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Congressional Committees and Unfriendly Witnesses--by Ellen Schrecker

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G. David Schine, Joseph McCarthy, and Roy Cohn at the June 1954 Army hearings

The institutions that most typified the McCarthy era were congressional investigating committees. They were also the most important vehicle for extending the anti-Communist crusade throughout the rest of society. Their activities and the publicity they generated transformed what had initially been a devastating but nonetheless narrowly focused attack on a small political party and its adherents into a wide-ranging campaign that touched almost every aspect of American life.

In many respects, the operations of these committees paralleled those of the executive branch. They publicized the dangers of the Communist threat, their hearings often producing the same scenarios as trials, with many of the same charges, witnesses, and defendants. But because congressional hearings were immune from the due process requirements that accompanied criminal prosecutions, the committees had more leeway to denounce and accuse. They came to specialize in punishing individuals by exposing their alleged Communist connections and costing them their jobs. So effective had the committees become that by the height of the McCarthy era, in the mid-1950s, people were often fired simply for receiving a subpoena from HUAC or one of the other committees.

Investigating committees served more partisan functions as well. Conservatives in and outside of the Republican party used them to attack the liberalism of the New Deal and the Truman administration. On the local level, the committees often functioned as hired guns for their allies within the anti-Communist network. Conveniently timed hearings, with their highly publicized and damaging charges of Communist affiliation, could target specific groups and individuals at crucial moments like strikes, union elections, or sessions of state legislatures. The committees also collected information and did research for the rest of the anti-Communist network. Their published reports and hearings were reference tools for the professional anti-Communists. HUAC was one of the network's main repositories, and, unlike the FBI, it shared its files openly with members of Congress and their constituents.

HUAC was the trailblazer, the oldest and most influential of the anti-Communist committees. Established in 1938 as part of the conservative backlash against FDR's New Deal, it developed the most successful techniques and rationales for exposing political undesirables. By the mid-1950s there were dozens of similar bodies at every level of government emulating HUAC's operations and procedures. The most important were Senator McCarthy's Permanent Investigating Subcommittee of the Government Operations Committee and Pat McCarran's powerful Senate Internal Security Subcommittee (SISS), both of which conducted exactly the same kinds of investigations as HUAC. More than a dozen states and even a few cities had also established their own Un-American Activities Committees or authorized other investigators to make similar types of probes.

HUAC had not always been so influential. During the 1930s and early 1940s, the committee had a reputation for irresponsibility. Few members of Congress considered it a prestigious assignment and many of its mainly southern or rural members were ineffectual or worse. It recruited its staff from former FBI agents or professional ex-Communists whose ideological fervor or desire for publicity occasionally brought them into conflict with the more sedate mores of the congressional establishment. The committee's tendency to publicize unsubstantiated charges of Communist influence did not bolster its credibility. But for all its fecklessness, nothing HUAC did seriously threatened its existence or interfered with the success of its mission. The publicity it attracted as well as its solid support from the American Legion and like-minded conservative groups ensured that few members of Congress would openly dare to oppose it or vote against its annual appropriations.

Even so, it was not until the late 1940s that HUAC gained respectability and consolidated its power. The shift in national priorities that accompanied the cold war brought the nation's political elites closer to HUAC's anti-Communist worldview. The committee thus became less marginal and got support from other institutions. This support--whether it took the form of the Supreme Court's failure to intervene against the committee's violations of civil liberties or the willingness of private employers to fire unfriendly witnesses--legitimized HUAC and increased its power. The Hiss case of 1948 was equally important (see Chapter 5). It convinced the public of the effectiveness of congressional investigations for uncovering Communist subversion and it showed Republicans and other conservatives how useful those investigations could be for harassing the Truman administration.

By the early 1950s, HUAC and the other committees had refined the business of exposing Communists into a science. The often frenzied improvisations that characterized HUAC's investigations during Nixon's attempt to fortify Chambers's charges against Hiss yielded to increasingly stylized rituals that all participants adhered to. The committees' basic objectives remained unchanged: They were looking for Communists--and they found them. The committees did not randomly select the subjects of their investigations. Their staff members made sure that most people questioned during the public hearings in the late 1940s and 1950s were or had been members of the party or within its political orbit.

It was not always easy for the committees to find suitably vulnerable witnesses. After all, most Communists hid their party ties. But the committees had many allies. The rest of the anti-Communist network assisted committee staffers in identifying appropriate witnesses. The FBI was especially helpful, routinely supplying the committees with information from its supposedly sacrosanct files. State and local police forces and their Red squads gave similar cooperation. The committees' staffers and their consultants also pulled names from the memories of informers and from the documents that they and other anti-Communist experts like J. B. Matthews had amassed. And, of course, the committees pressed the people they had subpoenaed to cooperate and supply further leads.

Most committee hearings revolved around a symbolic ritual designed to expose someone as a member or former member of the Communist party. By the early 1950s these unmasking ceremonies had become almost routine. First, a cooperative ex-Communist or expert witness described the pattern of Communist infiltration in the area of American life the committee was supposedly exploring and listed the alleged infiltrators by name. Then the committee interrogated those people one by one, invariably asking them the crucial question "Are you now or have you ever been a member of the Communist party?" Witnesses who answered in the affirmative then had to name names. Although some witnesses produced the required names without assistance, the usual procedure was for the committee's counsel or another member of the staff to read out a list of alleged Communists and ask the witnesses to confirm whether or not these people had been members of the party. Since the committee already knew the names it was asking its witnesses to identify, it was clear that exposure, not information, was the goal.

Most of the time, these rituals took place in private, in a preliminary executive session. Witnesses who refused to answer the committee's questions were then called for a second hearing in public, while more cooperative witnesses or those who were politically spotless were sometimes excused from further testimony. The committees justified their practice of requiring witnesses to name names by explaining that it was the only way the witness could prove that he or she had really broken with the party. It was a crude political test--and one that caused enormous anguish for the committees' witnesses.

By the 1950s, many of the people who appeared before HUAC and the other committees had already dropped out of the Communist party and were no longer politically active. A few of them had decided to defy the committees for political reasons, because that seemed the best way to oppose what the investigators were doing. Others would have been willing to reveal their own past activities, even their past membership in the party, but they would not name names. They would not, as one witness explained, "crawl through the mud to be an informer." Naming names was an issue of personal morality. Playwright Lillian Hellman spoke for these witnesses when she told HUAC in a statement that "I cannot and will not cut my conscience to fit this year's fashions." Their own scruples against informing as well as their political opposition to the investigations forced these people into a legal bind. The Supreme Court had left them no alternative but to refuse all cooperation with the committees.

When HUAC intensified its anti-Communist investigations in the early years of the cold war, it was by no means clear that it had the constitutional right to question people about their political beliefs and activities. The First Amendment's strictures against congressional interference with the right of free speech and assembly could easily be interpreted as preventing the committee from probing the politics of its witnesses. During 1946 and 1947, most of the men and women who refused to answer HUAC's questions assumed that they had First Amendment protection. They knew that they were taking risks. They could be cited, indicted, and tried for contempt of Congress and could well end up in prison if the Supreme Court did not overturn their convictions on constitutional grounds. But they and their lawyers expected that they would avoid that outcome.

The experiences of the Hollywood Ten were emblematic. Though their cases did not set legal precedents, these screenwriters and directors became the most notorious group of HUAC witnesses to rely on the First Amendment. They had all been in the party and, when subpoenaed to appear before the committee in October 1947, they took a confrontational stand. Like many of HUAC's other unfriendly witnesses of the period, they and their attorneys assumed that the Supreme Court would probably vindicate them; also, like the Smith Act defendants, they used their public hearings as a forum to expound their own political views. Witnesses and committee members yelled at each other, and several of the Ten were literally pulled away from the witness stand by federal marshals. A month later the full House of Representatives overwhelmingly voted to cite them for contempt. They were tried and convicted in the spring of 1948. Two years later, the Supreme Court's refusal to hear their case upheld the lower court decisions and confirmed their convictions. Had they known at the time of their hearings that they would actually go to prison, many of the Ten might have been more restrained--though probably no more cooperative.

In 1947, when the Ten appeared before HUAC, the Supreme Court had not yet ruled on the First Amendment rights of unfriendly witnesses and HUAC was still considered slightly disreputable. Because the justices at first refused to hear these cases, it was not clear how they would handle the substantive constitutional issues that the committee's activities presented. But as the official campaign against American communism intensified and public sympathy for the uncooperative witnesses began to erode, it became increasingly unlikely that the majority of the justices would take an unpopular position on any case that involved the politically sensitive issue of communism. Unlike in the Dennis case, there was no question of national security involved, so the Court based its reluctance to challenge what it perceived to be the will of the people--or at least of Congress--on the doctrine of judicial restraint. That meant that the Court would not overrule the clearly expressed policies of other branches of government. Most of the justices disapproved of HUAC's heavy-handed tactics, but, as Justice Robert Jackson explained in 1949, they felt "it would be an unwarranted act of judicial usurpation to strip Congress of its investigatory power or to assume for the courts the function of supervising congressional committees." In short, HUAC had a free hand.

The Hollywood Ten were among the last major group of unfriendly witnesses to invoke the First Amendment. By 1948, most of the people who wanted to avoid having to answer the committee's questions had begun to rely on the Fifth Amendment's privilege against self-incrimination. Among the first group of witnesses to use the Fifth in this way were the alleged members of the spy ring identified by Elizabeth Bentley. Although the privilege of not having to testify against oneself had developed in England during the seventeenth century expressly to shield dissidents and had been incorporated in the Bill of Rights along with other guarantees for criminal defendants, such as trial by jury, its use before congressional committees was relatively new and it was unclear just how much protection the Supreme Court would allow it to provide. Still, by the end of 1948, most witnesses had few alternatives. The federal courts were not upholding the First Amendment and people who denied the committee's charges, like Alger Hiss, were being indicted for perjury.

It took a few years for the Fifth Amendment cases to reach the Supreme Court. Once they did, the justices, who had refused to protect the First Amendment rights of unfriendly witnesses, were more willing to intervene in the apparently less sensitive terrain of procedure and uphold a witness's privilege against self-incrimination. Ironically, the Court's own decision upholding the constitutionality of the Smith Act in the Dennis case enabled it to extend the protection offered by the Fifth Amendment. Although the privilege ostensibly applied to criminal proceedings, not congressional hearings, the Court admitted that witnesses' answers to questions about their Communist ties could become "a link in the chain" of evidence that might make them liable for prosecution under the Smith Act. Over the next few years the federal judiciary continued to expand the protection granted by the Fifth Amendment so that eventually unfriendly witnesses did not even have to answer questions about where they lived or worked.

But the Court would not protect people who refused to name names. The main problem here was the so-called waiver rule, under which witnesses who talked about themselves were assumed to have automatically waived their privilege against self-incrimination. Although the Supreme Court granted protection to witnesses under the Fifth Amendment, it did not allow witnesses who waived the Fifth to invoke it to avoid answering questions about other people. This rule, and their attorneys' understandable caution about it, forced many witnesses into a more uncooperative stance than they might have taken had their refusal to name names been accepted. It made it impossible, for example, for many ex-Communists to give a public explanation of their experiences in the party and thus counter the demonized picture of the party that so pervaded the public discourse.

Though a legal godsend for uncooperative witnesses, the Fifth Amendment became a public relations disaster. The committees exploited the waiver doctrine to the hilt, knowing full well that few Americans understood its legal technicalities. Witnesses invoked the Fifth Amendment, the committees and their supporters claimed, because they were trying to hide something. Since many of the people who refused to testify were or had been in the party, the committees pushed the notion that everybody who took the Fifth was a "Fifth Amendment Communist." For Senator McCarthy, "A witness's refusal to answer whether or not he is a Communist on the ground that his answer would tend to incriminate him is the most positive proof obtainable that the witness is a Communist." Insisting that the people who took the Fifth were guilty of whatever it was they refused to talk about, the committees plied reluctant witnesses with damaging questions in the confident expectation that they could not answer them. Scientists could not deny outlandish charges that they had spied for the Soviet Union; teachers could not rebut similarly exaggerated allegations that they had brainwashed their students.

By the early 1950s, the disadvantages of using the Fifth encouraged some witnesses to seek alternatives. Lillian Hellman tried unsuccessfully to have HUAC allow her to talk about herself but not about others. Other witnesses searched for other ways to avoid naming names. Some took what came to be known as the "diminished Fifth" and denied present involvement with the party but invoked their privilege against self-incrimination with regard to the past. Others offered new technical reasons for their refusal to answer the committees' questions and, in a few cases, even reverted to the First Amendment in the hopes that the Supreme Court might reconsider its earlier position. It did a bit. Though the Court did not restore the protection of the First Amendment until the mid-196Os, it did whittle away at the committees' powers to compel testimony, usually on procedural grounds.

But the protection the Court granted to unfriendly witnesses was only legal. It did not shield them from the notoriety that their refusal to cooperate with the committees ensured or from the extralegal sanctions that their employers applied. Nor did it protect them from all the unpleasantness that simply appearing before Congress entailed. Because the committees often had subpoenas served to people at their workplaces, some witnesses lost their jobs even before their hearings began. Committee procedures were intentionally disorienting. Witnesses rarely got more than a few days to prepare for a hearing. As Document 20 reveals, finding an attorney was often difficult, especially for people who did not want to name names. Many witnesses usually ended up relying on the same small handful of left-wing and civil liberties lawyers whose identities alerted the investigators to the probable testimony their clients would give.

Even the friendly witnesses suffered. Though they were often spared the exposure of a public session if they agreed to name names, they usually testified under duress with the knowledge that to defy the committee would destroy their careers. Having left the party, they had no desire to martyr themselves for a cause they did not support. Still, many of them did not like becoming informers. It was, a Connecticut professor recalled, "a traumatic experience" that left him "ashamed and embarrassed."

For the unfriendly witnesses and their families the experience was, of course, even more unwelcome. Their lives were disrupted. They and their spouses often lost their jobs. People ostracized them, sometimes crossing the street to avoid an encounter. One college teacher recalled how his "old friends, fellow students, former colleagues, fled to the hills, in fact behaved like a bunch of frightened rabbits." The witnesses' children suffered too, losing playmates and even being tormented in school. The social isolation was particularly devastating for people who lived outside large cities like New York or San Francisco, where there were supportive left-wing communities. But even with such assistance, it took considerable courage to defy a committee.

What happened to the unfriendly witnesses had enormous implications. No aspect of the McCarthy era has received as much attention as the predicament that confronted the men and women subpoenaed by anti-Communist investigators. Yet all too often these people's experiences have been portrayed in both the media and the scholarly literature as individual conflicts, moments of intense personal struggle in which each witness wrestled with his or her own conscience. While not disparaging the agonizing moral dilemmas these people faced, we must recognize that their experiences had an equally important political dimension. The committees' investigations, while directly affecting the lives of their targets, indirectly affected the rest of the nation. The unfriendly witnesses were the most prominent dissenters in early cold war America. By punishing them, the committees seriously narrowed the range of political debate.

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