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.
Finally, I would like to point out that "Immunizing the Lubells" is an incorrect title for your editorial. Since "immunize" means 'to protect' you certainly do not propose the immunizing of may brother and me since by your so-called reasoning we are already 'diseased'. But it must be the Law School and the legal profession that is to be protected. It is hard to believe that the editors of the CRIMSON have taken such a position for they must know that the vigor of our democracy stems from and depends on the American people having a opportunity to examine and choose from varying ideas and ideas. I was also under the impression that the CRIMSON editors had sough confidence in that ideas and a low enough estimate of the ideas which they appear to believe I hold to allow for their free circulation.
I hope that this letter will be seriously considered. It is more than my reputation, more than the CRIMSON's name that is in issue. Viewed in perspective it is whether this attack on political liberties, perhaps the broadest in out history, shall be defeated. Jenathan Lubell 3L.
Mr. Lubell, as well as his recent defenders, seems to be asking the Law Review to apply legal standard in it decisions, as if election to the Review were some sort of civil right deniable only by judicial process. But innocence of crimes is but one of the qualifications for a position of honor and trust. He also insists that one who is a member of and recruiter for the Communist party--and these are not lease but overt sets--will net use what influence and experience he can got from positions like editorship of the Review to harm to the future the legal profession. This view grows more patently naive with each year of the Cold War. We borrowed the term "Communist-dominated" not from McCarthy, but from the Harvard Corporation's policy on Professors Furry and Markham. It does not refer to these who think things which Communists else think, but these who knowingly take instructions from the Communist Party.
Lubell's belated avowal that his is willing to testify as to his loyalty, his interpretation of the Fifth Amendment, his condemnation of investigations, and his reference to religious and ethical reasons for not testifying against others do not change our opinion that the Law Review's decision was correct, because his performance before the Jenner Committee was both childish and harmful to this community.
It is all very well to fall back on the legalistic implications of the Fifth Amendment. But an intelligent individual remembers that this country, to which Lubell professes devotion, is in an extraordinary period of its history, in which a powerful Communistic system threatens its form of government. That Senator McCarthy says this dose not modify its truth, no segregation makes segregation more just. Individuate associated with universities do not represent only themselves when they testify. Lubell easy he does not want to incriminate others, yet he falls to realize that in the public eye his refusal to testify about Communist affiliation harms a close community such as Harvard almost as much as direct evidence. Not refusal to testify, but frank testimony on such matters, will end the "inquisitorial" tend. Silence adds vehemence to the investigators and the public supporting them.
If Lubell were convinced that the inquiry was "repugnant to the spirit of the First Amendment" and if he wished to avoid implicating others, he might have adopted the tactics of calculated attempt, successfully adopted by Irving Goldman of Sarah Lawrence College, among others, without any reprisal on the part of the Jenner Committee. That is to say, Lubell might have spoken freely about has own past, stated that he is not under Communist direction, and then refused to speak about anyone else. Of course, this subjects him to a possible contempt charge, but there are many lawyers looking for just such a charge with the strong desire of fighting it in the courts.
Instead, he answered some questions, refused others, and left the impression that he was a junior cloak and dagger man, fighting the committee because of some juvenile idea that he would be acclaimed a liberal here. In doing so, he ignored certain responsibilities to the Law School and the University, showing himself as one who could not be trusted. With the avowed policy of the American Bar Association, we can sea no reason why the Law Review should jeopardize its members' professional possibilities for the sake of an individual who has erred so greatly in his judgment. Neither can we see entrusting him with any position of high esteem. If another year in the law School can provide him with a little judgment to complement his high natural ability, that will be all to the good--EC