Civil Liberties and the Korean War

Date01 May 2018
DOIhttp://doi.org/10.1111/1468-2230.12339
Published date01 May 2018
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THE
MODERN LAW REVIEW
Volume 81 May 2018 No. 3
Civil Liberties and the Korean War
K. D. Ewing, Joan Mahoney and Andrew Moretta
This article addresses the unsuccessful attempts to suppress free speech during the Korean
War, and in particular explains the attempts to silence three reporters of alleged atrocities by
United Nations forces. In the absence of carefully targeted legislation, the three individuals –
Alan Winnington (a journalist), Monica Felton (a women’s movement activist) and Jack Gaster
(a solicitor) - were threatened with or investigated for prosecution for treason or sedition, and
Winnington was unable to renew his passport until 1968. Drawing heavily on archival sources
(including MI5 files, which unusually fail to redact the identity of one of the lawyers who
was reporting to Special Branch about Gaster’s activities), the article explores the threat to civil
liberties from the administrative as well as the legislative and the judicial power of the state. The
article concludes by drawing contemporary parallels, and highlighting the continuing relevance
of the writings of Winnington, Felton and Gaster.
‘Democracies can overdo their respect for liberty of speech in these
circumstances’.1
INTRODUCTION
Whatever the textbooks, lawyers and judges may say about free speech, few
governments will tolerate for long uncomfortable truths being told to expose
lies and deception. Restrictions on speech come in multiple forms, whether
prior restraints to prevent things being said, or penalties after the event to
punish for things having been said. These restrictions may relate to speech of
different kinds, our tolerance of restraint depending to a large extent on the
subject-matter: in liberal societies political speech is generally thought to be
worthy of the highest protection. But apart from traditional questions of form
and substance are the less traditional questions of method. By what means does
the state seek to restrain or punish those who speak out of line?
The use of legislative and judicial powers respectively is of course the method
of restraint most familiar to lawyers, but they are not the exclusive means
Respectively, School of Law, Kings College London; Southampton Law School, University of
Southampton and School of Law and Social Justice, University of Liverpool.
1 TNA, PREM 8/1525 (Emergency Powers, Minute by Attorney General, 25 July 1950).
C2018 The Author.The Moder n Law Review C2018 The Modern Law Review Limited. (2018) 81(3) MLR 395–421
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Civil Liberties and the Korean War
by which the state seeks to silence its critics. Although there are significant
statutory and common law restraints on freedom of expression, in the case
of political speech it may nevertheless not be possible easily to secure the
necessary legislative or judicial approval for the imposition of additional limits.
Also important but insufficiently analysed is thus the administrative power of
the state, by which those clothed with legal authority use that authority to
restrict speech for partisan ends. One of the most important examples of the
abuse of such power is provided by the Korean War, which is quickly losing its
sobriquet as the ‘forgotten war’.2
The Korean hostilities started on 25 June 1950 when the Peoples’ Army
(equipped by the Soviet Union and supported by China) crossed the 38th
parallel. The United Kingdom sent 90,000 troops as part of an American-led
United Nations peace-keeping force, despatched under the authority of UN
Security Resolution 84, ostensibly to restore peace and stability to Korea.3
This was a brutal conflict in which over five million civilians and soldiers from
several countries perished, including an estimated 20 per cent of the North
Korean population, before an armistice was signed on 27 July 1953. Britain’s
involvement – author ised by Attlee and continued by Churchill – led to some
1,000 British military personnel being killed, with many more wounded or
imprisoned in what were extremely harsh conditions.
It has been argued forcefully that in order to understand the situation in Korea
today, it is necessary to understand what happened in the 1950s.4The atrocities
committed by the US-led UN forces are beyond dispute, and can hardly be
a matter of surprise g iven the calculated barbarism only five years earlier, as
anyone who has visited the Hiroshima Peace Park and Museum will be only
too well aware.5Almost as shameful as the atrocities in Korea were the extreme
steps taken to silence and eventually to punish those who sought to expose
them. In this article we tell the story of three of the most prominent critics: a
journalist (Alan Winnington), a women’s movement activist (Monica Felton),
and a solicitor (Jack Gaster). Both Winnington and Gaster were Communists,
but Felton was a member of the Labour Party.6
A superficial examination of the record might suggest that both the Attlee and
Churchill governments responded to provocation with commendable restraint:
2 ‘Britain’s Forgotten War’ BBC News 20 April 2001.
3 The leading and definitive work is B. Cumings, The Korean War: A History (New York, NY:
Modern Library, 2010). For a different account, see M. Hastings, The Korean War (New York,
NY: Simon and Schuster, 1987).
4 B. Cumings, ‘Americans once carpet-bombed North Korea. It’s time to remember that past’
The Guardian 13 August 2017. See also, M. Hasan, ‘Why Do the North Koreans Hate Us? One
Reason – They remember the Korean War’ at https://theintercept.com/2017/05/03/why-do-
north-koreans-hate-us-one-reason-they-remember-the-korean-war/ (last accessed 15 January
2018). This piece includes some powerful contemporary eyewitness accounts, including from
Justice William Douglas of the US Supreme Court.
5 ‘Calculated’ in the sense that Hiroshima (like Nagasaki) was chosen as an atomic bomb site
because of the density of its population, in order to increase casualties.
6 Unlike the United States and a number of other countries, the United Kingdom did not ban
the Communist Party, which indeed had two MPs elected in 1945. In the 1940s, defence of
the realm regulations were used by the wartime Coalition br iefly to suppress the Daily Worker,
the Communist Party’snewspaper. See W. Rust, The Story of the DailyWorker (London: People’s
Press Printing Society, 2010 ed).
396 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(3) MLR 395–421

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