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.