The Bogus Letter

In addition to refocusing the basic issue in the Army's case against McCarthy (see above), last week's testimony brought out an even more important conflict: McCarthy v. the U.S. Constitution.

With appropriate rumblings and trumpet sounds, McCarthy produced a carbon copy of what he said was a 2 1/4-page "letter" sent and signed by the FBI's J. Edgar Hoover to Army intelligence on Jan. 26, 1951, warning against a number of subversives employed by the Army Signal Corps. McCarthy's point was that this letter was in the Army files when Stevens took office (on Feb. 4, 1953) and that Stevens had ignored it.

The letter turned out to be spurious--at least in form. After testimony that there was no such letter in the Army files and that J. Edgar Hoover said he had sent no such letter, McCarthy was put on the stand by Ray Jenkins and suffered a humiliating cross-examination at the hands of Army Counsel Joe Welch.

Welch: Do you understand that J. Edgar Hoover sent to the Army a document two-and-one-fourth pages in length? Just say yes or no.

McCarthy: I don't know how many documents--Welch: Let's face up to it, Senator. Do you understand that J. Edgar Hoover sent to the Army a document two-and-one-fourth pages in length?

McCarthy: So far as the document of Jan. 26 is concerned, the answer is no.

Elementary & Sweeping. The interesting news that McCarthy's team had followed up a doctored photograph with a doctored letter was accompanied by some even more interesting disclosures. The bogus letter was based upon a 15-page memorandum sent by the FBI to the Army and was marked "confidential." The memo was headed: To Maj. Gen. A. R. Boiling, from John Edgar Hoover, and bore no signature. (The bogus letter was headed "Sir," was signed "Sincerely yours, J. Edgar Hoover, Director" and was marked "Personal and Confidential.") McCarthy testified that he got the letter from an officer in Army intelligence. From the witness stand, McCarthy announced: "I will not under any circumstances reveal the source of any information . . . People who give me information from within the Government know that their confidence will not be violated. It will not be violated today."

Although McCarthy had said he would not divulge his source even if the committee ordered him to do so, Counsel Jenkins made a sweeping ruling that seemed to let Joe off the hook. Said Jenkins: "It is elementary that the Senator does not have to reveal the name of his informant. . . Otherwise, law-enforcement officers would be so hamstrung . . . that they would never be able to ferret out crime."

Flagrant & Systematic. Was this ruling good law? This week Pundit Walter Lippmann explored the implications of McCarthy's position and Jenkins' ruling. Said Lippmann:

"Mr. Jenkins upheld Senator McCarthy's claim that Government employees, including officers of the Army, are not bound by their oath or by the laws [against disclosing confidential information] or by any ties of loyalty to their superiors or to the service if--in their own private and secret opinion--it would be a good thing to break the law. . .

"It was in accord with this very principle . . . that Fuchs and Alan Nunn May and the Rosenbergs acted . . ."

Lippmann argued that Jenkins' ruling went wrong when he classed Senator McCarthy with "law-enforcing officers," who do not have to reveal their sources.

"The fundamental error at the root of the McCarthy problem," said Lippmann, "is to assume that a committee of the legislative branch of the Government [is made up of] 'law-enforcing' officers who 'ferret out crime.' "

Lippmann argued that it was the function of the Executive branch to enforce the law and ferret out crime. He concluded: "McCarthyism is fundamentally unconstitutional in spirit and in practice.

The American Government cannot be made to work if its fundamental principle [of separate branches] is flagrantly and systematically violated. It is systematically and flagrantly violated if the Legislature takes upon itself the law-enforcing function of the Executive."

Doctored & Fabricated. Would Lippmann's view impair Congress' ancient and valuable right of investigation? Not necessarily. Congress has a right to inquire into how well its laws are enforced and to loosen or tighten laws if it finds enforcement unsatisfactory. But Congress has no right to encourage--as McCarthy has encouraged--violations of law and loyalty on the part of officers and employees of the Executive branch. It has no right to set up a network of spies in the Executive branch, demoralizing it and creating a situation where the Secretary of the Army, for example, cannot function except as a Senator pleases. First the spies produce what they consider evidence. Then they produce doctored evidence. Next they may well produce purely fabricated evidence. And even the investigating Senators will in the end be victimized by the unconstitutional and un-American system they have created.

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