bombing of Japan, and we didn't have that document.
Another document, also marked "Top Secret" and likewise originat-
ing in the Navy Department, dealt with the disposition of the Japanese
fleet, subsequent to the major naval battle of October 1944. We didn't
have that document.
And, I believe maybe the document you just mentioned; another
stolen document, particularly illuminating, and of present great im-
portance to our policy in China, and this is the language of Congress-
man Dondero, was a lengthy detailed report showing complete dis-
position of the units in the army of Chiang Kai-shek, where they were
located, how they were placed, under whose command, naming the
units, division by division, and showing their military strength.
We did not have that document.
Mr. Morris. That, therefore, was not presented to the grand jury?'
INIr. McInerney. No, sir.
I did not close tlie circle on Jaffe's conviction.
Mr. Morgan. I would like to see that done.
Senator McMahon. Yes.
Mr. McInerney. It will take about 2 minutes.
Senator INIcIMahon. I wish you would, because there are two ques-
tions I want to ask, then.
Mr. McInerney. Wien I left off, I was testifying that we were
trying to make the best bargain we could with JafFe, in view of his
motion to quash, which, as far as we knew, was fatal to our case, and
also would disclose investigative techniques which we had rather not
have disclosed — speaking for myself, now.
Senator McMahon. Incidentally. Mr. McInerney, these documents
that were not made available to the grand jury, if you had them, and
STATE DEPARTMENT EMPLOYEE LOYALTY INA'ESTIGATION 985
they had been made avaihible to the grand jury, would they have been
admissible before the petit jurj'?
:sh\ :MrIxr.HXEY. Well, that would depend upon the agency to
whom they belonged. I guess they were ONI, and we would have to
get clearance from OXI before we could use them.
Senator McjMaiiox. They had been seized by Mr. Bielaski. I am
asking you a legal question. Having been seized by ]Mr. Bielaski in
his raid on the office at night, and brought down to Washington,
would tliey have been admissible?
jSfr. iSrcixERXEY. I think they would have been, if Mr. Jaffe had not
made a motion to quash, and "knew of the trespasses committed on
his premises.
Senator McINIahox^. That is the point I wanted to make.
Mr. McIxERXEY. From the standpoint of evidence, they wei-e ad-
missible, unless they were vulnerable.
Senator McMaiion. Of course. Does the motion to quash, under
the circumstances, run to those documents also?
Mr. McTxERXEY. I would say that they would be suppressed.
After having Mr. Arant, Mr. Jaffe's lawyer, in the office for about
4 hours, he made me a firm commitment that he would plead his man
guilty, or nolo contendere, and the agreement was that he would pay
any fine imposed by the court, whether it was two thousand or ten
thousand. That was the arrangement.
Senator Lodge. Why do you think he made that arrangement?
Mr. McTxERXKY. Why did he do it?
Senator Lodge. Why did he do it ?
Mr. McTx'erxey. I think now that Jaffe may have been an espionage
agent, v.hich information we did not have at that time. We knew
him only as a publisher of a magazine.
Senator Lodge. He thought you might have something worse than
you had on him ?
Mr. McInerney, That is my seconll guess, as of this moment.
The reasons he asserted, or the reason was, that he was tied up in
litigation, in some aribitration proceeding which took his whole sum-
mer; his wife had just gotten out of the hospital the previous Satur-
day from a very serious heart condition, and his attorney, Mr. Arant,
also stated that his practice was such that he could not take on a pro-
tracted trial of this case, which he wanted to do on the basis of a
"Drew Pearson defense," as he described it — that he thought that
these newspaper reporters and magazine people had an implicit license
or an implied license to get this stuff, and that this was nothing more
than reportorial enterprise.
Senator Lodge. What happened to Jaffe, since?
Mr. McInerney. Well, I don't know, sir.
Senator Lodge, Has the FBI ever gone ahead with an espionage
case and tried to get him on that ?
Mr. McInerney, No, sir,
Mr. Morris. Was Mr. Jaffe's Communist record made available to
you at that time ?
Mr. jMcIxerxey. I would say yes. He was described in the FBI
re])orts as a Communist. He was never described as having a Com-
munist Party card, but his Communist complexion was so strong
I assumed he was either a secret or open member of the Communist
Party. We had three or four visits to Browder's home, and at least
986 STATE DEPARTMENT EMPLOYEE LOYALTY INVESTIGATION
one visit to the Communist Pary headquarters ; and, visits of Browder
to his house against him, I assume that he was a Communist Party
member.
Senator McMahon. Looking at it now — ^you have had a long time
to review it — is there any evidence in the file anywhere — that was
not subject to a motion to suppress or a motion to quash — that could
have sustained a conviction of anybody in this case ?
That calls for an opinion, I know.
Mr. McInernet. It calls for a comprehensive recollection, too.
You say "any evidence."
I would say offhand that the only evidence we had, assuming motions
to quash by all defendants
Senator Lodge. What ?
Mr. McInernet. Assuming all defendants whose premises were
searched, all that we had was a close association between them, plus
that one little piece of the agent seeing Gayn reading what appeared
to be a Government document on a bus, on one occasion.
Senator McMahon. If you had tried the case — let us assume that
you had gone into court and tried the case — of course, that motion to
suppress would have been a preliminary motion; would it not?
Mr. McInernet. Yes, sir.
Senator McMahon. Would you have exposed at that time, I take it,
your wire-tapping techniques ?
Mr. McInernet. Well, if they had a hearing on it, and a jury was
demanded in connection with this motion to suppress, and if there
was a hearing — our surveillance would have been put in jeopardy by
wire taps.
As you know, telephonic surveillance is a great aid to a physical
surveillance, and the fellow using a phone may say that he will meet
you at the La Salle Restaurant at 6 o'clock, and the agent gets that,
and if they lose him on the tail, or if they know he is not going out
until 6, you can readily see it would be of great assistance. There-
fore, anything you pick up on that tail, if it was learned through wire
tapping, when the surveillance was inaugurated by reason of the wire
tapping, that would be fraudulent testimony.
Senator McIMahon. Now, you see, it is rather hard for the fellows
who have not been trained in the law to understand how, in the midst
of the war, these people could have dealt with the Government's
material the way they did, and get a $2,500 fine.
I called the attention of the committee this morning to the fourth
amendment of the Bill of Rights, the right of people to be secure in
their persons and houses and eilects. I know the answer, but I want
it in the record.
Was the fourth amendment abrogated by anybody at any time dur-
ing a period of war ?
Mr. McInernet. No, sir.
Senator McMahon. Could it be?
Mr. McInernet. I don't believe so. No ; it could not.
Senator Lodge. I want to ask a question there. It must stand to
reason tliat there is some obligation for the security of the troops,
and the security of the men at sea, and the security of all the men
in uniform; and it is just going to be awfully hard to convince an
awful lot of people that here was this great store of information
that was of great military value — at least supposed to be; somebody
STATE DEPARTMENT EMPLOYEE LOYALTY USTV'ESTIGATION 987
thought it was — and here these peo])le had it and they got off with
a ship on the Avrist. It nuist have seemed to a gi'eat many people
that, whei-e there is a will, there is a way, and it will be awi'ul hard
to cknir that, I think.
Mr. MoKGAX. There was one observation made by Mr. Mclnerney
that I would like to ask a question regarding, in order that there be
no misuutlerstanding.
I believe, in the characterization of those documents, you referred
to a great many of them as being "silly to classify them as they were,"
and I am asking you now, if, in connection with that statement, you
had in mind that portion of the espionage statute that required that
material of this character be relative to or relate to the national defense
or defense of the country. I am afraid that our record would appear
otherwise. You used it in one sense, whereas I think you were prob-
ably using it in another. At least you might want to explain what
3'ou meant when you said it was silly.
Mr. McIxERXEY. Yes, sir. It was in connection with the ultimate
standard of relationship to the national defense that the classification
of a great number of these documents was silly.
Mr. Morgan. I think on our record that we might note — and I
would like for your observation on this — that the mere fact that the
document might be classified would not, from the standpoint of the
espionage statute, be related to the national defense, in a court pro-
ceeding.
Mr. McIxERXEY. No, sir ; it would have no relevancy.
Senator Lodge. This comes as a complete revelation to me ; that any-
body could ever think that a top secret or any of those high classifi-
cations could be silly. If those things were silly, and were so regarded
by people, it is just a wonder we didn't have some dreadful military
disasters. That is all I can say, and I think I am sure that Mr. McIner-
xey is telling us the truth, and I know he is a man of such fine repu-
tation, and that is what makes the revelation so appalling to me. It
is appalling to think that things ever got to that pass.
Senator McMaiiox. On the other hand, let us reduce it to an ab-
surdity. Suppose on the other hand, somebody wrote a report on the
weather in France. Let's not take that, because that could be very
secret in wartime; but let us say they wrote a report alwut Cabot
Lodge and said that he is 6 feet 3, and has lost some weight, and then
through mistake, as it went through, it was stamped "Top secret"
and then somebody took it up and handed it out
Senator Lodge. That isn't the way it happened.
Senator McMaiiox. I said, "Let us reduce it to an absurdity." I
am making the point that that would have no relationship at all to
the national defense ; and, if somebody took that and handed it out,
I think that is the point that Mr. Mclnerney is trying to make; there
could be no criminal prosecution made on the basis of that.
Senator Lodge. The regulations in the Army were quite specific as
to the evaluation of documents, and you were supposed to read them
and familiarize yourself Avith the criteria that you were supposed to
apply in evaluating the classification of a document, and the idea that
there were birds sitting around with top secrets, putting them around
carelessly like that, doesn't correspond with my experience at all, and
I have had a lot of that.
988 STATE DEPARTMENT EMPLOYEE LOYALTY INVESTIGATION
Mr. Morgan. Perhaps I can make clear what I had in mind, by ask-
ing the question this way.
What I want to ask, Mr. Mclnerney, is — this is in contemplation of
the Espionage Statute, that provision requiring that the document
shall relate to the national defense — would the fact that the documient
was a classified document stand up in court as evidence that it did
relate to the national defense?
Mr. McInerney. No, sir.
Mr. Morgan. That is the point I wanted to make in my question.
Senator Lodge. It is not a question of whether it stands up in court
as a document relating to the national defense. The question is
whether — if the lives of young men were involved and their security,
whether it stands up in court or wiiether it doesn't is one thing; and
another — and it comes as a great shock to people — is that while the
troops were out in the forward area that back there there was such a
careless attitude toward such a vitally important problem.
Senator McMahon. The problem faced was serious
Senator Lodge. I am accepting what he says at its face value, and
just expressing my horror that such a condition should come to pass,
because you never saw anything like that in the service. We took our
classified documents very seriously.
Mr. McInerney. I think the observance of classification or the
classification system was stronger in the military ranks than in OWI
or OSS or the State Department.
If I might read one sentence of the House committee's report with
respect to this subject which we are discussing, on page 7 of the report :
Most of the classified documents, classified items in question, were copies.
There were few if any original documents. Most, if not all, of the documents
listed as originals, or duplicate originals, in the recapitulation heretofore set out
were hectograph, ozaloid, or mimeographed copies. The bulk of the records were
not of recent date. Some were dated as early as 193G, were innocuous in content,
and could have been generally known to anyone interested in the information
they contained.
Senator Lodge. That happens sometimes. There is no human being
made perfect. There is no system that is carried out, without a few
imperfections here and there.
When you have 12 or 13 million men in the service, some of them
are going to make an error at some time ; but the fact that some docu-
ments were evaluated incorrectly certainly does not mean — and I do
not thhik you mean — tliis whole classification system should be disre-
garded and thrown to the winds. I know you don't mean that.
Senator McMai-ion. The jury has the right to weigh the classification
against the content of the documents in the prosecution, you see. In
other words, simply stamping it would not make it prima facie ; would
you say ?
Mr. MoInernet. Not even that.
Senator McMahon. It would not ?
Mr. McInerney. No, sir; as you probably saw in the courtroom yes-
terday, up in your home State.
Senator McMahon. About Adler?
Mr. McInerney. The Adler judge ruled that the fact that he be-
longed to an organization that had been classified as subversive by the
Attorney General — that classification by the Attorney General— was
of no evidentiary value.
STATE DEPARTMENT EMPLOYEE LOYALTY INVESTIGATION 989
Senator McMahon. It would have to stand on its own legs — would
it not — as proof of its seriousness, and its right to that classification ?
Mr. MclxERNEY. Yes, sir.
Senator McMahon. Let me ask you : This case, before it was finally
disposed of, I suppose was the subject of frequent conferences between
you and other officials o fthe Department, including the investigative
branch ?
Mr, McIxERXEY. AVell, I want the Department to assume the re-
sponsibility for this case, and I am not — while we pick up from the
investigative branch on this case, the record won't show that, and
I want it known that the decision was that of the Criminal Division,
and that of the Attorney General, that everything that was done in this
case was approved by the Attorney General, and as you know, the FBI
expresses no view as to prosecution, they take the position that they
are evidence and information collectors, and that they have no official
view with respect to what is done with the case.
Mr. Morris. Mr. Mclnerney, may I ask a question
Senator McMahox. Just as soon as I am through. I'll tell you
when I am through.
Was this subject to any protest from the State Department, OSS,
or any branch of the Government at the time?
]Mr. McInerxey. No, sir. The State Department was very avid for
this prosecution. During that time, that summer, the State Depart-
ment was under continuous attack for spearheading this prosecution.
These people took the position that they were being persecuted, be-
cause they were expressing a viewpoint different than that of the
State Department.
Now, speaking again of Jaffe and Roth — Service made no statement,
Larsen made no statement, and Mitchell made no statement, but this
was presented by them to the public as persecution by the Department
of State, and I know the Department of State did have an interest in
this prosecution, because when we finally indicted these people, they
were disappointed that they could only get 2 years, under the statute.
Senator McMaiiox. Did they file any formal protest as to the dispo-
sition, or informal protest, as to the disposition of the case?
Mr. McInerxey. No.
Senator McMahox^. In looking back over the whole situation, Mr.
Mclnerney, I want to ask you the question — looking back over the
whole situation, having in mind the uproar that this case caused, I
know you will be free in discussing this, was there anything that was
done in the case, or left undone, and I accept, of course, the illegal
searches and seizures, that you would change?
Mr. McIx'i:rney. No, sir; nothing.
May I close this circle now to bring Jaffe into court?
We made that agreement with Jaffe's attorney, and of course he went
out from my office, and from there, on the front pages was the motion
to quash.
Senator McMahox'. It would bo interesting, if we -could have one
of those press clippings for our record.
Mr. McIxerney. I have one here. The only reason I brought it
up was to show this all happened on the one day, September 28.
Senator McMahox'. Will you let this be copied in the record and
returned to you?
Mr. McIxerx'ey. I will furnish a photostat.
990 STATE DEPARTMENT EMPLOYEE LOYALTY INVESTIGATION
Before Arant left my office, I didn't want to give him a cliance to
see the paper, and change his mind, and I thought maybe the motion
to quash might not be in the newspapers until the following day, so, I
asked him the earliest time at which Jaffe could plead, and he said,
"Why, he is in town," or "I could get him, we can plead him tomorrow."
I said, "Well, tomorrow is Saturday, and the judge won't be there,
I'm sure ; but, if I can get a judge, will you have him in ?"
So I called Judge Proctor, who was sitting, I believe, in the Crim-
inal Branch, and asked him if he would take a plea on Saturday morn-
ing, and he protested, and I explained that there were special circum-
stances, and he agi"eed to sit on Saturday morning, and he did sit, and
presumably the transcript of what transpired can be put before the
committee.
The judge imposed a fine of $2,500.
We were then left with Larsen and Roth.
Larsen's motion to quash was still unheard, and his attorney came ii\
and asked if a small fine was imposed, he would plead him. We took
the position that Larsen was a nonentity in this case, he had been cor-
rupted by Jaffe, he was penniless, didn't have any money, and we
recommended a fine of $500 for him, which, as a matter of fact, was
23aid by Jaffe.
That left Roth.
(Senator Tydings returned to the room.)
Senator McMahon. I would like to ask this question: Wlien you
reached an agreement with Arant, and then he did get out on the
street and saw the announcement by Larsen that he had filed a motion
to suppress, did you hear from him again ?
Mr. McInerney. Yes, I did, I saw him in court the following
morning.
Senator IMcMahon. Did you hear from Jafte's lawyer subsequent
to his agreement to plead his man, and before he made the plea?
Mr. McInerney. Yes, sir, I did.
Senator McMahon. In what way did you hear from him, by tele-
phone or in person ?
]Mr. McInerney. I met him in court.
Senator McMahon. Saturday morning?
Mr. McInerney. In district court, Saturday morning, in Justice
Proctor's chambers, or Justice Proctor's courtroom.
Senator McMahon. Wliat did he say ?
Mr. McInerney. He alluded to the newspaper article which had
appeared in the newspaper after he left my office, the night before,
and he referred to me jokingly as "a son of a bitch," that I had got
a commitment out of him knowing that this motion was on file, I had
got a commitment from him knowing that he probably had the same
motion to quash available to him, and I asked him, "Are you going to
stay hitclied," and he said he would.
Now, I am not pretending to quote his exact words, but he agreed to
stand by his commitment to plead.
Senator McMahon. He did?
Mr. McInerney. He did.
Senator Lodge. Has the FBI continued to watch him, in view of his
being an espionage agent — Jaffe ?
Mr. McInerney. I would certainly say so.
STATE DEPARTMENT EMPLOYEE LOYALTY INVESTIGATION 991
Senator Lodge. Thej^ haven't got enongh yet to indict him for
espionage ?
Mr. McInerney. They consider that when he comes to the edge of
a prosecution. They usually center their efforts. However, on these
cases, we get the reports irrespective of prosecution, and I haven't
looked at Jalle's file, but I know we have received and are receiving
information on Jaffe. I learned of the indication that he may have
been an espionage agent in connection with another matter, not out
of his own file, so I don't know the status of his own file.
Senator Lodge. Mr. Chairman, it seems to me that the correct pro-
cedure, and I stand to be corrected if I am wrong, I have no experi-
ence in these matters, but — that it would be for us, Mr. Morgan, to
get the copies of all these documents in the Amerasia case, and take
possession of them.
Senator Tydings. I agree entirely with you, and I will ask Mr.
Morgan, through his staff, to ascertain where they are and to get them
if possible and, if you have any trouble and I can be of help in getting
them, let me know and I will do everything in my power to get them.
Mr. McIxERXEY. I think there will be four sets.
Senator Tydixgs. I think we have done one job, maybe we can do
another.
Senator IVIcMahon". If I may suggest, I am looking for a way to
do our full duty, and yet leave the burden as much as possible, in view
of our other duties — see if we cannot make it a little lighter, and it
would seem to me now we have a general over-all view of the Amer-
asia case
Senator Tydings. Would you allow me to interrupt you ?
Senator McMahox. Yes.
Senator Tydix^gs. The only reason I state this is, because you ought
to know this, and the statement I assume from your premise that you
are going to make: I have just received another letter from Ssnator
McCarthy, while I was over to get this, and he wants Mr. Donovan,
and somebody else whose name escapes me, summoned. Of course,
he gave it out to the press ; thev all had it before I got it.
Senator Lodge. William J. Donovan?
Senator Tydix^gs. Yes. Of course, what Bill Donovan will tell is
what Mr. Bielaski told ; they were turned over to him, and he turned
them over to Stettinius. If the committee wants it, we can go for-
ward with that, but we will be here until September if we don't start
to put our targets up.
Senator ^IcMahox'. Let me make my statement— I am glad that you
interrupted me.
Of course, Ave now know that no matter what we do there are cer-
tain members of the committee that are going to be scandalized and
slandered. I am not, therefore, going to give him another excuse.
That is all he needs, he doesn't really need that, to do that by refusing
Donovan at this time. I would rather reserve on that by suggesting
this : That our staff, with this view tliat we have taken, all day, and
the over-all picture, get hold of the documents, and I think Mr.
McInerney was right when he said they had been made available to
the House, and I assume if you got that permission for the 81 from
the President, those things will be made available to this committee,
and I would like this staff start and go over there, start from the first
992 STATE DEPARTMENT EMPLOYEE LOYALTY INVESTIGATIOIST
page and go to the last page of the record in this case, to give us an
evahiation of what they believe it to be, with the recommendation of
the witnesses that they feel should be called, in view of their evalua-
tion of the evidence, and in view of the evaluation of Mr. Bielaski's
and Mr. Mclnerney's testimony, and, pending that, the Amerasia case,
as far as the committee is concerned will wait pending the return of
this report by the staff, just stay in status quo.
Is that a reasonable suggestion?
Senator Tydings. Well, let me put that in a little simpler form,
and see if we can all agree on it.
What you w^ant is to first get all the documents concerned in this
matter; secondly, what you want is to have our staff start at page one
and go through them all, and make their evaluation. At any place