"Till the detail of surface is in accord with the root in justice": treason, insanity, and the trial of Ezra Pound.

• Author: Hirsch, Milton

1. INTRODUCTION

   Whether Ezra Pound was one of the best English-language poets of the twentieth century is open to debate. (2) Whether Ezra Pound was one of the most influential men of letters of the twentieth century is not. "[F]ew individuals ... ha[ve] left such a strong mark on so many aspects of the twentieth century: from poetry to economics, from theater to philosophy, from politics to pedagogy, from Provencal to Chinese. If Pound was not always totally accepted, at least he was unavoidably there." (3) Unavoidably there, and unavoidably--no, intentionally, even enthusiastically--controversial.

   For most of his adult life Ezra Loomis Pound, Idaho-born and Pennsylvania-reared, was an American abroad. (4) At various times he lived in Venice, London, Paris. (5) In 1928, he settled in Rapallo, in Italy. (6) When World War II broke out, he chose to remain there. Beginning in October of 1941, and through at least July of 1943, he made a series of English-language broadcasts from Rome for the Mussolini government, which were directed to English and American audiences. (7)

   In 1945, Pound was taken into custody by American military authorities and held at the U.S. Army Disciplinary Training Center in Pisa. (8) In November of that year he was flown to Washington, D.C., to be tried on charges of treason arising out of his radio speeches. (9)

   Section II of this article considers the case against Pound. (10) His was one of a small number of American treason prosecutions arising out of the Second World War. Unlike the other treason prosecutions of that era, however, the charge of treason against Pound was never tried on the merits. Pound was determined to be mentally incompetent to stand trial. He was then held at St. Elizabeth's Hospital for the Criminally Insane for nearly thirteen years--untried, unconvicted, and presumed innocent. (11) During that time he was visited by the great literati of the English-speaking world: by T. S. Eliot, Thornton Wilder, Marianne Moore, Robert Lowell, Katherine Anne Porter, Louis Zukofsky, Langston Hughes, Marshall McLuhan, and others. (12) During that time he completed The Pisan Cantos, in many ways his greatest poetic achievement. (13) He also produced important poetry translations from a variety of languages.

   Section III of this article considers in detail the adjudicatory process by which Pound was determined to be incompetent to stand trial, and the aftermath of that determination. (14) A disclaimer is appropriate here: Neither section III in particular, nor this article in general, is intended as an authoritative treatment of Pound's complex life or more complex work. Such a treatment would be beyond the scope of this article, and far beyond the scholarship of its author. Pound's life and work, and more particularly that strangely fascinating part of his life and work that led to his indictment, culminated in his trial, and had as its denouement his incarceration in and then liberation from St. Elizabeth's, are discussed not in any attempt to offer a definitive critique of Pound the man or Pound the poet, but as a jumping-off point to consideration of the law of criminal incompetence.

   That subject matter is considered in section IV, which poses a hypothetical question so thoroughly hypothetical it could be posed only in a law-review article: How would Pound's case be treated today? (15) That statute and case law more clearly define the procedural law governing, and the procedural rights afforded, the putatively incompetent criminal defendant today than was the case in Ezra Pound's era is a safe generalization. That said, it is far from clear that Pound was treated worse at the hands of the law than a defendant similarly situated would be treated today. Generalizations are no more applicable to Pound the litigant than they are to Pound the poet.

2. THE PUTATIVELY TREASONOUS SPEECHES

   If the goal of Pound's radio speeches was to persuade American troops to lay down their arms, he was unlikely to have succeeded even if he had been widely heard. His speeches were wild, meandering rants about anything and everything (16)--so much so that the Italian government eventually began to suspect (incorrectly) that he was actually transmitting coded information to the allies. (17) His one consistent motif was an impassioned hatred of Jews--a hatred to which he gave vent in language that would have made Hitler blush. (18)

   Prior to World War II, a certain genteel anti-Semitism was the norm among the European clerisy in whose company Pound traveled. (19) Pound's friend, fellow poet, and fellow American expatriate, T. S. Eliot, for example, was unhesitating in his own use of anti-Semitic imagery. (20) When the Nazis made the scapegoating and elimination of the Jews their cynosure, however, and when the enormity of the Holocaust came to light during and after the war, anti-Semitism became temporarily indiscreet and, for those whose sons and brothers were fighting against the Third Reich, unpatriotic. (21)

   Pound, however, had his own ideas of discretion, and of patriotism. Although he chose to remain in Italy during the war, he somehow saw nothing anomalous about his continuing to conceive of himself not only as an American, but also as a patriotic American. (22) Consistent with the aphorism that "the enemy of my enemy is my friend," many Americans were willing to suspend any feelings (or at least any expression of feelings) of anti-Semitism during the war against Hitler and all that he stood for. (23) Many Americans--but not Pound.

   Apart from his shameless racism and the erratic, meandering quality of his analysis of events, Pound's radio lectures were also characterized by his affectation of a melange of speech-patterns, including the speech-pattern of a simple western frontiersman. When he was not drowning his listener with quotations from Latin, ancient Greek, and modern European languages, he made a point of dropping the "g" from participles, of rendering "well" as "waal" and "always" as "allus." (24) The effect must have been more bewildering than persuasive.

   That America had no business in the war, or at least no business on the Allied side of the war, was something Pound was sure of. America's participation in the war he seemed to attribute entirely to President Franklin D. Roosevelt, who in turn was, in Pound's view, the stooge of an international Jewish/bankers/usurers conspiracy. (25) Thus, "the United States ha[s] been for months ILLEGALLY at war, through what I consider[] to be the criminal acts of [the] President...." (26)

   The American nation will never win a war ... as long as the Frankfurter, Lehman, Morgenthau, Roosevelt amalgamation is settin' on, the top of our government, not if the war goes on FORTY years .... A government worthy of the name from 1932 onward WOULD have made sure of the Caribbean defenses, instead of dragging Japan into war. (27) The first step toward a bright new world, so far as the rising American generation is concerned, is to get ONTO Roosevelt and all his works, and the second is to ELIMINATE him and his damn gang from public life in America. The alternative is annihilation for the youth of America, and the END of everything decent the U.S. ever stood for. (28) For these and many like-kind remarks Pound was accused of treason. (29)

   The crime of treason is the only one defined by the Constitution. (30) It consists either in waging war against the United States, or in "adhering to [America's] enemies, giving them aid and comfort." (31) This definition affords the citizen wide latitude of action, and even wider latitude of speech.

   A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions, which do aid and comfort the enemy-making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength-but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason. (32) But this is not to say that conduct such as Pound's, which certainly consisted in "speech critical of the government or opposing its measures," could not be treasonous. (33) Such speech could be treasonous, and in cases litigated after the war such speech was found to be treasonous. The prosecution of Herbert Burgman was a pattern for that of Pound. Burgman was a member of the U.S. embassy staff in Berlin at the time when war broke out. (34) When the staff was evacuated, Burgman chose to remain in Germany as Pound had chosen to remain in Italy. (35) From and after February 1942, Burgman

   prepared ... manuscripts containing pro-German propaganda, and made recordings of this material, which was broadcast to the United States by means of short-wave radio. The aim of the broadcasts was to sow discontent with the Government of the United States, to impair morale of the armed forces, and to create dissension between the American people and the people of the allied countries. (36) After the war, Burgman was tried and convicted for treason; he moved for a new trial on the grounds that "the preparation and making of speeches does not, in itself, constitute treason." (37) The court made short shrift of this contention. Although Burgman's conduct consisted entirely of speech, "[w]ords uttered with intent to betray one's country may well constitute treason." (38) Burgman had "accept[ed] employment from the enemy for the purpose of preparing speeches to be used in a program of psychological warfare designed by the enemy to weaken the power of the United States to wage war successfully...." (39) Such speech was not protected by the First Amendment or any other provision of law. "Acting as a radio commentator...