Hoary 16, 1970

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Page Five

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Dr.

Spock and

the

rule

By RON LANDSMAN
Managing Editor
TJ7HERE IS NO more important base for the
continuing practice of democracy as we
understand it than the "even-handed admin-
istration of justice," or, as some would call
it, the rule of law.
The concept of the rule of law is much
maligned today by the current mania of
conservatives and backlashers to espouse
"law and order" as the simple solution to
America's ills. Rather, the rule of law-In-
cluding the limitation of the actions of the
government as well as of citizens-is crucial'
for a society that hopes to ensure its mem-
bers maximum freedom, both political and
social.
The Trial of Dr. Spock, J e s s i c a Mit-
ford's essay-report on the government's
prosecution of Benjamin Spock and four
others for allegedly violating Selective Serv-
ice laws, never gets beyond the assumption
that the government and its legal system is
worthy only of contempt. Throughout the
entire book she is shrill in her anger toward
the government, occasionally funny but
more often picayune. The government IS the
prosecution of Dr. Spock. With such an
attitude Miss Mitford will not be able to
explore the deeper implications of this un-
, fortunate political prosecution.
1fIE RULE OF LAW that Miss Mitford
chooses to ignore can be viewed on two
levels, as seen in their extreme representa-
tives: the cop on the beat and the Attorney
General of the United States. In their hands
is the promise or denial of the rul of law, of
the governance of men's affairs by a pre-
viously agreed upon set of groundrules and
procedures for change.
(In setting out this thesis, I must ac-
knowledge that acceptance of the rule of
law is based largely on the laws themselves,
especially the U.S. Constitution. It is, as
one University law professor has noted, a
minoritarian document, going to great
lengths to protect individuals and minorities
from the ravages of the federal government
and the majority. It is only with this type of
basic document that the rule of law can be
so heartily advocated.)
Two recent works make very clear in
' their own ways the threat of policemen or
attorneys general who do ,not have a com-
plete commitment to the impartial and
nonpolitical execution of the law.
The role of the police, the movie Z makes
all too clear, is simply nothingless than in-
dispensable for the maintenance of political
A freedom and stability:,
You are confronted by a mob that would
beat you to death for the speech you just
gave. Faced with such simple violence, vio-
lence you are neither ilined nor equipped
to counter with violence of your own, you
naturally turn to the official agent empow-
ered to use force for maintaining the peace,
the police. Where do you go when the police
arranged to have the mob there?
This was the heart of Z, which concerned
the 1963 Lambrakis affair in Greece. The
assassination of a popular politician was in-
vestigated all the way to the police -and mili-
tary officials who had arranged it.
Z concluded, powerfully and melodra-
rmatically, with the imprisonment of the
prosecutor and those who helped him, while
the indicted or convicted military and police
officials were exonerated by the military
junta that seized power in the interim.
Z displayed the need for the police to per-
' form their simple and most basic role as
nonpolitical agents of the government. They
enforce the laws protecting my person what-
ever my politics or the politics of my assail-

ant. This is the essence of the police as the
maintainers of the peace and the protectors
of liberty-political neutrality.
SIMILARLY, if. the attorney general can't
or won't, for political reasons, enforce
laws, there is simply no recourse for the pri-
vate citizen. If he is helpless before powers
that threaten him, he is no longer free.
(John Mitchell's attempt to stall integra-
tion in the South was stymied by the courts,
but that was in a series of suits initiated
under another attorney general. The courts
are useless if the attorney general refuses to
act, such as against organized crime in the
North or violent racist local administrations
in the South.)
The danger of the "politicalization" of
justice, a serious threat under John Mitch-
ell, was detailed in a three-part series by
Richard Harris in New Yorker magazine last
November. Although clearly a partisan of


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Ramsey Clark, Harris makes it all to be-
lievably clear that Mitchell does not regard
politics and administration of the law as dis-
tinct tasks that should, out of respect for.
the law, be kept separate. Rather, adminis-
tration of the law is just another political
weapon to be used when politics calls.
This politicalization of the Justice Depart-
ment can mean that indictments are sought
not just against those who violate the law,
but against those who are politically dan-
gerous or annoying, and who the prosecutor
may be able to pin with some violation if
he looks hard enough and long enough. The
'Chicago 8' (now less one because cf con-
tempt of court) conspiracy indictment based
on the riots around the 1968 Democratic
National Convention is the most glaring
example.
BUT IF RAMSEY CLARK by contrast was
such a nonpolitical attorney general, as
most legal experts feel, why did he indict
Spock, the Rev. William Sloan Coffin, Mitch-
ell Goodman, Marcus Raskin and Michael
Ferber? Miss Mitford says it was a political
trade, pure and simple, but it is a weak
answer, at best, and perhaps inaccurate.
This is most unfortunate, for the origin of
the Spock indictment is' a serious matter.
Miss Mitford's search for the origins of
the the indictments begins and ends with
John Van de Kamp, the head of the Justice
Department unit looking into Selective Serv-
ice Act violations. Through Van de Kamp
she paints a political picture of the Spock
indictment:
If one believed him literally, (she
wrote), one would have to infer that Dr.
Spock and the others were offered up in
an unabashed response to political pres-
sures, asa sacrifice to assuagethe feel-
.ings of an irascible old man (Selective
Service director Louis Hershey) who
had just been publicly rebuked by the
Department of Justice for overstepping
his authority and becoming an embar-
rassment to the Administration.
Van de Kamp's investigation centered on
Spock and other anti-war protestors after
Clark forced Hershey to moderate his in-
famous order to draft boards to reclassify
anyone who participated in an "illegal"
anti-war demonstration, this from Van de
Kamp's own statement.
As for the role of the White House in the
indictments, she is far less convincing:

of law
he did not discuss this one beforehand with
the President."
While Clark may have filed the case with-
out Lyndon Johnson's specific knowledge,
that does not mean Johnson wasn't involved.
One high ranking department official noted
there was considerable pressure to go after
someone in the anti-war movement, "some
of the hairy, foul-mouthed kids," as he deli-
cately put -it. He never said, and Harris
never asked, if the President was one of
those exerting pressure. Harris is too pro-
Clark to question very deeply what really
was involved in the decisions leading up to
the Spock Indictment. But that simply
makes it all the more incumbent upon writ-
ers such as Miss Mitford to do more than
gloss over what is clearly a crucial question
of politics and law. It is unfortunate Miss
Mitford failed to answer these questions
adequately.
Spock and his co-defendants were charged
with conspiracy to aid, abet and counsel
draft resistance, not with the substantive
crimes of fading, abetting and counseling
draft resistance themselves. It is a crucial
distinction. Miss Mitford is at her cutting
best as she harps on the apparent inequities
of conspiracy laws.
Clarence Darrow she quotes calling con-
spiracy a "worn-out piece of tyranny, (a)
drag-net for compassing the imprisonment
of men whom the ruling class does not like."
Supreme Court Justice Robert Jackson calls
It an "elastic, sprawling and pervasive of-
fense," and also notes that "a conspiracy
pften is proved by evidence that is admis-
sable only upon assumption that conspiracy
existed."
Conspiracy, Judge Learned Hand says, is
"the darling of the modern prosecutor's
nursery,
Briefly, the following applies to conspiracy
law:
-It involves only agreement, not the ac-
tual commission of a crime.
-In the area of speech, it may, as in the
Spock case, be two steps away from actual
overt crimes, such as the conspiracy to aid,
counsel and abet draft resistors, or conspira-
cy to advocate the overthrow of the govern-
ment,
-Actions need not be covert to be a con-
spiracy.
-Conspirators need not even know each
other to be members of the same conspiracy.
-Each member of a conspiracy is liable
for all the actions of his fellow conspirators.
(This fact, however, was disallowed by the
U.S. appeals court in the Spock case because
of questions of free speech.)

.l

The way he (Van de Kamp) tells it,
George Christian, White House press
officer, 'called up the Department of'
Justice in a routine way that afternoon
to inquire if there was "anything new,"
and was told, "Oh yes! We've just in-
dicted Dr. Spock and four others for
conspiracy."
While her allegations of political pressure
contain more than a grain of truth, the
Harris series in the New Yorker manages to
be much more informative on the trial acci-
dentally than she was intentionally.
Attorney General Clark, Harris wrote in
the New Yorker, "had been determined
(from the start of his career in the Justice
Department in 1961) to prevent politics
from influencing the work. of the Depart-
ment. His determination was so firm, in
fact, that after he took over as Acting At-
torney General, on October 3, 1966, he re-
fused to consult with the President before
filing any suits, whatever their political
implications."
And the author noted about the Spok
case in particular, "As with all the other
cases that Clark filed as Attorney General,

MISS MITFORD was entertaining in mak-
ing light of these laws, and though it'
was well done, it was an attack that was
misguided at best.
"How far could the government rush its
conspiracy theory?" the author asks. Spock
wrote Dr. Spock on Vietnam for Dell Books
and Miss Mitford confronted the Justice De-
partment's John Van de Kamp, about it:
Could not Dell Publishers and the
booksellers who handle the book be
prosecuted as part of the conspiracy?
He mulled over it for a while. "It's a
question," he said finally-"I imagine
Dell, technically, could be liable, con-
ceivably they could be prosecuted."
"And the booksellers?" "Yes, and the
booksellers."
Would Miss Mitford be happier if the
government did prosecute Dell as a conspir-
ator? Clearly not. She is simply trying to
condemn the government, with a wide sweep
of innuendo, for what it didn't do, and
. clearly had no intention of doing. Why,
then, the fuss?
And what of the conspiracy law and the
government's use of it? Would she be any
happier if the government had prosecuted
not for conspiracy, but for actually aiding
and abetting draft resistance? She wouldn't,
of course, she would instead rail against the.
government for prosecuting under the sub-

stan'tive sections of the Selective Service
Act.
This constant harping against artificial
targets consumes much of Miss Mitford's
energy, and -unfortunately leaves both her
and her reader too fatigued at the end of
the book to appreciate what she really
wants to say.
THE TRIAL OF DR. SPOOK is not en-
tirely without redeeming features. Where
Miss Mitford's own politics obscure, her su-
perb writing and humor do much to clarify.
She paints exquisite little portraits of each
of the defendants by way of opening the
book, brief sketches of the five men that
do much to develop the reader's sympathy
and to make the explanation of the trial
to follow much clearer.
She also has a deft touch at letting
basically absurd situations speak for them-
selves. The Justice Department's faulty
handling of the announcement of the in-
dictments she works for all its worth:
...Dr. Spock had been out all day
on various errands and could not be
reached by telephone. Coming home in
the afternoon on the subway he saw a
headline over his seatmate's shoulder:
SPOCK INDICTED. "I was dying to
read it, but the man kept twitching it
away just out of my sight. I felt like
saying to him, 'But that's ME! I want
to see what I've been indicted for!'"
Michael Ferber, who grades English
papers at Harvard University, sat down
to correct his indictment when it ar-
rived. Offended by the redundancies
("combine, conspire, confederate, and
agree"), the split infinitives ("to un-
lawfully, knowingly, and willfully coun-
sel, aid and abet"), the misspelling of
"fabricoid" (spelled with a "k" in his
dictionary), and the word "co-conspir-
ator," which he could not find in any
dictionary, he gave the document a C-,
and wrote in the margin, "You should
do betters See me." Which they even-
tually did.
But she is sadly lacking elsewhere. Her
coverage of the trial is so biased that it is
uninformative. In relating the testimony of
Marcus Raskin, Miss Mitford wanders from
the hassles that went on while, he was on
the stand (applause as a measure of one's

role in a conspiracy was much at issue) to
his effect on the prosecutor ("Raskin even
outdid Goodman as a Wall-irritant"). But
never is Raskin probed as a witness. And
he wasn't, most other reports indicate, be-
cause he was in fact a very bad witness.
Such uncompromising devotion on Miss
Mitford's part is admirable, but more in a
Boy Scout than a political writer.
NOT ONLY is Miss Mitford grossly biased,
she is insensitive to what is going on
before her in the courtroom, that despite
the fact that her lawyer-husband helped,
her on the book and, that University law
Prof. Joseph Sax, who covered the trial for
The Daily, was a constant colleague of hers
during the trial. Miss Mitford's coverage is
most unimpressive when contrasted with
what Prof. Sax himself wrote while cover-
ing the trial for The Daily.
He traced a fine legal technique Dr.
Spock's attorney, Leonard Boudin, used on
the jury. In calling a series of expert wit-
nesses to the stand, Sax noted, Boudin was
only partly concerned with the case on ap-
peals. As well, Sax wrote, he was "signalling
to the jury that the nature of the war is a
critical issue to the defendants, and he is
trying to make them curious about what
they are being prevented from hearing. "If
the jury becomes curious enough, and re-
sentful at the prosecutor whose objections
are stopping them from hearing the evi-
dence, the jury may come to believe that
the excluded evidence is more helpful to the
defendants' case than would be the situation
if it were admitted."
This is the legal system Miss Mitford la-
belled fettered, creaky and irrational, Per-
haps. But if she is going to confront it, she
ought to understand it, which is not the
case, save for the grand Perry Mason-allu-
sions she likes to draw. And although she
would go so far as to seek out thew jurors
themselves after the trial, she is ill-prepared
if she doesn't understand what the attorneys
did to them in the courtroom.
The author is, in fact, rather self-
righteous about the layman's perception of
the courts. She noted with some condescen-
sion that most newspapers, including the
New York Times, ignored or did not realize
that Spock and the others w/ere charged
See BOOKS, Page 7

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