Читать книгу The Sovereign Citizen - Patrick Weil - Страница 14

CHAPTER 5

Radicals and Asians

In 1912, a few years after Emma Goldman’s denaturalization, Leonard Oleson was denaturalized on new legal grounds—“lack of attachment” to the U.S. Constitution. On September 21, 1910, the chief naturalization examiner in Seattle requested that the U.S. attorney institute a denaturalization proceeding.¹ During his hearing, Oleson denied that he was an anarchist or opposed to organized government. He declared himself a socialist, “willing for people to retain their money, but insisting that all the land, buildings and industrial institutions should become the common property of all the people.” Oleson declared that this object could be attained “by the power of the ballot” and “when that object shall be attained the political government of the country will be entirely abrogated, because, there will be no use for it.” U.S. District Judge Cornelius H. Hanford declared that Oleson had no reverence for the Constitution, nor any intention to support and defend it against its enemies and was not “well disposed toward the peace and tranquility of the people.”² Hanford cancelled Oleson’s certificate of naturalization on May 10, 1912.

In the following days, letters of protest were sent to President William Howard Taft, and the Attorney General asked the U.S. attorney involved in the case for more information.³ After receiving his report, Wickersham sent a short and firm reply: “Department thinks Judge Hanford has committed grave error in cancelling Oleson’s certificate of naturalization upon grounds stated in his opinion. You are instructed to cooperate with respondent in effort to have case responded and judgment set aside.”⁴

Wickersham was again proving himself a defender of civil liberties. A few weeks earlier, he had refused to prosecute the Industrial Workers of the World (IWW or Wobblies) under federal law for “seditious conspiracy” in a Southern California free speech case.⁵ Despite strong pressure from the superintendent of the San Diego Police Department, Senator John Works of California, and President Taft himself “to show the strong hand of the United States”⁶ against the IWW, Wickersham followed the advice of his assistant attorney general, William Harr: he instructed the reluctant local U.S. attorney not to prosecute the IWW.⁷ Harr had argued that despite the fact that the Wobblies were “self-confessed liars and lawbreakers,” there was nothing indicating a specific attack on the U.S. government.⁸

A few weeks later, in regard to the Oleson case, Wickersham explained his position:

As I read Judge Hanford’s opinion, it proceeds upon the idea that Oleson is disqualified because he is a socialist and advocates radical changes in the institutions of this country—specifically communal instead of individual ownership of land, buildings and industrial institutions, such changes to be brought about by the use of the ballot. This view rests upon the theory that the Constitution of the United States is immutable, whereas it provides in itself for amendment by the people through the use of the ballot. If Oleson is disqualified because he advocates communal ownership of certain property, to be brought about by the use of the ballot, so also are they disqualified who advocate the direct election of United States Senators and Government ownership of railroad, which is to be accomplished in the same way. It needs no citation of authority to demonstrate the right of every citizen to seek within the Constitution, to accomplish such changes in the structural Government as he thinks wise. The fact that the doctrines avowed by Oleson may be repugnant to the majority of the people is no reason for denying to him the equal protection of the laws.⁹

Wickersham also thought that the suit to cancel Oleson’s certificate of naturalization was based upon an erroneous interpretation of the law. The Naturalization Act required from the applicant that “he has behaved as a man . . .attached to the principles of the Constitution of the United States.” In other words, it requires behavior and not belief.¹⁰ Judge Hanford’s opinion indicates that he regarded the question as one of “belief” rather than “behavior,” which was for Wickersham clearly erroneous.¹¹ Congress had disqualified on account of belief only those who “disbelieve[d] in or [were] opposed to organized government.” Oleson denied that he was an anarchist or opposed to organized government; he also denied that he was in favor of overthrowing the government by force or violence. “There is nothing in the facts as found by Judge Hanford,” Wickersham wrote, “to indicate that during the period mentioned Oleson had behaved in a manner indicating that he was not attached to the principles of the Constitution of the United States.”¹²

After his opinion was made public, letters of protest arrived in droves at the Department of Justice. Wickersham replied that he relied in his actions “entirely upon Judge Hanford’s own opinion which says that Oleson stated that he proposed to accomplish the objects of his views through the power of the ballot.”¹³ Immediately after Judge Hanford’s decision, socialists all across the country also protested, and on June 7, 1912, at the request of the Socialist congressman from Wisconsin, Victor Berger, a unanimous House of Representatives directed an inquiry into Hanford’s conduct—the first step in impeachment proceedings. He had been charged with “a long series of corrupt and unlawful decisions”¹⁴ dating back twenty-two years and including the Oleson case, and also with “being in a drunken condition while presiding the court.”¹⁵

On June 19, Judge Hanford refused to vacate and set aside his previous judgment in the Oleson case. Eight days later a three-member investigating committee sent to Seattle to conduct the inquiry opened its hearings on the Oleson case. The first witness called was Oleson himself. He testified that Hanford had asked him if he was “devotedly attached to the Constitution of the United States,” and that he had replied that although he had no “superstitious reverence for the document,” he was “willing to abide by the laws of the country.” He testified also that he was a member of the Socialist Labor Party and of the Detroit wing of the IWW, drawing a sharp line between the two wings—his being socialistic, the other one being anarchistic—of the latter organization.¹⁶

On July 22, by agreement with the congressional committee, Hanford resigned and the impeachment procedure was stopped.¹⁷ Hanford was about to face documentary evidence showing that the Northern Pacific Railroad had sold him land “on very favorable terms shortly after Hanford had rendered a decision that saved the company more than $60,000 in taxes.”¹⁸ Hanford’s judgment was reversed and a new hearing ordered by the Court of Appeals on the Oleson case on February 13, 1913.¹⁹ The case was reassigned for trial on March 9, 1914, but was dismissed by the newly appointed U.S. attorney Clay Allen. Oleson’s citizenship had been reestablished and was no longer at risk. This position was imposed on Allen against his will by the Labor Department opinion that the evidence was insufficient to properly establish a case for the cancellation of naturalization.²⁰

As a consequence of this case, Wickersham and Secretary of Commerce and Labor Charles Nagel decided that all requests for cancellation proceedings on political, racial, and religious grounds should be presented by the Department of Commerce and Labor to the Department of Justice in Washington, D.C., and not to the U.S. attorneys. Instructions were given to naturalization examiners to report such cases to the Department of Commerce and Labor.²¹

Recalling the Oleson case in 1921, John Speed Smith, chief naturalization examiner for the Ninth District, Seattle, gave the following statement: “When the case came up for a hearing on the cancellation proceeding, our judge went off into the question of socialism. . . . That got all the Socialists arrayed against us. . . . At that time, in our country out there, there were a lot of people that thought that a man had a right to be a member of the IWW. While we were fighting them a lot of good citizens . . .thought that a man under the Constitution could be an IWW and a Socialist. I could not ask a man in court whether he had any Socialistic tendencies and one judge barred me from asking a petitioner if he was an IWW . . .he considered it immaterial. . . . The whole sentiment of the people has changed, and I think the war has a lot to do with it.”²² In April 1917 when the United States entered World War I, the climate became more ominous, and the reaction of the Wilson administration’s attorney general, Thomas Gregory, changed completely.

During World War I, some German Americans were denaturalized because they expressed sympathy for their country of origin. They were condemned as having lacked “complete renunciation of all foreign allegiance at the time citizenship” was granted.²³

Pressure had increased on the U.S. government to curtail the free speech rights of Americans of German origin both because of the general fear of disloyalty and a recent change in the German nationality law. By virtue of the law of July 22, 1913, known as the Delbrück Law, Germans living abroad would lose their nationality if naturalized in their new country, unless they obtained explicit prior authorization from the German government. Authorization would be granted only to candidates who agreed to carry out their military service.²⁴

However, once war broke out, the adoption of that provision—the explicit right for Germans naturalized abroad to keep their German nationality—provoked very strong reactions in all Western countries; it contributed to the development of legislation on denaturalization for disloyalty in France (in 1915) and in the United Kingdom (in 1918) that was aimed in particular at naturalized persons of “enemy” origin.

In the United States, as early as July 1914, Richard Flournoy, assistant to the solicitor at the State Department, considered that “the introduction of a quite novel provision, according to which Germans residing in foreign countries may keep their German nationality, under certain conditions, after obtaining naturalization as citizens of such countries” seemed “to carry the principle of dual nationality further than it [had] ever been carried before.”²⁵ And when war broke out, the reactions grew stronger still. In June 1915, in an article titled, “When Is an American Not an American?” former president Theodore Roosevelt called the German law into question.²⁶

On August 25, 1916, Attorney General Gregory was requested by George A. Dew, editor and publisher of The Messenger in Toledo, Washington, to act against naturalized Germans’ “disloyal and traitorous in sentiment.”²⁷ He replied that “utterances, such as you describe, are clearly evidence that when they were made, the person guilty thereof was bearing allegiance to Germany, his motherland. The open question would be whether he had returned to German allegiance, since his naturalization, or whether the expression was of mental reservation which he had always entertained. If the former, it would not constitute a ground for cancelling his naturalization certificate. If the latter, it would.” And Gregory concluded that the court would determinate the answer and decide whether or not to cancel the certificate of naturalization.²⁸

Many Americans had entered into what Christopher Cappozola calls “vigilant citizenship,” which heightened demands for volunteer neighborhood policing and closer cooperation with the state during wartime.²⁹ German Americans had become the enemy for many, along with anything that carried a trace of German origins.³⁰ Gregory commented later that

during the early period of our participation in the war much complaint was current[ly] growing out of disloyal utterances on the part of naturalized Americans of German and Austrian origin. Many of these utterances, while entirely disloyal, did not fall within the scope of the criminal statutes. The department reached the conclusion, however, that in certain individual cases these utterances were of a character that demonstrated that the naturalized citizen had never in good faith renounced his allegiance to the country of his origin. A number of civil actions were therefore instituted. . . . The successful outcome of these early litigations and the accompanying wide publicity had a marked effect upon naturalized citizens of disloyal tendency throughout the country and greatly lessened the volume of these utterances.³¹

Denunciations flourished, but they did not necessarily provoke denaturalization. One illustrative case was that of August Weiler, born in Germany in 1846 and naturalized in Illinois in 1888. Thirty years later, on May 21, 1918, Weiler was arrested in St. Louis, following notification of the authorities by Harry Rosecarr, a customer at Yawitz Tailoring Company, Weiler’s place of employment. Rosecarr had gone to the tailor shop to solicit contributions to the Red Cross. Weiler responded to this request by saying, “I am born in Germany and you cannot tear the German out of my heart. . . . My cradle was there and it is my country. . . . The Kaiser has done nothing to me and I can’t see why the U.S. went into that war, we ought to stay out of it.”³²

After his arrest, the seventy-one-year-old Weiler was locked up by local police pending his transfer to national authorities. Two days later, on May 23, the Office of the Chief Examiner of the Naturalization Service in St. Louis recommended to Campbell that he endorse a denaturalization procedure against Weiler.³³

A subsequent August 8, 1918, letter to the commissioner revealed that Weiler had also been indicted for “violation of the Espionage Act.” However, the local U.S. attorney was “very much in doubt as to the value of the evidence against said Weiler. He recommended the cancellation suit only in the event of conviction in the criminal case.” On September 7, the commissioner endorsed this strategy and denaturalization proceedings were never initiated.³⁴

Another case concerned Victor Schneider, who was born in Austria in 1871, arrived in the United States in 1893, and filed his declaration of intention in 1899, a few days before his naturalization. According to the information gathered by the local Bureau of Investigation, at the beginning of 1918, it appeared to the chief examiner in Chicago that Schneider was pro-German and was still in allegiance to the emperor of Austria as he “has declined to work on war materials.” On March 11, 1918, the chief examiner referred the matter to the U.S. attorney in order to institute denaturalization proceedings. During the following months the U.S. attorney certified to the Naturalization Service that he wanted to use Schneider as a test case and that he had only delayed it on account of other work. He promised the case was a priority, but that was not exactly the truth. Still, three years later, on February 2, 1921, he again promised the naturalization office that the case would be tried at the earliest date. Finally, on January 13, 1922, he wrote the chief naturalization examiner in Chicago that the disloyal statements had been made in December 1917, too much time had passed, there was a risk of not finding the witnesses, and finally that it would be impossible for the government to succeed in court, and the case was therefore dropped.³⁵

But when suits occurred, courts accepted the order to denaturalize U.S. citizens based on evidence of present disloyalty as a retroactive indication of disloyalty at the time of naturalization. This assumption necessitated inquiries, and the courts’ decisions were consistent during the period from 1916 to 1923, with the exception of one case, Woerndle.

The District Court of Washington set the tone on May 10, 1918, by denaturalizing Carl August Darmer.³⁶ On October 17, 1917, Darmer, a German-born citizen naturalized in 1888, had refused to buy a Liberty Bond. He told the sellers that “if he bought any Liberty Bonds it would be the same as kicking his own mother.” He added “he would rather throw all his property into the bay than buy one $50 Liberty Bond.” The court reasoned that since “attachments generally are weakened by length of time and absence from the cherished object, the contention that it is more likely that it was stronger then than now cannot be said, in the absence of explanation, to be altogether unreasonable.”

Three days after the Darmer decision, on May 13, 1918, in the District Court of New Jersey, the Wursterbarth case³⁷ echoed the sentiment that loyalty and allegiance to the United States should increase with the defendant’s stay there, and that the subject’s alien allegiance should correspondingly decrease. A native of Germany, naturalized in 1882, Frederick W. Wursterbarth refused repeatedly to give money to or become a member of the American Red Cross, or to subscribe to the Young Men’s Christian Association fund. At these occasions, he made statements that he would do nothing to defeat his country of origin, and that he did not wish the United States to win the war. The question for Judge Thomas G. Haight, Sr. was “whether it may be legitimately inferred as a fact, from his present state of mind, that he was of the same mind at the time he took the oath of allegiance and renunciation.” And the judge provided an answer that would become a point of reference for the attorney general:

As the years succeeding his naturalization passed, coupled with the fact that he continued to dwell within our midst, associate with our citizens, receive the benefits . . .it is natural to presume that his affection and feeling of loyalty and allegiance to this country would increase, and that any ties which bound him to the country from which he came would correspondingly decrease. If therefore, under such circumstances, after 35 years, he now recognizes an allegiance to the sovereignty of his origin, superior to his allegiance to this country, it seems to me that it is not only permissible to infer from that fact, but that the conclusion is irresistible, that at the time he took the oath of renunciation, he did so with a mental reservation as to the country of his birth, and retained toward that country an allegiance which the laws of this country required him to renounce before he could become one of its citizens. Indeed, for the reasons just stated, his allegiance to the former must at that time has been stronger than it is at present.³⁸

Immediately, Gregory sent a circular, with the court decision, to all U.S. attorneys, emphasizing “the doctrine enunciated by the court in the Wursterbarth case”: “This decision is of great and immediate importance because of the far reaching effect which it should have in discouraging disloyalty in the part of naturalized citizens.” Gregory added, “It is the desire of the Department that similar proceedings be commenced at once wherever the facts appear to warrant such action.”³⁹

A year and a half later, on December 23, 1919, the Fifth Circuit Court of Appeals confirmed the Wursterbarth doctrine. Herman Kramer, a German naturalized in 1912, was denounced by A. H. Rebentish, a Secret Service agent, for telling him that he would do all he could against the United States. A keeper of a saloon near an aviation field in San Antonio, he told Rebentish that any information he could get from soldiers at the aviation field, he would send to Germany. The court asserted that “American citizenship is a priceless possession, and one who seeks it by naturalization must do so in entire good faith, without any mental reservation whatever, and with the complete intention of yielding his absolute loyalty and allegiance to the country of his adoption. If he does not, he is guilty of fraud in obtaining his certificate of citizenship.”⁴⁰

The Ninth Circuit Court, on May 3, 1920, refused the appeal from F. H. Schurmann to have his certificate of naturalization, which had been issued to him in Los Angeles on December 17, 1904, restored.⁴¹ Schurmann published a book in August 1916, The War as Seen in German Eyes, to convince Americans not to go to war against Germany, his country of origin. When the United States entered the war, Schurmann wanted to continue to sell his book but, cautiously, asked his U.S. attorney and the attorney general about its legality. He was denaturalized for having responded to an American who asked him whether it was possible that he would not defend the shores of the United States: “Well Allen I will tell you. I have sworn allegiance to your flag or country, but I am going to tell you this much: That I didn’t swear away my birthright. And this is the crisis where every German, whether he is a socialist or not, this is the time that it is up to him to defend the fatherland.”⁴²

On April 2, 1921, a federal court in Washington State stripped Paul Herberger of his citizenship, which was acquired in 1912, on the grounds that he had not been loyal to his country.⁴³ He wrote numerous letters to his sister in Germany, excerpts of which served as evidence of “a legal fraud.” He wrote in one, for example, “I cannot write you anything of the war and the feeling here, because, if I did, the censor would keep the letter as a souvenir. This much I can tell you, that this famous liberty stuff here does not amount to much. Over there in Germany we had much more liberty than we have here; militarism is absolute trump here.”⁴⁴ In another letter, he wrote, “If you did not have to reckon with America’s friendship, the submarines would have long since brought England to her knees through hunger. It is hoped that someday Germany may repay America like with like.”⁴⁵ The court reasoned that “it is not necessary that a man be shown to be guilty of treason in order to conclude from his actions and speech that he is not loyal and has not been loyal.”⁴⁶ And the court concluded with a sort of sociological and psychological tone:

Loyalty or allegiance, is necessarily, of slow growth; therefore somewhat involuntary, not fully subject to the will. Those who lightly, for temporary advantages, undertake to change their allegiance, are liable to overlook the deep seated nature of this feeling; but the fact that not until afterwards, in times of stress, is it made manifest that the desires, suffered to lie dormant, are stronger for their native than for their adopted country, although this fact may not be fully realized at the time of their realization, renders it none the less a legal fraud for the applicant to fail to disclose his true, although latent, feeling in such matter.⁴⁷