A recent article by two Georgetown University civil-liberties attorneys, Yael Bromberg and Eirik Cheverud, “Anti-Trump protesters risk 60 years in jail. Is dissent a crime?,” warns that the Trump Justice Department may be establishing a 21st century “subversives” list. The trial of the first six defendants has just started in Washington, DC.
The authors’ note that in the wake of Pres. Donald Trump’s inauguration in January 2017, federal prosecutors brought charges against over 200 protestors that included felony rioting, felony incitement to riot, conspiracy to riot and five property-damage crimes. The attorneys remind readers, “Each defendant is facing over 60 years in prison.”
Going further, prosecutors sought a warrant to secure the identities of users of a website, DisruptJ20.org, that organizers used to promote the protests. A second warrant sought information on all Facebook friends and related communications of two organizers, the host of a coalition Facebook page and those who simply “liked” that page. The Department of Justice’s (DoJ) sought to identify every person who visited the site in what some critics consider an unconstitutional “fishing expedition” for political dissidents.
In July, the DoJ served a warrant on DisruptJ20.org’s website-hosting company, DreamHost, for every piece of information it possessed that was related to the site. The company appealed the warrant and, as its general counsel, Chris Ghazarian, warned, “This specific case and this specific warrant are pure prosecutorial overreach by a highly politicized department of justice under [Attorney General Jeff] Sessions.”
However, Judge Robert Morina of the District of Columbia’s Superior Court ruled in support of the warrants, requiring only that personally identifiable information be redacted for “irrelevant” material. He pointed out, the DoJ “does not have the right to rummage through the information contained on DreamHost’s website and discover the identity of, or access communications by, individuals not participating in alleged criminal activity, particularly those persons who were engaging in protected First Amendment activities.”
Judge Morina’s decision might well be the first step in a new and unspoken effort by the Trump administrations’ national security state, including the DoJ, to reintroduce a new generation of the old “subversives” list.
Faced with WW-I, the U.S. Congress passed the Espionage Act in 1917 and followed up with the Sedition Act in ‘18. The ’17 Act prohibited false statements that interfered with the nation’s military or promoted the efforts of an enemy; the ’18 Act forbade any expression of disrespect toward the U.S. government, the Constitution, the flag or the military.
In 1919, the Supreme Court decided unanimously, in Schenck v. U.S., that Charles Schenck, general secretary of the American Socialist Party, violated the laws by mailing 15,000 anti-draft circulars to men scheduled to enter the military. Justice Oliver Wendell Holmes wrote the Court’s opinion and argued that the government could limit freedom of speech when the nation faced a national-security treat, “clear and present danger.”
Two decades later, in 1939, the FBI secretly established the Custodial Detention Index (CDI) — aka the Custodial Detention Security List, the Custodial Detention Program and the Alien Enemy Control — to track subversives. These were people – citizens and immigrants — who were to be considered for arrest in case of war or a national-security crisis. FBI director J. Edger Hoover claimed that CDI originated as part of the FBI’s General Intelligence Division. “This division has now compiled extensive indices of individuals, groups, and organizations engaged in subversive activities,” he said. The CDI list was prepared without holding Congressional hearings or without an opportunity for those identified to challenge the designation.
That same year, Congress passed the Hatch Act that banned from government employment any person who held “membership in any political party or organization that advocated the overthrow of our constitutional form of government in the United States.” The following year, as fears mounted about the coming war, the U.S. government began to secretly screen federal employees for “loyalty” using the Hatch Act as its legal basis. During the war, 47 organizations were on the informal subversives list, most notably the CP and the pro-Nazi German-American Bund. All told, there were “12 Communist or Communist ‘front’ organizations; 2 American Fascist organizations; 8 Nazi organizations; 4 Italian fascist organizations; and 21 Japanese organizations.”
In September 1942, in an illegal but effective action, House UnAmerican Activities Committee (HUAC) chairman Martin Dies leaked the list to the Congressional Record. The list, entitled “Communist Front Organizations,” was known as Appendix IX and was officially published in 1944. It consisted of seven volumes totaling about 2,000 pages and identified approximately 250 groups as Communist front organizations; the seventh volume included an index of 22,000 suspected individuals. In the face of strong opposition, the full committee ordered all copies removed from the Library of Congress and destroyed.
Nevertheless, the list was quickly adopted by a wide variety of public and private groups to deny employment to or discriminate against those listed. Those adopting – and modifying – the list included the Treasury Department (e.g., tax-exemption determinations), the State Department (e.g., passport and deportation decisions) and the U.S. military (e.g., command structure) as well as state and local governments. In addition, a growing number of civilian business sectors – e.g., federal contractors, hotel businesses and the entertainment industries – denied employment to or discriminated against those listed.
The blacklist was formally established as the Attorney General’s List of Subversive Organizations (AGLOSO) in March 1947 under Pres. Harry Truman’s Executive Order 9835. The Order required all federal employees be screened for “loyalty” and created the Loyalty Review Board to undertake the screening. However, the list had a long pre- and post-history as a form of censorship. Nearly 500 organizations had an AGLOSO designation.
In 1950, Red Channels, a scurrilous anticommunists publication, issued a report, “Report of Communist Influence in Radio and Television,” that listed 151 actors, radio commentators and other broadcast-industry personalities as well as musicians and theatre performers with alleged communist affiliations. Those listed were essentially blackballed from professional employment and some were subsequently prosecuted for their communist affiliations.
In 1951, HUAC came up with its own list of subversives that included many CP-front groups like the National Council of American-Soviet Friendship, the Joint Anti-Fascist Refugee Committee, the American Committee for the Protection of the Foreign Born, the American Committee for Yugoslav Relief, the Civil Rights Congress (CRC) and the American Relief for Greek Democracy. Also making the list was the Peace Information Center, an anti-Cold War group headed by W.E.B DuBois. He, and four other officials, were arrested and indicted in 1950 for failing to register under the Smith Act. Most remarkable, a federal judge, James McQuire, acquitted the five defendants,
Lists of alleged subversives spread throughout society. In November 1956, the Elks Magazine featured an article, “What the Attorney General’s List Means,” that began, “There are few Americans who have not heard of ‘the Attorney General’s subversive list.’” It concluded, “There is no excuse for any American citizen becoming affiliated with a group on the Attorney General’s list today.” More disturbing, in 1934, the American Legion had begun making lists in of people and organizations they considered advocating radical politics. Between 1943 and ‘54, the FBI contracted with 60,000 legionnaires to serve as informants – and did so without Congressional approval.
The list achieved its most pronounced national status in February 1950 when Sen. Joseph McCarthy announced in Wheeling, WV, “I have in my hand a list of 205 cases of individuals who appear to be either card-carrying members or certainly loyal to the Communist Party.” McCarthy’s list was never formally made public and he kept changing the number of alleged communist suspects depending on the audience he was addressing. The list appears to have been based on a list originally prepared some years earlier by FBI agent Robert Lee and known as the “Lee List.”
Who is a subversive and who determines loyalty? The Attorney General’s List of Subversive Organizations claimed the designation was based on “reasonable grounds exist for belief that the person involved is disloyal” or has “membership in, affiliation with or sympathetic association” on its list of “totalitarian, Fascist, Communist or subversive” organizations or groups advocating the overthrow of the U.S. government or “to alter the form of Government of the United States by unconstitutional means.” Subversion was determined by “belief”; but whose?
A half-a-century ago, old-fashion liberal intellectuals and publications – or what would be identified as today’s “progressives” — felt especially threatened by the blacklist, fearful of being smeared by the same anticommunist brush. Victor Navasky found in his classic study, Naming Names, “the majority of center liberals lived in the penumbra of the degradation ceremony [of naming names] and reinforced it by playing its game.” He singled out the New York Times, The New York Post, New Republic and Dissent, among liberal publications, as supportive of the witch-hunt. He also noted the critical role played by some liberals, including Carey McWilliams, of The Nation, along with anti-Stalinist scholars like Michael Harrington, Irving Howe, Paul Goodman, C. Wright Mills and Erich Fromm, in opposition to HUAC, McCarthyism and lists of subversives.
The numerous subversive lists spawned more than splits among liberals. Ray Bradbury published his sci-fi classic, Fahrenheit 451, in 1953. The title signifies the temperature at which book-paper burns. It’s a dystopian novel about postmodern “firemen” who censor threatening texts by burning them and the small, isolated communities of people committed to keeping the written word — as a memorized, spoken text — alive. Bradbury wrote his classic tale during a period in which a dozen or so communities around the country organized popular gatherings at which citizens, including many young people, burned popular comics and other books.
The trial of the first Trump-inauguration protesters has just begun and more will take place. One key factor repeated cited by federal prosecutors – and the fawning media – is the street “violence” that occurred during the protests and, ironically, while the 200-plus people arrested were being held by the police. Many critics warn of the possible – likely? – role of agent-provocateurs in the violence. Federal officials have long used violence to fuel a political agenda. Most notably, FBI agents during its COINTELPRO program and CIA operative in any number of foreign campaigns have employed agent-provocateur tactics to discredit legitimate protesters. Should one expect any less from the then-newly established Trump administration?
It remains to be seen how strongly federal prosecutors will adhere to Judge Morina’s warnings when gathering information about political protesters. Most worrisome, it’s not clear if — most likely — they will use the information to build a new subversives list. Welcome to the 21st century national security state.