DEPORTATIONS

XXVII

OF RADICAL ALIENS

AND EXPULSION OF THE SOCIALISTS FROM THE NEW YORK ASSEMBLY

Two of the most important events affecting civil liberty and occurring in time of peace were the raids of the Department of Justice against the radical aliens and the expulsion of the socialists from the New York Assembly. The first of these was wide in its scope and affected hundreds of aliens in the eastern and middle western states. The second was a state affair denying the right of state representation to sixty thousand citizens.

THE DEPORTATIONS

Statute Under Which the Aliens Were Arrested. The federal statute under which the aliens were arrested was enacted in 1918 toward the close of the World War. In addition to the provisions already made for excluding radical aliens under the immigration laws, several new clauses were added. The aliens proscribed were:

"Aliens who are anarchists; aliens who believe in or advocate the overthrow by force or violence of the Government of the United States or of all forms of law; aliens who disbelieve in or are opposed to all organized government; aliens who advocate or teach the assassination of public officials; aliens who advocate or teach the unlawful destruction of property; aliens who are members of or affiliated with any organization that entertains a belief in, teaches, or advocates the overthrow by force or violence of the Government of the United States or of all forms of law, or that entertains or teaches disbelief in or opposition to all organized government, or that advocates 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, because of his or their official character, or that advocates or teaches the unlawful destruction of property."

Not only were aliens coming under the above provisions barred entry to the United States, but any alien already in this country

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383

who disobeyed them was deportable. It made no difference whether he came here prior to their enactment or how long he had been in the United States. The enforcement of the law was placed in the hands of the Department of Labor working through the immigration authorities.

Protest Against the Raids. The special provisions under which the raids of 1919 and 1920 were carried out made membership in or affiliation with a subversive organization a ground for deportation. In November, 1919, raids were made against the Federation of the Union of Russian Workers which later resulted in the deportation of some two hundred and forty-nine Russians on the steamer Buford. But the extensive raids which aroused the greatest amount of criticism occurred in January, 1920, and caused twelve well-known lawyers to file a brief with the Senate charging the Department of Justice with proceeding against the aliens captured in these raids without "due process of law" as provided by the Constitution. According to the other charges contained in the brief, arrests had been made and property seized without a warrant, persons arrested had been treated in a cruel and abusive manner, excessive bail had been demanded, persons had been unlawfully compelled to testify against themselves, and public money had been unlawfully expended for propaganda purposes. Evidence was submitted to substantiate these charges. The brief was signed by such men as Dean Roscoe Pound, Professors Felix Frankfurter, and Zechariah Chafee, Jr., all of the Harvard Law School; Dean Tyrell Williams of Washington University Law School; Judge Alfred S. Niles, Baltimore; Jackson H. Ralston, Washington; Frank P. Walsh, New York City; Francis Fisher Kane, former United States District Attorney. Mr. Kane had resigned his office because he could not conscientiously support the course pursued by the Department of Justice. Partly as a result of this brief and partly because of public sentiment, the Senate Judiciary Committee appointed a sub-committee to investigate the charges. Their findings are contained in several leaflets and form the basis of this chapter.

Unauthorized Action of Department of Justice. While the enforcement of the immigration laws and all deportation proceedings had been entrusted to the Department of Labor, the Department of Justice, which had no authority to act, had been chiefly instrumental in carrying on the raids. Congress had a definite purpose in delegating immigration proceedings to the Department of Labor rather than to the Department of Justice. Such proceedings, of a purely administrative nature, should be placed in the

hands of a body functioning along these lines. They should not be handled by a department entrusted with the prosecution of criminals. While several reasons were offered for the action of the Department of Justice, the fact remained that it was without authority to act.

Conduct of Raids. The raids were carefully planned. To gain inside information, undercover agents of the Department of Justice had previously joined the Communist Party and Communist Labor Party which were particularly the proscribed parties. They arranged to have meetings held on an appointed night. Such meetings were planned simultaneously in several of the big cities to preclude any danger of forewarning and failure. The instructions issued by the Department of Justice to its agents forbade the use of force and the confiscation of personal belongings. In some instances these instructions were apparently disobeyed. Affidavits were submitted to the Senate investigating committee charging the officers making the arrests with abusive treatment and condemning the quarters in which the prisoners were placed. Many of these affidavits were answered by the AttorneyGeneral and his agents and the charges denied. It could hardly be expected that agents who disobeyed their instructions and treated their prisoners unfairly, either at the time of arrest or during their imprisonment, would admit their wrong, particularly when the only proof against them was often the unsupported word of an alien. On the other hand, the persons arrested especially those unjustly imprisoned and later freed, would be apt to exaggerate. They would regard practically any aggressive action against them as a violation of justice. In deciding the truth of the accusations and denials, these factors have to be considered. Yet when the affidavits of several different prisoners tell the same story of the conduct of a certain raid or describe the same bad conditions and ill-treatment during confinement, as do some of the exhibits, considerable weight must be given to the evidence.

The raids occurred on the evening of January second. Practically every person attending the meetings of the proscribed parties was arrested and detained for examination. Many blunders were made in the conduct of the raids. For instance, a reliable witness testified before the Senate committee that in Detroit every one in the House of Masses, a radical meeting place, was arrested. This wholesale arrest included persons eating in the restaurant, students in classes conducted by the society, persons attending a ball in the building, and the corps of musicians

ARRESTS OF CITIZENS

385

hired to furnish the music, men commonly employed about town to play for dances.

Treatment of Citizens. This case was not an exception. On the night of the raids innocent persons, citizens and aliens alike, were arrested simply because they were present at a suspected meeting. The following testimony, given by a Detroit gentleman serving on a committee appointed to review the cases of those apprehended, bears out this statement.

Adolph Myer, a citizen, attended a supposedly legitimate lecture on the night of the raids and was arrested together with all other persons in the hall. His wife was very worried when he did not come home. Finally she learned of the raid and instituted a search for him. He was subsequently located about daylight in one of the jails. His wife was permitted to talk with him through the bars, and in the morning he was released. The hall in which the raid took place was a public building where a public address was being given. The government agents assumed it to be a meeting place of the Communist Labor Party and raided it for the purpose of apprehending members of that party. Mr. Myer was a skilled mechanic, an educated man, and a citizen. Naturally he was angry at the treatment he had received. He asked what remedy he could expect from the government and was told that nothing could be done. It was all a mistake and had better be forgotten.

Another case was that of Peter Frank of Swampscott, Massachusetts. He was arrested, charged with being an alien and belonging to a subversive organization. Frank claimed in his petition for habeas corpus, which was later verified by the evidence, that he was a native-born citizen. One night officers broke into his home at one o'clock in the morning, put him under arrest, searched his dwelling, seized his papers, imprisoned him, refused him counsel, would not permit his friends to visit him, etc. His claim to citizenship was denied and he was told that he must prove his citizenship. The only evidence produced against him was a questionnaire answered by Frank in the following manner:

1. Born in Cincinnati.

2. Not a member of the Communist or Socialist Party or of any organization except the Shoe Workers' Union.

3. At the bottom of the paper was the following statement: "I, the under-signed, not a citizen of the United States, on oath depose," etc. This was signed by Frank, who had carelessly overlooked the word “not.”

On such evidence as this, a United States citizen was taken from his home, searched, confined in jail for five days and finally released.1

Such blunders as to citizenship frequently occurred during the raids and the citizens had no redress. They were compelled to bear the burden of proof. The orders issued in Boston by agents of the Department of Justice called for documentary evidence of citizenship. If native born, birth records were demanded; if naturalized, naturalization papers. This order was not localized. To furnish these necessary records was not an easy task. A naturalized citizen could probably produce his naturalization papers without undue delay, but for a native-born citizen it would be more difficult. A considerable period of time might elapse before he could secure the necessary data. In such event, if he could not furnish bail, he might be confined in jail as was Frank. If the necessary records were destroyed or if he came from a state which only recently kept such records, he might be deported on the word of one man without recourse to the courts. This would be true under the ruling of the Departments of Justice and Labor which held that as the decision of the Secretary of Labor was made final under the deportation act, he alone could decide whether a man was a citizen or not if proof was not forthcoming. Unreasonable Search and Seizure. During the raids, the immunity against unreasonable searches and seizures insured by the Constitution was consistently violated. In fact the instructions issued by the Department of Justice to subordinates expressly ordered that all meeting places and homes of the accused should be thoroughly searched but that search warrants should be obtained only where absolutely necessary. Even if there were no provision in the Constitution protecting individuals from this official invasion, the deportation law itself was purely statutory and contained no authorization for search and seizure of private property.

The

Character of the Men. Constantine M. Panunzio, a Protestant minister, made a cross section study of 200 cases of the men and women imprisoned. His findings were published by the Federation of the Churches of Christ in America. They show the type of persons arrested and tell something of their cases. war records were omitted in many instances, but out of the group of alleged radicals opposed to the government and institutions of the United States thirty-seven were recorded as purchasing liberty bonds, twenty-four as buying liberty stamps or contributing 1 Chafee, Z. Jr., "Freedom of Speech," pp. 253-254.