14 Magic Words

In 1637. at a time when theological disagreement was equated with political revolution, a contentious English gentleman named John Lilburne was brought before King Charles I's Star Chamber, accused of circulating Puritan writings. The Star Chamber, originally a reputable judicial council, had become a fierce and single-minded tribunal, given to extracting confessions by torture. Lilburne refused to take the chamber's normal oath of testimony, on the ground that no man was bound to incriminate himself. Although he was whipped, fined and jailed, his stand made him a popular hero.-

In 1950, a fierce and single-minded U.S. Communist named Patricia Blau appealed her conviction for refusing to answer the questions of a Denver grand jury about her Communist affiliations. She pleaded that no witness before any U.S. judicial or investigative body was bound to incriminate himself in his testimony. The U.S. Supreme Court agreed with Mrs.

Blau and reversed her conviction (TIME, Dec. 25, 1950). She was saved by the Fifth Amendment to the U.S. Constitution: "No person . . . shall be compelled in any criminal case to be a witness against himself."

By her release Mrs. Blau pointed the way to the wider use of this principle, by U.S. Communists and their friends. Since the day the Supreme Court decided that her refusal to answer was legal, a stream of Communists and people with Communist associations have faced down courts, grand juries and congressional committees with what Attorney General Herbert Brownell Jr. calls "those 14 magic words": "I refuse to answer upon the ground that it might tend to incriminate me."-

Last August, Mrs. Blau further dramatized the consequences of evading justice through the Fifth Amendment when she was arrested in California as a key accomplice of two U.S. Communist fugitives (TIME, Sept. 7). This was the last straw for Attorney General Brownell. He set his Department of Justice lawyers looking for a way to limit the abuse of the 14 magic words without damaging the solid legal right behind them. Last week Brownell announced the results of their study: a proposal to compel the testimony of witnesses by giving them immunity from federal prosecution.

The Two Immunities. Brownell made his proposal, in a speech to the National Press Club in Washington, as the climax of a review of Fifth Amendment procedures. He spoke carefully (mimeographed copies of his speech included 44 legal and historical footnotes), in the tones of a lawyer addressing an intelligent and interested audience. He made it clear that only "the critical situation of our time" had forced him to seek a sharper definition of a basic constitutional right.

Brownell proposes to take one immunity away from the witness by giving him another. Congress would give the Attorney General the power to declare that a certain witness would never be prosecuted for a crime that he disclosed or told about OR a federal witness stand.

Brownell's plan would work this way:

1) Witness refuses to answer on the ground of possible selfincrimination;

2) Attorney General grants witness immunity from prosecution and therefore from incrimination; 3) witness is asked the question again, but can no longer plead the Fifth Amendment because his answer cannot incriminate him; 4) if witness then refuses to answer he would be subject to a contempt charge.'

Brownell's plan is not as novel as it may sound. He pointed out that the present laws governing testimony before many federal agencies give the Government powers much more sweeping than the ones he asks for. For instance, the Compulsory Testimony Act of 1893 (applicable to the Interstate Commerce Commission) says flatly that no witness may refuse to testify on grounds of selfincrimination. This act would be clearly unconstitutional if it did not go on to say (as it does) that no witness may be prosecuted in connection with any matter about which he testifies before the agency.

License to the Disloyal. This rule is obviously subject to abuse, not so much by the Government against a witness, but by a witness who can trick the Government into automatically giving him immunity from prosecution by asking him a question. In 1857 Congress passed a law, applying to all federal bodies and including congressional committees, which oper] ated on lines similar to the 1893 act. The | law was widely abused. In a debate on ; revising the act, Senator Lyman Trumbull j of Illinois said: "Here is a man who stole | $2,000,000 in bonds, if you please, out of i the Interior Department. What does he j do? He gets himself called as a witness before one of the investigating committees, -and testifies something in relation to that ; matter, and then he cannot be indicted."

Brownell does not want to go back into that trap. He wants no automatic immu-i nity from prosecution. The witness must refuse and then the congressional committee (or other agency) would put up to the - Attorney General the question of whether : the man's testimony should be compelled by granting him immunity from prosecution on the matter to which he testifies.

The obvious purpose is not to convict the man on the stand but to use the testimony of the witness to find out about someone with whom he has been associated and whom he may be protecting under the pretext that he is protecting himself. An attorney general with the power that Brownell wants would have to choose carefully between suspected conspirators, lest big ones get away by testifying under immunity while less guilty associates are trapped by the testimony of the more guilty. But this task is not impossible. Said Brownell: "Almost every heinous crime on the law books, committed by individuals or by groups, remains uncovered because of the privilege against self-incrimination ... It is little wonder that law-abiding citizens frequently are heard to say that subversives and other wrongdoers are unduly coddled by law. They find it difficult to understand why the privilege against self-incrimination should operate as a license to disloyal persons and criminals to prey upon a democratic society."

-Later, Puritan Lilburne proved too argumentative for his own good. He defied Cromwell as testily as he had defied the King, and was repeatedly jailed for attacks on whatever government was in power. To the end of his life he kept arguing with anyone whom he could find to challenge or insult. His epitaph reads:

Is John departed, and is Lilburne gone? Farewell to Lilburne, and farewell to John. But lay John here, lay Lilburne here about, For if they ever meet, they will jail out. -Communism itself has never been defined as a crime in the U.S., but the 1940 Smith Act, making conspiracy to overthrow the U.S. Government illegal, has been interpreted by the courts to mean that Communist associations are conceivable grounds for criminal prosecution.

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