benefit by undergoing analysis."
I said, "That s marvelous. I think that you could." Some of
the students who were there were just amazed, you know, because nobody
dared to talk to him like that. But he liked it, actually, and I
think that he would have been happier if he had really gone into
Anyhow, next morning was Sunday morning. They always had a big
Sunday morning breakfast. They had the guests there. The students
helped to serve all the people there. There were quite a few there
who were interested in this CO problem, who were really antiwar and
were thinking about it. They wanted to sit down and listen while my
husband was talking.
She, Olga, began to push them around to watch our cups of coffee
and whatever we were eating. I spoke up and said, "I think we can
help ourselves. These young people want to hear something and they
would like to participate."
Frank was very happy that I spoke up. I think it was his own
feeling, but he would never have dared to speak up.
He talked to me about his mother at the time. I had a feeling
that there was a great deal of conflict underneath and that he was
really very fearful of rejection and acted out all along. She had
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difficulties with almost all the students. But Frank would never
stand up and take a position. So they felt, in a way, more betrayed
by him than by her.
Risss: That s a terrible conflict to be in the midst of.
Dr. H.: Yes. But I had several patients. They used to come down from
Wisconsin to see me. One, D. H. , who had tremendous conflict
up there, was a very fine architect. He went to New York. He
He built the Usonia settlement in White Plains, which was a
subdivision. All the people who were buying in there and built
homes had been analyzed. They had their own school there. It was
a beautifully planned thing. They all had their unique, individual
homes, beautiful homes in a wooded area, lovely. Frank Lloyd told
that the only way he can go about it is that David has to do all the
work from the bottom up, digging the ditch, laying the foundation
and everything, and Frank came to help him do that. So there are
two homes in the Usonia project that were really built by David and
Frank Lloyd Wright. (At that time Frank Lloyd Wright was building
the Guggenheim Museum.) David was the only architectural student who
It was a very, very beautiful project, but eventually it
deteriorated. At some point it became more important whether they
had the money to buy than whether they could maintain the interpersonal
relationships that they wanted.
We were there, when was it? We were at an ACLU dinner probably
about six years ago. That was the last time I was there. David
came. You [Francis] went to Swarthmore College on another speaking
tour, and I stayed with them. It was still very nice. Actually,
there were several family members in there. By that time about half
of the people were no longer with the same concepts, although they
tried, but it had lost the character.
Riess: What held them together was that they had all been analyzed?
Dr. H.: That was a condition, so that they could all have a kind of
atmosphere for the children, in which to grow up. Freedom. Not
license, but freedom.
Riess: But that s also saying that all analysis is good and effective
analysis. It s such an ideal thing.
Dr. H. : Man came in between. [laughter]
You were astounded at the studen
astounded that she or I were talking back to him. At the dinner
Mr. H. : You were astounded at the students of Frank Lloyd Wright, who were so
following the trial in Wausau, Wisconsin, Frank Lloyd Wright was
holding forth and talking about the incredible judge, who never even
tried to find out whether the people were guilty but they were guilty
because they were students of Frank Lloyd Wright! "Something ought
to be done about it."
Mr. H.: I said, "Well, you can do something about it. You are a friend of
Francis Biddle, the Attorney General of the United States. If you
want to bring it to his attention, if he wants to do something about
it, he can do it." It was not a trial of the prisoners. It was a
trial of Frank Lloyd Wright.
He decided to write a letter. He asked me, "Will you write the
A student there just about dropped the coffee pot when the great
Frank Lloyd Wright was asking a little lawyer to write a letter. I
did write the letter. One of his secretaries, one of his students,
typed it. I asked Frank Lloyd Wright to look it over and sign it
and mail it.
Frank Lloyd Wright didn t like something in my letter, and he
changed it. When the student brought it to me I said, "You go up to
Frank Lloyd Wright and tell him that I want to have my formulation
restated in another letter." When I said that, you would not have
believed the consternation that somebody dared to tell anything to
Frank Lloyd Wright!
Dr. H. : But he actually rewrote the letter to Biddle.
They [students] were intimidated by his knowledge. He was not
secure enough not to accept that. In fact, she was the one who
exploited the students terribly. They were all like slaves. There
were some who were very depressed. David s wife was there. Several
had their wives there. They were just scullery maids and doing all
the dirty work. Not only that they never got paid for anything, but
they never got any recognition for anything they did.
Mr. H. : They had to pay to be at Taliesin.
Riess: So they were in analysis with you just because they needed it to
survive the experience?
Dr. H.: Because they got so depressed they could not function any more.
Riess: It sounds like the two of you were very stimulating houseguests.
Were you invited back again?
Mr . H . : Yes .
Dr. H. : We were also down in Arizona. [Taliesin West]
Emma Albano s husband [Joseph F. Albano] had been one of his
students, too. He was not there any more. Emma s aunt, Mrs. Classman,
was a very close friend of Frank Lloyd Wright s was she the third wife
or the second? She was a Russian woman. [Olga Lazovich was the
Mr. H. : lovanna s mother.
Dr. H.: Yes. She was very close friends with her.
What is a Conscientious Objector?
Riess: When your CO cases came to you, how did you determine their legitimacy?
Or wasn t that an issue?
Mr. H.: It was. I think that you listen to them, talk to them. It was always
very interesting to permit them to let off a lot of steam.
I always thought, contrary to my wife, that when a young man is
willing to face the possibility of going to jail for five years and
probably a ten thousand dollar fine to boot, instead of accepting
whatever was offered by the army, conscientious objector status as a
Dr. H.: You know, but it made a difference. The ones who really had worked
it through were the ones that could go to the prison without
breaking down. And the others broke down.
Riess: In the beginning, you were seeing religious ones or non-religious
Mr. H. : Both, except that, in the beginning, the government wouldn t even
consider anybody as a CO unless he was religious, unless he was a
member of one of the three historical peace churches, the Quakers,
the Brethren, or the Mennonites. But later on we were able to teach
the courts that one can be a conscientious objector, and he ought to
be, without any reference to his religious belief. My argument was,
and I was arguing until I was blue in the face, that under the
Constitution, you cannot discriminate against people if they are not
religious. It took about fifteen years before WP got the Supreme
Court to go along with that. Then we also claimed that no religious
index ought to be considered at all. It took us another ten years.
Then finally in the Walsh Case and in other cases, the Supreme Court
agreed with us that even moral opposition to war is sufficient to
make one a consciertious objector.
Riess: I should think that the kind of people that you saw would have changed
over the years, as they became more sophisticated about the whole
possibility. I m wondering about the early ones.
Mr. H.: There was during the Second World War an attitude on the part of
the judges not to consider anything except, was there an order of
induction? If the answer was yes, the next question, and the only
question, was, did he comply? If he did not, then he was ab initio
We argued in the court, or at least I argued in the court, that
even a rapist, a murderer, a thief, everybody has the right to present
evidence of innocence. Why does a conscientious objector have to
stand by and not be permitted to show that the draft board was
There were very few judges like Judge Barnes, before whom I
argued in the Harshmanite cases that the whole town was prejudiced
against the sect, which was a Methodist sect: Reverend Harshman
organized a church. He was a Methodist minister, but he didn t
believe that the church was, in accordance with the Good Book,
pacifist enough. So he split from the church and built his own
church. These people were totally pacifist.
Even though these Harshmanites organized some industries in
town where they hired people from the town, whether they were members
of the church or not, and provided employment, nevertheless the
prejudice against them was fantastic. So much so that when there
was an assistant minister, who was at that time eighty-two years of
age, who was knocked down by some of the people who thought that
they were yellow and they painted in the nighttime the church yellow,
and this minister was knocked down, and they found out who did it,
the Harshmanites refused to prosecute, because "Revenge is mine,
sayeth the Lord."
There was nothing wrong with those cases except that I didn t
get paid when the court appointed me. There was at that time no
money in the federal budget to pay for court appointed lawyers.
There was a very interesting thing. Could you help me? [to
Friedy] How long ago was it that I got a letter from the professcr
Dr. H.: About seven or eight years ago.
Mr. H.: I got a letter. The fellow says, ""Vou defended me twenty years ago,
and you saved me from jail. I had no money to pay you. Now I have
a good job, I teach at Berkeley, and I want to pay you." He wanted
to know what was my fee, and he sent me a check.
Riess: You weren t being paid by the courts?
Mr. H. : And my clients didn t have any money. Most of them didn t have any.
I would say that probably not more than two or three in each hundred
was able to pay me.
Riess : How did you make out?
Mr. H. : I had other cases. Divorce cases. Other things. The Harshmanites
paid me. I defended probably twenty of those Harshmanite kids, and
I never lost a case. The church hired me.
Riess: Could you defend them as a group
Mr. H.: No, the government would not go along with that. They wanted to keep
that out entirely.
Judge Barnes was a man of great humor and great knowledge.
I struggled against the Falbo case. In the Falbo case, the
Supreme Court of the United States held that there are only two
issues: Was there a valid order of .induction? And was there a
refusal? For four years, we went to the Supreme Court, arguing that
that s the wrong decision, and the Supreme Court of course would not
interfere with the war effort and didn t want to rock the boat. It was
not until the war was over when they came out in a case, the Dickinson
case, and they said, "You were right about it. There must be some
thing in the record which justifies the conviction of the person. The
government has to show why they are refusing to grant the man his
conscientious objector classification." Thereafter we had an easier
But then we changed our tune and we wanted to have a little bit
more leeway. We wanted to get away from the religious classification.
We wanted to get away from religion entirely. We wanted to get away
from the requirement that the conscientious objector should be better
than other human beings. Finally we succeeded in the Seeger and the
Riess: Mark Lane was the attorney for David Mitchell in 1966, and he argued
that to go to war was a violation of the Nuremberg law because the
war was an act of inhumanity.
Mr. H.: The Supreme Court made short shrift of us when we were arguing the
Nuremberg precept, because they said it was really never adopted by
the United States. It was outside of the usual precept of judicial
procedure. I had a forty-nine volume transcript of the Nuremberg
Trial. I had beautiful quotations there. Justice Jackson s closing
argument was tremendous. He said, "The United States will have to
abide by the concept of the superior order."
Riess: I know you re getting hungry. You rattled your papers! Let s have lunch,
Interviewer Suzanne Riess with Friedy and Francis Heisler
May 6, 1982
Photographed by Georgia Lloyd
X THE CONSCIENTIOUS OBJECTOR CASES
[Interview 4: May 6, 1982]##*
Mr. H.: There was a time, and I think that I mentioned it before, that,
during the war, we were all patriots, except I and Julien Cornell.
We were the only two lawyers in the United States who were accepting
conscientious objectors and defending them. Even the Civil Liberties
Union would not take cases because they didn t believe that it was
a civil rights issue, and I had to fight them, and I told them, "If
you don t take it, I will take it as a private person," and I did.
I would guess that probably the number of cases I tried throughout
the United States is closer to two thousand than to fifteen hundred.
Riess: You could never try them as a class action? It was always the
Mr. H.: That s correct.
Riess: Why is that?
Mr. H.: Because the government was the one who filed the suit, and [laughs]
they did not even think of that. Besides, they did not want to try
them, because they would have argued that each case is different,
Riess: Would you argue also that each case is individual?
Mr. H.: It depends on my defense.
But anyway, up to about the middle of 1945, that is, after the
war was over, we were just not able to get any kind of cooperation
from the government. That was a time when I happened to have a class
*Dr . Heisler not present until indicated.
case where the government indicted all members of the Glendora
Concentration Camp because the good General [Lewis B.j Hershey
decided that he is going to punish these conscientious objectors,
and after all the fighting people were discharged, he kept them in
the camp, and they walked out, so then about fifty-one of them were
indicted, and I defended them in Los Angeles, California.
And believe it or not, the judges were so scared of the case
that they would not take it no federal judge so they had to take
out an old judge from the mothballs and bring him in from Idaho.
He and I got along very well, and when he found them guilty, he
said, "I am going to suspend the sentence if you ask for it." Fifty
of the fifty-one asked for it, but one fellow an artist from New
York would not do it, and I had a hell of a time to avoid a full
dress trial. So that was the only case which approximated a class
suit. But, they were tried all with the same thing, so here I am.
Did you ever meet Hershey face to face?
Yes. I am so ancient that the first time I met him he was a major,
and the last time I met him he was a major general. [laughter]
Underneath what he was as an official person, was he a reasonable
No. He was a very ignorant person in the same sense as Reagan is.
There is just no two sides to the coin. Whatever he was doing was
right, and that is not very likely, that in human nature that is
going to happen.
The ACLU itself finally did have a national committee on conscientious
That s right. And they came to the conclusion that there are some
nuts, at least two of them, so they had to humor them, and since we
did not give that up, and we defended so many cases, it was quite
embarrassing to the ACLU.
This national committee was formed in 1941, and headed by New York
lawyer and member of the American Legion, Ernest Angell.*
He was the chairman of the board of the ACLU.
He was a Wall Street lawyer.
Mr. Ernest Angell.
. 31, "Liberty s National Emergency," annual report of the ACLU,
Riess: And he was an American Legion member?
Mr. H.: I never knew that. I would not say yes or no, but I would not
expect it. He was for years chairman of the board of the ACLU
executive committee and the national board, so he was undoubtedly
very much interested in the work of the ACLU.
Riess: Did you defend any of the American Indians who claimed CO status?
Mr. H.: Yes.
Riess: They must have been interesting cases.
Mr. H.: They were interesting cases because they were off the beaten path.
They were no more interesting and no less interesting than some of
these black people or other minorities who thought out what they
were trying to do, and they were approaching the problem differently
than most people.
Riess: When the CO cases came to you, were they already articulate about
what this meant for them?
Mr. H.: No, I have to admit that very often I had to really cajole them to
come to the conclusion that they were conscientious objectors. Most
people didn t know what a conscientious objector was. They expressed
it in a hazy manner, how they felt about killing, about war, and then
I was trying to consolidate in their mind their position, and it
turned out to be that they were conscientious objectors, though they
didn t know it, nor did they know how to express it.
Riess: How did they get to you in the first place if they were so unformed
as conscientious objectors?
Mr. H.: My cases were pretty well publicized in the papers. There was not
very much choice. Either they went to New York to Julien Cornell,
or they came to me in Chicago .
The only thing was that they knew that under no circumstances
are they going to pick up a gun and kill. It was different from the
Nazarenes, whom I have known in the First World War, and I didn t
become a conscientious objector then because I was afraid. The
Austrian-Hungarian Army just picked up these good Christians and
shot them out of hand when they refused to pick up the gun, and I
didn t want to be shot. The fact was that it started out with the
feeling that, "He is not my enemy; I am not going to go out and kill."
Riess: When you were forming your own thoughts and facing up to the unreality
of being a conscientious objector in World War One, people like
Eugene Debs and A. T. Muste and some of the Quakers here were calling
themselves conscientious objectors, weren t they?
Mr. H.: How would I say it? I think that probably your first formulation
was correct. Everybody was grasping. Everybody was trying to put
their thought into a container, to redefine or define it, and it
was not very easy, because you had little help from anybody. Not
even the Quakers, like Mr. Roach, who, as a good Quaker, was lending
money to people, and somebody gave him five thousand bayonets as
security for the loan that he gave them, and then George Washington
came to him and said, "I need those bayonets," and Mr. Roach took
them and threw them into the bay, and he was court-martialed, and,
believe it or not, a court-martial in George Washington s time
found him not guilty. The name is R-o-a-c-h, like another roach.
Riess: This country has an interesting liberal history.
Mr. H.: This country has an interesting history, period. [laughter] But
people are mainly very lazy about it. They just don t want to be
bothered with the history of this country.
Riess: Were the religious conscientious objectors who came to you also
getting counseling and help from their churches?
Mr. H. : No, unfortunately, the churches were very reluctant to be involved in
this fight, and very few of the churches really took an upright
position on it. Most of them were not even lying down, but crawling
into a hole that they should not be bothered.
Riess: Conscientious objectors, were they already fairly lonely people?
Mr. H. : Very much so. Very much so. And I think, again coming to the
expression that you were using, this loneliness prompted me to come
to their help because it was just heartbreaking to see them, how
alone they were.
Most of us during the Second World War were more than lonely
because people were not talking to us, so it was a lonely situation.
Though it s very interesting, I have there the address of some people,
and she was a German doctor who was very much helped by my wife, and
when she married she married a gung-ho American hero they just
would not talk to us. They were here recently. They came to us to
tell how right we were and how wrong they were.
Riess: The consientious objectors, who had to come to you in Chicago or to
Julien Cornell in New York, had to be able to finance all of this,
at least to get to your doorstep?
Mr. H.: Yes, but most of them and I cannot find any fault with that approach
felt that some lawyers owed them assistance, so I would say that
ninety-five out of a hundred never paid their lawyers. I mentioned one
professor from Berkeley who later sent me a check, but most others felt
that they are carrying the burden, so therefore somebody else ought to
carry it, too.
Riess: That sounds like a sort of second stage of their thinking, though?
Mr. H.: That s right. That was the time when they became convinced that
they were conscientious objectors and they are doing a great deal
Riess: It must have been fascinating to watch that transformation, that
coming to awareness?
Mr. H.: That s right. But that was the growing up of these people, because
they started out somewhere else, and it was almost a second nature,
so they had to start out from infancy to come to that position.
Riess: Did you always put them on the stand to testify? I realize it s
difficult to generalize about two thousand people.
Mr. H.: I am trying to think about it, but I would say that probably the
answer is yes, because I was struggling with the judges. As I
mentioned before that during the whole Second World War our Supreme
Court was sitting quietly, never saying anything about it, never
giving any instruction to correct the misconception of the lower
court judges. It was not until the war was over that the Supreme
Court said, "Oh, well, we never meant it. We always believed that
conscientious objectors are entitled to defense."
Riess: Which case was that?
Mr. H.: Probably the most important case which I like to cite was the
Dickinson case. In the Dickinson case, the Supreme Court said,
"Well, of course, everybody s entitled to defense. You just cannot
send the people to jail unless you are going to find in the record
something which is going to show that the person is not a conscientious
Riess: Why were they holding back for all of those years?
Mr. H.: Because we don t rock the boat during the war.
Riess: How did Roosevelt himself feel about the issue, do you think?
Mr. H.: I think that Roosevelt was a convinced, if not a militarist, at
least he believed in national defense, and he I cannot prove it, but
I think it was Roosevelt s idea that when these conscientious
objectors were locked up in concentration camps, that they locked
them up in a place where they were out of the way, where the people
didn t see them. For instance, Germfask, Michigan, and some other
places where they never got in conflict with any of the population,
and the population was opposed to the conscientious objectors.
Riess: If the population saw them, then the population would be
Mr. H.: Very unhappy about it.
Riess: Because their own sons were off fighting this war.
Mr. H. : That s right. You are almost using the terms what they were using:
"If my son can go, so can yours."
Riess: Did you visit Germfask?
Mr. H.: Yes. I visited a great many of them, because most of the time I
could not believe this distorted thinking of our country. There
was a fellow by the name of Heisler who was in charge of one of these
concentration camps, and I visited his place. He was trying to be
helpful to these people, but the setup was so oppressive and so hard
to compromise that it was really difficult for any person with any
kind of decent feelings to bring about a situation where these people
were not oppressed.
For instance, I had a group of people called The Angels of God