by Phil Kent, SLF President
ATLANTA: The Southeastern Legal Foundation today
reiterated its call for the U.S. Justice Department to bring criminal
treason charges against former MSNBC reporter Peter Arnett, who
gave a
lengthy interview with Iraqi TV in which he claimed that American
military
planning has failed in the war in Iraq.
The "new" news, however, is that top Truman administration
officials, including Oscar R. Ewing, a top policy adviser to President
Truman and the head of the Federal Security Agency - the Homeland
Security
Department of its day - made the national security decision to
pursue
criminal prosecutions against three American citizens who broadcast
their
pro-Nazi views on European radio during World War II.
"I argued that [past legal] cases involved nothing more
than a man
getting on a stump and talking to a crowd of people that were
within the
normal range of his voice. I felt this was quite different from
words
spoken into a microphone that could project the words all over
the world;
furthermore, that propaganda had become a definite weapon of warfare,
and
that anyone who used that weapon against his own country should
be
prosecuted for treason. When I had finished, the Attorney General
[Francis
Biddle] said, "Well, I think you've got a point. Will you
prosecute
them?"," recalled Ewing. "This would present an
opportunity to get a
court's reaction to our theory that mere words could be the overt
act
required for a treason conviction when the words had been spoken
into a
radio microphone for all the world to hear."(emphasis added)
"The U.S. Constitution makes plain that treason is a crime
witnessed by at least two persons, there's legal intent, and it
provides
aid and comfort to the enemy - and Peter Arnett's worldwide television
tirade on Iraqi TV against U.S. military activity certainly meets
those
criteria," said Phil Kent, SLF president. "The Truman
administration
during the post-World War II period aggressively pursued at least
three
Americans who gave aid and comfort to the enemy Axis powers by
broadcasting their views."
In these seminal cases, U.S. citizens who broadcast
anti-American sentiment on behalf of Nazi Germany while in Germany
during
the war were extradited, tried and convicted of treason. Best
v. U.S.
(1st Cir., 1950); Chandler v. U.S. (1st Cir., 1948); Cramer v.
U.S. (U.S.,
1945). In the Best case, Robert Best argued before the court that
he was
merely a "mediator...a go-between to Hitler...someone who
would interpret
the German mind to Americans." "This is the Arnett argument,"
said Kent.
"It didn't fly then, and it doesn't fly now."
"We cannot shout "Fire" in a crowded theater,
and we cannot
jeopardize the lives of our military personnel by encouraging
our enemies
on Iraqi TV to take heart from lies our troops. Arnett's shameful
display, while protected as free speech if he had made his comments
here
in the United States, is not protected under the First Amendment
when
spoken on the enemy's TV network."
ATTACHMENT
SOUTHEASTERN LEGAL FOUNDATION
Attachment to Media Release, 5-21-03 - Arnett Treason
Oral History Interview with
Oscar R. Ewing
Attorney, Hughes, Hubbard & Ewing, New York, New York, and
predecessor firms, 1919-1947; Assistant Chairman of the Democratic
National Committee, 1940-42; Vice Chairman, 1942-47; Special Assistant
to
the U.S. Attorney General, 1942 and again in 1947; Acting Chairman
of the
Democratic National Committee, 1946; Administrator of the Federal
Security
Agency, 1947-53; and organizer and member of an unofficial political
policy group during the Truman administration, 1947-52.
Chapel Hill, North Carolina
April 30, 1969
by J. R. Fuchs
(excerpt from interview for Truman Library)
EWING: I had completely forgotten those letters but seeing them
brings back that I had just previous to that time of August of
1947
finished the prosecution of Douglas Chandler in Boston for treason.
FUCHS: What was that case?
EWING: Tom Clark was Attorney General at the time and he had
appointed me Special Assistant to the Attorney General to prosecute
that
case. Mr. Clark was a great friend of Bob Hannegan's, and this
would
indicate that he knew what was going on in regard to my possible
appointment. John Steelman as Assistant to the President, I remember,
he
was the man that the President had asked to get things straightened
out
with Watson Miller. Apparently that's why I wrote to him. That's
the way
he was involved, in any event.
FUCHS: I see. Would you care to go over the prosecution of Douglas
Chandler? I think that that would be interesting, how you happened
to come
into that.
EWING: Yes. I've already told about working on the prosecution
of
William Dudley Pelley for sedition out in Indianapolis in 1942.
That
prosecution necessitated my making a study of Nazi propaganda.
As a result
of that study, I got the idea that we ought to prosecute those
American
citizens who were broadcasting Nazi propaganda and Fascist propaganda
from
abroad. So, I went to Attorney General Francis Biddle and suggested
that
these broadcasters be indicted for treason. He answered my suggestion
by
saying "I don't think we can make a case stick because there
are some
Civil War cases which hold that mere words do not constitute the
overt act
that is an essential element of the crime of treason. "
FUCHS: Now Biddle's resignation was effective June 30 , 1945.
But
you did take this up that early?
EWING: Oh, yes. This talk with Attorney General Biddle was not
too
long after I finished trying the Pelley case in 1942. In this
talk I
explained to Mr. Biddle why I thought we could make the case.
I argued
that those Civil War cases involved nothing more than a man getting
on a
stump and talking to a crowd of people that were within the normal
range
of his voice. I felt this was quite different from words spoken
into a
microphone that could project the words all over the world; furthermore,
that propaganda had become a definite weapon of warfare, and that
anyone
who used that weapon against his own country should be prosecuted
for
treason. When I had finished, the Attorney General said, "Well,
I think
you've got a point. Will you prosecute them?"
* * *
FUCHS: Then did you approach Tom Clark about the prosecution of
Douglas Chandler and Robert Best, who was the other one you were
to
prosecute, I believe?
EWING: Well, first I was asked to be prosecutor in all eight cases.
I said I couldn't do it and then they finally asked me if I would
take the
first case. At one time the Department planned to prosecute Best
and
Chandler together and then we realized we couldn't. I, therefore,
took the
Chandler case and it was to be the first one to be tried. This
would
present an opportunity to get a court's reaction to our theory
that mere
words could be the overt act required for a treason conviction
when the
words had been spoken into a radio microphone for all the world
to hear.
* * *
FUCHS: What happened to Chandler?
EWING: Chandler put in a defense of insanity. His lawyer claimed
that this obsession about the Jews was a paranoid form of insanity.
The
defense brought in expert witnesses who said that Chandler's violent
anti-Jewish feeling was a symptom of paranoia. We had witnesses
who
testified that he didn't have. a lot of other symptoms that a
true
paranoia would have to have. And so the jury convicted him. The
judge was
then obligated to sentence him and could impose the death sentence.
I
thought if there were ever to be a death sentence in any case
Chandler
deserved it because his propaganda was so vicious. He deliberately
tried
to disrupt the morale of the men in the armed forces as well as
the morale
of their wives and children and families at home. His main theme
was to
tell the men in the Army and Navy that their wives were running
around
with other men in America, then he'd make a broadcast to America
addressed
to the wives and sweethearts of boys in the armed services and
telling
them that their men were playing around with the girls in foreign
countries. It was a nasty, mean thing, and I felt very strongly
that the
Judge should have given him a death sentence if there were to
be any death
sentences for any crime. But the Judge only sentenced him to life
imprisonment and he's still in the hoosegow as far as I know.
FUCHS: Was it weighed that maybe he was only giving what Goebbels
told him to, that they were not actually his words?
EWING: No, no that defense was never made. The Constitution is
very
specific in its definition of treason. It's adhering to the enemy,
giving
him aid and comfort. That's the substantive part of the crime.
Then the
procedural requirements for the crime are that there must be the
testimony
by two witnesses to the same overt act. We ended up proving, as
I recall,
about twelve overt acts of broadcasting. We would have a witness
who would
testify that Chandler made a certain recording and then we'd play
the
record of that broadcast to the jury so they could hear his voice
and what
he said. We had to bring witnesses over from Germany who could
describe to
the jury exactly how Radio Berlin operated, how it was set up
and how when
a man spoke into the microphone a recording was made and when
the
recording was played how the wires took the words to the broadcasting
apparatus. The Department's investigators did a beautiful job.
