War Powers, War Lies: Part 19: Are You Now, Or Have You Ever Been?

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War Powers, War Lies: A Series: Part XIX: Are You Now, Or Have You Ever Been?


            This series has mainly been about the Executive and the Judiciary.  The Executive begins, wages, and (as is happening now) tries to find ways out of wars.  The Judiciary, very occasionally, serves as a check on such activities.  The Legislative Branch, which in the Founding Fathers’ design was supposed to have had the sole discretion to initiate wars, has been nearly left out of this discussion because there has been so little to discuss; Congress has proven toothless and irrelevant.  But now it is time to talk about Congress again.


            We have been considering the attacks on civil liberties of speech, association, and even thought which have been mounted by the Executive in the name of defense in time of war.  As we have seen, these attacks sometimes stemmed from nothing worthier than the desire of the Executive not to be criticized, or to build political support by pandering to xenophobia or political or religious reaction.  But sometimes these attacks have been conducted to address real problems with treason, or espionage or subversion by agents of foreign powers.  As we saw last time, the loyalty reviews begun by the Truman administration, reviews which persisted until the 1970s, were instituted because domestic Communism posed both a political embarrassment to Truman and a real threat to the autonomy of the U.S. government during the Cold War.  (Unfortunately, as we also saw, these reviews ultimately proved imprecise tools, destroyed a remarkable number of innocent governmental careers, and grew to constitute a threat to civil liberties far graver than the threat to national security they were intended to counter.)


            In the 1940s and 1950s, Congress got into the act as well.  It passed some laws and conducted some investigations.  We shall consider them briefly this time.


            The two most important anti-Communist laws were the Smith Act of 1940 (54 Stat. 670-71), and the Subversive Activities Control Act, Title I of the Internal Security Act of 1950 (64 Stat. 987).  The Smith Act criminalized advocating overthrowing the government by force or violence.  The Subversive Activities Control Act effectively required the registration of the Communist Party of the United States (“CPUSA”) and the revelation of the names of its members, the registration of the identities and memberships of Communist “front” organizations.  It also imposed certain disabilities upon Communists, including loss of passports, inability to naturalize as citizens, denaturalization, disqualification from access to classified government information and hence to jobs which required such access, and from employment as labor union officers.


            As we have seen, Justices Holmes and Brandeis, in influential dissents starting in 1919, refined the “clear and present danger” test for speech and association the government could penalize as sedition.  Their reasoning was that even heated rhetoric about violent overthrow of the government, without any real likelihood of influence, did not constitute such a danger, and hence its prohibition would violate the First Amendment.  The rise in domestic Communism during the 1930s and the advent of the Cold War starting in 1945 provided a plausible way around this roadblock.  No sane person could envision that the U.S. faced immediate peril from violent overthrow by Stalin’s stateside minions.  It was nonetheless conceivable that such peril might arrive someday.  Legislative findings in the 1950 Act attempted to use imaginings about a hypothetical future to square the circle.  These findings included notice that the “rigidly and ruthlessly disciplined” CPUSA is “awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement.”  To whom it might seem that way was not spelled out.  Nor was the discontinuity between hypothetical conditions that might exist in the future and the “present” element of the clear and present danger test.


            Moreover, there was a real question whether the Congressional finding was even accurate in describing what most domestic Communists believed and aspired to.  It was possible to find some advocacy of violent overthrow of “petit bourgeois” governments in the voluminous writings of Marx and Lenin, but these words, going back as far as 1848, were written in a vastly different context from that of mid-20th Century America.  The Supreme Court had recognized as much in Schneiderman v. United States, 320 U.S. 118, 154-55 (1943).  Many dedicated American Communists would never have dreamt of violent overthrow.  A typical case was that of Maryland attorney Maurice Braverman, a Smith Act convict who convinced the Fourth Circuit (if not the majority of the judges of the Maryland District Court sitting en banc), that he personally had never advocated or even understood that Communism included advocacy of violent overthrow.  Matter of Braverman, 549 F.2d 913 (4th Cir. 1976).  But the linkage had to be made if the persecution of Communists was to succeed in the courts.  After the Brandeis-Holmes First Amendment jurisprudence, Communism could not be criminalized or oppressed unless such advocacy was effectively linked to it.  Congress, in passing the 1950 Act, tried to provide that link by making legislative findings designed to avoid the messy and unpredictable individualized fact-finding judges, juries and Supreme Court justices were dispensing in individual trials of individual Communists.


            The Government deliberately provoked a major test of the Smith Act by a show trial of Communist leaders in 1949 in New York that became Dennis v. U.S., 341 U.S. 494 (1951).  The offense charged was that these leaders had met to plan a reorganization of the Party, including publications and training sessions in which they would spread Communist doctrine.  The Supreme Court, in a ruling by Chief Justice Vinson, genuflected low to the Brandeis-Holmes approach, but upheld the Smith Act by interpreting the “present” element out of existence, by affirming a jury instruction that an intent to inculcate revolution “as speedily as circumstances would permit,” even if it might mean never, and irrespective of the revolutionaries’ chances of success, could constitute a clear and present danger.  The 1950 Act, and the legislative linkage of CPUSA to advocacy of violent overthrow, were upheld in Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1 (1961).


            With the framework of these laws in place, the Congress was free to hunt the Communist witches.  Most historians would tell us that by the time the Congressional investigations were well under way, whatever threat domestic Communist subversion had truly posed was largely gone.  The atomic spies had already stolen our secrets and sent them to Russia, the labor unions had purged most of their openly or covertly Red officers, and U.S. foreign policy was again being made and conducted exclusively by functionaries who reported to Washington, not Moscow.  And CPUSA was bereft of numbers or relevance, kept on secret economic life support by the Kremlin.  Still, anti-Communism was boffo at the political box-office.  And so Congress in effect discovered a war power of its own.


            The theory of legislative investigations is that they are intended to provide information for Congress to use in framing new laws or revising old ones.  And certainly the Subversive Activities Control Act of 1950 can legitimately be counted as the fruits of this early investigative endeavor.  But fundamentally the investigations were political theater from start to finish.


            The great witch-hunts really began when Richard Nixon, as a freshman congressman, became a star on the House Committee on Un-American Activities (“HUAC”) after the Republicans seized control of Congress in the elections of 1946.  In the newly-reformed Committee, he was fed information by J. Edgar Hoover and the FBI, and also by Father John Cronin, point man for the U.S. Roman Catholic Church’s anti-Communist efforts.  Nixon used these sources t o gain great celebrity in grilling witnesses like Whittaker Chambers, who unmasked Alger Hiss.


            It was an early version of the Red State/Blue State culture wars.  The first victims, for instance, were The Hollywood Ten,[Comment2]  a group of screenwriters, some of whom were also producers and directors, and some of whom had in fact been involved in mild efforts behind the scenes to keep anti-Stalinist messages off the silver screen.   But the real drama was in the dragging of members of the liberal Hollywood intelligentsia, mostly Jewish ones at that, to their knees before Christian middle American Congressmen and denouncing them for their politics.  One of two of them were still Communists, but most had already left the Party, which had destroyed its credibility with its double reversals of position on Hitler during the 1940s.  As is well-known, all were blacklisted, along with upwards of 200 of their creative fellows, many of whom were summoned to testify before HUAC in 1951.


            The two other great targets of the culture wars masquerading as investigations were the federal government, especially the State and Defense Departments, and the labor unions, all in their various ways Republican targets.  And the champion investigator was of course Joseph McCarthy, junior senator from Wisconsin, who was handed the reins of the Senate Permanent Committee on Investigations in 1953.  The investigatory style McCarthy and chief counsel Roy Cohn brought to the effort was a compound of vilification, false accusations, and innuendo.


            The central drama would be the ritual inquisition: “Are you now or have you ever been a member of the Communist Party?”  Given the Smith Act, a truthful yes answer might be self-incrimination, so most of the victims could take the Fifth Amendment, but that would subject them to just as much if not more opprobrium.  A no answer would draw abusive cross-examination.  Or the witness might “name names,” which would be just as theatrical and provoke as much notice.  Since Congress had found as fact by 1950 everything about the nature and role of CPUSA it may have felt it needed to pass legislation, the only purpose this ritual served was exorcism – and blame of the Democrats and liberals for having allowed the supposed inundation of government, politics and culture by Communists to have happened.


            The details of McCarthy’s personal comeuppance are well known.  It was one thing to humiliate and destroy real ex-Communists.  When he attacked the Army, however, a victim big enough to take care of itself, the loose and irresponsible accusations that had always been his hallmark no longer served him well.  His bluff was called, his accusations were found to be groundless, he was censured by the Senate, and, though he retained his office, he was finished politically.  He drank himself to death in short order.  The Red Scare largely died even before he did.


            The Smith Act remains on the books, and the Court has never repudiated Dennis explicitly.  But after the Dennis case the Smith Act became an unreliable tool.  The Supreme Court found in Yates v. United States, 354 U.S. 298 (1957) that revolutionary advocacy might not automatically amount to a clear and present danger, and courts dismissed many indictments.  As historian John Haynes concluded: “By the late 1950s the Smith Act was no longer effective against the Communist party.”   The effective provisions of the 1950 Act too were cut down by successive later rulings as the Warren Court gained ascendancy: e.g. Aptheker v. Secretary of State, 378 U.S. 500 (1964) (passport restrictions), Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965) (registration – as a compelled admission of violations of the Smith Act), United States v. Robel, 289 U.S. 258 (1967) (the bar to employment in defense facilities).


            But the final nail in the coffin – of both laws, really — was a case not decided under that Act, but under an Ohio state law which, like the Smith Act, made simple advocacy of violent means to change the government, irrespective of the likely danger or the imminency of the acts advocated, illegal.  In Brandenburg v. Ohio, 39 U.S. 444 (1969), the defendant was a Klansman, not a Communist, and really all he personally had been found to have done was protest an America in which African Americans and Jews had equal standing with the rest of the populace.  He told a TV interviewer that “it’s possible that there might have to be some revengeance taken,” and this was the closest he came to a threat.  Sanity prevailed, and the “clear and present danger” test, with its vulnerable ambiguity, was replaced with a First Amendment requirement that the speech be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”  As it happens, hardly anyone ever engages in such speech, because, after all, there are truly very few real insurrectionists among us.


            With Brandenburg, finally, after nearly 175 years of failed efforts by presidents and Congresses to produce laws against sedition that remained politically and judicially viable, prosecution for sedition has stopped being a war power.  Well, most likely.  Eastern District of Virginia prosecutors in 2005 tested the limits of Brandenburg by successfully prosecuting Ali Al-Timimi, a Muslim cleric, for advocacy of jihad that may have helped persuade certain adherents to travel to Afghanistan to train with the Taliban.  That sentence is on appeal (and may be reversed without reaching the constitutional issue because of possible contamination by illegally-obtained NSA wiretap evidence).   Generally, though, it is notable that the many presidents since Brandenburg who waged fiercely criticized wars, including the present one, have not thought to prosecute their critics for sedition.


            Sedition has not worked, in the end, because it was always a phony concept.  Dissent is seldom disloyalty.  Dissent helps make this country strong.  And besides, dissent is as American and as common as apple pie.  Of course there will be espionage and subversion at times, but sedition laws neither should nor can be successfully used to counteract them.


            That is not to say that our presidents have suddenly grown accepting of criticism of their wars.  With the next column, we shall turn our attention to more modern invocations of war powers to marginalize critics, such as cutting off press access to vital information, manipulating media images, and new twists on good, old-fashioned disinformation. 


Copyright (c) Jack L. B. Gohn

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