Tuesday Apr 07

Who Was Clinton Jencks? EXCERPT FROM: McCarthyism versus Clinton Jencks

Friends and family gathered at the December 2005 funeral for Clinton Edward Jencks, a kind, respected, and beloved emeritus economics professor and decorated World War II veteran. A convert, he received Jewish rites and was honored at a large memorial event. The man whose life they celebrated had also been a Communist, a convicted felon, a militant and reviled union organizer and rabble rouser. He was a civil rights activist notorious for having led Mexican American miners in a strike made famous for having wives and mothers replace men on the picket line. The strike was memorialized in Salt of the Earth, a boycotted film made by blacklisted Hollywood Communists. In his life, Jencks experienced many variations of McCarthyism’s repression, including his 1954 conviction in a stridently anti-Communist Texas court, a judgment the Warren Supreme Court reversed in a landmark decision.

In the early-1950s, millions of Americans feared a Soviet nuclear attack and the domestic Communist threat. Maps depicted the growing Communist danger as a menacing red ink blot devouring nation after nation. U.S. Senator Joseph R. McCarthy warned Americans about treacherous Soviet spies working within government with complicit high ranking fellow travelers approving their presence. News publications revealed secret Communist cells undermining the nation. On television’s I Led Three Lives, advertising executive Herbert Philbrick, an intrepid American counterspy, penetrated a secret Communist cell for the FBI. Weekly, the telegenic Catholic bishop, Fulton J. Sheen, highlighted communism’s evils. Headlines warned of the Communist-infiltrated unions.

Bringing the threat closer to home, public service announcements encouraged Americans to join the Ground Observer Corps and Operation Skywatch to help the Air Force detect and identify Soviet bombers flying overhead enroute to deliver their nuclear payload and the likely end of the western world. Air raid sirens wailed in their periodic tests, and air raid shelters appeared everywhere, reminding everyone of peril. Elementary schools drilled students on how to prevent their incineration in an atomic blast by bending down and holding their heads. The nuns at parochial schools contributed to students’ fears in warning that the Blessed Virgin had given the children at Fatima three messages, including one about communism so dreadful that it could not be revealed until 1960. Fatima’s terrible third secret helped the anticommunist Church install fascist dictatorships in Spain and Portugal, oppressive regimes that lasted over a generation. For decades at Mass, Catholics had been praying for Russia’s conversion. Children already dreaded hell’s eternal fires licking at their souls, and now they had new fears over nuclear war and communism to plague those boys and girls. That pervasive fear generated a hatred of Communists and the Soviets such that Joseph Stalin seemed to replace Satan. The FBI became the nation’s protector as it shifted its well-burnished image from tommy guns and bank robbers to exposing Communist spies and subversives, with J. Edgar Hoover becoming a national St. Michael.

Most Americans had no idea how our national terror over communism affected those who had joined the American Communist Party or who were suspected subversives, because those individuals had been stripped of their humanity, rendering them contemptuous and no more. Americans erred in assuming that it was illegal to be a Communist or that Communists were not entitled to the law’s protection. It was much later that many came to realize that they had also taken part in that era’s national hysteria, adding their share of fear and hatred.

On a cold, windy, and overcast March 4, 1933, the President of the United States stood on the podium before the U.S. capitol, eased up to the lectern, and addressed an anxious America in his first inaugural address. Franklin Delano Roosevelt came to power in the nation’s darkest hour, a time when many Americans, perhaps most, had lost hope, and the nation seemed incapable of righting its moribund economy. As the irrepressible new president addressed the nation, he attempted to revive its better instincts, its inner strength, and the spirit he was convinced had always been there. Along with calls to action and for driving the “money changers” from the temple of government, he uttered the words that would thereafter define his persona. “This great Nation,” he said with a determined look and voice, “will endure as it has endured, will revive and will prosper.” And then, to underscore the drama in the historic words to follow, FDR paused after “is,” a word he stretched with rising intonation as he continued, “So first of all, let me assert my firm belief that the only thing we have to fear is—fear itself—nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.”

That was a wise observation, spoken by a leader who understood fear and the paralysis and evil it could produce. But at times, FDR forgot his own words, such as two months after Pearl Harbor when he ordered, without due process or proof, the immediate arrest, internment and dispossession of over 100,000 West Coast Japanese, newborns to the aged, men and women, citizens and noncitizens alike. The suspicion was that those Japanese were more loyal to the Emperor than to America, and since there was no way to determine their allegiance, the operating presumption would be that they were disloyal and would collude with the empire, making their internment a military necessity. It was an order based on an unreasoning fear pushed along by racism. Years later, universal criticism of that presidential order underscored the wisdom of FDR’s own earlier admonition.

Fear is a natural response to a threat. It was unreasoning and unjustified fear that Roosevelt had warned against. The Japanese Empire was a deadly, dangerous menace to America and should have been feared, but there was no basis to distrust all but a handful of America’s Japanese. In the Korematsu case, the Supreme Court upheld FDR’s internment order and sanctioned its clear violation of Japanese Americans’ constitutional rights. The Supreme Court did so with the help of the Solicitor General who violated his office’s traditional obligation of candor to the Court in withholding a key Naval Intelligence report noting that U.S. Japanese were not a general security risk and could be screened individually. The Solicitor was also aware that there was no study showing the contrary, making baseless his “military necessity” argument.

The withheld Ringle report’s conclusion was that the “entire ‘Japanese Problem’ [had] been magnified out of its true proportion, largely because of the physical characteristics of the people.” In the mid-1980s, after the Ringle report and its concealment surfaced in the Hohri case, the District of Columbia Court of Appeals held that “the suppression of the Ringle report and the absence of countervailing data suggest that the Justice Department misled the Supreme Court when it argued that ‘military necessity’ justified a mass evacuation of Japanese-American citizens.” Years later, a former Acting Solicitor General noted that even when the line-attorney handling the Japanese internment cases suggested to the Solicitor General that withholding the Ringle report would be close to “suppression of evidence,” the wartime Solicitor General concealed the report. Yet, despite insistence by Justice Department lawyers writing the briefs that the Ringle report be divulged and that “military necessity” be dealt with honestly, in the brief the government filed, the Court was not so advised, and at the oral argument, the Solicitor General maintained that there was nothing to detract from the government’s assertion that the internment was a military necessity.

The Japanese internment would not be the last time that Americans, again overcome with unreasoning fear, would confuse a true external peril with an exaggerated domestic risk, nor would it be the last time that the Solicitor General would intentionally mislead the Supreme Court of the United States.

From the late 1940s and into the 1960s, the same unreasoning and unjustified fear gripped America once more. With the Cold War and the possibility of a nuclear holocaust, Americans’ initial anxiety that Communists were secretly loyal to the Soviet Union grew into hysteria by the late 1940s. Anticommunists whipped up America’s fears and successfully conflated a miniscule domestic Communist threat with the real Soviet menace. The anticommunist movement also broadened the exaggerated internal threat to include not only members of the Communist Party of the United States, but also former CP members, socialists, anarchists and those who had joined causes or allied organizations opposing war, fighting for civil rights, or for labor. The anticommunist movement wildly succeeded in producing a massive overreaction that disrupted the lives of thousands of Americans, ruining careers and reputations. Thousands silently went missing from their former jobs at plants, schools, colleges, and government offices and would spend years trying to regain what they lost. Unknown thousands never realized that they had not been hired because an unseen process had labeled them subversive. A powerful anticommunist movement drove McCarthyism’s excesses that included invasive and repressive legislation, a host of measures and exposures that were intended to ruin lives and careers. That oppression, generally known as McCarthyism, was the Twentieth Century’s second Red Scare and was the longer and more repressive of those eras.

The McCarthy anticommunist era encompassed more than the four years (1950-1954) when its namesake, Senator McCarthy, dominated the movement. A reasonable year to pick as its beginning would be 1938 and the establishment of the House Un-American Activities Committee (HUAC), and it would extend into the 1960s. The movement should more appropriately be named after J. Edgar Hoover, Director of the Federal Bureau of Investigation, as he was its dominant personality and driving force who was in power throughout. Hoover had spent his lengthy career warning America of the Communist threat, and he was most responsible for having created the era’s repression.

When a group is feared, reviled, demonized and dehumanized, society will sanction abuse, even crimes, against those so feared and hated. In the 1950s, the Soviet Union, posing a real threat to America, became feared and loathed. American Communist Party members took their ideological lead from the Soviet Party, but, except for a tiny minority, they posed no security risk to the United States. Despite lacking evidence of illegal activity, the anticommunist movement blacklisted individuals from working in their chosen careers, screened artists, writers, and teachers for loyalty, and hounded militant union organizers for years simply for their union work. Public opinion polls confirmed that a super-majority would deny basic rights to Communists whose conduct, in theory, was constitutionally protected and rarely was it anything but legal.

Despite the constitution’s promise proclaiming the unrestricted right of belief, association, and expression, it was not so for the thousands of American Communists, socialists, and left-wingers whom the movement harassed and persecuted for their political beliefs and associations. Conduct as innocent as having one’s name on a mailing list, signing a petition opposing segregation or war could cause the loss of employment or to be placed on a dreaded subversive blacklist. In her classic anticommunism studies, historian Ellen Schrecker concluded that “although no single story can encompass every element of that repression, that of Clinton Jencks comes close” and that makes the experiences of Clinton Jencks emblematic of a time now seen as a national nightmare.

It was an impressive room. With cork floors and subdued, indirect lighting, it had an elegant formality and was an imposing space as the main courtroom of that New Deal-era, art deco United States Courthouse. Prosecutors and criminal defense lawyers practicing there routinely exchanged witness statements and reports once the witnesses had testified on direct examination, documents they called “Jencks Act material.” Lawyers often cited cases and statutes, such as the Jencks Act, but had little knowledge of their history.

Behind every criminal case there is a personal story, such as the one in the United States Supreme Court decision titled Jencks v. United States and the statute enacted to modify its holding, known as the Jencks Act. For years, it has been unlikely that any El Paso lawyers who routinely demanded and produced Jencks Act statements realized that Jencks, the defendant in the Supreme Court case and the statute’s namesake, was tried and convicted in 1954 in that El Paso courtroom for falsely denying that he was a Communist Party member. This historic case and the failure of the nation’s legal institutions, charged with upholding our basic law, acted instead to deny Clinton Jencks the Constitution’s promises. His story is embedded within anticommunism’s broader history, which includes McCarthyism, and the questionable strategies it developed to torment and disparage Communists and leftwing Americans.

Clinton Jencks lived to see the Supreme Court reverse his conviction, but in the minds of many Americans, his case was overturned on a legal technicality, and they were convinced that he remained a lying, guilty Communist.

The Federal Bureau of Investigation, Department of Justice lawyers, their high ranking superiors, the Office of the Solicitor General of the United States, and John v. Lindsay, Special Assistant to the Attorney General and New York City’s future mayor, pursued what they knew was an unjust prosecution against Jencks. Except for one, the courts willfully neglected to discharge their obligation to give Jencks a fair hearing, and in doing so, could not uncover the Government’s unethical and illegal conduct. Only by disregarding the intentional misrepresentations and arguments made to it by the Solicitor General and Lindsay, did the United States Supreme Court save the day for Jencks, and for doing so many Americans reviled the court for having freed a Communist.

Raymond Caballero is an American lawyer and politician who served as the 50th mayor of El Paso, Texas from 2001 until 2003.

End Notes

“Text of the Inaugural Address; President for Vigorous Action,” New York Times, March 5, 1933. Roosevelt apparently paraphrased Henry David Thoreau who wrote, “Nothing is so much to be feared as fear.” Emerson, Henry Thoreau, 72.

Executive Order 9066, F.R. 1407, February 19, 1942, and related military proclamations.

Korematsu v. United States, 323 U.S. 214 (1944). Also, Hirabayashi v. United States, 320 U.S. 81 (1943). Recently, in upholding a presidential order restricting entry by those from certain named countries and seventy-six years after it was decided, the Supreme Court finally set aside the Korematsu holding. “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—’has no place in law under the Constitu¬tion.’ 323 U. S., at 248 (Jackson, J., dissenting).” Trump v. Hawaii, 585 U.S. ____ (2018).

Hohri v. United States, 782 F.2d 227, 234 (DC Cir. 1986), rehearing denied in 793 F.2d 304, vacated and remanded by the Supreme Court in 482 U.S. 64 (1987).

Edward Ennis, Director of the Alien and Enemy Control Unit in Justice came across the report of Lt. Commander Kenneth D. Ringle of Naval Intelligence and advised the Solicitor General that “we should consider very carefully whether we do not have a duty to advise the Court of the existence of the Ringle memorandum and that this represents the view of the Office of Naval Intelligence. It occurs to me that any other course of conduct might approximate the suppression of evidence.” Hohri v. United States, 782 F.2d 227, 234 (DC Cir. 1986).

Katyal, “The Solicitor General,” 3037

The Communist Party of the United States will be referred to as “CP” or “Party.”

Schrecker, Many Are the Crimes, x; Schrecker, Age of McCarthyism, 2.

Schrecker, Many Are the Crimes, x, 309-310.

The building, no longer the federal court but a federal building, was named after United States District Judge R. E. Thomason in 2017.

Collins and Hoxie 2017.

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