The Communist Party and the Law
Ever since the Russian Revolution, there have been sporadic legal efforts to checkmate the spread of Communism in America. In this paper JUDGE CHARLES F. WYZANSKI, JR., examines the legal positions from which the Government proceeded against the Communists in the recent trials under Judge Hand and Judge Medina. A graduate of Harvard and the Harvard Law School who served as secretary to Judge Augustus Hand,and from 1935 to 1937 as special assistant to the Attorney General of the United States,Judge Wyzanski was appointed to the U.S. District Court of Massachusetts in December, 1941.
by JUDGE CHARLES E. WYZANSKI, JR.
1
THIS is a time of trial for Americans. For some few it has been a period of public probing of what they personally believed and with whom they associated. For all it has been and is a time of trial in the religious sense — the occasion for selfscrutiny and for the choice of ground on which to take a final stand.
From the outset of our history the American has declared that his is the open mind. Now he is called upon to look at what has been uncovered by a series of dramatic federal trials involving Communist activities in the United States and by the even more informative 1946 Canadian investigation, and to ask himself just where he stands on the future status of the Communist Party of America and on its relation to the perennial problems of allegiance, loyalty, security, and liberty.
In one sense none of these issues is new. During the more than thirty years since the Russian Revolution there have been sporadic legal efforts to checkmate the growth and spread of Communism within our land. From the days of the First World War, state authorities sought to bring the movement within the cover of legislation usually designed to reach other forms of political danger such as anarchy, syndicalism, or even slave rebellion. Simultaneously in these three decades Congress has been moving step by step to close the net by successive enactments specifically aimed, though in circuitous language, at the Communist Party. In 1918 Congressional concern reached only aliens seeking the privileges of immigration and naturalization. In 1939 it covered persons holding public office. In 1940 it led to novel additions to the criminal law. In 1947 it included labor leaders. In 1950 it embraced every member of the party, all who mailed its literature, and all who came under its dominance.
Though each of these advances in minatory legislation evoked wide attention, there was little in the way of fresh domestic evidence to consider until the Canadian investigation, the recent trials, and the reports of the President’s Loyalty Board created in 1947. Up to then the alert American could reasonably contend that in the period since the 1920s there had been laid before him few facts which were both new and adequately authenticated. That plea is no longer available to him. And if he is to be true to himself, he must now candidly and courageously check the drift of his arguments in the light of the disclosed dangers.
For a generation we have been warned that the Communists are not a legitimate political party. The thrust of this charge has not been directed at the Communists’ ultimate economic, political, or religious goals. In short, it is not a condemnation of radicalism as such. It has been an indictment of the immediate means they use to reach what they regard as utopia. Perjury, espionage, sabotage, and violence stand at the head of the list. And those specifications are rounded out by the catchall condemnatory phrase, “unconstitutional methods.”
A frequent reply has been that this indictment confused fulmination and prophecy with fact and plan. Defenders of the party admitted that its manifestoes were filled with revolutionary rhetoric but asked where was the evidence that in any concrete instance the party’s members and supporters had been the first to cross the lines of conduct permitted under law. Radical might be their belief but righteous was their behavior.
This defense has been, or so it seems to me, in at least two vital points adequately disproved.
From many witnesses we have the most circumstantially buttressed testimony that the American Communist Party as an organization has acted as the belt for the transmission from this country to the U.S.S.R. of documents held in trust for the United States. Without directly or by implication expressing any opinion upon the guilt of Alger Hiss or William Remington or any individual whose case is still under judicial consideration, every fairminded person must concede that Chambers, Wadleigh, Bentley, Fuchs, and Gold — to cite only the most prominent—have used the apparatus of the American Communist Party to “defraud the United States” by depriving it of its secrets, not to mention, in some cases, the honest services of its employees. These have not been casual unrelated transactions. They have been part of a system which, though it certainly was not known to every member of the Communist Party, was more than a miscellaneous collection of isolated episodes of misguided zeal.
In addition to the pattern of espionage, we find beyond cavil a pattern of planned perjury. Here it is of the highest importance to make a sharp distinction. No one mindful of the history of political and religious liberty would charge with perjury a sincere heretic on the mere basis of his heterodoxy. Honest conflict on fundamental values must be tolerated unless we are to betray the heritage of Western liberty. Even in those cases where we suspect that a revolutionary is not only misguided but insincere in his rejection of orthodoxy, we should hesitate to charge him with fraud. In matters of religious and political belief the best — some might say the only satisfactory — proof of insincerity must come from a man’s own explicit admission.
But in the case of the Communists the problem is not whether they sincerely believe their gospel. It is whether they respect their legal duty truthfully to answer relevant questions put to them by duly constituted authorities. Browder, Chambers, Bentley, and numerous witnesses in the long trial before Judge Medina have given abundant examples of the Communists’ tactic of telling what they knew were material falsehoods under oath to public officials authorized to issue passports, address interrogations, or make other lawful inquiries. Again, we need not say — and I for one do not suppose — that every member of the Communist Party agreed to follow a superior’s direction to commit, perjury whenever it was in the party’s interest. Yet the record shows that the use of perjury was a frequent and approved tactic of party members and followed directly upon the express teachings of their literature. Thus the only inference which seems to me reasonable is that the use of perjury is a means which the party has officially accepted.
2
NOW I come to what is a much more debatable problem. Does the Communist Party in America seek the overthrow of our Government by force and violence? The critical nature of this issue is obvious. If this is one of the means used by the party, it is the most dangerous imaginable. It would present a peril far transcending a pattern of espionage and a pattern of perjury. Moreover, this is the specific means which Congress has selected for emphasis in the statutes to which I previously referred. And it is the charge which Judge Medina’s jury considered and found proven.
There is evidence that the 60,000 American Communists are an army indoctrinated with the belief that at an appropriate day they must seize the power of the state, habituated to conspiratorial (if lawful) practices of meeting secretly and disguising their thoughts in “Aesopian language,” disciplined to respond to the orders of a foreign hostile government, and articulated into a world organization which has already been engaged in military battle with American forces.
Let us not dispute the evidence. It is more important to decide whether such evidence is enough to satisfy the standards of liberty to which we have pledged “our lives, our fortunes and our sacred honor.” Is articulation into a hostile power’s organism the equivalent of armament upon our own shores? Have the Communists in America taken le premier pas qui coûte as surely as the would-be murderer has when he takes his gun from the shelf and enters his would-be victim’s home? The greatest of living American jurists, Judge Learned Hand, has given an affirmative answer. Considering “the gravity of the ‘evil’ discounted by its improbability,” he has concluded that a democracy faithful to the canons of freedom has the legal right to convict the leaders of the Communist Party of advocating the overthrow of the Government of the United States by force and violence.
Yet the answer does not satisfy all fair-minded critics. Some of them turn to the earlier opinions on free speech of Judge Hand himself, of Justice Holmes, of Justice Brandeis, and of the majority of the Supreme Court in the Herndon case decided in the 1930s and the Schneiderman and Bridges cases decided in the 1940s. From those sources they derive the teaching that neither political speech nor political organization is punishable as a crime unless the surrounding circumstances show that there is a strong probability that such speech or organization will cause violence within the United States before there is either repentance, or change of heart as a result of discussion, or alteration of the surrounding circumstances, or resort, to legal remedies less drastic than the criminal law. If this be the test, then these critics say it was not met by the evidence of the conduct of the American Communist Party at least in the 1940s.
This fundamental disagreement is likely to find its echo in our highest tribunal. Moreover, there are policy reasons why we should hesitate to outlaw the Communist Party for purely political crimes.
Unlike the problems of perjury and espionage, the problem of alleged incitement to political violence is one of the most difficult issues for courts, for juries, and for executive authorities to handle dispassionately.
Moreover, those who contend that the Communist Party of America is a disciplined battalion ready to use force are apt to rely for proof on the asserted loyalty of the American Communists to the U.S.S.R. and its interests. Despite the force of the contention that our domestic Communists have a divided loyalty and have been up to now slavishly responsive to the nod of a government that shows us marked hostility, there is grave danger in deciding that an American is a criminal because he has a sympathetic attachment to a foreign power currently unfriendly toward the United States and is in organizations affiliated with that power. To be sure, in time of war there is a risk that such a devotee may become our enemy. Yet the magnitude of the risk should be tested by our experience during the Second World War with those Nisei and first-generation Japanese-Americans who were in racial and political clubs with strong Japanese ties.
3
IT IS not then solely for legal reasons that I leave aside the charge regarding incitement to violence and confine myself to the evidence of espionage and perjury. On that evidence alone, can we escape the conclusion that those who control the Communist Party and use it as their instrument have sought and still seek to achieve political ends by means that are unlawful under the ordinary criminal law of the land? If Robin Hood and Little John, having the laudable political platform of a more equitable division of the world’s goods than society now provides, organize a group of men of like view and then proceed to rob Peter of his cloak in order to keep Paul warm, Robin Hood and Little John are indictable not merely for common-law robbery, but also (if Peter and Paul are in federal territory) for conspiracy under a federal statute enacted two generations ago. The purpose is laudable but the means are criminal. By parity of reasoning, if those who control the Communist Party agree to commit perjury before federal agencies and to deprive the federal government of its secrets or of the faithful service of its employees, they are personally guilty under the federal conspiracy statute of 1909.
Of course, men who joined Robin Hood’s band on the theory that it was a debating society or a club for the preservation of fish and game did not by such action become guilty of abetting robbery or joining a conspiracy. By hypothesis they were innocent of their fellows’ plan to do wrong. And they could not properly be convicted of crime for their original action. However, if, after the courts had convicted a dozen of the top men in Robin Hood’s company and the trials had exposed the unlawful means used by the band, one who knew of these facts continued to adhere to the organization by membership, or by financial support or other material assistance, it would be difficult to resist the inference that he had conspired in connection with any subsequent similar robberies perpetrated by the band.
Would there be any difference in the status of those who chose to remain members in or give material assistance to the Communist Party after it became apparent to them that those in control of that party regularly furthered its purposes by criminal means? Logically I see no difference. But before the doctrine is applied the Government of the United States should set forth in clear terms a statement, buttressed by incontrovertible examples, of the grounds on which it has concluded that those directing the Communist Party have with regularity used means that are unlawful under federal statutes. The Government should then state that anyone who thereafter remains a member of or gives material support to the party will be subject to prosecution as a co-conspirator.
Such an announcement (without immunizing those who had already committed perjury or espionage) would segregate those who had been duped in the past from others who gave continued conscious adherence. Even after this segregation, a discriminating prosecutor before initiating a presentment would no doubt carefully inquire as to the moral culpability of any potential defendant. Some who knowingly give material support to wrongdoers are more properly regarded as victims of folly or of economic circumstances than as abettors of crime.
The program that I have suggested offers these advantages.
It places the Communist Party within the context of the normal substantive criminal rules. This to a large extent forestalls any criticism that we are stretching our law to condemn our political opponents. And it does much to quiet the debate which has accompanied the special legislation of the last decade.
It assures the application to suspected Communists of the familiar procedure of the common law. This implies all the safeguards of the Bill of Rights and the protection inherent in open examination and cross-examination.
In recognizing that Communism in America has been not a mere heresy but a criminal conspiracy and in proceeding accordingly, we return to our traditional American doctrine that heresy itself is lawful. If there is no resort to unlawful means, an individual or group may entertain any religious or political doctrine, no matter how radical. When we did not sharply distinguish between the objectionable goals of the Communist Party and the criminal means, support appeared for the notion that the liberties of speech and organization are available only to those who themselves believe so mightily in freedom that they would be prepared, were they in power, to accord freedom to their opponents. Here was a revival in modern dress of the indefensible proposal by John Locke to deny toleration to Catholics. And if the notion had been permanently incorporated in our political thought, it would have undermined the very bases of our Constitution. We shall be better off to return to the formula that belief is free, behavior alone is regulated.
Another important advantage of the proposed program is that it strengthens the moral fiber both of innocent past associates of the Communist Party and of (he rest of us. The person who previously associated with the party and has remained innocent of individual participation in espionage and perjury is encouraged to break his dangerous ties. He is told that he will be prosecuted only if he adheres in the future. The rest of us are reminded of our spiritual obligation as well as our civic duly to join in the condemnation of what is incontrovertibly wicked. To use espionage and perjury or any other criminal means in order to achieve even a praiseworthy end cannot be defended unless we are prepared to accept the most subversive of all theories — that the end justifies the means.
The most significant by-product of the proposed program remains to be considered. For a decade we have been wrestling with what is loosely called the loyalty problem. We have set up special licensing systems to test the loyalty of government employees, union leaders, university teachers, lawyers, broadcasters, and other special classes. These systems seem to me to have confused our proper concern with four different matters: the lawful conduct of the individual, his allegiance, his loyalty, and the safety of the state.
To isolate the Communist Party as a criminal conspiracy is the first step in straightening out our thinking. Membership in or support of that party or any successor so long as it regularly uses unlawful means warrants penal sanctions no matter who the offender is or what may be his occupation. It is irrelevant that he is an alien or a citizen, a professor or a labor leader, a government clerk or a motion picture actor. It is the right and duty of the state to punish him. To hand his entire case over to an administrative agency or a private employer trivializes the offense, places in the wrong hands the problem of ascertaining guilt, and establishes inadequate sanctions.
Our country has, and always has had, in time of peace as in time of war, the right to the allegiance of all our citizens and all who seek our protection. The free man is a descendant of the Saxon “ledig” and from him takes the obligation of “allegiance.” Like him, he has the duties, first, of giving and of swearing obedience to the laws and, second, of rejecting the political authority of any foreign prince or potentate. A man is not false to his duty of allegiance and is not unattached to the principles of our Constitution because he has an abiding interest in the culture or ideals of a foreign land or in philosophical, religious, political, or economic views not shared by a majority of Americans. Indeed the peculiar strength of our national fabric has come from an unprecedented diversity of strands.
Loyalty is a moral, not primarily a legal, relationship. It is a free-will offering to authority not because it is powerful, but because it is worthy. This is not to deny that there are areas in which the state for its own safety should inquire with painstaking care into the loyalty and other moral qualifications of persons placed in trust. In those particular posts either in or out of the Government service where there are secrets which must be kept secure, it is the proper concern of the Government to see that only men of responsibility and reliability are trusted. Where such offices are in question, the inquiry may justifiably extend into the uttermost corners of a candidate’s career, beliefs, and associations. For safety is the first law of every state.
Yet positions which have this type of security risk are also often positions which can best be filled by men of original creative power. Here we frequently deal with that type of man who tends to be unconventional in many aspects of life, not merely in his own specialized area. And if what we seek is the maximum gain to the state, we must be sure that we weigh from its point of view the advantage of attracting that man and his ilk against the risk that he and his kind will, by indiscretion or worse, betray the state. Balancing such interests is a task of utmost delicacy. The best performances in appraising employees have been rendered by those agencies, such as the Atomic Energy Commission, which have approached the problem of security as a specialized managerial problem. The lesson is that persons familiar with the requirements and risks of a particular assignment are the best fitted to consider whether a given individual should be offered, or retained in, employment.
Certainly there is no retraction of the promise of American life in the adoption of a sound managerial system for scrutinizing public and private employees engaged in security jobs in sensitive areas. Here, as in the forthright condemnation of the Communist Party’s use of criminal means, the American remains true to what he has always professed. Has not the believer in our Constitutional system always said that it was not only possible but desirable to deal with domestic dangers within the framework of the ordinary law? Has he not repeated that liberty historically and pragmatically has always placed its primary emphasis on procedure? For is not the difference between despotism and freedom a difference in means — a distinction not between benevolence and malice but between arbitrariness and due process?