Origins of the 50s Red Scare and Implications for Today
by Ellen Schrecker
October 17, 2005
Judge Learned Hand, the most eminent
American jurist never to make it to the Supreme Court, once remarked, "I
often wonder whether we do not rest our hopes too much upon constitutions, upon
laws and upon courts. These are false hopes; believe me, these are false hopes.
Though Americans like to pride themselves on their devotion to freedom, Hand's comment is all too timely. When confronted by the demand for political conformity, the national attachment to civil liberties tends to wither away. A crisis breaks out, suppression occurs -- and, then, months, years, or decades later, an apology follows.
This narrative repeats itself over and over throughout our nation's history. For political repression, it turns out, is as American as apple pie.
Think of the Alien and Sedition Acts, the murderous attacks on abolitionists before the Civil War, the suspension of constitutional protections during that war, the crackdown on foreigners and radicals before and during World War I, the internment of Japanese-Americans during World War II, and, of course, the McC era of the late 1940s and 1950s -- a period that we now recognize as the most widespread and long-lasting episode of political repression in American history.
Whether the contemporary assault on human
rights and political freedom will rival that unsavory record remains to be
seen. But as we try to make sense of
In my presentation today, I want to draw attention to those aspects of previous crackdowns that seem especially salient at the moment. In particular, I want to look at the way in which the invocation of a national emergency bolstered political repression. I also want to explore some of the specific mechanisms that characterized that repression and examine the ways in which different sectors of society -- like Congress, the courts, and private employers -- collaborated with and, thus, contributed to the erosion of political freedom.
Though I will focus mainly on the anticommunist political repression we now mistakenly call McCarthyism, it is important to realize that the 1950s red scare was not unique. The same kinds of injustices recur throughout American history.
Let's begin by looking at the targets of those injustices.
No doubt every society demonizes its enemies. The peculiarly American variant of the process periodically embraces the notion that some kind of alien external force has entered the body politic and threatens to destroy it from within.
Such scenarios emerge with particular force during moments of stress when patriots appeal for unity and fret that the very openness of American society would allow its enemies to use its own freedom against it.
Though the identity of those enemies changes over time, most are foreigners and other outsiders.
At first, Indians or African slaves were believed to imperil the emerging nation. In the nineteenth century, Catholics, immigrants, and anarchists (separately and in combination) became the designated danger. Japanese-Americans and Germans were targets during the two World Wars.
And, by the mid-twentieth century, Communists, a political minority with a foreign connection, supplanted the earlier racial, religious, and ethnic subgroups.
Now, despite the Bush
administration's disclaimers, it’s foreigners again: Muslims and people from
the Middle East and
What turns xenophobia into repression, however, is the existence of a crisis -- some kind of hot or cold war in particular. During such conflicts, governments typically respond by restricting civil liberties.
Sometimes they do so in order to
allay their citizens' fears and give the impression of being on top of the
situation, as the Roosevelt administration did by interning Japanese-Americans
a few months after
In other cases, the authorities take advantage of the opportunity provided by the emergency to pursue a preexisting agenda and increase their own power, as the Federalists did in the late 1790s by passing the Alien and Sedition Acts to muzzle their political opponents in preparation for a forthcoming presidential election, and as the FBI's J. Edgar Hoover sought to do by expanding the federal government's internal security apparatus after World War II.
Usually, however, the repression arises from a combination of causes, ranging from cynical opportunism to a genuine desire for national security.
Yet, despite the popularity of (or
at least the lack of strong opposition to) such repression, it is not populist
in origin, but comes from above, from people in power. In almost every case,
serious attacks on individual rights start in
The USA PATRIOT Act originated in the Bush administration's Justice Department, just as the Loyalty-Security programs which were central to the Cold War red scare were first drawn up by J. Edgar Hoover's FBI.
As we explore the Cold War red scare
in more detail, we need to keep in mind that naming it McCarthyism after
Senator Joseph McCarthy was a mistake. The anticommunist furor was well under
way by the time McCarthy entered the scene early in 1950 waving his
ever-changing lists of Communists and their allies in the State Department had
McCarthy's charges were actually
part of a Republican party campaign against the Truman administration. They
were also untrue. There were no Communists in the State Department and
Unfortunately, McCarthy's wild allegations and bizarre behavior confused contemporary observers -- and later historians, leading them to treat the phenomenon to which he gave his name as a trivial aberration and concealing the much more important role of J. Edgar Hoover. In fact, if we had known then what we know now McCarthyism would have been called Hooverism.
Accordingly, we need to take a more
detailed look at how
The centerpiece of that venture was the "Security Index" -- a list of the most dangerous potential subversives who had to be kept under constant surveillance to make sure they could be picked up within a few hours in the event of war or a similar crisis.
By 1954, there were 26,174 people on that list -- most of them union leaders and left-wing activists of one kind or another, but hardly threats to the nation's security. Other lists, like the so-called Communist Index contained the names of less dangerous individuals -- college professors, writers, lawyers, and others "who, in a time of national emergency, are in a position to influence others against the national interests." By the early 60s, the FBI had 400,000 people on their lists, including Martin Luther King, Jr.
Not all of this was legal, for no law
or judicial ruling gave the Bureau authority for many of its activities. Nor
He got that cover when
President Harry Truman, to his credit, opposed the Internal Security Act or McCarran Act as this legislation came to be called.
He argued that its provisions for registering Communists, creating detention camps, and holding aliens without bail were both unconstitutional and ineffective. But his opposition had little impact.
So terrified of appearing unpatriotic and soft on communism were the nation's lawmakers, that a group of liberal senators attacked the proposed measure as, in the future Vice President Hubert Humphrey's words, "a cream puff special" and urged the adoption of a tougher piece of legislation. Their contribution, providing for the rounding up and detention of potential subversives during a crisis, simply got folded in to the McCarran Act which soon passed over the president's veto.
In other words, the invocation of an
emergency convinced a timid Congress to give
The same thing is taking place today. As happened in 1950 -- and, I should note, during most other crises in American history -- the legislative branch has sacrificed individual rights on the altar of national security.
A few days after the attack on the
Nonetheless, so terrified and disoriented were the nation's lawmakers that within six weeks, in the midst of the anthrax scare, both houses of Congress, most of whose members hadn't even looked at the measure, passed the USA PATRIOT Act by an overwhelming margin.
That measure-- which, by the way, is an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism" -- along with a number of executive orders, expands the executive's power by eliminating many of the checks and balances the Founders built into the Constitution and allows the government to spy on citizens and noncitizens alike.
Though there have been protests from all points on the political spectrum and attempts to reform the most egregious aspects of the law, the Bush administration has so far managed to keep Congress from making any serious changes.
In fact, even as we are sitting here today, a House and Senate Conference committee is working behind closed doors to hammer out the wording for the revised version of the PATRIOT Act. Though the Senate version makes a few improvements on the original statute, the House one actually worsens it, freeing the FBI from any obligation to obtain search warrants in matters of national security. There was, it is true, more opposition to the measure this time around, but partisan arm-twisting ultimately led to a 257-171 House vote for renewal. And it is unclear what kind of monster will finally emerge from the conference committee's deliberations.
Like Congress, the federal judiciary has often abandoned the Bill of Rights during wars and other crisis situations.
At the moment, its record is mixed. Some courts have proved exceedingly deferential to executive authority and allowed the Immigration and Naturalization Service, for example, to lock up thousands of people without releasing their names.
At the same time, the Supreme Court
has tried to stop the administration from depriving its prisoners at
Such a commitment was seriously lacking during this country's earlier moments of political repression. At the end of the eighteenth century, judges and juries went along with the clearly partisan Sedition Act and threw opposition journalists into prison for criticizing the then president John Adams.
They did the same during and after
World War I when they refused to interfere with the
By the time the Supreme Court finally did rule against the internment program, World War II was almost over.
There was a similar failure to confront injustice during the McCarthy Era as well.
Though the Supreme Court later tried to repair some of the damage, until the mid-1950s it countenanced just about every aspect of the anticommunist purges. Its decisions and those of the lower federal courts were crucial to enabling the Cold War Red Scare to operate.
These decisions gave congressional committees like the House Un-American Activities Committee or HUAC free rein to question witnesses about their political activities.
They allowed the dismissal of federal employees on the basis of unsubstantiated charges by secret informers.
They let the Immigration authorities hold aliens indefinitely without bail.
And they actually sent people to prison simply for belonging to the completely legal Communist party.
As is the case today, national security justified it all.
Ultimately the Court began to backtrack. Not only was it clear that the justices had overreacted to the supposed threat of communism, but, more importantly, their rulings were encouraging assaults on individual rights that went far beyond the limited measures the court's majority had originally endorsed.
The Justices should not have been surprised. As if obeying a law of nature, political repression invariably expands until it affects individuals whose connection to the original threat is far from clear. It is a slippery slope -- but one down which the nation repeatedly slides.
Certainly, this was the case during the McCarthy era.
Yes, there was espionage by American
Communists during World War II when the
In part because the anticommunist crusade had other agendas -- like bolstering people's political careers or destroying left-wing labor unions -- public and private investigators expanded their inquisition from individuals with access to sensitive political or military secrets to ordinary men and women with unpopular political ideas and affiliations.
Most of these people, it is true, were or had been connected in some way to American communism, but they had not been involved in any illegal activities and posed no threat to the nation's security.
When they came under attack, the most far-fetched scenarios came into play, primarily to give a security-related gloss to what was usually an employer's desire to eliminate a squeaky wheel or avoid unfavorable publicity.
Thus, for example, it was claimed that a meat inspector could poison the nation's food supply. A radio announcer could promote Communist propaganda over the airwaves or broadcast instructions in a secret code. A teacher could undermine the national defense by giving poor instruction in math.
When the New York Times fired a copy editor who had refused to name names before a congressional committee, it insisted that his position on the paper's foreign desk involved national security. Had he been assigned to the sports pages, he could have kept his job
Significantly, for all the commotion about the need for vigilance against the threat of communism, the loyalty programs and congressional investigations of the McCarthy era did little to protect the nation's security.
Just as the contemporary intelligence community was unable to prevent 9/11, so too, the FBI and military intelligence agencies had not prevented the filching of official secrets by Soviet agents during World War II. Nor did the witch hunt that followed turn up any practicing spies or saboteurs.
Today's repression may be similarly ineffective.
Overloading the nation's internal security apparatus does not necessarily make anyone safer. As an eminent physicist noted at the height of the McCarthy era, "The moment we start guarding our toothbrushes and our diamond rings with equal zeal, we usually lose fewer toothbrushes but more diamond rings." Today, as well, the Bush administration's increased surveillance of private individuals may bury the diamond rings under an even higher pile of toothbrushes.
Moreover, just as Joseph McCarthy's investigations and the federal government's loyalty-security procedures damaged the nation's security by discouraging scientists from seeking jobs within the defense department's facilities, so, too, the current regime's heavy-handed treatment of the nation's Muslim communities will hinder its recruitment of the native Arab speakers needed to interpret the mountains of material the security apparatus is collecting.
In other words, repression within a democratic society does not foster security; it creates injustice.
History, however, never repeats itself exactly. Despite the parallels that exist between the political repression of the McCarthy era and that of today, there are differences as well. The most important have to do with the methods through which that repression is administered.
McCarthyism's main weapons were economic. The McCarthy era did have its physical martyrs -- Julius and Ethel Rosenberg were executed and dozens of Communist party leaders, union officials, screenwriters, and other people went to prison. There were even some deportations.
But most of the sanctions were imposed, not by the federal government, but by the film studios, universities, local school boards, and other employers who fired and then blacklisted the men and women who were targeted as politically undesirable.
Those purges operated in accordance with a two-stage procedure.
First the supposed communists were identified -- often by an official body like a congressional committee or the FBI -- and then they were punished -- usually by their employers.
Here in California, a 1949 loyalty oath designed to eliminate Communists from Berkeley and UCLA created a national furor and cost about two dozen faculty members their jobs. A similar oath imposed the following year on all state employees took an even higher toll. Meanwhile, of course, the Hollywood studios were firing and then blacklisting all their employees who refused to name names before anticommunist investigating committees.
Similar purges occurred elsewhere. Steelworkers in Baltimore, high school teachers in New York City, Foreign Service Officers in Washington DC, longshoremen in San Francisco, college professors in Michigan -- the list is long and varied.
Altogether, according to the most reliable estimate we have, some 12-15,000 people lost their jobs during the 1940s and 1950s.
Certainly compared to the numbers of people victimized by the likes of Hitler and Stalin, McCarthyism's body count was minimal, but its political impact was considerable. The 1950s red scare essentially eliminated criticism of America's Cold War policies and silenced effective dissent for more than a decade.
Today, economic sanctions, though they do exist, do not seem to be as central to the action. Instead, the federal government is using criminal and, especially, administrative procedures to conduct its domestic war on terror, targeting members of ethnic and religious minorities rather than political dissidents.
Since most of the supposed, not to mention the real, terrorists are foreign born, the INS has been the primary offender. In the immediate aftermath of 9/11, over a thousand non-citizens were rounded up and detained sometimes in solitary confinement for weeks and months at a time -- without bail, without access to lawyers, and without any formal charges.
The INS's use of minor immigration violations against these people, almost all of whom were law-abiding Muslims from the Middle East and South Asia, bears a striking resemblance to the selective prosecutions of the early Cold War when federal attorneys and the FBI scrambled to manufacture offenses -- like perjury or contempt of Congress -- that they could charge suspected Communists with.
And, in fact, throughout our nation's history, whenever the government is looking for scapegoats, it often resorts to these kinds of trumped up charges for the simple reason that the people it is prosecuting have not committed any kind of a crime.
Immigration proceedings have long been central to American political repression -- and not just because foreigners are more radical or unpopular. They are also easier to repress for the simple reason that they have fewer rights than citizens.
During the first Red Scare in 1919 and 1920, to take one important example that bears many parallels to the current scene, the INS arrested over ten thousand allegedly dangerous foreigners in the space of a few weeks. Because the authorities had little evidence for these people's wrong-doing, the Palmer raids, as these round-ups came to be called, were designed to coerce quick confessions by denying bail to the detainees and keeping their lawyers away. The abuses that occurred were so egregious that public opinion soon forced an end to them -- and to the political career of the ambitious Attorney General Mitchell Palmer who had hoped that these mass deportations would send him to the White House.
There were fewer non-citizens in the American population during the McCarthy era, thanks to the immigration restrictions enacted after World War I. Even so, the INS still tried to force hundreds of foreign born radicals out of the country.
The peculiar vulnerability of immigrants stems from a still-extant 1893 Supreme Court ruling that deportation is not a criminal punishment. What this means is that non-citizens facing deportation are not covered by those sections of the Bill of Rights that protect criminal defendants. They have no right to a fair trial or to reasonable bail or access to an attorney, or to any of the other protections associated with the constitution's guarantee of due process of law.
During the McCarthy era, the immigration authorities took advantage of this situation to hold foreign-born radicals for months at a time, often without granting them bail or informing them of the charges against them. The federal courts offered no relief and it was only when the Eisenhower administration decided to save money by shutting down the INS's detention centers that these practices began to ease up.
Today, those centers are in business again. The Bush administration has taken advantage of the immigration authorities' ability to bypass legal procedures and has detained hundreds, perhaps thousands, of foreigners without launching charges against them or even giving out their names.
National security was, as usual, the justification for these operations -- even though none of the detainees were charged with anything relating to terrorism. Many were simply victims of mistaken identity, unfortunate timing, or the apparent eagerness of federal officials to show results.
Rounded up at gunpoint by FBI agents in the middle of the night, shackled, mistreated and sometimes physically beaten by their guards, these people, whose most common crime seems to have been overstaying their visas, were held often incommunicado until they were cleared by the FBI and then whisked on a plane and shipped back to their countries of origin.
So far, only a few American citizens have received that kind of treatment. But since terrorism is as flexible a notion as communism, it is easy to imagine the government using it as a pretext for quashing people with unpopular views. Already the administration has taken some measures that have ominous implications.
There is, for example the "no fly" list, produced by the federal government and implemented by the airlines (Note the public/private collaboration here.) While clothed in secrecy and ostensibly directed against terrorists, this operation has created problems for a lot of ordinary individuals, as well as some Green Party activists, a civil liberties lawyer, and a whole bunch of people all of whom were named David Nelson.
Equally distressing is the crack-down on "material support" for terrorism which, as administered by the Treasury Department, is forcing charitable organizations to screen all their recipients in accordance with such a vague definition of "terrorism" that supporters of Nelson Mandela's African National Congress during the 1980s might well have come under suspicion.
In addition, the mission creep down the slippery slope that so many of us fear is, in fact, already occurring as the government deploys its new Patriot Act powers in non-terrorist-related cases.
Perhaps because of the violence perpetrated by Al Qaeda, today's crackdown seems more extreme than those of the past. There is a blatantly brutal quality to the current antiterrorist campaign that makes the McCarthy era seem positively genteel.
When an INS official urged one of his colleagues not to "abandon the Constitution in this crisis," the colleague replied, “Fuck the Constitution!”
Or as another official explained, "If you don't violate someone's human rights some of the time, you probably aren't doing your job." And these abuses are far from theoretical, as the Department of Justice's own inspector general admitted in describing the mental and physical mistreatment of the INS's prisoners, while the detention of the Guantanamo captives defies international law as well as the Constitution.
And then there is the torture and mistreatment of captives in Afghanistan and Iraq as well as the practice of "rendition," the transferring of prisoners to third countries that are less squeamish about using torture to extract information.
There is a similarly in-your-face quality to the official secrecy that surrounds these and other operations -- as if the Bush administration is flaunting its power to conceal its activities from the public. It is, by far, the most uncommunicative government in recent American history.
Many of its projects -- from establishing secret military tribunals to eviscerating the Freedom of Information Act to the Patriot Act's gag order that prevents librarians from telling anyone else that the FBI has been asking questions about their patrons -- further increase its lack of accountability.
Secrecy is, of course, a key component of political repression.
But during the McCarthy era, the secrecy was more discreet, used primarily to conceal illegal FBI break-ins and wiretaps or to protect the anonymity of the Bureau's undercover informants. Thus, for example, Hoover's men tapped the phones of political defendants and listened in to conversations with their lawyers, but they would never have risked the Bureau's reputation by revealing that they had done so. Today, the FBI, under an October 2001 executive order, listens openly.
Though the current War on Terror makes the 1950s Red Scare look like a Sunday School picnic, the factors that facilitate political repression in a modern, more-or-less democratic society have not changed all that much.
Most important is the collaborative nature of that repression. McCarthyism succeeded in crippling the First Amendment because so many mainstream institutions went along with it. HUAC and Joe McCarthy grabbed the headlines, but the less flamboyant contributions of the federal judiciary and private employers in administering and legitimizing it were just as effective.
Today, as well, a similar synergy may be in place. Some judges have, it is true, resisted the pressure. But it is hard to imagine that a federal judiciary packed with Reagan-Bush appointees and a Supreme Court whose newest member may well be Bush's own private lawyer will pose much of an obstacle to the administration's repressive practices.
We may get more resistance from Congress. Many of its members are uncomfortable with the executive's strong arm tactics, but whether they will develop the collective backbone necessary to put an end to them is another matter altogether.
The media has not been helpful here. Not only has conglomeration reduced the range of outlets available to the public, but the tendency of the mainstream media to defer to the powers that be amplifies the administration's message and ensures that most critics get ignored or, if they eventually reach the public, they do so long after the damage has been done.
This happened during the McCarthy era as well. Not only were dissenting voices overtly silenced, but they often silenced themselves.
Such self-censorship has reappeared today. When CBS's former anchor Dan Rather admitted that he had not asked tough questions because he feared seeming insufficiently patriotic and CNN's Christiane Amanpour described her own network as "self-muzzled," we may need no new McCarthy to chill the nation's political climate. Simply criticizing current policies, especially if that criticism includes controversial positions on delicate Middle-Eastern issues, can lead to nasty emails and worse.
Although McCarthyism remains a dirty word, popular concern for civil liberties has always been superficial at best.
When an enterprising reporter stood on a Wisconsin street corner with a copy of the Bill of Rights during the height of the McCarthy era and asked passers by to sign it, no one did. Would he have any more luck today?
Perhaps -- the slowly stiffening congressional spine and the current revulsion against the administration's use of torture -- do give grounds for hope.
Still, we cannot ignore the prophetic words of Learned Hand. The history of McCarthyism and the nation's other repressive movements has taught us clearly tha
t constitutions, laws, and courts will not preserve American liberty. We must, somehow, ensure that it remains within the hearts of men and women. To do that will require speaking out, teaching in, and refusing to give up the struggle for freedom and human dignity for all.
 David Cole, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism (New York: The New Press, 2003), 7, 9, 55, 183-200.