ mittee for Aeronautics, and any other agency head designated by the President to dismiss summarily employees in their respective agencies whenever they deemed it "necessary or advisable in the interest of national security. An employee dis- 42 SECURITY AND LIBERTY missed in this fashion was permitted to appeal to the Civil Service Commission for a transfer to a nonsensitive agency. As indicated previously, the secretaries of the Army, Navy, Air Corps, and State and the Atomic Energy Commission had been exercising this power for some time. In the omnibus Internal Security Act of 1950, Congress made it unlawful for a government employee to give classified information to an agent of a foreign government or a member of a Communist organization unless specifically author­ ized by the President or the head of the appropriate agency. Further, it was pro­ vided that no member of a Communist organization could legally seek or hold any nonelective office or employment under the United States. Under the aegis of a new chairman, Hiram Bingham, the Loyalty Review Board recommended to President Truman in February 1951 that the original executive order be amended so that employees could be discharged and applicants could be refused if there was "reasonable doubt" about their loyalty. The Board indicated that the virtue of such a change was that doubts about loyalty would be resolved in favor of the government instead of the individual. The Board declared that this. particular change had been under consideration for several months and was not prompted suddenly by the conviction of William R. Rem­ ington. The Board had been subject to criticism following Remington's convic­ tion for perjury, a conviction based upon a jury's finding that Remington had lied in denying past membership in the Communist Party, for the Board had previously cleared him. Mr. Bingham explained that "the situation is now entirely different. With the Communist party now underground, it is very difficult to find that a person presently is disloyal." The Board went on to assert that if the: proposed change had been in effect at the time, Remington would not have been cleared by the Board in 1949. Remember the standard under the original order was "that on all evidence reasonable grounds exist for the belief that the person involved is disloyal to the government of the United States." In April, 1951, President Truman amended his executive order in the manner the Board had recommended. The Loyalty Review Board subsequently ordered the sixty-odd government agencies under its jurisdiction to re-examine the cases of 565 em­ ployees under the terms of the amended order. MECHANICS 4 In general, President Truman's Employee Loyalty Security Pro-· gram ultimately operated in the following way for all the "nonsensitive" agencies .. The FBI made an initial basic investigation of all people employed by the fed­ eral government and all those who were considered for such work. The FBI searched its files to see if there was any information "indicating disloyalty." If there was such information and/or a specific complaint about the person checked,. the FBI conducted a full field investigation and submitted a report. All such. reports went to the appropriate agency loyalty board. The board examined the: report and had the opportunity to request further information from the FBI.. Until April 19 51, the agency board considered the report to determine if the evidence offered reasonable grounds for belief that the person was disloyal to the government of the United States; after that date, the agency board was compelled to consider also whether there was a "reasonable doubt" as to the person's loyalty. Where an employee was in fact a member of any organization deemed by the Attorney General to be within the scope of Section 9A of the Hatch Act his dis­ missal was mandatory. If the agency board found that the report warranted a clearly favorable conclusion, it so determined and the investigation was closed. Where initial consideration indicated that a finding for removal of an employee appeared warranted, the following procedure was invoked. First, the board served Control of Communists in Government Employment 43 the employee with a written notice stating the charges against him, "setting forth with particularity the facts and circumstances relating to the charges so far as security considerations will permit." This notice of proposed removal action stated not only the charges against the employee but also that he had the right ( 1) to answer the charges in ten days, ( 2) to have an administrative hearing be­ fore a loyalty board in the agency, ( 3) to appear before such a board where he could be represented by counsel and where he could present evidence in his own behalf. If the individual did not reply, the board considered his case anyway. No inference or presumption was assumed by the board because the employee had not replied. Even without replying to the notice, the employee could appear when the board considered his case. In regard to hearings, strict legal rules of evi­ dence were not applied, but "reasonable bounds" were "maintained as to com­ petency, relevancy, and materiality," all testimony was given under oath, and the hearing was private. Both the government and the "accused" could introduce such evidence as the board deemed proper. The board was supposed to and presumably did consider that the "accused" had been handicapped by nondisclosure to him of confidential information. Testimony at the hearing was recorded and a copy given . the "accused." After the hearing the board made its determination. If the determination was unfavorable, the employee or applicant had the right to appeal to the head of the employing agency or to such person or persons designated by him. The agency head or his designee fixed the scope and extent of any hearing he accorded the employee or applicant; but the employee or applicant had the right to be present with his attorney and to be heard where such a hearing was accorded. If the determination by the head of the agency or his designee was unfavorable, the employee or applicant could appeal to the Loyalty Review Board of the Civil Service Commission. A panel of the Loyalty Review Board consisting of not less than three men heard the case and decided it on the basis of the com­ plete file, on briefs submitted, and oral arguments made by the appealing em­ ployee or applicant. Additional evidence could be submitted at the panel's discre­ tion. Upon reaching a decision, the panel made its advisory recommendation to the appropriate agency. While an employee was appealing an unfavorable finding by the agency board, he could not be removed until the Loyalty Review Board made its determination. However, the employee could be assigned to other duties or suspended pending such determination. After an unfavorable hearing, an employee could be permitted to resign, if mitigating circumstances were found and if the case did not seriously threaten national security. The same protection was afforded a new applicant, since he could not be suspended until the agency board made an unfavorable determination. SENSITIVE AGENCIES As we have already noted, Congress had selected certain agencies for more security protection than was afforded under the execu­ tive order. Congress conferred upon the heads of those agencies the power to summarily dismiss employees and to bar new applicants, that is, the power to dismiss or bar without referral to the Loyalty Review Board. These agencies had become known in officialese as the "sensitive agencies." They were the Atomic Energy Commission, the Department of Defense, the Department of the Army, the Department of the Navy, the Department of the Air Force, the Department of State, the Central Intelligence Agency, the Economic Cooperation Administra­ tion, and the Voice of America. Approximately 800,000 people were in the employ of these agencies. With the exception of the Department of the Army, the Atomic Energy Com­ mission, the Economic Cooperation Administration, and the Voice of America, 44 SECURITY AND LIBERTY these agencies employed the procedures outlined by the Loyalty Review Board in cases involving loyalty; this included the right to appeal to the Loyalty Review Board. In cases where the employee or applicant was regarded as a security risk, although not disloyal, the agencies afforded the security risk notice, hearing with counsel before a three-man board, and finally an appeal to the head of the agency, but no appeal to the Loyalty Review Board. The Department of the Army, the Atomic Energy Commission, the Economic Cooperation Administra­ tion, and the Voice of America treated disloyalty cases as security-risk cases. The procedures in each of the agencies followed closely the pattern employed by the Loyalty Review Board except for the right of appeal to a board outside the agency. The departments of the Navy and Air Force as well as the Army did not allow appeals to the Loyalty Review Board from military personnel even in loyalty cases. It is also noteworthy that the Army, Navy, and Air Force employed their respective intelligence arms as well as the FBI in gathering information on em­ ployees and applicants. RESULTS Under the general procedures outlined above, there were as many differences in implementation as there were agency boards.5 Suffice it here to recog­ nize that there were such differences within the general framework set forth here as well as marked differences in the quality of performance of the various boards. The 69th Annual Report 6 of the United States Civil Service Commission pro­ vided the following statistical summary of the working of the Truman security program through 19 52 : Loyalty forms checked 4,300,000 Related to employees on rolls when program began 1,800,000 Related to new and prospective employees 2,500,000 Cases referred to loyalty boards for consideration 22,251 Persons cleared by favorable decisions 13,395 Persons removed or denied employment on loyalty grounds 414 Loyalty proceedings discontinued because individuals left service or withdrew application 5,234 In process of adjudication 2,264 Considered by Department of Army under security laws before Department began to adjudicate cases under the loyalty program, 19 50 944

The Eisenhower Security Program It was apparent as soon as the 19 52 elections were over that there would be a new and tougher approach to the problem of keeping potential subversives out of the government. But even if there had not been a Republican victory, there would have been changes in the Truman program, for no one was really satisfied with it. President Truman himself became so seriously concerned over the lack of uniform standards and procedures employed in administrating his order that he asked the National Security Council to seek the help of the Civil Service Commission in making an investigation of the way the program was being ad­ ministered, and to advise him what changes were required. He urged them to consider "whether provision should be made for uniform standards and procedures and for central review of the decisions made in the various departments." Conforming to the President's request, the National Security Council turned the job over to the Interdepartmental Committee on Internal Security (ICIS) Control of Communists in Government Employment 45 which in turn set up an ICIS ad hoc group on the government employee security program. This committee competently and thoroughly examined the loyalty­ security program and made its report in April 1952. The Committee found that "the present confused situation" existed because there were actually three general programs in existence: These general programs relate to "suitability," "security," and ((loyalty." The ICIS believes .. . that it is extremely difficult, if not impossible, to draw clear lines of demarcation among these programs. This is particularly true in the case of ('employee security," inasmuch as the characteristics of individuals which make them "security risks" very often coincide with or approximate those factors relating to general suitability for employment m the Federal Service. The Committee urged that detailed study be made of Hthese three programs looking toward evolving a single general program to cover eligibility for employ­ ment in the Federal Service, whether on grounds of loyalty, security, or suitability." The report included a legion of specific recommendations for improvement of the program in effect until such time as the suggested study could be made. In August 19 52 the President gave the Civil Service Commission the task of formu­ lating an over-all program while directing departments and agencies which had security programs to "re-examine their procedures in the light of the findings and recommendations of the Interdepartmental Committee." Time ran out on the Truman Administration before the Civil Service Commission could complete this assignment. The incoming Administration was the beneficiary of whatever had been accomplished. Immediately upon taking office, Attorney General Brownell set to work to provide a program designed to Hrestore public confidence and to prevent con­ stant harassment of the loyal and devoted public servants employed by the United States Government." 7 A few months later, flanked by Messrs. McCarthy, Jenner, and Velde, three of the bitterest Republican critics of the "soft" Truman program, President Eisenhower promulgated the executive order which embodied the Attorney General's new program. Significantly, the President's three White House guests were enthusiastic about it. The order established a uniform program for all departments and agencies. This was accomplished by making "security" rather than "loyalty" its keystone. The new standard was that ((employment or retention in employment in the Federal Service" must be "clearly consistent with the interests of national secur­ ity." In sample regulations which accompanied the order it was indicated that "'national security' relates to the protection and preservation of the military, eco­ nomic, and productive strength of the United States, including the security of the Government in domestic and foreign affairs, against or from sabotage, and sub­ version, and any or all other illegal acts designed to weaken or destroy the United States." The criteria for determining a security-risk included all of those used in the Truman program for finding that there was "reasonable doubt" as to a person's loyalty plus these: 1. Behavior, activities, or associations which tend to show that the indi­ vidual is not reliable or trustworthy; 2. Deliberate misrepresentations, falsifications, or omissions of material facts on applications for employment; 3. Criminal, infamous, dishonest, immoral, or notoriously disgraceful con­ duct, habitual use of intoxicants to excess, drug addiction, or sexual perversion; 46 SECURITY AND LIBERTY 4. Adjudication of insanity, or treatment for serious mental or neurological disorder without satisfactory evidence of cure; 5. Facts which furnish reason to believe that the individual may be sub­ jected to coercion, influence, or pressure which may cause him to act contrary to the best interests of the national security.

The Eisenhower order abolished the Loyalty Review Board and placed squarely on the shoulders of the head of a department or agency responsibility "for establishing and maintaining within his department or agency an effective pro­ gram to insure that the employment of any civilian officer or employee within the department or agency is clearly consistent with the interests of national security.'' The order made it mandatory for agency heads to review all cases where there had been a full field investigation under the Truman order. Where they had not been "adjudicated under a security standard commensurate with that estab­ lished under this order," they were to be readjudicated. The Civil Service Commjssion was given the task of maintaining a "security­ investigation index," a file on all persons refused or dismissed from employment. Also the Commission was ordered to make a "continuing study of the manner in which the order is being implemented" and to report semiannually to the National Security Council. The Attorney General was requested to render advice to agency heads to enable them to "establish and maintain an appropriate employee-security pro­ gram." In accordance with this mandate, the Attorney General set forth in sample security regulations the procedures to be employed by the agencies. These consti­ tute the procedures currently in use. The personnel security officer of each agency evaluates investigation reports received from the Civil Service Commission or the FBI. He turns his evaluations over to the officer to whom has been delegated the agency head's authority to suspend. This officer makes an immediate determination whether or not to suspend the employee. Until very recently, if the decision was to suspend, the employee was immediately suspended and notified in writing of the reasons therefor as soon as possible. Under a recent Justice Department ruling, the em­ ployee may instead be transferred to a nonsensitive post pending the outcome of the agency investigation. The "accused" employee has the right to submit a statement and affidavits. These go to the legal officer. Both the legal officer and the personnel security officer review the case and make recommendations to the department or agency head. Where they disagree, they make separate recommen­ dations. The agency head then makes the final determination except where the employee is a citizen of the United States, has a permanent or indefinite ap­ pointment, and has completed the probationary period. Such persons are en­ titled to a hearing before a hearing board. The hearing board must be composed of employees from outside the agency in which the employee has worked. The Civil Service Commission maintains a panel from which board members are drawn. Under the Truman program, agency hearing boards were drawn from within the agency itself. Attorney General Brownell sharply criticized this prac­ tice on the grounds that it permitted an employee to appear before friends and colleagues. The procedures employed in such hearings are generally the same as those used previously in hearings before agency boards during the Truman Administration. Once a decision is reached, however, it is forwarded along with a record of the case to the head of the agency who must make the final decision; Control of Communists in Government Employment 47 there is no longer an opportunity to appeal beyond the agency to a central re­ view board. Two significant changes have been made in the program since its inception. One provides that an individual refusing to testify before a congressional com­ mittee on the grounds of self-incrimination cannot work for the government. Also, to meet the criticism that too often employees were suspended and kept waiting for long periods of time before given an opportunity to clear themselves, heads of departments or agencies must now notify the Civil Service Commission within ninety days what disposition has been made of cases involving full field investigations. Obviously, the Eisenhower order has made it easier to keep people out of the government and to dismiss those already in. All doubts are resolved in favor of national security and the standard and criteria are such as to make it relatively easier to find an employee or prospective employee wanting. It is not surprising then that the rate of dismissals has been higher in the last two years than ever before. By the end of 1954, the Civil Service Commission announced that it had discharged 3,002 as security risks and that 5,006 others had resigned while security checks were under way. Other figures: 2,096 had files containing information indicating, in varying degrees, subversive associations or membership in subversive organizations; 65 5 had files containing information indicating sex perversion; 2,649 had files containing information indicating conviction of felonies or mis­ demeanors; 4,417 had files containing other type of information falling within purview of the program. By March 31, 1955, 3,432 had been discharged as security risks and 5,447 had resigned while security checks were under way. 8 Significantly, when Philip Young, chairman of the Civil Service Commission, testified earlier in the year before a Senate committee, he refused to say that the persons whose loyalty records contained derogatory information of a subversive character were actually "Communists or subversives." Despite the optimism of Republican leaders when the program was launched, the sailing has not been smooth. There are those who, like Senator McCarthy, still feel that there are too many potential subversives in government, and there are those who, like Senator Johnston, feel that there are too many innocent vic­ tims. Right now the program is under the critical scrutiny of press, public, and Congress who suspect that there must be something wrong with the program as a consequence of the controversial Oppenheimer case, the confusing Ladejinsky case, and the patently unfair suspensions in the Radulovich, Chasanow, and Moss cases. The President, urged from all sides, even by one of his Cabinet members, to have an independent commission re-examine the program, has indicated that he is not convinced that it is advisable. In any case, Congress, the Department of Justice, and the New York City Bar Association each have embarked upon studies of the program.

American Employees of the United Nations In the closing days of the Truman Administration, a great public furor arose out of the incredible revelations by the Senate Internal Security Committee that Americans who were regarded as "bad security risks" by the State Department were employed by the United Nations. Of course, American citizens employed by the UN are not employees of the United States government. Yet it is apparent that the United States, or any other nation, should insist that its quota be made up from dependable citizens, for as Dean Acheson testified before a congressional committee, national interests are involved even if national security is not. Ap- 48 SECURITY AND LIBERTY parently, once the facts were disclosed, it was found that our administration and congressional leaders agreed with Trygve Lie, Secretary General of the UN, that "no one should serve in the Secretariat with respect to whom there is sub­ stantial evidence indicating subversive activities directed against his own Govern­ ment," particularly where the "host country" was involved.9 The machinery for keeping "security risks" out of the UN had been inadequate. In one of his last acts as President, Harry Truman issued an executive order requiring an investigation of Americans employed or about to be employed by the UN. The procedures outlined in the order were parallel to those applied to government employees in the Truman loyalty-security program. Final determination in each case had to be left to the UN. This order was later modified by President Eisen­ hower so that a special International Organizations Employees Loyalty Board composed of officers of the Civil Service Commission was established in the Commission to hear cases involving American UN employees in place of the defunct Loyalty Review Board. It is noteworthy that President Eisenhower did not change the standard set in the original order that advisory determinations "shall be whether or not, on all the evidence, there is reasonable doubt as to the loyalty of the person involved to the Government of the United States."

The Role of the FBI in the Loyalty-Security Programs The FBI has come in for severe criticism for the way it has played its role in the various programs. These criticisms stem largely either from a mistaken idea of the role of the FBI in the programs or from a misconception of what the FBI actually does. Critics claim that the reports which the FBI send to the agencies contain unsubstantiated charges, inconsequential data, gossip, and rumor which tend to reflect badly upon the person investigated. Clifford J. Durr, formerly one of the members of the Federal Communications Commission, called public attention to a FBI report which read in part, "the applicant was reported by an unidentified informant to have been a visitor in the residence of another individual who was reported by another unidentified source to have been identified by still another unidentified source with Communist activities." lO Mr. Hoover, in answer, explained that this was only part of a particular report.11 He also has made it clear that under the loyalty and security programs it was and is the FBI's job to collect data on employees and applicants and not to make charges or judgments. As Mr. Hoover explained to a Senate Subcommittee: I think that when the time comes that the Bureau must decide what shall go into a report and what shall not go into a report, then we are func­ tioning as a Gestapo. I think we must report accurately and in detail what any person tells us .... In the reports that we submit to other agencies, we do report on the reliability of the source of information, if we know it.1 2 Obviously, then, if a solid investigation yields only an assortment of gossip and unsubstantiated charges, it is not for the FBI to clear the person investigated nor to conceal the results of the investigation. In such a case, the agencies presumably have sufficient basis for clearing the investigated. Viewed more fairly the report cited by Mr. Durr is scrupulously honest. Oddly enough, those who criticize the FBI agents for reporting "everything" would be the first to object to the FBI abridging and editing the data which they receive, for they claim that "the average FBI agent can hardly be expected to possess the political education necessary to Control of Communists in Government Employment 49 distinguish between radicalism and subversion." Under the procedure employed it is not for the FBI agents to do so. It is their job only to obtain data for the loyalty boards to evaluate. Aspersions are cast upon the ability and integrity of FBI agents in collecting data. As has just been pointed out, it is suggested that FBI agents are politically naive; at the same time it is argued that "efficiency ratings tend to turn upon how much 'derogatory information' a particular in­ vestigator uncovers." In this connection, it is significant to note that every special agent of the FBI must be either a graduate of a resident law school and a member of the bar in good standing or a graduate from an accounting school possessing a certified public accountant's certificate. Each agent receives a "thorough and complete training in connection with collecting data pertinent to an investiga­ tion." As Mr. Hoover indicated, FBI agents should and do know better than to ask questions like, "Do you read the New Republic?" Although it has been alleged that FBI agents ask such questions, Mr. Hoover stated categorically that "whenever they have been willing to furnish identifying data which made in­ vestigation possible, it has been conclusively proven that it was not FBI agents who asked the questions." Ia The FBI is criticized for using paid informers. The use of the term "paid informer" has insidious implications which are not justified in fact. The FBI does not indiscriminately purchase information from any and all comers. The FBI's paid informers are semiofficial agents of the FBI who be­ come members of organizations like the Communist Party and keep the FBI advised of the activities of such groups. According to one such informer, the pay is hardly commensurate with the time and danger involved. On the whole, these agents have proved highly reliable. Regrettably there is evidence that this has not always been the case. The FBI has been accused of tapping wires to gather information in loyalty and security probes. Mr. Hoover has challenged anyone to show a single instance where a telephone was tapped in the investigation of a loyalty program case. He explained that wire tapping was employed in a very limited category of cases "with the express approval in each instance of the Attorney General of the United States, but only in cases involving sabotage, espionage, grave risks to internal security, or when human lives are in jeopardy. This is never done in the investigation of the loyalty of Federal employees." In this connection, it is im­ portant to note that the Coplan case involved espionage. This is the case usually cited to substantiate the charge of wire-tapping. In brief, it must be concluded that the FBI has been meticulous in perform­ ing its function in the loyalty and security programs so as to safeguard both liberty and security.

Evaluation of the Loyalty-Security Programs A good place to begin in evaluating the loyalty-security programs is to deter­ mine the nature of the "right" which they allegedly violate. Is it a "right" of such magnitude that its curtailment can only be justified by evidence that its exercise has created a clear and present danger? There are those who, like J. Edgar Hoover, maintain that the employee loyalty program abridged no one's "rights" because "a government job is a matter of privilege and not of right." 14 In recent years there has been ample judicial opinion giving substantial backing to such a view. Those who hold this view place heavy reliance upon Justice Holmes's opinion in an old and important case: 50 SECURITY AND ·LIBERTY The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonabl~ condition upon holding offices within its control.1 5 But note Holmes's words carefully. He said the petitioner has no constitutional right to be a policeman. Under our scheme of government, in deciding cases involving people's con­ stitutional rights, judges must interest themselves primarily with the Constitution. And it goes without saying that no one has a constitutional right to be a federal government employee. Nevertheless, to deprive a man arbitrarily of the opportun­ ity to work in government in a democracy is a transgression of an important right. Holmes in his oft-quoted opinion stated that the city may impose any reasonable condition upon holding offices within its control. Holmes did not say that a man has no right to be a policeman nor did he go so far as Seth Richard­ son did in stating that the government was entitled to discharge employees for reasons which seem sufficient to the government just as any private employer. The most that can be made of the Holmes decision is that the government is entitled to make reasonable regulations restricting employment in government. The Supreme Court found in 1945 that to proscribe permanently anyone from the opportunity to serve the government is "punishment, and of a most serious type." 16 Further, the body of law and rules affecting the classified civil service which have been in effect for many years belies the idea that the government is just like any private employer. Few private employers are so circumscribed by rules and regulations aimed at giving applicants equal opportunity to the jobs available and few employees are so well protected by rules and regulations against discrimination and arbitrary dismissals. One might well surmise that such law and regulations reflect the attitude of the American people generally that every citizen should have an equal opportunity to seek a job with the government and have the right to hold the job once obtained unless there are compelling reasons against it. If it can be demonstrated that the loyalty-security programs have been predi­ cated upon a clear and present danger, then there could be no question of the propriety or reasonableness of taking appropriate action aimed at meeting that danger. The only question remaining would be the appropriateness of the specific programs. First, On the basis of the facts, did and do disloyal employees constitute a clear and present danger to the United States? In 1946, the President's Temporary Commission on Employee Loyalty re­ ported: While the Commission believes that the employment of disloyal or sub­ versive persons presents more than a speculative threat to our system of government, it is unable, based on the facts presented to it, to state with any certainty how far reaching that threat is. Certainly, the recent Canadian Espionage expose, the Communist Party Line activities of some of the leaders and some of the members of a government employee organization, and current disclosures of disloyal employees provide sufficient evidence to convince a fair minded person that a threat exists. Control of Communists in Government Employment 51 The Commission concluded its report by advocating that action be taken to protect us from "a danger which can develop into a rea] threat to our national security." Critics of the programs have made much of the fact that the Commission did not categorically claim that there was a clear and present danger. They pointed out further that it was upon this Commission's recommendation that President Truman issued the executive order which set the programs in motion. It might be argued with considerable validity that the loyalty program was set in motion too soon-before the facts warranted the conclusion that disloyal employees constituted a clear and present danger. But since 1946 there have been too many dramatic disclosures of disloyal acts on the part of employees of the government to leave doubt as to the danger. Some of these acts and their effects were described briefly in Chapter One. In spite of this unhappy record of perfidy, there are those who would still argue that these' "isolated" cases do not provide proof that disloyal employees ever constituted a real danger to the United States. But a review of the facts calls for a finding otherwise. In light of the facts, something had to be done to cut down the possibilities of espionage and policy formulation by faithless government employees. Have the loyalty-security programs been an appropriate remedy for meeting the danger? Appropriateness must be determined by how well the programs recon­ ciled the competing demands of national security and individual rights. Ideally, the programs should have provided adequate protection to the government at no significant sacrifice of individual rights. Judging from the statements and writings of critics, the programs have been far from ideal. They have been criticized severely by those who believed that the program afforded too little protection for national security and by those who felt that the programs have entailed an un­ justifiable sacrifice of individual rights. Much of the difficulty has been a con­ sequence of confusion about the legitimate aims and purposes of the programs, a confusion which had been engendered by the original Truman order. Under that order, the only grounds for action against an employee or applicant was that "on all evidence, reasonable grounds exist for belief that the person involved is disloyal to the government of the United States." Disloyalty is a difficult thing to prove. Although Seth Richardson indicated that the original Loyalty Review Board had difficulty in defining "disloyalty," there is probably little disagreement as to what "disloyalty" actually is. The dictionary definition, ''violation of al­ legiance," would undoubtedly satisfy most of us. The rub comes in trying to determine what constitutes proof of "a violation of allegiance." Acceptable criteria for determining disloyalty are overt acts of espionage, sabotage, sedition, and treason which give substantial proof of disloyalty, proof that would stand up in a court of law. However, such actions are unlawful, and it goes without saying, therefore, that even without a loyalty program, employees proven to be disloyal could have been apprehended, dismissed, and worse. As critics have pointed out, the loyalty program added nothing where real proof of an em­ ployee's or applicant's disloyalty existed. Actually, the programs have been aimed at something more than dismissing and barring disloyal people from government work, since there were adequate laws to take care of such persons prior to the inception of the loyalty program. The program obviously was aimed at keeping out of the government people who might be disloyal, if given the opportunity. For example, if Employee X is an active member of a group designated by the Attorney General as Communist, 52 SECURITY AND LIBERTY there is good grounds for concern that, if afforded the opportunity, Employee X might prove his disloyalty by transmitting secret data to the Soviet Union even though there is no substantial proof of his disloyalty to date. Yet the only grounds on which he could be removed under the original executive order was disloyalty. Consequently, loyalty boards did not establish new and less stringent criteria for disloyalty but rather they established the bases for regarding a man as a poor security risk. By and large, the sensitive agencies which had the power of summary removal and thus were not bound to prove disloyalty in order to dismiss had from the beginning recognized the distinction between disloyal persons and security risks. For example, the Atomic Energy Commission in its Personnel Security Clearance Program employed the term "security risk" rather than "disloyal employee." The Air Force Department in its Civilian Personnel Loyalty and Security Program made a distinction between a disloyal person and a security risk. An Air Force employee was subject to dismissal as a security risk if "on all the evidence reasonable grounds" existed for the belief that immediate removal of the person involved was warranted by the demands of National Security. The type of evidence required to demonstrate that a man is a security risk, by definition, need not be so conclusive as evidence to prove dis­ loyalty. A man's associations and personal habits (like heavy drinking) may well be adequate reason for not allowing him to work on secret data even though associations and habits do not prove disloyalty. To "convict" a man of dis­ loyalty merely on the basis of suspicion is both unjust and un-American. Yet every time a person was dismissed or barred from government employment as being disloyal without adequate proof of disloyalty that was precisely what was done. At its inception, it was generally felt that the chief virtue of the Eisenhower program would be that it would make clear to the public that security risks were not disloyal. So astute an observer of the contemporary scene as Walter Lippmann could write, "This new standard will make it easier to refuse employment and to dismiss in that it will no longer be necessary to destroy a man by branding him as disloyal." 17 Perhaps eventually this might have come to pass and might still come to pass. However, Republican orators in the election year of 1954 did much to assure the public tliat security risks are disloyaJ.ls The starkest example of such oratory is the address of Postmaster General Arthur Summerfield in which he said: "Almost 2,200 people who are security risks are no longer using your tax money. I am here to tell you we are not hiring any new ones .... Somehow I do not feel amiably inclined toward people who make treason a preoccupation." The loyalty-security programs have been scored by critics on the grounds that their procedures have not been fair. Interestingly enough, the courts have decided that the constitutional requirement of due process is not involved since the due­ process clause of the Fifth Amendment applies only "to judicial proceedings and to proceedings of a quasi-judicial nature," that it does not "apply to the employer­ employee relationship as between the government and its employees," and also because the employee or applicant is not deprived of "life, liberty or property" as those terms have been defined by the courts.19 A large measure of the criticism of the programs on procedural grounds would be mitigated by job transfer for the poor security risk rather than dismissal. Transfer with equal pay and rank does not constitute punishment of the magnitude of dismissal with the label "disloyal." Nevertheless, to label a man as a "security risk," while not making much difference, perhaps, in the short run, may well mean no future promotions and no policy- Control of Communists in Government Employment 53 making jobs. Such limitations constitute punishment of a real sort and should not be acceptable unless they are set after a fair hearing. Critics claim that hearings of the boards have not been fair to the "accused" for the following reasons: 1. The "accused" is not confronted by his "accuser(s)." We Americans have long regarded it as desirable that a person accused of anything have the opportu­ nity to see his accuser and cross-examine him. 20 Yet this opportunity has not been available to the "accused" in the security programs. J. Edgar Hoover has given us the reasons for such a policy: ... whenever an FBI agent interviews a person who says that he is giving information in strict confidence, his confidence must be respected. Like­ wise ... we have highly confidential sources of information which, if dis­ closed, would not only deprive the government of valuable information bearing upon internal security but which also might result in physical in­ jury to the informant.21 The FBI and the Loyalty Review Board attempted to mitigate the severe implica­ tions of nonconfrontation. FBI officials appeared before hearing boards to testify concerning the reliability of confidential informants quoted in FBI reports and agents gathering reports added a phrase or a clause "which will enable the reader to make his own decision as to the credibility of the source." The Loyalty Review Board instructed all boards to take into consideration the fact that the applicant or employee may have been handicapped by nonconfrontation. Certainly a good case can be made for keeping the semiofficial sources of the FBI anonymous. The informer who under the auspices of the FBI has become a member of the Communist Party must be protected, of course. The FBI, however, should have exercised and actually did exercise the greatest of care that such informers were reliable and able. The casual informer should not have been encouraged too much. Poll takers have told us about the very human reaction of an interviewee to give the responses that he feels the interviewer wants. A situation in which an FBI agent presents himself and asks questions about someone might give the interviewee the idea that the agent wants derogatory information. J. Edgar Hoover suggested to the Loyalty Review Board that when the FBI solicits confidential information it cannot then break that confidence without jeopardizing the repu­ tation of the FBI. This is easily understood. He did, however, offer the Board an alternative: We could explain our mission to each person and explain that he might be called as a witness and be required to testify in public and then report only such information as was furnished without any further restrictions as to source. 1\IIr. Hoover made it clear that it was up to the Board to decide which alternative was to be employed. The second alternative obviously would afford greater pro­ tection for individual rights. Persons would be less reluctant to make reckless charges; yet the interests of national security can be safeguarded by having FBI agents instruct interviewees on the importance of giving information and appearing as witnesses in the event that there was substance to their suspicions. How can a person adequately defend himself without an opportunity to cross­ examine his accuser? 2. A final determination unfavorable to the "accused" is often made merely 54 SECURITY AND LIBERTY on the basis of uguilt by association." As was pointed out earlier, under the loyalty program, the Hatch Act provided for mandatory dismissal or refusal of employ­ ment where an employee or applicant belonged to certain organizations. The Truman order stipulated that one of the standards to be used in determining whether there were reasonable grounds for disloyalty was "membership in, affilia­ tion with or sympathetic association" in organizations deemed "totalitarian, fas­ cist, communist, or subversive" by the Attorney General. To find a person ''dis­ loyal" and to deprive him. of a job merely on the basi~ of his membership in an organization is "guilt by association" in its worst form. "Guilt by association" has long been regarded by the Supreme Court as a departure from traditional concepts of justice.22 The Hatch Act then went too far, for it did not require that it be proved that the individual himself advocated overthrow of the government by force and violence; it was sufficient that the individual belonged to an or­ ganization which in the opinion of the Attorney General so advocated. In no case should unfavorable determinations be made regarding security risks only on the basis of membership in a proscribed organization. Justice Jackson has argued that "personal guilt may be incurred by joining a conspiracy," that "the act of asso­ ciation makes one responsible for the acts of others committed in pursuance of the association," that "it is wholly a question of the sufficiency of evidence of . association to imply conspiracy ...." 23 Where an employee or applicant is engaged in a conspiracy to commit illegal acts, he could and should be tried in a court of law under the appropriate statute. But loyalty and security boards have never undertaken to prove that suspected employees were engaging in a criminal con­ spiracy; it would be as difficult to prove as disloyalty. Security boards may be justified in using associations to determine whether or not a person is a security risk but not whether he is disloyal. For example, if an employee is active in an organization whose aims are inimicable to the United States and whose aims he understands full well, he certainly is a security risk. A fair hearing would give the employee ample opportunity to explain his participation in such an organization. Presumably, a satisfactory explanation such as his not knowing the objectives of the organization would clear him where there are no other grounds for suspicion. 3. Organizations proscribed by the Attorney General were not accorded hear­ ings. Critics protested that in a program where association plays such a crucial part in a determination unfavorable to the employee or applicant, it was ludicrous that organizations were not afforded notice and a hearing prior to being designated as totalitarian, fascist, communist or subversive. They pointed out that a person could have suffered punishment as a consequence of association with an organiza­ tion which was arbitrarily classified by the Attorney General. Indeed, organizations have protested their classifications. The highly regarded United States Court of Appeals for the District of Columbia found that the Constitution was no bar to the procedure employed by the Attorney General, since the organizations were not deprived of life, liberty, or property.24 However, Judge Edgerton in dissent called attention to the provision of the Truman order which required the At­ torney General to classify organizations only after appropriate investigation and determination. The Supreme Court later reversed this decision of the Court of Appeals.25 The Justice Department had argued that the Truman order "contains no basis for a hearing or for the release of any data concerning the designation of organiza­ tions." We were assured that no designation had been made "without a thorough examination of all the facts available to the Department from all sources and a Control of Communists in Government Employment 55 careful evaluation of all these facts," that the "original findings were reviewed by two separate committees and ultimately by the Attorney General himself prior to the making of the designation." 26 Nowhere did the Justice Department explain its reluctance to afford proscribed organizations the opportunity of notice and hear­ ing. Yet there appeared to be no good reason for not doing so. Certainly sources of information could have been protected even with a hearing. In accordance with the Supreme Court decision, the Justice Department now provides for notice and hearing for organizations before citation. 4. There is too much secrecy surrounding all board proceedings at the hearing stage. In regard to the question of giving publicity to hearings, loyalty-security boards are like congressional committees: they are damned if they do and damned if they do not. If they give publicity, they are sure to be charged with character assassination; when they do not give publicity, they are denounced as a "star cham­ ber." The apparent reason for secrecy is to protect the individual. On the other hand, a person may well feel that publicity affords him protection against arbi­ trariness. As has been suggested elsewhere a happy solution would be to allow the "accused" the opportunity to choose between an open or private hearing.

Conclusions It is apparent that the national government has been obliged to take ap­ propriate measures to meet the danger posed by the disloyal and the security risks. It is also apparent that the problem of determining who is and who is not a security risk is the kind that can never be solved ideally in practice. There are bound to be individual cases of injustice. These, of course, should be deplored and every effort should be made to prevent them from occurring. The record and common sense indicates that there was no wanton disregard of individual rights in the several loyalty and security programs. Both Presidents involved en­ deavored to maintain a course which would provide the maximum in both security and liberty. The Executive Orders and the regulations derived from them were on their face good and honest efforts to solve the problem. Yet something has been amiss from the beginning of the programs. The individual cases where an obvious injustice has been done has mounted alarmingly high. Equally distressing is the fact that employee morale is dangerously low. Senator Wiley, upon finishing his stint as chairn1an of the Senate Foreign Relations Committee, recently re­ ported that 97 per cent of the foreign service officers felt that morale in the service was poor; they attributed a substantial part of the cause to the security program. Even more shocking has been the effect of the security program in the substantive operations of the government. Dr. Vannevar Bush, who helped organize our scientific effort in World War II, has warned that the security program has effectively hindered our defense efforts by creating confusion and distrust. Although it is hard to quantify, there can be no doubt that the loyalty­ security programs have had an adverse effect on the decisions and the reports made by government employees who have been intimidated. It is terrifying to speculate on the accumulative impact of timid decision-making and poor re­ porting. True, these are effects of irresponsible attacks on employees by individual congressmen and congressional committees as well as the loyalty-security pro­ grams. But in the last analysis the short-comings of the programs have created doubt, the climate in which irresponsible attacks could flourish. CHAPTER FIVE

Control of Communists in Organized Labor

One of the legacies bequeathed to the Eisenhower Administration and the Republican-controlled 83rd Congress by their predecessors was the problem of Communists in labor unions. Secretary of Labor Maurice Tobin testified as late as 19 52 that "the threat to our national security represented by Com­ munist domination of certain unions was so serious that legislative action was necessary." Yet the National Government on the whole was slow to move against Communists in labor unions. In 1947, the 80th Congress enacted into law, over a presidential veto, the Taft-Hartley Act. Although the Act was not intended primarily as a measure for controlling subversive activity, it clearly marked out organized labor for special control in that regard. The Act provides that: No investigation shall be made by the [National Labor Relations] Board of any question affecting commerce concerning the representation of employees, raised by a labor organization ... unless there is on file with the Board an affidavit executed contemporaneously or within the pre­ ceding twelve month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Com­ munist party, or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States government by force or by any illegal or unconstitutional methods. Why was organized labor singled out by Congress as an area needing special control? On the face of it, it would have appeared unnecessary to enact a measure aimed at keeping the Communists (at most 3 5,000 labor-union people) out of the leadership of the organized labor movement (in excess of 13,000,000 people) at that time.1 Strangely enough, little effort was made during congres­ sional debates to justify the measure. The House Committee on Education and Labor in reporting out the bill stated simply that "at least 11 great national unions and a large number of the local unions seem to have fallen into the hands of the Communists ... " (author's italics); the Senate Committee on Labor and Public Welfare in reporting its counterpart of the House bill did not originally provide for a non-Communist affidavit. The only justification offered by the late Senator Taft, who a year earlier gave indication of concern for civil liberty in thwarting President Truman's attempted draft of striking railroad workers, was: Why should an individual officer refuse to sign such an affidavit if he is not a Communist? If he is a Communist why should the union be 56 Control of Communists in Organized Labor 57 certified? Why shouldn't every labor union make Communists ineligible for election as officers? There were also those who felt, as Representative Rankin did, that there was no need to determine whether or not Communist leadership in labor unions posed a threat to national security, that Communists should be forced out of their positions as a matter of principle. While we are challenging the spread of Communism abroad, we should drive this vicious influence from American soil by forcing every Communist off the Federal pay roll, out of our educational institutions, off the radio, out of labor unions, and from every position of trust or confidence which they can use to spread their poisonous propaganda. Contrary to the opinion of Ch1ef Justice Vinson, expressed in CIO v. Douds, that prior to June 1947 "substantial amounts of evidence were presented to various committees of Congress, including the committees immediately con­ cerned with labor legislation, that Communist leaders of labor unions had in the past and would continue in the future to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support of the policies of a foreign government," congressional hearings held prior to the enactment of Taft-Hartley were in this regard inconclusive and unsubstantial. Further, the testimony cited by the Chief Justice as showing that the strike at the Milwaukee plant of the Allis-Chalmers Manufacturing Company in 1941 "had been called solely in obedience to Party orders for the purpose of starting the 'snowballing of strikes' in defense plants" was the testi­ mony of Louis Budenz only, a witness whose reliability is open to serious doubts.2 It is noteworthy that the clearest and most forecful rationale for the need of control in the area of organized labor prior to enactment of the Taft-Hartley Act came from indictments of the Communists in labor by non-Communist labor leaders. David Dubinsky, who had long been an arch foe of the Com­ munists, had pointed out that despite their small numbers, the Communists by efficient and ruthless measures had been able to win a large measure of control in certain important unions. Joseph Curran, president of the National Maritime Union, claimed that 500 Communist Party members dominated 80,000 members of the CIO's National Maritime Union by capturing 107 out of 150 elective offices in the union. According to Dubinsky, as of early 194 7, Communists dominated twelve to fifteen of the forty national CIO unions.

Evidence of Communist Domination of Certain Unions Since 194 7 convincing, if not conclusive, proof of Communist domination of certain unions has been manifested in a variety of ways. In late 1949 and 19 50, the CIO set up nine executive board committees to investigate the charges that nine of its affiliates were consistently directed "toward the achieve­ ment of the program of the purposes of the Communist Party rather than the objectives set forth in the constitution of the CIO." After extensive hearings the board committee dealing with charges against the United Office and Pro­ fessional Workers of America union found that "never in the history of the UOPWA has any policy ever been adopted which in any way runs counter to the policies of the Communist Party or to the interest of the Soviet Union as those interests are reflected in the program of the Communist Party." 3 In regard 58 SECURITY AND LIBERTY to the Food, Tobacco, Agricultural, and Allied Workers of America ( FTA), another board committee declared that the evidence was inescapable that by "their dedication to the purposes and program of the Communist Party, the leadership of the FTA has rendered the union unworthy of and unqualified for their certificate of affiliation with the CIO." Still another board committee found that the National Union of Marine Cooks and Stewards had "followed the tortuous paths of Communist policy for years." The American Communica­ tions Association was expelled from the CIO on the grounds that its contra­ dictory positions on public and union policy could have only resulted from "subservience to the interests of the Communist Party, and through that party, to the Soviet Union." The United Furniture \Vorkers were given a clean bill of health as a consequence of that union's elections in June 1952, which had resulted in a change of leadership and change in policy by an overwhelming vote. In contrast, board committees found that the International Fur and Leather Workers Union, the International Longshoremen's and Warehouse­ men's Union, the International Union of 1\tfine, Mill and Sm.elter Workers, and the United Public Workers of America had all been dominated by Com­ munists who pursued the interests of the Soviet Union. In each case, the board committees carefully traced the Communist Party line and demonstrated how each of the eight unions which were ousted had followed the line without deviation. For example, the board investigating the UOPWA examined the union's publications, reports of officers, and convention proceedings and found that from 19}8 to September 1939 the union had supported the adminis­ tration's policy of quarantining the aggressor nations and giving aid to their victims. After September 1939, the UOPWA, just as the Communist Party, sharply reversed its policy to oppose all aid to the beleaguered nations opposing Adolph Hitler; this, of course, was the period of the Nazi-Communist rap­ prochement. Once the Soviet Union was attacked by the Nazis, the UOPWA urged "full aid to Britain and Soviet Russia." After Pearl Harbor, the UOPWA strongly advocated an immediate opening of the second front in Europe as did the Communists. In 1946, the union became highly critical of American foreign policy, charging that big business was pushing the United States toward war with Russia. The general executive board endorsed the promotion and sale of The Great Conspiracy, a book whose thesis was that elements in the United States were seeking to provoke a war with Russia. President James Durkin, in a speech before the union's 1948 convention, made it clear that he advocated the policy of supporting Communists in unions. To comply with the oath requirement of the Taft-Hartley Act, the leadership of the union was forced to juggle offices and change the union constitution in order that "vice presidents" could become "directors" and, therefore, not have to sign an oath. The union advocated withdrawal of United States troops from China and Greece, opposed the Truman Doctrine, the Marshall Plan, and the Atlantic Pact, all of which coincided with the Communist Party line. Union officials were in all cases offered the opportunity to refute the charges against them. Where they did testify or offer statements, the boards were not sufficiently impressed to decide that the similarity between union policy and Communist Party policy was coincidental. There has been other impressive evidence of Communist domination of certain unions. Some union leaders resigned from the Party in order to sign Taft-Hartley affidavits. A Federal grand jury recommended that the National Control of Communists m Organized Labor )9 Labor Relations Board revoke the certification of four independent labor unions because thirteen of their officials refused to reaffirm their non-Com­ munist affidavits before the jury. A stream of self-professed ex-Communists appeared before congressional committees to identify certain labor leaders as active Communist Party members. Most of those who were identified as Communists refused to answer pertinent questions which would have made clear their relationship (or lack of it) to the Communist Party. They chose instead to invoke their right not to incriminate themselves. There can be no doubt that prior to the Cold War, Communists had been eminently successful in achieving positions of leadership in certain unions.

How It Happened Communists have always regarded labor unions as a fertile and strategic field for recruitment; fertile, because one who has a Marxist frame of reference considers the workers in a capitalist economy to be the element of that society most susceptible to the blandishments of the Communist Party; strategic, because control of organized labor would give the Communists a powerful in­ strument to wield in the class struggle. Conditions were ripe for Communist penetration in trade unions in the depression which began in 1929. During this period Communism was not generally regarded with alarm as it is today and union leaders thought they could use the Communists for their own purposes. Union organizing is often a tough and dangerous business. Where the price of organizing activity may be a cracked skull at worst or abuse of one kind or another at best, organizers must be zealous people. The Communists had this zeal. Non-Communist labor leaders believed that the zealots could be put to good use in organizing the mass production industries; they were also sure that they could control the Communists. This attitude is illustrated dramat­ ically by the answer John L. Lewis allegedly gave to David Dubinsky when Dubinsky warned that he (Lewis) was courting disaster by making use of Communist organizers at that time: "Dave, who gets the bird-the hunter or the dog?" 4 The zeal that Communists carried into their organizing activities they applied to efforts to control the union. Their tactics are well summed .up in this quotation: The disciplined core operates on the basis of personal contacts and direct individual solicitation .... As against the ordinary union members, often indifferent to union business, the Communist group functions as a disciplined body and is constantly exhorted to attend to every duty. At a trade union meeting or convention, the Party members are well organized in advance ... their policies and strategy thoroughly mapped out.... They arrive early and stay late. They join freely in argument and parliamentary maneuvers for which they are trained .... Frequently they delay a vote on important ques­ tions until the early hours of the morning, by which time the non-left wingers may have left the meeting.5 Thus, against a backdrop of indifference manifested by the rank and file in the unions, acquiescence or lack of leadership on the part of non-Communist leaders, Communists were able to achieve a dominating position far out of proportion to their numerical strength in too many unions. 60 SECURITY AND LIBERTY

The Democratic Approach, 1948-1952 ENFORCEMENT OF TAFT-HARTLEY Many union leaders initially refused to file the affidavits required by the Taft-Hartley Act. Most of them were not Com­ munists, of course, but refused to file as a matter of principle. They felt that the provision had been a slur on the loyalty of laboring men generally. Since the law denied the National Labor Relations Board the power to investigate "any ques­ tion affecting commerce concerning the representation of employees, raised by a labor organization" whose officers did not file an affidavit, the Board felt that it could not process any case brought by unions whose officers did not comply. Subsequently, the Board ruled that such unions could not be placed on the ballot or certified as bargaining agents; this rendered it impossible for them to win union shop authorization.7 While the Board did process unfair-practices charges against such a union, the Board did not process unfair-practices charges brought by the union. Noncompliance by union officers complicated the union's bargaining activ­ ity, for an employer could refuse to bargain on the basis of the noncompliance. The disadvantages of noncompliance became so apparent that many unions in­ sisted that their leaders comply. Non-Communist leaders who originally objected to complying on principle later felt impelled to do so to save their unions from destruction. Yet in spite of this, Communists managed to maintain leadership in some unions without signing the oath, because their employers continued to bar­ gain with them. The law did not bar such unions from recognition if they repre­ sented the majority of the employees nor did the law prevent such a union from striking to achieve recognition. Nor, according to a National Labor Relations Board ruling, could an employer work to unseat a recognized labor union, even if there was reason to believe it was Communist dominated. It soon became apparent that Taft-Hartley was not going to be much help in destroying Communist influence in organized labor. Union leaders who had demonstrated an affinity to Communism began signing affidavits. For a long time the National Labor Relations Board felt that it did not have the power to question the validity of the affidavits. When finally prodded into making a test case, the courts supported the original contention of the Board. Also, known Communists nominally resigned from the Party prior to signing affidavits and some unions revised their constitutions to accommodate the shuffiing of titles so that certain leaders could retain leadership in the unions while nominally not officers. Nor was it easy to obtain perjury prosecutions under the law. Former Attorney General J. Howard McGrath indicated that the wording of the oath requirement in the present tense had made prosecution for perjury difficult if not impossible. By the end of 19 52, only one union officer had been convicted for falsely signing an affidavit. Ironically, at the close of 19 52, the House Un-American Activities Committee found that affidavit requirement had stymied efforts to drive the Communists out oi- labor: This provision of law, after a start as intended by its authors, is now work­ ing to the benefit of members of the Communist Party engaged in the field of labor. Scores of Union Officials who have filed non-Communist affidavits, and who have been witnesses before your committee and Federal grand juries, have refused, on the grounds of possible self-incrimination, to answer Control of Communists in Organized Labor 61 questions relative to their Communist affiliation. Evidence before the Com­ mittee, conclusively shows that certain of these union officials are still affili­ ated with the Communist Party, though they have non-Communist affidavits on file. Many workers cannot understand why these Communists have not been prosecuted for filing fraudulent affidavits, but this failure to prosecute is understandable when we realize that an individual, in signing the non­ Communist affidavit, swears only that he is not a member of the Communist Party on the day he affixes his signature. He can be, and in most cases is, a member of the Communist Party on the day before and the day after he signs the affidavit. In addition to enjoying the facilities of the NLRB, the Com­ munist union leaders, as a result of their filing the non-Communist affidavit, have an argument to use against those who claim that they are Communists or that their labor unions are Communist-dominated. The Communist labor leader answers that he has signed a non-Communist affidavit and that cer­ tainly he would be prosecuted if he were a Communist. The average worker does not consider the above technicality, and the Communists win an argu­ ment and support.7

OTHER CONTROlS In September 1948, the Atomic Energy Commission issued an order directing the General Electric Company not to recognize the United Electrical, Radio and Machine Workers of America, CIO, as the bar­ gaining representative of any persons to be employed at the new Knolls Atomic Power Laboratory, Schenectady, N.Y.s The Atomic Energy Commission stated that the order was based upon "information concerning alleged Communist affiliation or association of various officers of UE" coupled with the failure of these officers to file non-Communist affidavits. It was revealed later in testimony by Oscar Smith, deputy director of organization of the Atomic Energy Commission, that the AEC had relied upon "official publications of the Com­ munist Party" which made it clear that ttit is an objective on the part of the Communist Party to infiltrate trade-unions." 9 The Commission subsequently wrote to Albert J. Fitzgerald, general president of the UE, on Oct. 6 and Oct. 22, 1948, regarding the Commission's action urging that the UE help clear up the matter or further steps would have to be taken. President Fitzgerald made it clear in his response that the officers of the UE would not answer questions regarding their loyalty and associations with Communist Party organizations. As a consequence, the Atomic Energy Commission on Nov. 1, 1948, directed the General Electric Company to withdraw and withhold recognition from the UE. It is here signifi­ cant to note that from its inception the AEC had investigated the employees of AEC contractors, as required by the Atomic Energy Act of 1946; the Commission, however, logically did not regard union leaders as employees of the contractors. The Department of Defense followed suit in December 1949 when it set up the requirement that the employees of military contractors must be cleared if they have classified data available to them in connection with their work.10 The services through 19 52 made no provision for checking union officials who visited but did not actually work in the plants: indeed, as Colonel Barlow, chief of the Security and Training Corps, Intelligence Division, Headquarters, Department of the Army, testified, the services felt that they did not have the authority to investigate any civilian unless he was working for the services, in spite of the fact that union officials did have the right in certain instances in negotiating contracts, in ad­ justing grievances, and in the administration of the affairs of the union to inspect jobs which were located in classified working facilities. In accordance with the 62 SECURITY AND LIBERTY Magnuson Act of 19 50 and the appropriate executive orders, the Coast Guard undertook the task of screening merchant seamen to insure that the presence of an individual "on board a vessel, or within a waterfront facility would not be inimical to the security of the United States." Committees of Congress sought to exercise still another kind of control over Communists in labor unions by holding hearings with the express or implicit pur­ pose of publicizing the alleged and proven Communist ties of certai_n labor leaders. Committee members hoped that such efforts would result in the voting . out of office by the rank and file of the unions those leaders who were shown to be Party-liners. An illustration of this was the declaration of purpose of the Un­ American Activities Committee of the 80th Congress and of the Subcommittee to Investigate the Administration of the Internal Security Act and Other Internal Laws of the Senate Judiciary Committee which were cited earlier. Other commit­ tees which engaged in this activity were the Special Subcommittee of the House Committee on Education and Labor, the Subcommittee on Labor and Labor­ Management Relations of the Senate Committee on Labor and Public Welfare, and special subcommittees of the Senate Judiciary Committee.

The Republican Approach, 1953-1955 Immediately upon taking office, Attorney General Brownell sought to indict and convict labor leaders who were suspected of perjuring themselves in signing non-Communists affidavits. The Department of Justice carefully investigated a large number of union officials. Undoubtedly, the Attorney General at first felt, along with other Republicans, that his predecessors had missed some good bets because of their alleged "softness." In two years, however, only three convictions and four indictments were obtained. And Mr. Brownell felt compelled to ask Congress for new legislation on the grounds that "there is no adequate provision of law" by which he could "go after" Communist-dominated unions.11 Republican leaders generally agreed with the Attorney General that a new ap­ proach was necessary. Even Senator Taft in an interview as early as April 1953 stated: "I would like to get rid of it [the oath requirement] and develop some other method by which Communist-dominated unions could be excluded from bargaining." 12 Efforts to develop a new method culminated in the amendment of the Internal Security Act of 1950. This amendment comprised the main provi­ sions of the Communist Control Act of 1954. The Attorney General may now petition the Subversive Activities Control Board to determine that an organiza­ tion is a "Communist-infiltrated organization." A Communist-infiltrated organiza­ tion is defined as ... any organization in the United States (other than a Communist-action organization or a Communist-front organization) which (a) is substantially directed, dominated, or controlled by an individual or individuals who are, or who within three years have been actively engaged, in knowingly giving aid or support to a Communist-action organization, a Communist foreign government, or the world Communist movement referred to in Section 2 of this title and is knowingly serving, or within three years has knowingly served as a means for (I) the giving of aid or support to any such organiza­ tion, government or movement, or (II) the impairment of the military strength of the United States or its industrial capacity to furnish logistical or other material support required by its armed forces: provided, however, Control of Communists in Organized Labor 63 that any labor organization which is an affiliate in good standing of a national federation or other labor organization whose policies and activities have been directed to opposing Communist organizations, any Communist for­ eign government, or the world Communist movement shall be presumed prima facie not be a "Communist-infiltrated organization." Among the criteria which the Board must employ in determining whether any organization is Communist-infiltrated are the extent to which the effective man­ agement of the organization has been conducted by one or more individuals involved with the Communist movement, the extent to which the policies of the organization have for the past three years been formulated by agents of the Com­ munist movement, and the extent to which the organization has promoted the Communist movement. Once a labor union is found to be a Communist infiltrated organization, it loses all rights and privileges accorded labor unions under current law and those who remain members cannot work in defense facilities. Further, under the amended law no one who belongs to a registered Communist organiza­ tion, that is, a Communist-front, -action, or -infiltrated organization, can hold office in a union. The Justice Department moved swiftly to determine what unions should be brought before the Subversive Activities Control Board. The Attorney General is optimistic about the eventual effectiveness of the new legislation but feels that a good deal of time and effort will be required before the first cases will be ready. To date only one union has been cited.13 Early Administration efforts to safeguard defense plants centered around the proposed Defense Facilities Protection Act of 1954. Had the bill been enacted, the President would have been empowered to prescribe by executive order rules and regulations to deny access to all defense facilities to those "likely to commit sabotage, espionage, or other subversive acts." Organized labor opposed the bill because they felt that it failed to provide "necessary safeguards to protect indi­ viduals." Apparently, enough Congressmen felt the same way, as the bill did not become law. In lieu of such legislation, the Armed Services moved to tighten the industry security program. They issued comprehensive joint regulations in October 19 53 ~ requiring contractors in key industries to maintain a high standard of plant secu ~ rity.14 The Military Department concerned with the security in a particular plant was given the power to summarily suspend an employee who is considered danger­ ous, pending an appeal to the appropriate regional Industrial Security Board which makes the final decision. And to fill the void in previous regulations, the new ones provided that visitors, including "officials of labor organizations," must be cleared before being allowed access to a plant covered by the regulations. Recently, the Department of Defense disclosed that four thousand defense-plant workers had been suspended over an eighteen-month period. The Department's general counsel indicated that the Department policymakers considered the number excessive; consequently, new regulations were issued creating a central security board in the Pentagon. Military security officers in defense facilities must now obtain approval from that Board in order to suspend a defense worker as a security risk.15

Evaluation of the Controls Have any important rights been placed in jeopardy by the controls described above? Yes; three. First, the right of people combining in an organization to select 64 SECURITY AND LIBERTY their leaders without being subjected to qualifications and harassment at the hands of the government.16 The right to choose representatives in any activity is the heart of our democratic system. Second, these controls abridge the right of union officers to hold certain political views and to associate with whatever groups they choose. Third, the right of men to work at their chosen profession has been limited. Yet, in the face of a clear danger, the national government is justified in cur­ tailing liberty. Has and does Communist leadership in unions constitute a real danger? OUSTING COMMUNISTS AND PARTY-liNERS FROM UNION LEADERSHIP. Since 194 7, aroused trade unionists have accomplished much toward ridding labor organizations of Communist leaders. As reported earlier, the CIO expelled eleven of its constituent unions which were found to be Communist dominated and set up competing unions which gained impressive election victories over those that had been ousted. In important transportation unions such as the Transport Workers Union and the National Maritime Union, right-wing forces under the leadership of Michael J. Quill and Joseph Curran scored smashing election vic­ tories, as in the American Radio Association and the Wisconsin State Industrial Council. In many unions, individual leaders who were Party-liners were ousted from their jobs. Austin Hogan was suspended as President of the huge TWU Local 100 in New York City by the local's Executive Board; Henry Schmidt, a top aid of Harry Bridges, was defeated in his quest for re-election as president of Local 10 of the International Longshoremen's and Warehousemen's Union, Harry Bridges's own local. Three New York department-store union officials were suspended by the national union's president; the New Jersey CIO dropped its third vice-president; the TWU abolished the key positions on its executive board held by Austin Hogan and John Santo and dismissed sixteen international repre­ sentatives, including two former vice-presidents; the NMU expelled five former officers; five United Auto Workers were removed from posts of leadership in Ford Local 600 by an administrative board of the international union; the New York State Council of the CIO dropped Irving Potash from membership on its board; the president of the United Electrical Workers, Albert J. Fitzgerald, was expelled from his own local. Many unions added constitutional provisions or passed resolutions to bar Communists from holding office. Examples were the new CIO Electrical Workers Union, the TWU, the Federation of Glass, Ceramic and Silica Sand Workers of America, and the Actors Equity Association. The struggle against Communist domination was carried on in other ways. Four hundred luggage and handbag workers seceded from the International Fur and Leather Workers Union and the TWU refused to sign a contract with the United Office and Professional Workers for the TWU. The struggle against Communism in the unions took on an ugly aspect when self-appointed vigilantes took it upon themselves to "clean out" the Communists by beating up suspected fellow workers. Violence resulted on other occasions when factions of the NMU and the greater council of New York attempted to settle their differences by force. The efforts of organized labor to free itself of Communist domination have been impressively successful. At the end of 1952, Communists and Party-liners were a force only in unions with less than 2 per cent of all union members, as opposed to 20 per cent five years earlier.17 No less an authority than J. Edgar Hoover stated: Control of Communists in Organized Labor 65 We have ... investigated innumerable instances of Communist infiltra­ tion into labor unions. The Communists today do not have the power they once had, nor do they have the influence they once had in labor unions. The great majority of labor leaders and organizations are alert to Communist infiltration." 1s Mr. Hoover went on to say that the labor unions have done "an excellent job" in cleaning out the Communists. Fortune Magazine assessed the efforts of labor in this fashion: Calmly and with increasing understanding of tactics, U.S. labor has been able to solve its Communist problem. The U.S. as a sovereign power fighting for its way of life as well as for its life, can do as well, if it stays as calm.IV Despite the successes elaborated above, Communists continue to lead a few important unions which are capable of crippling United States defenses and war efforts. George Meany, president of the American Federation of Labor, informed a congressional committee in 19 54: There are a number of national unions completely under Communist domination. We estimate that these unions include from 300,000 to 400,000 members. Of course, by no means all of these workers are either Communists or even Communist sympathizers. But their organizations are in captivity of Communist leaders .... The largest of these unions have membership and collective bargaining agreements in such vital industries as electrical equipment; electronics manu­ facturing; copper; lead and zinc mining; longshoremen on the Pacific coast; wireless communications; and a number of vital industries in Hawaii.20 To some it may be puzzling how the Communists have managed to retain leadership in unions where the rank and file has been and is heavily anti-Commu­ nist. It is not so puzzling when one considers the important factors which produce this result. First, some Communist leaders have done outstanding jobs in pur­ suing the legitimate interests of union members. Second, indiscriminate branding of non-Communists in labor as Communists has given rank and file members reason to discount any and all disclosures. This leads to the third factor, collusion in some cases between management and Communist labor leaders. Because their positions are in such jeopardy, Communist labor leaders are no longer in strong bargaining positions. Management sometimes had aided the Communist-domi­ nated unions in elections in the hope of exploiting this weakness later.21 Manage­ ment at times even went so far as to employ Communist literature to propagandize against non-Communist unions. The management of General Electric at one time justified its favors to the UE which enabled it to retain control of the most important GE plant at Schenectady in an advertisement which read:

A Plague on Both Your Houses We honestly believe that the top leaders on both sides in UE are con­ sciously or subconsciously working in a direction opposite to our better under­ standing of our free enterprise system and to our better use of that system. We do not think being termed an "anti-Communist" in the case of one, or a "door-opener for the Communist Party" in the case of the other, makes any difference.22 66 SECURITY AND LIBERTY Needless to say, whatever the reasons, Communist domination of key unions, al­ though few in number, in the communications, electronics, and transportation field, constitute a grave danger in critical times. Yet it would appear . that there are important circumstances which mitigate the need for comprehensive governmental controls in this field. SURVEILLANCE BY THE FBI . Party-liners among union leaders are well known to the FBI. In a speech delivered in September 19 50, J. Howard McGrath, then Attorney General, stated categorically that the FBI had complete knowledge of Communist Party matters and that "though the Communists might feel that, through deception and stealth they are evading detection, they are badly mis­ taken." 23 Since the Communist labor leaders are known and are being kept under surveillance, their opportunities to do damage to the national security are negli­ gible. A political strike or any other menancing move against national security by Communist labor union leaders would clearly put them within the reach of the law regarding seditious conspiracy. There is no doubt that under such circum­ stances, the FBI can and will act quickly.

In short, the two legislative acts aimed at ridding unions of Communist leader­ ship have been unnecessary abridgements of liberty and consequently unwise. Furthermore, to date these laws have been ineffective. In contrast, the approach of the executive branch to controlling Communists in labor has much merit. It isolates the real danger of espionage and sabotage and meets it directly and neatly by forbidding access to sensitive work and areas by people-union leaders or rank and file workers-who are deemed capable of committing espionage or sabotage. The parallel with the government employee security program is apparent; but it is important to realize that ther~ have been few indications that people who have been denied access to particular jobs in industry have suffered the same disability that dismissed government workers have in attempting to find new jobs. This can undoubtedly be attributed to two factors: ( 1) there has been less publicity to the industrial security program and people dismissed from these jobs are not generally suspect as to loyalty; ( 2) there are currently more jobs available to the industrial worker than to the professional government employee. CHAPTER SIX

Control of Communist Aliens

Since the turn of the century, the national government has endeavored to keep subversive aliens out of the country. By 1948, there had accumulated on the statute books a wide variety of laws which could be invoked against Communist aliens. Aliens who advocated overthrow of the government by force or who be­ longed to organizations which so advocated were expressly excluded from admis­ sion to the United States. American diplomatic and consular officers were required to refuse visas to aliens who they believed sought entry into the United States in order to engage in activities which would endanger the public safety. Further, any alien who at any time after entry advocated violent overthrow of the government was subject to deportation. To help such an alien to enter the country was a mis­ demeanor punishable by imprisonment and a fine. Before he could be naturalized, an alien was required to behave for five years as a person "attached to the principles of the Constitution of the United States." Nor could a person become a naturalized citizen if at any time any where within ten years immediately preceding his filing a petition for naturalization he advo­ cated overthrow of the government. And a certificate of citizenship was revocable if it could be demonstrated that it was procured fraudulently. Aliens were required to register and to be fingerprinted. In registering the alien was required to indicate date and place of entry, "activities in which he has and intends to be engaged," length of time he expected to remain in the country, criminal record, if any, and any other additional matters as were prescribed by the commissioner of immigration with the approval of the Attorney General. From the time that Russia was recognized diplomatically until the Cold War, these laws were not vigorously enforced even though a vocal element in Congress insisted that they should be. As a matter of fact, the efforts of Congressman Dies and Senator Reynolds were met with indifference and sometimes ridicule by Administration and Congressional leaders. The official view of the Roosevelt Administration was that there was no need to be much concerned about the threat of Communism. Indeed, for the Administration to admit that there was alien-directed espionage and sabotage in this country would have been tantamount to an admission that they had been taken in by the government of the Soviet Union in granting it recognition.

Cold War Controls With the advent of the Cold War, congressmen indicated greater concern over subversive aliens by introducing in the 80th Congress a flurry of alien-control bills; few were acted upon. In May 1948, however, the Attorney General was empowered to deny admission to the United States to "aliens who the Attorney General knows or has reason to believe seek to enter the United States for the 67 68 SECURITY AND LIBERTY purpose of engaging in activities which will endanger the public safety of the United States." The measure was aimed at filling the gap in the law which made it difficult to exclude aliens who had deceived diplomatic and consular officers abroad; it had the backing of the Administration. When a majority in the 80th Congress felt compelled by the imminent national elections to pass the Displaced Persons Act for the admission of some 200,000 persons, they further demonstrated their concern over subversive aliens by pro­ viding in the Act that no displaced persons be admitted without "a thorough investigation" and that "the burden of proof shall be upon the person who seeks to establish his eligibility under the Act." In addition to the general provision that "all immigration laws, including deportation laws" would apply to the dis­ placed persons, it was further stipulated that "no visa shall be issued under pro­ visions of this Act to any person who is or has been a member of, or participated in, any movement which is or has been hostile to the United States or the form of Government of the United States." Prodded by congressional critics, the Department of Justice began in 1948 a vigorous campaign "to ferret out aliens engaged in subversive activities." 1 Steps were taken to investigate some 289 naturalized citizens to see if their citizenship might be subject to revocation and they to deportation. Chief targets of the drive were aliens who were leaders in the Communist Party organization and in the labor movement.2 These efforts received a setback when Judge T. Alan Golds­ borough ruled in September that the Immigration Service's hearings were not in accordance with the Administrative Procedures Act of 1946 and consequently illegal; this meant that the Service had to start all over again in the cases then pending. The Department of Justice nevertheless continued to press for deportation of certain Communist aliens. Of 2,554 aliens investigated, deportation warrants were issued for 92. Only four aliens were actually deported on "subversive" grounds. THE INTERNAL SECURITY ACT OF 1950 In 19 50, overriding a presidential veto, Congress passed the Internal Security Act. This law did not deal exclusively with aliens, but the provisions concerning aliens marked important and con­ troversial changes in existing law. The Act specifically excluded from admission to the United States aliens who at any time, shall be or shall have been "mem­ bers of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the United States, (iii) the Communist Political Association, ( iv) the Communist or other totalitarian party of any State of the United States, or any foreign state; or of any political or geographic subdivision of any foreign state.... " Aliens who at any time were or are members of organizations required to register as Communist under the Act were also excludable unless they could "establish that they did not know or have reason to believe at the time they became members ... (and did not thereafter and prior to the date upon which such organization was so registered or so required to be registered acquire such knowledge or belief) that such organization was a Communist organization." Also excludable were aliens who advocated "the economic and governmental doctrines of any ... form of totalitarianism" or were members of any organization that so advocated "through its own utterances or through any written or printed publications issued or published by or with the consent of . . . such organiza­ tions .... " To meet congressional concern over aliens who Cflme to the United States with official status and then engaged in espionage or other subversive activity, the new Control of Communist Aliens 69 law provided that such aliens could be excluded if they sought to enter the United States "to engage in activities prejudicial to the public interest, or would endanger the welfare of the safety of the United States." Even high officials of foreign nations could be excluded under "such rules and regulations as the President may deem to be necessary." A vast new power was given to the Attorney General to waive a hearing before a board of special inquiry for an excluded alien, where the basis for exclusion was confidential information the disclosure of which the Attorney General felt was contrary to the best interest of the country. To meet the problem of countries refusing to take back people subject to deportation, the law provided that where a country "denies or unduly delays acceptance of any alien who is a national" the Secretary of State shall issue orders "to discontinue the issuance of immigration visas to nations ... of such country." Further, when an order of deportation had been made against an alien, the Attorney General could for six months detain or conditionally parole the alien. In the event that the deportation order was outstanding for more than six months, the Attorney General had to require the alien to appear from time to time for identification, to give information of his activities under oath and to conform to "such reasonable written restrictions on his conduct or activities as were pre­ scribed by the Attorney General in his case." Any alien willfully failing to comply with these regulations was guilty of a felony and punishable for such and subject to $1,000 fine or imprisonment for a year or both. Where a deportee willfully attempted to prevent or hamper his deportation he could be imprisoned up to ten years. These provisions of the law were watered down from the original re­ quirements of H.R. 10, which would have allowed the Attorney General greater discretion in detaining deportables. The detention provisions of H.R. 10 had been bitterly contested in the Congress and were consequently modified in the law. The new naturalization provisions were also stringent. No person could here­ after become a citizen who at any time for ten years prior to filing was a member of or affiliated with any Communist action organization that was required to register under the Act. Further, if a person naturalized after Jan. 1, 1951 within the next five years became a member of an organization which at the time of naturalization would have precluded him from naturalization it was to be con­ sidered sufficient grounds for cancelling his certificate of citizenship. Aliens who were members of Communist-front organizations were ineligible for citizenship unless they could show that they got out of the organization within three months after it was proscribed. The law also provided for annual registration of aliens as the Attorney General had requested. When President Truman vetoed the bill his general criticism of the sections discussed above were that ( 1) "it would deprive us of the great assistance of many aliens in intelligence matters." ( 2) "it would antagonize friendly govern­ ments," ( 3) "it would make it easier for subversive aliens to become naturalized as United States citizens." s Specifically, he pointed out that present laws effec­ tively accomplished what these provisions were intended to do, without the dangers inherent in the proposed legislation. He expressed concern that the broad exclu­ sion provisions would make it mandatory to exclude, for example, Spanish busi­ nessmen who would have to be considered members of a totalitarian party of a foreign state. He felt that the law would make it impossible for the government to grant asylum to "foreign diplomats who repudiate Communist imperialism" and that we would lose these valuable sources of intelligence. The President argued 70 SECURITY AND LIBERTY that the bill put the government in the thought-control business, since the law did not require an evil intent on the part of an alien distributing or publishing written matter advocating doctrines of any form of totalitarianism. "Thus," he said, "the Attorney General would be required to deport any alien operating or connected with a well-stocked bookshop containing books on economics or poli­ tics written by supporters of the present governments of Spain and ¥ugoslavia." Then, perhaps, prophetically, he added, "the next logical step would be to 'burn the books.' " The President expressed disapproval, too, of the provisions which called for additional restrictions on foreign diplomatic representatives. He pointed out that under existing law anyone abusing his diplomatic privileges could be sent out of the country. He was worried lest we appear "ungenerous" after so avidly seeking to be the home of the United Nations, and fearful of "foreigners" at a time when we were trying to build "national confidence and friendly relations among the nations of the world." Despite the overwhelming majority in favor of the law as manifest by its pas­ sage over the presidential veto, the provisions of the law regarding aliens were sharply contested by the liberals in the Senate and House. Immediately upon passage, the provisions of the Act relating to immigration became the subject of controversy. The Administration, interpreting the law strictly, began to refuse entry to aliens, including several prominent opera stars, who at any time had been more than "nominal" members of the Nazi, Fascist, and Falangist Parties and organizations, and consequently drew heavy critical fire from the nation's press and sponsors of the legislation. "Nominal" membership, according to the Attorney General, was membership "during infancy, under 16 years of age, or for purposes of obtaining employment, food-ration cards, general education or through military service, or similar circumstances, and the alien has not actively engaged in advocating totalitarianism or voluntarily taken part in atrocities committed by such totalitarian party or organization." The Attorney General informed the State Department that he felt he had no alternative but to enforce the law that way and requested the State Department to do the same in issuing visas. 4 The State Department protested that there were extenuating factors that should be considered, such as whether or not an alien had joined a party or organization voluntarily.5 The State Department argued that it was neces­ sary to apply the "well-established rules relating to duress," and if such a con­ struction were valid, then aliens who had become members of proscribed organiza­ tions under duress would not be excludable. Taking cognizance of the difference of opinion between these two departments, the congressmen who had been the House and Senate managers on the Internal Security Act took the unusual step of writing to the Attorney General in December 1950 to inform him that they had intended in their conference on the bill that it be interpreted as the State Depart­ ment did. When Congress convened early in 1951, the State Department interpretation of the Internal Security Act was written into the law. In congressional debate, an attempt was made to differentiate between Communist and other totalitarian parties and organizations; the argument was made that there was no such thing as an "involuntary Communist." No such distinction, however, was made in the law. THE McCARRAN ACT OF 1952 In 1952, as a culmination of extensive study of the problem of naturalization and of the intensive political pressures to increase Control of Communist Aliens 71 immigration quotas on the one hand, and the equally intensive political pressures to restrict immigration, Congress codified and amended the immigration and n·aturalization laws in the McCarran-Walter Immigration Act. Undoubtedly, the most publicized and most controversial changes in the law were those which dealt with immigration quotas and limitations. Suffice it to recognize here that for many of the proponents of the national-origin system of regulating immigra­ tion these were in part aimed at controlling Communist subversive activities. Because it was believed that Communists tend to come from certain countries more than others, discriminatory quotas aimed at those countries were a means of cutting down the number of potential subversives. Other pertinent changes in existing law included the establishment of a new Bureau of Security and Consular Affairs in the State Department to be headed by an administrator with the rank of an assistant secretary of state. The administra­ tor was to have whatever authority the Secretary of State might delegate to him and was to be under the immediate jurisdiction of the deputy under secretary for administration. The administrator was empowered to maintain "direct and continuous liaison with the directors of the Federal Bureau of Investigation and the Central Intelligence Agency and with other security officers of the Govern­ ment for the purpose of obtaining and exchanging information." The adminis­ trator and Commissioner of Immigration and Naturalization were required to "maintain direct and continuous liaison." These provisions constituted a watered­ down version of a proposal Senator J\1cCarran had hoped to include in the law of 19 50. Senator McCarran had wanted to set up an autonomous bureau. This . desire was born when the Senator heard the chief of the old visa division relate in hearings that in some security cases he had been overruled by other divisions in the State Department. The new provision provided, therefore, for a more direct line of responsibility between the consul issuing or refusing visas and the Secretary of State. The Internal Security Act of 19 50 was modified in respect to excludables in these significant ways: ( 1) If an alien could supply satisfactory evidence to the Attorney General that he had terminated his affiliation or membership with a proscribed group and that for the past five years prior to application for admission had actively opposed the doctrine and program of the proscribed group, he could be admitted. ( 2) The Attorney General could allow non­ immigrant aliens (representatives of foreign governments and international or­ ganizations) into the country even where they were ineligible under other provisions of the law. The latter change was made to take into account the fact that representatives of Communist-dominated countries with whom the United States maintained diplomatic relations generally would have belonged to pro­ scribed organizations, and the fact that the UN officials had complained about the failure to admit to the United States bona fide representatives to that body.6 It was provided, ·however, that such admissions could only be temporary. The President was granted the extraordinary power to exclude any alien or class of aliens whose entry he deemed "detrimental to the interests of the United States" for any period he deemed necessary. The new law specified that deportation proceedings would not be exempted from the provisions of the Administrative Procedure Act.7 For the two years prior to the Act, Congress had so exempted deportation proceedings in supplemental appropriation acts. Special procedures were established for determination of whether or not an alien was subject to exclusion or deportation. It was provided 72 SECURITY AND LIBERTY that exclusion proceedings be conducted by a "special inquiry officer"-"an immigration officer who the Attorney General deems specially qualified" to handle such proceedings. An appeal from a decision of the inquiry officer could be made to the Attorney General. Unless the decision was reversed by the Attorney General, however, it was final. It was provided also that deportation cases be heard by a special inquiry officer, and that this procedure "shall be the sole and exclusive procedure for determining the deportability of an alien." Another significant change wrought by the law provided that a subversive alien could be exempted from deportation where the grounds for deportation arose subsequent to entry and where the alien could show to the Attorney General's satisfaction that he resided in the United States for ten consecutive years demonstrating good moral character in that period and whose deportation would "result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who is a citizen or an alien lawfully admitted for permanent residence." Following passage of the Act, the provisions relating to alien crewmen of vessels entering the United States became the source of great controversy. The Attorney General was given the task of seeing to it that no alien crewmen landed even temporarily unless, among other things, he was satisfied that the individual was not going to engage in subversive activities. The law of 1952 specifically provided that involuntary membership in a proscribed organization was not to be considered grounds for refusing citizen­ ship. The new law added to the grounds for revocation of naturalization the finding of a court that the naturalized citizen had obtained his certificate by concealing a material fact or by misrepresentation. Militant liberals with firm backing by important segments of the public and press in the Congress had endeavored long and hard to prevent the enactment of the law. However, they were few in number and unable to prevent passage even with a presidential veto. In his veto message, President Truman stressed his objections to the national-origins system, and to the fact that he was once again called upon to approve the objectionable features contained in the Internal Security Act of 19 50 which he had vetoed.8 But presidential objections not­ withstanding, the McCarran Act went into effect 180 days later, on Dec. 24, 1952. Right after passage of the McCarran Act, President Truman set up a Com­ mission on Immigration and Naturalization to survey and evaluate the immigra­ tion and naturalization policies of the nation. In the closing days of the Truman Administration, the Commission on Immigration and Naturalization issued a report highly critical of the McCarran Act. This brought a sharp rejoinder from Senator lVIcCarran, who stated: It [the law] is ... tough, very tough, on Communists, as it is on criminals and other subversives, and, that is why they are squealing. It is a tragic fact that the out-and-out Reds have ready colleagues in this fight: the "Pinks," the well-meaning but misguided "liberals" and the demagogues who would auction the interests of America for alleged minority-bloc votes.D The chairman of the committee, former Solicitor General Philip B. Perlman, with President Truman's blessing, countered that the Senator cannot make a reasoned defense of an act which embodies so much discrimination and prejudice, so he ignores facts and makes un­ founded insinuations and smears those who disagree with him.1o Control of Communist Aliens 73 The controversy over the McCarran Act was still at a white heat as General Eisenhower became President. THE REPUBLICAN APPROACH, 1953-1955 Attorney General Brownell lost no time in "vigorously pursuing" a program to rid the United States of naturalized and alien Communists. Shortly after taking office, he announced that the De­ partment of Justice was already investigating 10,000 naturalized citizens and 12,000 aliens suspected of subversive activities.l1 Subsequently, fifty-seven "sub­ versives were deported in 1953 and sixty-one in 1954.12 Although the actual number of deportees appears small in proportion to the number investigated, it marks a signficant increase over the preceding years and testifies to the zeal of the present Attorney General in this endeavor. Mr. Brownell moved a little less quickly to safeguard the nation's southern border from Communist infiltration. For several years the nation had been af­ flicted with the "wetback" problem. The wetbacks are Mexican immigrants who illegally cross the Rio Grande. In 19 50 alone, it was estimated that there were 500,000 such entries.13 Although Mexican laborers are not Communist agents, the former Commissioner of Immigration and Naturalization pointed out the danger inherent in their illegal entry: Never before has our country been more greatly endangered by the clan­ destine entry of so many aliens. The path worn by illegal entrants has reached a smooth road for dangerous aliens to travel.14 In August of 19 53, the Attorney General, distressed by reports that the prob­ lem was getting worse, personally toured the border area and vowed that he would do something to stop it. Pending action on his part, the situation worsened and a record high of "wetbacks" crossed the border in late 19 53.15 In 19 54, Mr. Brownell tripled the Border Patrol and, according to the Commissioner of Im­ migration and Naturalization, Joseph M. Swing, significantly cut down the flow of illegal entrants.16 There were 8,571 illegal entrants in November 19 54, which compares favorably with the figure of 69,264 for November 1953. But one cannot help but be impressed by the fact that the number is still so large. Paradoxically, while the southern border was being penetrated so easily, it was made increasingly difficult for aliens to come to our shores through regular channels. During 1953, a Refugee Relief Act had been passed permitting 214,000 refugees and orphans to permanent United States residence. State Department Security Officer Scott McLeod was made administrator of the Act. It was generally believed that l\tlr. McLeod would safeguard the security of the nation by applying rigidly the Act's provisions forbidding Communists from coming here. In the first year only 3,734 persons entered the United States under the Act; in all, 8,010 visas were issued and 943 refused. Mr. McLeod indicated that there were other administrative problems besides security regulations which made it difficult to proceed more quickly. His critics, however, were convinced that he was dragging his feet and largely for "security" reasons. In any case, in the second year entries were speeded up.17 The government continued to enforce the McCarran Act vigorously, causing some national embarrassment when prominent foreigners like Yma Sumac, Miss Greece, and an English Nobel Prize winner were either detained or barred from this country. On the other side of the ledger, the Administration moved to mitigate two of the most widely-criticized practices regarding aliens. The Attorney General announced in late 1954 that a system of "pre-inspections" would be instituted.18 74 SECURITY AND LIBERTY Aliens will henceforth be checked at the point of departure or en route to the United States wherever possible. Second, detention is to be limited only to those whose freedom of movement could be adverse to national security. Mr. Brownell estimated that under the new policy only 1,000 people might be detained in a year as compared with the 38,000 detentions in exclusion cases in 19 54. Initially, the new practice regarding detention created confusion. When Ellis Island was closed, the aliens who had been detained there were put in jail! 19 Upon being ap­ prised of the situation, the Commissioner of Immigration and Naturalization issued an order specifying that "under no circumstances may alien detainees be placed in jail." 20 Apparently, only in very unusual cases is an alien now de­ tained in jail. They are currently housed in hotels or in other facilities set up by the Immigration and Naturalization Service.21 It is significant, however, that there are 228 subversive aliens at large because no country will take them, according to the Commissioner of Immigration, General Joseph Swing.22

Evaluation of the Controls The chief justification for controlling Communist aliens has been essentially a negative one, namely, that such controls are legal. As is frequently and un­ fortunately the case on the American scene, whatever is legal is regarded as being moral and practicable. It has been well established by the Courts that Congress's power to legislate concerning aliens is plenary. In short, the sovereign national government is entitled legally to do anything it pleases with aliens. The question whether or not these actions make sense in moral or practical terms is, however, still open for consideration. Congressman Hobbs was wont to argue that "aliens in the United States are exactly analogous to visitors in your home. No guest in your home has the same rights as do your children." 23 This argument raises the very interesting question of whether or not we as individuals derive our rights primarily because we are people or Americans. Without belaboring the point, it would seem that to argue that only American citizens are entitled to decent treatment at the hands of the government is patently wrong. For we must remember what seems too fre­ quently forgotten that aliens are people, too. In this connection, it is pertinent to note that the Fifth and Fourteenth Amendments of the Constitution specif­ ically state that no person shall be deprived of liberty rather than no citizen. With these points in mind, restrictive measures aimed at aliens should be justified on the basis that certain activities of the aliens present a clear and present danger and that the specific measures proposed are aimed precisely at meeting the danger. Until 1949, most control measures had been put through on the theory which Representative Coffee described: ... that all foreigners must ipso facto be aliens who are engaged in an effort to overthrow the government of the United States by force. 24 Never before 1949 did Congress or the Administration endeavor to demonstrate that alien activities constituted a menace to national security. Of course, vague charges had been made in debates and reports but none of it was substantial. In the hearings held in 1949 by the Senate Sub-Committee on Immigration and Naturalization, a real attempt was made to determine just how dangerous aliens were. As indicated before, Attorney General Tom C. Clark testified that of the Control of Communist Aliens 75 4,984 militant Communist leaders in the United States a large percentage were aliens or children of aliens.25 The Attorney General also testified that there were espionage and intelligence investigations pending at that time concerning 685 aliens who were here as affiliates of foreign governments or international or­ ganizations. He and other witnesses before the Committee gave indication that espionage activities were carried on in this country largely with the help of subversive aliens. But significantly enough, not more than a minute per­ centage of the aliens in the country have ever been implicated in subversive activities of any kind. This, then, would seem to indicate that controls should be aimed not at all aliens but only the dangerous ones. Thus, measures restrict­ ing all immigration only on the grounds of keeping subversives out do not make sense. As one eminent government official said regarding safeguarding atomic energy secrets, "the best way to make sure secrets never get out is to stop atomic research." Likewise, the best way to keep out subversive aliens is to allow no immigration. Patently, in both cases national security cannot be measured in narrow terms. Certainly, even from a national security point of view the great contrjbution of the many loyal aliens in our midst more than offset the damage a few subversives might do. One might well ask this point, "Does this mean that we should have no limitations or restrictions on immigration?" The point here made is that there is no proof that generous quotas in and of themselves necessarily leave the nation dangerously open to subversive activity. General limitations and restrictions in immigration should, therefore, be based on other factors, such as how many can be absorbed in the economy and how do liberal immigration policies affect our relations with other countries. Specific controls over the Communist alien have fallen into four categories: ( 1) exclusion, ( 2) detention, ( 3) deportation, and ( 4) denaturalization. First, in regard to exclusion, it certainly must be admitted that the government has the duty of keeping out people who there is good reason to believe will engage in subversive activities. The laws which keep out present members of the Com­ munist apparatus make sense. But one must remember that the alien is not here being screened for a top-secret job on the Atomic Energy Commission but only for admission to the country. Where there is doubt, certainly it would be more consonant with the traditional American concepts of justice to provide for an adequate procedure which would give the alien seeking admission an opportunity to appeal the decision of the visa-issuing officer, who, significantly, is generally a junior officer in the consulate. It may well be the case that for an alien seeking admission to the United States the only hope for opportunity, work, and happiness is to obtain admission. Conversely, for the government to turn down by mistake an applicant who is acceptable on other grounds might be a loss to the nation. To argue that deportation and detention are not punishment is sophistry of the worst kind. As the Wickersham Commission on Law Enforcement and Observation, which had been set up by President Hoover, reported: In deportation cases, even when the judgment is just and necessary, hardships are extreme, both upon those deported and upon their families who are permitted to remain ....26 More recently the venerable Judge Augustus Hand observed that to an alien, "however serious his crimes, deportation is to him exile, a dreadful punishment, 76 SECURITY AND LIBERTY abandoned by the common consent of all civilized people. Such indeed, it would be to anyone."27 True, legally a sovereign nation can do what it pleases about its aliens; however, to punish people severely for activities which are not regarded as criminal is contrary to the American concept of Justice. For example, an alien can be punished by deportation for being a member of the Communist Party, yet it is not yet firmly established that it is a crime for a citizen to be a member. Deportation and detention are appropriate punishments where the alien engages in activities which in and of themselves are criminal, for example, stealing and arson. Where an alien engages in acts of espionage, sedition, and other acts considered subversive in and of themselves, then deportation and/ or detention seems justified. Remember, too, that only the individual who engages in undercover espionage and sabotage is really dangerous to the United States. The alien who openly becomes a member of the Communist Party or one of its front organizations does not pose a real threat to national security. Of course, ingratitude is always provoking. It is no wonder that citizens become incensed with aliens who appear to fail to appreciate our way of life. Yet only an immature people would make that a cause for punishment, however irritated they may be by it. If one concedes that deportation and retention are punishments, then, procedurally, they should only be meted out by a court of law. There can be no argument about the wisdom or morality of withholding citizen­ ship from one who is not prepared to accept the responsibilities as well as the rights of citizenship. Therefore, there can be no objection to refusing citizenship to those who do not have an attachment to the Constitution. But denaturaliza­ tion is not exactly the same as withholding citizenship. In effect, the law which allows for revocation of citizenship on the grounds that it was procured by fraud makes a distinction between natural-born citizens and naturalized citizens where differences are not supposed to exist. A natural-born citizen can­ not yet have his citizenship revoked on the grounds of being only a member of a Communist organization. The difference between a natural-born and naturalized citizen has been widened further by the provision in the McCarran Act which virtually forbids a naturalized citizen to join a Communist organiza­ tion for five years after obtaining citizenship. Suppose an alien becomes a citizen and two years later decides to become a Communist. Why logically and morally should he be in more jeopardy than the natural-born citizen who becomes a Communist? Where the citizenship was obtained by fraud, its cancellation would appear to be justified, but to cancel a citizenship which was procured legally and honestly goes too far. CHAPTER SEVEN

Conclusions

Failures of the Security Program In dealing with the Communist problem from 1947 to 1955, the national government too frequently has fought the wrong battle in the wrong place. Most of the controls enacted by Congress and most of those effected by the Administration have been aimed at preventing a revolution that never could have taken place. At the same time, the government has been slow to safeguard the nation from espionage and possible sabotage, the real danger.1 For example, the problem of illegal entry into the country of hordes of "wetbacks" has never been solved, although failure to solve the problem virtually guarantees the Russians an open door through which they can send as many espionage agents and potential saboteurs as they see fit. In regard to the unnecessary controls, many of them abridge important liberties and are therefore a greater danger to the nation than the unlikely revolution they are intended to prevent. Why has the government been side-tracked in this fashion? Four important reasons suggest themselves from a review of the record. First, there has been no general understanding as to what the menace is. In the confusion, support can easily be won for any measure which seems to be striking a blow against Communists. Second, there has been a general and alarming failure to appreciate the importance of safeguarding our civil liberties. Many of our political leaders have come to regard our traditional liberties as luxuries which we cannot afford in a crisis. They are apparently unaware that these liberties are the sine qua non of a democratic society. Thus, too often, our legislators feel that nothing is lost by particular restrictive measures even if nothing is gained. Third, wiser leadership from President Truman and Democratic leaders in the Congress would have forestalled many of the unnecessary and unwise moves which they were actually against. The Democratic leaders certainly had recog­ nized the Communist danger at least by 1947 when the Employee Loyalty Program was put into effect. Yet, instead of acknowledging publicly and honestly that there was a real danger of a limited kind and trying to educate the public to appreciate the requirements of a free society, the President took off on the "red herring" tangent and the leaders of his party galloped off behind him. Significantly, the nation was still relatively calm about the Communist threat through 1948. President Truman was re-elected that year and the Democrats rewon control of Congress, despite Republican efforts to make the most of the Communist issue. Nor was there yet the tremendous public pressure for anti­ Communist control measures which was to build up later. But shortly after the elections of 1948 the true danger of Communist espionage began to be re­ vealed. Then the public's loss of confidence in the Democratic leadership's handling of the problem and the resulting fears set the stage for those members 77 78 SECURITY AND LIBERTY of Congress who were eager to push for restrictive measures,2 either out of a . sincere concern for the danger or for personal political advantage. "We must remember that extremes beget extremes. If there is in some circles an extreme reaction to Communist infiltration it is the product of the other extreme of ignor­ ing the danger. Had Communist spies and traitors been ruthlessly exposed in the past many persons today would not be looking for them in unlikely places." 3 Why had the Democratic leaders ignored the danger? One, Democratic leaders were generally naive about the real political nature and interests of Communists both here and abroad from 1932 until after World War II. Domestic Communists were regarded as "extreme liberals" who apparently could be counted upon to help support and promote desirable social progress, that is, better housing, social security, civil rights, and the like. The conspiratorial aspects of the Com­ munist movement were not taken very seriously. The Soviet Union itself was believed to be in a state of political transition which would ultimately make it politically more democratic. Russia's wartime status as an ally and our ad­ miration for the fight she was making did much to nourish this illusion. The amazing thing, in retrospect, was the many signs of Communist perfidy which were simply ignored. For example, in the myriad of wild charges by the Dies committee, there were occasionally serious and foreboding revelations that suggested that something was rotten in the body politic. This leads to the second factor explaining the failure of Democratic leaders to face up to realities of the Communist threat. They evidently felt compelled to deny any and all evidence of Communist infiltration in order to discredit the wilder allegations about the motives and loyalties of the Democrats. Consequently, there came a time when every revelation, no matter how substantial, like the warnings re­ ceived about Alger Hiss, was dismissed as "red-baiting." Of course, the excesses of those searching out the Communist menace were a real provocation, but hindsight makes it clear that the intransigence that refused to allow an ob­ jective examination of evidence from whatever source derived w;:ts dangerous to the nation and injurious to the Democratic Party. A fourth, reason for the many unwise security measures is our national weakness for equating legality with wisdom. Too often, constitutionality was the only criterion applied to a proposed measure. It goes without saying that constitutionality alone is not a sure index of the wisdom of a particular measure.

A Distinction That Makes A Difference Throughout these pages a distinction has been made between measures aimed at preventing a revolution and measures contrived to forestall espionage and sabotage; it has been suggested that only the latter are legitimately war­ ranted by a clear and present danger. There are some who would argue that to make such a dichotomy is to distort the picture. They point out that some measures like the Smith Act and the Internal Security Act were not aimed pri­ marily at preventing a revolution but rather at making it more difficult to recruit spies and saboteurs. The record indicates, however, that proponents of such control measures were in fact much impressed with the danger of a revolution. But more important, the experience of many countries combatting conspiratorial and underground movements indicates that laws limiting important freedoms do not effectively halt recruitment of spies and saboteurs. Conversely, it is logical to conclude on the basis of the record that the disaffection of so many American CONCLUSIONS 79 Communists with the Party, people who had been openly propagandized and recruited, resulted from a realization in later years that they would ultimately be expected to serve as spies and saboteurs. There are good grounds for believing that the kind of person who would engage in the risky endeavors of spying and sabotage finds a strong psychological appeal in an underground movement.4 It is significant, too, that those officers of the government most directly con­ cerned with controlling subversive activities have long opposed outlawing the Communist Party, largely on the ground that outlawing the Party would make it more difficult to meet the real danger of espionage and sabotage. In short, the record offers no evidence that laws abridging freedom of speech and the like have in themselves curtailed the recuriting of spies and saboteurs, actual or potential. It cannot be demonstrated that such measures are appropriate means for meeting the clear and present danger of espionage and sabotage. The distinction made here, therefore, appears justified, for it does make a difference in determining the wisdom of specific control measures.

The lessons learned The primary lesson to be learned from a detailed analysis of the efforts of the national government to deal with subversive activities is that those who govern have been too prone to give up essential liberties in the face of dubious demands of national security. And we as a people have been too eager to support them. It is essential, therefore, that we and our leaders find a way to de­ termine how to draw the line between measures which are appropriate for controlling subversive activity and measures which themselves subvert our democ­ racy. The clear-and-present-danger doctrine recommends itself as a worthwhile means for making such a determination. It must be emphasized again that the judiciary cannot be relied upon alone to protect individual rights. Every member of the government in his official capacity should make an effort to safe­ guard civil liberties when dealing with the problem of subversion. Ideally, each citizen should be aware of the issues involved so that he can use his ballot to insure that the elected leaders do not strip us of our rich inheritance of freedom; he, too, would be wise in employing the clear-and-present-danger-doctrine method as a means for determining what measures aimed at controlling subversive activities subvert his liberty. For as Thomas Jefferson sagely observed many years ago, "The mass of the citizens is the safest depository of their own rights." A second important lesson to be learned is that security cannot be defined so narrowly that an inordinate premium is placed on secrecy and the safe­ guarding of secrets. As pointed out earlier, the best way to insure that an enemy will learn no military secrets is to have none. Patently, this is nonsense if we are to seek national security in the broad sense.5 Work on such projects as atomic energy must proceed even at the risk of having the enemy learn of some of the developments. It is imperative, however, that precautions be taken that un­ authorized persons do not get security information. The record makes it abun­ dantly clear that even our highest officials have talked too much, that security materials have been handled too carelessly. The third lesson to be learned is the necessity for continued surveillance of the activities of actual potential subversives. The record reveals that the FBI has constantly been well enough informed to know if and when the Communists were about to move against the government. This is as it should be. If concern 80 SECURITY AND LIBERTY for individual rights requires, as it does, that the widest latitude be given to free speech, freedom of the press, and freedom of assembly, then it is es­ sential that the government be ready to prevent the exercise of those freedoms from imperiling the nation. We as a people might well heed the wise counsel of J. Edgar Hoover: We cannot ignore the attack. We must meet and repel it-but in the American way. We must shun the tactics of the Ku Klux Klan, the Colum­ bians and native Fascists as earnestly as we shun those of the Communists themselves. There is as much danger in moving too far to the "right" as there is in swinging too far to the "left." There is little choice between Fascism and Communism. Both are totalitarian, anti-democratic and god­ less. Both use the same means of treachery and deceit to accomplish their goal of tyranny and oppression. In our fight against Communism we have no place for the political police that have dominated Fascist and Com­ munist countries. We effectively protected ourselves against spies and saboteurs during the late world war without sacrificing the civil rights of a single citizen. We can protect ourselves against the infiltration of Communism by the same defensive, democratic means in the American way.6 FOOTNOTES TO THE STUDY

Chapter One. Assessing the Menace 1. U.S. 80th Congress, 1st Session, Senate, Document No. 26, Statement by J. Edgar Hoover, March 26, 1947, p. 3. 2. James Wechsler, "How to Rid the Government of Communists," Harpers Magazine, November 1, 1947. 3. U.S. 80th Congress, 2d Session, House, Subcommittee in Legislation of the Committee on U n-American Activities, Hearings on Proposed Legislation to Curb or Control the Communist Party of the United States, February 5, 6, 9, 10, 11, 19, and 20, 1948, pp. 450-451. 4. Ibid., p. 213. 5. U.S. 80th Congress, 2d Session, House, Committee on On-American Activi­ ties, Report on the Communist Party of the United States As an Advocate of Overthrow of Government by Force and Violence, May 10, 1948. 6. New York Herald Tribune, January 11, 1948. 7. U.S. News, April 29, 1955. 8. Mr. Hoover indicated that there were limits to the analogy when he said upon being questioned by the House On-American Activities Committee that: "While it is true that the percentage of Communists to citizens in this country today is greater than there was in Russia at the time of the revolution, I do not for one moment hold to the opinion that any revolu­ tion could be effected by that group." (author's italics) This statement is not a direct contradiction of the implication that the Communists present a menace because they advocate overthrow of the government by force. Great harm could be done to the nation without a revolution actually being effected. 9. Fortune, July 1942. 10. Hearings on Proposed Legislation to Curb or Control the Communist Party of the United States, op. cit., pp. 451-452. 11. Cf. Attorney General Tom Clark's testimony before the House On-American Activities Committee, Hearings on Proposed Legislation to Curb or Control the Communist Party of the United States, op. cit., pp. 16-38. In reference of the Foreign Agents Registration Act the Attorney General stated: "The terms of the act are sufficiently broad to require registration by members of the Communist Party; provided, of course, that proof is available that they are operating in this country as agents of a foreign principal. This is a difficult task ...." Ibid., p. 22. 12. William L. Laurence, "The Truth About the Hydrogen Bomb," Saturday Evening Post, June 24, 1950, p. 18. 81 82 SECURITY AND LIBERTY Chapter Two. Must Liberty Be Sacrificed? 1. Robert E. Cushman, "Civil Liberties," American Political Science Review, February 1948, p. 42. 2. Herndon v. Lowry, 301 U.S. 242 (1937). 3. Cushman, op. cit., p. 43. 4. Milk Drivers Union v. Meadowmoor Dairies Inc., 312 U.S. 287 (1940). 5. Prince v. Massachusetts, 328 U.S. 158 (1944). 6. Giboney v. Empire Storage, 336 U.S. 490 ( 1949). 7. Richard L. Sklar, "The Fiction of the First Freedom," The Western Political Quarterly, June 1953. 8. Edward S. Corwin, "Bowing Out 'Clear and Present Danger,'" Notre Dame Lawyer, Spring, 19 52. 9. Interview, August 6, 1953. 10. Pennekamp v. Florida, 328 U.S. 331, 351 (1946). 11. Bridges v. California, 314 U.S. 252, 296 ( 1941). 12. Whitney v. California, 274 U.S. 357, 374 (1927). 13. "Liberals and the Communist Trial, Morris Erns's View," New Republic, January 31, 1949. 14. Kovacs v. Cooper, 336 U.S. 77, 90 (1949). 15. Zechariah Chafee, Jr., How Human Rights Got Into the Constitution. Pre­ cisely why the Founding Fathers were intent on safeguarding important rights is difficult to determine for, as Professor Chafee points out, between 1787 and 1791 there was meagre discussion about human rights because everybody was for them. Ibid., p. 9. 16. Quoted in Chafee, op. cit., p. 25. 17. Alexander Meiklejohn, Free Speech, p. 50. 18. War Department, Final Report, Japanese Evacuation from the West Coast 1942, p. 33. 19. Lt. General J. L. DeWitt, "Final Report on the Evacuation of Japanese from Certain Military Areas in Western Defense Command." Cf. War De­ partment, Final Report, op. cit., p. viii. 20. Korematsu v. U.S., 323 U.S. 214, 218 ( 1944). 21. There are those who maintain the injustice is apparent anyway. See E. S. Corwin, Total War and the Constitution, p. 98, and Cushman, "Civil Liber­ ties," op. cit., p. 52. Chapter Three. General Controls 1. U.S. 80th Congress, 2d Session, House Committee on On-American Activi­ ties, Subcommittee on Legislation, Hearings on Proposed Legislation to Curb or Control the Communist Party of the United States, 1948, p. 21. Footnotes to the Study 83 2. 86 Congressional Record, 7818. 3. "One can imagine that with a Mitchell Palmer at the head of the Department of Justice instead of Francis Biddle, these sweeping provisions could have been treated as furnishing warrant for a considerable crusade against holders of unpopular opinions." E. S. Corwin, Total War and the Constitution, p. 108. 4. Hearings on Proposed Legislation to Curb or Control the Communist Party of the United States, op. cit., p. 21. 5. "McGrath Says Security Bars Trial of Many," New York Herald Tribune, September 23, 1949. 6. U.S. 83d Congress, Zd Session, Document No. 156, "The Republican Rec­ ord," 19 54. 7. U.S. 83d Congress, 1st Session, House Committee on Appropriations, De­ partments of State, Justice and Commerce Appropriations for 1954, Hearings, 1953, p. 137. 8. "Concentration Camp Liberals," Chicago Tribune, September 24, 19 50. 9. 64 Stat. 987. 10. Proponents of the Act were either very impressed by what had occurred in Czechoslovakia or felt that it made an impressive argument for anti-Com­ munist legislation. For example, in testifying in behalf of the original Mundt­ Nixon Bill, Congressman Nixon told the Senate Judiciary Committee: "In summary, as far as the adequacy of existing legislation is con­ cerned, there is no law on the books at the present time which would prevent in the United States, the seizure of our government by Com­ munist forces, as occurred in Czechoslovakia." (author's italics) Control of Subversive Activities, op. cit., p. 4 3. 11. Control of Subversive Activities, op. cit., p. 42. 12. New York Herald Tribune, April 21, 1953. 13. New York Herald Tribune, December 24, 1954. 14. Ibid. 15. The U.S. Court of Appeals recently ruled that the State Department's power to refuse passports is not absolute and that the Secretary of State must give reasonable grounds for denying a passport to an American citizen. 16. Cf. Thomas I. Cook, Democratic Rights Versus Communist Activity. 17. Robert K. Carr, The House Committee on Un-American Activities, p. 453. 18. U.S. 82d Congress, 1st Session, Senate, Committee on the Judiciary, Sub­ Committee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws, Hearings, "Subversive Control of the United Public Workers of America," 19 52, p. X 19. Congressional Record, January 14, 1955. 20. Cummings v. Missouri, 4 Wallace 277. 84 SECURITY AND LIBERTY 21. Carr, op. cit., pp. 1-18.

Chapter Four. Control of Communists in Government Employment 1. T. Emerson and D. Helfeld, "Loyalty among Government Employees," 58 Yale Law Journal, pp. 8-14. 2. Executive Order 9835, Preamble. 3. "J. Edgar Hoover Describes Role of the F.B.I. in Loyalty Check," New York Herald Tribune, November 16, 1947. 4. Unless noted, information in this section is taken from 13 Federal Register 9370. For a more detailed discussion of the mechanics of the program, cf. Eleanor Bontecou, The Federal Loyalty-Security Program. 5. Bontecou, op. cit. and A Report By the Interdepartmental Committee on Internal Security, op. cit. 6. Through June 1952; taken from U. S. Civil Service Commission, 69th Annual Report, p. 57. 7. ''Brownell Gives Stand on Loyalty," New York Times, April 26, 1953. 8. New York Herald Tribune, January 4, 1955, and "Court Backs Eisenhower on Security Dismissals," New York Herald Tribune, July 29, 1955. 9. "Text of the United Nations View of Security Tests," New York Times, January 3, 1953. 10. Emerson and Helfeld, op. cit., p. 69. II. J. Edgar Hoover, "A Comment on the Article 'Loyalty Among Government Employees,'" 58 Yale Law Journal 401. 12. FBI, Testimony of the Director on February 3 and February 7, 1950 before the Senate Subcommittee on Appropriations Regarding the 19 51 Appropria­ tion Estimates for the Federal Bureau of Investigation. ( mimeo.) 13. J. Edgar Hoover, "A Comment ..." op. cit. 14. J. Edgar Hoover (as told to Stacy V. Jones), "How the FBI Finds Disloyal Government Workers," Liberty, March 1948. Cf. Statement of Seth Richard­ son, Chairman, Loyalty Review Board, "Aims and Procedures Are Outlined by Loyalty Board," New York Times, December 28, 1947. "The Loyalty Program Upheld" (Editorial), New York Herald Tribune, March 23, 1950. 15. McAulliffe v. Mayor, etc., of City of New Bedford, 29 Northeastern Reporter 517 (1892). 16. U.S. v. Lovett, 328 U.S. 303, 316 (1945). 17. Walter Lippmann, "The New Loyalty Policy," New York Herald Tribune, February 5, 1953. 18. James Reston, "Security Risk Problem,'' New York Times, January 28, 1954; "Orators Hammer at 'Security Risks' But Don't Always Agree on Facts," Philadelphia Bulletin, February 14, 1954. 19. Bailey v. Richardson, 182 F. 2d 46, 57. Footnotes to the Study 85 20. For a graphic description of the difficulty of the accused when there is no confrontation, see the dissent of Judge Edgerton in Bailey v. Richardson, 182 F. 2d, 46, 66. 21. "The Role of the FBI in the Loyalty Program," FBI release, February 5, 1948. 22. Kotteakus v. United States, 328 U.S. 750, 752 (1946). See Justice Murphy's concurring opinion in Bridges v. Wixon, 326 U.S. 135, 163 (1945). 23. American Communications Association, C.I.O. et al. v. Douds, 339 U.S. 382,433 (1950). 24. Joint Anti-Fascist Refugee Committee v Clark, "We are convinced that the complaint does not present a justifiable controversy. The Executive Order imposes no obligation or restraint upon the Committee. It commands nothing of the Committee. It denies the Committee no authority, privilege, immunity or license. It subjects the Committee to no liability, civil or criminal." 25. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951). 26. Letter to author from James M. Mcinerney, Assistant Attorney General, July 11, 1950. Chapter Five. Control of Communists in Organized Labor 1. David Dubinsky, "A Warning Against Communists in Unions," New York Times Magazine, May 11, 1947, p. 64. · 2. American Communications Association, C.I.O. et al. v. Douds, 339 U.S. 383, 388 and note 4; Joseph and Stewart Alsop; "Professional Ex-Reds," New York Herald Tribune, January 18, 1953. 3. U.S. 82d Congress, 1st Session, Senate, Subcommittee on Labor and Labor­ Management Relations of the Committee on Labor and Public Welfare, Report "Communist Domination of Certain Unions" ( 1951). 4. Newsweek, June 2, 1947, p. 23. 5. Research Institute of America, The Communist in Labor Relations, p. 6. 6. Walter L. Daykin, "The Operation of the Taft Hartley Act's Non-Com­ munist Provision," Iowa Law Review, Summer 1951. 7. U.S. 82d Congress, 2d Session, House, Committee on Un-American Activi­ ties, Annual Report, 1952, p. 9. 8. Letter from David E. Lilienthal, Chairman, Atomic Energy Commission, to Charles E. Wilson, President, General Electric Co. quoted in U.S. 81st Con­ gress, 1st Session, House, Committee on Un-American Activities, Hearings, "Hearings Regarding Communist Infiltration of Labor Unions," 1949, p. 542-543; also in "Lilienthal Rejects Union Pleas," New York Herald Tribune, October 9, 1948. 9. U.S. 81st Congress, House, Committee on Un-American Activities, Hearings, "Hearings Regarding Communist Infiltration of Labor Unions," Part II, 1950. 10. Testimony of Colonel Ernest A. Barlow quoted in U.S. 81st Congress, 1st Session, House, Committee on Un-American Activities, Hearings, Hearings Regarding Communist Infiltration of Labor Unions," Part II, 1950, pp. 871- 875. 86 SECURITY AND LIBERTY "Loyalty Board is created for Military Contractors," New York Herald Tribune, December 6, I949. II. U.S. 83d Congress, 2d Session, House, Committee on the Judiciary, Sub­ committee No. I, Hearings, March through June I954, p. I44. I2. New York Herald Tribune, Aprili3, I953. 13. New York Times, September I3, 1954, ·and "Union Red-Ruled, U.S. Charges," New York Herald Tribune, July 29,1955. 14. 18 Federal Register 6528. 15. New York Herald Tribune, February 3 and 17, 1955. 16. Cf. American Communications Association, C.I.O. et al. v. Douds, 339 U.S. 383 . 17. Cf. Fortune, June I952, pp. 72-73. 18. "An Interview with J. Edgar Hoover," U.S. News and World Report, March 30, 1951. 19. Fortune, September I950, p. 50. 20. U.S. 83d Congress, 2d Session, House, Committee on the Judiciary, Sub­ committee No. 1, Hearings, March through June 1954, p. 390. 21. Cf. Fortune, June 1952, p. 76. 22. Fortune, October 1952, p. 92. Cf. Letter to Senator Humphrey from L. R. Boulware, General Electric Corp., printed in U.S. 82d Congress, 2d Session, Senate, Committee on Labor and Public Welfare, Subcommittee on Labor and Labor-Management Relations, Report, "Communist Domination of Cer­ tain Unions," Part IV, 19 52. 23. New York Times, September 17, I950. Chapter Six. Control of Communist Aliens l. U.S. Dept. of Justice, Annual Report of the Immigration and Naturalization Service, 1948, p. 7. "U.S. to Sweep Reds Back Where They Came From" New York Daily News, September 3, 1948. 2. Tom C. Clark, "Why the Reds Won't Scare Us," Look, August 30, 1949. 3. U.S. 8lst Congress, 2d Session, House, Document No. 708, Message from the President of the United States Returning Without Approval the Bill (H.R. 9480) etc. 4. 96 Congressional Record 17104. 5. Ibid., 17105. 6. U.S. 82d Congress, 2d Session, House, Report No. 1365. See also U. S. 82d Congress, Subcommittees of the Committees on the Judiciary, Joint Hearings (1951), pp. 250-268. 7. Evidently a deportation order can be tested in the courts by habeas corpus. The courts will apparently review the procedure to see that due process was accorded the alien scheduled for 347 U.S. 260. Report of the President's Footnotes to the Study 87 Commission on Immigration and Naturalization, Whom We Shall Welcome, p. 168. 8. 82d Congress, 2d Session, House, Document No. 520. 9. New York Herald Tribune, January 2, 1953. 10. New York Herald Tribune, January 5, 1953; and January 6, 1953. 11. New York Herald Tribune, March 18, 19 53. 12. New York Times, January 3, 1955. 13. U.S. Department of Justice, Annual Report of the Attorney General, 1950, p. 59. 14. U.S. Department of Justice, Annual Report of the Immigration and Naturali- zation Service, 19 51, p. 40. 15. New York Herald Tribune, September 3, 1953. 16. New York Times, January 3, 1955. 17. New York Herald Tribune, September 3, 1954, and "Refugee Changes Un­ likely in 1955," New York Times, May 1, 1955. 18. "16,000 New Americans Take Oath," New York Herald Tribune, November 12, 1954. 19. "Clarification Needed" (Editorial), New York Times, December 16, 1954. 20. New York Times, December 10, 1954. 21. New York Times, January 4, 1955, and "Belfrage's Detention Defended," New York Herald Tribune, July 2, 1955. 22. "228 Alien Subversives Free in U.S. But on Strict Parole," New York Herald Tribune, Aprilll, 1955. 23. 84 Congressional Record 10359. 24. 84 Congressional Record 9535. 25. U.S. 81st Congress, 1st Session, Senate, Subcommittee on Immigration and Naturalization of the Committee on the Judiciary, Hearings, "Communist Activities Among Aliens and National Groups" (1949), pp. 318-320. Cf. U.S. 82d Congress, 2d Session, House, Un-American Activities Committee, Report No. 1229, "The Shameful Years," 1952. 26. 79 Congressional Record 10862. 27. Quoted in President's Commission, op. cit., p. 201. Chapter Seven. Conclusions l. U.S. 83d Congress, 1st Session, Senate, Committee on Foreign Affairs, Ade­ quacy of United States Laws with Respect to Offenses against National Security, prepared by Library of Congress, 19 53. 2. "People Want Real Action Against Enemy Within" (Editorial), Philadel­ phia Bulletin, August 27, 1950. 88 SECURITY AND LIBERTY 3. "Text of Nixon's Address to Publishers," New York Herald Tribune, April 24, 1953. 4. Whittaker Chambers, Witness, passim. 5. Cf. Hanson Baldwin, "Atomic Secrecy," New York Times, March 1, 1953. 6. J. Edgar Hoover, "How to Fight Communism," Newsweek, June 9, 1947.

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