Security and civil rights; Telford Taylor

A lot of people think that law enforcement is more is the more important thing and the protection against self-incrimination is an obstacle to law enforcement. We can go into that a little bit later maybe that was the voice of Telford Taylor a former general in military intelligence and chief prosecutor at the war crimes trials in Nuremberg Germany. Attorney Telford Taylor is our guest authority now on security and civil rights. This series is produced by the University of Minnesota radio station under a grant from the Educational Television and Radio Center in cooperation with the National Association of educational broadcasters. Well Mr. Telford Taylor will speak primarily on the place of the Fifth Amendment in security loyalty programs. He also will discuss a topic for which he is uniquely qualified. The comparison of law in a democracy and a dictatorship. To introduce our special guest here is the consultant commentator for security and civil rights a member of the law faculty of Columbia University. Professor money mad Paulson.

In considering the problems which arise under any security loyalty program of the sort that we have in the United States it is not possible to consider this program and keep it within the confines of our own ideas and our own legal system. We must ask whether what we have done is as good as what some other nation has done and we must ask whether what we have done has consequences which we can see only when we look into a foreign system. To discuss. This aspect of our problem of security and civil rights we have with us on this program Mr. Telford Taylor former counsel for the Federal Communications Commission general and military intelligence chief prosecutor for the United States at the war crimes trials in Nuremberg Germany and the author of the sword in the swastika and grand inquest. This is Philip Gale producer of security and civil rights. I interviewed Mr. Telford Taylor in

his law office in New York City and before he discusses the things that Professor Paulson has told you about we wanted him to tell us some of his observations on the Fifth Amendment the Fifth Amendment. I take it the part of it you're referring to is the part which provides that nobody should be required to be a witness against himself in any criminal case. And that is a constitutional version of an old principle of law which has been applied in criminal cases for oh hundred fifty years before the Constitution was adopted it came into existence in England around the middle of the 17th century around 16 50 and it came to it came into being because in those times as now questions of politics and point of view. Were a very important part of life and verged into what we would now call security matters. At that time of course people were much more concerned about

religious use than they are today and there was a great deal of calling people up on charges of heresy on this behavior of various kinds of the church took cognizance of and they got into the habit of calling people and requiring them to answer any kind of question at all about their personal lives relating to their behavior in the home their religious behavior what they read all kinds of things like that. Well at the same time of course you had a growing tradition in England of personal freedom objections to Inquisition and search and see here. And it was because of the growing objection to this kind of inquisition into a person's very personal thoughts and reading habits and family habits. That people began to object to answering these questions now by the time we came to draw our own constitution in this country. That privilege had been had become very solid in English common law and indeed the the right of a witness not to be required to testify against himself was put into the race

of the state constitutions. A number of years before the Federal Constitution was adopted so that in 1789 when the Founding Fathers got together to draft a constitution this was a thing which was very familiar to them it was part of the Constitution in Virginia and Massachusetts and elsewhere. This privilege against self-incrimination was without much discussion or argument put into the bill of rights when it was adopted in 1791 because it had by then become a very familiar part of criminal practice both in England and in the United States. It is plain that the Fifth Amendment has in recent years assumed an importance that it hasn't had for a long time before that. Of course if you look back at history of our country until recent years there were only a few periods when matters of loyalty and disloyalty and subversion and that kind of thing seemed important or indeed were anywhere near as important as they are today. And there is great argument about whether his Whisenhunt wise and great argument about whether people who

invoke the Fifth Amendment should be deemed guilty of being communists when a question about communism or what the inference is should be. So I would say that it is far more important today than it has been for a great many years before. But one other thought that we find now the fifth amendment very much back in the same field in which the privilege operated when it first came into existence in England a hundred years ago because it was during just such a time in England when men's points of view and associations were under governmental scrutiny that the privilege emerged. That's what gave rise to doing so in a sense we sort of come full circle. Come back to the same state of affairs that gave rise to Christmas. The next major question I asked of Telford Taylor in his law office in New York City was whether or not he could give us any examples of how the Fifth Amendment the portion of the Fifth Amendment against self-incrimination might have been used in our nation's history in situations where communism was not

involved. Well there were occasions when not the Fifth Amendment itself but this old privilege against self-incrimination. On which the system and is based were invoked in the very early days the Republic in fact it was used to the trial of Aaron Burr. One of the witnesses declined to answer questions on the ground that he didn't want to incriminate himself. Curious. Enough after that time the first person who made specific reference to the privilege against self-incrimination was President Andrew Jackson. He was called upon by Congress to give a list of people that he had removed from public office when he came into office we had the same a spoil system and all. And he replied that he that he thought that he was being required to be a witness against himself and refused to give Congress information though he didn't make any express reference to the Fifth Amendment. The first person that I know of who invoked the Fifth Amendment as against a demand from Congress was President Ulysses S. Grant and the

circumstances have some of them using the contemporaneous flavor I would say it came about in this way. Toward the end of Grant's second term of office we had as we do now a a Democratic Congress and a Republican president. So there was considerable hostility between Congress and President ground because there are different parties that President Grant I might say like a president company likes to go away from the White House for vacations and he spent the entire summer of 1872 or thereabouts. New Jersey at Red Bank. And when he came back from his long summer vacation the House representatives called upon him for a list of all the executive acts that he had performed away from the seat of government. Thereby they were of course trying to rub in the fact that he'd been away a long time and had been tending to business. Well he wrote back to the House of Representatives that. He couldn't see any real

legislative purpose in this request why Congress needed the information. White House needed it and therefore he assumed it is must be for purposes of impeaching him or the House of Representatives trying to get together information on the basis of which to impeach him. And he said if that's the purpose I must remind the House that there is an ancient privilege embodied in the system under the Constitution that protects every citizen in the land from the highest to the lowest from being made a witness against himself. And I will decline to answer the question so you can say President Grant placed himself straight on the base of the Fifth Amendment and declined to give the House of Representatives this information. To sort of bring that into touch with modern affairs you know this famous phrase if I'm a communist Senator McCarthy and some others have used so much the implication of which is that anybody who is asked whether or not he's a communist and who police of the moment can probably be assumed to be a communist. Well I suppose if one applies that same logic to the Grant situation that one would say that to grant us the Fifth

Amendment lover. Mr. Telford Taylor had brought us around to one of the key questions in this area and that is if one invokes the Fifth Amendment right of silence to be let us say before a congressional committee investigating communism should this person be viewed as a communist. No I don't think that any such inference can be drawn and I don't believe that anyone who understands the system of this background would ever take the position that the mere fact of pleading the Fifth Amendment. True is that the answer the question would have been an unfavorable one in other words if a person is asked whether or not they are or have or ever have been a communist. And they plead the Fifth Amendment. It is not a legitimate conclusion at that point that they probably are communist. Now you want to know why and for that we have to go back to for that to the reason for this privilege You bet. There's a lot of argument about whether this privilege is for the benefit of the innocent or for the benefit of the guilty.

We continually see discussions about that at that point. Well to my mind it misses the point. If you assume that a person is innocent of course he does not need to plead to privilege he can ask the question in Clara's self. If you assume that he is guilty why then there seems to be no reason to give him the protection of this privilege we want to find out that he's guilty and impose whatever punishment is appropriate. The fact of the matter is that this privilege is for the benefit of the accused. Before you know whether he is innocent or guilty let's take the guarantee of a jury trial. We don't think of that as being for the protection of the innocent or the guilty. That is one of the techniques we use. Well just so with his pro he's against self incrimination it has been decided rightly or wrongly that a person's own testimony forced from him is not a wise way of determining whether he is guilty or innocent. But it is therefore a mistake to think of the privilege as being for innocent or guilty it is for the

accused it is part of a bunch of laws a bunch of principles that are used in determining guilt or innocence an innocent person named want to avail himself of the privilege against self-incrimination. Now that's the abstract side of it let's get concrete. And my first illustration on this is not taken from the field of security and loyalty but yet I think it will be a pretty good demonstration of why an innocent person. May want to avail himself of the privilege against self-incrimination. And here is the illustration which I think will point it up as well as anything else. Kind of a colorful one. This goes back to Cornell University in the 1890s relations as you know relation between the freshman and sophomore classes at college is sometimes a little strange to have things like hazing that sort of thing seems to be very much more rigorous and Cornell in the 90s and it is today.

At all events they had a custom at Cornell I don't know where they still do are not that the freshman class would have an annual banquet toward the end of and the freshman year. And the sophomore class always tried to disrupt and disturb and generally play high. With that background well and here I'm speaking out of the Sophomore class was particularly energetic in his pursuit they found out where the bank was going to be held. And they went down under the floor of the banqueting hall and bored holes through the floor and then they put big jars of chlorine gas down in the basement and when the freshman class came in to have their banquet they sent chlorine gas up through tubes through the holes into the banqueting hall. Well it made it very thoroughly disrupted the bank which made the freshman class very sick indeed. But it had tragic results also because they put some of this gas into the kitchen and it killed the cook so that was an offense known as the last homicide in the grand jury began to look into this matter of the chlorine gas and they called as one of the witnesses before the

grand jury. A namesake of mine a sophomore named Taylor. And he was he testified before the grand jury that he was a sophomore that he studied chemistry that he had learned in chemistry how to make chlorine gas and that he was the roommate of another student who was the one most under suspicion for having instigated all this but he denied that he had anything to do with it at this point. He refused to answer any other questions. And the district attorney asked him if he knew where the gas had been procured if you know who had bought the jar eyes where the rubber tubing came from. All these questions were put to him and he declined to answer on the grounds that he shouldn't be required to incriminate himself. Well it just your turn he said that he should be punished for contempt because he had denied that he had done this and therefore must be presumed to be innocent. And if you're innocent he had no right to claim the privilege.

He should answer the questions on the ground so well this case went clear up to the Court of Appeals in New York State and the court very definitely pointed out that he was a person who although he might be assumed to be innocent as he said still he was in such a relationship to the episode here and there are so many incriminating features his his close relationship to another man under suspicion. His admitted study of chemistry and knowledge about chlorine gas. All these things clearly were things that cast doubt on his innocence and therefore he could legitimately and rightly. Refused to answer any further questions at my time of any closer. And this said the court is equally true even though he may be assumed in fact to be innocent as indeed it was subsequently established that he was indeed innocent to begin with let's remind ourselves that whether one is innocent or guilty may indeed be a fact. But the law is and is an imperfect way of finding out. We have juries we have

evidence but sometimes things go wrong. And the privilege is not against incriminating yourself but against giving evidence which would tend to incriminate you. In other words a person may in fact be innocent and yet there may be circumstances which would bring him under serious severest suspicion and a disparate to protect himself against that that the privilege was created. Now let's hasten to look at the other side of it mellow. There is an equally misguided school of thought that if you plead the Fifth Amendment you're sort of assumed to be innocent. Some people are making out making out to be heroes people who plead the Fifth Amendment Well of course it isn't anything of that kind it is the fact that you plead the Fifth Amendment doesn't give you any certificate of good character. In fact it's a thing to be avoided if you possibly can avoid it. The average person of course likes to be completely free and open about what he has done and to speak up in defense of his own accord. Concept but circumstances do occur when an innocent person may

have a very real need to use this privilege and the privilege was designed for innocent as well as guilty as I said it was designed for the accused. To assist in determining whether he is innocent or guilty. I then asked attorney Telford Taylor if it wasn't possible for criminals and communists to use the Fifth Amendment and other legal precautions to get around the law. In other words for criminals and I was being investigated on national security programs to hold up investigations by request of these legal precautions. And let's take that separately from from first and standpoint of criminals in general and from the standpoint of security and loyalty and that kind of thing. There is no question that the privilege against self incrimination does sometimes stand in the way of the authorities getting the relevant facts. On questions of crime that is of course true. Now let me say this. The Lot of course is meant to be enforced but the law has also got to be confined to a reasonable

area of human life so that doesn't overflow and choke everything else up. Let me put it this way. There undoubtedly would be a lot less fires if everybody spent all their time trying to prevent fires. But in the process of it we wouldn't get enough to eat. Civilization wouldn't advance in every house go to pot just so there would be a lot less crime if we put a microphone in every room and tapped every telephone and took every possible precaution against crime. But in so doing we would have depleted and eliminated a lot of the other values of life. Life would cease to be as relaxed and or feel as free as it is now. And therefore the law if it is to be in proportion to human society as a whole must not only be administered. In general fairly and good law enforcement extensive on force meant but it must also be confined in terms of life as a whole so doesn't swallow everything else. So admittedly we pay

some price in terms of law enforcement when we have these basic guarantees of liberty of which the Fifth Amendment is only one. Now that of course brings us simply back to a question of degree. Are we paying too high a price for the Fifth Amendment. Well I would say no. And the next thing I'd like to remark is that there are ways of preserving the Fifth Amendment and at the same time getting the information that is necessary for law enforcement. That way has been utilized in England from time to time ever since 300 years ago and that way is to pass a special statute which will give immunity to people who testify so the authorities can get the necessary information and the press and will be protected against prosecution and therefore unable to plead the Fifth Amendment because after all if the nominee is it is a protection against subsequent criminal prosecution.

And if you remove that risk then you can require the president to answer the questions. Now Congress did pass just such a statute to cover national security cases two years ago and the Supreme Court handed down a decision upholding that statute. It's the case of all men against the United States of America decided on March 26. It was quite a historic case the court was sharply divided in the majority opinion by Justice Frankfurter and dissents by Justices Douglas and black. But the case reaffirmed earlier decisions of the court. Holding that you can give people immunity from subsequent prosecution and then require that they answer questions. So in the field of national security subversion and disloyalty and so forth. If it is important enough in a particular case Congress can give the individual immunity and require him to answer questions in that event the person will not be able to plead privilege against self-incrimination he will have to answer the questions or go to jail for

contempt and the governor will get the information. Now I'm just one of the footnote on that. The what the portion of this statute proposing is that making these grants immunity possible has a part that applies to grand juries and a part that applies to congressional committees. They are quite different. The Supreme Court in this case has upheld only the portion relating to grand juries and has not considered the portion relating to congressional committees. I have no doubt that Congress can constitutionally grant immunity to witnesses before congressional committees. But there do have to be some technical flaws in my opinion in the statute they passed last year on congressional committees too technical I think to bother with here. So that I personally have great doubts whether the other part of the statute in its present form is constitutional. However the difficulties of the statute are readily susceptible of amending and I would think that

there is really no reason why we shouldn't have the same principle applied to congressional committees as we do to grand juries. This to me would have to be neat experience any concrete legal concepts a totalitarian country. I appreciate if you would contrast their illegal methods and concepts with me pretty happy with a democracy. Yes well of course there are a number of respects in which there are no significant differences between law and in democracies and dictatorships. There's a vast field of private interrelationship where what you mostly need is some predictable pattern so people can counter and predict the future in their relations of it and all countries need that. Of course the origins of the Soviet system now for quite a long time ago it's because nearly 40 years since the Soviet system came into existence in Russia and most of us are pretty young at the time and I guess don't have rights. There are a collection of

I didn't know much about a czarist law and just what happened to law in Russia when the Soviets came in. But in Germany things are much more recent. And Germany was a country that most of us know a good deal more about. And there the whole change in the role of law in human society as Hitler came to power is is pretty clearly traced. In fact it was the subject of one of the Nuremberg trials. One of the Nuremberg trials was concerned with Nazi judges and prosecutors who had used legal devices such as trials and things like that for really criminal purposes. Now how did that come about after all Germany was a highly civilized country. We don't have time here to go into the whole question of how there came to be a dictatorship. But if we look at the effect on law the lesson is very clear. In the early days of the dictatorship a good deal of the old German legal system persisted and there continued to be a considerable amount

of professional independence in the German judiciary. Even the first few years under Hitler. Then came the war and. Even before the war of course you had the whole Jewish question and the undermining of the legal status of the Jews as individuals. Then when the war came you had the same problem with poles and other nationalities that came under German occupation. Now at first the Germans dealt with the Jews and these are the subject populations from conquest by passing special laws to deal with them. They would pass laws saying that no call could or should do this or that or no you should have the say that right. But curiously enough that was not enough for their purposes because as long as you depend on a law even though it is a very discriminatory and harsh law. Circumstances are going to arise that you do not envisage in

which it will develop that even under your harsh law the minority person has a right which would seem to be asserted they were rationing laws applicable to Jews. There were very harsh Russian laws but harsh as they were they seemed to give the Jew protection up to a point. Well but there came a point in the suppression of the Jews when it began to seem to have learned the fanatical Nazis and undignified an impossible thing to have a Jew proved right. Before a court even under these harsh laws Well it began to prove very rapidly that the whole idea therefore of law was not serving the basic purpose of humiliating suppressing and ultimately eliminating these minority populations. So they had to get away from the idea of precise laws and set up special courts that people's courts where instead of enforcing the law they simply enforced the policy of the dictatorship. The matter what the law said about Russians are about the right to own property or the

right to be a lawyer or anything else. If the jew or the Poles or the other subject nationality was haled before that court whether he was right or wrong under the law he'd get it in the neck. Well that's simply in the end therefore becomes the abolition of the law you no longer have any stable relationship that the individual can depend on in his relations with the government. But when we come to the end. Of the whole field of. Individuals and their relationship to the government of course there I think the simplest thing to say is this that the whole idea of law as between the individual and the government is impossible under a totalitarian government. Indeed I don't know of any better definition of what a totalitarian government is than to say that it is a government where there is no law governing the relationship between the government and the individual. And that is my notion of what law is in a democracy is some kind of a definite kind of principle

by which the individual's relationship to the state is governed. That's what disappears under the under under under dictatorship. That is why anything like the Bill of Rights say nothing to the Fifth Amendment is unthinkable under a dictatorship. Because basically the Bill of Rights is a limitation on the right of the state to pursue the individual too far. It is in fact achieving this balance I spoke of earlier. It is to guarantee that the state doesn't walk in and swamp and absorb all of life leaving nothing to the individual. That was Mr Telford Taylor a former general in military intelligence chief prosecutor for the United States at the Nuremberg War Crimes Trials and author of grand inquest. Next week security and civil rights will feature Washington journalist Ellen buck author of the loyalty of free men. And government by investigation. Security and Civil Rights has been produced by the University of Minnesota radio station

KUVO and under a grant from the Educational Television and Radio Center for distribution by the National Association of educational broadcasters. The consultant and commentator for this series is professor of law of Columbia University. Security and civil rights is edited and produced by Philip. Your announcer Chiles brand. The preceding tape recorded program or the presentation of the end E.B. Radio Network.