To the Editors of CRIMSON:
I had not determined whether I should answer your dramatically entitled ("Immunizing the Lubells") and hackneyed reasoned editorial of September 26, 1953, until you presented several additional comments in a feeble attempt to meet the points raised by a Robert Honigson in the CRIMSON of October 1, 1953.
In that unsuccessful effort you declare: "If we knew that Lubell was not directed to infiltrate the Review for subversive purposes; if we know he was not going to use the experience he gains to harm the legal profession; we would then be the first to urge he not be isolated from influence merely because of his political views. But we cannot believe this, for he will not deny it under oath." This is a very clover comment--I never answered these questions, which I am willing to do at any time, only because they were never asked under oath or otherwise. I regard the very positing of these questions as not only ridiculous but more insulting to the intellect of the inquisitor than to myself.
I was called before the Jenner Committee for only one reason--my alleged political ideas and activities. There were no questions of conspiracy to advocate the overthrow of the government by force and violence, no questions of espionage--all of which I was ready and am now ready to answer at any time under oath. The 'sensational' investigation concerned only political views are activities--brief writing for the National Lawyers Guild, support of a Building Service Employees strike at Cornell University, as editorial in the Law School Record condemning Congressional investigations of education. It also concerned other alleged views and activities which are just as much political, and, as pointed out by twenty-three members of the Board of the Yale Law Journal, just as legal: distribution of the Daily Worker, membership in the Communist Party, organizing for the Communist Party, etc.
That this would be the nature of the questions asked was obvious to me before my appearance since the thrust of these Congressional investigations and already become clear.
I found the Fifth Amendment privilege against self-incrimination available to me on the basis that the privilege--in its broad scope which includes answers which might tend to incriminate one of a federal prosecution or which might from a link in a chain which would tend to incrimination--is available to the innocent as well as the guilty. Under the existing state of the law, the privilege may be asserted in regard to a question the answer to which may be in the negative where it would constitute a waiver of the Fifth Amendment privilege in regard to other questions at the same hearing.
Other considerations also played a part in turning availability of the privilege into use of the privilege.
Failure to use the privilege would necessitate that one give a public accounting of his political activities and ideas. I am not in the least bit ashamed of anything I have dons or thought. But to give such information is to aid and abet a political trend which has the characteristics of a national inquisition and which is repugnant to the spirit of the First Amendment. The practical effect of such a tread is to make freedom of speech and associating subject to the approval or surveillance, at least, of a group with a narrow set of ideas.
Nor is the effect on democracy any different where the questions are about alleged activities and ideas concerning communism. this concept was poignantly expressed by Mr. Justice Jackson in West Virginia State Board of Education v. Barnette (319 U. S. 62): "... freedom to differ is not limited to things that do not matter much. That would be a more shadow of freedom. The test of its substance in the right to differ as to things that touch the heart of the existing order if there is any fixed near in our constitutional constrictions, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
Failure to use the privilege obligates one legally to answer all question including these concerning one's friends and associates. The view of civilization and history regarding such action is best expressed in The Jewish Encyclopedia discussion of Moser, Vol, IX, p, 42: "An informer, denunciator, or delator.... Nothing was more severely punished by the Jews than talebearing; and no one was held in greater contempt than the informer ... the sages of the Talmud compared the moser to a serpent.... The great Talmudist of Lucena, Joseph ibn Migas, caused an informer to be stoned before the close of a certain Day of Atonement which fell on a Sabbath... In the staintes signed by the communities of Catalonia and Valencia September 25, 1354, the extermination of informers was made a public duty, in the accomplishment of which everyone was required to render his utmost assistance... [And later] when one was convicted of informing, he was branded on the forehead with a red not iron.... In Posen a Jewish informer is said to have been sentenced to death in accordance with the verdict of a Jewish court, so also as the last decades of the eighteenth century...."
It is not improper that this judgment of history has influenced my own ethical standards. Thus, for myself it would involve a basic violation of principle to expose other innocent men and women to harassment and intimidation through the unfounded charges and inferences that result from one's name being introduced in a Congressional hearing.
Use of the Privilege in these circumstances is not inconsistent with its history. The privilege has its origins in prosecutions for political and religious dissidence. Its sources may be found in the Inquisition of the thirteenth century (Lea, A History of the Inquisition of the Middle Ages) and in the sixteenth century persecution of the Puritans in England (Maguire, Attack of the Common Lawyers on the Oath Ex Office as Administered in the Ecclesiastical Courts in England).
It, therefore, is both incorrect and improper to simply conclude, as your editorial did that be [Lubell] and peed for the privilege against self-incrimination."
In the CRIMSON of October 1, 1953 you comment "to think that Communist dominated persons should be invited and if they behave later be admitted is to forges now Communists operate. Of course they will behave. They will shins. For their stated purpose, spread across innumerable public record is to infiltrate group..." It is interesting to not now easy you slip from the vague term "Communist dominated" to "Communist" I had though that the concept that what matters is "Communist ideas" was reserved for Senator McCarthy and his lik.
But, even more important, the CRIMSON has adopted an antiquated ,line of reasoning which has been thoroughly rejected by our legal system. The witch-hunts of nearly 200 years ago were conducted on the premise that there are witches though it could not be proven that here are practitioners of witchcraft. The CRIMSON's reasoning in the though a person can not be condemned on the basis of his work, on the contrary his work will "shine," he is to be condemned because of "Innumerable public records" none of which remotely refer to that person. Which state that infiltrators' do exist.