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Hearing transcripts invaluable after charges of 'new McCarthyism'

By John W. Dean
FindLaw Columnist
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(FindLaw) -- Lately, charges of a new McCarthyism have been swirling. By far the most persuasive -- and alarming -- case has been made by Georgetown Law Center professor David Cole in an article in the Harvard Civil Rights - Civil Liberties Law Review entitled "The New McCarthyism: Repeating History in the War on Terrorism."

Cole argues that, "just as we did in the McCarthy era, we have offset the decline of traditional forms of repression with the development of new forms of repression. A historical comparison reveals not so much a repudiation as an evolution."

To support his claim of a New McCarthyism, Cole cites the censorship of speech considered subversive; the resurrection of guilt by association; and the redefinition of the laws of terrorism to reach what surely are unintended consequences. He explains how we have substituted administrative processes for criminal justice to make it easier to round up suspects, and to ignore the protections the Constitution affords criminal defendants.

Yet for many, the idea of McCarthyism itself lacks such specificity. One conservative McCarthy defender and National Review writer claims -- quite unfairly, but not entirely baselessly -- that "McCarthyism has come to mean anything liberals or leftists consider to be unfair, unjust, [or] un-nice." Meanwhile, the right uses the term as loosely today as it is by the left.

In this context, the new availability of the transcripts of Wisconsin Republican Sen. Joseph McCarthy's closed hearings in 1953 and 1954 could not be more helpful. These hearings remind us all exactly what McCarthyism means.

The transcripts had been sealed by the U.S. Senate and deposited in the National Archives for a half century. According to the preface of the five volumes (of some four thousand pages of material), this was done "in part to protect the privacy of the many witnesses who testified in closed executive session."

That privacy part, however, had to be minuscule. McCarthy was, and remains, an embarrassment to the Senate as an institution, and to all but a few right-wing Republicans. Undoubtedly, the Senate kept these records sealed as long as possible in an effort to minimize their stench.

"These hearings are a part of our national past that we can neither afford to forget nor permit to reoccur," the ranking members of the Permanent Subcommittee on Investigations explained in releasing them.

But is that past in fact recurring -- perhaps, as Cole contends, in a new incarnation -- now? For those considering the question, the transcripts are invaluable to show what McCarthyism really meant.

The advent and history of McCarthyism

McCarthy, elected senator in 1946, stumbled into the national limelight in 1950 with a Lincoln Day speech in Wheeling, West Virginia. Waving a piece of paper, McCarthy claimed to "have here in my hand a list of 205" names of Communists who, he said, were working in the State Department.

By this time, President Truman had been at work for several years prosecuting Communist spies such as Julius and Ethel Rosenberg, who had leaked atomic secrets to Russia. In addition, the Truman administration had established working precautions against further national security espionage. But none of this deterred Joe McCarthy.

After McCarthy's speech, Truman and Senate Democrats met McCarthy's accusations head on. They appointed a committee to investigate, and it soon showed that McCarthy's charges were baseless.

But the Wisconsin senator had tasted national attention, with his sensational charges, and wanted more of it. After the Republicans won control of the Senate in 1952, McCarthy's seniority gave him the chairmanship of an obscure subcommittee on investigations of the Committee on Government Operations. With his subcommittee, McCarthy launched his infamous witch hunt for Communists. Soon the term "McCarthyism" was introduced into the language as shorthand for the tactics he employed.

Defining McCarthyism and applying it to the transcripts

The introduction to the five volumes of transcripts explains that the term "McCarthyism" -- coined by Washington Post cartoonist Herblock -- was inspired by the Senator's hectoring style. It describes McCarthyism as "any investigation that flouts the rights of individuals" and typically involves "character assassination, smears, mudslinging, sensationalism, and guilt by association."

The American Heritage Dictionary defines it a bit more broadly: "The political practice of publicizing accusations of disloyalty or subversion with insufficient regard to evidence." Or: "The use of methods of investigation and accusation regarded as unfair, in order to suppress opposition." A similar definition is found in The New Dictionary of Cultural Literacy.

The five recently released volumes of Senate executive session hearings are replete with literally hundreds of examples certifying the accuracy of these definitions of McCarthyism. Clearly, McCarthyism as the term is widely understood is not merely something liberals find disquieting. Indeed, it is difficult to understand how some conservatives can embrace the legacy of this jackass.

I appreciate that few will want to read all 4,316 pages. Fortunately, each volume has twenty-eight pages of introductory material, as well as helpful notes that provide context for witnesses, as well as occasional footnotes, which make using the material easier. One need only sample a few witnesses to get a feel for McCarthy's browbeating tactics (which were employed by his counsel Roy Cohn as well) and why they earned him his disgrace.

McCarthy's shenanigans when hauling some 214 witnesses before his committee for public hearings are well-known. But until the release of these five volumes, it was not known that McCarthy used his closed hearings to test witnesses, calling about a third of those he tested in closed session for a public appearance.

Those who stood up to his bullying in the closed hearings were not called for public hearings. However, those who were intimidated, had to appear in the public hearings as well. There, he used them as fodder for his baseless assault on public and private organizations he claimed to be infested with Communists.

What the transcripts do not show

These newly available transcripts of McCarthy's closed hearings show how McCarthy, and his aides, abused witnesses. But what they don't show are the careers and lives this man ruined with his endless stream of false charges.

Conservative historian Paul Johnson reports in A History of the American People that "[t]here is no evidence that he ever identified any subversive not already known to the authorities and the only consequence of his activities was to cause trouble and distress for a lot of innocent people and discredit the activities of those genuinely concerned to make America safe."

I mark this emphasis because there are McCarthy defenders who incorrectly claim McCarthy was, in fact, serving a useful purpose by removing Communists. Johnson, whom conservatives also tend to swear by, has made clear that this is a fallacy.

Now that we have a more specific sense of what McCarthyism really means, we can more profitably reflect on whether current Administration tactics fit the definition.

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John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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