Chapter XIV WASHINGTON WITCH HUNT
And lest some one should persuade ye, lords and commons, that these arguments of learned men’s discouragement at this your order are mere flourishes, and not real, I could recount what I have seen and heard in other countries, where this kind of inquisition tyrannizes . . . There it was I found and visited the famous Galileo, grown old, a prisoner to the inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought.
John Milton, Areopagitica, 1644
The country will swarm with informers, spies, delators, and all the odious reptile tribe that breed in the sunshine of despotic power. The hours of the most unsuspected confidence, the intimacies of friendship, or the recesses of domestic retirement, afford no security . . . Do not let us be told that we are to excite fervor against a foreign aggression to establish a tyranny at home; and that we are absurd enough to call ourselves free and enlightened while we advocate principles that would have disgraced the age of Gothic barbarity.
Congressman Edward Livingston, speaking in the U. S. House of Representatives in opposition to the Sedition Act of 1798
Are your friends and associates intelligent, clever?
A question put by a U. S. Loyalty Board in 1948 to a government employee accused of disloyalty
I. The Loyalty Order
Executive order 9835 was issued by President Truman ten days after his speech before Congress proclaiming the Truman Doctrine.
Proximity in time was not the sole relationship between the two events. While the Truman Doctrine projected a foreign policy of aiding reaction and counterrevolution in the name of halting *’Communist expansion” abroad, the Truman Loyalty Order enunciated a domestic program of thought control and repression in the name of combatting the “Communist menace” at home.
One act complemented the other. Both crystallized the profound metamorphosis that had taken place in the United States since the death of Franklin Delano Roosevelt . . .
The sweeping scope and nationwide implications of the Executive Loyalty Order were indicated by an Associated Press dispatch from Washington on the day of the promulgation of the President’s decree:
President Truman’s Order . . . covers about 2,200,000 executive branch positions . . . On an individual basis the order could conceivably affect everybody in the executive branch from the President to the janitor in a small-town postoffice.
The Loyalty Order— without defining the meaning of “loyalty”— prescribed an elaborate program of investigative procedure, including the establishment of “loyalty boards” in all executive branch agencies of the Government and the compilation of a list of “disloyal organizations” by the Attorney General. The stated purpose of this program was to effect “maximum protection” to “the United States against infiltration of disloyal persons into the ranks of its employes.”
Actually, the Order provided no method for counteracting the operations of possible foreign agents and spies within the United States Government— such contingencies were already amply covered by existing Federal statutes. As L. A. Nikoloric, a member of the well-known Washington law firm of Arnold, Fortas and Porter, wrote in an article entitled “Our Lawless Loyalty Program” in The Progressive magazine:
The loyalty program couldn’t catch a spy, for it is what its name implies— a method to test the total adherence of Federal employes to certain undefined standards of thought. Its purpose, ostensibly, is to catch Communists, but if you’re a Government worker, you can be branded for life even if you aren’t and never were a Communist. You are disloyal— in the Federal service — if, in the opinion of your agency’s loyalty board, you are or ever have been
(1) sympathetic to Communism,
(2) friendly to organizations allegedly sympathetic to Communism,
(3) associated with persons in groups (i) or (2)
(4) considered talkative in the presence of persons in groups (i),
(2) or (3).
Nikoloric added: “Furthermore, it is not required that the boards prove that you belong in any of these categories. If there is any doubt you lose the verdict.”
Commenting on the procedural techniques outlined in the Order, four outstanding legal authorities— Ernest N. Griswold, Dean of the Harvard Law School; Austin W. Scott, an eminent specialist on the law of trusts; Milton Katz, Professor of Law at Harvard Law School; and Zechariah Chafee, Jr., noted authority on constitutional law and Professor of Law at the Harvard Law School — wrote in a letter to the New York Times on April 13, 1947:
There is no provision that the accused shall be confronted by such evidence as there may be to support the charges against him, so that he may undertake to rebut it. Indeed there is no requirement that the evidence against him shall be introduced at the hearing at all.
No provision is made for a detailed record of the hearing or, for that matter, for a record of any kind. There is no requirement that the findings of the loyalty board must be supported by the evidence . . .
Considerably less concern over the anti-democratic and unconstitutional character of the loyalty program was displayed by the elected representatives of the American people. With few exceptions, Democratic and Republican congressmen enthusiastically hailed Truman’s Loyalty Order as a “vital contribution” to the nation’s welfare.
It’s good to see that he [Truman] has finally awakened to the truth of what we’ve been telling him for the last few years,” declared Congressman Joseph E. Martin, Republican speaker of the House of Representatives.
“The President’s program is almost precisely that which the House Committee on Un-American Activities has been advocating for at least four years,” asserted Representative Karl E. Mundt, one of the Committee’s most active members.
In the opinion of Representative John E. Rankin, the Loyalty Order was “just what the country needs” . . .
Returning from the Nuremberg trials in Germany, where he had been Deputy Chief Counsel to the American prosecution staff, attorney Abraham Pomerantz wrote in a letter to the New York Times on May 4, 1947:
… we have absorbed into our own legal system the German tyranny that we fought and inveighed against. I refer to our executive order which provides that any one of two and one-half million employees in the executive branch of our Government can be summarily fired if he is, or ever was, a member of, or in “sympathetic association” with, any organization or combination of persons placed by the Attorney General of the United States on his private blacklist.
The condemned organization receives no indictment or even intimation that its loyalty is impugned. It gets no hearing or opportunity to contest the charge . . . The American citizen … is afforded no opportunity to challenge the Attorney General’s ex-parte condemnation of his organization.
This conviction without trial, borrowed from the darkest days of the Nazi inquisition, is a startling innovation in American judicial procedure.
Another aspect of the Executive Order presents a striking and sickening parallel to a Nazi decree which provided that no person could hold public office unless he could prove “by his conduct that he is willing and able to serve loyally the German people and the Reich.” (Law regarding Citizens of the Reich, of September 15, 1935.) … In my judgement, the Executive Order is, both substantially and procedurally, the most Nazi-like and terrifying law since die Alien and Sedition Acts.
Such condemnation of the Loyalty Order failed to perturb Attorney General Tom C. Clark. In language remarkably reminiscent of that used by Attorney General Palmer during the anti-Communist drive after the First World War, the soft-spoken Texan depicted the loyalty program as a means of promoting “Christian principles” and defending “the democracy and constitutional rights fought for and secured by our forefathers.”
From material provided for the most part by the FBI and the Un-American Activities Committee, the Attorney General proceeded to compile what the New York Times described as “an initial master list of Communist organizations for use in ferreting out disloyal Government employees.” On December 4, 1947, the “initial master list” was released to the nation. It included the names of seventy-eight organizations which, according to Attorney General Clark, were “totalitarian, fascist. Communist or subversive.”
About half of the organizations named by the Attorney General were German, Japanese and Italian organizations which had operated in the United States before or during the war. None of these organizations was any longer in existence.
The remainder of the list consisted almost entirely of progressive and left-wing groups, committees engaged in the defense of civil liberties, and anti-fascist organizations. In making his selection, reported PM Clark “appeared to follow the lead of the House Committee on Un-American Activities.” *
* Among the progressive organizations on Clark’s list, grouped together with the Communist Party of America, were the Civil Rights Congress, the Joint Anti-Fascist Refugee Committee, the National Council of American-Soviet Friendship, the Veterans Against Discrimination, the National Negro Congress, the United Negro and Allied Veterans of America, and the International Workers Order.
On May 28, 1948, Clark published a second “subversive” list, naming thirty-two more organizations as “disloyal.” The only fascist organization on this second list was the Ausland-Organization der N.S.D.A.P., the overseas branch of the Nazi Party, which, of course, had ceased to exist long before Clark’s list was drawn up . . .
Regarding the use to be made of his lists, the Attorney General declared: “We shall do this in the American way … in a legal orderly manner. We shall not use Gestapo tactics of a Hitler or destroy the very institutions of Hberty and justice that we have fought so hard to preserve.”
But the actions of the newly established Loyalty Boards spoke louder than the words of the Attorney General. These actions were soon conjuring up in America what Abraham Pomerantz described as “shades of the malodorous German People’s Courts.”