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CounterPunch Diary

The Lawyer’s Tale: Harvard Law School’s Hour of Shame

by ALEXANDER COCKBURN

Early in the age of Obama, before he’d even been inaugurated, I drove down to St. Simon Island on the coast of southeast Georgia to spend a couple of days with Jonathan Lubell and his wife Dee. Jonathan is the best libel lawyer in the country, carving his way into legal history with such brilliant actions as the suit he fought on behalf of Colonel Herbert against CBS in the late 1970s, where he triumphed before the U.S. Supreme Court in convincing the justices to issue the seminal decision allowing discovery (in legal terms – compulsory disclosure of facts or documents) in defamation cases.

Jonathan has represented CounterPunch down the years with 100 per cent success. I’ve often pestered him to give the full story of how shameful reds-under-the-bed hysteria had got him blocked from a rightful spot on the Harvard Law Review at the height of the McCarthy witch-hunts. Until now, he’d always said he’d tell me “some day”. Maybe the fact that the White House was about to be occupied by a former Harvard Law Review president made the principle of transparency applicable to the Law School. At all events, he finally gave me the essential story.

Jonathan and his twin brother David had attended Cornell from 1947 to 1951. The two young men, both recipients of Sidney Hillman scholarships at Cornell, went to Harvard Law School from 1951 to 1954.

In their years at Cornell, the Lubell boys had been active politically on civil rights and issues of war and peace, particularly on the Korean War. “We wrote papers and spoke at meetings, taking the position that the U.S.A., in alliance with South Korea, was responsible for the war.” Jonathan points out that the events in Vietnam, years later, confirmed their view of the Korean War.

At the end of 1952 and start of 1953, Joe McCarthy’s Permanent Subcommittee on Investigations, the House Un-American Activities Committee and the Senate Internal Security Subcommittee (this last one often known as the Jenner Committee) were all running hearings on red subversion. “Having been ultimately subpoenaed by more than one of these committees,” Jonathan recalls, “I understand that there was some sort of bargaining, and eventually the task of subpoenaing us was taken up by the Jenner Subcommittee.

“We were in our second year and when we received the subpoenas, we went to the office of the dean of the Harvard Law School, Erwin Griswold, who asked what we intended to do. We responded that, of course, we weren’t going to cooperate because we believed that the committees’ activities violated the First Amendment and the academic freedom that should exist at Harvard Law School. Griswold was furious and told us that others at the Law School would be talking to us. At that time, the dean expressed the position that the Fifth Amendment was available only for those who were involved in criminal activities. Some nine months later, changing his position, the dean wrote that the Fifth Amendment was available to the innocent. This was the position we had taken with Griswold when we first met with him.”

Soon thereafter, the Lubells were asked to meet with three professors from the Law School. “The meeting was characterized by an absence of communication. We told the professors that we had no intention of cooperating with the Jenner Committee. When one of the professors evoked the damage that could be suffered by Harvard if we refused to cooperate, we responded that far greater would be the damage to our honor and to what we felt were the principles that the Law School should be upholding. It was necessary to protect the rights set forth in the Constitution; otherwise, our country would be in grave danger.

“The three professors were not of a single mind. One of them had a history of actually working on Attorney General A. Mitchell Palmer’s strike force at the end of World War I, which had persecuted reds and suspected radicals. This was professor John McGuire; to his honor, he was clearly the most understanding of our position. Another of the professors, who had a reputation as a ‘liberal,’ became a judge on the commonwealth of Massachusetts’ highest court. During the course of several weeks of discussion with the three professors, David and I were called into the office of one of the professors for ‘a private discussion.’ He said he had ‘great news’. The Jenner Committee’s counsel, Robert Morris, had offered to interview us in private in Washington, D.C. No one would know that the interview had occurred. Without any hesitation, both David and I had the same immediate response that ‘we would know’ and that the offer was unacceptable.

“During this whole period of time it became known that we had been subpoenaed. The result was that no one would sit with us at any of the tables in the Harvard Law School dining room. To make sure we got the message, no one would also sit next to us in any of the classrooms either.”

In addition to the isolation imposed by both the faculty and the students, the school thought to bring pressure from other quarters. “The vice dean, Livingstone Hall, invited our mother to meet with him. His only point was to try to convince her that she should have us take a sabbatical until after the committee’s activities were over. She would not entertain the idea that her sons remove themselves from the Law School.”

As the scheduled day of appearance before the Jenner Committee grew closer, the pressure on the Lubells escalated. “We informed the vice dean that we were planning to speak with somebody at the ACLU to represent us at the hearing. Hall immediately got very upset, stating that we should not get one of those communist lawyers. It was clear to us that the lawyers favored by the school were not going to help defend our position in any way. In fact, their role seemed to be to get us to give up our rights and change our position.”

Finally, Jonathan and David Lubell appeared before the Jenner Subcommittee in 1953. “We briefly explained that we would not cooperate in any way; that the subcommittee’s activities directly violated the First Amendment, the Fifth Amendment and the principles of academic freedom that Harvard had reiterated so many times in the past.

“We had made our position clear and then the subcommittee said the hearing was concluded. After our appearance, some of the professors at the Law School told us that we had jeopardized any possibility of ever becoming lawyers. In addition, the scholarship that we had was terminated. However, David and I made it clear that we intended to be lawyers and to be involved in the legal profession.”

The next attack involved the Harvard Law Review. At no time prior to this had a student been denied membership in the Law Review if he or she was academically qualified. “In our case, the Law Review convoked a special meeting to discuss whether we would be admitted to the Law Review. We had both graduated magna cum laude.” 

The Law Review had a meeting. Jonathan Lubell was told that neither he nor his brother would be admitted. As time passed, other events occurred concerning the Law School and the Review. “We were informed by students who had been in our class that the main concern of those who voted to keep me off the Review was to protect their possibility of becoming successful lawyers.”

During the same period, the Law School was obviously trying to have the Lubells removed from the Law School: Jonathan and his brother learned that a faculty meeting was held on the subject of whether the Lubells should be expelled. “Soon thereafter, we were told by a faculty member that there was a meeting and that we were lucky that an expulsion required a two-thirds vote. We understood that this meant that a majority of the faculty had voted for our expulsion – regardless of the Law School’s widely publicized concern for the protection of the rights guaranteed by the Constitution. That concern was not as powerful as the congressional subversive activities committees. It was a precarious time. Significantly, in the early Seventies, the then current members of the Law Review stated that I should have been admitted.”

“After that time, a number of our classmates from 1951-54 would bump into either David or me and express their gratification that we had been able to enter the legal profession. (David is a lawyer in the intellectual properties and entertainment fields.) Of course, they did not dwell on the ignoble roles that they played, nor that we had become lawyers without surrendering to the unconstitutional demands of the Jenner Subcommittee.”

At one convention of the American Bar Association Jonathan Lubell spoke on the Herbert case. The Law School’s former dean, Erwin Griswold, later LBJ’s solicitor general, was present. “Those were hard times for Harvard,” Griswold said to Jonathan. “To which I replied, ‘Dean, they were even harder for me.’”

I vainly begged Jonathan to tell me the names of at least a few of these who would not sit next to him or David in the dining room or the lecture hall. That’s how witch-hunts swell in malign potency, as frightened people perform cowardly acts in the cause of self-protection or self-advancement. Victor Klemperer’s I Will Bear Witness, his diary of the rise of the Nazis, has plenty of kindred examples of such cowardice at the Technische Universität Dresden.

In his memoirs, I Claud, my father records a conversation with the owner of a pub in the East End of London just after the Second World War:

“A year or more after the war was over, Mr. Harry took a trip to the Channel Islands – the only bit of the British Isles actually occupied by the Germans during the conflict. He was enthus­iastic. He described some huge beer cellar which the German military had remodeled and decorated in the Munich manner – a magnificent place, which, by its existence and the amenities it could offer to the English visitor, showed that out of evil some good could come.

 “I made some disobliging remark to the effect that I had read somewhere that a good many of the Channel Islanders had made quite a good thing out of the war – had collaborated with the invaders 100 per cent, given them lists of local Jews so that these could be deported, and so on. Mr. Harry said he had heard similar reports in the islands, and judged them to be well based.
“‘But you don’t understand, Claud old boy,’ he said, ‘at the time they did that, those people thought the Germans were going to win.’”

Amid the McCarthy red scare, those Law School grads who shunned the Lubells, those professors who tried to coerce them to testify, were similarly trimming their sails to ensure that they would not displease the winning side.

At Dawn They Slept (and all day too) How the Wall Street Journal and New York Times Gave Madoff Four More Years to Loot

There’s still time to subscribe and read our current crackerjack newsletter. Eamonn Fingleton has a terrific piece on Bernie Madoff, describing in compelling detail how the press dropped the ball on this apex Wall Street scamster who looted $50 billion. The Wall Street Journal  actually had the story in 2005, having been handed his 19-page report by Harry Markopolos, accurately outlining Madoff’s criminal enterprise. The SEC had turned its face to the wall, prompted to inaction by internal inertia and possible corruption, also by powerful forces in Congress.  A story in the Journal, using Markopolos’ research, would have blown Madoff sky-high and saved billions for the people he bilked, the not-so-rich as well as the plutocrats. But the Journal did nothing and Fingleton describes how and why it took that course. The New York Times displayed similarly apathy. Amid  the death throes of the old corporate press, Fingleton pitilessly excavates one of its greatest failures.  The smoking gun was placed in their newsroom  in-trays and they carefully looked the other way.

Also in this new edition of our newsletter Paul Craig Roberts concludes his three-part series on economics,  — the shortest, sharpest guide ever written. Let me quote three paragraphs:

Modern economic theory is based on “empty-world” economics. But, in fact, today the world is full. In a “full world,” the fish catch is limited by the remaining population of fish, not by the number of fishing boats, which are man-made capital in excess supply. Oil energy is limited by geological deposits, not by the drilling and pumping capacity of man-made capital. In national income accounting, the use of man-made capital is depreciated, but the use of nature’s capital has no cost. Therefore, the using up of natural capital always results in economic growth.

For example, the dead zones in the Gulf of Mexico from fertilizer runoff from chemical fertilizer farming are not counted as a cost against the increase in agricultural output from chemical farming. The brown clouds that reduce light over large areas of Asia are not included as costs in the production of energy from coal. Economists continue to assume that the only limits to growth are labor, man-made capital, and consumer demand. In fact, the critical limit is ecological.

Get our newsletter to read Roberts’ outline of full-world economics.

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ALEXANDER COCKBURN can be reached at alexandercockburn@asis.com