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  • Mike Martinez

The Safety of the Kingdom: Government Responses to Subversive Threats, Part II

In my last blog, I mentioned that my next book, titled The Safety of the Kingdom: Government Responses to Subversive Threats, will appear in 2015. Carrel Books, an imprint of Skyhorse Publishing, will publish the manuscript. In this posting, I want to talk about the first four chapters of the book.

Chapter 1. The Alien and Sedition Acts

Government reactions to fears about terrorism and subversion have occurred numerous times in American history. Chapter 1 begins late in the eighteenth century as the new United States faced one of its earliest crises over potentially subversive activity. In 1798, owing to a fear of foreign influences that could threaten the health of the fledgling republic, Congress passed, and President John Adams signed, four laws known as the Alien and Sedition Acts. These laws restricted naturalization provisions, authorized the detention of foreign nationals if war broke out with their respective countries, authorized the deportation of non-citizens suspected of plotting against the United States, outlawed “conspiracies” that criticized government policies, and prohibited false or malicious writing against Congress or the president.

President John Adams signed the infamous Alien and Sedition Acts into law.

Some historians have argued that the acts were an overreaction to the French government’s hostility toward the new United States republic while others have viewed the punitive measures as a thinly-veiled effort by President Adams’s Federalist Party to undermine Thomas Jefferson’s Democratic-Republican Party. Although Adams did not use the new Alien Acts to persecute his enemies, the Sedition Act was especially worrisome to proponents of free speech because it essentially nullified the First Amendment. Anyone who criticized the government could be prosecuted for treasonous activities — a clear weapon for Federalists to silence their Democratic-Republican critics.

Several prominent Jeffersonians, notably John Daly Burk, William Duane, and Matthew Lyon, were tried for sedition during this time. Jefferson and his faithful compatriot James Madison penned the Kentucky and Virginia resolutions in response to these prosecutions. They argued that states could nullify acts of the federal government if the states believed those laws (such as the Alien and Sedition Acts) were unconstitutional. The notion that the U. S. Constitution was merely a compact among independent states that exercised sovereignty over the Union would hold enormous repercussions in American history, especially in the subsequent works of John C. Calhoun, the nullification crisis of 1832, and the arguments of southern secessionists leading to the American Civil War in 1861. As for the Alien and Sedition acts, Jefferson’s incoming Democratic-Republican administration repealed the laws after President Adams left office in 1801.

Chapter 2. Lincoln and the Suspension of Habeas Corpus

When the rebels fired on Fort Sumter on April 12, 1861, thus initiating a violent act of rebellion against the United States government, Congress was not in session. President Abraham Lincoln, worried that the rebellion could spiral out of control if he did not act decisively, suspended the writ of habeas corpus in Maryland on April 27, 1861, after he received reports that mobs of pro-southern rabble-rousers intended to destroy railroad service between Annapolis and Philadelphia. The suspension was limited at that time, but as the war progressed, the president would expand his authority in the interests of national security. Congress later ratified Lincoln’s unilateral action of April 1861.

In Article I, Section 9, of the U. S. Constitution, the Founders stated, “The privilege of the writ of habeas corpus shall not be suspended, unless when in causes of rebellion or invasion of the public safety may require it.” Recognizing that the president as commander in chief was best situated to put down a rebellion, Congress, acting under its constitutional authority, passed the Habeas Corpus Suspension Act of 1863, which allowed the president to suspend the “writ of liberty,” as necessary, to combat the crisis facing the Union. Lincoln used the new law to justify suspending the writ throughout the Union in cases involving prisoners of war, spies, traitors, or military personnel. He argued that broad wartime powers were necessary to put down the rebellion. The suspension remained in effect until Lincoln’s successor, Andrew Johnson, revoked the authority on December 1, 1865.

The most famous case involving the suspension of habeas corpus during the war occurred when General Ambrose E. Burnside arrested former congressman Clement Vallandigham of Ohio, a leader of the “Copperhead” faction of the Democratic Party, in May 1863 for his vocal criticism of the Lincoln administration and his vehement support for the Confederate States of America. Vallandigham was tried and convicted by a military tribunal. Sentenced to serve two years in a military prison, his case became a cause célèbre among critics of the war. The president was not informed that Burnside was going to arrest Vallandigham beforehand, and the political fallout embarrassed Lincoln. Nonetheless, the president chose to support his field commander. To blunt the criticism, Lincoln banished his nemesis to the Southern Confederacy. “Must I shoot a simpleminded soldier boy who deserts,” he mused, “while I must not touch a hair of a wily agitator who induces him to desert?”

Clement Vallandigham was a vehement critic of the Lincoln administration.

After the war ended, several pro-Confederate operatives were tried before a military tribunal for crimes perpetrated against the Union. Sentenced to be hanged, they appealed to the U. S. Supreme Court. In a famous 1866 case, Ex Parte Milligan, the high court ruled that when Congress suspended the writ of habeas corpus in 1863, the president was not authorized to approve the use of military tribunals where the civil courts were open and operational. Of course, by the time the Supreme Court ruling was announced, the crisis had ended.

Chapter 3. The Espionage Act of 1917 and the Sedition Act of 1918

Shortly after the United States entered the Great War in 1917, federal authorities worried that spies and subversives might interfere with military operations. Congress eventually enacted, and President Woodrow Wilson signed, the Espionage Act of 1917, which made it a crime, among other things, “To convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.” This vaguely-worded provision left much discretion to local U. S. attorneys. Consequently, enforcement varied widely throughout the country.

A year later, Congress amended the act. The Sedition Act of 1918 made it a crime use any “disloyal, profane, scurrilous, or abusive language about the form of government of the United States . . . or the flag of the United States, or the uniform of the Army or Navy” or to thwart the war effort. These laws were used to convict 877 individuals between 1919 and 1920.

This political cartoon shows Uncle Sam gathering up traitors and spies after Congress enacted the Sedition Act of 1918.

After the war ended late in 1918, the world was a frightening place for many Americans. With the spread of Communism in Europe following a revolution in Russia and the rise of the anarchist movement across the globe, the American way of life seemed to be under sustained attack. Following a wave of anarchist bombings in the United States in 1919 — including one well-publicized bombing at Attorney General A. Mitchell Palmer’s residence — the Wilson administration decided to take swift action to thwart additional subversive activity. In November 1919 and January 1920, the attorney general authorized a series of nationwide police actions where “radicals” were arrested and detained without the benefit of warrants and trials. The actions were performed supposedly under authority granted by the Espionage Act of 1917 and the Sedition Act of 1918. The so-called “Palmer Raids” led to approximately 10,000 arrests, of which 3,500 people were detained and several hundred people deported. Emma Goldman, the well-known anarchist, was among the deportees shipped to the Soviet Union.

The police actions undertaken under the two laws led to a series of legal challenges. The two most famous cases were Schenck v. United States (1919) and Abrams v. United States (1920). In the former case, the petitioner had distributed anti-war pamphlets to men eligible for the draft. A unanimous U. S. Supreme Court upheld his conviction under the two laws because such speech presents a “clear and present danger” to the welfare of the nation and its people during wartime. A year later, the Abrams court went even further, finding that a man who had distributed literature opposing American intervention in Russia after the Communist takeover was acting on a “bad tendency.” Justice Oliver Wendell Holmes, Jr., author of the much-criticized Schenck decision, dissented in Abrams, as did Justice Louis Brandeis, arguing that “a silly leaflet by an unknown man” did not constitute a threat to the nation.

Chapter 4. The Smith Act of 1940

In response to growing fears about the spread of Communism and other seditious ideas, Congress passed the Alien Registration Act, commonly known as the Smith Act, in 1940. The world was changing rapidly in the late 1930s and early 1940s. As Nazi Germany initiated a war in Europe, the Japanese empire seemed to be ascendant. An increasingly large number of non-citizens, including persons from nations that might soon be at war with the United States, were streaming into the county. Lawmakers grew fearful that these alien entities might undermine national security.

Members of Congress had expressed concern about the growing problem of tracking non-citizen aliens inside the country for years, but the impetus for passing the Smith Act involved a radical labor organizer named Harry Bridges. An immigrant from Australia, Bridges had set up shop in the United States after his arrival in the country during the 1920s. He was known to associate with Communists in his vocal campaign to improve the conditions of factory workers. Government officials attempted to deport Bridges in 1939 under the auspices of the Espionage Act of 1917 and the Sedition Act of 1918, but to no avail. Those laws required that a deportee be currently affiliated with an organization that advocated the overthrow of the government. Bridges had severed his official Communist ties by that time. A new, broader law was needed.

Enter Howard W. Smith, a congressman from Virginia. Initially a New Deal supporter, the conservative Democrat became convinced that the National Labor Relations Board (NLRB), created by the Wagner Act of 1935, was staffed by left-leaning subversives. He spent much of his 36-year career in the House of Representatives battling “alien” forces, whether they were leftist public administrators, radical labor organizers or, later, black civil rights advocates. In 1940, alarmed at Harry Bridges’ activities and major deficiencies in current law, he introduced the Alien Registration Act. It passed the House on June 22, 1940, by a vote of 382 to 4. Coincidentally, it was the same day that Germany forced the French government to sign an armistice after the Nazis had invaded a month earlier. The U. S. Senate approved the measure that same week, and President Franklin D. Roosevelt signed the bill into law on June 29.

Congressman Howard W. Smith of Virginia was the principal sponsor of the Smith Act.

The Smith Act criminalized the actions of anyone who “prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or. . . organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof.” The act also allowed the deportation of an alien who was a member of a subversive group or affiliated “at any time” with such an organization since arriving in the United States. To ensure that government officials knew the whereabouts of aliens on American soil, the statute required non-citizens to register under oath and provide information on “(1) the date and place of entry of the alien into the United States; (2) activities in which he has been and intends to be engaged; (3) the length of time he expects to remain in the United States; (4) the criminal record, if any, of such alien; and (5) such additional matters as may be prescribed by the Commissioner [of Immigration and Naturalization], with the approval of the Attorney General.”

As for Harry Bridges, a special examiner who interrogated the labor leader recommended immediate deportation. Bridges appealed and the Board of Immigration Appeals (BIA) reversed the decision. In 1942, as the Roosevelt administration was becoming increasingly worried about seditious speech in the wake of the country’s entry into World War II, Attorney General Francis Biddle overruled the BIA and ordered Bridges deported. Bridges availed himself of the U. S. judicial system and due process of law. He appealed the attorney general’s order, losing in both the district court and the U. S. Court of Appeals before petitioning the U. S. Supreme Court. In Bridges v. Wixon, decided in June 1945, the high court ruled 5-3 that Bridges could not be deported because the government had not met its burden of proof. Being sympathetic to Communist ideals, five justices decided, is not tantamount to “affiliation,” as required by the statute.

Congress amended the Smith Act in the 1940s and 1950s, modifying certain provisions but leaving it in effect. During the 1950s, the U. S. Supreme Court considered the statute in two high-profile cases. In Dennis v. United States (1951), 11 Communist defendants convicted under the Smith Act appealed. The U. S. Supreme Court upheld their convictions, observing that:

“In each case [courts] must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.” Six justices believed the “evil” of Communism had to be suppressed even if free speech suffered. In an eloquent dissent, Justice Hugo Black argued that no clear and present danger existed. Being a Communist does not present an imminent danger of lawless action. He presciently lamented, “There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.”

“Calmer times” occurred six years later in Yates v. United States (1957). Fourteen Communist Party members were convicted under the Smith Act. This time, the high court narrowly construed the statute, requiring “concrete speech urging action and specific intent,” not merely abstract words advocating the desirability of overthrowing the government. Announced on the same day as Watkins v. United States, which limited congressional authority to investigate individuals’ private affairs with unfettered discretion, the Yates case was denounced by some law-and-order advocates as a victory for Communists and subversives. Anti-Communists vehemently lambasted the court for its “Red Monday” decisions, which they believed were detrimental to national security. Supporters hailed the opinions as a victory for civil liberties and an end to the Communist hysteria so prevalent in the 1940s and 1950s. Journalist I. F. Stone remarked that Monday, June 17, 1957 — the day the court announced its decisions in Yates and Watkins — “will go down in the history books as the day on which the Supreme Court irreparably crippled the witch hunt.”

Stay tuned. I will discuss Chapters 5-10 in my next blog.

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