The Best of I.F. Stone Page 5

  But when a man is up on loyalty or security charges, nothing has happened. The tribunal is not dealing with an act but with future possibilities. It is engaged in an exercise in clairvoyance. It must determine whether a man might commit a crime some time in the future, whether he might steal or sell secrets. There are no ways to prove what a man might do. The essence of the loyalty-security procedure is not the trial of a fact but a guess as to future conduct.

  2. How any doubt is resolved: In the trial of a crime, even for the most heinous, such as murder or treason, any reasonable doubt is resolved in favor of the accused. As Blackstone phrased the rule, already venerable in his time, “The law holds that it is better that ten guilty persons escape than the one innocent suffer.” Law enforcement is thereby made more difficult. But justice to the individual, not the security of society, is the primary concern.

  All this is reversed in loyalty-security cases. To bar a man from a job and label him disloyal because in your opinion he might do something bad in the future is by its nature a decision which resolves the doubt in favor of the State and against the individual. “Security” means to take as few chances as possible, even at the expense of injustice to some people who never have committed a crime and never will.

  This is vividly illustrated by Fifth Amendment cases. A man summoned before a magistrate and asked whether he had ever committed larceny who thereupon pleaded the Fifth Amendment could not be thrown in jail or even prosecuted. But a worker in the government or at General Electric or Bethlehem Steel who invokes the Fifth Amendment loses his job. No evidence that he ever committed a crime or was ever a radical—the two are equated by now in the public mind—is required. The invocation of his constitutional right is enough to ruin his reputation and his right to work.

  Those who defend these standards fall back on a totalitarian logic. David Lawrence protested recently against what he terms a “left-wing drive” to “surround governmental employees with complex procedural safeguards which would supersede the right of the American government to protect its own safety.” Mr. Lawrence forgets that much of the Constitution and the common law is devoted to surrounding people of all kinds, including the disreputable, with complex procedural safeguards which supersede the right of government to protect itself. In such restrictions lies the essence of free government.

  3. Avoidance: The difference in the two procedures becomes clearer if you ask yourself how you avoid getting into trouble. To avoid arrest and trial for a crime, one has to obey the law. But what does one avoid to keep out of loyalty-security trouble? One has to avoid political activity. Since you never know what organization may some day be regarded as suspect, better join none. Since almost any cause may some day be regarded as subversive, better keep away from all. Since there are now informers everywhere, including the campus, say as little as possible, avoid the discussion of dangerous subjects. Be careful what books you have in your library and what publications you read. These may be held against you. Safety lies in the abnegation of one’s rights.

  4. Standards: Here, too, the difference becomes sharp. There is little doubt as to what is murder, larceny, or espionage. These are defined in the law books.

  But what is “subversion” or “un-Americanism”? The latter is an epithet, the former is a wholly relative term. Much that we take for granted today seemed un-American and subversive a century ago—income taxes for example. Much that existed then would seem “un-American” today—for example, the earlier restriction which limited the right to vote to those citizens who owned property. What one man sees as subversion another man sees as progress.

  5. The mode of defense: In a criminal trial, the accused is furnished with a bill of particulars. It informs him that the government will allege that a safe was cracked at such and such an address in such and such a city at such and such a time. The accused may then prove he was elsewhere.

  But anything remotely approaching a bill of particulars is rare in loyalty-security cases. The accused is usually asked to rebut vague charges of Communist sympathy or association. The task of the defense is to prove a negative.

  Even where particulars are furnished, the outcome is not necessarily conclusive. A man may indeed “clear” himself by proving that he never engaged in liberal or left-wing activity of any kind. But what if he did belong to a radical organization? Does that mean that he is a security risk?

  The only espionage case turned up in the whole security program is one which would never be suspected by normal “loyalty” standards. Joseph Petersen had no left-wing connections. A Catholic, graduated from a Catholic school, he never belonged to any organization on the Attorney General’s or any similar “list.” Whatever this code expert did was for a friendly power, Holland, and for no ideological reasons. He could slip easily through the sieve of customary loyalty standards.

  On the other hand a Ladejinsky, for all his demonstrated value as an agricultural expert, could never hope to qualify under them for government employment if he were a new applicant. A man who had once worked for Amtorg, with two sisters in Russia, whose name had been on the mailing list of several “front” organizations during the war would never be freshly hired today. The liberals would never dare defend him. The Ladejinsky case shows the advantage of judging a man by what he does when employed, by the record he makes rather than by a system based on paranoid surmise.

  6. Witnesses: The difficulty is made the greater by the mode of presenting evidence. In a criminal trial, the accusing witness must be produced in court and subjected to cross-examination. The right to confront one’s accuser is fundamental. The government may use informers, as in narcotic or smuggling cases, but it cannot come into court and ask for conviction on undisclosed evidence by undisclosed persons on the ground that to reveal them would endanger its sources of information. The conviction can be obtained only on the basis of whatever evidence and witnesses the government produces in open court.

  But in loyalty-security cases nothing is more familiar than the submission of allegations from undisclosed informers. The accused has no chance to confront the accuser. Such confrontations in criminal cases often disclose mistaken identity. Cross-examination may uncover perjury. All these safeguards are absent in loyalty-security cases because here again the security of the state, its secrets and informers, is ranked ahead of justice to the individual.

  The anxiety over security reflects its widening impact on our society. As more people are drawn into its orbit, more become aware of its injustices. The government is having trouble; the loyalty program, designed originally to purge the government of liberals and radicals, has ended by making people of all kinds afraid to take government jobs. Something has to be done, and the politicians scent popularity in the issue. But they, like all of us, take the lines of least resistance, and talk only of correcting the “abuses” of the security program.

  Few will dare to say it now, but the time is coming when the truth will be recognized, a truth which the Framers of our Constitution wove into the fabric of American government. They saw that there could not be freedom without risk, that no stable society could be built except on a foundation of trust, and that when trust was violated—and only then—a man could be punished. They did not think it was the province of government to police men’s minds, or that it had a right to punish them unless they committed some wrongful act. They would have been horrified at our growing system of thought police, of guessing-game “law” about prospective crime, and indeed most of all by our obsession with “security.”

  An administrative official has a right and duty to judge the reliability of a man he hires. But what is proper and necessary in private administrative judgment is improper when erected into a system of universal surveillance and public defamation of character that chokes off free political discussion in ever wider areas and brands men as “disloyal” or “security risks” on the basis of pseudo-judicial guessing as to whether they might possibly some day commit a crime. The loyalty-security program cannot be re
formed. Given peace, it will eventually be abolished.

  Freedom of the Press:

  A Minority Opinion

  Although this essay was written over fifty years ago, its picture of a conformist press, contentedly allowing itself to be “managed” by government spin doctors supplying news with an officially approved slant is all too recognizable. The contrast to I. F. Stone’s variety of journalism is provided in the third paragraph from the end, where he remarks that “Washington is in many ways one of the easiest cities in the world to cover. The problem is the abundance of riches.” What was—and is—in short supply is a cadre of journalists willing to do the kind of reportorial spadework Stone did and to follow the information fearlessly wherever it leads them.

  . . .

  November 14, 1955

  THE MAIN OBSTACLE TO THE CREATION of a well-informed public is its own indifference. In every country with a free press, thoughtful papers which conscientiously try to cover the news lag behind the circulation of those which peddle sex and sensationalism. This is as true in Paris and London as in New York; and if Moscow ever permits a free privately-owned press, Izvestia and Pravda will fall far behind any paper which prints the latest on that commissar’s love nest.

  The second obstacle is that most papers are owned by men who are not newspapermen themselves; publishing is a business, not a Jeffersonian passion, and the main object is as much advertising revenue as possible. Thus it happens that between the attitude of the publishers and that of the public, most papers in this country print little news. And this, except for local coverage, is mostly canned, syndicated, and quick-frozen.

  The third obstacle is that this has always been and is now more than ever a conformist country; Main Street and Babbitt—and de Tocqueville long before Sinclair Lewis—held a faithful mirror to our true nature. It doesn’t take much deviation from Rotary Club norms in the average American community to get oneself set down as queer, radical, and unreliable.

  Against this background, it is easy to see why the average Washington correspondent is content to write what he is spoon-fed by the government’s press officers. Especially since the press is largely Republican and this is a Republican Administration, there is little market for “exposing” the government. Why dig up a story which the desk back home will spike?

  It was this astringent view of our profession and its circumstances which I found lacking in the newspapermen’s testimony which opened the investigation launched here by a special House subcommittee on government “information.” The most perceptive of the witnesses, and one of our very best reporters, James Reston of the New York Times, put his finger on the vital point when he said that worse than suppression was the “managing” of the news by government departments. But the news is “managed” because the reporters and their editors let themselves be managed.

  The State Department is an outstanding offender. Very often, for example, newspaper readers get not so much what actually happened at the UN as the “slant” given out in the corridors afterward to the reporters by a State Department attaché.

  The private dinner, the special briefing, are all devices for “managing” the news, as are the special organizations of privileged citizens gathered in by State and Defense Departments for those sessions at which highly confidential (and one-sided) information is ladled out to a flattered “elite.”

  As a reporter who began by covering small towns, where one really has to dig for the news, I can testify that Washington is in many ways one of the easiest cities in the world to cover. The problem is the abundance of riches. It is true that the Government, like every other government in the world, does its best to distort the news in its favor—but that only makes the job more interesting.

  Most of my colleagues agree with the Government and write the accepted thing because that is what they believe; they are indeed—with honorable exceptions—as suspicious of the non-conformist as any group in Kiwanis.

  Though the first day’s witnesses included the best and boldest of the regular press, no one mentioned the recent deportations of radical foreign language editors and of Cedric Belfrage of the Guardian. No one mentioned the Communist editors and reporters prosecuted—for their ideas—under the Smith Act. No one mentioned the way McCarthy “investigated” James Wechsler. Surely thoughtful men, as aroused as these were over the future of a free press, might have given a moment’s consideration to the possible danger in such precedents. Did they feel it would be indiscreet to go beyond respectable limits? That such fundamental principles are best left for orations on Zenger and Lovejoy, both conveniently dead?

  The Court Turns Back the Clock

  By the time of Joseph McCarthy’s death on May 2, 1957, he had been consigned to political impotence and oblivion. In this piece, Stone celebrates a hopeful new mood in Washington, symbolized by a case in which the Supreme Court “turned back the clock”—not in any reactionary sense, but by rejecting the “two decades of carefully nurtured nightmare” of anti-Communist hysteria on which McCarthy and his followers had thrived.

  . . .

  May 13, 1957

  WHILE THE SENATE LAST WEEK was burying McCarthy, the United States Supreme Court buried McCarthyism. The decisions in the Schware and Konigsberg cases do more than decide that radicals have a right to practice law. The decisions turn their back on an era in which the mere allegation of leftist sympathy or affiliation was enough to put a man outside the pale. A striking example will illustrate how unmistakably the Court has turned back the clock to an earlier and saner period. One of the charges on which the New Mexico Board of Bar Examiners refused to permit Rudolph Schware to take its tests for admission to the bar was his arrest and indictment in 1940 for recruiting volunteers to aid the Loyalists in Spain. The Supreme Court says, “even if it be assumed that the law was violated, it does not seem that such an offense indicated moral turpitude. . . . Many persons in this country actively supported the Spanish Loyalists,” and it adds coolly, “In determining whether a person’s character is good the nature of the offense which he has committed must be taken into account.” This has a positive Rip Van Winkle-ish flavor; it awakens from a twenty-year sleep the forgotten attitudes most thoughtful Americans shared at the time; it expunges two decades of carefully nurtured nightmare.

  The words were those of Mr. Justice Black, but no longer speaking in last-ditch isolation for Black and Douglas dissenting. Here he spoke for a majority which included not only Chief Justice Warren and our new (Catholic) Justice, Brennan, but even—mirabile dictu—Mr. Justice Burton. Indeed the “right wing” of the Court, Justices Frankfurter, Clark, and Harlan, saw no reason to dispute the majority’s judgment in respect to Schware. Their concurring opinion indicates the change in atmosphere as strongly as does the majority decision. The circumstance which they found “controlling” was the fact that the New Mexico Supreme Court, in upholding Schware’s exclusion from the bar, laid its main stress on the fact that Schware was admittedly a member of the Communist party from 1932 to 1940. The New Mexico Supreme Court said it felt that “one who has knowingly given his loyalty to such a program and belief for six to seven years during a period of responsible adulthood is a person of questionable character.” Even the three Justices on the right find this “so dogmatic an inference as to be wholly unwarranted.”

  A few years ago, when McCarthy was riding high, it is difficult to imagine the Supreme Court even agreeing to hear the Schware and Konigsberg appeals. The mingled facts and allegations would have made them seem too disreputable to deserve judicial intervention. Beside his past membership in the Communist party and his indictment for recruiting volunteers for Spain, Rudolph Schware had used a false name as a labor organizer, and had been arrested several times for “criminal syndicalism” during the 1934 general strike in California. Normally—or at least by the standards which had become normal during the cold war decade—this would have been regarded as more than sufficient to show bad character and therefore disqualify for admission to the bar. R
aphael Konigsberg’s record was as bad, if not worse, from this point of view, because his political derelictions were more recent. California’s rules require that an applicant for admission to the bar must establish the fact that he is of good moral character and does not advocate violent overthrow of the government. Konigsberg had been identified as a Communist by an informer before the State’s own (Tenney) Un-American Activities Committee. He had refused on First Amendment grounds to answer any questions put by the bar examiners as to his political beliefs and associations except to swear that he did not believe in violent overthrow. And he had written a series of editorials during the Korean War for a publication called the California Eagle which no one would ever have mistaken for pieces by Walter Lippmann. Indeed the editors of the Daily Worker might well have rejected some of them as on the intemperate side.

  The selections given in the briefs for the State Bar of California show that Mr. Konigsberg was not slavishly devoted to the cause of understatement. “Not all the criminal gangs in American history put together,” he wrote in one editorial, “were as great a danger to our country’s welfare as are the generals who today urge that American youth be trained as ‘killers.’. . . None of the murderers have been so sinful as a Dulles who uses religion to champion the anti-Christ. None such a threat to our security as a United States Attorney General who denies us the right to bail and tells brother to spy on brother.” Another selection was headed, “The Cesspool” and subheaded “Traitor! Traitor!” It was succinct, if not calm. “Betrayal is in the air,” he wrote. “Judges with impunity violate our constitutional rights. . . . Stool pigeons are the new national heroes. . . . The President violates his oath of office by dragging us into war.” Another selection said, “To consider loyalty to America as identical with Truman, Dulles & U. S. Steel is, to me, the ultimate in sacrilege. . . . Lynchers of Americans and engineers of the doctrine of guns over butter.” Obviously Mr. Konigsberg is not one to use his First Amendment rights sparingly. The horrified bar examiners found these selections not only heretical politically but “morally deficient.” His own intrepid attorneys, Edward Mosk and Samuel Rosenwein, must have wondered whether the Justices of the Supreme Court would not hastily pull the bedcovers over their heads after reading these selections and deny Mr. Konigsberg a hearing.