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The Grapes of Mcgrath: the Supreme Court and the Attorney General's

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The Grapes of Mcgrath: the Supreme Court and the Attorney General's The Grapes of McGrath: The Supreme Court and the Attorney General’s List of Subversive Organizations in Joint Anti-Fascist Refugee Committee v. McGrath (1951) ROBERT JUSTIN GOLDSTEIN∗ The so-called Attorney General’s List of Subversive Organizations (AGLOSO) was one of the most central and widely publicized aspects of the post–World War II Red Scare, which has popularly—if inaccurately—become known as “McCarthyism.” Like many other elements of the Red Scare, the AGLOSO in fact predated the emergence of Senator Joseph McCarthy on the national political red-hunting scene. It originated in President Harry Truman’s Executive Order 9835 of March 21, 1947, which required all federal civil-service employees to be screened for “loyalty” and specified that one criterion to be used in determinations that “reasonable grounds exist for belief that the person involved is disloyal” would be a finding of “membership in, affiliation with or sympathetic association” with any organization determined by the Attorney General to be “totalitarian, Fascist, Communist, or subversive” or advocating or approving the forceful denial of constitutional rights to other persons or seeking “to alter the form of Government of the United States by unconstitutional means.”1 Beginning in late 1947, the federal government began publishing AGLOSO lists, which ultimately reached almost 300 organizations, without offering the targeted groups either hearings, specific charges, or advance notice. This led Washington Post editorial writer Alan Barth to term the Attorney General’s AGLOSO mandate “perhaps the most arbitrary and far-reaching power ever exercised by a THE GRAPES OF McGRATH 69 In 1947, President Harry Truman mandated that federal civil-service employees be screened for loyalty, with one consideration their membership in, affiliation with or sympathetic association; with organizations deter- mined by the Attorney General to be Communist, Fascist, totalitarian, or subversive. Pictured are government postal workers in the 1940s. single public official” in American history, effectively allowing that official to “stigmatize” and “in effect, proscribe any organization of which he disapproves.”2 Although the only officially announced purpose of the AGLOSO was to provide guidance in federal civil-service loyalty determinations, it quickly became used by a wide variety of public and private organizations as the basis for discriminating against persons alleged to be affiliated with listed organizations and the groups themselves. Thus, it was utilized by state and local governments, the military, defense contractors, hotels, the Treasury Department (in making determinations regarding tax exemption) and the State Department (in making passport decisions), to cite only a few of many examples.3 FBI Intelligence Division official A. H. Belmont wrote to Assistant FBI Director D. M. Ladd on March 18, 1952 that AGLOSO listings had been “found from experience to have substantially impeded the effectiveness of the [designated] organization.”4 Both scholars and the general press have clearly agreed with this assessment. Various scholars have written that the AGLOSO, which was massively publicized in the media, became what amounted to “an official black list”5 and “usually a kiss of death”6 to listed groups, which came to have in the public mind “authority as the definitive report on subversive organizations,” understood as a “proscription of the treasonable activity of the listed organizations”7 and the “litmus test for distinguishing between loyalty and disloyal organizations and individuals.”8 Thus, an April 28, 1949 New York Times story about the listing of additional AGLOSO organizations was headlined “Government Proscribes 36 More Groups as Subversive, 23 of Them ‘Communist,’” while a number of files related to the AGLOSO held in the Eisenhower presidential library are marked “blacklisted organizations.”9 In an article entitled “What the Attorney General’s List Means,” 70 JOURNAL OF SUPREME COURT HISTORY the November, 1956 Elks Magazine began by accurately noting that “there are few Americans who have not heard of ‘the Attorney General’s subversive list’” and concluded by summarizing the AGLOSO’s clear message: “There is no excuse for any American citizen becoming affiliated with a group on the Attorney General’s list today.” In April 1951, in a decision featured in conservative American Federation of Labor front-page headlines across the country, the President William Green. A 1944 NCASF U.S. Supreme Court struck the first major blow dinner held to celebrate the twenty-sixth against the AGLOSO, in a complex and am- anniversary of the Soviet Army received biguous decision, Joint Anti-Fascist Refugee congratulatory messages from five American Committee v. [Atorney General Howard] generals, including Dwight Eisenhower and McGrath,10 which overruled six lower court Douglas MacArthur; its membership included decisions and required that three designated or- at least three Congressmen and Secretary of ganizations be allowed to contest their listings. the Interior Harold Ickes. During the Cold The High Court ruling concerned the Joint War, the NCASF became widely viewed as Anti-Refugee Committee (JAFRC), the Na- an outlet for Soviet propaganda and its di- tional Committee on American-Soviet Friend- rector was found in contempt of Congress in ship (NCASF), and the International Workers 1946 for failing to provide HUAC with subpoe- Order (IWO), three clearly left-wing organiza- naed records. The IWO, the largest organiza- tions, which were among the largest and most tion ever AGLOSO-listed while still function- prominent AGLOSO-designated groups. ing, was a fraternal insurance benefit society The JAFRC had been licensed in 1942 chartered by the state of New York that, al- to provide medical aid for Spanish Civil War though clearly under very substantial Commu- loyalist refugees in France by President Roo- nist Party (CP) influence, enrolled over one sevelt’s War Relief Control Board and, like million Americans (fewer than five percent of the other organizations, had been granted them CP members) between 1939 and 1950. It tax-exempt status by the Treasury Depart- was praised during World War II by a variety ment which had been withdrawn following its of public officials, including Ickes and Senator AGLOSO designation. The JAFRC included Robert Wagner (D-NY), was awarded a Trea- Communists in its leadership, but, like the sury Department certificate of merit for selling other two organizations, was never accused almost $300,000 in war bonds, and had repeat- of illegal activities. However, early on it at- edly received high evaluations in regular re- tracted the attention of the House of Represen- views by New Yorkstate and private insurance tatives Committee on Un-American Activities raters.11 (HUAC), resulting in 1946 contempt-of-court Each of the three organizations had origi- sentences against its entire leadership for nally filed separate suits against the Attorney failing to supply HUAC with subpoenaed General and other federal officials in federal records. The NCASF was organized to pro- district court in Washington, D.C. in 1948 and mote Soviet-American friendship at a 1942 1949, maintaining that their listing had un- New York City mass meeting which received constitutionally denied them free-speech and greetings from President Roosevelt and Vice due-process rights by damaging their ability President Henry Wallace, was sponsored by to conduct legitimate activities, by impairing three Cabinet members, and was attended their reputations and fostering a wide range by 20,000 people, who heard speeches from of reprisals against them, and by depriving New York Governor Herbert Lehman, New them of any opportunity to contest their des- York City Mayor Fiorello Laguardia, and ignations. For example, with regard to First THE GRAPES OF McGRATH 71 The Joint Anti-Fascist Refugee Commission had its tax-exempt status withdrawn once it was placed on the Attorney General’s List of Subversive Orga- nizations (AGLOSO). It had been licensed in 1942 to provide medical aid for Span- ish Civil War loyalist refugees in France by President Roosevelt’s War Relief Control Board. Pictured here, a Spanish Red Cross poster asks for sup- port for imprisoned antifascists and their families in 1936. Amendment rights, the NCASF maintained eral tax exemption, costing “large sums of that it and its affiliates had been “seriously money which they would otherwise have re- frustrated and unduly burdened” in exercising ceived as contributions;” and lost the ability its First Amendment rights, as it had “lost nu- to “get members and support from federal merous members, officers and sponsors; lost employees,” who feared that their “employ- public support; lost contributions; lost atten- ment would be jeopardized.” Beyond the al- dance at meetings; lost circulation of their pub- leged damage to their First Amendment rights, lications; lost acceptance by colleges, schools the three organizations maintained that their and organizations of their exhibits and other Fifth Amendment due-process rights had been material; have been denied meeting places; violated because the government’s AGLOSO have been denied radio time;” lost their Fed- designations were arbitrary, especially by not 72 JOURNAL OF SUPREME COURT HISTORY granting them hearings or other procedures al- on executive powers not subject to judicial re- lowing contestation of their listings. Thus, the view and that, in any case, the AGLOSO in- IWO maintained
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