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Why the Fifth Amendment?

by Howard Fast

RECENT statements by Attorney General Brownell, Senator McCarthy, and other enemies of civil rights indicate the beginning of a large drive to do away with the protection offered by the Fifth Amendment. Hence it becomes of the greatest importance not only to explain the use and the meaning of the Fifth Amendment currently, but to go into various questions concerning its historical origin and the reasons for its incorporation into the Constitution of the United States as a part of the Bill of Rights. Only through understanding the historical basis upon which the Fifth Amendment came into being, can one answer those who charge today that this amendment is a device used by the guilty to stave off punishment for their wrongdoing.
   In discussing the Fifth Amendment specifically there is no intention to minimize either the courage or the sound judgment of American progressives and liberals who have turned to the First and Fifteenth Amendments as their defense before congressional investigating committees. Some of these witnesses, particularly Harvey O'Connor and Corliss Lamont, have used the First Amendment in a bold and deliberate move to challenge most directly the right of any congressional committee to interfere with any aspect of the exercise of free speech.
   The stand taken by these two men, and by other Americans, is a necessary and a courageous position; yet it must be noted that such a stand does not and cannot decrease either the historical or the constitutional importance of the Fifth Amendment. For well over a year the Fifth Amendment to the Constitution of the United States has been a shield against injustice and a buckler in the face of tyranny for hundreds of Americans of various political faiths. And while its use raised questions in the minds of many people, it affords a degree of security to some that has been missing in our courts and committee hearing for a long time.
   Those who question the use of the Fifth Amendment say something to this effect: "If the person who is interrogated is honest and sincere, then why doesn't he answer the question? If he is asked whether he is a member of the Communist Party, why is he ashamed to admit it if he is one, and why is he unwilling to deny it if he is not one? Why does he take refuge in the privilege and state that he refuses to answer the question on the grounds afforded to him by the Fifth Amendment--in other words, that it might incriminate him, or force him to give evidence against himself?"
   As strange as it seems in today's America, such questions are still frequently asked in all sincerity. Sometimes, however, the asking of these questions is in itself provocation. I had this experience when I appeared in Washington before Senator McCarthy's Committee on Investigations. One of the Senators--I do not remember which one--leaned toward me, waved one had violently, and cried out, "If I were a member of the Communist Party, Mr. Fast, I would be proud to admit it."
   The Senator is very bold in dealing with the pride of others. However, what are the facts? Let us suppose that a person under oath, who is not a member of the Communist Party, states this fact--that he is not a member of the Communist Party--instead of claiming the privilege against self-incrimination afforded by the Fifth Amendment. Can he then rest secure in the knowledge that he has absolved himself of slander and danger? The history of the past several years shows that he cannot. There is no guarantee offered to him that, even though he has told the truth in answering this question negatively, he will not be indicted on a charge of perjury, tried, convicted and sentenced to five years imprisonment.

ON WHAT basis do I say this? On the basis of a considerable history of dubious indictments, and even more dubious testimony given by paid informers, stoolpigeons, and renegades, all of whom are used by government attorneys as a convenient method to gain convictions. Let me give you some examples of such cases.
   The Hiss case. To this date there is no real corroboration of Whittaker Chambers' testimony. Hiss, who was accused, was sentenced to prison for five years. Chambers, a self-confessed perjurer who testified for the government, goes scot free, writes a book about it, and becomes the gainer, to the tune of a fortune in cold cash, out of the whole affair.
   The Rosenberg case. Here, not perjury, but conspiracy to commit espionage, is the charge. On uncorroborated evidence by David Greenglass, Julius and Ethel Rosenberg were sentenced to death. Greenglass and his wife, who "confessed" to espionage to save their own necks, received the tangible gratitude of the Justice Department they had served. Mrs. Greenglass went free, and Greenglass received a sentence of fifteen years imprisonment.
   The case of Harry Bridges, west coast trade union leader, sentenced to prison on what a host of reputable witnesses swear is the perjured testimony of stoolpigeons. The stoolpigeons, who acted on behalf of the government, went free. Bridges was sentenced to prison, as was his lawyer, Vincent Hallinan.
   There are many, many such cases, and involved notoriously in a number of them is that prince of all stoolpigeons, renegades, and professional witnesses, Louis Budenz. Last year, before a congressional committee, Louis Budenz named a number of people as members of the Communist Party. Among these people was Professor Fowler Harper of Yale. Were it not so tragic, the suggestion the Fowler Harper is or ever has been a member of the Communist Party, would be ludicrous. This, of course, is evident to anyone who knows Professor Harper; but evident or not, the history of the past decade shows that such testimony on the part of Budenz would be sufficient to convict Fowler Harper in a court of law, if the professor had said under oath that he was not a member of the Communist Party. I maintain this, because again and again in our federal courts, the testimony of Louis Budenz has been used and accepted in such a manner. Ironically enough, it was Owen Lattimore's unwillingness to invoke the Fifth Amendment that has placed him in a position where he must now spend thousands of dollars defending himself in a perjury case based on testimony of Louis Budenz.
   Yet, Louis Budenz is a liar. I state that quite casually and flatly, without fear of contradiction or action for slander or libel. Louis Budenz has lied about me. He has lied about dozens of others. He has perjured himself over and over and over. He is able to do all this with impunity, because he acts as a paid witness for the Justice Department in its political court actions, and in its own efforts to advance itself and to secure convictions.
   John Lautner, paid spy and police informer, is another case in point. He, too, now makes a profession of giving perjured testimony to convict accused people. Once again, we see legal acceptance of the testimony of a person of small and shabby character, dubious morals, and little repute, and the use of such testimony to obtain convictions. Both of these men, Lautner and Budenz, have testified in a number of Smith Act trials, as well as before many congressional committees.
   So you see that the truthful man who denies Communist affiliation, can have no great confidence in his role as a truthful witness. Whether he speaks the truth of not, he may be sentenced to prison for five years on a perjury indictment.

LET us suppose, however, that a Communist stands before the particular inquisition and answers, in reply to the question, that he is a member of the Communist Party and is proud of it, thereby exercising that capacity for pride which the Senator so aptly suggested. The difference between a senator and a witness is that the senator can indulge his pride without any harmful consequences. The Communist who declares he is a Communist finds that his life has become both complex and dangerous. If he lives in the state of Pennsylvania, such a statement can result in a twenty-year prison sentence, through a recently-enacted piece of state legislation. If he is a resident of California, local law can sentence him almost indefinitely for the same admission. If he lives in one of the other states, he would fall under federal jurisdiction in terms of his admission. The McCarran Act provides means for keeping him in prison ten years. The Smith Act, as we have already seen in a number of federal courts, can be used as a mechanism to sentence him to prison for as long as five years.
   But a vengeance even more immediate than the above would be visited upon any Communist Party member who answered, yes, he was a Communist and proud of it. The record of these inquiries over the past dozen years shows that such a person would immediately be asked to provide the names of every other Communist he knew or had heard of or had ever met with, the places where he met with them, and the substance of what was spoken of or decided upon at these meetings. If the Communist Party member who is asked this question should invoke the Senator's suggested attitude of pride and disdain, as every Communist witness in this position unfailingly has, he would not be allowed to do so under the guarantee of the Fifth Amendment; for his previous waiver of the privilege of the Fifth Amendment would destroy his subsequent use of the privilege. Therefore, his unwillingness to become a stoolpigeon, a police informer, would be rewarded with a year in prison for contempt of Congress, and fines which could be as high as $10,000. Any one of our federal kangaroo courts could also very easily--as they have in the past--construe his unwillingness to answer the question as a result of conspiracy, and add many more years of prison to the congressional sentence of one year.
   So it is not a simple matter of pride or dignity as the Senator suggested, nor is it a question of courage. Let the Senator say what he will about Communists. They have shown an adequate measure of pride and courage. The Senator's challenge comes poorly from his lips, for like so many others, his memory is short indeed.
   Would he have asked a Jew in Hitler's Germany to offer himself to the abbatoir, for what the Senator calls pride? Would he have asked a democrat in Mussolini's Italy to give up his freedom for the same reason? I don't think he would have. It is always easier to focus upon events at a distance than it is to form a clear picture of what is taking place directly under our noses.

EACH time I called upon the protection of the Fifth Amendment during my appearance before the McCarthy Committee last year, I demanded from the Senators the right to state why I was using this privilege. They were almost hysterical in their unwillingness to grant me that right. The hearing was being televised, and they had no desire to allow an explanation of the beginnings of the Fifth Amendment to go out over the air to millions of Americans. Nevertheless, an explanation of the origin of this amendment is most important in the struggle for our civil liberties, as well as to augment our knowledge of our democratic heritage. It is not accidental that the Constitution of the United States provided that no person should be forced to give evidence against himself. Quite to the contrary, this became one of the ten articles of the Bill of Rights precisely because it was of deep import and meaning to the men and women who lived at the time of the American Revolution.
   There was a period when no such concept prevailed anywhere in Europe. At that time, it was widespread practice for both lay and religious courts to extract evidence from a defendant through the use of torture. The wheel, the rack, the press and the whip were all used as means of obtaining evidence. The accused was subjected to torture until he signed a confession, thereby giving evidence against himself--which, in turn, was used to obtain his conviction in a court. Out of this, the question of self-incrimination originally arose, with a deep and lasting impact.
   It is important to dwell for a moment on this question of the use of torture to gain a confession which is subsequently used to establish the guilt, usually by pseudo-legal means, of the person who has confessed. While people recognize that in ancient times the use of torture was fairly common, indeed traditional in many places, they are prone to hold that such practices have no bearing in today's America. Yet, anyone who has even casually perused the history of the Rosenberg case, can come to only one conclusion--that again and again mental torture of the most extreme kind, under the pain and penalty of death, was used in an attempt to extract "confessions" from the Rosenbergs.
   It is quite true that our federal secret police today do not stoop to such common, obvious methods of torture as the cruel beatings used to extract confessions from suspected criminals and militant leaders of the working class in almost every metropolitan area of the United States; but the secret police of J. Edgar Hoover have as efficient, if more refined, methods. The threat of blacklist, with its inevitable destruction of any hope for economic survival, is a form of torture. The threat of public defamation and character assassination, is a form of such torture. The threat of prison and the threat of death, the former voiced so often today by Senator McCarthy, and the latter made so plain by the Justice Department in the Rosenberg frame-up, is another form of torture. These are cases directly to the point; for this is the modern American method of extracting confession, and then using this forced confession to obtain convictions on one charge or another of those who have confessed, as well as those implicated by such forced confessions.

WHEN the various Protestant sects arose in England, in rebellion against the High Church, the question of self-incrimination once again came to the fore. Toward the close of the sixteenth century, the English Court of the High Commission claimed to have inherited the right to administer the so-called "oath ex-officio." In other words, a person who took this oath was bound by a sacred compact to tell the truth. A person refusing to take this oath was, by his very refusal, considered guilty.
   The Puritans were immediately faced with this oath, and with the consequences it imposed upon them. If they took the oath, they could not, within the bounds of their morality, perjure themselves; not to mention the judicial punishments for perjury which might await them if they did. If, however, they refused to take the oath, they would automatically be considered guilty, and thereby face punishment. If they took the oath and told the truth, they would be informing on their brother Puritans; they would be revealing the secrets of a sect which could only survive persecution through secrecy; they would be betraying that which was dearest to them.
   We have a long list of cases of Puritans who were summoned by the High Commission, who refused to take the oath or to answer questions, and who were thereby jailed. The most famous of these cases occurred in 1637, when twenty-year-old John Lilburne was dragged before this tribunal and ordered to take the oath. How modern his angry reply sounds! He stated that he could not be "ensnared by answering things concerning other men."
   For taking this position, he was flogged, pilloried, and then thrown in jail. But thousands of people all over England rallied to his support. And when, a few years later, Cromwell's revolutionary army destroyed the vested power of the Church, one of the first actions taken by the revolutionists was the establishment of a privilege against self-incrimination. The military force itself stated "that it be declared that no person or court shall have power or be permitted to enforce any person to make oath, to answer any interrogation against himself in any criminal cause."
   I have described some of the circumstances of the origin of the privilege guaranteed to us by the Fifth Amendment. As precious as any of their possessions, ideals or beliefs, this concept of the privilege was brought to America by the Puritans, and became a living part of New England common law--later to be incorporated in our Bill of Rights. This is not a protection for criminals against justice. It was never intended as such. The privilege against self-incrimination was intended specifically to protect people against torture, against being forced to incriminate themselves by either their voice or their silence, in the very manner that they are being so forced by our congressional committees today. The Star Chamber of old England, which haled before it every manner of dissenter, is duplicated today in the Senate and the House office building in Washington. Today we realize that some of the best and richest parts of our heritage exist because the early dissenters were willing to fight for principles, face prison, and if necessary, death. Unless we realize that this is also the case with the dissenters of today, we will find that we have sold our entire democratic heritage for a mess of very poor pottage.

The above is the complete text of the article, as it appeared in:
Masses & Mainstream, Vol. 7, No. 2, February 1954, pp 44-50