Introduction

from the book

The Tree of Liberty

A Documentary History of Rebellion
and Political Crime in America

edited by Nicholas N. Kittrie and Eldon D. Wedlock, Jr.

The Johns Hopkins University Press, 1998

Introduction

The terms political crime and political criminals are rarely found in the American literature of the social and political sciences, history, criminology, or law. In 1979, Webster's New Collegiate Dictionary for the first time defined the political criminal as one "involv[ed] or charged ... with acts against the government or a political system." ...

Political criminals need not necessarily en gage in acts; their crimes might be their failure. to perform legally imposed duties. Failure to swear allegiance or to register for the draft is such a crime. Speech or writing concerning a prohibited subject matter can be criminal. The crimes of sedition and treason are examples. To be political a crime need not seek to overthrow the government or to depose its leaders. Proposing change or attempting reform of entrenched political policies, such as the advocacy of liberty for blacks and the exercise of the franchise by women, may be criminal.

To comprehend political criminality, one must view the term political quite liberally. Many actions or omissions motivated by religious, economic, social, or racial concerns may be perceived as threatening the political authority of the state... Moreover, even an offense against non-governmental institutions, persons, or practices may be deemed political. Violence or even discrimination against an ethnic or racial group, as well as a proscribed labor strike or picketing against a private employer, can be perceived as a political crime when those in power see such conduct as undermining the political stability of the state.

A political offender, finally, need not be charged with a crime or be dealt with through criminal sanctions. Politically suspect individuals may be subjected to other burdens and liabilities. Restrictions on public employment and office-holding have been imposed not only on Communists but on others whose allegiance to the government was in doubt. Limitations on travel and association, curfew, and exile have been applied not only to the Japanese-Americans during World War II but also to Native Americans throughout our national history...

Denial of Political Crime in America

... reference to "political crimes and criminals in America" usually brings a puzzled look to the faces of an American audience. Presenting the notion that the concept of political crime might have a place in American social science or law brings forth either a denial of the validity of the concept or the opposite assertion that all crimes are at root political. Neither of these responses is particularly helpful in assessing or addressing the very real problems associated with the existence of unorthodox political beliefs or with the resort to unlawful methods for attaining political ends.

Despite the inability of the public, the social sciences, or the law to articulate some general, neutral, and acceptable definitions of the phenomenon, the archives of United States history are full of evidence of political violence and struggle from the beginning of this continent's colonization. The public's lingering suspicion that political crime-however inadequate its definition-indeed exists in our midst has been fed further by a series of governmental measures designed to combat "royalists," "traitors," "seditionists," "political prisoners," "anarchists," "syndicalists," "communists," and other breeds of dissidents.

Nevertheless, Americans have long adhered to the contradictory belief that the history of this country has differed radically, and for the better, from the heritage of the less civilized countries and even that of other Western nations. Europe, despite its advanced civilization, was conceded to have had a violent foundation and a convulsive history. In both scholarly and public opinion it is admitted, therefore, that [a]s comforting as it is for civilized people to think of barbarians as violent and of violence as barbarian, Western civilization and various forms of collective violence have always been close partners. ... Historically, collective violence has flowed regularly out of the central political processes of Western countries.... The oppressed have struck in the name of justice, the privileged in the name of order, those in between in the name of fear. Great shifts in the arrangements of [European] power have ordinarily produced-and have often depended on-exceptional movements of collective violence.

In contrast, both political leaders and social commentators have painted the United States as being endowed with a manifest destiny and a distinct governmental style. "[A]mericans since the Puritans have historically regarded themselves as a latter-day 'chosen people' sent on a holy errand to the wilderness, there to create a new Jerusalem," wrote historian Hugh Davis Graham and political scientist Ted Robert Gurr. On the new continent settlers were to attain the Peaceable Kingdom, the restored Eden that nineteenth-century American painter Edward Hicks so frequently portrayed. Within its boundaries the true realization of Isaiah's prophetic promise was to occur. "The wolf and lamb shall feed together, and the lion shall eat straw like the bullock; and dust shall be the serpent's food. They shall not hurt nor destroy in all my holy mountain...."

With characteristic faith and optimism the American nation-said by Benjamin Franklin to be founded by the design of providence to cultivate the new earth - was believed to be the agent of destiny in the realization of humanity's utopian ideals and progress. There developed, concurrently, what historian Richard E. Rubenstein called "The Myth of Peaceful Progress." The myth professed that the United States, alone among nations, was the place in which extremely diverse groups had learned to compromise their differences peaceably. American society, it was held, had been blessed by a blurring of divisions between its multiple economic, social, political, and ethnic groups. This achievement was attributed to a combination of factors, including the fertility of the land and the richness of its resources, the tendency of the people to be hardworking, the fact that neither a true aristocracy nor an impoverished proletariat grew roots on this soil, and finally, the ability of the Constitution and the two-party system to provide an ideal instrument for political compromise. There was a general conviction that "any sizeable domestic group could gain its proper share of power, prosperity and respectability merely by playing the game according to the rules." In an America which had, through the design of destiny, constitutional doctrines, and pragmatic politics, perfected the unique art of peaceful power sharing and transference, so necessary for continuing change and progress, there was no need for violent political, social, or economic conflicts.

But the riots in the urban ghettoes and the student and Vietnam-connected unrest of the 1960s produced an awareness of the uses of political dissent and violence and a revision of the traditional or change-through-consensus view of United States history. When black activist H. Rap Brown asserted that mass political violence was "as American as apple pie," the public was shocked. Serious scholars, however, soon joined in debunking the myth of peaceful progress. The Reverend Theodore Parker's voice was a daring and lonely one when he proclaimed in 1848: "We are a rebellious nation; our whole history is treason; our blood was attainted before we were born." Yet, well over a century later, prominent historians and social scientists have embraced his claim.

"For more than two hundred years . . . the United States has experienced regular episodes of serious mass violence related to the social, political, and economic objectives of insurgent groups," Richard E. Rubenstein asserted. The Staff Report to the National Commission on the Causes and Prevention of Violence reached similar conclusions. There has been a vast amount of violence, pointed out the report, "connected with some of the most constructive, positive, and indeed, among the noblest chapters in our national history." But some of the most ignoble, destructive, and undemocratic chapters of American history have likewise been connected with political violence, disorder, and subversion.

The Founding Fathers were political offenders all. But although traitors in contemporary English judgment, they were patriots in their own eyes and in the subsequent view of history. This resort to illegal or extralegal political means, however, did not come to an end in America with the founding of the new nation or the Republic. Crimes committed for political ends manifested by rebellions, treasons, assassinations, homicides, hostage taking, bomb throwings, seditions, draft evasions, and widespread civil disobedience have influenced and continue to affect dramatically the political life of the nation.

Despite America's virtually unbroken tradition of political dissent, crime, and violence, American criminal law and jurisprudence, following the dictum of English Common Law, refuse to take account of assertions of political motive, ideology, conviction, or demands of conscience as a justification, excuse, or defense. Obscured by the precept of criminal law that only intent to commit the prohibited act is important and that motive-evil or benign-has no bearing on guilt, political criminality has not been recognized by the American police, courts, or corrections system as a unique category of offenses.

This has resulted in a failure formally to accord political offenders a differential standing and treatment by the government and its agencies. Thus, while the laws of most European countries, as well as international law generally, grant political offenders a special and "honorable" status-by virtue of which they are exempted from demeaning penalties and from international extradition-the domestic law of the United States has continued to view political offenders no differently from common criminals. The argument that one was acting for a political motive or in adherence to the demands of a higher law or the values of one's conscience and beliefs has not officially penetrated American jurisprudence.

Author Brendan Behan, in his autobiographical Borstal Boy, reflected on this peculiarly Anglo-Saxon anomaly. As an adolescent Behan was active with the Irish Republican Army. After his arrest he was placed in confinement together with common offenders. To this he responded: "I knew . . . it was the usual hypocrisy of the English not giving anyone political treatment, and then being able to say that alone among the empires she had no political prisoners.

American law and the American criminal justice system never have denominated any portion of the country's massive criminal problem as "political crime." Even though the only crime defined in the United States Constitution, treason, is a political offense, neither this nor the other criminal offenses erected and used to preserve political order and governmental authority have ever been so designated. Never have these offenses been grouped together for common consideration, analysis, or criticism. Indeed, for a long time the country's legal and criminal justice experts failed to profess any interest in this compelling subject. So little concern have Anglo-American criminal justice scholars manifested for political criminality that when renowned Italian criminologist Cesare Lombroso published his major study of political and revolutionary offenses in 1890 (Il Delitto Politico e le Rivoluzioni), the topic was considered so irrelevant that no English translation was undertaken.

Neither a Nation of Lawlessness nor One of Oppression

American law's resistance to any doctrine of political criminality is not surprising. The colonies were conceived in political exile; the nation was born of treason and midwived by violent revolution. From the perspectives of stability and political order, the United States has not

overcome the fear of the skeletons in its closet. It is no wonder that to counter the lessons of its own origins, responsible leaders and politicians fostered the dogma that all evils of the past were the result of the tyrannical monarch, that in a democratic republic obedience to the law was the unquestionable duty of all citizens, and that existing political mechanisms were ample for peaceful reform. The proposition that ends might sometimes justify extralegal means became an intolerable heresy. Nevertheless, our national original sin was never quite expiated, and as is eminently apparent from the materials in this collection, extralegal, illegal, and violent methods are significant factors in weaving freedom, justice, and equality into the fabric of the American social order.

American law over the years has responded vigorously to real as well as to imagined challenges to authority. The law has prohibited various types of political or politically-motivated conduct-from treason and sedition to the education of blacks, from the advocacy of anarchy to voting by women, from office-holding by Communists to picketing and striking by workers, from interstate and international travel by dissidents and subversives to continued residence by suspect aliens and citizens. Diverse mechanisms and criminal or quasi-criminal sanctions for the control of political offenses and the punishment of political offenders likewise have been established. Federal and state laws have relied not only on penal sanctions but also on loyalty oaths, security investigations, the exclusion and expulsion of politically suspect aliens, the calling up of the military, the imposition of martial law, and the confinement of suspect populations in special camps as tools to maintain political order.

Political offenses in America have not necessarily consisted of overt actions. Failure to act, when required under law, has oftentimes constituted an offense. The law not only has prohibited direct opposition or attacks upon the state (by traitors, secessionists, or anarchists) but also has sanctioned those unwilling to render active service or offer verbal adherence to the state and its endeavors (conscientious objectors, refusers of loyalty oaths, and the like). From time to time the state has sought to protect not only its own agencies but also the interests of its power elites. Criminal penalties as well as court injunctions were utilized to ward off attacks against the Southern institution of human bondage and the Northern menace of labor organization. At times the people's resort to rights now considered guaranteed under the Constitution (freedom of speech, assembly, and association) were punished as sedition and criminal conspiracy. Finally, and frequently, political offenses have consisted of nothing more than the very act of being. Singled out on the basis of gender, color, race, ethnicity, or nationality, some populations were selected for adverse treatment-through criminal or other state sanctions-because of their perceived collective threat. Native Americans, blacks, women, and Japanese-Americans thus became political offenders by virtue of their nature rather than their deeds.

Unlike its doctrine, in actual implementation the American justice system frequently has differentiated between political offenses and offenders and common ones. Offenders motivated by political, ideological, or other convictions sometimes have been granted certain benefits, usually through the executive rather than the judicial agencies of government. Most amnesties and pardons granted by American presidents have been issued for the benefit of former political offenders-especially those who criminally resisted the prosecution of international wars or participated in domestic insurrections or civil wars. But differentiation has not necessarily resulted in more lax or benevolent treatment. From time to time, the political nature of the offense has triggered harsher sanctions and more oppressive policing measures. Through reliance on either explicit or implicit constitutional authority, the executive has employed measures against political offenders which are impermissible in the struggle against common crime, including suspension of the writ of habeas corpus, imposition of martial law, use of the militia for quelling mass disorders, trial by military tribunals without the protection of the Bill of Rights, the exclusion of civilian populations from militarily proclaimed defense zones, and the undertaking of comprehensive surveillance programs against suspect populations, without compliance with the warrant requirement or other constitutional safeguards.

... American history reflects frequent and continuing resort to unlawful means for political ends. Yet, despite this constant dissidence and fervor, America has become neither a nation of lawlessness nor one of oppression. Instead, spurred by the people's constant vigilance for liberty and equality and protected from severe oppressions of government, many competing nations, ideologies, races, religions, and economic systems have found here their best haven in the memory of human history.

***

Rebels, Reformers, Madmen, and Renegades

The study of political criminality in large measure brings together the investigation of two unorthodoxies-unorthodox politics and unorthodox crimes. To students of politics, the political offender is one who deviates from the orthodox or authorized political procedures in order to secure his ends. Since legitimate means of political action have varied throughout the history of the United States, a deviant is a person who resorts to political methods beyond those recognized by the positive law at any given period of time. A political criminal of one period or place therefore may not constitute an offender at another time or location. Yet despite this definitional relativism, the existing authorities continue to prevent and punish criminally any such political unorthodoxy and deviations from the permissible.

Criminologists characterize political offenders as unorthodox criminals, for they often admit to violation of the positive law but deny guilt and culpability-professing adherence to values higher than, or transcending those served by, the law. Political criminals lay claim to the authority of justice and morality, which ordinarily is presumed to lie behind the law. In their unorthodoxy they disown the egotistic mantle of the common criminal and assert the altruistic goal of the social reformer. To counteract this heroic stance, the government often seeks deliberately to trivialize and personalize the goals and deeds of political offenders.

... The law's failure to recognize the existence of the political offender, or to respond to his or her offer of noble motives, perversely translates into a negative comment upon the system of justice and its punishment of someone who might popularly be accepted as acting for the common good. But it is important to divorce the judgments of morality and history from the day-to-day questions posed by political criminality. Political criminals have been both heroes and villains upon the stage of politics. Thus we have George Washington, traitor to his king, and Benedict Arnold, recanting his treason and adhering once again to his sovereign lord; John Brown, leader of an armed raid upon the armory of the United States at Harpers Ferry, seeking to incite a slave rebellion, and Jefferson Davis, constitutional scholar and leader of the rebellion against the Union. There are other colorful figures in the play as well: Susan B. Anthony, confined to prison for her militant urging of women's suffrage; Eugene V. Debs, labor leader, disobedient to court injunctions and underminer of the World War I effort; Martin Luther King, Jr., leading unlawful demonstrations in Selma, Alabama; Philip Berrigan and Daniel Ellsberg, who broke the law to expose what they saw as the truth about the Vietnam War; Julius and Ethel Rosenberg, convicted of communicating atom bomb secrets to the Soviet Union; and Philip Agee, who sought to divulge the names of America's secret agents abroad. But however these figures ultimately are disposed of by the judgment of the ages, their activities at first glance meet the criteria of political crimes, although it might be said in some cases that such status is tenuous.

Resistance to "oppressive" taxes and to military conscription provided a rich source of political criminality in earlier American history, but can the modern tax protest movement or the opposition to Selective Service registration be so considered? And then there are the psychiatrically borderline assassins-John Wilkes Booth, Sirhan Sirhan, Arthur Bremer, and John Hinckley. Can their crimes be called political?

... As the nation moves ahead and encounters new challenges to the existing order, we would do well to have a firmer grasp than we currently do on the role and limits of political crime and the government's response to it.

First, admitting and then understanding our own record of political dissent, disobedience, protest, and violence also may help reshape our perception of political turmoil in other nations. We have frequently been appalled and our foreign policy thrown into imbalance by the sight of internal disruptions in other countries. Our own myth of peaceful change has obscured our vision and made us insensitive and intolerant to the complex moral as well as pragmatic issues raised by the conflict between just ends and unlawful means in a less than perfect world. A more realistic assessment of our past might aid not only in understanding internal conflicts in other places but in the shaping of a more consistent, just, and pragmatic American position in the international arena.

Two characteristics of American political dissent and criminality unambiguously emerge from these materials. First, the resort to unorthodox and extralegal political means in America may be described generally as a manifestation of a reformist rather than an insurrectionary mission. Political disorder in this country has usually been directed to modifying the use of power by government, not overthrowing it. Moreover, much of our political violence, as pointed out by historian Richard Hofstadter, "has taken the form of action by one group of citizens against another group rather than by citizens against the State.'' When governmental authority is enlisted to defend one group's interests, the strife usually changes from social or economic to political. Undoubtedly the political diffusion and the governmental decentralization of America, coupled with the notion that it is not the government's structure but its abusers that must be guarded against, have caused public dissatisfaction and political crimes to be directed not so much against "government" itself but against its "agents," its subdivisions, or individuals and groups representing some social, political, or economic "establishment" or power base.

Second ... the constant yet dramatic shift from rebellions, violent assemblies, and direct action to militant advocacy in the legislative halls and particularly in the courts. This may be described as a progression from militant deeds to litigiousness. The dominance of judicial cases in the second part of this volume is testimony of this trend.

Finally ... the ascendancy of nationalism and self-determination cannot be counted on to produce an end to political turmoil and violent fervor, in this country or elsewhere. From the warlike beginnings of Swiss independence and the American revolution to Garibaldi's and the Irish campaigns against foreign rule, and on to the contemporary struggles for national liberation, self-determination rarely has been achieved without illegal and violent means. Yet the hope that once self-determination and self-rule are attained, political continuity and change would be achieved through peaceful means has not been fulfilled in most countries. Discontented political, regional, tribal, ethnic, religious, lingual, economic, and racial factions frequently have set out to accomplish their unsatisfied claims through acts of dissent, subversion, violence, and rebellion, and the record of the present day shows no improvement.

Since they attained independence, during the post-World War II years, some two-thirds of Africa's forty-five nations have seen their regimes toppled by unlawful or extralegal means. In Latin America fourteen out of twenty-eight existing governments have come into power through means other than those constitutionally prescribed. Central America, in particular, has become the virtual powder keg of unorthodox political activism. Manifestations of political strife and disorder are evident, not only in Africa, Latin America, and Asia, but also among the European nations claiming long and established traditions of relatively peaceful political life and transition. Basques in Spain, Corsican zealots in France, ethnic dissidents in Yugoslavia, royalist insurgents in Albania, Scottish Nationalists in the United Kingdom, the Red Brigade in Italy, the Bader-Meinhof group in West Germany, and the IRA in Northern Ireland are a mere sampling of the diverse political activists in contemporary Europe.

Although comparisons are inherently suspect, we believe that these materials demonstrate that our experience with manifestations of political crime is not wholly unlike that of other nations. Thus it may be that careful analysis of the treatment of political offenders in foreign countries would be useful in forging a principled American response to domestic political crime. The similarity suggests also that the study of our experience might be fruitful for others, for despite our definitional myopia, our inability to achieve the Peaceable Kingdom, and our failure to solve internal problems without resort to unlawfulness and violence, the stern and severe governmental responses thereto have stayed within civilized boundaries and have never thrown this nation into a reign of terror or long-term irreversible oppression - such as occurred in revolutionary France, in the twentieth-century Soviet Union, Nazi Germany, and Fascist Italy, and in an increasing number of post-World War II regimes worldwide.

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