War Powers, War Lies: Part 18: Proxies

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War Powers, War Lies: A Series: Part XVIII: Proxies

 

            With the signing of Japan’s surrender on September 2, 1945,  the United States went to war.  This was a forty-years’ war, not a trifling four-year affair like World War II.  There was no declaration, and we never had a direct armed exchange of any consequence with our principal foe, the Soviet Union.  All military action in this war was waged through, or at least against, proxies, often on the home front.  But it was called a war, the Cold War, and governmental efforts connected with it to curtail First Amendment freedoms were justified essentially in war terms.

 

            The fact that it was a war waged with proxies had most peculiar consequences on the home front, where the enemy’s proxies were American Communists.  In today’s popular culture, the prosecutors and Congressmen who went after the Communists are often depicted as narrow-minded obsessives who played havoc with innocent Americans’ lives.  And this was largely true.  There is little good to say about the central figures, Senator Joseph McCarthy, a drunken demagogue, and J. Edgar Hoover, whose odious record is too well known to require comment.  But at least in the early going, the hunt for Communists addressed a real problem, not a made-up one.

 

            The problem started as a classic instance of the conundrum we have been discussing over the last two pieces: the difficulty of responding to a range of related activities that span the spectrum between legitimate party politics on the one hand and other acts fostered by the same political party that nonetheless amount to participation in war against the nation on the other.  The Communist Party of the United States (“CPUSA”) exemplified such a broad span.  Its charter, along with the charters of all communist parties, had once specifically subordinated it to the Communist International, located in Moscow.  Although the International was dissolved in the 1940s, and CPUSA formally dissolved its Moscow ties at around the same time, for much of its lifespan, CPUSA had been a party that, with little concealment and without apology, took its direction from the nation that, by the end of the 1940s, had become our great adversary.  (And of course the dissolution of formal ties meant nothing when Moscow was continuing to pay most of CPUSA’s bills.)  Subject to this Soviet direction, the Party switched from deploring Hitler’s fascism to approving it (after a Soviet-German alliance was suddenly proclaimed in 1939) to deploring it again after Hitler invaded Russia in 1941.  This, of course, was not the way any other U.S. political party was organized or behaved.

 

            This was not to say that everyone in CPUSA or sympathetic to it took orders from Moscow.  CPUSA also had the character of being a true American political party.  Many idealistic workers and intellectuals joined it in the 30s and 40s simply because of its critique of real flaws in a capitalist society, and participated exactly as participants in any other party would, or at least they tried to.

 

            But that was only the beginning of the peculiarities.  Many of the Communists were covert.  They pretended not to be Communists, the better to attempt secret takeovers of labor unions, other political groups, and parts of the government.  Some went further than that, engaging in outright espionage.  The nation’s nuclear secrets were largely shipped to the Soviet Union by home-grown Communist spies, enabling Stalin to develop the bomb a decade earlier than he probably would have done.  In short, by design, CPUSA’s activities and influence were kept hard to gauge, and many labor leaders, politicians, and civil servants who were ostensibly playing by the same political rules as the rest of us were in fact part of a monolithic conspiracy to fix the game in ways favoring a foreign power that had become our foe.

 

            CPUSA’s official doctrine was also problematical.  Preaching the rottenness of a capitalist society was clearly a legitimate effort to “change the mind of the country” in Justice Holmes’ phrase from his Abrams dissent, discussed last time.  Preaching a violent revolution against a capitalist society — and many Communist writings seemed to do so — was not so clearly within bounds.

 

            In a brilliant 1950 essay, Heresy Yes, Conspiracy No, political philosopher Sidney Hook put his finger on the problem CPUSA posed.  He defined a heresy as a “set of unpopular ideas or opinions on matters of grave concern to the community,” and he maintained that openness to heresy was “an essential element of a liberal society.”  (This was essentially the perception that, as discussed last time, Justice Holmes had come to over the summer of 1919 in between the Schenck and Abrams decisions.)  Communist ideas, Hook said, were heresies, which should be studied and evaluated, and which posed little danger “where they are freely and openly expressed.” 

 

            But the Communist movement, by contrast, was a “conspiracy, [i.e.] a secret or underground movement which seeks to attain its ends not by normal political or educational processes but by playing outside the rules of the game.”  And Hook noted that conspiracies “ruthlessly destroy all heretics and dissenters.”  (The Stalinist purges, which CPUSA cadres loyally defended, served as proof of this.)  Hence, Hook reasoned, “a conspiracy cannot be tolerated … in a liberal society.”

 

            But if a society chooses not to tolerate a conspiracy that has wrapped itself in a heretical political party and a heretical public political philosophy, then how is the society to fight back other than by purging the heretics?  Hook thus concluded that purging the heretics was the way to go.  In his view, association by way of membership in CPUSA “is not innocent … but is a form of active co-operation and collaboration” in the conspiracy.

 

            By the time of Hook’s essay, the program of purging heretics in order (allegedly) to make the world safe for heresy had already been under way for some time. On March 22, 1947, President Truman issued Executive Order 9835, which established a loyalty review board system for federal employees.  It could be argued Truman viewed this as a distasteful political necessity.  The nation, just emerged from the nightmare of the Second World War, suddenly found that Stalin was taking over Poland, that there were Communists at high levels in our State Department who had been plundering confidential documents, and that the Democratic administration had been covering up what it had found out about those thefts.  Separately the nation was waking up to the leakage of nuclear secrets to the Soviet Union.  The integrity of our government had been compromised to an unknown degree, and the Republicans were using that uncharted weakness as a huge talking point.  Politically speaking, Truman surely had to do something.

 

            Order 9835 authorized the Civil Service Commission to investigate the “loyalty” of all persons entering U.S. executive service, and directed the head of each government agency to investigate charges of disloyalty within his or her department.  Because the Russian-controlled infiltrators at whom the program was aimed would be expected to deny their Russian-directed status, the Commission and the loyalty boards within the agencies were directed to consider “activities and associations of an applicant or employee.”  In other words, to consider Communist affiliation, Communism becoming the proxy of enemy agent status (though many Communists would never have dreamt of betraying the U.S.).

 

            And since Communists, like Russian agents, frequently denied their party affiliation, proxies had to be used for that too, in the form of affiliation with any organization designated by the Attorney General as “subversive.”  The Attorney General began his List of Subversive Organizations (known as AGLOSO) in 1947 with a list of 93 organizations.  But, as historian Howard Zinn has noted: “By 1954, there were hundreds of groups on this list, including, besides the Communist party and the Ku Klux Klan, the Chopin Cultural Center, the Cervantes Fraternal Society, the Committee for the Negro in the Arts, the Committee for the Protection of the Bill of Rights, the League of American Writers, the Nature Friends of America, People’s Drama, the Washington Bookshop Association, and the Yugoslav Seaman’s Club.”   AGLOSO was compiled without due care in establishing the actual subversiveness of the organizations listed, was full of defunct organizations, and was never up-to-date.  Though constitutionally challenged from time to time, AGLOSO held on into the 1970s, and was used (often in combination with demands for loyalty oaths) as a basis for denying not only government employment but passports, membership in the bar, and of course good repute.

 

            But the loyalty boards were required to go further still, since a disloyal government employee might not provably hold a party card or have joined a supposedly telltale front organization.  So, people’s very thinking also had to be used as a proxy for proof of their disloyalty.  Investigators looked at speaking engagements, magazine subscriptions, and reading matter of the employees cast under the microscope. While investigators were particularly directed to the factor which rendered Communism unacceptable as a philosophy, i.e. the advocacy of violent or otherwise unconstitutional overthrow of the government, the thoughts that could get one in trouble went far beyond advocacy of violent or unconstitutional overthrow of the U.S. government.

 

            For instance, in 1954, my own father was purged from the State Department (he had been the economic attaché in the U.S. Embassies in London and Vienna, focusing on postwar reconstruction) for reasons that were never made explicit, on the testimony on witnesses never identified to him.  But it appeared that what had got him into trouble was his having delivered a speech favoring world government, and having been born into a family that featured a Communist cousin or two.  Someone at the State Department was uncomfortable with the way he thought or with his family connections, and that was really all that was needed.  His case was typical. Groupcrime (membership in the Party or an alleged front) had become a proxy for disloyalty, and thoughtcrime (advocating or even thinking not only revolutionary but also merely progressive ideas) had become a proxy for groupcrime.  And you could be guilty, or at least get yourself marked for purging, even by family association.

 

            In his signing statement on 9835, Truman emphasized that he intended the burden of proof to rest with the government, and that he was not setting up “‘kangaroo’ courts.”  In keeping with this promise, the standard of proof was “reasonable grounds.”  And yet, even early on, that was often not the way the loyalty tribunals really worked.  For one thing, as noted, the agency inquisitors were not required to identify their informers, making a defense frequently impossible. For another, Truman changed the standard of proof in 1951, under Executive Order 10241, which substituted simple reasonable doubt as to the employee’s loyalties as a reason for nonhire or termination.  So all that needed to happen to lose you your job was for some nameless accuser to tell the authorities something that made your loyalty suspect.  The rationale, of course, was that we were at war, and national security was more important than fairness in individual cases (an argument with a surprisingly modern ring).  And in any case, there was no right to government employment mandating that denying such employment be fair.

 

            There seems not to have been a Supreme Court test case of the constitutionality of such a program.  In the case that served as the next best thing, the D.C. Circuit’s Bailey v. Richardson, 182 F.2d 46 (1950), Judge E. Barrett Prettyman concluded that while the procedures of the loyalty panels did not comport with the demands of due process in trials, they were not trials, but only administrative proceedings to which due process did not apply.  The Supreme Court, with Justice Tom Clark recused, split evenly and thus affirmed.  341 U.S. 918 (1951).  (This holding was not overturned until 1972, in Board of Regents v. Roth, 408 U.S. 564.) 

 

            Reportedly, three million government employees were investigated under the loyalty programs, and thousands lost their jobs, especially between 1947 and 1951.   The repetitive and Kafkaesque ordeal of those employees is typified in Service v. Dulles, 354 U.S. 363 (1957), culminating the struggles of a Foreign Service employee whose career had become damaged goods when he leaked State Department documents to a Communist-affiliated publication, Amerasia.  It was widely understood that Service committed the leaks not to support Communism, but instead to sound the alarm about the corruption and instability amongst the Nationalist Chinese.  But Service kept being investigated for disloyalty and cleared and investigated again.  Eventually, even though cleared, he was fired anyhow.  Another case that conveys the flavor is Peters v. Hobby, 349 U.S. 331 (1955), concerning the efforts of an oft-investigated Yale professor to continue serving as a consultant to the Public Health Service.  The identity of an important witness against him was not even known to the Loyalty Review Board.

 

            Unlike some, including my father, Service and Peters were reinstated by the Supreme Court.  But in none of the cases did the Court question the constitutionality of 9835.  The loyalty program remained in force, although much less frequently used as time went on, until 1971, when, ironically, it was revoked by that champion anticommunist, Richard Nixon.   Nixon also revoked the Attorney General’s List portion of the order in 1974. 

 

            Of course the pursuit of thoughtcrimes and groupcrimes to defend us against the Communist Cold War against us did not stop at government employee loyalty programs.  Next time we shall consider the laws that criminalized domestic Communism and the Congressional witch hunts.

 

Copyright (c) Jack L. B. Gohn

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