A-5300756.(formerly 55696/820)
Decided by Central Office December 16, 1948 Decided by Board May 13, 1949
Communist Party of U.S.A. — Membership therein (at least from 1925 to October 1939) as ground for deportation — Act of October 16, 1918, as amended — Evidence — Constitutional law questions.
(1) It was found that during the period of the admitted membership of the alien (at least from 1925 to October 1939) in the Communist Party of the U.S.A., that party advocated the overthrow by force and violence of the Government of the United States; and during that period (at least) this party distributed printed matter that so advocated.
(2) The act of October 16, 1918, as amended by the act of June 5, 1920, was further amended by the act of June 28, 1940; and the legislative history of the act of June 28, 1940, shows it was enacted, specifically to include past membership in a proscribed organization.
(3) It is not within the province of the Board of Immigration Appeals (nor that of the Service) to pass upon the constitutionality of statutes enacted by Congress.
CHARGES:
Warrant: Act of October 16, 1918, as amended by act of June 5, 1920 — That he is a member of or affiliated with an organization, society, or group that believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States or of all forms of law.
Lodged:
(1) Act of October 16, 1918, as amended — Found to have been after entry a member of the following class set forth in section 1 of said act: An alien who believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States.
(2) Act of October 16, 1918, as amended — Found to have been after entry a member of the following class set forth in section 1 of said act: An alien who is a member of an organization, association, society, or group that believes in, advises, advocates, teaches the overthrow by force or violence of the Government of the United States.
(3) Act of October 16, 1918, as amended — Found to have been after entry a member of the following class set forth in section 1 of said act: An alien who is affiliated with an organization, association, society, or group that believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States.
(4) The act of October 16, 1918, as amended, in that he is found to have been, after entry, a member of the following class set forth in section I of said act: An alien who is a member of and affiliated with an organization, association, society, and group that advises, advocates, and teaches the overthrow by force and violence of the Government of the United States.
(5) The act of October 16, 1918, as amended, in that he is found to have been, after entry, a member of the following class set forth in section I of said act: An alien who is a member of and affiliated with an organization, association, society, and group, that writes, circulates, distributes, prints, publishes, and displays, and causes to be written, circulated, distributed, printed, published, and displayed, and that has in its possession for the purpose of circulation, distribution, publication, issue, and display, written and printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States.
BEFORE THE CENTRAL OFFICE
1. INTRODUCTION
A. Respondent's Personal History
The respondent testified he is a native and national of Greece, who has resided in the United States since 1916. He claims that he was then about 13 years of age and identified a record of admission in 1916 (Ex. 2), as relating to him. This entry-record shows the arrival of P---- H---- on March 7, 1916, at New York. In addition to such name the respondent stated that he had also used the name of P---- H----, P---- H----, and P---- H----. A variation in spelling of H---- but phonetically similar was also used: to wit, H----. He will be referred to hereafter as P---- H---- or as respondent.
The respondent states he came here with his father who later returned to his native country. He states that he became a member of the Socialist Labor Party of America about 1922 or 1923 at Akron, Ohio, and remained a member until about 1925; that he joined the Workers (Communist) Party about 1925, and such organization changed its name to the Communist Party of the United States of America about 1929 while he was a member. He remained a member of the Communist Party of the U.S.A. until dropped in October 1939 because of his noncitizenship. He stated that in 1932 he became a member of the Greek Bureau of the Communist Party of the U.S.A. (a subdivision thereof); and that he became a secretary of this Greek Bureau of the Communist Party of the U.S.A., in 1933. He was associated with its publication, the Empros, from 1933 up to about October 1939, serving in the capacity of "sort of an editor" on the writing staff.
In addition to the above organization-membership, the respondent stated that he became a member of the International Workers Order in 1935 and has remained a member thereof since. This included a period of membership in a branch of the International Workers Order known as the Hellenic American Fraternal Society from about 1933 to about 1940. In 1941 he belonged to a Greek club in New York called "Spartacus." The respondent also stated that he is a member of the Greek American Council, which was organized to acquaint the American public with the International Liberation Front of Greece, called "EAM," and has been such a member since about 1944.
The respondent admitted that he worked as an organizer for the Workers (Communist) Party and the Communist Party of the U.S.A., at least for a period from about 1928 through 1930. He admits that he was arrested for "strike activities" about three times at New Bedford, Mass., about 1928; about four or five times between 1928 and 1930 at Fall River, Mass., for "strike activities" and once at Wheeling, W. Va., for "unemployment demonstrations," in 1930.
B. History of These Proceedings
On March 6, 1930 a sworn statement was taken from the respondent at New Bedford, Mass. by this Service (Ex. 6). It was signed by him in the presence of two officers of this Service. As a result a warrant of arrest was issued on April 12, 1930 (Ex. 1) charging him with having been found in the United States in violation of the act of October 16, 1918, as amended by the act of June 5, 1920, on the ground of membership in or affiliation with an organization that believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States or of all forms of law. This warrant was issued because in his sworn statement on March 6, 1930, he had asserted that he was a section organizer of the Communist Party, at New Bedford, Mass., for about 10 or 11 months; that he did not believe in the Government of the United States as it was then constituted; that it was the purpose of his party to overthrow the form of Government here then and to establish a worker's government. At that time he denied that he or his party believed in violence to accomplish such purpose.
This sworn statement was taken from him at New Bedford, Mass. on March 6, 1930. Thereafter this Service was unable to locate him to serve a warrant of arrest upon him at New Bedford, Mass. He was looked for in Boston, Mass., in May 1930; at a certain address in New York in June 1930; and at Milwaukee, Wis., in January 1931. He now states he never sought to avoid process, that he moved about for a few years until he settled in New York or Brooklyn about 1933. His case was reactivated in 1943 by checking his alien registration record as a preliminary to an investigation. Later, his whereabouts was ascertained. On May 2, 1946, the warrant of arrest was served.
Hearings were conducted on October 15, 1946, and January 30-31, 1947. The first three lodged charges mentioned above were urged by the Government against the respondent and deportation to Greece was recommended thereon by the Presiding Inspector on March 11, 1947. The record was forwarded to the Central Office in May 1947 and thereafter a brief was submitted by counsel. Shortly thereafter, on August 5, 1947, the hearing was ordered reopened by the Commissioner of this Service in accordance with the provisions of part 150.8, title 8, Code of Federal Regulations. It directed that the case be reopened for the proper authentication of documents already introduced in evidence, for the reception of additional evidence, and should the facts warrant, for the lodging of certain additional charges.
Reopened hearings were accordingly conducted on February 18-19, 1948, at which time two charges were added to the previous lodged charges (No. 4 and No. 5 of above-lodged charges). At counsel's request accommodation was granted for continuance of the hearing and hearings were conducted in this case on March 9-10, 1948. The Presiding Inspector made his findings on June 24, 1948, and the Examining Inspector noted his exceptions thereto on June 30, 1948. At counsel's request, several extensions of time in which to submit a brief were granted, until October 19, 1948. On October 19, 1848, counsel submitted a supplemental brief and presented oral argument on that date at the Central Office. Counsel excepts to findings of deportability, asks that warrant proceedings be canceled, the alien to remain here and to be allowed to proceed toward naturalization.
C. Authority for Ordering the Hearing Reopened on August 5, 1947
Counsel has attacked the order of the Commissioner of August 5, 1947, which directed that the warrant hearing be reopened before decision, under the provisions of 8 C.F.R. 150.8 Counsel asserts there was no "proper cause" for reopening, and that this was done in bad faith to harass the respondent. Counsel contends that the reopened hearings after August 5, 1947, were without adequate authority and hence should not be considered in the determination of this case.
The relevant portion of 8 C.F.R. 150.8 is quoted herewith:
The Commissioner may direct a reopening of the record of hearing for proper cause at any time prior to such time as an appeal from his order may be entered in accordance with the provisions of section 90.3 (a) of this chapter.
As stated, the hearing in this case was ordered reopened on August 5, 1947, to authenticate documents already introduced into the record, to receive additional evidence, and, should the facts warrant, to lodge two additional charges. It is palpable that such cause for reopening was strictly pertinent to the proceedings, and was reasonable, appropriate, and timely in connection with good administration to assure proper disposition of the case.
There can be no question that the matter of determining "proper cause" under this regulation, is for the Commissioner to decide. A number of factors may be considered in reaching such a decision. But in this case there is no evidence that the Commissioner exercised judgment either improperly, capriciously, or arbitrarily in this matter of reopening on August 5, 1947. Indeed, it is plain from the order itself what the proper cause was. In no sense has it constituted error, prejudicial or otherwise. The alien was at large, released on his own recognizance, during the intervals between the hearing dates. He was given ample notice of the intention to reopen. (Five months elapsed after the hearing was ordered reopened and the parties sent their notice, before reopened hearings began). The alien was accorded plenary opportunity to properly present evidence on the issues and to show cause why deportation should not ensue, during the course of the reopened hearings. In fact, final hearings were deferred at the alien's counsel's request, from February 19 to March 9, 1948. Accordingly, the order directing reopening on August 5, 1947, must be considered valid and counsel's argument on this score is overruled. The hearing record will be considered in its entirety.
2. THE DEPORTATION STATUTE
The warrant charge is based on the act of October 16, 1918 ( 40 Stat. 1012), as amended by the act of June 5, 1920 ( 41 Stat. 1008) which reads as follows:
That the following aliens shall be excluded from admission into the United States:
( a) Aliens who are anarchists:
( b) Aliens who advise, advocate, or teach, or who are members of or affiliated with any organization, association, society, or group, that advises, advocates, or teaches, opposition to all organized government;
( c) Aliens who believe in, advise, advocate, or teach, or who are members of or affiliated with any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) the overthrow by force or violence of the Government of the United States or of all forms of law, or (2) the duty, necessity or propriety of the unlawful assaulting or killing of any officer of officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, because of his or their official character, or (3) the unlawful damage, injury or destruction of property, or (4) sabotage:
( d) Aliens who write, publish, or cause to be written or published, or who knowingly circulate, distribute, print, or display, or knowingly cause to be circulated, distributed, printed, published, or displayed, or who knowingly have in their possession for the purpose of circulation, distribution, publication, or display, any written or printed matter, advising, advocating, or teaching, opposition to all organized government, or advising, advocating or teaching: (1) the overthrow by force or violence of the Government of the United States or of all forms of law, or (2) the duty, necessity or propriety of the unlawful assaulting or killing of any officer or officers (either of specific individuals or of officers generally) of the Government of the United States or of any other organized government, or (3) the unlawful damage, injury or destruction of property, or (4) sabotage;
( e) Aliens who are members of or affiliated with any organization, association, society, or group, that writes, circulates, distributes, prints, publishes, or displays or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in subdivision ( d).
For the purpose of this section: (1) the giving, loaning or promising of money or anything of value to be used for the advising, advocacy, or teaching of any doctrine above enumerated shall constitute the advising, advocacy, or teaching of such doctrine; and (2) the giving, loaning or promising of money or anything of value to any organization, association, society, or group, of the character above described shall constitute affiliation therewith; but nothing in this paragraph shall be taken as an exclusive definition of advising, advocacy, teaching, or affiliation ( 40 Stat. 1012; 41 Stat. 1008-9; 54 Stat. 673; 8 U.S.C. 137).
SEC. 2. That any alien who, at any time after entering the United States, is found to have been at the time of entry, or to have become thereafter, a member of any one of the classes of aliens enumerated in section one of this act, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this act irrespective of the time of their entry into the United States.
SEC. 3. That any alien who shall, after he has been excluded and deported or arrested and deported in pursuance of the provisions of this act, thereafter return to or enter the United States shall be deemed guilty of a felony, and upon conviction thereof shall be punished by imprisonment for a term of not more than 5 years; and shall, upon the termination of such imprisonment, be taken into custody, upon the warrant of the Attorney General, and deported in the manner provided in the Immigration Act of February 5, 1917 ( 40 Stat. 1012-1013; 8 U.S.C. 137).
The lodged charges are based on the above act as further amended by the act of June 28, 1940 ( 54 Stat. 673) which reads as follows:
That any alien who, at any time, shall be or shall have been a member of any one of the following classes shall be excluded from admission into the United States: (The classes specified under ( a) ( b) ( c) ( d) ( e) set forth in the above-cited statute are repeated here.)
SEC. 2. Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in section 1 of this act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this act, irrespective of the time of their entry into the United States ( 40 Stat. 1012; 54 Stat. 673; 8 U.S.C. 137).
It is clear that the amendment by the act of June 28, 1940 changed the existing law to "meet the requirements indicated by the Supreme Court in its decision in the Strecker case." In Kessler v. Strecker ( 307 U.S. 22, 28, 30 October Term, 1938), the Supreme Court of the United States considered the contention that under the act of October 6, 1918 as amended by the act of June 5, 1920 the respondent Strecker was deportable "because, after entry, he became a member of a class of aliens described in section 1 of the act, to wit, a member of the Communist Party, an organization membership in which is made a cause of deportation because the organization believes in, advocates, and teaches the overthrow of the Government of the United States by force and violence." This contention presented the question whether the act rendered former membership in such an organization, which had ceased, a ground of deportation. Respondent insisted that such statute made only present membership in an organization described in the act such ground. The alien in that case had apparently terminated his membership when he was made subject to expulsion proceedings. The majority of the Supreme Court held that the act of October 16, 1918 as amended by the act of June 5, 1920 "does not provide for the deportation of such an alien." It stated that, "In the absence of a clear and definite expression, we are not at liberty to conclude that Congress intended that any alien, no matter how long a resident of this country, or however well disposed toward our Government, must be deported, if at any time in the past, no matter when or under what circumstances, or for what time, he was a member of the described organization." It concluded that it was present membership or present affiliation which required deportation. The 1940 amendment expressly included past beliefs, past membership or past affiliation.
House of Representatives report No. 994 of 76th Cong. 1st sess., 1939 to accompany H.R. 5138, p. 6; Senate report No. 1154, 76th Cong. 1st sess., Senate Calendar No. 1189 to accompany H.R. 5138, p. 5.
D. Objection of Counsel Regarding the Statute
Counsel has characterized the statute, with its 1940 amendment, as unjust. Counsel presented several constitutional arguments as to its validity, construction, and application. Whatever the merits of such contentions, counsel does not argue that such statute has been nullified by competent authority or that there is any warrant for this administrative agency to pass upon the constitutionality of the statute. Neither does counsel contend that this enforcing agency is relieved from the discharge of its duty of applying the statute. Consequently, counsel's observation and contentions about the statute's constitutionality are considered as marginal to these administrative proceedings before us. It is assumed counsel is preserving such arguments for whatever court action may be contemplated. Without more, we will proceed to a discussion of the charges.
The statute as amended by the act of June 28, 1940 was held constitutional in Ex parte Bridges, 49 F. (2d) 292 (N.D. Cal. 1943), as well as in Bridges vs. Wixon, 144 F. (2d) 927-938 (C.C.A. 9, 1944). In the case of Bridges vs. Wixon, 326 U.S. 135 (1945), the Supreme Court of the United States considered a deportation charge under this statute, as amended by the act of June 28, 1940, but the majority of the court held that it was unnecessary to consider the constitutional questions advanced in that case.
No statutory or other authority was indicated empowering this agency to pass upon the questions of constitutionality. Determination of constitutionality is a judicial function ( Marbury vs. Madison, 1 Cranch, 137) See Smith vs. Indiana, 191 U.S. 138, 148.
The prohibitions against "ex post facto" laws under art. 1, sec. 9 of the Constitution of the United States have no application to noncriminal actions ( Johannessen vs. U.S., 225 U.S. 227, 242), and deportation is not a criminal proceeding ( Zakonaite vs. Wolf, 226 U.S. 272, Bagajewitz vs. Adams, 228 U.S. 584 at 591). Constitutional limitations relating to "ex post facto" laws have no application to purely administrative proceedings ( Beazell vs. Ohio, 269 U.S. 167). The validity of a deportation statute is not affected because it may be retrospective in its operation or its application ( Ng Fung Ho vs. White, 259 U.S. 276).
"It is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful." ( Bagajewitz vs. Adams, supra, J. Holmes). Likewise as to Congress' plenary power as to the exclusion or expulsion of aliens ( Ng Fung Ho vs. White, supra, J. Brandeis; Volpe vs. Smith, 289 U.S. 422).
3. THE DEPORTATION CHARGES
A. The Warrant Charge
The warrant of arrest, dated April 12, 1930, was issued on the basis of the alien's sworn statement of March 6, 1930, that he was then a member of the Communist Party of the U.S.A. It charges him as deportable as a present member or affiliate of a prescribed organization, under the act of 1918 as amended by the act of June 5, 1920. The 1940 amendment thereto did not alter such ground of deportability, as shown before. Present membership, etc., continued to be a basis for deportation. This warrant of arrest was served upon the alien in 1946 and he was accorded a hearing subsequently to show cause why he should not be deported on such charge, i.e., as a present member or affiliate of a proscribed organization. There is no argument as to the sufficiency of such warrant of arrest.
At the hearing, the respondent testified that his association with the Communist Party of the U.S.A. ended about October 1939, because noncitizens of the United States were dropped by such party. He unequivocally admitted membership in the Communist Party of the U.S.A. from 1925 to October 1939, and that during such period at least, the Communist Party of the U.S.A. was a section of the Communist International, with which it was affiliated. There was no substantial evidence adduced during the hearings to indicate an associational relationship (as member or affiliate) with the Communist Party of the U.S.A. or the Communist International, on or after the warrant of arrest was served on May 2, 1946. The respondent denied he was a present member or affiliate of either the Communist Party of the U.S.A. or the Communist International. There was no substantial evidence that his relationship to these organizations extended beyond the period claimed (1925-1939).
As to the present associational relationship with other organizations heretofore designated, which the respondent disclosed, the record shows that no attempt was made in these proceedings to develop whether such organizations were of a proscribed nature warranting deportation under the warrant charge.
Present membership in or affiliation with a proscribed organization was not established in these proceedings. Accordingly, the Presiding Inspector properly concluded that the warrant charge was not sustained by the evidence of record.
B. The Lodged Charges
Pursuant to 8 C.F.R. 150.6 (1), three charges were lodged at the original hearing on October 15, 1946, and two more at the reopened hearing on February 18, 1948. These five charges were laid under the 1940 amendment of the act of October 16, 1918 and refer to a period in the past, sometime during the respondent's acknowledged association with the Communist Party of the U.S.A. and the Communist International from 1925 to October 1939. These charges will be set forth, followed by brief comment as to whether they overlap.
(1) Found to have been after entry a member of the following class set forth in section 1 of said act: An alien who believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States.
(2) Found to have been after entry a member of the following class set forth in section 1 of said act: An alien who is a member of an organization, association, society, or group that believes in, advises, advocates, teaches the overthrow by force or violence of the Government of the United States.
(3) Found to have been after entry a member of the following class set forth in section 1 of said act: An alien who is affiliated with an organization, association, society, or group that believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States. (4) Found to have been after entry, a member of the following class set forth in section 1 of said act: An alien who is a member of and affiliated with an organization, association, society, and group that advises, advocates, and teaches the overthrow by force and violence of the Government of the United States.
(5) Found to have been, after entry, a member of the following class set forth in section 1 of said act: An alien who is a member of and affiliated with an organization, association, society, and group, that writes, circulates, distributes, prints, publishes, and displays, and causes to be written, circulated, distributed, printed, published, and displayed, and that has in its possession for the purpose of circulation, distribution, publication, issue, and display, written and printed matter advising, advocating, and teaching the overthrow by force and violence of the Government of the United States.
Of the above lodged charges, No. 3 refers to "affiliation" and is directed at the alien's relationship to the Communist International. No. 2 refers to "membership" and is directed at the alien's relationship to the Communist Party of the U.S.A. No. 4 refers to both "membership" and "affiliation" and aims to more fully cover the alien's relationship to the Communist Party of the U.S.A. To the extent No. 4 embraces the "membership" already charged by No. 2, there is an overlap. Such partial overlap in these charges does not preclude conclusions of law supporting both of them.
It is clear the alien was fully apprised of the charges lodged against him and that he was accorded ample opportunity to be heard thereon. We may proceed now to examine the issues presented by the lodged charges.
4. THE ISSUES RAISED
The alien admitted unequivocally that he was a member of the Communist Party of the U.S.A. from 1925 to October 1939, and that at least during such period, the Communist Party of the U.S.A. was affiliated with the Communist International, as a section thereof. The issues presented are whether, during such period (1) these organizations advocated the overthrow of the Government of the United States by force or violence, (2) and the Communist Party of the U.S.A. distributed literature which advocated the same.
The alien testified he subscribed to the principles of the Communist Party of the U.S.A. while a member, but denied that he ever believed in or advocated the overthrow of the Government of the United States by force or violence. The final issue is whether this alien, during such period, believed in or advocated the overthrow of the Government of the United States by force or violence.
5. THE EVIDENCE
A. In General
The evidence in this case consists of testimony and exhibits. A list of exhibits is attached hereto as "Appendix A" and is incorporated and made part hereof by reference. On this list is shown the pages in the hearing where each exhibit was identified, introduced, or authenticated. For the respondent, the following exhibits were introduced; 14, 17A, 17B, and 33 through 44 inclusive. Government exhibits included 1 through 13, 15, 16, 18 through 32, and 45 through 48.
The respondent testified on his own behalf, and testimony was received from the witness he presented, one W---- S----. Testimony was taken from two witnesses presented by the Government, one G---- H----, and the other R---- P----.
Faint contention was raised during the hearing as to the "official" character of certain Government exhibits. In oral argument on October 19, 1948, such contention was negatived by counsel. It was then stated that the respondent did not disapprove the documentary exhibits; rather that he "adopted" them as his own. In any case, such protestation was sufficiently countervailed by the testimony of Government witness H----. Further discussion as to the reliability and probative value of the documents relied upon by the Government is deemed unnecessary.
Exhibits 5A, 11, 24-28, and 30.
It is well settled that documents, books, and other papers of an organization, and/or oral testimony of evidential value are sufficient to properly form the basis of a finding that the organization advocates the overthrow of the Government of the United States by force or violence.
Ex parte Vilarino, 47 F. (2d) 912 (D.C. Cal. 1930, aff'd 50 F. (2d) 582, (C.C.A. 9, 1931)); Fierstein v. Conaty, 41 F. (2d) 53 (C.C.A. 9, 1930); U.S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103 (1927); Murdoch v. Clark, 53 F. (2d) 155 (C.C.A. 1, 1931); Kjar v. Doak, 61 F. (2d) 566 (C.C.A. 7, 1932); Skeffington v. Katzeff, 277 F. 129 (C.C.A. 1, 1922).
The associational ties specified in the last four lodged charges call for but little comment. That the relationship as member of the Communist Party of the United States of America, included "affiliation" with the same organization during such membership, is not disputed. This conclusion is supported by a similar holding of the court in Kjar v. Doak ( 61 F. (2d) 566). As to affiliation with the Communist International, the respondent concedes, (1) that the Communist Party of the U.S.A., at least while he was a member/affiliate thereof, was the section of the Communist International here, (2) that he was an active member of this Communist International affiliate, and (3) throughout the course of such membership he actively participated in furthering their program. Further, members of the Communist Party of the U.S.A. were required to accept the program and statutes of the Communist International and the Communist Party of the U.S.A. (see exhibit 18, sec. 3, 1930). "Affiliation" with the Communist International from 1925 to October 1939 (within the interpretation of that term by the Court in Bridges v. Wixon ( 65 S. Ct. 1443) and within its statutory definition (8 U.S.C. 137 (f)) is deemed established and will be considered as datum hereinafter.
B. Documentary Evidence — Method, Theory and Practice, Program, Strategy and Tactics of the Communist International and Communist Party of the U.S.A. — In General
For clearer presentation of our analysis of relevant matter in the documentary evidence as to the advocacy of force and violence, relied upon by the Government, we will sketch in prelude its chronology and continuity. This will trace a path across the voluminous matter therein and bring us to a point where we may focus on the method, theory and practice, objectives, strategy, and tactics of Marxism-Leninism, to which both the Communist International and its affiliate, the Communist Party of the U.S.A. admittedly subscribed throughout the period with which we are concerned here, i.e., from 1925 to October 1939 (see exhibit 5, pp. 9-10, and exhibit 4, pp. 5-6). The necessity for a close examination of certain aspects of Marxism-Leninism arises from the contention made as to advocacy of force and violence, which is the core of the issue here.
Several major divisions of the documentary evidence covering different periods of time will be noted hereinafter. First, there is the period of Marx and Engels, which includes the "First" International movement and extends to the last decade of the nineteenth century. Next, there is the period of the Second International (1899-1914, 1918). The period next treated spans from at least 1919, when the Third International was launched and the American Communist Party was formed, up to at least October 1939. In this last period mentioned, Lenin and Stalin crystallized and brought into clear relief what Marxism-Leninism "stood for." The Government finds no change in the official "stand" thus taken, at least during 1925 to October 1939. In counsel's brief, it is stated that no evidence presented by the respondent was offered in "opposition" to the "classics" of Marxism-Leninism now in evidence, and it added that the principles of Marxism-Leninism were endorsed by these organizations at least from 1925 to October 1939. Aside from these concessions, we have evidence of the embodiment, as well as official endorsement, of Marxism-Leninism by these organizations, which will be discussed in detail later (exhibit 5, pp. 9-10 and exhibit 4, pp. 5-6). At this point, we will present our grouping of the documentary evidence selected to indicate its chronology and continuity.
The Manifesto, which was prepared by Marx and Engels in November 1947 in connection with the First Communist International, on the eve of the German revolution of 1848, appears in evidence as exhibit 19 (The Communist Manifesto, 1848 — see exhibit 20, p. 21). The experiences of 1848-1851 (French Revolution of 1848) from the Marxian viewpoint (exhibit 20, chap. II); the letter by Marx to Wedemeyer dated March 5, 1852, dealing with what Marx felt he had contributed to the movement (exhibit 20, p. 29); the experience of the Paris Commune of 1871 (French Revolution 1870) as analyzed by Marx (exhibit 20, chap. III); Marxist's 1871 letter to Kugelmann (exhibit 20, p. 33); supplementary explanations by Engels including an 1873 polemic against the anarchists and an 1875 letter to Bebel (exhibit 20, chapter IV); Marx's 1875 letter to Brache and other references to Marx's Critique of the Gotha Programme (exhibit 20, pp. 69, 87, 55); all of the foregoing are found covered in State and Revolution by Lenin (exhibit 20). The references to the French Revolution of 1848 and the French Revolution of 1870 is found in exhibit 21, p. 44. The 1888 introduction by Engels to The Communist Manifesto, which contains Engels' remarks summing up the lesson derived from the Paris Commune experiences of 1871, appears in exhibit 19, mentioned above. Reference to Engels' 1891 preface to Marx's Civil War in France appears in exhibit 20, p. 62. A reference to Engels' works The Origin of the Family, Private Property, and the State (sixth edition of 1894) appears in exhibit 20, page 8. Comments on the polemics of Plekhanov against the anarchists (published as a pamphlet in 1894) and of Kautsky against the opportunists, "two of the best known theoreticians of the `Marxism' of the Second International" (1899-1914, 1918) appear in exhibit 20 in chapter VI. Kautsky's 1902 view on the flaring Russian revolutionary movement appears in exhibit 21, page 9. The principal stages in the history of Bolshevism from 1903 to October 1917 are sketched in exhibit 21 from page 12 on (First Bourgeois Revolution in Russia in 1905, the Second Bourgeois Revolution in February 1917, and the Socialist Revolution of October 1917 are also mentioned in exhibit 21, pp. 44 and 71).
The period now considered and the documentary evidence thereon refer to the Leninist development of Marxism, "for the epoch of imperialism." In order of time, we have Lenin's letter to American workers dated August 20, 1918, which appears in exhibit 48. In August-September 1917, the material found in State and Revolution was written by Lenin and in 1918 he added paragraph 3 to chapter II thereof (exhibit 20). Much of the material appearing in State and Revolution finds repetition and is frequently referred to, in subsequent writings by exponents of this movement especially in regard to the "critical and revolutionary" content of Marxism-Leninism, including the thesis as to the necessity for the overthrow of the bourgeois state. It is a landmark in the Communist movement (wherein a split had been experienced in 1914) and represents the reasons for the earlier attempts to establish a new revolutionary international (World War I, 1914-1918). (This is noted in exhibit 5, p. 8.)
In 1919, the "new" Communist International was launched (exhibit 5, p. 8). The proletariat revolution in Russia had given an impetus to the formation of Communist Parties in the centers of capitalism and in the colonies. As noted, it appears that a Communist Party was formed in the United States in 1919, too. It was an affiliate of the "new" revolutionary international movement, which was to act as a "counterpoise to the Second, social-chauvinist International" and as a "weapon of resistance to bellicose imperialism" (exhibit 5, p. 8). In connection with this "new" international movement, Lenin wrote his "Left Wing" Communism, an Infantile Disorder (exhibit 21, 1920). For further clarification of the Leninist accent or orientation on Marxism, we have Stalin's series of lectures of April 1924, which were delivered shortly after the death of Lenin (exhibit 22). Exhibit 22, entitled Foundations of Leninism, represents much research in and reference to works of Lenin other than those which appear in evidence. This was followed by Stalin's work of January 25, 1946, which appears under the title of Problems of Leninism (exhibit 23). These works of Stalin and Lenin are considered basic in so far as what Marxism-Leninism "stands for." The militant emphasis by Lenin on the "critical and revolutionary" content of Marxism, in the epoch of imperialism and the international character of Leninism is noted by Stalin (exhibit 23, p. 7, exhibit 22, p. 11). The turning away from the opportunism of the Second International is critical for the "new" international after Leninist analysis by the dialectical-materialism method. This brings us to the period of the preparation for party solidification throughout the world and for the establishment of a uniform world program.
Resolution of the Sixth World Congress of the Communist International, of July 8, 1928, appears in exhibit 27 and contains a summation of the tasks confronting the world Communist movement with particular emphasis on the growing Fascist menace, as well as the need to protect the U.S.S.R. The Program of the Communist International, together with its constitution, was adopted on September 1, 1928 (exhibit 5 and also 5A). Here we find its avowed precursors, its credo, and orientation. It is explicit as to its stand, its program, its method, its sources as to theory and practice, and its objectives. It prescribes the world organizational structure of the world Communist movement of which it is the organizer and leader. It notes the U.S.S.R. as the only "fatherland" of the world proletariat which the world proletariat must defend. It binds all of its affiliates by its central decision.
On the American scene we are told that there was some factionalism, particularly on so-called "exceptionalism," which considered the American capitalist situation different from that of the rest of the imperialistic countries. In this connection we have Stalin's 1929 Speeches on the American Communist Party (exhibit 46) which reflect the condition of the Communist Party of the U.S.A. We are told that the "draft" constitution of the Communist Party of the U.S.A. in 1929 failed of adoption (exhibit 39, p. 79) and that the "exceptionalists" like Lovestone and Gitlow were rejected. Exhibit 18 is a copy of a membership book of the Communist Party of the U.S.A. (Section of the Communist International) containing certain statutes which indicate that members were bound by the decisions of the Communist International as well as the Communist Party of the U.S.A. While the record doesn't show the actual adoption of "Thesis and Resolutions" for the Seventh National Convention of the Communist Party of the U.S.A. (1930), it does show that it was prepared by its Central Committee Plenum in 1930, and that it "represents the unanimous proposals of the leaders of our party to the seventh convention" and that "These proposals are in complete harmony with the line of our World Party — the Communist International" (exhibit 29, p. 2). This 1930 "declaration of harmony" between the Communist International and the Communist Party of the U.S.A., on what the international movement embodied, is followed by the 1933 "Thesis of the Thirteenth Plenum of the Executive Committee of the Communist International" (exhibit 11). It bears the title of "Fascism, The Danger of War and Tasks of the Communist Party." In exhibit 12 we have a manifesto and three resolutions of the Eighth Convention of the Communist Party of the U.S.A. of 1934. "Resolutions, Seventh Congress of the Communist International with Speech of Georgi Dimitroff delivered at the close of such Congress on August 20, 1935" is contained in exhibit 47. "Resolutions of the Ninth Convention of the Communist Party of the U.S.A." of June 1936 appears in exhibit 41. This brings us to the "Resolutions of the Tenth Convention of the Communist Party of the U.S.A." of May 1938 (exhibit 42) and to the "Constitution and Bylaws of the Communist Party of the U.S.A." adopted May 1938 (exhibit 4). These reflect the united "democratic" front expression of the Communist movement in the United States.
The foregoing represents the "official" documentary sources upon which the Government primarily relies for its findings as to what the Communist International and its affiliate, the Communist Party of the U.S.A. "stood for" with respect to the issue, i.e., their advocacy of force and violence, from at least 1925 to October 1939.
In reaching such findings, it was not deemed necessary to have recourse to certain writings of individual party members or to certain editorials appearing in the party's official publication "The Communist." They bear out our findings, based on the previously detailed "official" party declarations (exhibit 28, 1929; exhibits 10, 15, 45, 1934; exhibits 26, 30, 1935). Respondent's exhibits, covering Earl Browder reports to various bodies of the Communist Party of the U.S.A. (exhibits 35, 1936; 37, 1937; 39, 1938) and his telegram of March 15, 1938 to New York State Senate Judiciary Committee (exhibit 44), offer illuminating "sidelights" on the united-"democratic"-front-tactic; as to which the Government finds the "official" view of the Communist Party of the U.S.A. in respondent's exhibit 42 (1938) and in exhibit 4, the 1938 constitution of the Communist Party of the U.S.A. The constitutions of the Communist Party of the U.S.A. relating to a period after October 1939 (respondent's exhibits 14, 1935; 34, 1947) are not considered because they postdate the period involved. The election platforms of the Communist Party of the U.S.A. do not express matter relating to our issue, except that the 1932 election platform speaks of the revolutionary Marxian "way out" (exhibits 38, 1932; 36, 1936; 40, 1938; 43, 1940). None of these "auxiliary" exhibits indicates a change from — let alone a repudiation of — the Marxism-Leninism embodied in the Third International, recapitulated and summed up in the Communist International program of 1928, and followed at least through 1925 to October 1939, by the Communist International and its affiliate, the Communist Party of the U.S.A.
C. Documentary Evidence Relating to Advocacy of Force and Violence
Marx disclaimed discovery of classes or class struggles in society. Lenin repeated that the theory of class struggle was created by bourgeois economists and historians before Marx (exhibit 20, p. 29).
As early as 1852, Marx claimed that what was new on his part was to prove the following: (1) That the existence of classes is connected only with certain historical struggles which arise out of the development of production; (2) that class struggle necessarily leads to the dictatorship of the proletariat; (3) that this dictatorship is itself only a transition to the abolition of all classes and to a classless society (exhibit 20, p. 29).
Lenin declares the above expression of Marx furnishes with "striking clearness," (1) the chief and concrete differences between Marx's teachings and that of the bourgeoisie, and (2) the essence of Marx's teachings concerning the state (exhibit 20, p. 30).
According to Lenin, a Marxist is one who extends the acceptance of class struggle to the acceptance of the dictatorship of the proletariat (exhibit 20, p. 30). On this touchstone it is necessary to test a real understanding and acceptance of Marxism (exhibit 20, p. 30).
Marx stated (1875) that between capitalist and communist society lies a period of the revolutionary transformation of the former into the latter. To this also corresponds a political transition period, in which the state can be no other than the revolutionary dictatorship of the proletariat (exhibit 20, p. 71). Lenin comments that: This conclusion Marx bases on an analysis of the role played by the proletariat in modern capitalist society, on the data concerning the evolution of this society, and on the irreconcilability of the opposing interests of the proletariat and the bourgeosie (exhibit 20, p. 71).
Lenin concludes that the transition from capitalist society towards communist society is impossible without a "political transition period," and the state in this period can only be the revolutionary dictatorship of the proletariat (exhibit 20, p. 71).
The principal lesson of Marxism on the tasks of the proletariat in relation to the bourgeois state during a revolution is to break up and shatter its bureaucratic and military machinery (exhibit 20, p. 33).
This is the precondition of any real people's revolution; in America, too (exhibit 20, p. 34, see exhibit 22, p. 55).
"We shall fight for complete destruction of the old state machinery, in such a way that the armed proletariat itself is the government," said Lenin (exhibit 20, p. 99). The proletariat needs "state" power, the centralized organization of force, the organization of violence (1) to crush resistance of the exploiters and (2) to guide in the work of organizing toward the desired economy. This "state" is the proletariat organized as the ruling class (exclusively). The proletarian dictatorship, the exclusive political rule of the proletariat is the culmination of the revolutionary role of the proletariat in history (exhibit 20, p. 24).
Such an organization is unthinkable without a preliminary break up and destruction of the state machinery created for its own use by the bourgeoisie (exhibit 20, p. 24 et seq. and pp. 89, 99). On this focal point there was a parting of the ways between the Third International and the Second International, the latter having shown unwillingness in practice to do more than work within the framework of bourgeois society, and instead of working for the destruction of their bourgeois state when the 1914-18 — "imperialistic" — war raged, chose "social-chauvinism," that is, the defense of their bourgeois state. This Second International denial of the need to destroy the bourgeois state and to establish the dictatorship of the proletariat, constituted a betrayal of and renegacy from "uncorrupted" Marxism. The Marxism-Leninism of the period of the Third International had the tenet of establishing world proletarian dictatorship, a necessary condition precedent to which was the overthrow of the bourgeois state. This was considered (1) axiomatic and fundamental (exhibit 20, p. 25) in revolutionary Marxism, as further developed by Leninism, (2) innate in the dialectical materialism of Marx and Engels, and (3) the hallmark of what the Third International embodied (exhibit 5, p. 10; exhibit 20, p. 65). It was to this "uncorrupted" Marxism which Leninism had excavated and resurrected that the Third International dedicated itself (exhibit 5, chapter IV; pp. 7-10).
The Second International had gone astray, employing eclecticism (exhibit 20, p. 19).
For Lenin asserted that Marx and Engels had taught for 40 years (1852 to 1891) that the proletariat must break up and destroy the bourgeois state machinery (exhibit 20, p. 89) and that this is the principal lesson of Marxism on the tasks of the proletariat, as stated before (exhibit 20, p. 33). Further, the establishment of the proletarian dictatorship, with its new "state" power is deemed the since qua non of Marxism-Leninism, i.e., without which there could be no successful transition from capitalist to communist society (with the eventual dwindling or withering away of the new "state," of the dictatorship of the proletariat). (See exhibit 5, chapter IV; exhibit 20, chapter VI; and exhibit 22, p. 10.)
The emphasis upon these necessary preconditions to a successful realization of the ultimate aim of Marxism-Leninism and the Third International is the index of the entire orientation of the Third International movement. Here is the critical point of cleavage from the Second International, with its "corrupted" or "distorted" Marxism, its "opportunism," its working within the framework of the bourgeois state by revisionism or reformism, its schism between theory and practice, its renegacy, its social-chauvinism, and its social-pacifism, which the Third International repudiated (exhibit 20, exhibit 22, pp. 20, 88, exhibit 5).
Not the mere overthrow and abolition of the state qua state as in anarchism; but the necessity for the overthrow of the bourgeois state and the establishment of the proletarian dictatorship with its transition-interim "state" or "organization" is posited by Marxism-Leninism (exhibit 5, p. 74, exhibit 20, chap. IV, and p. 53).
As to various other ideologies among the working class inimical to communism, see exhibit 5, pp. 68-76.
Throughout the period we consider (1925 to October 1939), what remained and persisted as the core of revolutionary Marxism-Leninism, embodied in the Third International movement was (1) that the bourgeois state must be abolished, and (2) the dictatorship of the proletariat with its "state" must be established, if the ultimate fixed aim was to be realized (exhibit 5, pp. 7-10 and exhibit 4). Without these preconditions being fulfilled, its "historic mission" could not be accomplished. The revolutionary phase of the evolution of society, which involved the transition period from capitalist to Communist society, could not be successfully realized, unless these preconditions were met.
This was the way society in the world would be changed. "Explaining" the world wasn't enough, said Marx. It had to be changed (exhibit 22, p. 21). The change could not be effected without violence, for it was a revolutionary change from capitalist to Communist society which was involved, and the bourgeois state had to be shattered in the process.
Lenin undertakes to show that the teaching of Marx and Engels, regarding the inevitability of a violent revolution refers to the bourgeois state. Lenin concludes that the replacement of the bourgeois state by the proletarian "state" is impossible without a violent revolution (exhibit 20). Lenin asserts that the necessity of systematically fostering among the masses just this point of view about violent revolution lies at the root of the whole of Marx's and Engels' teaching (exhibit 20, pp. 19-20).
Stalin affirms the foregoing and says that the law of violent proletarian revolution, the law of the smashing of the bourgeois state machine as a preliminary condition for such a revolution, is an inevitable law of the revolutionary movement in the imperialist countries of the world (exhibit 22, p. 56).
Stalin repeats what Lenin said about America being included since World War I period. He speaks of the use of Marx's qualifying phrase about the continent as a pretext for proclaiming that Marx had thus conceded the possibility of peaceful revolution, etc. (exhibit 22, p. 55).
Neglect to "foster" among the masses just this point of view is a betrayal of Marx's and Engels' teaching. This neglect to so propagandize and agitate is what brought into prominent relief the betrayal by the Second International of the teaching of Marx and Engels (exhibit 20, p. 20; exhibit 22, p. 89).
Stalin states that actually the main work of the Second International followed the line of "opportunism" with emphasis on legal forms of struggle, and without serious consideration about revolution, the dictatorship of the proletariat, or the revolutionary education of the masses. It had no integral revolutionary theory or policy (exhibit 22, p. 20).
Speaking of the fundamental law of revolution, Lenin states that it is not enough for revolution that the exploited and oppressed masses should understand the impossibility of living in the old way and demand changes; rather what is required for revolution is that the exploiters should not be able to live and rule in the old way. There has to be a crisis. It must be understood that revolution is necessary. The revolutionaries, etc., must be ready to sacrifice their lives for it (exhibit 21, p. 66; exhibit 22, p. 45).
The revolutionary role of the proletariat in history is thus emphasized. Merely making demands acceptable to capitalism is not the way the revolutionary movement proceeds. The theory of "spontaneity" is denounced as a theory of opportunity and as a theory which repudiates the leading role of the vanguard of the working class, the Communist Party. The "spontaneous" workingman's movement must be lent consciousness and system and must be given leadership by the party (exhibit 22, p. 30). Parliamentary struggle is only a school for and aid in organizing the extraparliamentary struggle of the proletariat. Under capitalism the fundamental problems of the working class movement are solved by force, by the direct struggle of the proletarian masses, their political general strike, their insurrection (exhibit 22, p. 24). The revolutionary content of Marxism restored by Leninism (exhibit 22, p. 10) is thus pointedly illustrated, for the proletariat must first of all overthrow and break up the bourgeois state power (exhibit 23, p. 20).
Force in a revolutionary role is the instrument with whose aid social movement forces its way through and shatters the dead, fossilized political forms; force is the midwife of every old society which is pregnant with the new. (Thus Engels and Marx; see exhibit 20, p. 20.) In the development of the proletariat, the more or less veiled "civil" war raging within existing society continues to the point where it breaks out into open revolution, where the violent overthrow of the bourgeoisie lays the foundation for the sway of the proletariat (exhibit 19, pp. 20-21; exhibit 20, p. 21) Engels defines revolution as an act in which one section of the population imposes its will on the other by means of rifles, bayonets, cannon, i.e., by highly authoritative means (exhibit 20, p. 53).
In the period prior to open revolution there is much work and preparation for the party. Open revolution must not be begun until conditions are propitious and ripe. The will to revolt must attend upon factors favoring its success. The success of the revolt will be the more inevitable as conditions favor. The first aim is to overthrow the bourgeois state power utilizing any and all allies, any and all methods (exhibit 21, pp. 22, 52, 53). The next step is seizure of power which may follow more readily upon the first step to the extent it has the mass of the proletariat "behind" it. However, the seizure of power by the proletariat does not wait upon a "majority" necessarily. Whenever possible it may hasten the general issue and take advantage of any favorable situation which would permit it to seize power immediately (exhibit 22, p. 23). The whole point, whether before or after seizure of power (exhibit 21, p. 53), lies in knowing how to apply these tactics in such a way as to raise, and not lower, the general level of proletarian class consciousness, revolutionary spirit, and ability to fight and conquer (exhibit 21, p. 56). The class struggle persists even after the capture of political power. There remain tasks for the proletariat to accomplish including the completion of what it did not complete before the capture of political power (exhibit 21, p. 76). To fulfill its task throughout, the revolutionary class must (1) be able to master all forms or sides of social activity without exception and (2) be ready to pass from one form to another in the quickest and most unexpected manner (exhibit 21, p. 76) Neither legal methods applied as stated above, nor illegal methods useful for the ultimate aim are to be eschewed.
"Leftists" (the inflexibles as to illegal methods) and Rightists (exclusively partial to legal or peaceful methods) are thus corrected (exhibit 21, p. 77).
But, for all these preparatory and follow-through tactics, or forms of struggle, and no matter what strategic reserves and allies are rallied, there remains the open-revolution-phase wherein the bourgeois state is to be overturned as the first step. Favorable auspices for such revolt or rebellion or insurrection might be enumerated on the basis of previous experience and foresight; criteria for recognizing the revolutionary upsurge or the critical condition of the regime it is to overturn may be enunciated. What remains fixed is that a violent revolution must ensue to overthrow the bourgeois state, then to seize power, then to conquer power, etc. Strategy might change as different phases of the revolution required; or strategy might remain unchanged while the line of combat and forms of struggle might tactically vary during the ebb and flow of the movement; but the necessity to use force and violence to overthrow the bourgeois state and its apparatus and to establish the dictatorship of the proletariat, remains fixed as law. It is only this side of Bolshevism — insurrection, violence and terror, that the bourgeoisie practically see (exhibit 21, p. 81).
The armed conflict, the battle, the violent revolution is the only way that the revolutionary proletariat will fulfill his role in the revolution. That is what revolution is; i.e., the act in which one section of the population imposes its will on the other by highly authoritative means like rifles, bayonets, cannon. Engels adds that the victorious party is inevitably forced to maintain its supremacy by means of that fear which its arms inspire in the reactionaries (exhibit 20, p. 53). Stalin enumerates five basic differences between the proletarian revolution and the bourgeois revolution (exhibit 23, pp. 16, 17).
The first has to go on after it has completed its tasks of destruction (exhibit 23, p. 17). The radical transformation sought cannot be achieved without a violent revolution, without the dictatorship of the proletariat (exhibit 23, pp. 19, 20). The apparatus of the burgeois state has to be destroyed first (exhibit 23, p. 20). "To think that such a revolution can be carried out peacefully within the framework of bourgeois democracy, which is adapted to the domination of the bourgeoisie, means one of two things. It means either madness, and the loss of normal human understanding, or else an open and gross repudiation of the proletarian revolution" (exhibit 23, p. 20).
It is apparent that Marxism-Leninism is instinct with force and violence. It openly declares that its aims can be obtained only by the forceful overthrow of all the existing bourgeois social conditions (exhibit 19, p. 44; exhibit 20, p. 20, exhibit 5, p. 85).
This law of violent revolution is a precipitate of its dialectical-materialistic approach. It could not be stated more plainly and simply. The proletarian revolutionary role is to make it impossible for the exploiters to be able to live and rule in the old way, and the only way that is to be done is necessarily by force and violence. It is clearly established beyond question from the documentary evidence adduced that Marxism-Leninism advocates, advises, and teaches the necessity for and the inevitable use of force and violence to overthrow the bourgeois imperialistic governments, of which the United States is one.
If there was any doubt as to where Marxism stood in 1871 as to the use of force and violence to overthrow the Government of the United States, all doubt was dissipated and removed as of 1917 and thereafter. There is ample documentary evidence in support of this point (exhibit 20, p. 34, exhibit 21, p. 79, exhibit 48, exhibit 22, pp. 55-56, exhibit 23, p. 12, exhibit 46, exhibit 27, exhibit 5, exhibit 12, exhibit 47, exhibit 42, exhibit 4, exhibit 18). The rejection of American "exceptionalists" in 1929 and Stalin's letters to the American Communist Party speak for themselves (exhibit 46). This point need not be further labored here since the documentary evidence is ample and since it is conceded that Marxism-Leninism was endorsed and subscribed to by the Communist International and the Communist Party of the United States of America.
Not only is the emphasis entirely on vi et armis as the method to crown the revolutionary upsurge with success, i.e., the overthrow of bourgeois governments and the establishment of the dictatorship of the proletariat; any other method is considered unthinkable and nowhere is a peaceful method urged as an alternative. Of course this is not to say that in theory the peaceful way is ruled out as a "possibility" or as something "conceivable"; that this is a mere supposition as to which there might be some ground in the remote future is revealed by Stalin.
Of course, in the remote future, if the proletariat is victorious in the most important capitalist countries, and if the present capitalist encirclement is replaced by a socialist encirclement, a "peaceful" path of development is quite possible for certain capitalist countries, whose capitalists, in view of the "unfavorable" international situation, will consider it expedient "voluntarily" to make substantial concessions to the proletariat. But this supposition applies only to a remote and possible future. With regard to the immediate future, there is no ground whatsoever for this supposition.
Stalin asserts that Lenin was right in saying that the proletariat revolution was impossible without the forcible destruction of the bourgeois state machine and the substitution for it of a new one, etc. (exhibit 22, p. 56). That the violent or cataclysmic method was the method advocated, advised, and taught by the Third Communist International movement throughout the period we consider (1925 to October 1939), will be shown hereinafter.
In the imperialist epoch (which covers 1925 to October 1939), with state-monopoly-finance capital ubiquitous and all powerful, and with facism a growing menace, the integral revolutionary theory or policy of the Third International needed restatement so that a more uniform, unremitting, and concerted fight could be waged throughout the world against the "world" enemy. More adequate methods of fighting were required. It became necessary to overhaul the entire activity, the method of work, and arsenal of the Second International and to forge new weapons; otherwise the proletariat ran the risk of finding itself inadequately armed or even completely unarmed, in the future. This Leninism did (exhibit 22, pp. 21, 22). What was contained in Lenin's method is not only a restoration of Marx's method, "but also the concretization and further development of the critical and revolutionary method of Marx, of his materialist dialectics" (exhibit 22, pp. 27, 88, 89). (See Appendix B.) This method and integral revolutionary theory or policy of Marxism-Leninism constitute the "science of leadership of the revolutionary struggle of the proletariat" (exhibit 22, p. 89; see exhibit 5, pp. 10, 81, and exhibit 4, pp. 5-6).
In view of the imperialist war believed imminent and the growing menace of facism much of the foregoing was reiterated in 1928 and specific tasks were designated (exhibit 27, exhibit 5). The orientation of the Third International was restated with precision in its program of 1928 (exhibit 5). It delineated its line of succession from the "founders" and recited its honor roll of revolutionary heroes in whose tradition it would follow. It drew the line of demarcation to distinguish its "Leftists" and "Rightists." It took its stand on revolutionary Marxism (not evolutionary or peaceful "Marxism") as further developed by Leninism. There was no room for eclecticism, reformism, revisionism, class-peace, or working within the framework of bourgeois society. It advocated and propagated the "dialectical materialism" of Marx and Engels (not of Bernstein or Kautsky, etc.). It would employ "dialectical materialism" as the revolutionary method of the cognition of reality, with the view to the revolutionary transformation of this reality. Lest there be any mistake about its following Marxism-Leninism, it added that it waged an active struggle against all forms of bourgeois philosophy and against all forms of theoretical and practical opportunism. It continued to seek to establish world proletariat dictatorship and world Communism and was the organizer of the world proletarian revolution (exhibit 5, pp. 7-10). It specifies proletarian civil wars against the bourgeoisie (exhibit 5, p. 34). The conquest of power by the proletariat includes the violent overthrow of bourgeois power, the destruction of the capitalist state apparatus (bourgeois armies, police, bureaucratic hierarchy, the judiciary, parliaments, etc.), substituting in its place new organs of proletarian power, to serve primarily as instruments for suppression of the exploiters. The conquest of power by the proletariat does not mean peacefully "capturing" the ready-made bourgeois state machinery by means of a parliamentary majority (exhibit 5, p. 36). The doctrines of Marxism-Leninism as to force and violence in achieving its revolutionary aims are not merely recapitulated and summed up in exhibit 5 (exhibit 20, pp. 19-20, 25, 27, 33; exhibit 22, pp. 52, 94, 95, 103, 107-109; exhibit 5, pp. 78-79, 82-86, 96; see also exhibit 45, pp. 22, 27-28). The philosophic key to such an approach is succintly stated (exhibit 5, p. 10).
See appendix B.
The State or "state" as an organ of oppression. (See exhibit 20, pp. 8-9, 22, 74 and exhibit 22, p. 51.)
The complete divorce from the "peaceful" methods of the Second International is forcefully restated (exhibit 5, p. 80). Parliamentary control was merely an index of the maturity of the proletariat.
What to do in a revolutionary upsurge in organizing mass action is particularized. Mass action included armed insurrection against the state power of the bourgeoisie. This is the supreme form of struggle. It had to be conducted according to the rules of military science, etc. It called for the organization of militant units and intensified revolutionary work in the bourgeois armed forces (exhibit 5, pp. 80-81). It declares that to fail to start the rebellion at the right time (exhibit 5, p. 80) means to allow the initative to pass to the enemy and to doom the revolution to defeat (exhibit 5, p. 81).
The imperalist war appearing imminent in 1928, the Leninist policy of converting imperialistic war into civil war is repeated (exhibit 27, exhibit 5, p. 84). The defeat of one's "own" imperialist government is advocated. In the event of imperialist war against them, the U.S.S.R. and the colonies should be defended by every possible means (exhibit 5, p. 84). The forcible overthrow of all existing bourgeois social conditions is the method announced and advocated. It is not a matter of mere prediction or acceptance of the necessity for the use of force and violence to obtain its ends. The Third International embodies the force and violence method of Marxism-Leninism, and no other method is espoused or even discussed to achieve the overthrow of the bourgeois governments and the establishment of the dictatorship of the proletariat.
In a prerevolutionary period, the most important and basic tactic of the Communist Parties is that of the united-"workers"-"democratic" front (exhibit 5, p. 82). The "uses" of bourgeois democracy and its "extension" in the development and progress of the Communist revolution are brought out by Lenin (exhibit 20, chap. V, esp. pp. 82-85) and much of this is echoed in the 1938 constitution of the Communist Party of the United States of America (exhibit 4, p. 5).
But as to the revolutionary period (from its inception on), there is no change shown throughout the Third International movement (Communist International and Communist Party of the United States of America) on its integral revolutionary theory or policy (exhibit 46 (1929); exhibit 11 (1933); exhibit 29 (1934); exhibit 47, p. 30 (1935)) regarding the use of force and violence. There is much "official" repetition. The constitution of the Communist Party of the United States of America (1938) carefully cleaves to the method the Communist International program of 1928 so precisely articulated. It would follow "the scientific principles enunciated by the greatest teachers of mankind, Marx, Engels, Lenin, and Stalin," embodied in the Communist International (exhibit 4, pp. 5-6). Fundamentally, it provided nothing new as to the revolutionary method (see exhibit 39, p. 79). Its affiliation-tie with the Communist International continued through at least October 1939 (see exhibit 5, pp. 10, 84 and constitution therein), and it will be remembered the affiliates were bound to defend the U.S.S.R. by every possible means in the event of imperialist war against it, and to defeat their "own" governments engaged in an imperialist war, and to convert the imperalialist war into civil war.
There is not a scintilla of evidence that the Communist Party of the United States of America altered by one iota the integral revolutionary policy of the Communist International and Marxism-Leninism. The main blow was aimed at Facism (strategy) and its united-"democratic"-front (tactic) was aimed against "reactionaries," and for self-protection, self-development and self-preservation. But this was a prerevolutionary tactic, an example of the flexible-maneuver-tactical policy advocated by Leninism. It is not even peripheral to the high policy regarding force and violence which obtains in the revolutionary period. We have noted before the "uses" to which democracy can be put (exhibit 20, chap. V), and that the united front tactic is useful for the prerevolutionary period (exhibit 5, p. 82). What is held in abeyance is not eliminated thereby (see exhibit 35, p. 11). The integral revolutionary policy etc. persisted. The enemy need not be told when, where, and how it would be fought (exhibit 21, p. 59, exhibit 37, p. 49). The time for use of force and violence, the choice of the historic moment, was something for the authoritative bodies to decide very carefully (exhibit 22, pp. 95-96). But the integral revolutionary policy applicable to revolution remained.
(See exhibit 5, p. 82. For revolutionary strategy and tactics, see exhibit 22, p. 90, et seq.)
Section 5 of the 1938 constitution of the Communist Party of the United States of America calls for some comment (exhibit 4, p. 20). It says that party members found to be * * *, advocates of terrorism and violence as a method of party procedure, or members whose actions are detrimental to the party and the working class, shall be summarily dismissed, etc. This is a matter of party discipline (art. X, exhibit 4). What it was intended for is told by its exponents in respondent's exhibits (exhibit 35, pp. 11, 42; exhibit 37, pp 44-50; exhibit 39, pp. 32, 37). It is not directed against party congresses and central committees or its authoritative bodies. It is for party procedure and not directed to the method of revolution or the integral revolutionary policy of Marxism-Leninism which it endorsed. It is against individual members, acting "stupidly" (exhibit 21, p. 59, exhibit 37, p. 49), detrimentally to the party's then "pose" of cooperation against reactionaries, Facists, etc. (exhibit 35, p. 11). It is like Marx's rejection of individual terrorism or assassination, on grounds of expediency (exhibit 21, p. 18). The terrorism employed by a "going" revolutionary party, well disciplined and well organized is another matter. To object to this "organized" terror, on principle, only merited scornful laughter (exhibit 21, pp. 18-19). Browder constantly reminds us that this 1938 constitution primarily deals with the prerevolutionary united front-tactic, and expediency for Communist Party of the United States of America growth, solidarity, and preservation. On so important a revolutionary policy, the 1938 constitution speaks softly (exhibit 4, pp. 5-6), but this section 5 of article X thereof is in no sense a repudiation of that important revolutionary policy. The affiliation to the Communist International and endorsement of what it embodied still continued (exhibit 4, p. 6, art. XI; see exhibit 5, constitution of Communist International). Force and violence was still the policy for revolution, when the masses were led thereto.
The evidence clearly establishes that at least throughout the period involved (1925 to October 1939), Marxism-Leninism, embodied in the Communist International and subscribed to by the Communist Party of the United States of America did not alter as to its integral revolutionary policy; to wit, to overthrow the bourgeois states (including the United States) and to establish the dictatorship of the proletariat (with its new "State"), by the method of force and violence in an armed revolution, rebellion; or insurrection. Force and violence was the method prescribed for the revolutionary transformation to this reality. Violent proletarian revolution was the inevitable law of the revolutionary movement.
Accordingly, the respondent is found subject to deportation on the second, third, and fourth lodged charges on the basis of the foregoing documentary evidence.
As shown, the documentary evidence speaks for itself and is thus fixed or "objective." Testimony by the respondent and his witness might well be suaded by personal and party interests, so that it would not be surprising if their testimony was guarded or evasive or even contradictory. The testimony of the governments' witnesses is useful for the period they adequately cover. Accordingly, the oral testimony is considered as of secondary value on this issue, primary reliance being placed on the "official" documentary evidence, as noted before.
D. Oral Testimony Relating to Advocacy of Force and Violence by the Communist International and the Communist Party of the United States of America During 1925 to October 1939
Two witnesses were presented by the government; H---- was a member of the Communist Party of the United States of America from 1927 to 1944, and P---- was a member of the same organization from 1926 to 1934. The respondent presented his witness S----; both were members of the Communist Party of the United States of America at least from 1925 until October 1939. Government witnesses H---- and P---- testified that they had been organizers for the Communist Party of the United States of America. Government witness H---- and respondent's witness S---- testified that they had held official positions in the Communist Party of the United States of America. Government witness H---- stated he taught in the Communist Party of the United States of America from about 1936 to 1944. Respondent's work (as organizer, "editor", etc.) in the Communist Party of the United States of America was noted heretofore.
In substance, government witness H---- testified that he had been taught by and had taught for the Communist Party of the United States of America the advocacy of force and violence in the overthrow of the Government of the United States; that the Communist Party of the United States of America had at least from 1927 to October 1939 advocated force and violence in the overthrow of the Government of the United States; that he had received training (in Russia while connected with the Communist Party of the United States of America) for armed conflict and tactics in warfare as part of his training in the Communist Party of the United States of America.
Then, government witness P---- testified that the Communist Party of the United States of America advocated the use of force and violence to overthrow the Government of the United States at least during the period of his membership from 1926 to 1934.
The respondent's witness S---- testified much to the same effect as was noted in his case before the Supreme Court of the United States in Schneiderman v. U.S., 320 U.S. 118. In substance, the witness S---- admitted that the basic principles adhered to by the Communist Party of the United States of America had never changed and that these basic principles were those of Marxism-Leninism. This is conceded by the respondent, too. (See supplementary brief.) Respondent's witness S---- testified that force and violence entered into all social changes in that those ruling classes that were being ousted would always use violence to prevent the "democratic" will of the people from being realized. The respondent had testified similarly. Witness S---- referred to the theoretical possibility of a "peaceful" transition in the United States, as elsewhere. So did the respondent. S---- admitted that the shattering of the United States Government was a precondition to a real people's revolution here. Force and violence were to be expected here to effect this aim. Both S---- and the respondent were irresponsive as to the aim of the party in the establishment of the dictatorship of the proletariat here, after the United States Government was overthrown.
This is part of the "moral ascendancy" formula employed throughout the "classics," polemical, and other writings. Wherever the use of force and violence is dealt with at length, the culpa is placed on the opposition who will not yield peaceably, thus wretchedly "forcing" use of force and violence on the proletariat and the Third International movement.
This view presents them as peaceful "altruists" in politics seeking humanity's improvement. This "pose" seeks to give that impression, notwithstanding its unrelenting stand on no "class-peace," "irreconcilable conflict," force and violence as a law of revolution, and making it "impossible" for the capitalist to live and rule as before; as if force was not innate in dialectics. (See Appendix B.)
The testimony of respondent and his witness S---- is to the effect that the basic principles adhered to by the Communist Party of the United States of America have never changed and that these basic principles are those of Marxism-Leninism. Yet the respondent persistently states that neither the Communist International nor the Communist Party of the United States of America, while he was a member/affiliate thereof, advocated the overthrow of the Government of the United States by force or violence; and witness S---- insisted the Communist Party of the United States of America never advocated the overthrow of the Government of the United States by force or violence.
All the testimony agrees that these organizations sought the overthrow of the Government of the United States. There is no dispute that the principles of Marxism-Leninism were those embodied in the Communist International, and endorsed by the Communist Party of the United States of America, for at least the period stated. The government witnesses testified that these organizations (H---- 1927-1944, P---- 1926-1934) advocated the use of force and violence to overthrow the Government of the United States. The respondent and his witness S---- admitted the probable necessity for the use of force and violence to overthrow the Government of the United States, but "denied" that the Communist Party of the United States of America so "advocated." The government witnesses' statements corroborate what the documentary evidence shows on this issue. The averments of the respondent and his witness on this issue contradict what the documentary evidence shows. No documentary evidence was adduced to corroborate the respondent's and his witness' averment that force and violence was not advocated by these organizations; or that a "peaceful" method was advocated at all; their "averment" stands unsupported.
The convincing character of the documentary evidence that Marxism-Leninism, as embodied in the Communist International and endorsed by the Communist Party of the United States of America did (at least from 1925 to October 1939) advocates the use of force and violence to overthrow the Government of the United States has been demonstrated before. To hold that Marxism-Leninism applies, that the Government of the United States is to be overthrown, that force and violence was expected here, and then to assert force and violence was not advocated appears a contradiction, a nonsequitor, a flagrant and unexplained paradoxical position. It is alien to Marxism-Leninism as we have shown, to eschew force and violence, and to espouse "peaceful" methods for the revolution. The untenable position taken by the respondent and his witness, unsupported by either documentary evidence, or logic, must be rejected. Not only the testimony of the government witnesses but all of the "official" documentary evidence weigh against it.
Written opinions of various members of the Communist Party of the United States of America which were not relied on as "official" documentary evidence, also support the testimony of the government witnesses and the "official" documentary evidence on the issue. (See exhibits 24, 25, 26, 30, 45.)
It may be concluded the weight of the oral testimony supports and corroborates the conclusion reached on the basis of the "official" documentary evidence alone. Our conclusions as to the second, third, and fourth lodged charges remain unchanged.
• A brief comment is all that is necessary, in view of the use to which the oral testimony has been put, on the question of the reliability of the government witness H----. His reliability is questioned because he once procured a United States passport in another's name in connection with his going to Russia to receive the "military" training, as noted above. This was considered a duty imposed upon him; to proceed to Russia under a "party" name, under the auspices of the Communist Party of the United States of America. He has not admitted the commission of perjury nor has he been prosecuted therefor. Even a "criminal" may give credible testimony. ( United States v. Gallo, 123 F. (2d) 229, June 8, 1941.) This witness cannot be said to have been so discredited that his testimony in regards to this party was not to be believed. His compliance with party "requirement" was an act of loyalty thereto. Nor does the fact that this witness may have been over or under responsive on occasion in the hearing proceedings disqualify him. It is a consideration in assaying the value or weight of his testimony, and was so treated.
E. Distribution, etc., of "Proscribed" Literature by the Communist Party of the United States of America, During 1925-October, 1939
Government witnesses H---- and P---- each testified as to the distribution by the Communist Party of the United States of America of certain exhibits in evidence. H---- testimony covers the period from 1927 to 1944, and P---- testimony covers the period from 1926 to 1934. There is no evidence to the contrary.
As to the "classics" utilized in these proceedings for documentary evidence (Exhibits 19-23 inclusive) it is clear from the previous discussion of these "classics" that they each and all advocate the use of force and violence to overthrow all bourgeois states including imperialist-finance-monopoly capitalists States like the United States. Accordingly it is concluded that the evidence of record establishes that the Communist Party of the United States of America, during the period of 1925-October 1939, distributed etc. literature advocating the use of force and violence to overthrow this Government. It should be noted that the distribution of any one of the exhibits 19-23, would be sufficient to support the lodged charge No. 5.
In addition, the record establishes other literature in evidence was distributed by the Communist Party of the United States of America during the interval stated (exhibit 5 and exhibit 5A, pp. 145, 146; exhibit 27, pp. 172, 264, 343; exhibit 11, p. 148; exhibit 12, p. 149; exhibit 47, p. 464). Exhibit 5 (exhibit 5A) is the program and constitution of the Communist International, adopted in 1928. It is a definitive recapitulation and summarization of Marxism-Leninism from at least 1919. It was shown heretofore as advocating the use of force and violence in the overthrow of the Government of the United States. Its companion work appears in exhibit 27, which is a resolution of the Communist International's Sixth World Congress, entitled "The Struggle Against Imperialist War and Tasks of the Communists." It also refers to converting imperialist war into civil war, restates the needs for uprisings in the break-up of the bourgeois states, mentions working in bourgeois armed forces to cause revolt, and emphasizes the need to protect the U.S.S.R. by every possible means when it is under imperialist attack, even to the extent of defeating one's "own" country. (See pp. 13, 22-28, 47-49 of exhibit 27.) The same is true of exhibit 11 (see pp. 138-142 thereof) and exhibit 12 (see pp. 45-48, 77 thereof), each advocating the Leninist policy of converting imperialist war to civil war, and specifying what to do in its political strikes and battles for power. In exhibit 47 (pp. 30-39, 44-47 thereof) we have advocacy of "armed" force, the repudiation of peaceful or legal methods, the use of "Soviet power," and a confirmation of what is said in exhibit 11 as to transforming imperialist war into civil war so as to seize power.
The distribution of any of these exhibits (19, 20, 21, 22, 23, 5, 5A, 27, 11, 12, 47) during the interval stated supports the lodged charge No. 5, for each of them is held to advocate the overthrow of the Government of the United States by force and violence. Nothing is gained as to this lodged charge No. 5 by discussing the "unofficial" documents in evidence also distributed during this interval by the Communist Party of the United States of America (exhibits 24, 25, 26, 30, 45), for that would be merely cumulative.
F. Respondent's Past Belief in or Advocacy of the Overthrow of the Government of the United States by Force and Violence, During 1925 — October 1939
Counsel states in supplementary brief that the Government has proved that the respondent believed in Marxism — Leninism, but has failed to prove that the respondent held any belief in or advocated use of force and violence to overthrow the Government of the United States, as charged in lodged charge No. 1. This statement is not consistent, to our view, since it has been established that Marxism — Leninism did so advocate and did so hold, as part of its integral revolutionary theory or policy.
On the record before us it would be difficult to conclude that the respondent was not well aware that he was a member/affiliate of organizations (Communist International and Communist Party of the United States of America) and was aiding these organizations which advocated, advised, and taught the overthrow of this government by force and violence. Such awareness and such conduct utterly belie his present averment i.e., his denial that he ever believed in or advocated the overthrow of this Government by force and violence. This averment is a tax on credulity and cannot be accepted. A calculus of the probabilities which arise from the evidence of record leads irresistibly to the reasonable conclusion that the respondent did believe in the overthrow of the Government of the United States by force and violence, at least during the period 1925 — October 1939.
The respondent showed a selective preference when he left the Socialist Party and later joined the Communist Party in 1925. He had schooling from the Communist Party of the United States of America as to what it and the Communist International stood for. He was by no means or in any sense an inactive, or indolent, or "fringe" member/affiliate of these organizations. He became a party "organizer." While so engaged he found himself in several situations which resulted in his arrest for labor demonstrations, etc. He was pledged to, subscribed to, believed in the principles of Marxism — Leninism from at least 1925 to October 1939. He still believes in these principles. He admits this himself.
He is in no sense a novice or neophyte. He was acquainted with the "classics" introduced into this record (exhibit 19-23). He exhibited familiarity with literature repudiating Second International and other ideologies inimical to the Marxism — Leninism embodied in the Communist International (Third International movement). He demonstrated his close acquaintance with the Marxist — Leninist theory and practice and tactics, to the extent of referring to an 1878 extract from minutes of a German Reichstag meeting in Berlin, relating to certain remarks of Bebel, reprinted later in a book by Marx, which is not in evidence. The whole record indicates that the respondent was very well aware indeed of the fundamental theory and practice of Marxism — Leninism during the period he was a member/affiliate of the Communist Party of the United States of America and Communist International. We have demonstrated that Marxism — Leninism held violent revolution to be the law of revolution.
Again, the respondent was an active member/affiliate of these organizations which embodied Marxism — Leninism, when the 1928 resolution (exhibit 27), program and constitution of the Communist International (exhibit 5) were adopted; when "exceptionalists" like Gitlow and Lovestone were rejected by the party. He made the pledge, as shown in the typical membership book for 1930 (exhibit 18), to support these organizations. In 1930, he stated he wished to overthrow the Government of the United States (exhibit 6) but was careful to say when asked "not by force and violence" and then departed before he could be served with the warrant of arrest (exhibit 1). He was considered sufficiently well versed in the principles of Marxism — Leninism and sufficiently loyal thereto, by his party, so as to be entrusted with the dissemination of the party "line" to readers of Greek in a Greek publication here; of which publication he was "sort of an editor." His loyalty was not questioned by his party at any time. He says he left the party in October 1939 merely because he was not a United States citizen. When his awareness of Marxism — Leninism principles is coupled with his long period of devoted service aiding the Communist movement which embodied these principles (which we have shown included force and violence as high policy, a law of revolution), his denial on the issue dwindles to a mere self-serving device.
His stated theory of when the use of force and violence would be justified (when resistance is offered) is not a repudiation of any principle of Marxism — Leninism, but supports a conclusion he did and does believe in the use of force and violence, at least under certain circumstances. His argument about the nationalization of property by parliamentary means still does not constitute a repudiation of the force and violence law or any other principle of Marxism — Leninism. There remain further objectives of Marxism — Leninism and its advocacy of the use of force and violence to achieve these aims persist, i.e., the overthrow of the bourgeois governments, the establishment of the dictatorship of the proletariat (with its new "State"), mutual help in the world proletarian revolution and particularly help to the U.S.S.R. when under "imperial" attack. Not one bit of documentary evidence was adduced to support the position taken by the respondent on this issue to show when the law of revolution ceased to advocate force and violence under the principles of Marxism — Leninism. We have shown before how it fully applied to the United States at least since 1917, as a law of revolution.
His "partial" admission, indicating the probable need for force and violence here, his loyalty and active participation in aiding these organizations, his avowed endorsement of the principles of Marxism — Leninism, his obvious awareness of such principles, the party's strict regimen and discipline, all unmistakably support the reasonable conclusion that he actually did believe in the overthrow of the Government of the United States by force and violence from at least 1925 to October 1939. Such a belief is consistent with Marxism — Leninism, as shown. The contrary view presented, of a "peaceful" method to achieve its aims, is utterly inconsistent with such principles. Moreover the respondent said he could not determine in advance what methods would be employed to take over the Government. It would be naif, to the extent of unpardonable gullibility, to reach any other conclusion as to the respondent's belief on this issue. Accordingly, it is found that the evidence of record sustains the lodged charge No. 1.
This is in keeping with a maxim of Marxism — Leninism, i.e., not to tie one's hands in advance.
"To tie one's hands beforehand, openly to tell the enemy, who is at present better armed than we are, whether we shall fight him, and when, is stupidity and not revolutionariness. To accept battle at a time when it is obviously advantageous to the enemy and not to us is a crime; and absolutely worthless are those political leaders of the revolutionary class who are unable `to tack, manoeuvre, and compromise' in order to avoid an obviously disadvantageous battle" (exhibit 21, p. 59; see also exhibit 37, p. 49).
In contrast, see Stalin's conception when a "peaceful" method was possible or conceivable (See p. 432 herein: exhibit 22, p. 56). What is at issue is not the "conceivability" or "possibility" of a "peaceful" method, if there is no resistance; the probable method believed in or advocated is at issue.
From the foregoing, considering the evasive answers of the respondent and his unequivocal assertion that he believes now in the same principles of Marxism — Leninism which he subscribed to during the time he was a member/affiliate of the Communist International and Communist Party of the United States of America, there would appear to be sufficient basis, in view of the evidence before us, to lodge an additional charge as to present belief in the overthrow of the Government of the United States by force and violence. No useful purpose would now be served in having the hearing reopened so that such an additional charge could be lodged, in view of his having been found deportable on all the charges lodged against him at the previous hearings.
VI. Burden of Proof
There is no dispute that the Government bears the burden of proof in these deportation proceedings. Counsel asserts that the Government is called upon to establish this case by more than a mere preponderance of the evidence and points to the case of Schneiderman v. U.S. ( 320 U.S. 118). It is the view of this Service that a fair preponderance of the evidence is all that is required here, that it has met its burden of proof as to quantum of evidence and degree of proof, and that only a brief comment is necessary to distinguish the case cited by counsel.
Section 23 of Immigration Act of 1924; 43 Statute 165-166; 8 U.S.C. 221; Hughes v. Tropello 296 F. 306 (C.C.A. 3, 1924); Palmer v. Ultimo 69 F. (2d) 1 (C.C.A. 7, 1934); Werrmann v. Perkins 79 F. (2d) 467 (C.C.A. 7, 1935).
In the Schneiderman case ( supra), the Government had brought proceedings (in 1939) to have declared a nullity a court's order (in 1927) granting citizenship. This action was brought on the ground the naturalization was illegally procured because Schneiderman was not attached to the principles of the United States Constitution for the period required by law in his case in 1927. It was a denaturalization proceeding, and not a criminal proceeding. It was not based on fraud. Yet the majority opinion in the Supreme Court of the United States (in 1943) held that the rule usually applicable in criminal or fraud cases, would be applied in that denaturalization. It held the facts should be construed as far as reasonably possible in favor of the naturalized citizen in that case, because the citizenship right conferred by court order in 1927 should not be taken away without clear justification. It therefore held that the Government's burden had to be met with evidence of a clear, convincing, and unequivocal nature to establish that when citizenship was conferred by the court in 1927, it was not done in accordance with strict legal requirements.
The majority opinion pointed out that the Government had had an opportunity to be heard in the 1927 hearing before the naturalization court, and then had a right to appeal if it so desired. It held that the remedy in denaturalization was much narrower than that afforded in a direct appeal from a lower court's decision. Thus the rule of what the reasonable man might conclude from a mere preponderance of the evidence was not found acceptable by the majority in the Supreme Court in Schneiderman's case, because of what was involved, i.e., a reexamination of a naturalization court judgment rendered many years before and a possible reversal of that court's judgment.
This holding by the majority of the Supreme Court in the Schneiderman case ( supra) has no application in deportation proceedings before an administrative agency, charged with the enforcement of the applicable deportation statute. There is no court judgment as to this respondent which is being reexamined or possibly reversed here. ( United States v. District Director of Immigration and Naturalization 169 F. (2d) 747 (C.C.A. (2d) 1948). The Government's burden of proof has been amply met by substantial evidence in this case and certainly by a fair preponderance thereof.
There is one other point to which counsel refers, as to which the Government has no burden of proof. Counsel made references to certain documents and the respondent has made certain references purporting to indicate that "revolution" or "civil war" are in the American tradition. Neither the respectability or sanction by tradition or otherwise of "revolution" or "civil war" is in issue in these proceedings. This Service is charged with determining whether this alien comes within the purview of the statute which renders him deportable. A conclusion has been reached that the respondent is subject to deportation on all of the lodged charges, and the Government has met its burden by ample substantial evidence.
Findings of Fact: Upon the basis of all the evidence presented it is found:
(1) That the respondent is an alien, a native and citizen of Greece;
(2) That the respondent was admitted into the United States for permanent residence on March 7, 1916 at New York and has remained here since;
(3) That the respondent was an active member/affiliate in good standing of the Communist Party of the United States of America from at least 1925 to October 1939, and that during such period at least that organization believed in, advised, advocated, and taught the overthrow of the Government of the United States by force and violence;
(4) That the respondent was affiliated with the Communist International from at least 1925 to October 1939, and that during such period at least that organization believed in, advised, advocated, and taught the overthrow of the Government of the United States by force and violence;
(5) That the respondent was an active member/affiliate in good standing of the Communist Party of the United States of America from at least 1925 to October 1939, and that during such period at least that organization circulated and distributed, and caused to be circulated and distributed, written and printed matter adyising, advocating, and teaching the overthrow of the Government of the United States by force and violence;
(6) That the respondent, during at least from 1925 to October 1939, believed in the overthrow of the Government of the United States by force and violence, and continues to hold the same views thereon since October 1939;
(7) That during at least from 1925 to October 1939, the Communist Party of the United States of America was affiliated with the Communist International.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the act of October 16, 1918, as amended, the respondent is subject to deportation, in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who is affiliated with an organization, that believes in, advises, advocates, and teaches the overthrow of the Government of the United States by force and violence, i.e., the Communist International;
(2) That under the act of October 16, 1918, as amended, the respondent is subject to deportation, in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who is a member of and affiliated with an organization, that advises, advocates, and teaches the overthrow of the Government of the United States by force and violence, i.e., the Communist Party of the United States of America;
(3) That under the act of October 16, 1918, as amended, the respondent is subject to deportation, in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who is a member of and affiliated with an organization, that circulates and distributes, and causes to be circulated and distributed, written and printed matter advising, advocating, and teaching the overthrow of the Government of the United States by force and violence, i.e., the Communist Party of the United States of America;
(4) That under the act of October 16, 1918, as amended, the respondent is subject to deportation, in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who believes in, the overthrow of the Government of the United States by force and violence;
(5) That under the act of October 16, 1918, as amended, the respondent is subject to deportation, in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who is a member of an organization, that believes in, advises, advocates, and teaches the overthrow of the Government of the United States by force and violence, i.e., the Communist Party of the United States of America;
(6) That the respondent is not subject to deportation on the ground that he has been found in the United States in violation of the act of October 16, 1918, as amended by the act of June 5, 1920, in that he is a member of, or affiliated with an organization, association, society, or group that believes in, advises, advocates, or teaches the overthrow by force or violence of the Government of the United States or of all forms of law;
(7) That under section 20 of the Immigration Act of February 5, 1917, the respondent is deportable to Greece at Government expense.Other Factors: The respondent has lived here since his lawful admission in 1916. He has a citizen wife and two native-born children, dependent upon him for support. The record shows no police record since 1930. He has presented several affidavits as to his character (exhibit 17A, 17B). The record contains no adverse information as to his behavior as a husband and father. These are elements in his favor.
Even if the alien were not ordered deported, an obstacle to his naturalization on the basis of his petition filed in 1944 will be presented in view of the provisions of section 305 of the Nationality Act of 1940 (because of membership in a proscribed organization within the preceding 10 years). Upon the issuance of the warrant of deportation such petition would fail because of the residential requirement for naturalization.
The charges upon which deportation is predicated herein place the alien within a class of persons enumerated in section 19 (d) of the act of February 5, 1917, as amended, so as to bar him from the discretionary relief contained in section 19 (c) of that act, except insofar as voluntary departure might be authorized in conjunction with the advance grant of relief under the seventh proviso to section 3 of the act of February 5, 1917. The question presented is whether the record justifies a grant of such relief from deportation, even if the alien be otherwise eligible.
Section 2 of the act of October 16, 1918, as amended calls upon the Attorney General to deport aliens found deportable under the act. Section 3 of that act makes it a felony with prison penalty upon conviction to enter or attempt to enter the United States after such deportation; and after such conviction and imprisonment the Attorney General again has been called upon to deport such aliens.
In the fact of such legislative intent, relief from deportation in the form of voluntary departure and advance seventh proviso relief would not be justified unless there were strong appealing features in the case and such relief appeared to be in the best interest of the United States.
The respondent has been found to have been an active member/affiliate of proscribed organizations for over 14 years at least (1925 to October 1939). He insists that he still maintains the views and beliefs of Marxism — Leninism which he held previously during the period from 1925 to October 1939, and thereafter. In addition, his membership in and association with the International Workers Order (an organization on the Attorney General's list of "subversive organizations") began in 1935 and still continues. Furthermore he was a member of the Spartacus Group, reputed to be a Communist "strongarm" group from 1933 to about 1941 when it went out of existence. The record also shows that he filed a declaration of intention to become a citizen of the United States in 1922 but had not filed a petition for naturalization until 1944. All the foregoing raises a serious question as to his attitude towards this country. It cannot be said from this record that it would be to the best interest of the United States to grant him any relief from deportation. In addition the unfavorable factors far outweigh any favorable ones. To grant relief from deportation would not be justified on the basis of this record and deportation should be ordered.
Recommendation: It is recommended that the respondent be deported to Greece at Government expense on the following charges:
(1) That under the act of October 16, 1918, as amended, the respondent is subject to deportation, in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who is affiliated with an organization, that believes in, advises, advocates, and teaches the overthrow of the Government of the United States by force and violence;
(2) That under the act of October 16, 1918, as amended, the repsondent is subject to deportation in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who is a member of and affiliated with an organization, that advises, advocates, and teaches the overthrow of the Government of the United States by force and violence.
(3) That under the act of October 16, 1918, as amended, the respondent is subject to deportation in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who is a member of and affiliated with an organization, that circulates and distributes, and causes to be circulated and distributed, written, and printed matter advising, advocating, and teaching the overthrow of the Government of the United States by force and violence;
(4) That under the act of October 16, 1918, as amended, the respondent is subject to deportation, in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who believes in the overthrow of the Government of the United States by force and violence;
(5) That under the act of October 16, 1918, as amended, the respondent is subject to deportation, in that after entry, he was a member of the following class set forth in section 1 of said act:
An alien who is a member of an organization, that believes in, advises, advocates, and teaches the overthrow of the Government of the United States by force and violence.So ordered.
APPENDIX A
LIST OF EXHIBITS IN THE HEARING RECORD OF P---- H----
A-5300756
Exhibit 1 — Warrant of arrest issued on April 12, 1930, and served on May 2, 1946.
Exhibit 2 — Application for verification of arrival; and verification of arrival, of P---- H---- on March 7, 1916, at New York.
Exhibit 3 — A New York City police statement of no record under the name of, or fingerprinter of, P---- H----.
Exhibit 4 — Photostatic copy of The Constitution and By — Laws of the Communist Party of the United States of America, published by Workers Library Publishers, Inc., New York, August 1938, and stating that this constitution was adopted in 1938 at the tenth national convention of the Communist Party of the United States of America and was ratified subsequently by the party membership, after discussion in the branches of the party (identified and authenticity established in the hearing on p. 27, and on p. 144-145).
Exhibit 5 — Photostatic copy of program of the Communist International (together with its constitution) 1936 Workers Library Publishers, New York, which indicates that this program of the Communist International, together with the constitution, was adopted at the forty-sixth session of the sixth World Congress of the Communist International September 1, 1928 (identified and authenticated in the record on p. 29, 30, 145).
Exhibit 5A — Pamphlet copy of Programme of the Communist International (together with the constitution and rules of the Communist International) Workers Library Publishers, Inc., New York, printed in U.S.A., first edition, December 1, 1929, New York, N.Y. (identified and authenticated in the record on pp. 47, 51, 146, and 265).
Exhibit 6 — Preliminary sworn statement taken from P---- H---- prior to the issuance of the warrant of arrest against P---- H---- on April 12, 1930 (the respondent did not object to the introduction of this statement as an exhibit, see p. 36 of the hearing).
Exhibit 7 — Marriage certificate of P---- H---- showing marriage in New York City on September 15, 1937 (introduced and identified for the record on p. 42).
Exhibit 8 — Birth certificate of I---- H---- H----, on August 5, 1939, Bronx, N.Y. (identified and introduced in the record on p. 43).
Exhibit 9 — Birth certificate of G---- H---- H----, on October 9, 1944, Brooklyn, N.Y. (identified for the record on p. 43).
Exhibit 10 — Photostatic copy of "The Communist," volume XIII, May 1934, No. 5, pages 427 through 429, containing an editorial entitled "The Eighth Convention of our Party," (identified and authenticated pp. 52, 66, 147, 266, objection generally p. 53, authenticity not doubted, p. 66).
Exhibit 11 — Photostatic copy of "The Communist," February 1934 edition, pages 131 to 144, containing the Thesis of the Thirteenth Plenum of the Executive Committee of the Communist International. (Conceded to be such excerpt from such publication, p. 57 and identified for the record on p. 149.)
Exhibit 12 — Photostatic copy of The Way Out, a program for American labor, with introduction by M.J. Olgin, published May 1934 by Workers Library Publishers, Post Office Box 148, Station D, New York City, containing such introduction, and Manifesto and Principal Resolutions adopted by the eighth convention of the Communist Party of the U.S.A., held in Cleveland, Ohio, April 28, 1934 (pp. 20 through 100 of this pamphlet) introduced as exhibit 12, identified for the record on pages 66, 149 and 265 (the same three resolutions appear in the May 1934 edition of "The Communist" on pp. 430 through 489) page 65.
Exhibit 13 — A letter dated March 20, 1947, from respondent's counsel to the effect that she was unable to secure the "Report to the Emergency National Convention of the Communist Party dated November 16, 1940" which had been stipulated to be introduced into evidence in this case as exhibit 13, if secured (pp. 83, 84).
Exhibit 14 — Pamphlet copy of Constitution of the Communist Party of the United States of America (together with bylaws of the Communist Party of the State of New York), published by the Communist Party of the State of New York (1945), consisting of 32 pages, and bearing a footnote on page 23 stating this constitution was "adopted by the Communist Party, U.S.A., July 28, 1945" (presented in behalf of respondent and introduced into the record p. 85).
Exhibit 15 — Photostatic copy of "The Communist," July 1934, volume XIII, No. 7, pages 611-615 referring to "The Darrow Report," an editorial therein (pp. 88, 89, 178, and 266 for identification).
Exhibit 16 — Photostatic copy of "The Communist," July 1934, volume XIII, No. 7, pages 655 through 663, referring to a statement of the central committee, Communist Party of U.S.A., entitled "Unify the Forces of All Steel Workers for Aggressive Unionism" (identified and authenticated for the record, pp. 88, 89, 178, 266).
Exhibits 17A and 17B — Affidavits, 17A by D---- C---- dated May 3, 1946, by J---- G---- P----, dated May 3, 1946 (identified and introduced into the record on p. 112).
Exhibit 18 — Photostatic copy of membership book No. 15059 of the Communist Party of the U.S.A. (section of the Communist International) issued 1930, the printed matter therein offered as a typical Communist Party membership book for the year 1930 (identified and introduced into the record pp. 152-153).
Exhibit 19 — Pamphlet copy form of manifesto of the Communist Party (the Communist Manifesto 1848) by Karl Marx and Friedrich Engles authorized English translation, edited and annotated by Friedrich Engles (1888), published by the International Publishers (all rights reserved 1932), eleventh printing, April 1939 (pp. 153 and 155 identified for the record).
Exhibit 20 — Photostatic copy of State and Revolution (Marxist teaching about the theory of the State and the tasks of the Proletariat in the revolution) by V.I. Lenin, revised translation, reprinted from Toward the Seizure of Power by V.I. Lenin, published by the International Publishers of New York, copyright 1932, third printing, 1935 (identified and introduced into the record, pp., 155, 156 referred to on p. 260).
Exhibit 21 — Photostatic copy of "Left — Wing" Communism, An Infantile Disorder, by V.I. Lenin, new translation bearing a dedication on April 27, 1920, to Lloyd George, and published by the International Publishers, copyright 1940 (identified and introduced into the record p. 157). A witness identified this work as having been issued since 1929 (exhibit is also referred to on p. 261).
Exhibit 22 — Photostatic copy of Foundations of Leninism by Joseph Stalin, new translation published by the International Publishers, copyright 1939, has a note that it contains a series of lectures delivered at Moscow, in the beginning of April 1924, shortly after death of Lenin (identified and introduced into the record, p. 158, the witness stating that he had seen such a pamphlet since 1929. It is also referred to on p. 261).
Exhibit 23 — Photostatic copy of Problems of Leninism, by Joseph Stalin, published by the International Publishers, copyright 1934, printed U.S.A. The witness identified this pamphlet and stated that he has seen such a work since 1929 (pp. 158 and 159. It is also referred to on p. 262).
Exhibit 24 — Photostatic copy of The Communist Party in Action, by Alex Bittelman, published by the Workers Library Publishers, May 1934, first, second, and third printing 1932, third revised edition, May 1934 (identified and introduced into the record, p. 160 and p. 162. Also referred to on p. 262).
Exhibit 25 — Photostatic copy of Why Communism, by M.J. Olgin, published by the Workers Library Publishers, copyright 1935, first edition December 1933, second printing February 1934, first revised edition March 1934, second printing May 1934, second revised edition May 1935 (introduced and identified in the record on pp. 162 and 165. Also referred to on p. 162).
Exhibit 26 — Photostatic copy of "Political Education, part two, the Ultimate Aim," published by International Publishers, copyright 1935 (introduced and identified for the record pp. 170 and 171).
Exhibit 27 — Photostatic copy of The Struggle Against Imperialist War and the Tasks of the Communists, resolution of the Sixth World Congress of the Communist International, July — August 1928, Workers Library Publishers, first edition December 1932, second edition July 1934 (identified in the record pp. 171 and 172 and p. 263).
Exhibit 28 — Photostatic copy of "The Communist," July 1929, referring to article entitled, "The Revolutionary Struggle Against Imperialist War," by H.M. Wicks, pages 355 through 359 (introduced and identified for the record pp. 172 and 173 and referred to on p. 264).
Exhibit 29 — Photostatic copy of Thesis and Resolutions for the Seventh National Convention of the Communist Party of the U.S.A., by Central Committee Plenum, March 31 — April 4, 1930, Workers Library Publishers (identified and introduced into the record pp. 175 and 176. Referred to on pp. 265, 345).
Exhibit 30 — Photostatic copy of "The Communist," volume XIV, February 1935, No. 2, referring to article entitled "The Socialist Revolution in the United States" by Alex Bittelman, appearing on pages 127 through 147 in this exhibit (identified and introduced into the record on pp. 177 and 178).
Exhibit 31 — Photostatic copy of a photograph submitted by witness H---- (identified and introduced into the record on pp. 226 and 227).
Exhibit 32 — Photostatic copy of another photograph submitted by witness H---- (identified and introduced into the record, pp. 228 and 229).
Exhibit 33 — "Daily Worker," December 15, 1934, submitted by respondent's counsel and referring to article on page 2 thereof saying that one J---- Z----, J---- T----, and R---- S---- expelled from the Communist Party (identified for the record on p. 272).
Exhibit 34 — Pamphlet copy of the Constitution of the Communist Party of the United States of America, published by the Communist Party of the U.S.A., national office, New York, February 1947 (identified and introduced into the record pp. 283 and 284, the respondent's exhibit 14 appears to be the same as the respondent's exhibit 34).
Exhibit 35 — Pamphlet copy entitled "Democracy or Fascism, Earl Browder's Report to the Ninth Convention of the Communist Party," published by Workers Library Publishers, 1936 (identified and introduced in the record by the respondent pp. 285 and 286).
Exhibit 36 — Pamphlet copy entitled `The Communist Election Platform, 1936," ratified at the national nominating convention of the Communist Party of the U.S.A., June 28, 1936 (introduced into the record and identified in behalf of respondent pp. 286, 287).
Exhibit 37 — Pamphlet copy entitled "The Communists in the People's Front" (report delivered to the plenary meeting of the central committee of the Communist Party of the U.S.A.), held June 17-20, 1937, published by Workers Library Publishers July 1937 (identified and introduced into the record in behalf of the respondent p. 287).
Exhibit 38 — Pamphlet copy entitled "Communist Election Platform" adopted by the national nominating convention, May 28-29, 1932 (introduced and identified for the record in behalf of the respondent on p. 288).
Exhibit 39 — Pamphlet copy entitled "The Democratic Front," by Earl Browder, report delivered May 28, 1938, to the tenth national convention of the Communist Party of the U.S.A. on behalf of the national committee (introduced and identified in the record pp. 288 and 289, on behalf of the respondent).
Exhibit 40 — Pamphlet copy entitled "The Communist Election Platform, 1938," by national committee of the Communist Party, U.S.A. (introduced into the record and identified pp. 289 and 290, on behalf of the respondent).
Exhibit 41 — Pamphlet copy entitled "Resolutions of the Ninth Convention of the Communist Party" (ninth national convention of the Communist Party held June 24-28, 1936), published 1936 by the Workers Library Publishers (identified and introduced in the record p 290, on behalf of the respondent). (See exhibit 35.)
Exhibit 42 — Pamphlet copy entitled "Resolutions of the Tenth Convention of the Communist Party, U.S.A.," adopted at national convention held in New York, May 27 to 31, 1938 (introduced and identified in the record on pp. 290 and 291, on behalf of the respondent).
Exhibit 43 — Pamphlet copy entitled "Election Platform of the Communist Party, 1940," published Workers Library Publishers, Inc., 1940 (identified and introduced in the record pp. 291 and 292, on behalf of the respondent).
Exhibit 44 — Photostatic copy containing a telegram appearing on pages 319 and 320 of "The Communist" of the April 1938 issue, signed by Earl Browder, general secretary, Communist Party, U.S.A. (introduced and identified in the record pp. 292 and 293, on behalf of respondent).
Exhibit 45 — "The Communist," July 1934 edition, referring to article entitled "The Socialist Party Convention-a Communist Estimate," appearing on pages 616 through 638 of that issue of "The Communist" (identified and introduced in the record on pp. 424 and 425). Also referred to on pp. 442 and 443.
Exhibit 46 — Pamphlet copy entitled "Stalin's Speeches on the American Communist Party," delivered in 1929, published by the central committee, Communist Party U.S.A. (identified and introduced in the record on pp. 441 to 443).
Exhibit 47 — Pamphlet copy entitled "Resolutions, Seventh Congress of the Communist International" (including the closing speech of G. Dimitroff), published by Workers Library Publishers, New York, November 1935 (identified and introduced in the record pp. 460, 461 and 462).
Exhibit 48 — Pamphlet copy entitled "A Letter to American Workers," V.I. Lenin, published by International Publishers Co., Inc., copyrighted 1934, second printing 1935 (introduced and identified for the record pp. 479, 480, and 481).
APPENDIX B
REMARKS AND REFERENCES REGARDING DIALECTICAL MATERIALISM
In presenting proof of what the integral revolutionary theory or policy of Marxism — Leninism involved, it was deemed unnecessary to furnish or attempt to furnish an anatomy of its underlying philosophy which is said to be "dialectical materialism." It was deemed more to the point and more precise to note in our memorandum the conclusions which purportedly were arrived at through the "dialectical materialism" approach by its accredited formulators, expounders, and exponents.
A study of "dialectical materialism" yields much insight as to the issues in this case. As the underlying philosophic key to Marxism — Leninism, its importance cannot be overemphasized. Marx, Engels, Lenin, and Stalin frequently referred to it and consistently employed it exclusively as to theory and practice in realizing Communist society.
There is considerable written material on this subject of dialectical materialism. Counsel has furnished several "points" as to dialectics which were similar to some of the 16 points covered by R.P. Dutts (a writer on Lenin), in Labour Monthly for March 1932. Counsel has referred to Lenin's Granat Encyclopedia article on Marx but the bit furnished from that article is very meagre. Counsel has not furnished Lenin's summary therein on dialectics and evolution. Counsel has also referred to a passage from a Marx preface to his Critique of Political Economy, which is part of one of his celebrated statements (see counsel's supplementary brief p. 10). This passage continues as follows: "In broad outlines we can designate the Asiatic, the ancient, the feudal, and the modern bourgeois methods of production as so many epochs in the progress of the economic formation of society. The bourgeois relations of production are the last antagonistic form of the social process of production-antagonistic not in the sense of individual antagonism, but of one arising from conditions surrounding the life of individuals in society; at the same time the productive forces developing in the womb of bourgeois society ereate the material conditions for the solution of that antagonism. This social formation constitutes, therefore, the closing chapter of the prehistoric stage of human society."
No assay is here made to weigh quotations and excerpts against other quotations and excerpts just as in the memorandum a so-called battle of excerpts was not undertaken. In view of counsel's references to some material outside the record, it is deemed useful to juxtapose a few references which, it is believed, pertinently show the following, which were stressed in our memorandum:
(1) That Marxism — Leninism was based on a monist view (not pluralistic).
(2) That Marxism — Leninism was based on historical materialism (not idealism) an important element of which is dialectics (not eclectics), thus avoiding metaphysics and the mystical.
(3) That innate in dialectical materialism is the element of struggle and conflict and contradictions, represented in human conflict as force and violence in its higher intensity.
(4) That Marxism — Leninism is for the working class only; that it contemplates international revolution (society is to be changed all over the world and the workingman has no fatherland in any bourgeois country).
(5) That Marxism — Leninism views the state (both bourgeois and proletariat) as the instrument of domination of one class over another.
(6) That according to Marxism — Leninism the steps to be taken in order to fully reailze Communist society is first to abolish the bourgeois state by destruction of its machinery and to establish the dictatorship of the proletariat; while all measures of reform including universal suffrage under capitalism is considered simply for the purpose of weakening capitalism, "readying" it for overthrow.
(7) That Marxism — Leninism stands for a new "state" under the dictatorship of the proletariat, presumably to take the form of a pyramid of councils (communes or Soviets, under centralism).
(8) That in Marxism — Leninism, involving as it does the destruction of the bourgeois state and the establishment of the dictatorship of the proletariat as conditions precedent to a successful and thoroughgoing revolution the fulfillment of its aim can hardly be conceived as coming to realization except by the use of force and violence.
The following references are believed useful in tracing the foregoing points and as a counterpoise to the partial references offered by counsel.
Karl Marx: The Poverty of Philosophy; Critique of Political Economy; Capital; The Communist Manifesto; Class Struggle in France; Civil War in France.
Friedrich Engels: Landmarks of Scientific Socialism; Origin of the Family, etc.; Socialism, Utopian and Scientific; Feuerbach, the Roots of Socialist Philosophy; Principles of Communism.
V.I. Lenin: State and Revolution; "Left Wing" Communism, an Infantile Disorder, and works referred to therein. Materialism and Empiro — Criticism; The Proletarian Revolution and Kautsky the Renegade.
J. Stalin: Foundations of Leninism; Problems of Leninism; Dialectical and Historical Materialism.
A. Thalheimer: Introduction to Dialectical Materialism.
V. Adoratsky: Dialectical Materialism.
David Guest: Textbook on Dialectical Materialism.
T.B.H. Brameld: Philosopher's Approach to Communism.
L.B. Bludin: Book of Reference to Marxism; Aspects of Dialectical Materialism by Levy, Bernal, MacMurray, Arnot, Carritt.
D. Riazanov: Karl Marx and Friedrich Engels.
For Hegel's own statement on dialectics see his Science of Logic; for Marx's explanation of Hegel's dialectics see his Poverty of Philosophy, chapter II; for Engel's discussion of this subject, see his Landmarks of Scientific Socialism, chapter VII, and his Socialism, Utopian and Scientific chapter II. "Without conflict, no movement or progress" is underlined by dialectics.
Discussion: On December 16, 1948, the Assistant Commissioner found that the respondent was subject to deportation and ordered that he be deported to Greece. This record is before us on appeal from that order.
The statute under which the Assistant Commissioner found the respondent deportable is the act of October 16, 1918, as amended by the acts of June 5, 1920, and June 28, 1940.
41 Stat. 1008.
54 Stat. 673.
The respondent was born in Greece in 1903 and is a citizen of Greece. He came to the United States from Greece on March 7, 1916, and has resided in this country since that date. He admitted that from 1925 to October 1939 he was a member of the Communist Party of the United States of America. We shall therefore consider whether during the period of the respondent's admitted membership in the Communist Party of the United States, it advocated the overthrow by force or violence of the Government of the United States; and whether during that period it distributed printed matter that so advocated.
From 1931 to 1932 he was an organizer for the Communist Party and from 1933 to 1937 he served as secretary of the Greek bureau of the Communist Party-a subdivision thereof. He served in an editorial capacity on its publication "The Empros" from 1933 to about October 1939. His membership in the Communist Party ended in October 1939 because the Communist Party dropped non-citizens from its rolls (reopened hearing, pp. 18-22, 39).
Confined to these issues, the pertinent parts of the statute involved read as follows:
That any alien who, at any time, shall be or shall have been a member of one of the following classes shall be excluded from admission into the United States:
* * * * * * *
( c) aliens who * * * are members of * * * any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) the overthrow by force or violence of the Government of the United States * * *
* * * * * * *
( e) aliens who are members of * * * any organization, association, society, or group, that writes, circulates, distributes, prints, publishes, or displays, or causes to be written, circulated, distributed, printed, published, or displayed, or that has in its possession for the purpose of circulation, distribution, publication, issue, or display, any written or printed matter of the character described in subdivision (d).
"advising, advocating or teaching: (1) the overthrow by force or violence of the Government of the United States."
SEC 2. Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any of the classes of aliens enumerated in section 1 of this act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this act, irrespective of the time of their entry into the United States (act of October 16, 1918, as amended by the acts of June 5, 1920 and June 28, 1940; 40 Stat. 1012; 41 Stat. 1008; 54 Stat. 673; U.S.C. 137).
Counsel requested that proceedings before this Board be deferred until after the termination of a criminal trial now taking place at New York, N.Y., in which persons are charged with seeking the forcible overthrow of the Government of the United States. Counsel stated that "experts" engaged by the defendants at that trial were needed by the respondent to analyze the documents in the instant case and that they would not be available until after the conclusion of the New York trial. It is noted, however, that the documents were introduced at the hearings held many months ago. Surely it was the duty of counsel from that time on to determine their meanings. Ample opportunity was therefore available to obtain the advice of "experts" if deemed necessary. Furthermore, we do not believe that the opinions of "experts" regarding the meanings of the documents are material. The documents are written for popular consumption and any unusual connotations that they might have are irrelevant. We therefore have denied the request of counsel for a postponement of these proceedings.
In a brief submitted by counsel for the respondent it is argued that the statute involved is unconstitutional on the grounds that (1) it is retroactive, (2) it makes punishable a philosophy, and (3) it imputes personal guilt because of membership in an organization.
It is not within the province of this Board to pass upon the constitutionality of statutes enacted by Congress. Panitz v. District of Columbia, 112 F. (2d) 39, 42; Todd v. Securities and Exchange Commission, 137 F. (2d) 475, 478; Central Nebraska Public Power Irr. Dist. v. Federal Power Commission, 160 F. (2d) 782, 783; Interchangeable Mileage Ticket Investigation, 77 I.C.C. 200, 202; Maritime Assn., Boston Chamber of Commerce v. Ann Arbor R. Co., 95 I.C.C. 539, 542; Telephone and Railroad Depreciation Charges, 118 I.C.C. 295, 325-326; Galveston Commercial Assn. v. Galveston, H. S.A. Ry. Co., 128 I.C.C. 349, 378-379; In the Matter of East Ohio Gas Company, 1 F.P.C. 586, 592; Mississippi River Fuel Corporation, 2 F.P.C. 170, 175.
In oral argument, counsel attempted to distinguish the question of constitutionality of the statute from its constitutionality as applied to the respondent. In other words, it was argued that since the only evidence which supports a finding of former membership in a proscribed organization relates to a period of time antedating the passage of the 1940 amendment, that consequently as applied to the respondent, the 1940 amendment is unconstitutional. To our mind this argument embodies another attack upon the constitutionality of the statute — its retroactive feature — and we have no jurisdiction to pass upon the question.
It may be noted in passing, however, that the legislative history of the act of June 28, 1940, shows that it was enacted specifically to include past membership because the Supreme Court had held in Kessler v. Strecker, 307 U.S. 22, that the act of October 16, 1918, as amended by the act of June 5, 1920, did not provide for the deportation of past members of a proscribed organization (House of Representatives report No. 994, 76th Cong., 1st Sess., 1939, p. 6; Senate Report No. 1154, 76th Cong., 1st Sess., p. 5). We are obliged to give effect to every clause and part of a statute. Ginsberg Sons v. Popkin, 285 U.S. 204, 208, 76 L. ed. 704, 52 S. Ct. 322. Furthermore, the prohibition against the passage of ex post facto laws applies only to penal or criminal laws. Johannessen v. U.S., 225 U.S. 227, 56 L. ed. 1066, 32 S. Ct. 613; Bugajewitz v. Adams, 228 U.S. 585, 57 L. ed. 978, 33 S. Ct. 607. The cases of Cummings v. Missouri, 4 Wall. 277, 18 L. ed. 356, and Ex parte Garland, 4 Wall. 333, 18 L. ed. 366, which have been cited by counsel to prove the contrary, actually support this proposition. In the Cummings case the court held part of the constitution of Missouri unconstitutional and in the Garland case, it held a Federal statute unconstitutional, as ex post facto. But in both of these cases, the court stated that "penalties" and "punishment" imposed for prior conduct brought the provisions of the constitution of Missouri and the Federal statute within the ex post facto limitation. Although the courts have stated that deportation may result in the "loss of all that makes life worth living" ( Ng Fung Ho v. White, 259 U.S. 276, 284, 66 L. ed. 938, 942, 42 S. Ct. 492) and that "it may visit as great a hardship as the deprivation of the right to pursue a vocation or a calling" ( Bridges v. Wixon, 326 U.S. 135, 147, 89 L. ed. 2103, 2111, 65 S. Ct. 1443) and that "it can be the equivalent of banishment or exile" ( Delgadillo v. Carmichael, October term, 1947, Supreme Court of the U.S.), they have never construed deportation as punishment or as a penalty so as to bring it within the ex post facto inhibition. On the contrary, the courts have held that the fact that an immigration law may be retrospective in its application to an alien does not make it unconstitutional. Mahler v. Eby, 264 U.S. 32, 39, 44 S. Ct. 283, 286, 68 L. ed. 549; U.S. ex rel Lubbers v. Reimer, 22 F. Supp. 573. See also Lauria v. U.S., 271 Fed. 261, certiorari denied 257 U.S. 635, 66 L. ed. 408, 42 S. Ct. 48. The objections of counsel are therefore overruled.
Constitution, Art. 1, Sec. 9, clause 3.
The Act of May 10, 1920, was applied retroactively against an alien.
The Act of May 14, 1937, was applied retroactively against an alien.
The Act of February 5, 1917 (Section 19) was applied retroactively against an alien.
The Presiding Inspector and the Assistant Commissioner have found that during the period of the respondent's membership, the Communist Party advocated the overthrow, by force and violence, of the Government of the United States. Many court decisions, some on the basis of evidence in part similar to the evidence adduced in the instant case, have reached the same conclusion. U.S. v. Wallis, 268 Fed. 413, D.C.N.Y. (1920) (Manifesto and Program of the Communist Party); Skeffington v. Katzeff, 277 Fed. 129, C.C.A. 1 (1922) (Manifesto and Program of the Communist International and Manifesto and Program of the Communist Party of America); Antolish v. Paul, 283 Fed. 957, C.C.A. 7 (1922); U.S. ex rel. Lisafeld v. Smith, 2 F. (2d) 90, D.C. (W.D.) N.Y. (1924); Ungar v. Seaman, 4 F. (2d) 80, C.C.A. 8 (1924); Ex parte Jurgans, 17 F. (2d) 507, D.C. Minn. (1927) affirmed 25 F. (2d) 35, C.C.A. 8 (1928); Kenmotau v. Nagle, 44 F. (2d) 953, C.C.A. 9 (1930) certiorari denied 283 U.S. 832 (Communist Manifesto); Ex parte Vilarino, 50 F. (2d) 582, C.C.A. 9 (1931) (Communist Manifesto); Murdock v. Clark, 53 F. (2d) 155, C.C.A. 1 (1931); U.S. ex rel. Yokinen v. Commissioner of Immigration, 57 F. (2d) 707, C.C.A. 2 (1932); Berkman v. Tillinghast, 58 F. (2d) 621, C.C.A. 1 (1932); Kjar v. Doak, 61 F. (2d) 566, C.C.A. 7 (1932) (Program of the Communist International); U.S. ex rel. Fernandas v. Commissioner of Immigration, 65 F. (2d) 593, C.C.A. 2 (1933); In re Sanderquist, 11 F. Supp. 525, D.C. Me. (1935), affirmed 83 F. (2d) 890 (Program of the Communist International); U.S. ex rel. Fortmueller v. Commissioner of Immigration, 14 F. Supp. 484, D.C.N.Y. (1936); Branch v. Cahill, 88 F. (2d) 545, C.C.A. 9 (1937) (Communist Manifesto).
The documents mentioned above were among those introduced in the instant case as exhibits (Opinion of Assistant Commissioner — Appendix A).
We have carefully considered the documentary evidence and the oral testimony in this case. We have reviewed the analyses of the evidence by the Presiding Inspector and the Assistant Commissioner. We find, on the basis of the evidence adduced and the foregoing court decisions, that during the period of the respondent's membership in the Communist Party of the United States of America, it advocated the overthrow of the Government of the United States by force and violence, and it distributed printed matter which so advocated.
The Assistant Commissioner found the respondent deportable on several additional grounds. We do not sustain these other grounds of deportation. We find that the evidence of record does not establish that the respondent personally believed in or advocated the overthrow of the Government of the United States by force or violence. Since the respondent has admitted membership in the Communist Party of the United States, we believe that the grounds of deportation based on affiliation are, at the very best, superfluous.
The order of deportation will be affirmed on the grounds that after entry into the United States the respondent became a member of an organization which advocated the overthrow by force and violence of the Government of the United States, and which distributed printed matter that so advocated.
Order: It is ordered that the appeal from the decision of the Assistant Commissioner be and the same is hereby dismissed.