Page 2 of 5 OBAMA, CHANGE AND CHINA, Part 2 A dangerous balance
By Henry C K Liu Part 1:
The song stays the same
Sun, with the support of Liao, began embracing socialism as the correct
revolutionary path to the socio-economic and political revival of China. The
socialist path was interrupted for a quarter of a century by Sun's premature
death in 1925 and by Liao's assassination later that year, until the Chinese
Communist Party led a coalition of all progressive forces to liberate China
from Western imperialism by defeating Nationalist forces in 1949 to establish
the People's Republic.
The Cold War as against anti-imperialist struggle
The death of Franklin D Roosevelt tragically deformed the progressive high
purpose of World War II as the war to end all
wars by adopting global social justice after victory by the forces of good
against the forces of evil. It also turned the US into the main nemesis of
China's path towards socialism.
President Truman, unprepared, insecure and inexperienced, allowed himself to be
manipulated by the reactionary British prime minister Winston Churchill (who
openly declared that he did not lead Britain into a world war merely to lose
the empire after the conflict ended), to reverse the progressive international
geopolitics of Franklin D Roosevelt and turn a war-time alliance with the
Soviet Union into the Cold War. Truman fell for Churchill's whitewashing the
British and French colonial empires with the high-sounding label of the
"democracies". The Cold War between two superpowers was in essence a war on
national liberation struggling against imperialism.
Truman, under Churchill's spell of heroic empire restoration, accepted the view
of an Iron Curtain as a battle line for freedom, notwithstanding that the term
had been regurgitated by Churchill from the Nazi propaganda lexicon developed
by Joseph Goebbels.
The Truman Doctrine of hard containment adopted a strategy of exploiting
residual Western imperialism to hold down Soviet expansion under the banner of
anti-communism. Since it is a historical fact that imperialism is the highest
stage of capitalism, most anti-imperialist forces around the colonized world
were also anti-capitalist. Linking Soviet expansionism to international
communism was an oversimplification that allowed collapsing imperialist powers
in Europe to drive an anti-communist US to start the Cold War.
The mutation of Soviet communism into Soviet socialist imperialism was matched
by a counter mutation of US capitalist democracy into US neo-imperialism. This
structural geopolitical coincident led a victorious US infested with
anti-communist paranoia to treat all indigenous nationalist movements around
the world as prime targets of US hostility.
Along with the Soviet Union, socialist China became a target of containment of
global communist expansion as defined by the Truman Doctrine. The Korean War
further fanned US hostility toward communist China, within the government, in
the media and in the general public, as the Korean conflict was the first war
after World War II that the US failed to win decisively, embarrassingly against
an inferior Asiatic race.
No major power had lost a war against decrepit China since 1840, let alone a
superpower who had just won a world war. China's defeat of Japan was
accomplished on the coat-tails of US power in World War II. The Korean War left
the US smarting from bitter injury of national pride, something not happily
tolerated in the American national psyche, especially having emerged as a
superpower after decisive victory in World War II. (See the multipart series
China and the US Asia Times Online, 2007.)
Korea War and McCarthyism
After the Korea War, China became the contentious domestic political focus in
the McCarthy era during which Republican Senator Joseph R McCarthy of
Wisconsin, having defeated Robert Marion La Follette, Jr, a scion of US
progressive politics, became an instant sensation in US political history with
an anti-communist witch hunt inside the government, focusing on the State
Department and the Army and employing guilt-by-association methods that have
since come to be known as McCarthyism.
While McCarthy focused on the State Department and the Army, McCarthyism
infested US society. Fervent anti-communism at the onset of the Cold War
poisoned US democracy. The success of communist revolutions against Western
imperialism around the world, particularly in China where the People's Republic
was established by the Communist Party of China under the leadership of Mao
Zedong, reactivated a general sense of paranoia in the US against communism
that began in the Great Depression.
In 1949, 10 members of the US Communist Party (CPUSA) were convicted of
advocating the violent overthrow of the government under the Smith Act and were
incarcerated as political prisoners. Historians have since compared
anti-communist trials in the US with the witch trials of Salem in 1692 and the
Moscow show trials of 1936-38.
The Smith Act had been passed in 1940 and its constitutionality confirmed by
the Supreme Court, making it a criminal offense for anyone to "knowingly or
willfully advocate, abet, advise or teach the duty, necessity, desirability or
propriety of overthrowing the Government of the United States or of any State
by force or violence, or for anyone to organize any association which teaches,
advises or encourages such an overthrow, or for anyone to become a member of or
to affiliate with any such association."
First used against socialist influence in US labor movements in 1941, the Smith
Act was invoked again in the Great Sedition Trial of 1944 against pro-fascist
elements in opposition to US participation in World War II. In 1949, CPUSA
members were prosecuted under the law. Over 140, including party leader Eugene
Dennis, stood trial during the early days of the Cold War. They were also
accused of conspiring to "publish and circulate ... books, articles, magazines,
and newspapers advocating the principles of Marxism-Leninism". The Communist
Manifesto by Marx and Engels, Lenin's State and Revolution, and
Stalin's Foundation of Leninism were introduced as evidence for the
prosecution.
No case involving prosecution under the Smith Act reached the Supreme Court
until 1951 when, in Dennis v United States, the court reviewed the
lower-court convictions of 11 communist party leaders of charges of "conspiracy
to violate the advocacy and organizing sections" of the statute. Chief Justice
Fred M Vinson's confirming plurality opinion for the Supreme Court applied a
revised "clear and present danger" test and concluded that the evil sought to
be prevented was serious enough to justify suppression of speech. While the
1950s were officially a time of peace, the Cold War had significantly lowered
the threshold of the clear and present danger test, in the same way that the
"war on terrorism" has since 2001.
The Vinson Court coincided with the "Red Scare" of the 1950s, a period of
extreme anti-communist paranoia in the US. The court ruled in the Dennis
petition: "The mere fact that from the period 1945 to 1948 petitioners'
activities did not result in an attempt to overthrow the Government by force
and violence is of course no answer to the fact that there was a group that was
ready to make the attempt. The formation by petitioners of such a highly
organized conspiracy, with rigidly disciplined members subject to call when the
leaders, these petitioners, felt that the time had come for action, coupled
with the inflammable nature of world conditions, similar uprisings in other
countries, and the touch-and-go nature of our relations with countries with
whom petitioners were in the very least ideologically attuned, convince us that
their convictions were justified on this score."
Justice Felix Frankfurter in concurrence developed a balancing test, which,
however, he deferred to congressional judgment in applying, concluding that
"there is ample justification for a legislative judgment that the conspiracy
now before us is a substantial threat to national order and security."
Frankfurter held the view that the court should avoid entering "the political
thicket". He reaffirmed this view in a concurring opinion, arguing that judges
"are not legislators; that direct policy-making is not our province."
He also recognized that curtailing the free speech of those who advocate the
overthrow of government by force also risked stifling criticism by those who
did not, writing that "it is a sobering fact that in sustaining the convictions
before us we can hardly escape restriction on the interchange of ideas".
Frankfurter, while defending free speech, was nevertheless saying that the rule
of law cannot be expected to derail a political trial.
Former chief US prosecutor at the Nuremberg War Crime Trials Justice Robert H
Jackson's concurrence was based on his reading of the case as involving "a
conviction of conspiracy, after a trial for conspiracy, on an indictment
charging conspiracy, brought under a statute outlawing conspiracy". Here the
government was dealing with "permanently organized, well-financed, semi-secret,
and highly disciplined organizations" plotting to overthrow the government;
under the First Amendment, "it is not forbidden to put down force and violence,
it is not forbidden to punish its teaching or advocacy, and the end being
punishable, there is no doubt of the power to punish conspiracy for the
purpose."
The legal logic espoused by Jackson was in direct contradiction to that used by
him to convict Nazi war criminals for failing to resist the government of the
Third Reich. Critics of the Nuremberg trials argued that the "crimes" with
which the defendants were charged were only defined as crimes after they were
committed and that therefore the trial itself was invalid. The alleged "crimes"
charged under the Smith Act were committed by the defendants in the 1920s and
30s before the enactment of the Smith Act in 1940. In Dennis, Jackson concluded
that the clear and present danger test should not even be applied, arguing that
"when used as part of a conspiracy to act illegally, speech loses its First
Amendment protection".
Syracuse University College of Law Professor William M Wiecek, recipient of the
John Phillip Reid Prize for the best book in legal history published in 2006
for The Birth of the Modern Constitution: The United States Supreme Court,
1941-1953, in an article on the history of anti-communism in the United
States, asserts that: "The manufactured image of the domestic Communist,
cultivated and propagated by [J Edgar] Hoover, the Catholic Church, the
American Legion, and political opportunists, made of Communists something less
than full humans, full citizens, fully rights-endowed. Even sophisticated
jurists like ... Robert Jackson were captives of that image, anesthetizing
[his] sensitivity to deprivation of rights. ... In Dennis and other Communist
cases between 1950 and 1956, the Supreme Court overcame the problem of facts
not supporting the results it was determined to reach by accepting a generic
'proof' of Communism's seditious nature. Disregarding all evidence of both the
Party's and individual members' renunciation of violence, the Court substituted
literary evidence from outdated classics of Marxism-Leninism, most written by
Europeans of an earlier era, and refused to consider whether the living people
before them actually subscribed to those doctrines ... "
Justice Hugo Black dissented on the Dennis ruling, viewing the Smith Act as an
invalid prior restraint and calling for reversal of the convictions for lack of
a clear and present danger. He wrote: "Public opinion being what it now is, few
will protest the conviction of these Communist petitioners. There is hope,
however, that, in calmer times, when present pressures, passions and fears
subside, this or some later Court will restore the First Amendment liberties to
the high preferred place where they belong in a free society."
Justices William O Douglas also dissented, applying the Holmes-Brandeis formula
of clear and present danger to conclude that "to believe that petitioners and
their following are placed in such critical positions as to endanger the Nation
is to believe the incredible".
In Yates v United States in 1951, the convictions of several lower-level
communist party leaders were set aside, a number of the leaders were ordered to
be acquitted, and others were remanded for retrial. The decision was based upon
construction of the statute and appraisal of the evidence rather than on First
Amendment claims, although each prong of the ruling seems to have been informed
with First Amendment considerations.
Justice John M Harlan for the court ruled that the lower court trial judge in
Yates had given faulty instructions to the jury in advising that all advocacy
and teaching of forcible overthrow was punishable, whether it was language of
incitement or not, so long as it was done with an intent to accomplish that
purpose. The justice opined that the statue prohibited "advocacy of action",
not merely "advocacy in the realm of ideas. The essential distinction is that
those to whom the advocacy is addressed must be urged to do something, now or
in the future, rather than merely to believe in something."
Second, the higher court found the evidence insufficient to establish that the
communist party had engaged in the required
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