BS: kim C's cold war question...

Subject: Kim C's cold war question...
From: John Hardly
Date: 06 Sep 01 - 03:35 PM

...in the "McCarthyism..." thread

"This all happened before I was born and I know ve...ry little about it. My question has always been, though: in America, a supposedly free society, doesn't an individual have a right to belong to whatever political party he/she chooses? And then, isn't it unConstitutional (or just plain wrong) to make someone testify under duress?" --Kim C

I've always wondered about this question too. I hope I can ask this and 1. be understood, and 2. Not be assumed to be flaming (especially as I'm enjoying reading the above mentioned thread, especially as someone raised on the other side of the political spectrum).

Clearly, what happened re: forced testifying and "deputizing" citizenry to spy on ourselves, during the House Committee..., was probably unconstitutional.

The question that is unasked though, and of interest to me is; When is the line crossed between what Kim C characterizes as "belong to...the party of your choice" and collusion to overthrow a government.

Said another way, should a group whose goal is to overthrow a government expect civil protection from the very government whose goal it is to overthrow?

It seems to me that much of what confused this early cold war period When we look back at it from our 2001 perspective is that the communist movement in this country at the time------whether successful or not is totally beside the point-------was a mix of 1.) a political party seeking to take over the government by in tact constitutional means (getting elected into power), and 2.) a covert movement (again, however successful is beside the point)whose goal it was to take over by whatever means.

Trouble was, it was VERY hard to deal with one without the other getting "caught in the crossfire".

The government owes me, as a citizen protected by our constitution, protection against forces that will take over by unconstitutional means. On the other hand, if I wish for the status quo, it is equally up to me to do that which is within my constitutional rights and means to do so---thus, if the Communist Party USA became a power by constitutional means tomorrow, I may not like it but I would have to accept it.

Subject: RE: BS: kim C's cold war question...
From: GUEST,Trotsky
Date: 06 Sep 01 - 03:46 PM

I'm not sure that a lot of the folks victimized by the witch hunt were intent on overthrowing the government. Many were involved in labor movements or were in pursuit of racial/social equity and saw membership in the communist party, or involvement in related activities as a means to achieve other ends. The real irony is that many of them did in fact look to the Soviet Union as a benevolent comrade with related goals when in fact the Soviet Union's record of repression, racism, and violence against its own people is unprecendented.

Subject: RE: BS: kim C's cold war question...
From: GUEST,Russ
Date: 06 Sep 01 - 04:47 PM

Here's how it was explained to me many years ago.

One cannot be forced to testify against oneself. That what the 5th amendment is all about. That's where the expression "taking the 5th" comes from. Taking the 5th was a popular response on the part of witnesses alleged to be participants in organized crime.

One can, however, be forced to appear before a congressional committee and one must listen to and respond to questions.

Subject: RE: BS: kim C's cold war question...
From: Dicho (Frank Staplin)
Date: 06 Sep 01 - 05:12 PM

John Hardly and Russ are both correct in their statements. Adding a little to Russ' posting, before the Congressional Committees, one's right to refuse to answer on the grounds that it could incriminate one remains valid. If the committee asks one to testify about others, I am uncertain as to the full consequences but if they could show that you had knowledge of someone's guilt and refused, you are open to prosecution. Of course, in the eyes of the Committee AND much of the public including employers, refusal would be construed as tacit admission of guilt and could lead to blacklisting and other problems. Hardly is right that it is difficult to deal with the Communist party since it does plan takeover by whatever means necessary. Echoing Trotsky, some frustrated people who joined during the Depression years to further their own purposes were persecuted even though they had left the communist party. Through the courts they might legally clear their name, but many in the public would refuse to believe that they had reformed. Years passed before they were accepted again.

Subject: RE: BS: kim C's cold war question...
From: Willie-O
Date: 06 Sep 01 - 05:15 PM

Well, yeah Kim, you do have a right to belong to whatever political party you choose...sort of. But wasn't the Communist party actually illegal in the USA at that time? Which doesn't speak real highly of the right to express dissent, in real terms, in that society. (Think it was outlawed in Canada too, later--fuzzy on dates, but I'm not trying to be nationalistic here.)

John Hardly has defined two factions, but as Trotsky points out, there was a much broader spectrum of aims and desires within the general frame of the Marxist left, and the McCarthy hearings, dealing as they were in rumour and guilt-by-association, affected a great many people who were in no way Marxists or Communists. If you got called to testify, it put you in a very difficult spot whatever your beliefs or affiliations.

By the way, in Canada one can be forced to testify against onesself, if one chooses to appear as a witness at one's own trial. I found that out the hard way...we ain't got no Fifth!

....or Sixth, or Seventh, or Eighth....

Willie-O

Subject: RE: BS: kim C's cold war question...
From: Metchosin
Date: 06 Sep 01 - 05:48 PM

A moot point considering the Communist Party was outlawed in the US.

In Canada it was not formally outlawed, hence communist sympathizers were not totally driven underground, which gave the RCMP an easier task of keeping tabs on members of the party and (if anyone is naive enough to think there was a secret ballot in this country) to keep lists of citizens who voted for them or attended functions or meetings. Not good if one sought a career in the Civil Service or military, two areas off limits to those with questionable political leanings.

Many of the early left wing, labour unions and other citizens, demanding social justice, but put off by the dogma and stridency of the Communist Party in Canada, found an alternative voice in the Cooperative Commonwealth Federation Party (CCF), (the Socialists) which served as a kind safety steam valve to disarm the more radical Left. The CCF eventually transformed into the present day New Democratic Party, not in any way to be confused with the Democratic Party of the US.

Although this party has formed the government a number of times Provincially, first under Tommy Douglas of the CCF in Saskatchewan (and much to the surprise of some, the world didn't fall apart), it has never been able to win a majority of seats in a Federal Election.

However, it did, as the CCF, manage to hold the balance of power in a minority Federal government at one time, and had enough of the popular vote once, that a Universal Medicare system was finally adopted by the powers that be, to appease the growing Left.

Also, sometimes throwing a bone of social justice to the socially and economically disenfranchised of one's country, works just, if not more effectively, than the hammer.(the CCF was once considered the "conscience of parliament", particularly under such statesmen as Stanley Knowles).

The CCF/NDP is still viewed by a lot of the power brokers of this country as the "Red Menace" when in effect, it saved their bacon from the "real thing".

I post this to point out that there were paths, other than that of the "hammer", taken in other countries, which curbed communism, while still maintaining what is perceived as democratic freedoms in North America.

Subject: RE: BS: kim C's cold war question...
From: Jim the Bart
Date: 06 Sep 01 - 06:17 PM

Communism, as an economic system, is not inherently at odds with representative democracy (and I don't know of anything that declares capitalism to be the official economic system of the US). Regardless of the stated aims of the Communist Manifesto, as a political party, it is theoretically possible for the communists to come to power in the US without "illegally overthrowing" of the government. That realization is probably why it was considered dangerous enough to be declared illegal per se.

The Red Scare stomped all over people's constitutional rights. It was trial by innuendo and guilt by association. If you were called to testify you were damned if you did or damned if you didn't. What it proved was how thin the paper is on which our rights are written when people are driven by unreasoned fear.

Subject: RE: BS: kim C's cold war question...
From: Gareth
Date: 06 Sep 01 - 06:44 PM

One of the problems of McCarthy was that he left a legacy called McCarthism. Its what the Trots (and I speak as a founder of the UK Raymone Mercado Fan Club) scream every time somebody actually questions thier commitment to whatever political organisation they are trying to infiltrate.

BTW Do you know what is the largest political grouping in the UK ? Answer - former members of the Comunist Party.

Gareth - in IcePick mode.

Subject: RE: BS: kim C's cold war question...
From: GUEST
Date: 06 Sep 01 - 07:33 PM

during the political witch hunts of the late 40's/early50's, no action was taken by any governmental agency against either active or former party members, or those who chose not to testify

however, the blacklists were real and active and all handled privately

"history is the version of the events you choose to accept."

attribute the quote for extra credit (you need it).

Subject: RE: BS: kim C's cold war question...
From: Sandy Paton
Date: 06 Sep 01 - 08:11 PM

If "no action was taken by any governmental agency against either active or former party members," who was it that brought a number of people to trial under the Smith Act?

Sandy

Subject: RE: BS: kim C's cold war question...
From: paddymac
Date: 07 Sep 01 - 12:55 AM

I think it's fair to say that McCarthy was a political opportunist and a very sick man. I've always thought he studied too much Hitler. His "ism" was a sickness that affected the country for a time, but it has had unexpected and presumptively unintended beneficial repercusions in its impact on shaping subsequent evolution of 1st Amendment rights. Protections provided by judicial construction are much broader now than then. Any decent law school will almost certainly offer specialized coursework in 1st Amendment law. It is truly a fascinating branch of constitutional law.

Subject: RE: BS: kim C's cold war question...
From: GeorgeH
Date: 07 Sep 01 - 07:04 AM

Read Arthur Miller on the subject . . full of insights, and his lack of rancour makes him all the more refreshing. (Sorry, I'm not going to try to express his views here, because I'm simply not up to the task.)

A small point: remember the key question of the committee was "Are you, or have you ever been, a member of the communist party". To "take the 5th" in answer to that question was to "speak volumes".

Also, the other "aim" of the committee was to get people to "name names" - not an area where "the fifth" is of any help.

Of course, during this period, someone took a copy of the US Constitution out on the streets and asked folks to sign it, as a pettition. The great majority of those asked refused to do so, on the grounds of its being un-american! (This tale may be apocrophal, but I think it's actually true.)

As for John Hardy's original post, he "identifies" a problem which simply does not exist.

I assume he accepts that the (a) part of his "communist dichotomy" is legitimate political activity and so should not be penalised. The (b) part ("a covert movement . . take over . . by whatever means") should - in any "free" or democratic society be acted against only as and when it breaks the laws of that society. There is no case fo taking any further action. Within a "free" society it has always been easy for "intellegence" operators to infiltrate such organisations unless and until they are driven underground.

But wasn't McCarthy's concern that of the Communists "poisoning the minds" of Americans (or was it just of American Youth)? An admission that the "American way of life" couldn't argue its case, in a fair contest, against the communist manefesto?

G.

Subject: RE: BS: kim C's cold war question...
From: Jim Dixon
Date: 07 Sep 01 - 09:09 AM

I'm not a lawyer, but here's my understanding of how the Fifth Amendment works:

It guarantees that you can't be compelled to give information that will then be presented as evidence against you when you are being prosecuted for a crime. It doesn't give you the right to refuse to give information in general.

For example, you can't refuse to give information just because it might be used against you in a CIVIL lawsuit. Or because your boss might fire you if he knew. Or because other people might be prosecuted. Or because people might throw rocks at your kids.

Once you refuse to give information, and cite the Fifth Amendment as your reason, the government then has the option of granting you immunity from prosecution. A grant of immunity is simply a binding promise by a prosecutor (or in the case of testimony before a congressional committee, by Congress itself) not to use the information against you. (A promise by Congress would be binding on federal prosecutors as well.) Once you have that promise, and there is no possibility you will be prosecuted, the Fifth Amendment no longer gives you any protection. You can then be compelled to testify, and imprisoned if you refuse.

I've never seen an actual grant of immunity, but they must be complicated, carefully worded documents. The government has to spell out what kind of information they won't use, without necessarily knowing what kind of information you have to give. And they don't want to give away the store, either.

There are such things as limited grants of immunity, and, I think, conditional grants of immunity. They might grant you immunity from being prosecuted for murder, for example, but not for kidnapping. Or for the murder of one particular person, but not for murder in general (in case you murdered someone else).

There are gray areas. For example, is a promise by a federal prosecutor binding on a state prosecutor? I understand the general answer is no, but state prosecutors usually voluntarily honor federal grants of immunity, as well as those of other states.

Kenneth Starr, a federal prosecutor, gave immunity to Linda Tripp before she handed over the tapes she had illicitly made of phone conversations with Monica Lewinsky. Of course, Tripp WANTED to testify, and Starr had no desire or reason to prosecute her, but she wanted immunity anyway, because she had violated a STATE law in Maryland by making the tapes. After the impeachment trial was over, the Maryland attorney general wanted to prosecute her. A federal appeals court ruled that Tripp could be convicted only if the prosecutor could prove his case without using any of the evidence that Tripp had given to Starr. In other words, he would have to have an independent source of evidence. The prosecutor decided he couldn't meet the burden of proof, so he dropped the charge.

Subject: RE: BS: kim C's cold war question...
From: GeorgeH
Date: 07 Sep 01 - 09:49 AM

Fascinating, Jim!!

thanks

G.

Subject: RE: BS: kim C's cold war question...
From: Metchosin
Date: 07 Sep 01 - 12:48 PM

Here is an excerpt from a book (sorry the authors names escaped me while I was making the link) that details the Smith Act more fully and documents some of the FBI's activities regarding dissent click here It makes for some very interesting reading.