James Kutcher’s involvement in the great events of his time was almost accidental, and for the most part passive. The son of a Newark fur worker, he graduated from high school during the depression, only to find that his father’s vanishing earnings made it impossible for him to go on to college and become a teacher as he had planned. Instead, he went to work. Only there was no work. For years he alternated between unemployment and odd jobs. He joined the Young People’s Socialist League and the Socialist party. In those organizations he appears to have been a conscientious but never in any sense a leading member, even locally in Newark. Then, for a short while, the American followers of Leon Trotsky joined the Socialist party. They were expelled after some months, but during their stay picked up a few recruits, of whom James Kutcher was one.
The specific reasons for his conversion to Socialism and then to Trotskyism do not emerge clearly in his autobiography, The Case of the Legless Veteran. But it seems highly improbable that they were ideological; neither in his book, nor in his recorded testimony before any of the hearing boards he has faced in recent years, does Kutcher give any impression of familiarity with or even interest in the fine shadings of doctrine which distinguish Trotskyites from all other men, and the Socialist Workers party, to which he belongs, from all other Trotskyites. On the whole, Kutcher seems far more likely to have been motivated by personal loyalties; one gets the impression that these have, in his case, always been rather strong.
So far, his life was essentially uneventful. But it diverged from the pattern of millions of his contemporaries, who, while they had more or less similar experiences during the depression, did not become Trotskyites. Those who did never exceeded a few thousand in all. Except to the Communist party, which customarily cited them to the Dies Committee and similar bodies as proper objects of investigation, the Trotskyites hardly seemed a major menace. Kutcher’s Trotskyism seems to have supplied him with a social life of sorts, to have caused him to join a certain number of picket lines and distribute a good many leaflets, and to have filled many of his leisure hours with the addressing of envelopes. Essentially a shy and almost timid man, he appears to have done little if any direct proselytizing for his cause.
Then, on January 21, 1941, he was drafted into the United States Army. As a Trotskyite, he was opposed to the war; he was also theoretically committed to trying to win other soldiers over to the Trotskyite point of view. In fact, according to his own testimony and that of fellow soldiers, he did nothing of the kind. Instead, he tried to become a good soldier, obeyed orders, and on November 9, 1943, was seriously wounded by a mortar shell near San Pietro in Italy. On the same evening, both his legs were amputated. Then came almost two years of treatment and training in the use of artificial legs. Finally, on September 27, 1945, he was discharged from the army.
He received a disability pension. This, together with the small Social Security pay- received by his parents (and the fact that they lived in a low-rent public housing development), just about met the family’s expenses on a very modest standard. The rising cost of living placed Kutcher under increasing financial pressure; even more important, he wanted the feeling of usefulness and belonging that a job would give. He therefore took and passed a civil service examination, and in August 1946 he was appointed a clerk in the Newark office of the Veterans Administration.
Of this job, Kutcher writes:
My pay started at $38 a week, rising to $39 a year later. Veterans who wanted to get a loan under the GI Bill to buy a house or start a business had to come to the Loan Guarantee Division for a certificate of eligibility. I entered their claims in a register, stamped their discharge papers, and issued the certificate which was typed up by one of the girls in our office. My efficiency rating in this job was “excellent.”
After more than a year, I was transferred to the Vocational and Rehabilitation Division where I handled contracts made between employers and veterans getting on-the-job training. I recorded information about the amount and frequency of wage increases due the veterans, checking to make sure the wage progressions were correct. My rating in this job was “very good.” Toward the end of my second year Congress passed a bill granting pay increases of about $6 a week to all civil service employees. . . .
For the first time in my life, I had a sense of security. For the first time I had a real job. I was filling it satisfactorily, and although I did not magnify its importance I was making a slight contribution to the welfare of other veterans. But above all was the realization that I was not socially useless after all, that despite my disability I could hold a job like other people, that in certain ways I was even better off than before I was drafted!
All in all, this was the happiest time of my life since my schooldays. . . . I remained a member of the party, interested as before in social and political developments, but not as active; I still took minutes at meetings, but had no time now to help in the clerical work. . . .
And then on August 16, 1948, came a bombshell more stunning than any I ever experienced in the war: The manager of the Veterans Administration in Newark . . . handed me a letter telling me I was scheduled to be fired within 30 days on the ground that I was “disloyal” to the government of the United States.
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Thus was James Kutcher launched on a career as a national figure. For from that day on, he has been engaged in a continuing fight to defend himself (and his parents as well) against the attacks of various government agencies.
The charges against Kutcher, brought under President Truman’s loyalty program, Executive Order 9835 of March 21, 1947, all arose out of his membership and activity in the Socialist Workers party. This ineffectual splinter group was certainly no instrument of any foreign power. It was devoted to the doctrines of Leon Trotsky, and was anathema to the Communists.
Nonetheless, it had long been an object of special concern to the government. Its leaders were the first persons prosecuted under the Smith Act. In 1941, years before the first prosecution directed against the leaders of the Communist party, eighteen major and minor leaders of the Socialist Workers party were convicted and sentenced to prison in a trial initiated by the then Attorney General, Francis Biddle. About the same time, Biddle drew up a more or less informal list of subversive organizations for the guidance of government agencies. This list included a number of Communist and Fascist groups, as well as the Socialist Workers party, the dissident Trotskyists of the Workers party (later called the Independent Socialist League), and the Industrial Workers of the World. Executive Order 9835 gave official status to a revised and expanded version of this list, drawn up by Attorney General Tom Clark. Membership in any organization on the list was to be considered as showing a need for further investigation of an employee’s loyalty. In drawing up the list, neither Biddle nor Clark gave any hearing to the organizations concerned. Later, the courts held (in the case of the Joint Anti-Fascist Refugee Committee) that the failure to grant a hearing was a violation of due process. Nevertheless, the Socialist Workers party has to this day been unable to secure such a hearing. (Its application for one was rejected by Attorney General Brownell on the ground that it was signed only by the party’s secretary, Farrell Dobbs, and not by its chairman, James Cannon.)
The lack of due process in establishing the Attorney General’s list does not, of course, mean that membership in organizations on the list is irrelevant to fitness for a sensitive position in the government. It merely means that the list itself is not valid proof of such relevance. Certainly there are a great many positions of such a nature that membership in the Socialist Workers party and adherence to its doctrines would be ample ground for disqualification. This is true even without going into the question of security—it is obvious, for instance, that a member of the SWP would not be a much better choice than Judith Coplon was for the position she held in the Department of Justice.
But the case of James Kutcher has never, in any of its aspects, even remotely involved security, or even suitability. The action taken against Kutcher seems to have been intended to punish him for his beliefs and affiliations, and it seems neither to have had nor pretended to have any other purpose.
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Kutcher replied to the charges by affirming his membership in the SWP and challenging the validity of the loyalty program in general and the Attorney General’s list in particular. In accordance with the procedure established under the executive order, he was given a hearing before the Veterans Administration Branch Loyalty Board on September 10, 1948. The government representative opened the hearing by declaring: “The charges are based upon investigation, reports of which are in the possession of the Board, and no witnesses will be presented on behalf of the government. I wish to call the Board’s attention to the reply of the employee by letter dated August 25, 1948, wherein it was stated in paragraph 2, ‘I have never denied my membership in the Socialist Workers Party; I do not deny it now; on the contrary, I proudly affirm it.’ I have nothing further to present at this time.”
In accordance with the regulations under which it operated, the Board refused to permit any evidence designed to challenge the validity of the Attorney General’s designation of the SWP as subversive; it held that his decision on this point was binding on it. It did, however, permit Kutcher to testify as to his own beliefs, his relation to the party, and his interpretation of its doctrines. And the government stipulated that his job was not a sensitive one. On October 12, Kutcher received notice that, after considering all the evidence, the Board had decided that there were reasonable grounds for believing him disloyal, and that he was suspended from his job. Despite the formal reference to “all the evidence,” it was clear that his dismissal was based solely on his membership in the SWP.
Had there been any doubt on this point, it was dispelled by the decison of the Assistant Administrator of the Veterans Administration in response to Kutcher’s appeal. On December 29, 1948, he wrote: “. . . there is no choice but to affirm the action of the Deputy Administrator in suspending you from duty and pay. You have admitted and therefore it must be concluded to be a fact that you are a member of the Socialist Workers Party. . . . The Attorney-General has determined that the Socialist Workers Party is an organizaton that seeks to alter the form of government of the United States by unconstitutional means. The Veterans Administration is bound by that determination of the Attorney General. The Chairman of the Loyalty Review Board, in a memorandum dated December 17, 1948, copy of which is enclosed, states that section 9A of the Hatch Act makes it mandatory to remove from the service any employee found to be a member of that organization.”
Kutcher then appealed to the national Loyalty Review Board. Here his case was heard by a panel of three distinguished and liberal-minded men: John Harlan Amen, John Kirkland Clark, and Henry Parkman. The Loyalty Review Board agreed to hear testimony on the doctrines of the SWP from the party’s secretary, Farrell Dobbs—and then decided that the determination of the Attorney General was binding on it as a matter of law, and that it therefore had no choice but to affirm Kutcher’s dismissal. Kutcher was notified of this on April 25, 1949.
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There remained the courts. Here, after the Federal District Court had upheld his dismissal, he secured a reversal from the Court of Appeals of the District of Columbia. The court held on October 16, 1952, that, despite the hearing board’s statement that it had considered all the evidence, the Administrator had based his action solely on Kutcher’s membership in the SWP. And this, it held, was insufficient basis for dismissal under the Executive Order. It therefore directed the Administrator to reconsider the case, taking all the evidence into account.
The Administrator, holding that the court had found fault with his determination, but not with the original loyalty hearing, did not convene a new loyalty board to hear the case de novo. He did, however, give Kutcher a new hearing before the VA’s Loyalty Board of Appeals. This took place on March 9, 1953. The Board questioned Kutcher rather extensively on his views; it was clearly seeking to develop further evidence, beyond Kutcher’s membership in the SWP, to prove him subversive. In response to specific and repeated questions, he reiterated his own opposition to the use of force, violence, or other unconstitutional means to alter the form of government of the United States. (In the original hearing, some very confused questions on these points had produced answers which were not models of clarity—although they were not inconsistent with the position Kutcher now stated unequivocally.)
Three points in the questioning deserve specific mention, because they were cited by the Board as part of the basis for its ruling, handed down on February 7, 1955, reaffirming Kutcher’s dismissal. In the questioning on his beliefs, the following colloquy took place:
Mr. Lynch (board member): Have you read the Communist Manifesto?
Mr. Kutcher: Yes, sir.
Mr. Lynch: Do we find therein representative views of Karl Marx?
Mr. Kutcher: Yes, sir.
Mr. Lynch: And you say that we would not find therein advocacy or force and violence?
Mr. Kutcher: That’s right.
Mr. Lynch: Do you advocate the course of action as advocated by Karl Marx?
Mr. Kutcher: Yes, sir.
Mr. Lynch: Does that include world revolution?
Mr. Kutcher: That includes bringing about socialism all over the world.
Mr. Lynch: Is that action based upon destruction by force and violence, if necessary, of our present capitalistic system, the system under which we live under the Constitution of the United States?
Mr. Kutcher: It doesn’t say that at all.
In its decision, the Board used this as a basis for impeaching the integrity of Kutcher’s testimony, asserting: “He denied that the Communist Manifesto . . . contemplated revolution and destruction by force and violence, if necessary, of our present constitutional Government and way of life. Such denials were made in the face of his assertion of having read the Manifesto and, what appears to be, in fact, his fair understanding of the teachings of Marx set out, among other places, in the Communist Manifesto. . . .” The Board then quoted the concluding paragraph of the Manifesto, calling for “the forcible overthrow of the whole extant social order.”
The Board also asked Kutcher a number of questions as to whether he remembered certain activities of various individuals in the SWP. He answered that he did not; then, after a recess in which he conferred with his counsel Joseph Rauh, he changed his testimony and admitted that he did remember them and had denied it in order to avoid involving others. This also seemed to the Board to cast “serious question” on the integrity of Kutcher’s testimony.
And as a clincher, the Board cited Kutcher’s testimony, in answer to a hypothetical question, that if he knew “a very close friend” to be a member of the Communist party, he did not think he would voluntarily go and report him to the FBI if the individual in question had not committed any overt act against the government. On the basis of this, the Board declared: “In other words, his pretended loyalty to this Government is overcome by his admitted loyalty to those who seek to destroy it.” This writer suspects that if Kutcher’s answer on this point is proof of disloyalty, many, many other people would have to be branded as disloyal—though perhaps not all of them would be as truthful about it as Kutcher if their jobs were at stake.
Aside from these points the Board based its decision on the subversive character of the Socialist Workers party—buttressing its case by citing the evidence in the 1941 Smith Act trial.
Kutcher again appealed to the courts for relief. His petition, turned down by the United States District Court, is now before the United States Court of Appeals. It is based partly on procedural grounds, one of which is the use by the Board of evidence (including the material on the SWP’s subversive character) which had not been presented at the hearing so that Kutcher could refute it. It again challenges the listing of the SWP. And it maintains that dismissal from a non-sensitive post on the grounds given violates Kutcher’s rights under the First Amendment.
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Meanwhile, new troubles were brewing for Kutcher. In July 1952 Congress passed the Gwinn Amendment to the Independent Offices Bill, barring from federally aided public housing all members of organizations on the Attorney General’s list. Hence the Newark Public Housing Authority demanded in December 1952 that all tenants of the Seth Boyden Housing Project, where Kutcher lives with his parents, certify that neither they nor any members of their families belonged to any such organization. Kutcher’s old and ailing father was not himself a member; neither was Kutcher’s mother. But as long as their son lived with them, they could not make the required certification. The Kutchers therefore went to court to seek an injunction against the enforcement of the requirement. This was granted by the lower court, appealed through various stages by the Newark Housing Authority, and affirmed on December 19, 1955, by the New Jersey Supreme Court, in a decision which avoids the constitutional issues involved. The Newark Housing Authority is seeking to appeal this decision to the Federal courts, which also have before them a number of other decisions in Gwinn Amendment cases by state and lower Federal courts—almost all of them favorable to the tenants. The United States Supreme Court will probably have to decide on the validity of the Gwinn Amendment. In view of the near unanimity of lower court decisions, the Court seems unlikely to uphold the provision; the question seems to be whether it will base its decision on the narrow grounds of lack of due process in the promulgation of the Attorney General’s list, or will deal with the broader constitutional issues.
The decision of the New Jersey Supreme Court came at a time when Kutcher was faced with what many regarded as the most outrageous attack of all. This was an attempt to deprive him of his disability pension on the ground of his membership in the SWP. On December 12, 1955, he was presented with a statement of charges and notice of suspension of pension payments, based on a provision of the law providing for the revocation of pensions in case of mutiny, sabotage, treason, or rendering assistance to the enemy. It was charged that by his membership in and activities on behalf of the SWP, Kutcher had assisted the North Koreans and Chinese during the Korean war.
This was the first time this provision had been invoked in a case similar to Kutcher’s. In the hearing on Kutcher’s case, which took place on December 30 before the VA’s Central Committee on Waivers and Forfeitures, the chairman stated that a number of cases of revocation under the same provision had taken place overseas. Further investigation reveals that most if not all of these were cases of veterans of World War I who had returned to their native countries and then served against the United States in World War II. If they had resumed their original citizenship—or perhaps had never become American citizens—they were obviously not guilty of treason. But they were certainly guilty of assisting the enemy. It appears more than probable that the law’s reference to “rendering assistance to the enemy” was intended to cover such cases, not to apply to persons whose political activities in the United States might be held to be indirectly of such assistance.
The actual precedent for the proceedings in the Kutcher case was the revocation of the disability pensions of two Communist leaders, Robert Thompson and Saul Well-man. Even these cases were by no means precisely parallel to Kutcher’s case; Thompson and Wellman had been convicted under the Smith Act—though not of the offense on the basis of which their pensions were revoked—and they had not concealed their sympathy for the Chinese and North Korean governments. But they were similar in that they represented a stretching of the law, of no conceivable benefit to the security of the United States, to deprive Americans of their contractual rights to pensions, under circumstances not contemplated by the law, for their political activities. (It is perhaps worth noting that after the Civil War, men who had risen in armed rebellion against the United States were nevertheless permitted to retain pensions based on prewar service.)
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The threat to Kutcher’s pension resulted in an immediate outcry throughout the nation, from conservatives as well as liberals. Indeed, it would be hard to find a voice which defended the proposed revocation. The situation had, indeed, been similar when Kutcher was originally brought up on the loyalty charge in relation to his job. At that time, he had the support of almost every one of the many newspapers which commented on the case, as well as of organized labor and numerous other groups.
The one significant exception was the Communist party, whose West Coast organ, People’s World, declared on June 24, 1949: “To talk of ‘civil liberties’ for a Kutcher is to talk of ‘civil liberties’ for a Ward Warren or a Louis Budenz. It is to argue for the rights of a stool pigeon or a paid agent of fascism to sink a knife into the back of the people in their search for a better world. The American people are not in favor of awarding a purple heart to Hitler.” This position, however, completely isolated the Communists even from most of their closest friends; thus Kutcher received the support of Harry Bridges’ International Longshoremen’s and Warehousemen’s Union. Perhaps because of that experience, or because they had come to a belated realization that they could use the attack on Kutcher to serve their own purposes, the Communists now gave Kutcher half-hearted support.
Like the Communists, the Veterans Administration also now apparently realized that the Kutcher case was a very hot potato. Or perhaps it was simply that the law on pension forfeitures, by requiring that guilt be proved beyond a reasonable doubt, gave them an out which they lacked under the security program. In any case, the Committee on Waivers and Forfeitures ruled on January 6, 1956, that a reasonable doubt did exist and Kutcher could keep his pension.
The case of James Kutcher is in some ways the most outrageous example of its kind which has so far come to light. No other person seems to have been exposed to the multiple forms of jeopardy which the government has visited on him. But the infliction of a single injustice is bad enough, though a triple injustice is certainly worse. His case has a special pathos because of his personal circumstances; a persecution which would in any case be wrong becomes a supreme example of bureaucratic callousness. But James Kutcher’s physical condition is not the source of the wrong done to him; it merely aggravates it. Kutcher is a follower of Trotsky. But the treatment to which he has been subjected would be no more just if he were a Communist. The country is certainly no safer now that Robert Thompson and Saul Wellman have been deprived of their disability pensions and, it is reported, called on to refund the payments they have received since the end of the war. (Even under the Veterans Administration’s own highly questionable interpretation of the law, there would seem no basis for this last demand; the United States was not at war with any Communist power prior to 1950. It should also be noted that, even if Thompson’s conviction under the Smith Act were considered a substitute for a hearing on the charge of rendering assistance to the enemy, all the acts involved in his trial took place before 1950 and hence have no relevance to the charge; he has been convicted without a hearing of any sort in respect to the only acts relevant to the pension case, those committed during the Korean war.)
If the revocation of veterans’ pensions has been based on a strained and questionable interpretation of the law, the denial of Social Security funds to former Communist party officials (e.g. Alexander Bittelman) is based on a fantastic one. The assertion that the Communist party, because it has been designated as an agent of a foreign government by the Subversive Activities Control Board, comes under the exclusion of foreign government agencies from the provisions of the Social Security Act, represents a deliberate confusion of two very different things. The type of foreign government agency excluded from the Social Security Act has diplomatic or consular status; its exclusion follows from the legal inability of our government to tax it. It does not appear likely that the government plans to confer diplomatic immunity on the officials of the Communist party. The status of that party, under the determination—with which this writer agrees—that it is a foreign agent, is analogous to that of the various public relations firms which are paid propagandists for foreign governments. And it has not been suggested that they be excluded from the Social Security Act. (Of course, if the Communist party had not paid Social Security taxes, it would have been prosecuted for failing to do so.)
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Some of these things have been done without warrant in law, or under laws of doubtful constitutionality. Others may be legally sound. But all of them have in common an absence of relation to any genuine considerations of security, a lack of moral justification, a departure from the basic principle that punishment shall be inflicted only in the form of prescribed penalties for definite offenses after a fair trial.
Any limitation of liberty without a clear need is tyranny; any injury to the individual without a clear benefit to society is pointless cruelty; any punishment without adequate grounds or due process of law is injustice. No matter what guilt men may bear, we still retain a basic responsibility toward them as human beings as long as we permit them to live at all—yes, even though they may be Communists or Fascists.
When the Russian army entered Germany near the end of the war, a Russian soldier whose whole family had been slaughtered by the Nazis vowed to an American correspondent to kill every German who fell into his hands. A few days later the correspondent observed him giving a cigarette to a German prisoner, and asked him how he explained his change of heart.
“Well,” said the soldier, “one kills, or one lets live. And if one lets live, a man must smoke.”
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