Eisenhower in War and Peace

by Jean Edward Smith

  McCarthy had his issue. “Who promoted Peress?” The senator called Camp Kilmer’s commanding officer, Brigadier General Ralph Zwicker, to testify. Confronting Zwicker in a one-man hearing, McCarthy was at his abusive best. Zwicker, who had been decorated for heroism on D-Day, did not flinch. He knew nothing about the matter, he said. The general explained that Peress’s promotion was a routine matter dictated by statute. No one was at fault. “You have the brains of a five-year-old child,” McCarthy responded. “You are a disgrace to the uniform you wear.”30

  McCarthy had crossed the line. The American Legion and the Veterans of Foreign Wars issued public rebukes, and even the Chicago Tribune editorialized that General Zwicker deserved better treatment.31 On the Senate floor, Republican senator Ralph Flanders of Vermont rose to deliver the sharpest attack yet made on McCarthy by a colleague. “In this battle [against Communism] what is the part played by the junior Senator from Wisconsin? He dons his war paint, he goes into his war dance, he emits his war whoops. He goes forth to battle and proudly returns with the scalp of a pink Army dentist.”32 Flanders, a former president of the Federal Reserve Bank of Boston, enjoyed impeccable Republican credentials. Scarcely had he finished speaking than he received a note from the White House. “I was very much interested in reading the comments you made in the Senate today,” wrote Eisenhower. “I think America needs to hear more Republican voices like yours.”33

  That same evening, Edward R. Murrow broke television journalism’s self-imposed ban against attacking McCarthy and devoted his entire program See It Now to film clips of the senator in action—bullying, blustering, out of control. “The line between investigation and persecution is a very fine one,” said Murrow, “and the junior senator from Wisconsin has stepped over it repeatedly.”34 The next day Eisenhower invited Murrow to the White House and congratulated him.35

  Eisenhower explained his unwillingness to attack McCarthy directly. “This is not namby-pamby,” Ike wrote his friend Paul Helms. “It is certainly not Pollyanna-ish. It is just common sense. A leader’s job is to get others to go along with him in promoting something.… I am quite sure that the people who want me to stand up and publicly label McCarthy with derogatory titles are the most mistaken people that are dealing with this whole problem, even though in many instances they happen to be my warm friends.”36

  Privately, Eisenhower was outspoken. “This guy McCarthy wants to be president,” Ike told James Hagerty. “He’s the last guy in the world who’ll ever get there if I have anything to say.”37 Instead of attacking McCarthy directly, Eisenhower deployed what Princeton politics professor Fred Greenstein called “the hidden hand,” and his defeat of McCarthy, culminating in the Senate’s vote of condemnation, represents what may well be the most adroit use of the indirect approach by any occupant of the White House.38

  First off the mark was the Army. Secretary Robert T. Stevens, who had already crossed swords with McCarthy, ordered General Zwicker not to testify further before McCarthy’s committee. The order was expanded to include all members of the military. Officers were instructed to ignore whatever summonses they might receive from McCarthy. Eisenhower escalated the response. Writing to Secretary of Defense Charles Wilson, the president extended the ban to all employees of the executive branch. Not only were they not to testify, but they were forbidden to submit any documents or other evidence to the committee. “I direct this action so as to maintain the proper separation of powers between the Executive and Legislative Branches of the Government in accordance with my responsibilities and duties under the Constitution,” Eisenhower wrote. “This separation is vital to preclude the exercise of arbitrary power by any branch of the Government.”39 As Ike told Senate majority leader Knowland, “My people are not going to be subpoenaed.”40

  Eisenhower’s action was unprecedented. He had expanded the concept of executive privilege far beyond that employed by any of his predecessors. Arthur Schlesinger, Jr., writing in The Imperial Presidency, called it “the most absolute assertion of presidential right to withhold information from Congress ever uttered to that day in American history.”41 McCarthy was stymied. Without the power to subpoena government records or employees, his investigations would grind to a halt. McCarthy appealed to government employees to disregard the president’s order and report directly to him on “graft, corruption, Communism, and treason.”42 Insofar as Eisenhower was concerned, McCarthy was now beyond the pale. The senator’s statement, he told Jim Hagerty, “is the most arrogant invitation to subversion and disloyalty that I have ever heard of. I won’t stand for it one minute.”43

  A showdown was in the offing. On March 11, 1954, the Army submitted an official complaint to the Senate’s Permanent Investigations Subcommittee charging that McCarthy and Cohn had repeatedly badgered it to obtain preferential treatment for Cohn’s friend G. David Schine, who had been drafted in November. Schine was assigned to Fort Dix for basic training, and according to the Army’s complaint, Cohn bombarded officials up and down the chain of command with demands on Schine’s behalf and threatened to “wreck the Army” unless they were granted. McCarthy responded by charging that the Army was holding Schine hostage to blackmail him into terminating his investigation. Members of the subcommittee voted to hold hearings; McCarthy was compelled by the Senate’s leadership to step down as chairman; and when the senator from Wisconsin insisted on retaining his right to vote, Eisenhower skewered him at his weekly press conference. “In America, if a man is a party to a dispute, he does not sit in judgment on his own case.”44

  The hearings began on April 22, and were televised nationally. The Army was represented by Joseph Welch, a gentle, courtly, old-fashioned lawyer from the prestigious Boston firm of Hale and Dorr. McCarthy and Cohn acted as their own counsel. The hearings lasted thirty-five days, and across the country the nation watched, spellbound by the spectacle. (I was in my senior year at Princeton, and classes regularly shut down as we tromped over to Whig Hall to sit before one of the few large-screen television sets on campus. My classmate Donald Rumsfeld ascribes his decision to enter politics partially to the fascination he felt watching the hearings.)45 The folksy, understated manner of Joseph Welch played well on television. McCarthy and Cohn came across as villainous bullies engulfed in a cloud of darkness.

  The high point of the hearings came with Roy Cohn on the witness stand. He was being examined by Welch about a cropped photo of Army Secretary Stevens and Private Schine. Welch wanted to know who had cropped the photo, and Cohn was being evasive. Finally, in exasperation, Welch said, “Surely, Mr. Cohn, you don’t suggest it was done by a pixie?”

  McCarthy interrupted. “Point of order. Point of order, Mr. Chairman. Will Mr. Welch please tell the Committee what a pixie is?”

  Welch savored the moment. Turning to face the senator, Welch said: “Senator, a pixie is a very close relation to a fairy.” (In the 1950s, “fairy” was a pejorative term used to identify a man who was gay, and the close relationship between Cohn and G. David Schine was an omnipresent undercurrent in the hearings.)

  The committee room erupted in sustained laughter. With that well-aimed quip, Welch torpedoed the terror of McCarthyism. The country was laughing at the senator, not with him.

  The final blow was delivered by Welch one week later when McCarthy gratuitously accused a young member of Welch’s Boston law firm of having been a member of the National Lawyers Guild, which McCarthy claimed was “the legal bulwark of the Communist party.” Welch was dumbstruck. Composing himself carefully, he replied with evident anguish, “Senator, until this moment I never really gauged your cruelty or your recklessness.” Welch explained that the young man (Frederick G. Fisher) had briefly belonged to the guild for a few months while a student at Harvard, and was now secretary of the Young Republicans in Newton, Massachusetts. Turning to McCarthy, Welch said, “Little did I dream you could be so reckless and so cruel as to do an injury to that lad. I feel he will always bear a scar needlessly inflicted by you.” When McCarthy tried to co
ntinue, Welch intervened. “Let us not assassinate this lad further, Senator. Have you no sense of decency?” For McCarthy it was all over. His recklessness had been exposed for all the world to see.

  When the hearings ended on June 18, Eisenhower invited Welch to the Oval Office to congratulate him on his presentation of the Army’s case. Welch said the only good thing to come out of the hearings was that they had given the country an opportunity to see McCarthy in action.46 On December 2, 1954, the Senate condemned McCarthy by a vote of 67–22 for conduct unbecoming a senator. Eisenhower’s indirect strategy had paid off. Ike always believed that if he had attacked McCarthy directly, the Senate would never have taken action. Later he wrote, “McCarthyism took its toll on many individuals and on the nation. No one was safe from charges recklessly made from inside the walls of congressional immunity.… Un-American activity cannot be prevented or routed out by employing un-American methods; to preserve freedom we must use the tools that freedom provides.”47 After the Senate’s vote of condemnation, McCarthy began drinking heavily. He died of cirrhosis of the liver on May 2, 1957.

  As the battle with McCarthy played out, Eisenhower was engaged on another front with Senate conservatives who sought to amend the Constitution to restrict the power of the president to conclude agreements with foreign countries. The immediate impetus for the drive stemmed from FDR’s wartime agreements with the Soviet Union, but the issue was one of long standing.

  Article 6 of the Constitution provides that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”

  This is known as the “supremacy clause.” Note that for a law passed by Congress to be the supreme law of the land, it must be made pursuant to the Constitution. But treaties face no such test. A treaty becomes the supreme law of the land as soon as it goes into effect. And, except for the requirement that a treaty cannot violate the express terms of the Constitution, there is no limit to the treaty power.48 In 1916, the United States government wanted to regulate the hunting of migratory birds on their annual flights in spring and fall, but it lacked authority under the Constitution to do so. So it concluded a treaty with Canada that had the same effect.f And this pertained not only to treaties. Executive agreements made by the president with foreign countries, which unlike treaties do not require the approval of two-thirds of the Senate, also become the supreme law of the land as soon as they go into effect.49 And because both treaties and executive agreements supersede state law, states’ rights advocates since the time of the Migratory Bird Treaty in 1916 have sought to curtail the treaty power. Roosevelt’s wartime agreements with Stalin gave the movement a new urgency, and additional fuel was added to the fire by agreements relating to the United Nations, particularly a proposed “Covenant on Human Rights,” which conservatives charged would impose “socialism by treaty” on the United States.

  When the Eighty-third Congress convened on January 7, 1953, Senator John Bricker of Ohio, who had been Dewey’s running mate in 1944, stepped forward to introduce a constitutional amendment to restrict the treaty power. Designated Senate Joint Resolution 1 (S.J. Res. 1), Bricker’s amendment would give Congress the power to regulate all agreements made by the president with foreign countries. It also specified that a treaty would become effective as internal law in the United States “only through legislation which would be valid in the absence of a treaty,” in effect repealing the Supreme Court’s 1920 decision in the migratory bird case.50

  The Bricker Amendment was cosponsored by sixty-four senators, giving it the necessary two-thirds of the Senate required for passage, even if all ninety-six senators voted. Forty-five of the Senate’s forty-eight Republicans backed the resolution, as did nineteen Democrats. If the amendment cleared the Senate, passage by two-thirds of the House of Representatives was a foregone conclusion, and in the political climate of 1953, adoption by three-quarters of the state legislatures was all but guaranteed. The amendment was endorsed by a large portion of the American Bar Association, the U.S. Chamber of Commerce, the Daughters of the American Revolution, the American Legion, the Veterans of Foreign Wars, and a grassroots organization called Vigilant Women for the Bricker Amendment, which quickly obtained more than a half million signatures in support. Mail to congressional offices ran nine to one in favor of the amendment, and with the exception of The Washington Post and The New York Times, most of the nation’s press supported it as well.51

  Unlike Joe McCarthy, who was vulgar, disheveled, and repellant, John Bricker was a conservative Midwesterner’s beau ideal: an embodiment of the GOP’s reactionary Old Guard who continued to believe that entry into World War I was a tragic mistake, that the New Deal was a socialist plot foisted on the United States by Franklin Roosevelt, and that if the country retreated once again to fortress America all would be right with the world. Tall, stately, and handsome, Bricker was blessed with a full head of wavy white hair that was meticulously coiffed. He exuded a moral certitude bordering on arrogance, and struck observers as pompous even among colleagues where pomposity was scarcely unknown. As one wag put it, Bricker walked with a senatorial dignity so profound it was “as if someone was carrying a full-length mirror in front of him.”52

  Initially, Eisenhower sought to conciliate the GOP’s Old Guard and avoid a confrontation. “Can’t we find a way to avert a head-on collision over this thing?” Ike asked early on.53 In the case of McCarthy, the president had resisted the temptation to criticize the senator because he believed it would work to McCarthy’s advantage. In the case of Bricker, Eisenhower wanted to avoid disclosing the fissure in the Republican party. “I’m so sick of this I could scream,” he told his cabinet in early April. “The whole damn thing is senseless and plain damaging to the prestige of the United States. We talk about the French not being able to govern themselves—and we sit here wrestling with the Bricker Amendment.”54

  Eisenhower’s primary objection to the Bricker Amendment was that it would curtail the power of the president to conclude agreements with foreign countries. That would include the status-of-forces agreements that the United States was negotiating with the various NATO countries and with which Ike had firsthand familiarity. To give Congress control of those arrangements would add boundless complications. Perhaps equally important, the Bricker Amendment would subject all treaties to continuing review by Congress. That would jeopardize the permanence of treaties because one Congress could nullify the action of a preceding Congress. If that were the case, few foreign countries would feel comfortable negotiating with the United States. America was now the principal power in the Western world and the primary obstacle to Communist expansion. This was no time to be curtailing the power of the president to conduct foreign affairs.

  The Bricker Amendment was reported favorably by the Senate Judiciary Committee on June 15, 1953. Eisenhower remained reluctant to go public with his opposition, fearing an irretrievable split in Republican ranks. But within the administration he was caustic. “Bricker seems determined to save the United States from Eleanor Roosevelt,” he told the cabinet in July. At that point John Foster Dulles broke in and urged Eisenhower to speak out.

  “We just have to make up our minds and stop being fuzzy on this,” said Dulles.

  “I haven’t been fuzzy on this,” Eisenhower replied. “There was nothing fuzzy in what I told Bricker. I said we’d go just so far and no further.”

  “I know, sir,” Dulles replied, “but have you told anyone else?”55

  Eisenhower made it through the first session of the Eighty-third Congress without the Bricker Amendment coming to a vote. The amendment stayed on the front pages of the nation’s newspapers but the president declined to make a public statement. Lucius Clay watched from the sidelines. “The White House staff always got a little edgy whenever I got involved, so I tried to be very careful not to get involved.”56

  Late in 1953, Clay r
eceived a telephone call from John W. Davis, the distinguished constitutional lawyer (of Davis, Polk, Wardwell, Sunderland, and Kiendl) who had been the Democratic nominee for president in 1924 against Calvin Coolidge. “Davis was held in awe by most of the legal profession,” said Clay. “I knew him, but not well.”57

  Davis told Clay how concerned he was about the Bricker Amendment, and how he and Professor Edward S. Corwin at Princeton, the dean of constitutional law scholars, were organizing a committee to fight it: the Committee for Defense of the Constitution. Davis asked Clay if he would join them as cochairman.

  And so I did. We set up a small staff and enlisted a broad cross-section of prominent Americans to help us. People like former Supreme Court Justice Owen Roberts, Dean Griswold at Harvard Law School, Jack McCloy, Henry Wriston, Averell Harriman, and so on.

  Very quickly we recognized that President Eisenhower was the key to this thing. So I arranged for Mr. Davis and Professor Corwin to have a private dinner with General Eisenhower in the family quarters of the White House. And it was a very good meeting. The president held a great respect for John Davis.58

  Davis and Professor Corwin dined with Eisenhower on January 23, 1954. Two days later, Ike went public. “I am unalterably opposed to the Bricker Amendment,” the president wrote Senate majority leader Knowland. “Adoption of the Bricker Amendment by the Senate would be notice to our friends as well as our enemies abroad that our country intends to withdraw from its leadership in world affairs.”59 The battle lines were now drawn: Eisenhower and Senate liberals against the conservative blocs in both parties. Lyndon Johnson, the Senate minority leader, held the key.