Cedric Belfrage on Foley Square Trial of American Communists(from: The American Inquisition by Cedric Belfrage)
Chapter 10: 1949: "I Appreciate Your Permission To Weep"
Beginning in mid-1947, a New York grand jury spent 12 months of weekdays listening to Elizabeth Bentley and other familiars who had pinpointed Russian spies, and then to the spies. After Hoover's men had visited hundreds of thousands of the spies' contacts, 12 Party leaders were indicted.1 The charge was not spying but "conspiracy to advocate the overthrow of the government by force and violence."The Smith Act trial at Foley Square initiated a nationwide series over the next years. Far from being an obstacle to the government, the Act's patent unconstitutionality multiplied the agony of the victims, plunging them into a murk of unreality and spinning out their ordeal into ever costlier months and years. Together with deportation, Subversive Activities Control Board (from 1950), Taft-Hartley, Loyalty Board and assorted hearings, the trials compelled heretics to run at furious speed in a vain attempt to stay in the same place. The argument that they did not "advocate force and violence" was doomed in advance, for the government was ready to prove that they did, with scores of familiars and countless excerpts from Marxist texts. Committees proved it -- or anything else that was required -- simply by framing a question to which they knew there would be no reply. As an added precaution the court always charged "conspiracy." This ancient British device was useful in cases where it had been decided to jail someone for his politics, but proof that he actually did anything might appear weak. He was then accused of talking about doing something, which the law rated as a more serious offense, and innocence of which was beyond proof.
But justice was abundantly seen to be done, for the machinery of higher- court appeals was available to the humblest citizen provided he had the money and lived long enough. The bills became astronomical as heretics invoked and re-invoked the Founding Fathers to discredit the proceedings; meanwhile, they had to bleed every possible source for fines and bail which eventually might or might not be refunded. The fund- raising task left an organization little or no time for its constituted functions; and when a favorable decision finally came, the organization would be decimated if not bankrupt and the question more or less academic.
Since the public believed in American justice, and the Communists wanted to show they were as American as anyone else, they and their lawyers -- who set the defense trend for peripheral heretics -- did not consider the IWW approach that capitalist justice for socialists was a charade. The best of the lawyers they could get (Harry Sacher, George Crockett and Richard Gladstein in the 1949 trial; Frank Donner, John McTernan, John Abt, Nathan Witt and Vincent Hallinan in later ones) were able men and ready to accept the financial and other sacrifices involved. But they were heretics themselves, a fact of which judges took full advantage; and the rare non-heretical lawyer who was available generally charged fees far above his worth, on the ground that accepting such cases deprived him of hygienically lucrative briefs. On strategy, some lawyers urged taking the offensive with regard to what Communists believed. Others wanted to let the government present its version and then try to disprove it, relying finally on the right to be wrong, and these prevailed.
The Marxist thesis, familiar to political science students, was that state establishments tended to maintain themselves by increasing violence which, beyond a certain point, could only be met with counter-violence The CP's position was that this point had been reached in the America of 1776 and the Russia of 1917 but not in the America of 1949. But if the defense believed that its strategy would at least make the courts a forum of public enlightenment about heretical ideas, it was sadly misjudging the loyalty of the media, which saw to it that this part of the 5,000,000 words of Foley Square testimony was ignored or buried. In the event, the public's boredom with the solemn and stupefying ritual was only exceeded, after a few weeks, by that of juries and defendants. The one question retaining a flicker of interest was the length of the sentences. These, at Foley Square, turned out to be five years and $10,000 fines for each conspirator except Robert Thompson, whose medal for fighting for America had to be weighed against his sin of fighting for Spain. For him a mere three years behind bars was deemed appropriate.
In the play Fear and Misery in The Third Reich (1939) Brecht makes the judge who must pass sentence on heretics say: 'Understand, I am ready to do anything. I can decide this way or that way, just as they want me to, but I must know what they want. If one doesn't know that, there is no justice any longer." No such doubts assailed Judge Harold Medina, and the jurymen (whose selection alone had taken three months) were too paralyzed by Marxist readings to show resistance to what was wanted. The curtain rose in April in a patriotic setting as moblets attacked ASP and CP meetings in Baltimore and Pittsburgh, Congress raised Hoover's budget by $9,000,000, and Maryland decreed 20-year jail terms and $20,000 fines for teaching heresy "in any way" within its borders. Barnum's circus at Madison Square Garden dedicated itself, with a parade of elephants followed by girls stripping to red, white and blue bras and panties, "to the struggle to maintain our way of life against the menacing horde of aggressors."
After Budenz's week on the stand, interpreting each Marxist reading as an "Aesopian" mask for the conspiracy, the red-white-blue motif emerged on the bow tie of witness Herbert Philbrick. The surfacing patriot became an overnight celebrity with his account of eight years as a top Boston Communist,2 and Boston newspapers combing their files for a picture were startled to find they had none. Nowhere in their copious collections from picket lines, heretical gatherings, even war-bond rallies, did his face appear. But since Philbrick had been a Communist, it followed that everyone whom he contacted and who did not rebuff him was involved in the conspiracy. He had a wealth of names, and though few of the owners remembered him he would rarely slip into naming a total stranger. In his tribunal debut he created the clean-limbed impression which would characterize his work, saving most of the melodrama for newspaper columns, a book and a TV series. While he had seen no guns in heretical circles, he could attest to the comrades' secret studying of Moscow orders to start "armed insurrection when the time was ripe." He gave a graphic account of [Dirk J.] Struik's talk at the soiree in 1948: "A very broad summary of State and Revolution which covered the entire question of the state and revolution, and in his discussion he brought in a very complete discussion of current events, that is, the present world situation." Philbrick's presence at the PP session to rewrite Wallace's speech was proof enough that Wallace was a CP puppet, but Philbrick elaborated the point at some length, bringing in Matthiessen and others as conspirators to raise PP funds. To all this Medina listened gravely, the defendants dazedly. Perhaps, their lawyers tried to suggest, it had slipped Medina's mind that neither Struik, Wallace nor Matthiessen was a defendant.
Browder declined prosecutor John McGohey's invitation to testify for the government, but ex-Communists followed one another to the stand throughout the summer. Negro auto worker William Cummings recalled (as he would do before many tribunals) the Communists having taught that "American streets would have to run red with blood," and described recruiting three relatives into the Party to maintain his flow of names to Hoover. The procession of familiars brought home to the Party the extent to which its ranks had been penetrated, and it appointed John Lautner, a comrade of 20 years' standing, to take charge of Party security as well as the trial defense. The trial was hardly over when Lautner proved to be an agent himself.
Frank Sullivan tried in the New Yorker to poke fun at the trial, and at the cascade of new melodramas which pushed it into back pages after its blazing start. He found that life, as depicted by the media, had overtaken even a genius's power to lampoon. For the inquisition, however, the trial set two important precedents. One was the "Aesopian language" thesis which, proving that Communists never meant what they said or wrote, made it idle for them to cite their actual words.3. The other was that lawyers defending heretics were guilty of contempt if, in what they thought to be the line of duty, they sought to confine a trial to the indictment and to have normal rules of evidence enforced. Such rules were clearly inapplicable once the prosecution established that Communists did their conspiring in secret -- the burden of all the familiars' testimony. Early in the trial Medina graciously told defense lawyer George Crockett, who had broken into tears of frustration: "I make no objection to it, but I think it better that counsel refrain from weeping in court." Crockett replied, "I appreciate your permission to weep."4. Subsequently Medina's scorn for the lawyers' efforts became unconcealed, and he sent all five to jail along with their clients -- a judgment which the Supreme Court (Black and Douglas dissenting) would uphold. The others were Harry Sacher, Abraham Isserman, Louis McCabe and Richard Gladstein. McGohey got an immediate federal judgeship and Medina, likewise regarded as a martyr to patriotic duty, would shortly receive along with Foster Dulles an award from the wealthy manufacturers' "Freedom Foundation."
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