Posted April 15, 2004
McCarthy Era Offers Cautionary
Tale for Post-9/11 America, Stone Says
Conservatives’ recent revisionist take on Joseph McCarthy
as a patriotic hero glosses over the past and fails to take into
account the widespread damage his witch hunt for communists inflicted
upon Americans, in what was an “inappropriate response” well
beyond the scope of the threat, said Geoffrey Stone at the Brennan
Center Thomas M. Jorde Symposium April 8 at the Law School. This
year marks the 50th anniversary of the congressional condemnation
of McCarthy, and Stone offered his "cautionary tale" in
light of the Bush Administration’s move to broaden executive
powers during the war on terrorism.
“The age of McCarthy bears some relationship to the present,” he
said. “Think of this as a bedtime story, but one with goblins.”
As World War II ended in 1945, rights advocates like the ACLU
were optimistic about the future. "It was a time for Americans
to enjoy the hard-won fruits of sacrifice,” Stone said.
But economic instability in 1946, coupled with labor strikes
and Truman's verbal assault against the Soviet Union, which came
not long after President Franklin Delano Roosevelt praised the
Soviets as a strong potential ally, signaled unrest. Two spy
scares also transfixed the country: secret government documents
about China were leaked to a leftist journal and Canada charged
that 22 people had conspired to steal information about the atom
bomb for the Soviet Union. In July a House subcommittee recommended
a new federal loyalty program to protect the United States from
potential spies for foreign governments. As the election neared,
Truman was increasingly under attack from a coalition of anti-New
Deal Republicans and southern Democrats who incited fears of
communist subversion. As a result, in the 1946 elections Republicans
won 54 seats in the House and 11 in the Senate, taking control
of both.
"Fear has proved a potent political weapon," Stone
said. Leaders in the Republican Party increasingly identified
Democrats with communists, and Democrats scrambled to respond.
Truman's labor secretary demanded that the Communist Party be
outlawed, while the House Un-American Activities Committee prepared
a program to expose communists and sympathizers. "The President
[was] caught in a vise of conflicting pressures," he said.
Truman unveiled a two-pronged program to quiet opponents: the
Truman Doctrine held that the United States would contain and
confront the Soviets and communism wherever they encroached,
and secondly proposed a loyalty program for all present and prospective
federal employees that held them subject to a loyalty investigation,
which specifically looked at membership or affiliation with,
or sympathy for, designated communist or subversive organizations.
"It's at this moment the eve of McCarthyism begins to unfold," Stone
said.
Americans had worked themselves into a frenzy, when the threat
was much smaller than perceived, Stone said. Founded in 1919,
the Communist Party of the United States (CPUSA) at its peak
in 1949 barely numbered 100,000 registered members. No one was
ever elected to Congress under the Communist Party, and the CPUSA
drew most of its membership from the fallout of the 1930s Depression,
which had triggered a severe loss of American confidence. "Americans
increasingly questioned the cruel consequences of capitalism," he
said. The CPUSA and the hundreds of organizations that sprung
up during the era to fight for economic, social, and racial justice
had an overlap of members, and both kinds of organizations were
prosecuted. Americans originally joined such groups "not
because they wanted to overthrow the government, but because
they wanted to help good causes as a civic duty," Stone
explained. The most infamous question, "Are you now or have
you ever been…" encompassed the past. The attorney
general's original list of 78 suspect organizations swelled to
more than 250 as investigations continued, and included such
groups as the International Workers Order, a fraternal benefits
society that specialized in low-cost insurance. As World War
II ended, most Americans attached to communist organizations
severed their connection, and membership dwindled.
Under the shadow of loyalty programs, "individuals had
to be wary about joining any organization. The safe course was
to join nothing." If a loyalty program review revealed any
such connection, a full-field investigation was launched that
included interviewing all friends, relatives, and neighbors,
as well as looking at what books you read. Forty thousand people
in the McCarthy era were subject to full-field investigations.
Suspects had no right to confront witnesses at hearings or even
know their identities. "These hearings took on the character
of a medieval inquisition," Stone said. "The charges
were often vague, and almost impossible to rebut...the impact
of this program was devastating."
With the fall of China to communism in 1948 and one month later
the detonation of the first Soviet atomic bomb, American hysteria
increased. Newspaper editorials advocated a preemptive war and
questioned the loss of China. "Only perfidy, they argued,
could have caused such a disaster," Stone said. Soon after,
Klaus Fuchs, a British physicist, confessed to passing secrets
to the Soviets, and his confession led to the Julius and Ethel
Rosenberg trial.
McCarthy exploded onto the scene in 1950, previously an unknown
first-term senator. He asserted in a speech that he was privy
to inside information, a list of 205 names of spies working in
the State Department. There was only one problem for McCarthy: "This
was a complete fabrication." He bluffed his way through
the aftermath, at one point telling a reporter he left the list
in his other suit, after promising to tell all. Truman said McCarthy
was lying, and Senate democrats demanded that McCarthy prove
his allegations. Challenged to produce proof, McCarthy lashed
out at "egg-sucking liberals whose pitiful squealing would
hold sacrosanct those Communists and queers who sold China into
atheistic slavery."
In 1950 the Tydings Committee issued a report that McCarthy’s
findings were indeed false, but McCarthy shot back that the report
showed there were traitors in government who need not fear the
current administration. "Americans were swept away by his
certitudes and patriotism," Stone said. In June 1950, North
Korea opened fire on South Korea, and Truman authorized General
Arthur McDouglas to invade—with U.N. approval, Stone emphasized.
"The Korean War unleashed a frenzy of anti-Red hysteria," Stone
said. Soon state governments started loyalty programs as well.
Thousands of books deemed "communistic" were removed
from public libraries. The McCarran Internal Security Act, passed
in 1950, required disclosing CPUSA member names; Truman vetoed
the Act, but his credibility was already damaged by his own anti-communism
actions. His veto was overridden.
In the meantime McCarthy appeared on the covers of Time and Newsweek and
campaigned in support of Republican candidates and against Tydings,
going so far as to fabricate a photo purporting to show Tydings
huddled with communist leaders. "The Democrats attempted
desperately to fend off these assaults," Stone explained,
and Truman responded that those claiming the domestic United
States was in peril had lost all sense of restraint and decency.
The 1952 Republican platform charging that Democrats were shielding
traitors helped the GOP sweep the election and win the White
House. McCarthy "was now seen as invincible and as the most
feared man in America,” Stone said. “Democrats were
thoroughly intimidated.”
At one point McCarthy proffered hundreds of documents supporting
communist infiltration on the Senate floor, and challenged Senators
to inspect them. According to accounts, when Sen. Herbert Liebman
held out his hand for the documents, other senators lowered their
eyes while McCarthy snarled, "go back to your seat old man."
McCarthy announced his intentions to investigate the federal
government, colleges, and universities, and in 1953 began an
investigation of Voice of America, a World War II agency that
promoted a positive view of the United States abroad. Although
VOA personnel were badgered and some resigned in protest (one
of even committed suicide), the hearings uncovered no evidence
of unlawful conduct.
In 1953 Time and Newsweek said it was apparent
McCarthy was aiming for the White House in 1956, and Truman responded
with a national televised speech accusing “certain Republicans” of
shameful demagoguery, and defining McCarthyism as a harmful cancer.
Despite Republicans’ increased nervousness, the House
Un-American Activities Committee also took aim at Hollywood,
resulting in the blacklisting of several movie producers, directors,
actors and authors such as Dorothy Parker, Arthur Miller, and
James Thurber.
Those who were blacklisted became a menace to friends, who feared
consequences for their own lives, and outcasts to society, Stone
alleged; 11,000 employees from federal, state, local and private
employers were fired as a result of the anti-communist hysteria.
“Fear of ideological contamination swept the nation” and
led to a stifling conformity that marked that early 1950s, Stone
said.
McCarthy’s fall began when he chose to target the army,
angering President Dwight Eisenhower, a former war hero. Two
of McCarthy’s lieutenants were also key figures in his
demise. Congressional staff member David Shine was drafted into
the Army, and colleague Roy Cohn ordered Shine’s commander
to grant him privileged treatment. The uproar that followed led
to hearings addressing whether Cohn attempted to intimidate the
commander, but no one doubted the real issue was whether McCarthy
would be brought down, Stone said.
Sensing an opportunity, Senate minority leader Lyndon B. Johnson
arranged for the hearings to be televised, and McCarthy followed
through. “McCarthy made a spectacle of himself,” Stone
said. He “was the perfect stock villain.” When McCarthy
attacked the Army’s chief attorney, Joseph Welch, for having
a National Lawyers Guild member on his staff, Welch famously
replied, "Have you no sense of decency, sir, at long last?
Have you no sense of decency?" He left the room, which burst
into applause.
In the end, McCarthy’s crusade resulted in no convictions
for espionage, and no communists were uncovered in positions
that handled classified information, Stone said. Moves to censure
McCarthy climaxed when in 1954 a six-member congressional committee
recommended that McCarthy be condemned “for reprehensible
and contemptuous conduct.” The measure was adopted, 67-22,
with Republicans split on the vote. Six weeks later, Democrats
regained control of both houses of Congress and two years later
McCarthy, an alcoholic, died of cirrohsis at age 49.
Stone acknowledged that some spies sought to harm the United
States, perhaps numbering 200-400 at the height of the Cold War. “But
the danger these individuals presented was not subversion of
the American people. It was the danger of espionage and sabotage,” he
said. Instead of fostering a climate of oppression, the United
States should have punished law breakers, and used appropriate
law enforcement tools. “This is the essential distinction
between a free state and a police state,” he said.
The public hysteria of the late 1940s and early 1950s foddered
a “breeding ground for opportunistic politicians,” Stone
said. “Fanned by politicians, this fear of an insidious
enemy led Americans to fear Americans, to confuse panic with
patriotism, and to blindly oppress others in a frantic bid to
ensure our own safety.”
Revisionists concede that McCarthy lied, Stone alleged, but
claim he was pursuing a profoundly important inquiry. “Even
if he was wrong on the details, the argument goes, he was right
on the big things,” Stone said. “This is wrong and
dangerously so.”
The goal of preserving security is legitimate, Stone explained, “but
a democracy is about means as well as ends,” and McCarthy’s
means violated the norms and values of the Constitution.
Stone said his topic was well suited to a symposium honoring
former Supreme Court Justice William Brennan, whom he once clerked
for. Brennan loved to boast that McCarthy was the only senator
to vote against his confirmation, Stone said. In confirmation
hearings, McCarthy asked Brennan whether he would know the difference
between Americanism and communism. Once confirmed, Brennan “was
a central figure shaping the First Amendment priveledge that
reversed the course of constitutional history.”
Stone compared McCarthyism to the post-September 11 atmosphere,
as the United States has secretly arrested and detained more
than 1,000 non-citizens and deported hundreds of non-citizens
in secret proceedings. The Patriot Act has expanded the power
of federal officials to surveill religions groups as well as
email and information about what you check out at the library,
although the latter reportedly has not been used.
"Just as hard cases make bad law, hard times make bad judgments," Stone
said. "It's our responsibility as lawyers to resist those
bad judgments."
Virginia law professor Vincent
Blasi responded to Stone’s
comments, focusing on the lackluster judicial response to the
McCarthy era. The First Amendment tradition up to that point
was “unprepared” for the challenges of the era, Blasi
said. By the late 1940s and early 1950s, the Supreme Court had
developed a libertarian understanding of the First Amendment,
but not in ways that generated doctrines that spoke to the McCarthy
era. There was no doctrine for guilt by association or for the
notion of protecting political
privacy—that you should have immunity from testifying
about your political beliefs and associations. Up to that point,
First Amdnement doctrine revolved around whether the speech in
question would cause harm; any possible connection to harm would
justfy regulating speech. Instead, Blasi suggested, “we
should only be worried about material harms.” Fears of
communist espionage can’t be dismissed as groundless, he
said, but “what’s on the other side of the equation
is really important.”
“A lot of the way people think about these issues really
does turn on how you deal with fear,” he said. Every time
Americans have a major moment of regulated speech we later regret,
Americans argue that “never before” had those circumstances
come to bear. For example, to justify the crackdown of free speech
and labor strikes during World War I, Americans said “never
before” had fighting a war depended so much on domestic
production, and never before were there so many immigrants that
would purportedly invoke unrest. “When we had our ‘never
before’ moment in the McCarthy era, it was very much a
pattern and in that sense we had heard it before,” Blasi
concluded.
Looking to the past for answers to today’s security and
free speech issues is a “complicated endeavor,” said
responder Sam Issacharoff, Harold R. Medina Professor in Procedural
Jurisprudence at Columbia Law School. Academics in hindsight
may overlook risks that were really there, but also, Americans
experience “pride of learning” from the past; for
example, those in the McCarthy era may have taken pride that
it wasn’t a true witch hunt in the sense that they didn’t
burn people at the stake.
Still, Issacharoff said he could not bring himself to defend
McCarthy. He instead focused on the fear that has pressed upon
the country since September 11. He recalled the day after the
attacks when in his New York neighborhood the prevailing winds
shifted and filled the air with the acrid smell of incineration,
military aircraft hovered in the sky, and Wall Street was shut
down. “I did not know what would come,” he said,
noting that he had children at home. “It was genuine fear.”
Since then, the United States has fought two wars, detained
over 1,000 people, and restructured domestic security services. “Most
critical there has been no second attack on the United States,” he
added. Issacharoff said Stone avoided the issue by twice using
the concept of “inappropriate response” to describe
the present situation.
“How do we know? How do we know what’s appropriate?” Issacharoff
asked.
He said one way to judge whether the American response is appropriate
might be to draw comparisons to other democracies, such as those
in Europe. In contrast with the United States, Spain’s
police practices were not altered by the September 11 attacks.
There are indications that three masterminds involved in the
March 11 Spain bombings were on police watch lists and being
trailed by security officials, but they had insufficient jurisdictional
authority to act when the terrorists started moving key personnel
across national borders. He called the situation “oddly
parallel” to what happened in American prior to September
11 when terrorists routed Internet communications through American-based
service providers, because they knew strong jurisdictional boundaries
would keep the CIA and NSA from following their actions.
The end result in Spain is that over 200 are dead, and now Spain
has “had a coordinated response with other police services,” instituting
broader jurisdictional lines and broader powers, and arresting
suspects throughout Europe.
Some parts of the Patriot Act seem sensible, others ominous,
Issacharoff said, but it may have had the surprising effect of
enhancing Internet privacy, as some have argued. Others have
claimed the main effect of the Act has been to overcome bureaucratic
stagnation and problems with agency interaction.
• Reported by M. Wood