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Kaufman, Irving R., The Hon.
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Pre-Presidential Papers of Richard M. Nixon
General Correspondence
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COPY
April 14, 1959
Hearst, W.R., W. R., Jr.
Personal
Dear Bill:
Your editorial struck a very file as
I was concerned. As you can imagine, I have always felt
that men of Irving Kaufmann's courage should be recog-
nized wherever possible.
I frankly do not know what factors entered into
the nomination of Friendly, who I understand is a very
able man. But you can be sure that I am going to con-
tinue to urge that Kaufmann be considered for the next
appointment that comes up.
With kindest personal regards,
Sincerely,
Am llearst papers
File HEARST
Richard Nixon
Mr. W.R. Hearst, Jr.
Hearst Newspapers
959 Eighth Avenue
New York 19, New York
(RN rewrite/rmw/rd)
RHF/mc
Reproduced at Richard Nixon Presidential Library
COPY
April 7, 1959
Personal and Confidential
Dear Bill:
Hearst, W. R., Jr.
Knowing, as you do, the limitations of the
office 1 hold, it is difficult for me to adequately
respond to your provocative letter of March 31.
At the next appropriate opportunity, I believe
I can provide you with some more insight into the
general situation to which you allude. In the mean-
time, you can be certain that 1 will be continuing
my "missionary work" wherever and whenever I
can.
Sincerely,
Hearst papers $
File
Richard Nixon
Mr. W. R. Hearst, Jr.
Hearst Newspapers
959 Eighth Avenue
New York 19, New York
RHF:mc
Reproduced at Richard Nixon Presidential Library
M's RED/TELEGRAM AND SUN THURSDAY EBRUARY 19. 1959
Senator Blasts
Kaufman Delay
By ROGER STUART,
World Teleyram Stall Writer:
WASHINGTON, Feb. 19.--
Continued delay in the promo
tion of Federal Judge District
Judge Irving R. Kaufman of
New York to the Second Cir-
cuit Court of Appeals was
criticized by Sen. Thomas J.
Dodd (D., Conn.) today as
"wrong" on two counts.
"In the first place," he said
"Judge Kaufman is eminently
qualified for the post, and so
deserving of advancement that
it's strange his nomination
wasn't submitted to the Senate
long ago. Personally I'm a
great believer in the idea of
filling higher court vacancles
with judges who have proved
their worth on the district
bench.
"Secondly, this vacancy in
the Second Circuit-which in-
cludes my own state of Con-
necticut as well as New York
and Vermont-has existed for
nearly a year, ever since the
retirement of Judge (Harold
R.) Medina in a period when
the workload of all courts is
exceptionally burdensome, al-
lowing such a vacancy as this
to go so long unfilled is un
thinkable.
In commenting on the Court
of Appeals vacancy, the Con-
necticut Senator strongly en-
dorsed th World Telegram's
editorial stand in support of
Judge Kaufman. The editorial
stated that rutstanding public
service should be rewarded by
promotion,
COPY
February 19, 1959
Dear Mendel:
This is just a note to thank you for your letter
of February 3 concerning the Informational Media
Silberberg, Mendel B.
Guaranty Program.
I certainly agree with you on the importance
and value of this activity. As you may know, the Con-
gress in its last session drastically reduced the funds
requested by the Administration for the operation of
the program in the present fiscal year, but I sincerely
hope that the full amount of funds requested will be
made available for the coming fiscal year. You may
be sure that I will do everything I can to accomplish
this objective.
With every good wish,
Sincerely,
b.
x-Kaufman, Irving (Hon)
folder
Richard Nixon
Mr. Mendel B. Silberberg
6399 Wilshire Boulevard
Los Angeles 48, California
CKM:mm
P.S. With regard to the status of the appointment of
Judge Kaufman to the Second Circuit Court of Appeals,
I understand that at the present time no recommendation
has been made by the President for this position.
CAr
Reproduced at Richard Nixon Presidential Library
16
C
THE NEW YORK TIMES, MONDAY, MARCH 24, 1958.
Solid Judge of the Law
KAUFMAN SLATED
Holidays Not Taken
U.S. CHILDREN URGED
Disaster never takes a holi-
TO WRITE TO ISRAELIS
Irving Robert Kaufman
FOR HIGHER BENCH
day. Nor does the Red Cross
take a holiday from the job of
Mayor Wagner appealed to
helping peo-
American youth yesterday to
HE blue-eyed girl used to
Continued From Page 1
ple in trouble.
ON THE JOB
wander in and out of the
Many times
exchange letters with children
the large commercial cases that
the
people
in Israel and other countries
law office, but Irving Robert
tend to be brought in the New
who contrib-
as a contribution to world
Kaufman limited his talk with
York area.
ute to the
peace.
her mainly to hello and good-
The court has a tradition of
Red
Cross
FOR YOU
Such an exchange of letters,
by. Then he left to join the
distinction in its personnel.
find
them-
United States Attorney's
Among its noted judges in re-
selves getting
the Mayor said, can result in
staff. The story goes that his
cent years have been Learned
help from it. Anyone could
an understanding by children
Hand, Augustus N. Hand and
need Red Cross help. tomor-
that will "have an influence
first nongovernmental move
Thomas W. Swan.
row-for first aid after an
not only upon the shape of
was to call the girl, Helen
When Judge Jerome N. Frank
accident, blood during surgery
Rosenberg, for a
or disaster relief.
things to come, but also upon
died a year ago, a formidable
Man
date. A year later,
struggle developed behind the
The Red Cross is not alms
the course of world events in
he married her. He
scenes here and in New York
in the
but neighborliness, not char-
our own time."
had deferred court-
over the choice of his successor.
ity but service. And service
The Mayor spoke at cere-
News
ship until he was
There were two major aspirants
costs the money of millions of
monies marking World Jewish
no longer employed
-Judge Kaufman and Leonard
Americans whose contribu-
by her father, Louis Rosen-
P. Moore, United States Attor-
tions have been translated
Child's Day at the Israel Con-
berg. He shied from appear-
ney in Brooklyn.
into neighborly service. They
sulate, 11 East Seventieth
Mr. Moore was said to have
are the Red Cross.
Street. They were held under
ing to be seeking to marry
the backing of former Gov.
Keep the Red Cross on the
the joint sponsorship of
the boss' daughter.
Thomas E. Dewey and of New
job for you this year. Send
Hadassah, the Women's Zionist
The man who is now a Fed-
York's two Republican Sen-
your gift today to Red Cross,
ators, Irving M. Ives and Jacob
New York 16.
Organization of America, Pio-
eral District judge and has
just been slated for promo-
neer Women and the Mizrachi
K. Javits. In the end, he was
tion to the Court of Appeals,
selected by the Attorney Gen-
Women's Organization of
has always set rigorous stand-
Rogers, has indicated that he
eral, Herbert Brownell Jr.
America.
will observe Mr. Brownell's
ards for himself and for
Judge Kaufman, who had
commitment.
World Jewish Child's Day,
others.
made no secret in legal circles
Senator Bridges has praised
observed annually, calls atten-
Solid Master of Law
of his desire for promotion, was
Judge Kaufman particularly for
tion to the work of Youth
Sensitive on the problem
disappointed. His Congressional
his handling of the Rosenberg
Aliyah, the international agency
Judge Kaufman is a me-
supporters were sufficiently an-
trial and subsequent proceed-
that has rescued and provided
ticulous, solid master of the
$
of sentencing.
law, in full control of the
noyed to hold up the confirma-
ings. The Senator has said that
relief and rehabilitation of
cases before him. He appears
tion of Judge Moore for the rest
Judge Kaufman's promotion
more than 85,000 homeless
sensitive on the problem of
York, received his higher edu-
of the session.
would be deserved recognition
Jewish children from seventy-
sentencing. Letters and pro-
Representative Celler had
cation at Fordham Univer-
of exemplary conduct under
two countries since its incep+
tion in 1934. Hadassah is the
bation reports weigh heavily
thought he had had a promise
sity. He was graduated from
heavy attack.
with him.
from Mr. Brownell to give the
Senator Kefauver and Rep-
American representive of Youth
the law school in 1931 at the
For more than two years
next Second Circuit post to
resentative Celler have not pub-
Aliyah.
Judge Kaufman underwent
age of 20.
Judge Kaufman. After the
licly explained their strong sup-
The Mayor presented a syna-
unusually severe strain even
After working with Louis
Moore nomination, Mr. Celler
port for Judge Kaufman. They
gogue menorah to Youth Aliyah
for a judge. The death sen-
Rosenberg, he became a spe-
was reported to have told the
have joined Senator Bridges in
that will be placed in the syna-
tence he imposed on Julius
Attorney General that he would
cial assistant United States
saying that they are personal
gogue at Ramat-Hadassah-
block all bills for additional
and Ethel Rosenberg, who
friends of the judge and re-
Szold, the Youth Aliyah re-
attorney here in 1935, and a
were convicted of atomic es-
judgeships unless the next pro-
spect his ability greatly.
ception center near Haifa. Yael
pionage conspiracy, was the
regular assistant in 1936.
motion were promised to Judge
Among lawyers here Judge
Shoham-Sharon, daughter of
target of widespread appeals
Helped Expose Coster
Kaufman.
Kaufman is regarded as ambi-
Mrs. Tamar Shoham-Sharon,
and propaganda. He was ac-
At length Mr. Brownell made
tious, hard-working and excep-
member of Israel's United
At 27, the future judge suc-
claimed; he was denounced.
a firm commitment to Mr. Cel-
tionally able as a trial judge.
Nations delegation, accepted the
Two days® before Christmas
cessfully prosecuted a ring
ler and to Senators Bridges and
The one criticism heard has
gift. Mrs. Henry Goldman of
in 1952, he gave an audience
that had defrauded life insur-
Kefauver that the next appoint-
been that he has taken too ac-
Hadassah presided.
to Rosenberg's family, two
ance companies of millions of
ment would be Judge Kauf-
tive a part in seeking the pro-
Mrs. David Wohl, fund-rais-
days before New Year's, he
dollars annually.
man's.
motion to the Second Circuit.
ing chairman for Youth Aliyah,
listened all day to the defense
At 28, he got the case of
A place on the Second Circuit
On the appeals bench Judge
presented an Elath stone with
counsel, Emanuel Bloch. That
F. Donald Coster, drug manu-
opened recently when Judge
Kaufman's salary would be
a Youth Aliyah copper seal
night the judge went home to
facturer accused of violating
Harold R. Medina retired. Mr.
$25,500 a year, $3,000 more
made of ore mined in Israel
ponder the case; at 1:30
securities laws. When Coster
Brownell's successor, William P. than he gets as a district judge. to Mayor Wagner.
A. M., he collapsed, gashing
said he was too ill to go to
his head against a door.
court, the prosecutor took a
But he reaffirmed the
portable fingerprinting set to
death penalty. He said the
Coster's home in Fairfield,
Rosenbergs' crime had been
Conn. The prints exposed
"worse than murder," and
Coster as Philip Musica, an
MOST LUXURIOUS
they had refused to admit
ex-convict.
guilt, contending that they
At 30, Judge Kaufman went
had sought "justice, not
into private law practice,
mercy." He added:
which was said to have netted
"What they seek they have
him $100,000 annually before
attained."
he gave it up for public serv-
The American Civil Liber-
ice again.
ties Union found no evidence
In October, 1947, he became
that the sentences had been
special assistant to the United
motivated by political or re-
States Attorney General.
ligious considerations, or had
While serving ten months, he
involved any violation of civil
he set up a new unit to con-
liberties.
trol lobbying.
A B'nai B'rith award cited
On Oct. 15, 1949, President
Judge Kaufman for "further-
Truman named him a District
ing the cause of democratic
Court judge. He was then 39,
freedom."
the youngest Federal judge in
The Rosenbergs were elec-
the country.
trocuted June 19, 1953.
Lately Judge Kaufman has
Judge Kaufman looks
devoted much time to work-
younger than his 47 years.
ing on the system of pre-
His black hair is unstreaked
trial screening of cases that
by gray. He stands five feet
has sharply reduced calendar
six inches.
congestion in the Southern
The judge, a native of New
District.
DC-7B
FLY
Reproduced at Richard Nixon Presidential Library
A4498
CONGRESSIONAL RECORD APPENDIX
June 10
tried experiments. New Jersey is a good
book on the FBI to appreciate the difficulties
sometimes seems harder than to operate out-
place to work and a good place to live. Let
which the Director and the Bureau had to
side it, but it has been demonstrated time
us dedicate ourselves to keeping it this way;
overcome. Less dedicated men would have
and again that, in the long run, police opera-
and when we think of taxes, let us remember
been snowed under by the avalanche of
tions within the framework of these restric-
that they must fit our environment, be tai-
propaganda thrown at them. America owes
tions can be just as effective, and the results
lored to our capacities, be adequate to our
Mr. Hoover a debt of gratitude.
much more enduring.
services, and equitable among our citizens.
Were I just the ordinary man on the street
The Federal Bureau of Investigation, for
whose only contact with the FBI has been
example, has achieved a worldwide reputa-
through the newspapers, and whose only
tion for high standards and for operating
benefit was that indirect but SO vital benefit
strictly within the framework of our democ-
Graduation-Day Address by Judge Irving
of knowing that my country, my community
racy. Yet when matched up with the Nazi
and my family are safer because of its
intelligence machine at the outset of World
R. Kaufman Before FBI National
existence, I would cherish this opportunity
War II, it proved its superiority by breaking
to publicly express my thanks. My contacts
the leading Nazi spy ring in this country, and
Academy
with Director Hoover and the Federal Bureau
it is noteworthy that not one single major
of Investigation, however, have been much
act of enemy sabotage was committed within
EXTENSION OF REMARKS
closer than have those of most of us for-
the United States throughout the war years.
tunate people who call ourselves Americans.
And in more recent times, the work of the
OF
During the long trying months of the Rosen-
FBI has led to evidence of the Communist
HON. JACOB K. JAVITS
berg case, as many of you know, there were
conspiracy in America, and we have every
deliberate attempts to intimidate the Court—
reason to believe that the Bureau has today's
OF NEW YORK
personal threats to me and my family un-
major internal espionage problem well in
IN THE SENATE OF THE UNITED STATES
precedented in the history of our Nation's
hand.
Monday, June 10, 1957
judiciary. And during those interminable
Furthermore, the FBI's outstanding record
months when I feared for the safety of my
in the fight against the ordinary criminal
Mr. JAVITS. Mr. President, I ask
wife and my three boys during my every wak-
has proved time and again that police brutal-
unanimous consent that there may be
ing hour, my chief solace was the protection
ity and procedural shortcuts are not a neces-
printed in the Appendix of the RECORD
of the FBI, and the kindness and concern
sary corollary to effective law enforcement.
of the various members of the Bureau who
a distinguished address delivered by one
Indeed, I would venture to say that the wise
were assigned to protect my family. I have
of our Federal district judges in New
criminal of today fears the net which is
never before had the opportunity to publicly
closed about him by the scientifically trained
York, Hon. Irving R. Kaufman, incident
say to those men-"I thank you from the
FBI agent or police officer far more than he
to the graduation exercises of the 59th
bottom of my heart."
fears the third degree.
session of the FBI National Academy, in
Turning my attention from the FBI as a
In this latter pragmatic vein, as a judge,
this city on June 6, 1957. The address
whole to this National Academy which it
I could regale you for hours with stories of
is entitled "A Judge Looks at Law En-
sponsors and to this specific graduating class
criminals who could never be brought to
forcement." It contains some very feel-
representing police officers from 37 States and
justice because the evidence against them
ing and pointed references to the judge's
1 Territory, I am compelled to state that as
was illegally seized and of convictions which
a Federal judge, probably more familiar than
were reversed or set aside because key con-
personal experience with the FBI when
most laymen with the work of certain of our
fessions and evidence had been illegally ob-
he sat in a very trying case in New York
law enforcement agencies, I was most as-
tained. Indeed, one of the best possible ways
which contributed so much to his stature
tounded and frankly tremendously impressed
to insure that a probably guilty man will go
with the American people.
when I scanned the list of subjects offered
unpunished is to deprive him of the basic
There being no objection, the address
at this academy. They run the gamut from
safeguards which our Constitution affords
was ordered to be printed in the RECORD,
firearms to fugitive investigations, from spec-
him.
as follows:
trography to sociology, and from training
But there is yet another argument for con-
techniques to traffic control with numerous
sistent observance of these constitutional
A JUDGE LOOKS AT LAW ENFORCEMENT
courses in the sciences-chemical, physical,
rights, an argument which is, to me, much
(Address by Hon. Irving R. Kaufman, judge,
biological, and even mathematical. Reeling
more fundamental, for it goes to the roots of
United States District Court, Southern
them off makes me feel like Gilbert and Sul-
the American concept of law enforcement.
District of New York, before the gradua-
livan's modern major general.
In our society a man is presumed innocent
tion exercises of the 59th session, FBI
I find in this unique training program a
until proven guilty-and this presumption
National Academy, Departmental Audito-
startling reminder of how far we have come
has special meaning for you law-enforcement
rium, Washington, D. C., June 6, 1957)
from the time, not too long ago, when the
officers who must face the seemingly guilty
Members of the graduating class, Director
typical community provided its law officers
every day. First, it means that you must
Hoover, distinguished guests, perhaps it is
with a shield, a gun, and a club, but no
work to find evidence that may avert the
not in accordance with strict protocol that
training.
pointing finger of suspicion even as you try
I mention those who are about to become
A shield, a gun, and a club-that this is
to find evidence pointing to guilt.
graduates of this Academy before addressing
not enough for efficient police performance
I said to you earlier that I appreciated the
the noted personages who have made this
is, of course, an axiom to all of us who are
temptation to ignore certain constitutional
occasion possible and honored it by their
gathered here today-but I would remind
requirements when dealing with a man who
presence. But it is to congratulate the mem-
you that a prime reason that this is not
you just "know" is guilty-and, of course,
bers of this, the 59th graduating class of the
enough is because ours is a society of free
that word "know" must be in quotes. Neither
FBI National Academy, that we are gathered
men, and of government under law. The
you nor I nor any man can "know" that a
here today-to congratulate them, and to
Nazi's Gestapo, Soviet Russia's MVD, the pup-
person is guilty until a duly appointed jury
thank them for the splendid spirit of dedi-
pet Hungarian government's hated AVO, the
has rendered its verdict or until a plea of
cation which brought them to this Academy.
thought police, and secret police who func-
guilty has been accepted by the proper court.
To you graduates, perhaps the most im-
tion today in all the totalitarian countries
Thus, when you trammel the rights of a man
portant message I can bring is a reminder
which compose the Soviet sphere of in-
you think guilty, no matter how odious his
that you are the successors to a proud tra-
fluence-they can operate with a gun and a
character or record, you are trammeling upon
dition of efficiency and integrity-a tradi-
club. But in America this is not enough.
all our rights-setting yourself up as judge
tion, I must add, that has its roots in the
The men and women who fled the old
and jury and proclaiming to the world that
vision, the courage, and the devotion of one
world to establish this country had had their
our vaunted constitutional safeguards are
man-the distinguished Director of the FBI
fill of the physical anguish of the torture
mere privileges to be dispensed to the worthy.
who has led his organization to its present
chamber and the refined mental pressures of
This you may not do, and, I say again, you
position of international eminence, and who
star chamber inquisitions; they had learned
need not do.
has provided the law enforcement agencies
that the coerced confession is often false;
On the other hand, I deem it only fair to
of the entire Nation with the tools, the tech-
they had fought against the indignity of a
state that a judge who places unnecessary
niques, and the training which are vital in
man's being forced to bear witness against
and hypertechnical roadblocks, with no foun-
modern society's constant war against
himself, and they had rebelled against the
dation in law or the Constitution, in the path
crime. In a very real way, Director Hoover
presumption of guilt and the capricious
of lawful prosecution because of an antago-
is a part of this graduating class, as he has
search and seizure. Thus they wrote into
nism which the judge harbors toward law-
been a part of each and every class before it,
our Constitution safeguards against all these
enforcement officers, has rendered as great a
and before addressing myself to you gradu-
abuses-safeguards which can only be pre-
disservice to the American people as the over-
ates whom we have gathered to honor today,
served by being punctiliously obeyed.
reaching police officer.
I would like to pay tribute to the man who
It is sometimes a temptation to the most
For the past 12 weeks you have been in-
paved the way for this symbolic moment,
scrupulous law enforcement officer to bypass
tensively studying the latest techniques in
and to the devoted members of his staff who
one or more of these safeguards when he
all phases of law enforcement. If you apply
enable him to translate his ideals and ideas
just "knows" a man is guilty or that valuable
what you have learned here, if you teach it
into reality. Their road has not been an easy
evidence will otherwise be lost. And I would
to the other members of your respective
one. You have but to read Don Whitehead's
be the last to deny that to operate under law
agencies, if you constantly improve upon
Reproduced at Richard Nixon Presidential Library
1957
CONGRESSIONAL RECORD APPENDIX
A4499
what you have learned, and pass that infor-
sibility-a responsibility of enforcing our
ponents of his program, but only in the most
mation on also, the rising tide of crime in
laws in such a manner that there are no
generalized and impersonal of terms.
this country will be arrested.
untoward incidents to report. This is a
The effect of Mr. Eisenhower's first TV ap-
For you graduates, dedicated as you are to
challenge we must never forget and I know
peal for the whole of his new budget was
your career of community service, seeing your
that all of us will meet it with wisdom and
seriously diluted the next day when he said
efforts succeed will probably be thanks
courage.
that he did not regard it as his duty to "pun-
enough. As for myself, I strongly believe
ish anybody (in this context, such Republi-
that you and the thousands like you should
can congressional leaders as Senators KNOW-
also be thanked by a grateful citizenry which
LAND and BRIDGES) for voting what he be-
increases in pay and in prestige, and it is
Foreign-Aid
lieves."
gratifying to me to be able to note that when
Those GOP worthies were as unmoved by
a citizenry is alerted to the splendid job a
the President's second TV appeal as by the
topnotch police force can do it will often
EXTENSION OF REMARKS
first, and so the President was asked again at
respond with the vital financial assistance
OF
yesterday's press conference what he pro-
which will enable you to attract, to train,
and to keep the high caliber of men which
HON. J. W. FULBRIGHT
posed to do about the fact that practically
every key congressional figure in his party
society needs for its own protection. As a
OF ARKANSAS
is opposed to the program he himself had
native New Yorker, it is natural that I should
IN THE SENATE OF THE UNITED STATES
defended so vigorously the night before.
single out the work of academy alumnus
About all that Mr. Eisenhower would ad.
Stephen P. Kennedy as a prime example. His
Monday, June 10, 1957
mit this time was that he was not,so nam-
success in making New York City a safer
Mr. FULBRIGHT. Mr. President, I
by-pamby a person as not to have degrees
place in which to live has recently led to
of enthusiasm between those who stand with
success in his plea for more and better paid
ask unanimous consent to have printed
him and those who oppose him.
policemen.
in the Appendix of the RECORD an edi-
Question. What about Senator KNOWLANI
I have talked to you today of several aspects
torial entitled "Will Ike Now Fight for
who is against more often than he is for?
of your many faceted roles as law-enforce-
Foreign Aid?" published in the Arkansas
Answer. Senator KNOWLAND is a man O
ment officers-of your duty to uphold the
Gazette of May 23, 1957.
very strong convictions.
Constitution and laws of the United States
There being no objection, the editorial
This newspaper has made the point befor
and the several States in which you serve,
was ordered to be printed in the RECORD,
that it cannot presume to speak for any par
and of your constant job as scientific de-
of the Republican Party.
tectors and efficient deterrors of crime.
as follows:
We trust, however, that the leaders C
Before concluding, I would like to remind
WILL IKE Now FIGHT FOR FOREIGN AID?
the Democratic Party in Congress will reac
you of yet another responsibility which you
There were patches of eloquence in Presi-
as Americans first and as Democrats second a
must shoulder. As law-enforcement officers
dent Eisenhower's televised defense of that
they weigh the President's new mutual se
in your communities, you are often the only
much abused commodity "foreign aid."
curity appeal.
point of personal contact between the ordi-
In the first place, as the President ably
The early reaction from such leaders &
nary citizen and his government. Your
pointed out, most of what we refer to as
Senate Majority Leader LYNDON JOHNSON an
bearing, your conduct, and your professional
"foreign aid" is simply defense spending by
our own Senator FULBRIGHT, neither of who
skill will have a subtle but strong impact
another name, armament placed in the hands
is a soft touch for administration blarne
upon the confidence your citizenry has in its
of allies who are willing to stand up against
was most encouraging.
government, and our Nation is only as strong
the same enemy for less material reward than
as its people's faith in it. In an era of con-
we ourselves are wont to demand.
flicting world ideologies, at a time when our
But beyond that somewhat mercenary
youth has never known world peace and
point, Mr. Eisenhower's remarks on the im-
Price Increases in Steel
stability, the survival of the free world may
possibility of national isolationism were
well depend upon the maintenance of our
evocative of John Donne's celebrated words
faith in free government, and the depth of
on the impossibility of personal isolationism.
EXTENSION OF REMARKS
that faith will depend in large part upon
At one point, for example, the President was
OF
how we who are in public service conduct
moved to say: "America cannot exist as an
ourselves.
island of freedom in a surrounding sea of
HON. HUBERT H. HUMPHREY
Were this a unified world and a peaceful
communism."
OF MINNESOTA
world in which all countries adhered to the
At another: "We must recognize that
same moral values, I would still say to you
IN THE SENATE OF THE UNITED STATE
whenever any country falls under the domi-
that the manner in which you demean your-
nation of communism, the strength of the
Monday, June 10, 1957
selves in the performance of your daily
free world, and of America, is by that amount
duties, will have an important bearing on
weakened and communism strengthened."
Mr. HUMPHREY. Mr. President,
the strength of our democracy. But in to-
ask unanimous consent that an artic
Toward the end, the President sought to
day's divided world, with the Communist
answer that considerable body of criticism
in the June 7 issue of the Wall Stre
press ready to seize the slightest opportu-
which is always wondering why we should
Journal reporting on a recent speech 1
nity to proclaim that America's boasted free-
spend a single penny abroad so long as a
David J. McDonald, president of th
dom is a fraud—every time you violate the
single unfilled need still is felt at home:
United Steelworkers of America, I
safeguards of due process or perform any act
"We live at a time when our plainest task
printed in the Appendix of the RECOR
unworthy of an officer sworn to uphold our
is to put first things first. Of all our cur-
laws, you undermine the very foundations
Mr. McDonald's comments on pendir
rent domestic concerns-lower taxes, bigger
not only of our democracy but of our secu-
price increases in the steel industry wa
dams, deeper harbors, higher pensions, bet-
rity. Soviet-sponsored communism today
ter housing-not one of these will matter
rant serious thought and consideratio
has enveloped half the world in slavery, and
if our Nation is put in peril. For all that
There being no objection, the artic
it is seeking to ensnare the rest of the world
we cherish and justly desire, for ourselves
was ordered to be printed in the RECOR
by every means available to a highly mo-
or for our children, the securing of peace
as follows:
bilized totalitarian and Machiavellian gov-
is our first requisite."
McDONALD SAYS STEEL FIRMS CAN ABSO
ernment.
This is one theme which keeps recurring
PAY RISE, MAKE GOOD PROFIT-STER
The Soviets ignore their depredations in
Hungary, the riots in Poland, and the slave-
throughout President Eisenhower's public
WORKER CHIEF SINGLES OUT UNITED STAT
utterances: Nothing much will matter if
STEEL FOR USING UNION AS SCAPEGOAT F
labor camps spread throughout the Iron
Curtain countries like dark blots of cor-
we fail to prevent Armageddon.
PRICE HIKES
ruption-the Communist press slurs over
The President personally thinks that con-
WASHINGTON.-United Steel Workers pre
these events or denies their existence. And
tinuation of a meaningful mutual-security
dent David J. McDonald charged the st
then to take the heat off, so to speak, the
program will help prevent world war III. So
industry with a long history of irresponsil
Communists will point to asserted depriva-
does this newspaper.
in its pricing policies that has resulted
tions of liberty in America. Any slight inci-
What remains to be seen now is how hard
higher costs to helpless consumers.
dent of police brutality or veniality will be
the President will fight for his revised mu-
In an attack on what he termed "indus
enlarged upon and utilized skillfully as prop-
tual-security budget and all the rest of his
profiteering," Mr. McDonald singled (
aganda in the underdeveloped, uncommitted
new spending recommendations in the pri-
United States Steel Corp. for using his uni
countries of the world.
vate showdowns with congressional leaders,
as a scapegoat for unnecessary price boo
A free nation cannot hide its officials' mis-
particularly with leaders of the President's
over the years.
deeds behind a veil of censorship as can a
own party. This is where Presidents of the
The union chief declared the compa
dictatorship and, of course, none of us would
United States usually have been able to do
could absorb higher labor costs coming S
have it otherwise. But this freedom and
the most for their legislative programs.
under a long-term contract without rais
this world spotlight impose upon those in
So far, Dwight Eisenhower has been willing
prices at all and still show a substan
positions of authority a tremendous respon-
to do occasional battle with dedicated op-
profit increase over last year.
Reproduced at Richard Nixon Presidential Library
26
FEB + 5.1959
Julus
New York World-Telegram
and
The Sun
A SCRIPPS-HOWARD NEWSPAPER.
ROY W. HOWARD, Editor. LEE B. WOOD, Executive Editor.
N. S. MACNEISH, Business Manager.
E
Phone BArclay 7-3211.
Subscription rates postpaid in the United States $36 per year;
6 months $18; 3 months $9; 1 month $3.
Owned and published daily except Sunday by New York World-
F
Telegram Corporation." Main office, 125 Barclay St. (15).
Second class postage paid at New York, N. Y., and at additional
SCRIPPS-HOWARD
mailing offices.
Reg. U.S. Pat. Office 'Give Light & the People Will Find Their Own Way'
B
FRIDAY, FEBRUARY 13, 1959.
M
Afri
Editorials
way
Hunt Solution
On Promotion
For Kaufman
IRVING R. KAUFMAN.
By ROGER STUART,
World-Telegram Staff Writer.
WASHINGTON, Feb. 13.-
An end to behind-the-scenes
political maneuvering which
has long delayed filling of a
vacancy on the United States
Court of Appeals in the Sec-
ond Circuit is being sought by
administration leaders.
But the shape of the key
with which Attorney General
William Rogers hopes to un-
lock the door to bi-partisan
agreement isn't at all
Telegram has learned.
Several factors are involved.
Foremost is a high-level at-
tempt to withhold from Feder-
al District Judge Irving R.
Kaufman of New York the one
available appointment to the
appeals court, whose jurisdic-
tion includes the four districts
of New York, together with
Vermont and Connecticut.
Strong Backing.
Judge Kaufman, highly re-
garded as a jurist, has received
strong backing for promotion.
Ever since the vacancy was
created by the retirement of
Judge Harold R. Medina, near-
ly a year ago, it was generally
supposed his nomination would
be sent to the Senate. Among
those recommending such a
course of action was Judge
Medina.
Meanwhile, despite a belated
move in behalf of Henry J.
Friendly, council for Pan
American World Airways,
neither the White House nor
Attorney General Rogers is
committed to name him, it was
learned. The Justice Depart-
ment is now making an in-
Reproduced at Richard Nixon Presidential
quiry of New York bar asso-
Library
ment is now making an in-
quiry of New York bar asso-
ciations concerning him.
It is understood that Judge
Kaufman will be assured of
his long-postponed promotion
subsequent to-but not before
- the new Rogers-engineered
"peace" plan is effected.
Omnibus Bill.
This would envisage early
adoption of an omnibus bill,
urgently sought by the legal
fraternity, whereby two addi-
tional appeals court judgeships
would be created in the Second
Circuit. The same measure
would increase the total num-
ber of federal judges through-
out the country to 45-or 14
percent more than the present
total.
New York's two Senators,
Jacob K. Javits and Kenneth
B. Keating, both Republicans,
disclosed they favor legislation
carrying out the multiple
judgeship plan.
Rep. Emanuel Celler (D., N.
Y.), chairman of the House Ju-
diciary Committee, who has
been one of Judge Kaufman's
strongest supporters, told the
World-Telegram he is ready to
spearhead a drive for omnibus
legislation along the same
lines as that which he spon-
sored last year.
Bill Stymied.
Rep. Celler's committee ap-
proved the bill and reported it
out, only to see it stymied by
the House Rules Committee.
Both Sen. Javits and Rep.
Celler have backed the Kauf-
man appeals court candidacy
from the first. Each made it
clear that, as far as he is con-
cerned, there has been no
change of position.
"The Kaufman recommenda-
tion stands," insisted Sen. Ja-
vits.
"I recommended Judge
Kaufman and we have waited
a year for the President to
send his nomination to the
Senate," the Senator continued.
"Judge Kaufman has received
strong backing from Demo-
crats and Republicans alike.
But the President-or the At-
torney General, if you prefer
-has not yet been willing to
nominate him."
Keating Agrees.
Sen. Keating has been a
member of the Senate for only
one month, but said that he
and his senior colleague are
"standing together."
"On top of that," the junior
Senator added, "I have a
supremely high regard for
Judge Kaufman, who would
make a distinguished addition
to the Circuit, Court bench."
Judge Kaufman's record in
the Southern District of New
York, particularly in his han-
dling of the Rosenberg es-
pionage trial when it became
necessary for him to impose
death sentences on Julius and
Ethel Rosenberg, has earned
him wide support for promo-
tion.
Reproduced at Richard Nixon Presidential Library
grieved transit employees who don't happen to like
Quill domination and monopoly.
Politics as Usual
It has been nearly a year since the retirement of
Judge Harold R. Medina from the U.S. Court of Ap-
peals in the Second Circuit.
Federal District Judge Irving R. Kaufman, distin-
guished jurist whose masterful handling of the Rosen-
berg espionage case will long be remembered, was con-
sidered a logical successor. To that end he had, and
has, the support of Republicans and Democrats alike-
and the indorsement of Judge Medina himself.
But his nomination has yet to be sent to the
Senate. The indications are it won't be, either, until
Attorney General William Rogers wraps up a deal
whereby Congress would create two additional appeals
court judgeships in the Second District and increase
the number of federal judges generally throughout the
country.
We have always contended that outstanding public
service should be rewarded by promotion.
Judge Kaufman, in our opinion, richly merits and
qualifies for the appeals court promotion. It should be
made on the basis of his excellent record and qualifica-
tions, not made contingent on political horse-trading
or blocked by blind partisanship.
Reproduced at Richard Nixon Presidential Library
fyr
UNITED STATES DISTRICT COURT
CHAMBERS OF
file
judge IRVING R. kaufman
UNITED STATES COURTHOUSE
NEW YORK 7, N.Y.
July 3,1956
Honorable Richard M. Nixon
Vice-President of the United States
Senate Building
Washington, D.C.
My dear Mr. Vice-President:
You have expressed a deep
interest in the Rosenberg-Sobell case.
I
thought, therefore, that you would be
interested in the latest Opinion in this
matter.
With best wishes, I am
RECEIVED
JUL 5 ) 1956
Sincerely yours,
OFFICE OF THE VICE PRESIDENT
Irving R. Kaufuare
Enclosure
Reproduced at Richard Nixon Presidential Library
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--
X
:
UNITED STATES OF AMERICA
:
vs.
C. 134-245
:
MORTON SOBELL
:
X
OPINION
IRVING R. kauftean, D.J.
Reproduced at Richard Nixon Presidential Library
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-
X
UNITED STATES OF AMERICA
:
vs.
:
C. 134-245
MORTON SOBELL
:
- X
APPEARANCES:
PAUL W. WILLIAMS
United States Attorney
- and -
ROBERT KIRTLAND and
MAURICE N. NESSEN
Assistant United States Attorneys
for the Government
DONNER, KINOY & PERLIN
Attorneys for Petitioner
Morton Sobell;
Frank J. Donner
Arthur Kinoy
Marshall Perlin
Benjamin Dreyfus and
Luis Sanchez Ponton,
of Counsel
IRVING R. KAUFMAN D.J.
Reproduced at Richard Nixon Presidential Library
On March 29,1951, a jury of eleven men and
one woman found Morton Sobell guilty of conspiring to commit
espionage by transmitting to the Soviet Union, intended for
its benefit, "documents, writings, sketches, notes and
information relating to the national defense of the United
States. if Their verdict was returned at the end of an
exhaustive trial, at which Sobell's two extremely able
attorneys and the able lawyers of his co-defendants, Julius
and Ethel Rosenberg, skillfully but vainly tried to stem
the avalanche of evidence against them. The trial was held
in a manner which impelled the defense attorneys to compliment
the Court for its fairness and courtesies on three separate
occasions, and to state that the trial had been conducted
"with that dignity and that decorum that befits an American
trial. ii (1)
(1)
At the start of his summation, Mr. E.H.
Bloch stated:
"I would like to say to the Court on
behalf of all defense counsel that we feel
that you have treated us with the utmost
courtesy, that you have extended to us
the privileges that we expect as lawyers,
and despite any disagreements we may have
had with the Court on questions of law,
we feel that the trial has been conducted
and we hope we have contributed our share,
with that dignity and that decorum that
befits an American trial. if (Printed Record,
pp. 1452-53, hereafter R-1452-53).
-2-
Reproduced at Richard Nixon Presidential Library
Now five years later, Morton Sobell has
petitioned this Court pursuant to 28 U.S.C. Sec. 2255 to set
aside this verdict and judgment, alleging that his con-
stitutional rights have been violated and that the court was
(1) cont'd
After the verdict of guilty was returned
against all defendants, the same counsel
was moved to say the following:
"Mr. E.H. Bloch: I would like to
restate what I said when I opened to the
jury. I want to extend my appreciation
to the Court for its courtesies, and
again I repeat I want to extend my
appreciation for the courtesies extended
to me by Mr. Saypol and the members of his
staff, as well as the members of the FBI,
and I would like to say to the jury that
a lawyer does not always win a case; all
that a lawyer expects is a jury to
decide a case on the evidence with mature
deliberation. I feel satisfied by reason
of the length of time that you took for
your deliberations, as well as the questions
asked during the course of your deliberations
that you examined very carefully the
evidence and came to a certain conclusion. 19
(R-1583).
Even at the time of sentencing counsel said:
"Mr. E.H. Bloch:
I believe that in this
posture of the case, in retrospect, we can
all say that we attempted to have this case
tried as we expect criminal cases to be
tried in this country; we tried to keep
out extraneous issues; we tried to conduct
ourselves as lawyers, and I know that the
Court conducted itself as an American judge. if
(R. 1603).
-3-
Reproduced at Richard Nixon Presidential Library
without jurisdiction to try him. The contentions now
raised by Sobell relate to procedural and constitutional
issues which do not go to the question of his guilt or
innocence. Even if every one of the contentions now raised
by petitioner was to be sustained, it would not follow that
(2)
he is innocent.
(2)
Although the question of a petitioner's
guilt or innocence is almost never
material in a motion pursuant to
Section 2255, I feel constrained to
make this point clear, in light of the
publicity which has been attendant
upon this case over the years.
The finding of Sobell's guilt resulted
from the collective and unanimous
judgment of twelve conscientious jurors,
who had an opportunity to observe the
witnesses while they testified and thus
adjudge their credibility. The
importance of this opportunity to see
and hear witnesses as they testify has
been attested to time and again by our
appellate courts. It is clear, therefore,
that this so-called demeanor evidence
is of prime importance and that those
who have attempted to adjudge the
credibility of the witnesses in this
case without having observed them testify
are proceeding on tenuous ground.
-4-
Reproduced at Richard Nixon Presidential Library
FORMER JUDICIAL PROCEEDINGS IN THIS CASE
The convictions of Sobell and his co-
defendants were affirmed by the Court of Appeals for the
Second Circuit in a detailed opinion which contained the
following language:
"Since two of the defendants must be put
to death if the judgment stands, it goes
without saying that we have scrutinized
the record with extraordinary care to see
whether it contains any 01 the errors
asserted on this appeal. 77 (U.S. V.
Rosenberg and Sobell, 195 F. 2d,583, 590
(C.A.2,1952).
Thereafter, defendants filed a petition for
a writ of certiorari to the United States Supreme Court,
and this was denied. In the following two years, Sobell
participated in two motions brought under Section 2255
of the Judicial Code, each secking to vacate the judgment
on constitutional grounds; both motions were found to be
without merit and were denied in the District Court. The
denials were affirmed on appeal by the Court of Appeals and
a petition for a writ of certiorari filed after the first
motion, was denied by the Supreme Court. After almost every-
one of the above decisions, petitions for rehearing were also
considered and denied. In addition, numerous applications
for relief were made by the Rosenbergs, and although Sobell
-5-
Reproduced at Richard Nixon Presidential Library
did not join in them, it is worth noting that none
of the attacks on the judgment was sustained.
This then is the background against which
petitioner makes his present allegations and accusations
of infringement of his constitutional rights. The record
shows that in one form or another the case was before the
United States Court of Appeals six times, always concluding
with an affirmance, and before the United States Supreme
Court six times on applications of one sort or another,
always ending with the conviction remaining undisturbed,
and this tally does not include the numerous proceedings at
the District Court level and the various applications to other
judges of the District Court.
SOBELL'S PRES ATT CONTENTIONS
The basic factual allegations set forth
in Sobell's moving papers are not new to this Court.
Indeed, they were first raised five days after the verdict
on a motion in arrest of judgment. The denial of that
motion was specifically aftirmed on Sobell's initial appeal
to the Court of Appeals, and it was set forth as one of the
grounds supporting his prayer for reversal in the defendant's
first petition for certiorari to the Supreme Court, which
was denied. He argues, however, that although certain of
these allegations have been made before, the legal consequences
-6-
Reproduced at Richard Nixon Presidential Library
now urged as stemming from them have not been previously
considered.
Despite the lack of novelty in petitioner's
present assertions, and despite the numerous hearings he has
been accorded, the Court has again painstakingly re-examined
the record in the light of his instant allegations. Such is
the way in which a democratic society administers justice--
carefully, meticulously, and even repetitiously -- lest an
error go undetected. Under our judicial system we impose
a strong check upon the manner in which a prosecution may be
conducted.
It is difficult to find a case in the history
of American jurisprudence, or indeed in the judicial annals
of any other country, where the defendants' convictions and
contentions have received the attention of SO many judges at
SO many levels of a judicial system, as well as that of the
President of the United States on applications for executive
clemency. Not a single legal recourse has been or will be
denied to Sobell.
In his present petition, Sobell avers that
he was kidnapped from Mexico by agents of the Mexican Secret
Police who were acting under the orders of the FBI, and that
he was thus forcibly and illegally returned to the United
States against his will.
He does not assert, however, that
-7-
Reproduced at Richard Nixon Presidential Library
this alleged abduction deprived this court of any
jurisdiction over his person. On the contrary, he not
only concedes that he waived any such claim (assuming he
would have had one) but he also assorts that he would have
returned willingly to stand trial.
The first argument he now makes concerning this
so-called abduction is that it denied him the opportunity to
return to the United States willingly, and that it was staged
for the sole purpose of permitting the prosecution to represent
to the jury that Sobell was a fugitive from justice. He
asserts that when the government introduced evidence to show
that he had been "deported" from Mexico, this was subornation
of perjury on the part of the prosecutors, as they then well
knew that Sobell had not been deported in accordance with
established Mexican proceduros. He alleges further that the
government deliberately suppressed evidence relating to this
abduction and made misreprosentations to the Court about it --
and that any one of these alleged improprietics, if established,
would show a deprivation of petitioner's constitutional
rights.
His second attack, set forth in a separate
motion under Section 2255, is that this alleged kidnapping
violated a treaty between the United States and Mexico.
He argues that since this extradition treaty is the law of the
-8-
Reproduced at Richard Nixon Presidential Library
land, its violation deprived the courts of this country of
jurisdiction over the subject matter of this offense. Since
unlike jurisdiction over the person, lack of jurisdiction
over the subject matter cannot be waived by a defendant,
Sobell claims that this defect vitiated the entire trial,
and that his conviction is a nullity.
THE LAW GOVERNING MOTIONS
PURSUANT TO SECTION 2255.
Section 2255 of the Judicial Code permits
a convicted prisoner to move to set aside the sentence
if it was imposed in violation of the Constitution or laws
of the United States, or if the sentencing court was without
jurisdiction to impose that sentence. The court then has a
duty to order a prompt hearing upon the petitioner's allega-
tions "unless the motion and the files and the records of the
case conclusively show that the prisoner is entitled to no
relief. 88
In opposing the instant motions, the government
has taken the position that Sobell's factual allegations
regarding the prosecution's misconduct during the proceedings
are completely contrary to the record, and that his legal
arguments stemming from the allegations of his kidnapping
are totally devoid of merit. In short, the government
urges that Sobell's present allegations furnish no basis
-9-
Reproduced at Richard Nixon Presidential Library
for vacating his conviction either because of violation
of his constitutional rights or because this court was
without jurisdiction to try him, and thus no hearing on
their veracity is necessary. In passing on these motions,
therefore, the Court is required to accept all of petitioner's
averments as true insofar as they are not inconsistent with
the record. Pelley V. United States, 214 F. 2d 597 (C.A.7)
cert. denied 348 U.S. 915 (1954); United States V. Sturm,
180 F. 2d 413 (C.A.7) cert. denied 339 U.S. 986 (1950.)
Basically, the petitioner's allegations are
that he and his family went to Mexico City in the spring of
1950, where they resided openly and under their own name.
On the night of August 16, 1950, he says agents of the Mexican
Secret Police entered the Sobell apartment there and arrested
him without a warrant. When he tried to resist, he adds,
they beat him into unconsciousness and took him to an unidentified
building where he was detained overnight - held completely
incommunicado. The next day, he continues, he was forced
to enter an auto with several of these agents, and they
drove towards the border, stopping occasionally for the
agents to make telephone calls -- presumably with regard to
Sobell. When he reached the border bridge, a United States
agent entered the car -- though still on Mexican territory --
and he rode with them to the U.S. Customs Office. There
Sobell found that his wife and children had also been brought
-10-
Reproduced at Richard Nixon Presidential Library
back. He was "directed to sign a card", he says, and after
his baggage was searched he was placed under arrest and
taken to jail. He avers that this whole abduction was in
violation of Mexican law and that the Mexican Secret Police
had no legal authority to treat him in this fashion; -- he
charges that they were merely acting as agents of the Federal
Bureau of Investigation. He further avers that at the time
of his seizure he had been planning to return to the United
States -- his trip being but a vacation jaunt -- and this
abduction prevented him from returning voluntarily.
With reference to his motion challenging the
court's jurisdiction to try him, Sobell makes the further
allegation that his expulsion was in violation of the Treaty
of Extradiction between the United States of America and the
United States of Mexico. 31 Stat. 1818. It is upon
this last allegation that he bases his argument that this
court was without jurisdiction to try him.
I shall deal
with that contention first.
MOTION I.
SOBELL'S CONTENTION THAT THIS COURT LACKED
JURISDICTION TO TRY HIM.
It is Sobell's position that the United
States breached the extradition treaty with Mexico in two
ways; first, because the offense with which he was charged
-11-
Reproduced at Richard Nixon Presidential Library
was not among those enumerated in the treaty as extra-
(3)
ditable , and second, because the manner of this removal
from Mexico "flouted the treaty requirements for specified
official removal arrangements with duly constituted authorities
of the Government of Mexico and for proceedings under Mexican
law to determine probable guilt and justification for
removal." (Petitioner's Second Memorandum, p. 22). These
two facts, he charges, operate to invalidate the subsequent
proceedings against him, because "(a)n existing extradiction
treaty fully controls the national power to conduct criminal
proceedings involving alleged fugitives found in another
treaty country. Absent treaty compliance, the power of the
(3)
Actually this first allegation is two-pronged:
his first assertion is that espionage was not
one of the crimes listed in the treaty and
this is certainly true - although the conclu-
sions he draws from that fact are incorrect.
His second is that the treaty specifically
excludes political offenses and he claims his
was a political offense. This latter con-
tention is, of course, completely meritless.
Sobell was charged with and tried for conspiracy
to commit espionage - a non-political crime. The
fact that he was a Communist was introduced to
show motive for the crime, because unless some
reason for his actions were shown, such as devotion
to the cause of the Soviet Union, it would be
difficult to understand why an American would thus
spy upon his country for the benefit of the Soviet.
And the fact that Sobell and Elitcher were associated
-12-
Reproduced at Richard Nixon Presidential Library
nation -- and thus of its judiciary -- fails ab initio."
(Petitioner's Second Memorandum, pp. 11-12). Further,
Sobell contends, this lack of judicial power is not merely
lack of jurisdiction over the person of the accused who has
thus been wrongfully seized, it is total lack of judicial
power over the subject matter of the offense.
This final argument defining the type of
jurisdictional defect is vitally necessary to petitioner
here, as concededly, any question as to the trial court's
jurisdiction over his person was voluntarily waived by
him, and the court's jurisdiction over his person has been
specifically upheld by the Court of Appeals. Indeed, defense
counsel stated on oral argument of this motion: "I am not
here urging the matter of personal jurisdiction of the
(3) cont'd.
in this case also gave probative weight to
Elitcher's story that he was approached
several times by Rosenberg and Sobell to
join their conspiracy; the fact that he was
in sympathy with their ultimate cause
undoubtedly was what impelled the defendants
to trust Elitcher not to divulge their
machinations despite his own decision not to
take an active role. The jury was specifical-
ly and continually warned that Sobell was not
being tried for Communism, and I might
point out that the jury which was selected
was one with which the defense indicated
satisfaction before they had used up all
their peremptory challenges.
-13-
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defendant
That was litigated
and Judge Frank
said they raised that too late and
it had been waived.
Your Honor, if we were dealing with the matter of personal
jurisdiction, we are out of court." (Transcript of Oral
Argument, p. 34 - hereafter T-34).
Accepting defense counsel's assertion, I
find that this motion is raising the precise issue of personal
jurisdiction, and that on that score alone, to paraphrase,
Sobell is "out of court". Further, even assuming the
jurisdictional question could be reached, I find that there
was no violation of any treaty, that Sobell has no standing
to raise this question and that the court properly had juris-
diction of his person.
A.
THIS IS A QUESTION OF PERSONAL JURISDICTION
The entire question of the effect of this
alleged kidnapping upon the legality of Sobell's trial was first
raised by the defense by a motion in arrest of judgment made
five days after the trial, at which time they submitted an
affidavit setting forth the circumstances of Sobell's seizure.
The motion was denied on the ground that if these facts
existed, they were admittedly within the knowledge of defendant
and his attorneys before and during the trial, and that the
defense had made a deliberate decision not to call them to
the court's attention. (R-1590-1595).
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On appeal to the Court of Appeals, the
question of the trial court's jurisdiction over Sobell
was specifically argued in defendant's brief which cited
United States V. Rauscher, 119 U.S. 407 (1886), and Cook V.
United States, 288 U.S. 102 (1933), the two cases chiefly
relied on in the present motion. Their contentions were
rejected. Speaking through Judge Frank, the Court
stated:
"Sobell waived his right to challenge
personal jurisdiction in this trial
....
(H)e made no move to bring to
light the facts of his alleged illegal
abduction. He preferred to take his
chances on the verdict, withholding his
trump card until the trial was over.
The Federal Rules of Criminal Procedure
allow no such tactic." United States V.
Rosenberg and Sobell, 195 F. 2d 583, 603
(C.A. 2) cert. denied 344 U.S. 838;
rehearing denied 344 U.S. 889 (1952).
Despite that flat statement, the defendants
contend that they are free to raise this question again
because they now allege that this abduction deprived the
Court of jurisdiction over the subject matter, and the
Court of Appeals has not considered that point. It is
difficult to see how counsel can make that argument in good
faith in light of the fact that a court is duty bound
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to raise the question of jurisdiction over the subject
matter on its own motion, even if the issue is not placed
before it, e.g. Defiance Water Co. V. Defiance, 191 U.S.
184 (1903); United States V. Bradford, 194 F. 2d. 197
(C. A. 2) cert. denied 343 U.S. 979 (1952), and here the
operative facts and chief cases were brought to the Court's
(4)
attention.
The contention that three extremely able and
experienced judges -- Chief Judge Swan and Judges Chase and Frank --
did not consider this point because petitioner used the label
"personal" jurisdiction, is not only an insult to their intelligence
but it completely ignores the Court's specific statement that
"(u)nder Rule 34, motions in arrest of judgment are
allowed only (1) where the indictment charges no offense and
(2) where the court has no jurisdiction over the offense charged.
This situation we think, falls into neither category." 195 F. 2d
at 603 (Emphasis supplied).
(4)
Indeed, both Sobell's brief on appeal and his
petition for writ of certiorari set forth
substantially the same arguments he now raises.
Moreover, in his petition for certiorari, the
allegedly misleading "personal" label was
dropped from his discussion of the juris-
dictional problems raised by the alleged
kidnapping.
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Further, Sobell's counsel concede that
there would have been no question of the court's power to
try Sobell for the offenses charged had it not been for
the manner of his apprehension (T-95). Thus by counsel's
own admission the only lack of power was that over Sobell's
person, and the rule is clear that in a criminal case a
court has jurisdiction of the subject matter if it has
jurisdiction of the crime charged. Moreover, without
exception, every single case which petitioner cites
to uphold his position makes it patently clear that the
jurisdictional question involved in all cases of irregular
seizure of fugitives is the question of jurisdiction
(5)
over the person of the defendant.
In the Cook case,
(5)
Johnson V. Browne, 205 U.S. 309 (1907);
Cosgrove V. Winney, 174 U.S. 64 (1899) :
United States V. Rauscher, 119 U.S. 407 (1886);
United States V. Mulligan, 74 F. 2d 220
(C.C.A. 2, 1934);
United States V. Ferris, 19 F. 2d 925
N.D. Calif. 1927
All the other cases cited in petitioner's
brief similarly point up the fact that
irregular seizure raises solely the question
of defendant's personal right to be free of
the jurisdiction of an otherwise competent
court. These other cases are not relied on
by petitioner, however, as they are all
completely contra to his present position,
and he cited them only in an attempt to
distinguish them. The futility of his
attempt and the inapplicability of even those
cases he has relied on will be discussed
infra.
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upon which defense relies so heavily, jurisdiction over a
"person" was not involved as the case concerned the court's
jurisdiction to forfeit a British vessel, illegally seized
on the high seas, and it was clear that the sole question
(6)
was the court's power over the specific vessel.
Further,
in every one of the cases where relief was granted,
(7)
the jurisdictional issue was timely raised.
Indeed
in the case of Ford V. United States, 273 U.S. 593 (1927) -
a case on all fours with Cook -- petitioners were denied
relief because the jurisdictional question had not been raised
on time.
It is apparent, therefore, that no jurisdictional
question other than that of personal jurisdiction was raised
by the problem of irregular seizure, or else the Court
would not have found a waiver.
It is clear that potitioner's present
(6)
I shall spell out the details of the Cook
case, infra.
(7)
See the five cases cited in footnote (5)
supra and United States V. Cook, supra
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argument re jurisdiction is but a twice-told tale in new
semantic guise. He seems to believe that by the mere
device of changing attorneys and relabeling his claims,
he may return to court time after time with the same basic
argument. The petitioner speaks of justice, (b) ut justice (8)
though due to the accused, is due to the accuser also,"
and it is due also to the Court which in its role of defender
of justice must conscientiously wade through the voluminous
briefs, affidavits and cited materials seeking merit in a
contention SO devoid in legal basis as to make its presenta-
tion tantamount to an abuse of process.
B.
THE TRIAL COURT HAD JURISDICTION
Although the fact that this motion is but
another attack on the court's personal jurisdiction is
sufficient reason in itself to deny the first petition, I
find that the jurisdictional ar gument presented is totally
lacking in merit, and I shall briefly consider it here,
regardless of the principles of waiver and res judicata, lest
petitioner urge that he is being deprived of his freedom
on a mere technicality. Although this Court cannot consider
these basic rules of waiver and res judicata to be "a mere
technicality", nevertheless in the case of this petitioner
(8)
United States V. Insull, 8 F. Supp. 310, 313
(N.D. Ill. 1934)
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I prefer that my decision not be based solely upon
these fundamental legal principles but that it also rest
upon a consideration of the merits.
Petitioner's contention with regard to
this jurisdictional question is that his seizure violated
a treaty, and the courts are bound to uphold the treaty
which is the law of the land by finding the United States
government to be devoid of power to proceed against him.
He argues that Cook V. United States, 288 U.S. 102 (1933)
is controlling here. In that case, the United States
had seized a British vessel on the high seas and had started
forfeiture proceedings against it for violation of the pro-
hibition laws. Because of the liquor smuggling problem
during prohibition, the United States and Great Britain had
entered into a treaty which permitted British ships to
enter United States ports with personal liquor stores on
board in return for permitting the United States to seize
British smugglers while still on the high seas, if they
were within one hour's sail of this country. The ship
Mazel Tov had been seized beyond that distance; thus the
seizure had been in direct violation of the treaty provisions
and the court held that it had no jurisdiction to condemn
the vessel.
The court at that time distinguished
situations where American ships had been seized in foreign
waters for violation of American law. Such seizures were
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in violation of international law, but the Court said
this did not operate to deprive the courts of jurisdiction.
The Richmond, 13 U.S. (9 Cranch) 102 (1815); The Merino,
22 U.S. (9 Wheat.) 391 (1824). Thus the distinction
that petitioner relies upon is that where a specific treaty
is violated, as opposed to general international law, the
courts will find themselves powerless to act.
This distinction is vital to his argument,
as he leans upon it entirely in his attempt to avoid the
controlling principle of law which the courts of this
country have followed for seventy years. The rule is
that a seizure of a fugitive on foreign soil in violation
of international law will not deprive the courts of the
offending state of jurisdiction over the person of the
fugitive when he is brought before them.
The question
of violation of international law, they have continuously
reiterated, is to be left to the proper consideration of
the political and executive branches of the government
(9)
should the offended state choose to raise the issue.
(9)
Ker V. Illinois, 119 U.S. 436 (1886) :
United States V. Dixon, 73 F. Supp. 683
(E.D. N.Y. 1947);
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In In re Johnson, 167 U.S. 120, 126 (1897)
the Court used the following language to explain its rationale:
"The law will not permit a person to be
kidnapped or decoyed within the jurisdiction
for the purpose of being compelled to answer
to a mere private claim, but in criminal cases
the interests of the public override that
which is, after all, a mere privilege from
arrest."
This principle has been followed again and again, in case
after case involving charges of illegal abduction of a criminal
defendant from another state or country -- cases which
petitioner has tried to distinguish on erroneous grounds
completely contrary to the language of the courts themselves
(See cases cited footnote (9) Supra). This principle was most
recently re-affirmed in Frisbie V. Collins, 342 U.S. 519 (1952).
That case - decided after McNabb V. United States, 318 U.S.332
(9) Cont'd United States V. Insull, 8 F. Supp. 310
(N.D. Ill. 1934);
Ex parte Lopez, 6 F. Supp. 342 (s.d. Texas 1934);
United States V. Unverzagt, 299 Fed. 1015
(W.D. Wash. 1924); aff'd 5 F. 2d 492
(C.C.A.9), cert. denied 269 U.S. 566 (1925).
This listing does not include the numerous
decisions reaching similar conclusions regard-
ing interstate abductions, e.g. Pettibone V.
Nichols, 203 U.S. 192 (1906); Mahon V. Justice,
127 U.S. 700 (1887).
See also 1 Moore on Extradition, Chap. VII.,
Irregular Recovery of Fugitive.
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(1942) had extended the courts' role as supervisors
of the administration of justice - indicated clearly
that not only are there no jurisdictional issues raised by
such abductions but there are no due process problems
involved either. Speaking for a unanimous Gourt, Mr.
Justice Black stated:
"This Court has never departed from the
rule announced in Ker V. Illinois,
119 U.S. 436, 4444, that the power of a
court to try a person for crime is not
impaired by the fact that he had been
brought within the court's jurisdiction
by reason of a 'forcible abduction'.
No persuasive reasons are now presented
to justify overruling this line of cases
They rest on the sound basis that due
process of law is satisfied when one
present in court is convicted of crime
after having been fairly apprized of
the charges against him and after a
fair trial in accordance with constitutional
procedural safeguards. There is nothing
in the Constitution that requires a court
to permit 2. guilty person rightfully
convicted to escape justice because he was
brought to trial against his will."
One exception to this general rule follows
where the United States has invoked an extradition treaty
in order to compel a foreign state to surrender a fugitive.
In such circumstances, if the United States then tries the
fugitive for a crime other than the one for which extradition
was granted, it will be held to have violated the contractual
obligations of the treaty and the courts will find themselves
to be without jurisdiction over the defendant, unless he waives
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this issue. This rule was enunciated in United States
V. Rauscher, (supra); and followed in United States V.
Mulligan (supra) ; Cosgrove V. Winney (supra) and Johnson V.
Browne, supra. The compatibility of the Rauscher and Ker
doctrines is illustrated by the fact that both were decided
on the same day with the same Justice writing for the Court.
Ker clearly distinguished the Rauscher situation as one
in which the fugitive is clothed in the rights of the treaty.
It is patently obvious that Sobell is clothed
in no such treaty rights. He urges that the fact that there
was an extradition treaty in force in itself protected him
from seizure or surrender save with reference to it and
that his seizure was thus violative of its provisions. This
same argument was made by Ker who was kidnapped from Peru
by a United States emissary despite the existence of an extra-
dition treaty, and his contentions were rejected. The
Court pointed out that the sole obligation the surrendering
state undertakes in an extradition treaty is that it will bind
itself to extradite fugitives sought for certain enumerated
offenses, where formerly it could have used its own discretion.
And the sole obligation of the demanding state is that if it
invokes formal extradition proceedings, it will try the
surrendered fugitive only for the specific crime charged.
Informal expulsion procedures are still available to the
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surrendering state both for enumerated and certainly for non-
enumerated crimes, see IV. Hackworth, Digest of Inter-
national Law, Chapter XII., and if the demanding state
recovers its fugitives through illegal channels in
violation of another nation's sovereignty, that creates a
question for the political branches of the government, but
does not raise any concerning judicial jurisdiction. See
Moore, op. cit.
Thus the petitioner is certainly not within
the rule of the Rauscher case, nor is his situation even
(10)
remotely similar to that of the British ship seized in Cook.
Further, his own allegations indicate that the Mexican
Police were the chief actors in his abduction, although
he charges that they were acting illegally. This means
his argument is blocked also by the rule that even a diplomatic
demand for the return of an illegally seized fugitive need
not be honored where officials of the asylum state took part
in the illegal seizure. Note, Kidnaping of Fugitives from
Justice on Foreign Territory, by Lawrence Preuss, 29 American
Journal of International Law 502, 507 (July 1935). It is
noteworthy that the petitioner has not even suggested that
(10)
The sole remaining case cited by Sobell
as supporting his position is United States
V. Ferris, 19 F. 2d 925 (N.D. Calif. 1927),
and that case is on all fours with Cook.
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such a demand was ever made by Mexico.
It is clear that Sobell's argument that
this Court lacked jurisdiction to try him because of his
alleged illegal abduction would have been rejected as
completely fallacious even had it been timely raised, and
this is undoubtedly the reason his adroit lawyers
refrained from making this motion among their numerous
other applications for pre-trial relief.
Since the trial courts undoubtedly had
jurisdiction over the subject matter, we shall now proceed
to examine the second motion in order to determine whether the
prosecution's actions were of such a nature as to deprive the
petitioner of his constitutional rights, and vitiate the
proceedings.
II. SOBELL'S CONTENTION THAT HE WAS DENIED
DUE PROCESS OF LAW.
Sobell's contentions here are that the
prosecution suppressed evidence, knowingly introduced
perjured testimony and (11) false evidence, and made misrepresenta-
tions to the court.
Since his contentions are based in
(11)
The law is clear that if the prosecution
knowingly either introduces perjured
evidence against a defendant, or suppresses
evidence favorable to him or makes mis-
representations to the court during the
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part upon occurrences at the trial, I shall set forth
the relevant background briefly.
The direct evidence against Morton Sobell
fell into two categories. First, Max Elitcher, a close
friend, testified that Sobell had taken an active part in the
conspiracy and had attempted to get him to reveal secret
information concerning the national defense. This testimony
was totally damning and convincing to the jury, and he was
subjected to an intensive and exhaustive cross-examination
(12)
by the attorneys for both defendants.
The court charged the
jury specifically that they were to acquit Sobell if
(11) cont'd
trial, that defendant is entitled to
relief pursuant to Section 2255. The
cases cited by petitioner all merely
illustrate these well known maxims
by which I must be guided. I do not
set them forth at length here because
there is no controversy as to the guiding
rules of law, there is merely a question
as to whether petitioner's allegations
make out a case under them.
(12)
Elitcher's cross-examination lasted
two days and occupied 121 pages in the
printed record. R-264-379, R-388-394.
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they did not believe Elitcher.
The jury convicted.
In short, the defendant was clearly proven to be an arch
conspirator with the Rosenbergs in their plan to commit
espionage against the United States by trafficking in our
deepest military secrets -- a crime of the highest magnitude.
The second category of evidence against
Sobell related to his intent to flee the country. It had
been brought out previously by David Greenglass that Julius
Rosenberg, the head of the espionage ring, had urged him
and his family to flee if the FBI started to close in,
and had given Greenglass $4,000. to flee to Mexico and thence
to Europe via Tampico. (R-522-537). Subsequently, it was
established that Sobell had gone to Mexico with his family
in the spring of 1950. He had gone openly and under his
(13)
own name;
however, it was shown without contradiction
(13)
It is noteworthy that the prosecution
made no mention of Sobell's manner
of departing from this country, and
that his own attorneys did not see fit
to introduce the airline manifests
which showed that the family had
traveled under its own name, although
the defense did argue this point in
summation. (R-1502-1504).
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that while in Mexico Sobell had traveled to both
Tampico and Vera Cruz using aliases; that he had
inquired as to how he might leave Mexico for Europe
without proper papers; that while in Tampico and Vera
Curz he had enclosed letters to his wife in Mexico City
in unmarked envelopes sent to a neighbor; and that while
in Mexico he had sent letters to his family in America,
not directly, but enclosed in envelopes which listed
false names as return addressees, and he had sent these
envelopes to a friend requesting that he forward the
letters. These facts were brought out by six dis-
interested witnesses, and the defense made no attempt to
cross-examine them and even conceded the use of several
of these different aliases.
William Danziger, an old friend of Sobell's,
testified that he had received letters from an M. Sowell
and M. Levitov as the return addressees residing in Mexico;
that he had opened them and found a note from Sobell request-
ing that he forward the enclosed letters to other members of
the Sobell family. Sobell also requested Danziger to tell
another relative that Sobell could be reached under the name
of M. Sowell at a specified street address in Mexico.
Danziger was not cross-examined. (R-857-867).
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Thereafter, the government called to the
stand Manuel Giner De Los Rios, a neighbor of the Sobells
in Mexico City. De Los Rios testified that Sobell had
approached him for information as to how E. person could leave
Mexico without papers, saying that he was afraid to return
to the United States because he did not want to go back into
the Army, having already experienced one war. (R-922).
It was subsequently shown that Sobell had never been in the
Army, having been continually deferred. (R-955). De Los
Rios also testified that Sobell had left his family and
traveled to both Tampico and Vera Cruz. He knew this because
during Sobell's absence, he had received two unmarked
envelopes bearing postmarks from those two cities; inside
each he found a letter beginning "Dear Helen" (the name
of Sobell's wife), and he had turned both letters over to
Mrs. Sobell. Again there was no cross-examination.
(R-924-926).
Subsequently, Minerva Bravo Espinosa,
a clerk in a Vera Cruz optical store, testified that Sobell
had ordered a pair of glasses from her using the name M.
Sand, and defense counsel conceded this fact. (R-927-930).
Similarly, Jose Broccado Vendrell testified that Sobell had
registered at his hotel in Vera Cruz as Morris Sand;
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again this fact was conceded and there was no cross-
examination. (R-931-932). Dora Bautista, a hotel clerk
in Tampico, testified that Sobell had registered in her
hotel as Marvin Salt, and this too was conceded. (R-933-
934). Glenn Dennis, an official of the Mexican Airlines,
was called to testify, and via his testimony and defense
concessions it was established that Sobell had flown from
Vera Cruz to Tampico under the name of N. Sand, and
from Tampico to Mexico City under the name of Morton
Solt. (R-935-938).
Not once during the trial did the defense
attempt to explain the strange actions of this man and thus
eradicate the impression of flight and guilty consciousness
thus created. In summation defense counsel merely
referred to these actions as "a brainstorm which he said
was none of anyone's business. (R-1503-1504).
Immediately after these "flight" witnesses were
called, the government attempted to introduce an immigration
manifest card noting Sobell's return to the United States; the
card was marked "deported from Mexico". The government
attempted to introduce it as a record made in the ordinary
course of business by the Immigration Service, but upon ob-
jection, the card was not allowed into evidence until the
following day when James S. Huggins, the Immigration Inspector
who had filled out the card, was flown to New York from Texas
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to authenticate it. He testified that the card was
made out in the regular course of his duties, that he had
obtained the information on it from Sobell himself when
Sobell was brought to the border, except for the information
regarding Sobell's "deportation". He explained that he had
made the notation based on his personal observation that
Sobell had been brought across the border by Mexican police.
Despite repeated insistent questioning by defense counsel, he
never suggested that he had made the entry because of any
official information given him by the Mexican authorities
or agents. He reiterated that the entry was based solely
upon his observations at the time, and that he obtained
Sobell's signature by telling him that all deportees must
sign such cards. (R-1025-1037).
It is largely upon Huggins' testimony that
petitioner bases his claims regarding suppression of evidence
and perjury.
A.
THERE WAS NO PERJURY
It is the petitioner's contention that
Huggins perjured himself when he testified that Sobell had
been deported as he then well knew that Sobell's seizure
had been contrary to Mexican deportation procedure; and the
prosecution was allegedly in possession of this information
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also. Petitioner urges that this was harmful as it
erroneously gave the jury the impression that Sobell's
expulsion had been ordered after Mexico had made a prior
determination of his guilt via a legal demortation proceeding.
This contention is clearly refuted by the
cold record which shows that time after time Huggins insisted
that his notation was not based on official sources, but was
based solely upon his own observations of Sobell's summary
ejection. It is entirely clear that he was using the word
"deported" to mean expelled or ejected, and clearly even
Sobell must have understood the notation to have that meaning
as he himself signed the card when told that all deportees
must do so,
It should also be noted that in summation,
Mr. Kuntz, Sobell's attorney, pointed out that Sobell had
not been legally deported from Mexico; he argued that if
Sobell had been deported the government would have shown it by
other more competent evidence. (R-1.505-1506). When Mr. Saypol,
the prosecutor, summed up, he nowhere stated -- or even in-
ferred -- that Sobell had been legally deported, but stated
instead that "the FBI caught up with him and brought him back
and you have him here. if (R-1534). Patently, this does not
show an attempt by the prosecution to create the impression of
legal deportation as is now charged. Manifestly, it was the
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prosecution's intention to use Huggins' testimony to
point up that Sobell's return to this country had been
involuntary. Thus it was the natural capstone to the clear
and convincing testimony regarding Sobell's attempt to flee.
Obviously, the defense attorneys also believed this was the
sole purpose of introducing that evidence. They did not even
attempt to bring the question of improper deportation pro-
cedures to the attention of the Judge out of presence of the
jury -- a device they had frequently employed throughout the
trial -- despite the fact that 24 hours elapsed between the
time defense counsel saw the immigration manifest and the time
that it was finally introduced into evidence via Huggins'
(14)
testimony.
(14)
Upon oral argument of the present motion,
the petitioner's counsel made an issue
of the fact that the prosecutors have not
submitted affidavits with regard to their
purpose in introducing Huggins' evidence.
This type of argument completely disregards
the cold, stark reality, that it is not
what the prosecution intended that matters
but what Huggins actually said and did.
And I am sure that had such affidavits been
introduced to show that the prosecution sought
only to establish involuntary return, not
legal deportation, the petitioner's attorneys
would have insisted just as vehemently that
the prosecutors' state of mind was completely
immaterial.
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Clearly Huggins' testimony was not perjurious,
nor was the manifest falso, as it could rise no higher than
Huggins' explanation regarding the "doportation" notation.
Thus petitioner's allegations of perjury are completely
unfounded.
B. THE GOVERNMENT DID NOT SUPPRESS ANY EVIDENCE
(1) It did not suppress evidence
regarding Sobell's alleged abduction.
Sobell's first contention regarding suppression
of evidence is that the government suppressed the fact that
he had been illegally abducted, both before trial and during
it. I shall first deal with the prosecution's conduct
before trial.
It is hornbook law that the prosecution
cannot suppress evidence or facts if they are known to the
defense, and if it is true that Sobell was abducted, this
fact was clearly and admittedly within the possession of
Sobell and his counsel before the trial. Indeed, his
affidavit makes it clear that Sobell knew that this alleged
illegal seizure was highly irregular. The petitioner now
alleges that the defense was not in possession of sufficient
facts showing that the FBI had instigated this procedure as
is charged now --- but this is hard to believe in light of
Sobell's assertions in his first affidavit, submitted in
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support of his motion in arrest of judgment, - that an FBI
agent was waiting for him on the Mexican side.
Further, there is no duty upon a prosecutor
to present to the court a question which an intolligent and
well-represented defendant sees fit not to raise on his own
behalf, and which if raised, would be based necessarily on an
argument that the Suprome Court should reverse a 70 year old
(15)
rule of law.
Dealing next with the contention that the
prosecution should have brought out the facts regarding the
alleged kidnapping during the trial -- I cannot see in what
way this would have been beneficial to Sobell, nor quite
obviously, could Sobell's trial attorneys for they saw fit
not to raise the issue before or during the trial. Even if
this story might have created some sympathy for the defendant,
it was incumbent upon the defense to raise this issue, if
indeed the embellishments were not a figment of Sobell's im-
agination.
Since the defense had not seen fit to object to
Sobell's alleged abduction, there was no ground upon which
(15)
That this jurisdictional issue could
be waived and that the law would have
been contrary to the petitioner's
assertions, assuming he had decided to
raise this issue, was spelled out in
my discussion of his first motion infra.
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evidence regarding his involuntary return could be kept
out, and as I previously pointed out, Huggins did not
perjure himself. He merely stated that Sobell had been
brought to the border by Mexican Secret Police tnd he
stated further that the FBI was waiting for him.
The petitioner now contends that to rebut
Huggins' testimony of seemingly routine expulsion, the
defense would have had to put Sobell on the stand and that
forcing this choice was unconstitutional. There are
three grounds for rejecting this argument, each suf-
ficient in itself.
First, factually, this is not SO. There
were other available means of telling Sobell's story:
(a) Sobell's own affidavit attests that Mrs. Sobell
was a witness to the abduction; she was in court, but
Sobell saw fit never to ask her to testify. (b) The
record indicates that the defense had subpoenaed certain
Mexican official documents -- but decided not to
introduce them. Indeed, a representative of the Mexican
government was in court and was excused by the defense.
(c) The defense did not even cross=exemine Huggins on this point
in an attempt to elicit from him that Sobell was in an obviously
dazed condition, garbed in blood spattered clothes and
that he complained to Huggins of his mistreatment, as
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petitioner now avers. As the Court of Appeals for the
District of Columbia Circuit stated in Smith V. United States:
"The right to impeach ... witnesses and to
bring out on cross-examination the facts
as to the alleged misconduct of the police
are safeguards of appellant's right under
the due process clause to a fair trial."
187 F. 2d 192, 199 (C.A.D.C. 1950) cert.
denied 341 U.S. 927 (1951)
Second, the fact that Sobell might have
had to take the stand to present his story does not mean he
was denied his rights.
"The Constitution safeguards the right of a
defendant to remain silent; it does not
assure him that he may remain silent and
still enjoy the advantages that might have
resulted from testifying." Stein V. N.Y.
346 U.S. 156, 177 (1953).
And it is obvious that Sobell had more to
explain than just the testimony of Huggins; Huggins' notation
that he was "deported" from Mexico would have been practically
meaningless except in the context of the other witnesses
regarding his flight; witnesses to whom I have referred and
whose testimony Sobell does not challenge even now. It is
interesting to note that Sobell's first attempt to explain
his actions in Mexico came in an affidavit submitted on his
original appeal to the Court of Appeals, a most unusual pro-
cedure, wherein he stated that the arrest of Julius Rosenberg
made him think America was about to enter a state of totalitarian
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repression of free speech, that he decided to flee and
used aliases trying to find out how to leave Mexico
illegally and that he then changed his mind. This belated ex-
planation was never put before the jury, as he an' his attorneys
undoubtedly decided it would be wiser not to do SO.
Sobell may not now be heard to urgo that he is entitled to
a new trial because the defense strategy on the first
trial was not as soundly based as second guessing and
fictional fantasies subsequently created indicate to him
that it might have been.
if (It is) of the essence of orderly trials
that the right to counsel accorded to
defendants by the constitution be not
regarded, as the argument here would seem
to regard it, as a mere one way street
such that, if the strategy and tactics
of his trial counsel, in determining not
to raise constitutional questions, prove
unsuccessful, defendant ... may many years
later set it aside in order that, on another
trial with another counsel, another course
raising these questions may be taken and SO on
ad infinitum. 11 Bowen V. United States,
192 F. 2d 515, 517 (C.A. 5, 1951) cert.
denied 343 U.S. 943 (1952).
This principle set forth in Bowen is equally
applicable to the third grounds for rejecting Sobell's
argument. Even assuming that the introduction of the
evidence regarding his testimony was improper -- and I have
pointed out that this is not the case -- he is barred from
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raising that question now. Time after time the courts
have held that whenever knowledge was in the possession of
defense counsel turing trial of facts which either
established the impropriety of certain evidence, or even
cast doubts upon its admissibility, they are barred from
raising this question on a motion to vacate judgment.
Questions on the admissibility of improper evidence may be
(16)
raised solely upon appeal from the conviction.
"Where parties, even in a criminal case,
knowingly and deliberately adopt a course
of procedure which at thetime appears to
be to their best interest, they cannot be
permitted at a later time, after a decision
has been rendered adverse to them to obtain a
retrial according to procedure which they
have voluntarily discarded and waived."
Carruthers V. Reed, 102 F. 2d 933 (C.A. 8)
cert. denied 307 U.S. 643 (1939).
(2) No other evidence material to Sobell's
case was suppressed.
The petitioner also contends that two
documents which were seized from him at the time of his
abduction were suppressed; they are his tourist card and a
vaccination certificate. This contention is farcical on its
(16)
United States V. Lawrence, 216 F. 2d 570
(C.A. 7, 1954) ; Dauer V. United States,
204 F. 2d 141 (C.A. 10) cert. denied
346 U.S. 889 (1953); Klein V. United States,
204 F. 2d 513 (C.A. 7, 1953) ; Smith V.
United States, 187 F. 2d 192 (C.A.D.C. 1950)
cert. denied 341 U.S. 927 (1951)
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face, as Sobell knew of the evidence. He also knew who had it
and never sought its production, though he sought the
production of numerous other documents. Further, the two
items in question were not material to petitioner's case.
The first of these, his tourist card, could
have established merely that Sobell went to Mexico under his
own name; this was never denied or mentioned by the pro -
secution, and was specifically referred to by Mr. kuntz in
summation. Further, defendant's exhibits in this motion
indicate that Sobell's attorneys had manifests of the airline
on hand which clearly show ed he traveled in his own name,
They obvio usly decided, for trial strategy, not to
introduce them.
AS for the vaccination certificate, Sobell
claims this shows he intended to return to the United States
as it would be necessary for re-entry; he neglects to
mention that this was an international certificate equally
valid and equally necessary for entry into many foreign
countries.
(16) cont'd. Hilliard V. United States, 185 F 2d 454
(C.A.4,1950): Howell V. United states,
172 F. 2d 213 (C.A.4) cert, denied
337 U.S.906 (1949); United States V.
Kranz, 86 F. Supp. 776 (D.N J. 1949);
United States V. Cameron, 84 F. Supp. 289
(S.D. Liss. 1949)
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C.
THE PROSECUTION MADE NO MISREPRESENTATIONS
TO THE COURT.
Both alleged misrepresentations which I
shall hereafter set forth, were made to the Court by Mr.
Saypol after the verdict had been rendered, upon argument
of the motion in arrest of judgment. It is difficult to see
how by the wildest stretch of the petitioner's vivid
imagination these comments could have influenced the jury's
verdict. Loreover, his comments had no effect on post-
trial proceedings. Aside from my own personal recollections,
it is clear from the record that Mr. Saypol's renarks were
completely immaterial to the reasons behind the initial
denial of the motion in arrest of judgment; the denial was
based solely upon waiver, and Mr. Saypol's remarks did not
deal with that question. Finally, even if lr. Saypol's remarks
could conceivably be considered as having had any influence
upon the trial court- to say nothing of the Court of Appeals'
later independent determination of this question -- any
possible harm done was negatived by the facţ that petitioner
has here been given an opportunity to relitigate in full
the questions he raised on that first motion.
Since the remarks char ed to Mr. Saypol were
not false, however, and since I do not like to see men smeared
by baseless accusations, I shall deal with them briefly.
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First, when Sobell's initial petition was
read to the Court on the motion in arrest of judgment,
it contained language to the effect that, when arrested,
Sobell had tried to show the agents his visa.
Mr. Saypol pointed out "this very affidavit contains a
falsehood in the statement that there was exhibited amongst
other things to the Lexican authorities visas. Counsel
ought to know that his client never went into Mexico with
a visa. 11 (R-1598). That Sobell never had a visa is now
conceded by his attorneys; he had a tourist card, and
there is an appreciable difference between the two.
Second, Mr. Saypol is charged with having
told the Court that Sobell was "kicked out" as a denortee,
rwhereas in fact, Sobell was not legally deported. lr.
Saypol's statement has been lifted completely out of
context; he made that comment when characterizing the
contents of Sobell's own affidavit. He stated: "The
whole affidavit portrays certainly that this defendant
was not honorably escorted from Lexico but that literally
he was kicked out as a deportee. 17 That sentence speaks
(17)
for itself.
(R-1598-1599).
(17)
It is also interesting to compare
petitioner's present unfounded
accusations against the prosecution
with the statement by his defense counsel
after the jury delivered its verdict.
Mr. Kuntz stated: "I want to say to Mr.
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CONCLUSION
My consideration of the contentions urged
in petitioner's second motion leads me to the conclusion
that they are as utterly lacking in merit as are his
(18)
contentions regarding the Court's lack of jurisdiction.
(17) cont'd
Saypol as an officer of this court,
as one officer to another, I am willing to
shake his hand after a job that we both
had to do." (R-1583)
(18)
In short, I am led to the same con-
clusion that was reached by my colleague
Judge Ryan after he had examined the
contentions of all three defendants on
their first motion pursuant to
Section 2255.
"I have concluded ... that the
petitioners are entitled to no relief,
that the court which rendered judgment
had jurisdiction, that the sentences
imposed were authorized by law and
are not otherwise open to collateral
attack on any of the grounds urged by
the petitioners, and that full and
complete enjoyment of the constitutional
rights of petitioners has been extended
them and has in no way been denied or
infringed. if United States V. Rosenberg
and Sobell, 108 F. Supp. 798, 800
(S.D.M.Y.), aff'd. 200 F. 2d 666 (C.A.2,
1952), cert. denied 345 U.S. 965,
rehearing denied, 345 U.S. 1003 (1953).
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This petition is SO entirely devoid of
merit that perhaps it has been unduly dignified by the
minute consideration and analysis it has received in this
opinion. However, an effort has been made to lay to rest
with finality baseless contentions and accusations which
have been repeated not primarily to aid the petitioner but
rather to embarrass and injure our courts and country.
The ancient writ of habeas corpus -- to which
Section 2255 is analogous -- is one of the basic safeguards
of America's freedom. Its purpose is to ensure that no
man may be held in confinement in violation of due process of
law, and it imposes a strict duty upon all officials
connected with the government -- state, local or national.
But there is an equal duty imposed upon attorneys whose
obligation it is to uphold the law, and the dignity and in-
tegrity of the courts. It is their duty as officers of the
court to ensure that this great writ shall not be stripped of
its deep meaning through E. corrosive process caused by repeated
abuses of its processes. Four lawyers argued these motions
for Sobell, California counsel among them, and petitioner also
had the services of an expert on Mexican law. The two legal
memoranda submitted, which ran to over one hundred pages,
and the numerous lengthy affidavits and exhibits indicate
that an inordinate amount of time, money, effort and ingenuity
was put into this motion on petitioner's behalf. If Sobell
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were an unlettered prisoner, friendless and without
funds, attempting to cry out "unfair", his lengthy and
utterly meritless petition might not be such a gross
misuse of the judicial processes.
Under the governing rules of law, Sobell
has been given the benefit of any doubt. For that reason
all his allegations concerning the alleged brutality and
illegality of his abduction were assumed to be true for the
pruposes of these applications. Therefore, I have not
considered in this opinion the question of his veracity.
But I find it difficult to believe that a man who was seized
and blackjacked, as he claims, would not have immediat oly
shouted out this injustice to the world and would have
held silent for six months prior to his trial and then
throughout the trial, holding back his story as a
sort of trump card. Experience dictates that human beings
do not re-act that way.
The ease with which the potitioner
tars all associated with the prosecution in the face of a
clear record which proves the contrary is truly startling.
As was recently said of another prisoner who engaged the
courts endlessly with meritless petitions, 77 'He is
smart, shrewd and resourceful.' Thus he knows how to make
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charges SO wild
as to induce a concern for their
...
refutation that otherwise he would not command." United
States V. Tramaglino, Court of Appeals for the Second Circuit,
June 4, 1956.
From petitioner's unfounded attacks against
the men who conducted the prosocution of his case, it is
obvious that he believes in the broadside attack, painting
with broad stroke and recklessly maligning all who participated
(19)
in the process of bringing him to justice.
During the course of my deliberations on this
matter, as on other matters involved in this case from its
inception, there have been many attempts to bring extra-
judicial utterances and actions to my attention. Many of
these have been designed to influence judicial determination
in a way that is alien to our judicial process --- and in
some
instances they constituted a subtle attack upon it.
Freedom of speech should and does permit untrammeled dis-
cussion and differences of opinion, but judicial impartiality
requires that the courts be free from extrancous and con-
(19)
In this connection, it is interesting to
note that the petitioner brands the FBI
as an agency of oppression, ignoring its
reputation for high standards of fairness.
These high standards were recently praised
by the Court of Appeals for this Circuit in
an opinion by Judge Frank, who is well known
for his outspoken attacks on any form of
police brutality. See United States exrel.
Santo Caminito V. Murphy, 222 F. 2d 698,
703-704 (C.A.2,1955).
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flicting pressures. Therefore, the American judicial
systum has evolved its own safeguards and procedures
for arriving at the truth -- procedures which have with-
stood the test of the centuries. The se 2 cedures and
safeguards have been the sole guideposts for this Court.
The motions and the files and records
of this case show conclusively that the prisoner is entitled
to no relief. Notions denied.
Dated: New York, N.Y.
June 20,1956.
IRVING R. KAUFMAN
U.S.D.J.
Reproduced at Richard Nixon Presidential Library
Appendix
Address by Judge Irving R. Kaufman at
Kaufman's address and the courage and
The new Red line, he said, clearly means
brilliance of his remarks.
Russia "will aim a barrage of Communist
an Americanism Seminar Sponsored by
There being no objection, the edito-
propaganda and espionage at freedom-loving
countries the like of which we have never
the Minnesota American Legion
rials and articles were ordered to be
seen," and try to "coexist capitalism to
printed in the RECORD, as follows:
death."
EXTENSION OF REMARKS
[From the St. Paul Dispatch of April 17,
Thus it is essential that the entire world be
1956]
made aware of our success story, Kaufman
OF
JUDGE KAUFMAN ON POSITIVE AMERICANISM
said.
HON. HUBERT H. HUMPHREY
But, he added, Americans must guard
Positive Americanism requires a good deal
against striking "blindly at all who espouse
OF MINNESOTA
more than mere denunciation of commu-
an honest and decent cause merely because
IN THE SENATE OF THE UNITED STATES
nism, as Judge Irving R. Kaufman of New
the Communists are also paying it lip serv-
York emphasized in his American Legion ad-
ice."
Tuesday, May 22, 1956
dress here Saturday.
"Democracy," he said, "is based on a cal-
Appearing before the Legion's annual
Mr. HUMPHREY. Mr. President, re-
culated risk, a belief that free men exercising
Americanism seminar, the judge who pre-
cently one of America's distinguished
a free choice out of various competing ideas
sided at the espionage trials of Julius and
will exercise the widest choice possible."
jurists, the Honorable Irving R. Kauf-
Ethel Rosenberg pointed out that it is not
By smothering honest criticism "when we
man, judge of the United States district
always easy or popular to stand up for basic
ostracize the well meaning dissenter, we are
court in the State of New York, ad-
American principles of freedom.
not practicing democracy but are adding fuel
dressed an Americanism seminar spon-
It is an irony of human nature that periods
to the Communist fire," he said.
of emotional superpatriotism tend to de-
sored by the Minnesota American Legion
He cautioned against weakening the fifth
velop support for restrictions on personal
in the city of St. Paul, Minn. Judge
amendment, preserving the right against
liberty not countenanced by the United
Kaufman used as his theme the Bill of
self-incrimination, although he acknowl-
States Constitution. In such times the de-
edged there is "justifiable frustration among
Rights and commented extensively upon
fenders of traditional constitutional safe-
Americans because the Communists have
the historical background relating to the
guards may find themselves assailed as un-
been' invoking this privilege consistently."
fifth amendment and the recent abuse
patriotic, or as Communist sympathizers.
Americans who want to abolish the amend-
and misuse of that amendment by the
"Democracy can be preserved only by
ment because Communists have abused it, he
democratic methods," Judge Kaufman said.
Communists.
said fall into the Red trap by endangering
"When we stifle honest criticism and when
the same liberties the Communists want to
Judge Kaufman said:
we ostracize the dissenter, we are not prac-
destroy.
Democracy can be preserved only by demo-
ticing democracy, but are adding fuel to the
He said the Nation must maintain a con-
cratic methods. When we stifle honest criti-
Communist fire."
tinuing vigil on two fronts, against Red sub-
cism and when we ostracize the dissenter, we
Judge Kaufman's defense of the fifth
version and against the danger of labeling as
are not practicing democracy, but are adding
amendment illustrated his warning against
Communists all who disagree with the
fuel to the Communist fire.
impatience with democratic processes. The
majority.
fifth amendment has been used by Commu-
This is complicated by the fact that Com-
The editorial in the St. Paul Dispatch
nists for their own protection, but this does
munists "often parade in false dress as ad-
on April 17, 1956, summarized Judge
not alter the fact that this safeguard against
vocates of liberal causes," he said, adding.
Kaufman's address in these words:
forced self-incrimination "is fundamental to
"We cannot let certain worthwhile causes
our idea of justice," he stated. When borers
True Americanism includes living up to
become Communist property. We cannot
attack an apple tree, the judge commented,
our principles of liberty under law and mak-
permit a worthy movement to be defeated
"you eliminate the borer-you don't chop
ing democracy work for minorities and dis-
merely because a few Communists are at-
down the tree."
senters as well as for majority groups. The
tempting to infiltrate it."
Another point made by the jurist was that
Legion's seminar has been a constructive
at times the Communists pay lip service to
force in this direction.
certain good causes and ideals. Then honest
[From the Chicago Daily News of April 26,
citizens who stand up and defend these
1956]
It was Judge Kaufman who presided
same principles are sometimes "branded as
GUARDING LIBERTIES
at the espionage trial of Julius and Ethel
Communists or fellow travelers." This, said
Rosenberg. Judge Kaufman is known
United States Judge Irving R. Kaufman, of
Judge Kaufman, "is playing right into the
New York, will be remembered as the judge
as one of the great legal minds of our
hands of the Communists both here and
who sentenced Julius and Ethel Rosenberg,
time. He is a strong defender of free-
abroad."
the convicted spies. He thereby became the
dom and is an effective anti-Communist.
True Americanism includes living up to
target of a worldwide campaign of abuse,
His dedication to liberty and his abhor-
our principles of liberty under law and
sparked and fed by the Communists.
rence of any form of tyranny is well
making democracy work for minorities and
As one thus singled out for persecution,
dissenters as well as for majority groups.
known.
it is interesting to hear Judge Kaufman's
The Legion's seminar has been a constructive
I ask unanimous consent that the edi-
views on the subject of Communist causes.
force in this direction.
It has not clouded his thinking, as evidenced
torial of the April 17 St. Paul Dispatch
by his remarks to an American Legion au-
be printed in the Appendix of the RECORD,
[From the Minneapolis Sunday Tribune of
dience in St. Paul the other day.
I also ask unanimous consent that the
April 15, 1956]
He noted that Communists "often will be
news story from the Minneapolis Sunday
heard hypocritically in defense of certain of
UNITED STATES MUST GUARD LIBERTIES, JUDGE
Tribune of April 15 entitled "United
SAYS
our precious liberties-but these liberties do
States Must Guard Liberties, Judge
not become any less precious because Com-
Soviet Russia's efforts to "co-exist capital-
munists have temporarily decided to pay
Says," be printed at this point in my
ism to death" must be met by renewed vigi-
them lip service.
remarks; also the editorial from the Chi-
lance over American liberties, Judge Irving R.
"Yet, all too often, others who then speak
cago Daily News of April 26, and the
Kaufman said in St. Paul Saturday night.
out in favor of these same vital rights are
lead article in the Minnesota Legionnaire
The New York Federal jurist, presiding
branded as Communists, or fellow travelers,
of Wednesday, April 18, along with the
judge at the espionage trial of Julius and
for some believe in the old saying that:
news item of the St. Paul Pioneer Press
Ethel Rosenberg, said in a speech prepared
'Where there is smoke, there is fire.' I urge
for a Minnesota American Legion seminar
you, the next time you hear that familiar
of April 15.
this country can beat the Communists at
theme, don't rush blindly with an ax at the
These editorials and news stories bring
their own game if it honestly portrays its way
smoke thus created-you may chop a fire
to our attention the importance of Judge
of life to the world.
fighter instead of a fire."
A4093
Reproduced at Richard Nixon Presidential Library
A4094
CONGRESSIONAL RECORD APPENDIX
May 22
[From the Minnesota Legionnaire of April 18,
Emphasizing that the fifth amendment of
ileges of the fifth amendment "is playing into
1956]
the Constitution is "fundamental to our
the Communists' hands," he said.
JUDGE KAUFMAN WARNS THAT DEMOCRACY
idea of justice, to our belief in man's inher-
"All the Communists need to do is take
CAN ONLY BE PRESERVED BY DEMOCRATIC
ent dignity, and to our tradition that a man
refuge behind the very civil rights which we
METHODS-SEMINAR STRESSES POSITIVE
is innocent until proven guilty," he warned
know they are pledged to destroy and then
ASPECTS OF AMERICANISM
against weakening the strength of the fifth
others, fearful of being labeled subversive,
amendment even though there is a "justifi-
(Condensed text of Judge Kaufman's ad-
will shun the term 'civil rights' as a Commu-
able frustration among Americans because
nist label," he added.
dress.)
the Communists have been invoking this
Continued vigilance against Communist
Democracy can be preserved only by demo-
privilege consistently."
subversion while "equal vigil is maintained
cratic methods-"slow and plodding though
He declared that when Americans react by
they be," he said.
to insure that not all who disagree with the
summarily condemning the whole doctrine of
majority, politically or economically, are
INFILTRATION DANGER
the fifth amendment and urge its abolition
labeled Communist" was urged by United
"we fall into the Communist trap by endan-
Warning against Communist infiltration,
States District Court Judge Irving R. Kauf-
he said:
gering the very liberties they seek to destroy."
man, of New York City, in a banquet address
Stating that, "the best way to sell democ-
"If a few Communists try to infiltrate your
at the department's second annual Amer-
racy is to show that it works," Judge Kauf-
organization, don't abandon ship and hand
icanism Seminar in St. Paul Saturday.
man declared that failure to speak up for
them the organization as a gift. Fight back
Judge Kaufman, presiding judge at the
the rights of the honest dissenter is not
and clear them from your group."
trial of Ethel and Julius Rosenberg who were
only a failure "to live up to that heritage of
The United States can beat the Commu-
convicted of espionage for revealing atomic
freedom which our ancestors fought to pre-
nists at their own game if it honestly por-
secrets to a foreign government, declared
serve, but we also lose another battle of
traysi way of life to the world, he said. The
that democracy can be preserved only by
words and ideals we are waging with Mos-
new Communist line means that Russia "will
democratic methods-"slow and plodding
cow."
aim a barrage of propaganda and espionage
though they be."
The Federal jurist concluded by warning
at freedom-loving countries the likes of which
Warning that "when we stifle honest criti-
that, "we must never become so completely
we have never seen. They will try to CO-
cism and when we ostracize the well-mean-
exist capitalism to death."
consumed with this ever-present Communist
ing dissenter, we are not practicing democ-
threat that our thinking is motivated by what
Thus it is essential the entire world be told
racy, but are adding fuel to the Communist
we hate rather than by our love of the Amer-
the American success story, he added, and
fire," he emphasized that an "important
ican way. Unfortunately, some of us have
that freedomwise "we practice what we
basic concept of our democracy is that only
preach."
begun to hate each other-particularly when
when people are given free access to all dif-
The seminar was held at the Hotel St. Paul.
we are in disagreement over some funda-
ferent competing viewpoints can they recog-
mental issue. It was a condition that led a
nize the truth and thus choose wisely."
contemporary philosopher to warn that, "If
Judge Kaufman was the principal speaker
we permit our hatred of Russia to replace
at the banquent, concluding event of the 1-
our love of the American dream as the moti-
Low-Cost Electric Power Systems
day seminar. Speakers at the afternoon
vation of our lives, we will have accorded
session included Department Commander
Communism the greatest tribute to which
Dan Foley, Wayne Murphy, national research
EXTENSION OF REMARKS
any dogma may aspire, the power to dictate
director of the American Legion, Hennepin
the thinking of its enemies."
OF
County Sheriff Ed Ryan, and National Com-
Highlights of the afternoon session was the
HON. ROBERT S. KERR
mitteeman Carl Lundgren. The afternoon
skit presented by University of Minnesota
program included a dramatic and revealing
dramatic club members under the directtion
OF OKLAHOMA
skit on Communist tactics presented by the
of Dr. Arthur Ballet. It graphically demon-
IN THE SENATE OF THE UNITED STATES
University of Minnesota theater. Miss Gas-
strated how Communists infiltrate an organ-
perlin, of St. Cloud Cathedral High School,
ization and take over a meeting without
Tuesday, May 22, 1956
gave the prepared talk she gave as a finalist
well-meaning members even knowing what
Mr. KERR. Mr. President, I ask
in the department oratorical contest.
has happened. It stressed the importance of
Emphasis was placed on the positive as-
unanimous consent to have printed in
being ever alert to these undermining tactics
pects of Americanism and how the various
the Appendix of the RECORD an article
and demonstrated how doing things in the
programs of the American Legion can be
democratic way is the best safeguard against
entitled "People's Electric Systems Must
utilized as a potent force in the battle
the Communist threat.
Work Together for Abundant, Low-Cost
against communism and all forms of subver-
Featured players were William Phelps, Neil
Power," written by Clyde T. Ellis, and
sion. Although stressing the positive ap-
Hofland, James Stapleton, Thomas Quigley
published in Public Power magazine for
proach, the various speakers warned against
John Blue, Jerry Rumley, Jerry Ness, Janis
May 1956.
relaxing our vigilance against the ever-in-
Benson, Philip Benson, and Kallista Mav-
There being no objection, the article
creasing Communist menace.
roulis. The script was written by Phillip
Wayne Murphy, one of the Legion's lead-
Gelb, of KUOM, the University radio station.
was ordered to be printed in the RECORD,
ing authorities on subversion and counter-
as follows:
C. B. Howard, special agent for the Federal
subversion, pointed out that the basic aims
Bureau of Investigation, was also scheduled
PEOPLE'S ELECTRIC SYSTEMS MUST WORK To-
of the American Legion have not changed
to speak at the afternoon session, but was
GETHER FOR ABUNDANT, Low-Cost POWER
since 1919 and emphasized that "teamwork
unable to appear.
(By Clyde T. Ellis)
is our greatest asset."
Today, 20 years after the passage of the
Although warning that "we can't win this
kind of warfare by remaining silent," Mur-
[From the St. Paul Sunday Pioneer Press of
Rural Electrification Act of 1936, not only
phy declared "we don't need any vigilantes."
April 15, 1956]
the farmers' rural electric systems, but many
NEW YORK JUDGE SPEAKS HERE-FIFTH AMEND-
of the municipally-owned systems as well,
Sheriff Ryan, stressing the importance of
are in trouble.
combating bigotry at home, also warned
MENT DEFENDED
They are in trouble first, because in most
against the vigilante method, and urged that
A prominent New York jurist Saturday cau-
of the country no good method has been
anyone having information about suspected
tioned against any weakening of the fifth
found for tying together for maximum ef-
Communists turn that information over to
amendment despite its use as a refuge by
ficiency those consumer-owned electric sys-
the Federal Bureau of Investigation.
Reds.
tems better known as municipals, power
Murphy called the Legion's Americanism
Judge Irving R. Kaufman, the United
districts and cooperatives. They are in
program a two-fold program consisting of the
States district court judge who presided over
trouble secondly, because the so-called pri-
positive or educational phase and the actual
the trial of atom spies Ethel and Julius
vate-power companies, having themselves
fight against subversion. In discussing
Rosenberg, said Americans who want to abol-
achieved the efficiencies of integration by
counter-subversive activity, he said it "re-
ish the amendment fall into a Communist
fair means and foul, are now pouring fabu-
quires mental and moral courage that many
trap "by endangering the very liberties the
lous sums into propaganda, lobbying, and
people are unwilling to demonstrate." He
Communists seek to destroy."
public relations campaigns to convince the
sees the chief problem of counter-subversive
Speaking at an Americanism seminar spon-
American people that their monopolies
activity as getting people on the local level
sored in St. Paul by the Minnesota American
typify the American way and that the con-
aware of a definite responsibility to advance
Legion, Judge Kaufman said the idea that a
sumer-owned systems do not.
both phases of the Americanism program.
man should not be compelled to bear witness
All of them realize more and more that the
Judge Kaufman, meanwhile, pointed out
against himself "has been fundamental to
cooperative position is vulnerable and in-
that "democracy is based on a calculated
our idea of justice in the courts, to our belief
secure, but perhaps few know that there are
risk-a belief that free men exercising a free
in man's inherent dignity and to our tradi-
certain interests who would like to eliminate
choice out of various competing ideas will
tion that a man is innocent until proven
entirely the REA cooperatives. To most CO-
exercise the widest choice possible-America's
guilty."
operative members, the Hoover Commission
history over the past 175 years has justified
Casting out that doctrine and labeling as
report is something vague and remote. They
continued faith in that belief."
Communists all who want to retain the priv-
do not see that those who support the Hoover
Reproduced at Richard Nixon Presidential Library
United States District Court
United States Courthouse
Tyo
Joley Square, New York 7
CHAMBERS OF
judge IRVING R. kaufman
pile
May 2, 1956
My dear Mr. Vice-President:
I was certainly touched by
your kind letter of April 26th.
I particularly appreciate
the fact that you would take time out
during your terribly busy schedule to write
me as you did.
I, too, hope there will be
an opportunity for us to talk again in the
near future.
With every good wish,
Very cordially,
Vice-President Honorable Senate Building Richard M. Nixon Juniq R.Kanfuna
Washington, D.C.
RECEIVED
MAY 3 1956
OFFICE OF THE VICE PRESIDENT
Reproduced at Richard Nixon Presidential Library
COPY
April 26, 1956
Dear Judge Kaufman:
The April 23 issue of the Congressional
Record proved to be an especially interesting one
for me because the full text of your recent address
before the Minnesota American Legion annual Amer-
icanism seminar was inserted by Styles Bridges.
To my mind, it is a particularly excel-
lent and timely speech, and it served to remind me
of our pleasant visit here in the office last Summer.
I hope there will be an opportunity for
Kaufman, Irving R. (The Hon - Judge)
us to sit down for a talk like that again before too
long.
With every good wish,
Sincerely,
folder
Richard Nixon
The Honorable Irving R. Kaufman
Judge, United States District Court
United States Courthouse
Congressional record
Foley Square
New York 7, New York
981 4-26-56
Reproduced at Richard Nixon Presidential Library
A3244
CONGRESSIONAL RECORD - APPENDIX
April 23
clearest kind of official statement by the
the development of the economy of the area
agonizing months after Pearl Harbor when
Government of our country that we will not
for the benefit of all the peoples who live
all we loved stood endangered. There is not
tolerate a breach of the peace in the Near
there.
one among us who did not pause at that time
East. In the name of our passion for peace,
There is, I think, no point in discussing the
to take stock of the wonderful way of life
in the name of right and our own self-
form such an arrangement might take. It
that was ours.
respect, let us make it indubitably clear that
is sufficient to say that there must first be
Today, we are again engaged in a mortal
the United States intends to stick to its
the willingness of the peoples of the area to
word and that we will not allow war to
struggle which has been thrust upon us.
work for their common good, and that it is
In this dread struggle, often called the cold
happen.
for those outside the area who are able, such
war, our weapons are political, economic
as the United States, Great Britain, France,
and ideological. This means that in the
You may ask: Why should we pinpoint
and I hope India, to contribute to the peo-
present conflict, even more SO than in former
our policy on the 1950 declaration which in
ples of the Near East whatever material help
ones, it is vitally necessary that we fully
essence operates outside the United Nations;
these people may wish, all to be given, I may
understand this heritage that is America, so
why should not the threats to the peace in
add, without strings and without any at-
that we can make it understandable to those
the Near East be handled entirely by the
tempt whatsoever to gain influence by the aid
whose trust, friendship and support is vital
United Nations?
which is given.
to our survival. The importance of our
There is, I think, good reason for not
But none of these things will be possible
awareness of the meaning of our heritage and
changing our policy of relying on the 1950
until the conditions of peace are established.
the necessity that we all have an under-
declaration.
The definitive peace treaty is therefore the
standing of our constitutional system can
Of course, the U. N. must be supported
critical point which will establish whether
best be demonstrated by a consideration
and made a world vehicle for peace. Unless
we can or cannot go forward to develop the
of the problems we face in this all-out strug-
we all back the U. N. and give it more and
Near East for the benefit of all the people who
gle we call the cold war.
more power there will be no lasting peace.
live there, and thereby to solidify the cause
In a convențional war, the problems of
We must support the work of the present
of freedom in that part of the world.
the combatants are relatively simple. We
Hammarskjold mission and all future efforts
All of this is for the longer run. The im-
know the enemy and the goal is to destroy
of the U. N. to help avoid war.
mediate steps must be the arming of Israel
him. But with the advent of hydrogen bombs
But we should not now cast on the world
and the firming up of the stand of the
and intercontinental ballistic missiles, it has
organization the main responsibility for the
United States on a policy of seeing to it that
become increasingly apparent, even to the
problems of the Near East. We will be doing
there shall be no violence by anyone in the
Russians, that neither side can win another
harm to the U. N. if we ask it to handle
Near East.
hot war. It is clear that a third world war
matters for which it is not prepared. To
With these two policies firmly carried out
probably would lead to annihilation of both
ask the U. N. to bring about a solution of
by our country I believe that we may look for-
sides, and destruction of civilization as we
the problems of the Near East at the present
ward to many more celebrations in honor of
know it. The fantasies of science fiction
time is to ask it to mediate between the great
the courageous, pioneering spirit of the
writers who describe the ruins of a post-
powers; and the U. N. is not ready to take
people of Israel.
atomic world are becoming less fantastic day
on this, the most difficult of tasks. We will
by day, as word is revealed to the public of
serve the U. N. better if the free world settles
the invention of more and more destructive
its own problems in the Near East and estab-
and ultimate weapons against which there
lishes stability in the area. We cannot, I
Americanism: Its Positive Aspects
is no defense, leaving us only to guess at the
believe, deal with Russia in the Security
scope of the implements of destruction still
Council until this stability has been estab-
shrouded in a veil of secrecy, created either
lished.
EXTENSION OF REMARKS
by us or by the masters of the Kremlin.
OF
This is not to say that the Russians have
With determined action of this kind we
HON. STYLES BRIDGES
completely abandoned all thoughts of an-
other hot war; a nation which has not hesi-
may retrieve a dangerous situation. Then
OF NEW HAMPSHIRE
tated to liquidate millions of its own citizens
will come the time for the long-term pro-
gram.
IN THE SENATE OF THE UNITED STATES
cannot be expected to shrink from the
thought of destroying lives elsewhere. But,
It seems fruitless to talk of long-term proj-
Monday, April 23, 1956
if we maintain our constant military vigil,
ects now, when the house is afire. I shall
Mr. BRIDGES. Mr. President, I ask
Russia will undoubtedly continue to keep
suggest only some broad lines of the long-
our struggle at the political and economic
term solution.
unanimous consent to have printed in
level.
The first and most important thing to do
the Appendix of the RECORD the address
Indeed, the recent new line emerging from
is to get a definitive peace treaty signed
entitled "Americanism: Its Positive As-
Moscow indicates quite clearly that the new
between Israel and Israel's neighbors.
pects," delivered by Judge Irving R.
Communist line is to co-exist capitalism to
As long as there is no peace treaty the
Kaufman at the dinner concluding the
death. At the recent 20th Communist Party
emergency will continue, the threat of war
will be with us, and we cannot think of
annual Americanism seminar of the
Congress, Nikita Khrushchev admitted that
"coexistence is only a means to an end-
long-term solutions.
American Legion Department of Minne-
the world transforming
sota, at St. Paul, Minn., on April 14,
complete
The boundaries in the peace treaty should
triumph of communism."
be the armistice lines which were guaran-
1956.
Speaking of the 900 million members of
teed by the 1950 declaration, with only minor
This is an outstanding address by a
the Communist conspiracy throughout the
mutually agreed upon adjustments.
distinguished jurist and a great Ameri-
world, he proclaimed that they were "in a
The peace treaty must solve the refugee
can. I feel that it is worthy of the at-
position to capture a stable majority in Par-
problem. The United States must be pre-
pared to help financially in this solution,
tention of the Members of the Congress
liament and to transform the latter from an
and the general public.
organ of bourgeois democracy into a genu-
and SO must Israel within her capabilities.
The Public Printer has advised me that
ine instrument of the people's will." If
The responsibility for the Arab refugees is
Russia plans to convert the world to com-
wider though than this. The reestablish-
the cost of this insertion will be $240.
munism by so-called parliamentary meth-
ment of the refugees in Israel is completely
There being no objection, the address
ods, this clearly means that Russia will aim
inconsistent with the continuation of the
was ordered to be printed in the RECORD,
a barrage of Communist propaganda and
State of Israel. The Arab refugees are world
as follows:
espionage at freedom-loving countries, the
responsibility, just as the plight of the Jews
AMERICANISM: ITS POSITIVE ASPECTS
like of which we have never seen.
in Europe and north Africa was and is a
That these tactics have been successful in
world responsibility. The Arabs should now
(Address by Judge Irving R. Kaufman at the
join the United States and Israel and the
dinner concluding the Annual American-
the past was clearly pointed out last year by
rest of the free peoples by accepting a spe-
ism Seminar of the American Legion, De-
the able Gen. David A. Sarnoff, chairman of
the board of RCA, and now Chairman of the
cial share of the responsibility for the re-
partment of Minnesota at St. Paul, Minn.,
April 14, 1956)
National Security Training Commission by
establishment of those who have been dis-
appointment of the President. He said:
placed.
Man's liberties never appear so precious
"Moscow has brought one-third of the hu-
I think too that the peace treaty should
to him as when he is in danger of losing
man race under its iron control by means
call for a substantial measure of disarma-
them. Thus it is, that in times of our Na-
short of a hot war-by shrewd diplomacy, de-
ment among all the states of the area. The
tion's greatest crises, we as a people have
ception, propaganda, the blackmail of
present armaments of the Near Eastern coun-
become acutely aware of our heritage of
threats, fifth-column subversion, guerrilla
tries are enough to enable them to fight each
freedom.
forces, and, where expedient, localized shoot-
other but are not enough to enable them
All of us here tonight have lived through
ing wars. These political and psychological
to defend themselves against an invasion
at least two terrible wars, many of us can
methods-the cold war-have paid off, at
from without by Russia.
remember a third. As former servicemen,
smaller risk and infinitely lower cost than a
Once the peace treaty is signed the con-
you each have your own most vivid memories
hot war would entail.
ditions for peaceful progress will exist. Then
of those harrowing years, but all of us share
"Accordingly they are being applied with-
we can set up a great cooperative effort for
in common the vivid memory of those first
out stint to the conquest of the rest of man-
Reproduced at Richard Nixon Presidential Library
1956
CONGRESSIONAL RECORD APPENDIX
A3245
kind. For world communism, with its high
walks and subways of New York City and the
to eat the worm. "Because," the boy tri-
command in the Kremlin in Moscow, the cold
rolling pasturelands and sparkling lakes
of
umphantly smiled through his tears, "you
war is not a temporary or holding operation,
this fair State.
ate the half I wanted."
nor a prelude to a hot war. It is the main
Yet, through all these differences, you have
Homely anecdotes often yield powerful
bout, the decisive offensive, conducted on an
perceived a sense of unity, a common set of
themes-and to me this story is a classic
unlimited scale, with total victory as its
goals, ideals and aspirations that link the
reminder that it is a good idea to check the
goal."
city dweller to the farmer, and the north-
rulebook before getting into the game.
The question is, therefore, how can we beat
erner to the southerner in ties that bind so
Similarly, when we attempt to formulate a
the Russians at their own game and with
closely that their other local differences can-
program of positive Americanism, it is wise
this main bout. Beat them, we can, for most
not pull them apart.
to look to the constitutional rulebook.
assuredly, our way of life if properly and
At this day-long seminar, you have been
A reading of the provisions of the Con-
honestly portrayed has infinitely more ap-
attempting to probe into this sense of one-
situation which comprise a comprehensive
peal than that found in the countires be-
ness that is America, and to evaluate its
scheme of governmental checks and bal-
hind the Iron and Bamboo Curtains. Basi-
credo in terms of Americanism, and in terms
ances, and of the Bill of Rights with its
cally, all people the world over want a de-
of a philosophy of everyday life. This aware-
safeguards for freedom of the individual and
cent home and a decent job-a chance to
ness of our country's diversity and faith in
the individual's right to speak-and a
live free of fear and free from want, and an
its unity is a basic necessity to any program
knowledge of the way that, from its in-
opportunity to exercise their religious be-
of positive Americanism. Tonight, I would
ception, this constitutional blueprint has
liefs freely. These are the ends which our
like to go further into this program of evalu-
been effectuated by a system of opposing po-
way of life has been providing for Ameri-
ation of our American heritage and of our
litical parties-make it apparent that a basic
cans-and it is essential that the whole world
living by the Constitution.
rule of our form of democratic government
know our success story.
The basic feature of our constitutional sys-
is the agreement that there is a right to
Since, unlike our Communist opponents,
tem is that the rules by which we live have
disagree.
we do not rewrite history or suppress news of
been written down SO that no ruler or gov-
Our Constitution provides a framework
the mistakes we make and the problems we
ernment can ever say that certain rights are
within which all men are free to express
cannot resolve, these men and women whose
not ours. This idea of a written embodiment
their opinions and to advocate their accept-
understanding and friendship we seek have
of rights can be traced to the 13th century-
ance in the free market place of ideas. So
constant access to the stories of our failures,
to the Magna Carta-when the British
long as the dissenter, the dreamer, or the
stories which are always grist for the Com-
barons forced King John to grant them cer-
dissident is content to purvey his ideas in
munist propaganda mill with its branches
tain rights-and they put these rights in
this free market place, not attempting to
throughout the world. Every time these
writing, under his sign and seal, so he could
stifle others, but to answer them, and SO
people hear of the isolated race riot, or of
never renege on his promise.
long as he does not attempt to destroy this
some overzealous police officer running ram-
When our own young country was formed,
constitutional framework by force and sub-
pant over the rights of an accused, or of a
not only was its basic governmental docu-
version, but rather is content to work within
trial conducted in an atmosphere of preju-
ment set forth in writing; but, despite the
that framework and seek changes through
dice, our counteroffensive suffers a serious
fact that the Federal Government was to
the ballot box, we have a duty to let him be
setback, as the Communists jubilantly point
be one of strictly limited powers, the First
heard.
out that we Americans don't practice the
Congress insisted upon 10 amendments to
And when we do not perform that duty,
liberty we preach. Working to insure a cli-
the Constitution which set forth certain
when we fail to speak up for the rights of
mate of social and political opinion where
basic liberties of the people with which the
what I will term the honest dissenter, we
these failures cannot occur is my idea of a
Government was forbidden to tamper.
not only fail to live up to that heritage of
program of positive Americanism, the results
Thus, the slogan of the wise businessman,
freedom which our ancestors have fought to
of which will be felt throughout the world.
"Put It in Writing," has in a sense been the
preserve, but we lose another round in the
Essential to any such program of positive
slogan of our country's political heritage-
battle of words and ideals we are waging
Americanism is an understanding of just
"Put It in Writing"-so that all men may
with Moscow. As I mentioned earlier, we
what that term implies-a reevaluation of
know their rights and know the rules by
are, in a sense, attempting to sell democ-
our American heritage. That you and I are
which they live.
racy to the world, and the best way to sell
in agreement as to the need for such con-
In considering the importance of under-
democracy is to show that it works-to
stant reevaluation is shown by your gather-
standing these rules by which we live, I am
show that unlike the masters of the Kremlin
ing here tonight-and I am privileged to have
reminded of the story of the boy of very
who also utter high-sounding phrases about
the opportunity to discuss such a program
tender years who presented something of a
freedom, we here in America actually prac-
with this fine group, for you who are vet-
problem to his troubled parents. Although
tice what we preach.
erans of the wars we have waged to retain
they had tried every known inducement,
When the Russians speak of their country
our freedom have demonstrated your dedica-
they simply could not get him to eat. After
as democratic, we call them hypocrites, be-
tion to the American way of life on bloody
a number of meals at which the boy sat
cause under their system, no man is free to
battlefields throughout the world.
indifferently fingering his tableware, the
disagree with the regime. When the party
Further, when you returned to your peace-
concerned father used as a last resort the
line changes, all too often those officials
time pursuits, you were among those who
promise that the boy could have anything
whose views are no longer considered ortho-
realized that the fight to preserve decency
he wanted to eat. After thinking a bit, the
dox lose their lives as well as their jobs.
and democracy was not yet over-and in-
boy said he wanted a worm for dinner.
But when we stifle honest criticism and
deed would never be over-and as sober re-
After the initial shock had subsided, the
when we ostracize the well-meaning dis-
sponsible citizens who understood full well
father left the table fuming, and said that
senter, we are not practicing democracy
that the duties of citizenship mean much
if that's what the boy wanted he would
either, but are adding fuel to the Communist
more than a periodic trip to the polls, you
have it. He thereupon went to the garden,
fire. We must never forget that it is the
joined the American Legion and assumed an
dug up the fattest worm he could find, and
underlying belief of our democracy that in a
obligation under the preamble of its consti-
dashed back to the house with it. Slapping
free and open encounter of opinions, truth
tution "to inculcate a sense of individual
the worm on the boy's empty plate, the
will ultimately prevail over falsehood. And
obligation to the community, State and Na-
father told him that there it was and now
it is a second basic concept of our democracy
tion" and "to foster and perpetuate a 100
he was to eat it. The boy set up an imme-
that it is only when the people are given
percent Americanism."
diate howl and said he would not eat it
free access to all the different competing
Since then, as veterans, legionnaires, and
unless it were fried. At that, the father
viewpoints that they can recognize the truth
responsible citizens you have constantly been
jumped up from the table and flung the
and thus choose wisely.
attempting to evaluate just what "100 per-
worm into a frying pan with a piece of
The phenomenal advance of our country
cent Americanism" is because, unlike other
butter. When it was done to a crispy brown,
in its relatively short history is due in large
isms, Americanism has no one narrow creed,
the worm was put back on the empty plate
part to the fact that to our shores have come
no one comprehensive solution to all the
with the admonition "Now, eat it." But
men of vision, men with new ideas-social,
world's ills.
again the boy howled. The father indig-
economic, political, and scientific-who felt
America's heritage is diversity, and the
nantly demanded that the boy eat the fried
stifled in the Old World, and came to this
breath of her life is constant progress-new
worm, as that was what he had asked for;
land of youth and opportunity to make their
ideas and new horizons. As members of a
but the boy refused, protesting that he
dreams a reality. And as our young country
veterans' group whose sole yardstick for
wouldn't eat until has father first ate half.
grappled with the many problems that arose
membership is war-tested citizenship with-
With purplish countenance and shaking
over the years—the question of slavery, the
out regard to differences in rank, race, creed,
hands, the father grabbed a fork, whacked
rise of industry, the threat of monopoly and
color or birth, you are aware of the wide va-
the worm in two and gulped half. Now,
the struggle of labor and farmers for better
riety of cultural and ethnic patterns from
with victory at hand, the father lifted the
conditions-there were always many voices
which our Nation has sprung-and from your
plate with the uneaten half on it, held it
urging different solutions-pointing out evils
work through your national organization,
under the boy's nose, and demanded that
and suggesting remedies. Had their voices
you have become aware of the differences in
he eat. The boy burst into a rage of tears
been stifled-our country could not have
viewpoint between Americans of different
and refused. Seizing him by the shoulders
grown, as time and again our history has
walks of life who live in settings as dis-
the father roared to know why after his
shown that the starry-eyed dreamer of today
similar from each other as the crowded side-
every demand had been met, he now refused
is the conservative of tomorrow. You here
Reproduced at Richard Nixon Presidential Library
A3246
CONGRESSIONAL RECORD- APPENDIX
April 23
in Minnesota need little reminder of the
the Communists have temporarily decided
zations-don't abandon ship and hand them
Farmers Alliance, the Grangers, and finally
to pay them lip service. Yet, all too often,
the organization as a gift. Fight back and
the Populist Party which in 1892 campaigned
others who then speak out in favor of those
clear them from your group. But in order for
in the national elections with a platform
same vital rights are branded as Commu-
people to be able to follow this advice, it
far too radical to be adopted by either major
nists, or fellow travelers, for some believe
means that all of us must distinguish be-
party. Among measures urged in their pro-
in the old saying that: "Where there is smoke
tween the Communist dominated group, and
gram were Government loans to farmers at
there is fire." I urge you, the next time you
the group which a few Communists are try-
low-interest rates, a graduated income tax,
hear that familiar theme, don't rush blindly
ing to infiltrate. To the members of the
tariff reduction, postal savings banks, shorter
with an ax at the smoke thus created-you
latter group, who are trying to combat this
working hours, laws protecting labor unions,
may chop at a firefighter instead of at the
infiltration, we must lend our wholehearted
and popular election of Senators. Today
fire. When we strike blindly at all who
support, and be careful of where we pin the
the most conservative members of all po-
espouse an honest and decent cause merely
Communist label. And yet we must do this
litical parties would never dream of advo-
because the Communists are also paying it
while following Mr. Hoover's other "don'ts."
cating the abolition of any of these once
lip service, we play right into the hands
"Don't be hoodwinked by Communist
progressive ideas.
of the Communists both here and abroad.
propaganda that says one thing but means
It is because our Constitution contem-
All the Communists need to do is take
destruction of the American way of life. Ex-
plates these continual variations in polit-
refuge behind the very civil rights which
pose it with the truth.
ical and social opinion, and provides for
we know they are pledged to destroy, and
"Don't give aid and comfort to the Com-
peaceful elections to carry out the ever-
then others fearful of being labeled sub-
munist cause by joining front organizations,
changing mandate of the people, that we
versive, will shun the term "civil rights" as
contributing to their campaign chests or by
have no need for, and cannot permit groups
a Communist label.
championing their cause in any way, shape,
to organize who advocate violent changes
A specific case in point is the fifth amend-
or form.
in our form of government. For those who
ment. If our Founding Fathers had been
"Don't let Communists infiltrate into our
advocate the overthrow of our Government
told that there would come a time in Amer-
schools, churches, and moulders of public
by force must admit that their program does
ican history when many would urge the re-
opinion, the press, radio, and screen."
not have popular appeal, and cannot win
peal of the privilege against self-incrimina-
As I mentioned earlier, we are living today
out in the free and open exchange of ideas-
tion, they would have been numbed with
through one of the free world's most trying
were their ideas capable of such a victory,
violence would be unnecessary.
disbelief that we could so easily suggest re-
periods; the intense global nature of the
We are all well aware of the fact that the
linquishing a right that was won by a slow
Communist conspiracy confronts us with
and costly process in the fight against tyr-
threats within and without our border. We
Communists are such a group. This fact
anny and torture. The idea that a man
must not grow weary and frustrated at the
was forthrightly recognized by the late Jus-
should not be compelled to bear witness
continuing high cost imposed upon us in
tice Jackson of the United States Supreme
Court in 1950. Concurring in the decision
against himself has been fundamental to our
defending ourselves against this threat. Too
idea of justice in the courts, to our belief
often as these frustrations mount, we hear
which upheld the requirement of the Taft-
Hartley Act, that union leaders file non-
in man's inherent dignity, and to our tradi-
seductive voices from within ourselves, as
tion that a man is innocent until proven
well as from our fellow men. These voices
Communist affidavits, he said:
"The goal of the Communist Party is to
guilty. But the consistency with which
call upon us to take short cuts, to invoke
Communists have been invoking this privi-
expedients, strike for what seem to be quick
seize powers of government by and for a
minority rather than to acquire power
lege in recent years has led some peoeple, in
and easy solutions. When these seductive
through the vote of a free electorate."
their justifiable frustration, summarily to
voices tell us, "Deal with the enemy or sus-
He added: "The American Communists
condemn the whole doctrine, to urge its
pected enemy within our midst the way he
abolition, and to label as Communists many
would deal with us, and strip him of his
have imported the totalitarian organization's
who speak out in favor of retaining the privi-
rights the way he would have stripped us"-
disciplines and techniques, notwithstanding
the fact that this country offers them and
lege. And when we react in this manner,
these voices are actually spreading Com-
other discontented elements a way to peace-
we fall into the Communist trap by endan-
munist doctrine.
ful revolution by ballot."
gering the very liberties which they seek to
We must never become so completely con-
Because of the resort by Communists to
destroy. As farmers, many of you know that
sumed with this ever-present Communist
violence, treachery, and intrigue as the
if a borer attempts to eat into your prize
threat that our thinking is motivated by
means to their ends, he maintained, Congress
apple tree-you eliminate the borer-you
what we hate rather than by our love of
don't chop down the tree.
the American way. Unfortunately, some of
has rightly decided that they should not be
permitted to occupy key posts in the labor
This need for not letting worthy causes
us have begun to hate each other-particu-
movement-from which positions they could
fall into Communist hands by default, and
larly when we are in disagreement over some
attempt to paralyze the country econom-
the necessity for perceiving the difference
fundamental issue. It was this condition
ically.
between Communist dogma and solid Ameri-
which led a contemporary philosopher to
can ideals being perverted by the Commu-
warn that, "If we permit our hatred of
Similarly, measures have been taken to
prevent Communists from serving in sensi-
nists, and the importance of differentiating
Russia to replace our love of the American
tive positions in government and in our pub-
between Communists and honest liberals in
dream as the motivation of our lives, we will
lic schools, and the Supreme Court has ap-
our fight against communism was pointed
have accorded communism the greatest
proved these measures. Further, by security
out by that very able and dedicated Ameri-
tribute to which any dogma may aspire,
checks, Communists are prevented from ob-
can, J. Edgar Hoover, Director of the Federal
the power to dictate the thinking of its
Bureau of Investigation in an article pub.
enemies."
taining positions in industrial plants vital
to our Nation's defense. These decisions and
lished in Newsweek magazine as far back as
It is interesting to note, that Mr. Hoover,
security measures are sound, and we must
June 1947. He opened by saying:
who has been in this fight against com-
constantly maintain our vigilance against
"Our best defense in the United States
munism longer than most Americans con-
those who seek to destroy our heritage-but
against the menace of communism is our
cluded his list of the 10 ways to fight
we must always remember that basic to these
American way of life."
communism with the following admoni-
tion:
decisions is the fact that the Communists
He continued: "We can successfully defeat
would use violence in their attempt to make
the Communist attempt to capture the
"Don't fail to make democracy work with
us accept a regime which they know will
United States by fighting it with truth and
equal opportunity and the fullest enjoyment
never gain acceptance by constitutional
justice implemented with a few 'don'ts.'
of every American's right to life, liberty,
He then proceeded to list 10 "don'ts."
and the pursuit of happiness."
means.
In urging that while you maintain your
"Don't label anyone as a Communist un
This necessity for faith in our democratic
less you have the facts.
processes and for constant vigilance against
vigil against Communist subversion you
maintain equal vigil to insure that not all
"Don't confuse liberals and progressives
both extremes which Mr. Hoover expressed
with Communists.
SO ably, keeps us engaged in a difficult and
who disagree with the majority, politically
or economically, are blindly labeled Commu-
"Don't take the law into your own hands.
trying process. Over 100 years ago, an old
If Communists violate the law, report such
American political leader, Fisher Ames, de-
nists, I realize that I make no simple request.
facts to your law enforcement agency.
scribed democracy with pardonable vulgarity.
It is complicated by the fact that while on
"Don't be a party to the violation of the
He said "Democracy is like a raft. You never
the one hand, Communists often parade in
false dress as advocates of liberal causes, on
civil rights of anyone. When this.is done
sink but damn it, your feet are always in the
water." And I believe, and I am sure you do
the other hand, we cannot permit a worthy
you are playing directly into the hands of
the Communists.
too, that our democratic system is well worth
movement to be defeated merely because a
the discomfort of constant wet feet.
few Communists are attempting to infiltrate
"Don't let up on the fight against real
Striving to create a better America would
it. We cannot let certain worthwhile causes
Fascists, the KKK, and other dangerous
be sufficient end in itself were there no
become Communist property-and yet we are
groups.
Communist menace, but such actions take
in danger of doing so. The Communists,
"Don't let Communists in your organiza-
on new importance in the context of the cold
who we know have abolished all civil rights
tion or labor union outwork, outvote, or out-
war. Every time a group of Americans take
in the countries under their yoke, will often
number you."
positive action to prevent some miscarriage
be heard hypocritically in defense of certain
On this last point, I might add, that Mr.
of justice, that means there is one less in-
of our precious liberties-but these liberties
Hoover's advice means that if a few Com-
cident for the Communists to seize upon in
do not become any the less precious because
munists try to infiltrate your local organi-
their current propaganda offensive-and it
Reproduced at Richard Nixon Presidential Library
1956
CONGRESSIONAL RECORD - APPENDIX
A3247
also means that there is one more incident
sible for dictators to confess that their ends
standing public service. I congratulate
that an alert American press can seize upon
are self-seeking. Instead, in recent years
him very heartily on making possible this
to aid us in our cold war offensive.
we have seen the rise of several totalitarian
fine program, which I am certain will be
And on this point, I might add that I
movements, naziism in Germany, fascism in
believe we should reorient our thinking
Italy, and communism in Russia. All three
very effective in bringing the needed
toward the part our press should play in
groups have professed that their purpose was
manpower and money into the field of
our national and international life. We
to better the lot of their citizens.
furthering the well-being of children.
should recognize that it not only reports news
In particular, the Communists made
I ask unanimous consent that a state-
to Americans, who, as citizens, are anxious to
claim to being the representatives of the
ment outlining the establishment of the
learn of mistakes which have been made that
downtrodden-their revolution was to herald
awards be printed in the Appendix of the
need correction, and who usually take it for
a brighter day, a classless society.
RECORD.
granted that no news on any issue means
But then, they urged, since their ends
There being no objection, the state-
good news. Rather, our press today also
were SO glorious, all means conducive to
serves as source material for foreign news
them should be employed. Thus began an
ment was ordered to be printed in the
services, and this latter role means that equal
era of horror while the Russians collecti-
RECORD, as follows:
emphasis and equal space should be devoted
vized their farm citizens, shooting rebellious
MARSHALL FIELD ESTABLISHES NATIONAL
to reporting accomplishments in our country
kulaks and herding thousands of others off
AWARDS FOR CONTRIBUTIONS TO CHILDLIFE
which we here take for granted, and to relat-
to Siberia. Similarly, they purged many of
Marshall Field announced today the for-
ing the numerous small instances of Amer-
the middle class intelligentsia who chal-
mation of Marshall Field Awards, Inc., a non-
icanism in action which occur throughout
lenged their actions. Dissent was stifled,
profit organization, "to recognize and re-
the Nation. I urge this because if our
and many of the men who had suffered SO
ward fundamental and imaginative contribu-
news reports lay more stress on our occa-
long for the sake of the revolution were
tions to the well-being of children."
sional miscarriages of justice than they do
shot as traitors by the heirs of that revo-
Six to nine awards will be made annually
on the good we practice daily, there will be
lution-all as I say, in the name of progress
to individuals, organizations, and communi-
conveyed to the world a distorted picture of
and what the Russians called democracy-all
ties in the fields of education, physical and
American life.
on the theory that the ends justify the
mental development, social welfare, and
In this regard, I am reminded of a heart-
means.
communications. Each award will consist of
warming incident which was related by Dr.
Conversely, our Anglo-Saxon heritage has
$2,000, a scroll, and a statuette. The winners
Mordecai Johnson, president of Howard Uni-
always been one of insistence on proper
will be selected by a board of directors which
versity in Washington. It seems that, while
procedures. Our police cannot make ar-
is composed of recognized authorities in
Dr. Johnson was on a train trip in the
rests without warrants-unless of course they
child life. The first awards will be made this
South, not too long ago, he noticed a fellow
actually come upon a crime being com-
year.
passenger, a young Negro boy, who seemed
mitted. Our criminal defendants are given
In announcing the awards program, Mr.
very upset and ill at ease. When Dr. John-
every procedural aid, and are deemed inno-
Field stressed the considerations that led to
son asked what was troubling him, he re-
cent until proven guilty beyond a reason-
its establishment: "Although few would
plied: "I am the first Negro to be admitted
able doubt. Men of all shades of political
quarrel with the controlling importance of
to the University of Arkansas and I don't
opinion are free to express their opinions
children to America's future, I believe we
want to enter. I feel that I will have a most
verbally and in writing. Because we have
have not done all we can or should to assure
unpleasant experience, but all my relatives
a truly representative Government, and our
for our young people the opportunity for
and friends insist that it is my duty to go
Congressmen represent diverse views from
their fullest physical, mental, and social de-
there." The boy's anxiety increased as the
all over the country, our legislative processes
velopment. I think the reasons for this
train drew closer to Fayetteville, Ark., where
move slowly-and we don't all agree with
deficiency are: first, that we have not de-
the school was located, and he became deeply
every law. Our courts impose rigid checks to
voted a large enough portion of our national
concerned when, looking out the train win-
make sure that no man is deprived of life,
resources in manpower and money to the
dow as he pulled into the station, he saw 35
liberty or property without due process of
professional fields which serve children, and,
white boys waiting on the platform. He was
law-which means without proper procedures
second, that we have not made those profes-
sure that the only motivation which could
safeguarding his interests.
sional fields sufficiently high, in prestige or
have brought that group to the station was
If this insistence on proper procedure
reward to attract adequate numbers of top-
to give him a hostile reception-a confirma-
sometimes seems cumbersome, if we cannot
notch personnel needed to make new and
tion of his worst fears. However, his con-
make decisions with the lightning rapidity
important contributions to the well-being of
cern quickly turned to relief when, as he
of totalitarian governments-we have always
children.
stepped from the train, one of the boys
felt that this was a small price to pay for
"Our awards are designed to help meet
approached him, extended his hand, and
liberty. And this is something we should
these deficiencies. It is our hope that they
said: "Last night a group of us were talking
never forget.
will focus public attention on children's
about you and how you would feel on com-
When, with our eyes fixed on a wonderful
needs and on the areas in which improved
ing to the university, and we decided to come
goal, we insist on short cuts in the name of
services are urgently required. The awards
here and offer you our friendship." Those
expediency-when we stifle honest dissent
will call attention to constructive programs
students were practicing positive American-
while we preach safeguarding freedom-we
which set an example for others to follow.
ism in its best and truest sense. They were
are taking a page from Machiavelli's hand-
We hope, too, that the granting of these
not antisegregation crusaders, but southern-
book. Democracy can only be preserved by
awards will, in some measure, raise the sta-
ers born and bred who had been brought up
democratic methods-slow and plodding
tus of the professions devoted to children
to believe that segregation was proper. But
though they be-for democracy is based on a
and will stimulate the making of additional
now that its end was decreed, they had come
calculated risk-it is based on a belief that
significant contributions to the betterment
as fellow human beings and fellow Americans
free men exercising a free choice out of
of childlife."
to offer their friendship to one whose strug-
various competing ideas will exercise the
Mr. Field has long been active in work de-
gle to adjust to the new way of life seemed
wisest choice possible, and our country's
voted to children both through the Field
to be just that much more difficult than
history over the past 175 years has justified
Foundation, which he established in 1940,
their own.
continued faith in that belief.
and, as president, since 1951, of the Child
It is a story like this that makes one
Welfare League of America.
proud to be an American, and I believe that
Nominations for possible award winners
it is vital in this cold war that we give a
will be solicited by the new organization on
fair measure of publicity to these heart-
Marshall Field National Awards for
a nationwide basis. All nominations will be
warming incidents which occur day by day
screened and final selections will be made by
in all our communities, and in all types of
Contributions to Childlife
the board of directors. International awards
situations, and which make our American
may also be granted at the discretion of the
tradition so wonderful.
directors.
EXTENSION OF REMARKS
Perhaps one way to summarize the
The following criteria will be used in judg-
thoughts that I have attempted to convey
OF
ing work nominated for awards:
to you tonight is to briefly delve back into
HON. HERBERT H. LEHMAN
1. Does it directly help children?
history. During the 16th century, an Italian
2. Does it benefit a large or significant
named Machiavelli wrote a handbook for
OF NEW YORK
group of children?
despots, called The Prince. In telling
IN THE SENATE OF THE UNITED STATES
3. Can it be applied or adapted for use by
rulers how to obtain absolute power and
others?
then retain it, he advised them to be guided
Monday, April 23, 1956
4. Is it consistent with professional stand-
by the principle that the ends always jus-
Mr. LEHMAN. Mr. President, Mr.
ards in the field?
tify the means. Ever since that time, tyrant
5. Does it represent an original or extraor-
Marshall Field, who is one of our great
after tyrant has resorted to Machiavelli's
dinary service?
theme. In those earlier days, these absolute
philanthropists and civic leaders, has
6. Will it promote sound development of
rulers made no pretense about the fact that
established a program of national awards
children?
they wanted power for power's sake; modern
for contributions to childlife. This is an-
7. Will it stimulate public interest in the
libertarians, however, have made it impos-
other demonstration of Mr. Field's out-
needs of children?
Reproduced at Richard Nixon Presidential Library
COPY
September 28, 1955
Dear Judge Kaufman:
Thank you for your good letter of September 6
with which you returned the copy of the U. S. News &
World Report, about which I spoke.
My own judgment is reinforced by your own
opinion concerning Max Eastman's article.
I must say too that I am most grateful for your
letter of September 1 which contained such warm words
about my appearance before the Veterans of Foreign
Wars and the American Bar Association.
It was certainly nice to see you and I too
will look forward to our next visit, which I hope will
be not too long in the making.
Sincerely,
Richard Nixon
The Honorable Irving R. Kaufman
Judge, United States District Court
United States Courthouse
Foley Square
New York 7, New York
RLK:rah
Reproduced at Richard Nixon Presidential Library
United States District Court
United States Courthouse
Joley Square, New York 7
Chambers OF
judge IRVING R. kaufman
September 6,1955
7.4.I.
My dear Mr. Vice-President:-
I am returning herewith the
copy of the U. S. News & World Report,
containing the condensation of Mr.
Eastman's book, which you were kind
enough to let me have. Your enthusiasm
over this writing by Max Eastman was
completely justified. I can't remember
when I have read anything finer on the
subject.
Again, may I say that I look
forward to seeing you in the very near
future.
With best wishes, I am
Sincerely yours,
Juring R. Kanfura
Honorable Richard M. Nixon
Vice-President of the United States
Senate Office Building
Washington, D.C.
Reproduced at Richard Nixon Presidential Library
UNITED STATES DISTRICT COURT
CHAMBERS OF
JUDGE IRVING R. kaufman
UNITED STATES COURTHOUSE
NEW YORK 7, N.Y.
September 1,1955
Unofficial
Personal and Confidential
Honorable Richard M. Nixon
The
Vice-President of the United States
Senate Office Building
Washington, D.C.
My dear Mr. Vice-President:
At the outset may I state what a distinct
pleasure it was to visit with you yesterday. It is
interesting that you are in agreement concerning the
pattern followed by the Communists in attacking those
who have ever opposed them.
Your observation over capturing the minds
of the so-called intellectuals was indeed an interesting
one. I wonder if some sort of a survey could not be
made by some organization or foundation to ascertain
to what extent the college professors and the school
teachers have been deceived by Communist propaganda.
The Communists, by clever and insidious methods, have
made a distinct effort to impress the intellectuals.
I like to think that they have failed because the
professors and school teachers are an intelligent group
capable of probing and deep thinking. While super-
ficially it may appear that the propaganda has been
effective, I believe a poll would show that by and large
this group is a very discerning one.
I returned last evening with General Sarnoff
and we talked about you at great length. He is very
much concerned over the atmosphere since the Geneva
Conference. I have read the excerpts from your
speeches before the Veterans of Foreign Wars and the
American Bar Association which you were good enough to
let me have. I believe your speeches were excellent.
They served to go far in putting the Geneva Conference
in its proper perspective.
The General expressed
Reproduced at Richard Nixon Presidential Library
Honorable Richard M. Nixon
Page 2
himself quite vociferously last night on this
subject. Everyone wants peace. But, as you
pointed out in your speech, there are certain things
the Communists must do toward proving that they are
honest in their intentions to reduce the tension.
In addition to the "road blocks in the path of peace"
enumerated in your speech, the General was very much
concerned over the extent to which Russia goes to jam
the Voice of America from coming through to Russia and
the satellite nations. He thought that an element
of good faith would be the removal of this road block,
His point is, and it seems to be well taken, that we
afford Russia every possibility of expressing herself
in this country through our free press. When the
Voice of America attempts to do the same, Russia does
everything to prevent our message from reaching her
people.
I began to read Max Eastman's article yester-
day in the U.S. News & World Report, which you were good
enough to give me. I would like to keep this over the
week-end. It is so interesting that I want to read
every word of it. I promise to return it next week.
Again may I tell you how much I enjoyed my
talk with you. I do hope that we will be able to meet
from time to time and discuss some of our common problems.
With best wishes, I am
Sincerely yours,
Juning R. Kanfan
Reproduced at Richard Nixon Presidential Library