Reds in America - Richard M. Whitney

The Shortcomings of Our Laws

An effort has been made to show, from documents of the Communist party of America and the "legal" branches of this organization, in what manner the Communist International of Moscow is endeavoring to bring about the overthrow of the Government of the United States by force of arms, and to what extent this conspiracy has progressed. There can be no misreading the aims and objects of this conspiracy, for the documents themselves frequently refer to the necessity for using "armed force," to "armed insurrection," and to "violence" as the only means of attaining the end at which the Communists aim- The endeavor has also been made to show that many non-Communist organizations and individuals have aided and are aiding the movement through agitation, through contribution of funds, toward supporting trouble-makers and interfering with efforts to suppress radicalism.

The Communist party of America has been declared officially to be an illegal organization. Because of this it has been necessary for this party to hold its annual conventions in secret, hiding in the woods, as was the case at Bridgman, with lookouts posted to give warning of the approach of officers of the law. It has been necessary to Use codes for communicating with one another in order to escape detection, and for each member of the illegal organization to have and use a fictitious name in order that identities may not be known. In view of the facts as they are known and provable with unimpeachable evidence, the question has naturally arisen, why doesn't the Government wipe out this nest of vipers? The answer is simple, the Government has no power to do so.

The Communists and radicals of every hue, seek refuge under the very laws they deride; they appeal to the laws they are trying to overthrow for protection from punishment for violations of those laws. Certain senators and members of Congress, certain judges on the bench, even on the Federal bench, and countless citizens of no official position, obsessed with the theory of "free speech," are unable, or unwilling, to recognize the difference between free speech and a conspiracy to overthrow the Government by armed revolution. Bills introduced in Congress are killed by an opposition which suddenly develops when any proposal is made to give the officers of the law adequate authority to protect the Government from conspiracies to effect its downfall. The Communists boast that they have members of Congress working for them and that they can prevent the passage of laws designed to curb radical activities. Senators are threatened with being reported to Moscow unless they act thus and so. And known Communists go to Washington with perfect immunity and consult with senators and congressmen in their offices at the Capitol.

Members of the Government at Washington and representatives of the people in both branches of Congress have known of the inadequacies of the laws ever since Red Radicalism first raised its head in this country. Loyal officials and earnest congressmen have made recommendations and introduced bills looking to the strengthening of laws of the country in order that this international blight might be prevented from finding root in the soil of the United States. And these recommendations have been ignored and these bills have been killed.

It will be a surprise to most loyal Americans to know that anyone, provided he be an American citizen, may manufacture a bomb in the city of Washington, (or in any other Federal territory), take that bomb and walk down Pennsylvania avenue announcing to all who will hear, that he intends to blow up the Capitol as a part of a project looking toward the overthrow of the United States Government, and have committed no crime beyond disturbance of the peace, a municipal police regulation. What is more, he may actually blow up the Capitol and destroy it, all the while proclaiming his purpose as a means of violently overthrowing the Government—and all he can be arrested or prosecuted for is destruction of Government property. This is legally the same offense that may be committed by any boy throwing a stone through the window of a Government building. For there is no Federal law which will touch an American citizen who joins the Communist party and endeavors to carry out the purposes of that organization—the overthrow of this Government by force and violence.

If an alien does the same thing he may be deported under the existing laws. Or rather, the law provides for his deportation, but by a curious twist of the law even the alien is saved from punishment. For the same law that provides for his deportation also specifies that before being deported he must be provided with a passport approved by the representative in the United States of the country to which he is to be deported. And as no country wants radicals who aim at the destruction of all so-called "capitalist" countries, the securing of a passport for the accused alien is difficult and often impossible. For example, England and France have refused to permit their nationals, those who are Communists, to be dumped upon their shores by the United States; and even Russia, after a hectic experience with the shipload of Reds deported on the Buford, refuses to accept any more of that brand. So, it is seen, the law which provides for the deportation of aliens also forbids, in effect, their deportation.

The law under which the Government functions in the handling of this situation today is Section 6 of the Criminal Code, which reads:

"If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder or delay the execution of any law of the United States contrary to the authority thereof, they shall each be fined not more than five thousand dollars, or imprisoned not more than six years, or both."

This law would seem, at a casual reading, to be sufficient to enable the Government to crush the conspiracy of the Communists, for example, which aims at the destruction "by force" of "the Government of the United States." But many times courts have interpreted this section of the Criminal Code to mean that an overt act against the Government must be committed before any offence has been perpetrated. Therefore, the conspirators in the woods at Bridgman, Mich., who were met in secret convention to plot the overthrow of the Government would be considered, under these interpretations of the law, to have been entirely within their rights. Fortunately, however, a number of States, and Michigan is one of them, have stringent anti-syndicalist laws to protect the Government of the United States which seems unable to get a law through Congress to protect itself.

Some of the men arrested in connection with the Bridgman secret, illegal convention, notably Ruthenberg and Foster, have repeatedly referred to the typewriters and mimeograph machines as the weapons the Michigan authorities captured at Bridgman and slurringly asked if it were thought they were planning to overthrow the Government with those "weapons." And yet one of the results of the late war in Europe was the tremendous increase in the use of propaganda as a weapon. It was used by the Communists to destroy the efficiency of the army of Russia under the Czar, and is being used today by the Communists to influence even the highest officials of this Government so that the danger of Communism will not be understood or appreciated. Propaganda is now recognized by military authorities as a distinct and very potent military tactic. Our own military authorities assign it a definite place in the category of warfare, beside gas, liquid fire and other methods which had to be combated in the World War. The Italian campaign, the retreat of the demoralized Italian armies, was the definite result first of a weakening of morale affected by carefully planned and cleverly placed propaganda.

One of the features of the operation of the laws under which the Government is striving to counteract or crush the Communist movement is the confusion of authority. The immigration question comes under the Department of Labor; undersirable aliens may be kept out by the immigration authorities legally, and a few are so kept out. The passport problem is in the hands of the State Department, which may refuse to grant a passport to whomever it pleases; and it sometimes does refuse passports. The Treasury Department has to do with smuggling, and the Post Office Department has to do with the mails and their misuse by radicals.

The Department of Justice is the legal branch of the Government, to be called upon for advice and information. But there is no law that compels one department to ask for the records of the Reds, native and foreign, before they are admitted, or granted passports, or tried for the misuse of the mails or for smuggling. In fact, it has happened frequently that Americans and aliens have been permitted to go freely about their plotting against the Government, armed with passports, admitted freely by the immigration authorities, when in the various files of the different departments was enough evidence, if collected and used, to convict the man or woman affected of nearly every crime short of murder—and sometimes actually of murder.

Communists have no trouble getting passports to use going back and forth to Moscow. These passports are frequently forged and used by other messengers of the Communists. The Department of Justice must have a vast amount of information regarding the activities of individuals connected with the Communist party of America and its information is available to other departments of the Government if asked for; but there have been cases, it is reported, where even after information has been furnished upon such request it has not been regarded.

Many times efforts have been made to strengthen the law so that the Government could handle the Red menace effectively without waiting for bombs to be exploded or persons slain. Almost invariably such efforts have come to nought because of opposition in Congress and because of the activity of the propagandists of the Communist party and of those whose work directly plays into the hands of the Communists. Lawyers loving limelight have a habit of appearing and defending "free speech" which with them means nothing but unrestrained license. Hundreds of people rally to fight any bill that has a patriotic motive back of it, such as a measure designed to prevent the overthrow or the attempt to overthrow this Government by violence. Such was the fate of the Sterling bill, which passed the Senate but was defeated in the House. The writer holds no brief for this particular bill, but many loyal lawyers have studied it carefully trying to find a reason why any real red blooded American would oppose it. But it was opposed so strenuously that it was defeated in the House of Representatives. It was entitled, "A bill to prohibit and punish certain seditious acts against the Government of the United States and to prohibit the use of the mails for the purpose of prompting such acts," and read as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be unlawful for any reason to advocate or advise the overthrow, or to write, or knowingly to print, publish, utter, sell, or distribute any document, book, circular, paper, journal, or other written or printed communication, in or by which there is advised the overthrow, by force or violence, or by physical injury to person or property, of the Government of the United States or all government, or advise or advocate a change in the form of Government or the Constitution of the United States or resistance to the authority thereof by force or violence or by physical injury to person or property; and it shall be unlawful for any person by force or violence to prevent, hinder or delay the execution of any law of the United States or the free performance of any of its officers, agents, or employees, or of his or their public duty, or to attempt by force or violence to overthrow the Government of the United States.

"Sec. 2. That the display or exhibition at any meeting, gathering or parade, public or private, of any Bag, banner, or emblem intended by the person or persons displaying or exhibiting the same to symbolize or indicate a purpose to overthrow by force or violence or by physical injury to person or property, the Government of the United States or all government, is hereby declared to be unlawful.

"Sec. 3. That every document, book, circular, paper, journal, or other written or printed communication in or by which there is advocated or advised the overthrow by force or violence or by physical injury to person or property of the Government of the United States or all government, or in or by which there is advocated, or advised the use of force or violence or physical injury to or the seizure or destruction of persons or property as a means toward the accomplishment of economic, industrial, or political changes, is hereby declared to be non-mailable and the same shall not be conveyed in the mails or delivered from any post office or by any letter carrier; provided. That nothing in this Act shall be so construed as to authorize any person other than an employee of the Dead Letter Office duly authorized thereto or other person upon a search warrant authorized by law to open any letter not addressed to himself: Provided further, That any author, publisher, or party affected or aggrieved by the action of the Postmaster General in excluding materials from the mails under this section shall, upon filing a bond to cover the actual cost of such proceeding, be entitled to a hearing de novo before a judge of the Federal district or circuit in which the party affected or aggrieved resides. The court shall have power during the pendency of proceedings in court to suspend the order of the Postmaster General; Provided further, That no such court proceeding shall bar or interfere with any criminal prosecution under the terms of this Act."

"Sec. 4. That, it shall be unlawful to import or cause to be imported into the United States or any place subject to its jurisdiction any matter declared by section 3 of this Act to be non-mailable or to transport or cause to be transported any such matter from one State to another or into any place subject to the jurisdiction of the United States.

"Sec. 5. That whoever shall use or attempt to use the mails or the Postal Service of the United States for the transmission of any matter declared by section 3 of this Act to be non-mailable or who shall violate any other of the provisions of this Act shall be fined not more than $5000 or imprisoned not more than five years, or both, and if an alien, shall be, upon the expiration of his sentence, deported from the United States and forever barred from reentering the United States or any Territory under its jurisdiction.

"Sec. 6. That every foreign-born person who has become a naturalized citizen of the United States who shall commit any of the acts forbidden by this Act shall, upon conviction thereof, forfeit his citizenship in the United States; and any foreign-born person who has declared his intention to become a citizen shall, upon his conviction of any offence under this Act, forfeit his right to become such citizen, and all proceedings had in the matter of naturalization of any such person shall be cancelled and become null and void, and he shall thereafter he ineligible for naturalization in the United States, and shall be subject to deportation as in the case of other aliens, as provided by law."

There was little opposition to this proposed act when it was brought out of the Senate Judiciary Committee and presented to the Senate. But when it came up in the House, the opposition was active both on the floor and on the part of lobbyists against it. Perhaps the most active opponent at this stage was Jackson H. Ralston, a Washington attorney who represented the American Federation of Labor and who had also acted as counsel for Louis F. Post, former Assistant Secretary of Labor, at a hearing before a Congressional Committee on charges against Post arising out of his actions and policies in connection with deportation preceedings. And yet the passage of this act or one of similar import is necessary, and is known to be necessary, if the Government is to be able adequately to handle such individuals engaged in Communistic activities directed toward the overthrow of this Government by force and violence.

A certain group of lawyers, not always the same personnel but invariably with many of the same individuals, seems always to be seeking ways to embarrass the Government and interfere with its functioning when it attacks radicalism in any of its forms. These lawyers do not seem to care as to the merits of their case, as was shown when they brought charges of illegal practice against the Department of Justice, charges which were quickly shown to be utterly without foundation, a fact that the veriest tyro would have known upon cursory examination of the "evidence" they presented. The makeup of this particular group of lawyers, whose activities seem to have been directed to hindering instead of helping the Government in its fight, a right inherent in every Government, to protect itself, is interesting.

This self-appointed committee of lawyers, which signed the charges against the Department of Justice, included Felix Frankfurter, Ernst Freund and Frank P. Walsh, who were identified with the American Civil Liberties Union, an organization, as has been shown, which includes known Communists on its committees working directly and constantly for the overthrow of the Government of the United States by force and violence. Frankfurter, from his chair at Harvard, became so active in his work in behalf of the radicals that Theodore Roosevelt wrote that he had taken "an attitude which seems to me to be fundamentally that of Trotsky and the other Bolsheviki leaders in Russia."

The American Civil Liberties Union was also active in this movement with which its members were identified. Of this organization, as has been seen, it has been said that the effect of its activities "is to create in the minds of the ill-informed people the impression that it is un-American to interfere with the activities of those who seek to destroy American institutions. They seek to influence legislators and executives to repeal or veto any law calculated to protect the State or the Federal Government from the attacks of agitators."

Frank P. Walsh is the lawyer who, on his return from Moscow, was reported in Communist circles to have been retained for a fee of $50,000 to defend the Bridgman conspirators. Zecharia Chaffee, Jr., a colleague of Frankfurter's at Harvard, the man who advocated in print and in public declaration that there should be no law against sedition and anarchy, was also one of the lawyer signers of these charges. Another was Francis Fisher Kane of Philadelphia, whose name is on the Workers' party "sucker list" and who was formerly United States district attorney in his district. A Senate committee report declared that Kane's statement before the committee "gives the impression that his tendencies are strongly Socialistic." Swinburne Hale, of New York, who resigned as captain in the Army in the Military Intelligence Section when official information was sought regarding Ludwig C.A.K. Martens, the "Bolshevik Ambassador," was one of the signers.

Dean Tyrrell Williams, of the Washington University Law School, of St. Louis; Jackson H. Ralston, mentioned above; R. G. Brown, of Memphis; Alfred S. Niles, of Baltimore; Roscoe Pound, another Harvard professor; and David Wallerstein, of Philadelphia, were the other members of this particular group. Some of them are almost invariably found on the side of the criminal whose activities the Government is trying to curb.