6. "With Evil Eye and Uneqal Hand"

When Oliver Field of AMA's Bureau of Investigation turned down the U.S. attorney's suggestion that the medical association plant a doctor-spy in the Church of Scientology, he did so because such a procedure was contrary to AMA policy.

He knew from experience that there was a better, a more effective way. In a communication to an Ohio scientist who was thirsting for Hubbard's blood, he wrote: "We notice in copies of correspondence you enclosed that Dr. Milstead of the Food and Drug Administration has indicated that investigation is going forward so far as the device the 'E-meter' is concerned, and perhaps that activity is the only immediate hope of achieving any interference with the activities of the Scientologists." (Emphasis added.)

At the time Field wrote the letter just quoted, the FDA already had a secret agent named Taylor Quinn enrolled in the academy of the Founding Church of Scientology in Washington. His assignment was to entrap the Scientologists by gathering material that would purport to

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show that the E-meter was used to diagnose and treat disease.

In an earlier chapter, I have drawn attention to the fact that almost from the time it was set up as a federal agency, the FDA has acted as the enforcement arm of the American Medical Association. Under the guise of combatting "quackery", and using the awesome police powers of the government, FDA commissars have ruthlessly persecuted any individual or organization whose views and practices were inimical to those of orthodox medical dogma. Victims of this court-supported inquisition have included all kinds of "heretics" from lecturers on nutrition to brilliant and advanced medical researchers such as Dr. Andrew Ivy and Dr. Wilhelm Reich.

At the same time, the egregious quackery of AMA-approved psychiatry, with its fraudulent diagnoses and inhuman treatments, has been permitted to flourish.

Nothing more effectively illustrates how completely the reins of government have escaped the hands of the people in America than the operation of federal agencies such as FDA, IRS, FTC and others.

These bureaucratic hierarchies have become, in practice, sovereign rulers, with almost limitless powers to impose their will upon the people. Acting in direct conflict with America's traditional philosophy of self-rule, they combine within a single administration all three powers of government - legislative, executive and judicial. Thus, they not only make their own laws, but they interpret and enforce them. They have the power, if not the right, to indict the citizen, prosecute him before their own courts, and mete out punishment. This does not mean, however, that their despotic rule is based upon clearly established statutes or well-settled precedent cases. Instead, a defending legal counsel is faced with a huge pandect of complex, crossindexed, vague and often ad hoc regulations.

Such confusion and ambiguity is not accidental. As Hannah Arendt has aptly observed: "Thus does the

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bureaucrat shun every general law, handling each situation separately by decree, because a law's inherent stability threatens to establish a permanent community in which nobody could possibly be a god because all would have to obey a law." 1 (p. 2 16)

Having become arrogant overlords rather than civil servants, it is inevitable that federal functionaries would be unresponsive to, when not openly contemptuous of, criticism, whether it comes from individuals, the press or even from the Congress itself.

When a Senate sub-committee was investigating FDA practices in 1965, Senator Edward V. Long, chairman, reported that FDA officials had been unco-operative, misleading and evasive. He said that throughout his committee's inquiry into the agency's activities, the one thing that stood out clearly was the rejection of any suggestion that an improvement in the bureau's procedures was called for. FDA regarded itself as above reproach.

After three full days of Senate hearings which brought to light wholesale misconduct by FDA dictocrats, Senator Long publicly reprimanded the agency in the strongest language possible. Instead of shouldering their responsibility to protect the nation's health, the committee chairman said, "We find the agency engaged in bizarre and juvenile games of cops and robbers. Instead of guarding the national health, we find an agency that is police oriented, chiefly concerned with prosecutions and convictions, totally indifferent to the individual's rights, and bent on using snooping gear to pry and invade the citizen's right of privacy."

FDA's reaction to the Senate probe was haughty disdain. An agency spokesman indicated his contempt for the proceedings when he told newsmen that witnesses who had given testimony before the committee were "well-known quacks and crackpots" (the bureaucrats' common designation for anybody who challenges their despotic rule).

When we consider this thumb-to-nose attitude of FDA

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hierarchs towards a committee of the U.S. Senate, it should occasion no surprise to learn that five years later, one of Ralph Nader's study groups who scrutinized the agency's operation, found the same high-handed abuse of power and dereliction of duty.

In their published report, The Chemical Feast, the investigative team of seventeen students and recent graduates in the fields of medicine and law faulted the food and drug authorities for "truly massive deception" of the public and for "bureaucratic atrocities" in their enforcement procedures.

"It is fair to say," commented James S. Turner, who wrote the final report, "that none of the students expected to find in the FDA the shocking disarray and appalling failure of responsibility that their investigations revealed almost daily. As the number of altered documents, misrepresented facts and suppressed studies began to mount, the students' scepticism changed to a deep doubt about all the agency's activities, and finally ended in the conviction that most agency efforts were a failure."

The Nader research group accused FDA of expending an inordinate portion of its limited resources on "great quack campaigns", which inevitably focus on the wrong targets, such as the work of Dr. Wilhelm Reich, the health food industry and even, in the case of Scientology, on religion.

The single-minded vigour of the FDA's so-called antifraud campaign, the report added, "has led the agency into an excess of law enforcement, including the use of snooping, harrassment and prying techniques that it could not effectively defend against charges from Congress and the general public".

The "happening" which occurred at 19th and R. Streets, Washington, D.C. on the afternoon of January 4, 1963 might well have been an episode staged for the filming of a B-film about gang-busters.

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Escorted by armed police on motor-cycles, two large vans pulled into the "scene", blockading the streets around the area. Several plainclothes-men got out and began moving in on the buildings at that address.

Only the sound of gunfire was missing. That was because the men with badges and guns had not surrounded a building in which dangerous criminals had holed up, ready to shoot it out with police.

They were in the act of raiding a church.

No matter what tortured legal arguments or bureaucratic sophistry are offered to justify or explain that odious incursion, the stark, simple truth must never be lost sight of:

On January 4, 1963 in Washington, a group of U.S. Marshals and deputized longshoremen, acting for an agency of the federal government, desecrated, looted and terrorized a religious centre.

That is now a historical fact.

I have included an account of that incident in two of my previous books because I regard it as an ominous milestone on the road to totalitarianism in America. Ominous because the arrogant myrmidons who perpetrated it did so with impunity; and ominous because in the long and costly legal battle which the Church has had to wage in defence of a right guaranteed by the First Amendment of the U.S. Constitution, they have fought alone.

But let us return to the scene in progress.

According to sworn affidavits of eye-witnesses and victims of the affair, the raiders charged through the main entrance beside which was a large plaque reading: FOUNDING CHURCH OF SCIENTOLOGY. In jackboot Gestapo style, they "burst into the church offices ... and loudly if incoherently demanded and threatened all in sight; observed absolutely no courtesies except for not actually shooting the guns they carried, and denied to the Church administrators any opportunity to arrange that students and Church members not be disturbed, upset or terrorized.

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"Showing no legal warrant, the agents and heavy deputies pounded their way up stairways, bursting into confessional and pastoral counselling sessions, causing disruption and violently preventing the quiet pursuit of the normal practice of religious philosophy. They broke into classrooms.

"They seized all the publications and all the confessional aids called E-meters they could find in desks, in ladies' handbags, in students' briefcases and in the session rooms." 2 (p. 11)

"Gradually, the agents removed from the church to the waiting vans some tens of thousands of copies of over twenty Church books, texts, recorded sermons; even the Church archives were sacked. The confiscated material was handled roughly, and when ministers of the Church asked that their property be handled more carefully, the 'deputies' from Baltimore gave only sneering illiteracies for answer." 3 (P. 4)

It is quite possible that the quasi-official raiders were not troubled by conscience in thus violating Church premises because the Founding Church of Scientology did not conform to the stereotype image of a place of worship steeple, stained-glass windows, altar, pews, etc. Yet, the simple brick structure, like the earliest Quaker meeting houses of America indeed, of even the lowliest private dwelling used for religious purposes, is as inviolate under U.S. laws as the most majestic cathedral in the land.

That federal functionaries, acting in response to secret vested interests, could arrogate to themselves as they have done and daily continue to do, the right to decide matters of religious faith is but an indication of the dangerous public apathy and secular temper of our time.

What the indifferent or irreligious American public does not recognize is the fact that the primary legal principle here involved is not an attack on religion, per se. It is, rather, an attack on the First Amendment of the U.S. Constitution, which protects the freedom of the believer

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and non-believer alike and is therefore an attack on the supreme law of the nation.

During the past two decades, I have witnessed assaults not only on this pillar of American liberty, but on others as well, met with limp acquiescence by the majority of people, who speak of their cherished freedoms safeguarded by the Bill of Rights, as though such freedoms still exist. The cold-eyed fact is that despotic vandals have long since sacked and pillaged that noble edifice, which today presents to the careful observer the same picture of desolation as marble columns and crumbling pediments of the Roman Forum.

The federal judicial machinery which was intended to crush Scientology was set in motion when FDA filed in the U.S. District Court what is called a "libel of information" praying for the seizure and condemnation of the E-meter.

On the strength of that libel and without any kind of adversary hearing or prior notice of violation, judge William B. Jones ordered a warrant to be issued. Accordingly, the court clerk issued a warrant authorizing the arrest of the meters. (The layman may wonder how the U.S. Marshals could arrest an inanimate object like an E-meter; but that is the quaint legal euphemism employed and one that in the present case concealed the fact that it was a church and its adherents who were to be the real victims of the raid.)

Although in their libel of information, the FDA did not ask for seizure or condemnation of alleged labelling - that is, literature - when the warrant was issued, it also authorized the arrest of "an undetermined number of items of written, printed or graphic matter".

In the raid on the church, which was carried out as soon as FDA officials had the warrant in their hands, federal agents seized not only the E-meters, but the entire stock of Scientology books and creedal literature. An FDA spokesman later boasted to newsmen that the agency's enforcers

"With Evil Eye and Unequal Hand" / 135

had seized and carted away three tons of equipment and printed material.

Why the seizure of such an enormous amount of the Church's literature when, as the District Court itself later declared, "a single false scientific, non-religious label claim is sufficient to support condemnation"?

The answer to that question is virtually self-evident: by unlawfully confiscating a large amount of the accused's property (which they hope to destroy later), the FDA dictocrats impose extra-legal punishment, no matter what the judicial outcome of the case may be.

In their accounts of the raid, newspaper reporters, whom FDA had invited to accompany the raiders, obligingly referred to the Church not as a religious organization, but as a "pseudo-scientific cult".

At a later date, the Washington Post, referring to the E-meters declared:

"The machines were used by the religious cult allegedly to cure a number of illnesses ranging from cancer to radiation burns from atomic bombs, according to testimony at the trial." 7 The story did not venture to estimate how many Scientologists were survivors of a nuclear war.

Such a lapse in objective reporting is, of course, not at all unusual. In today's media, the naked truth is as rare as a naked nun (perhaps in our time, even rarer).

FDA officials were fully aware, and the press should have been, that the Founding Church of Scientology had been duly incorporated on July 21, 19SS as a non-profit society and corporation under the laws of the District of Columbia.

The Church's Creed, the body of doctrinal literature swept up by the raiders (and later filed by government lawyers as exhibits) make it plain to any reasonable person that Scientology is a religion.

Motions by the Scientology lawyers to have the FDA action quashed on the grounds that it violated both the First and the Fourth Amendments were denied, first by

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District judge Luther W. Youngdahl and later (on a motion limited to written material) by District Judge Edward A. Tamm.

Four years ensued before the FDA charges were heard in court. When the case was finally brought to trial on April 3, 1967, the federal agency still maintained the fiction that they were not taking legal action against a Church. It was that bad old E-meter that was the defendant of record.

According to FDA's complaint, the labelling for the meter (a term used to designate the whole range of Scientology literature) contained statements which "represent, suggest or imply" that the E-meter was adequate and effective for diagnosis, prevention, treatment, detection and elimination of a long list of human diseases, including arthritis, cancer, stomach ulcers and radiation from atomic bombs.

All of which was a monstrous lie. Nowhere in any Scientology publication was it ever remotely hinted that the E-meter could be used to treat anything. As delineated in a previous chapter, the instrument was developed to measure the intensity of facsimiles or mental-image pictures of past incidents during some stages in the process of auditing. As such, the meter is clearly a confessional aid and has never been used by ministers of the Church in any other way.

Nevertheless, the first trial resulted in a general jury verdict for the government, and District Judge John J. Sirica ordered destruction of the seized E-meters, together with a quantity of the printed material.

Attorneys for the Church immediately appealed the case, arguing that the E-meters were used only as part of a religious practice, to audit and process the mental and spiritual condition of adherents. Auditing was conducted within the church and anyone entering was on notice that it was a church. "It had a sign on the door, there is a chapel, there was a Sunday School; we married people, we had funerals."

To make sure that applicants for auditing understood

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that the procedure took place within a spiritual context, they were required to sign a release which stated in part:

"I understand fully and completely that the said purpose of said organizations and employed personnel, is based upon the practice of Scientology which I know to be a spiritual and religious guide intended to make persons more aware of themselves as spiritual beings, and not treating or diagnosing human ailments of body or mind, and not engaged in the teachings of medical arts or sciences..."

Anyone who was ill, declared the Scientologists, was referred to a medical doctor. If a person seeking help from Scientology appeared to be seriously ill, he was refused auditing until he did consult a physician and had his condition diagnosed and treated.

"Against this background," argued the Church's legal spokesmen, "it is impossible to say that the E-meter is intended for healing purposes, regardless of what impression might be gained from an isolated reading of literature."

In a two to one decision, the U.S. Court of Appeals reversed the lower court's verdict, ruling that the Founding Church of Scientology was indeed a bona fide religious organization.

The Government, said the High Court's majority opinion, erred in 1963 when it confiscated the Church's E-meters, which were used "to diagnose the mental and spiritual condition" of a subject.

The court also noted that the alleged labelling of the E-meters "is not a single readily digestible book or a collection of pamphlets obviously promotional in nature, but rather a vast array of the often obscure literature of Scientology".

Writing the majority opinion, judge J. Skelly Wright said that accounts of auditing, integrated into the general theory of Scientology are prima facie religious doctrines, and that "literature setting forth religious doctrines, and related to an instrument in the manner in which the 'auditing'

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literature here is related to the E-meter, cannot be subjected to courtroom evaluation and therefore cannot be considered 'labelling' of such an instrument for purposes of the 'false or mislabelling' provisions of the Act" (under which FDA had moved against the instruments).

Even though FDA thus stood judicially adjusted as having acted illegally in seizing equipment and scriptural literature protected by the Constitution, the federal apparachiki were not ready to accept the appeal court's ruling and throw in the sponge. Instead, they filed a petitition for a rehearing.

Despite the straightforward, lucid opinion just cited, clearly stating that the Food and Drug Administration was seeking to interfere in religious matters that lay outside its purview, the appeal court granted the government's petitition for a rehearing of the case.

Not only that, but the court now "clarified" its ruling, stating that "we found that some of the literature was at least primajacie religious doctrine". It suggested that on retrying the case, the District Court should make an itern-by-item determination of whether any item of Scientology literature put forth claims on a wholly non-religious basis or whether a religious appeal "has been merely tacked on" to any item.

The District Court refused to do any such thing. Noting that the seized literature contained some 2o,ooo pages, the trial court said that a single false scientific non-religious label claim was sufficient to support FDA's charges.

Defence attorneys, asserting that the most salient feature of the case at bar was the fact that Scientology is a religion, argued that the government had to prove by clear and convincing evidence that the religious practice of auditing was one of the gravest abuses, endangering paramount interest.

But the appeal court, in reversing the findings of the first trial, had already declared:

"Here the E-meter has been condemned, not because it is itself harmful, but because the representations made

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concerning it are 'false and misleading'. And the largest part of those representations is contained in the literature of Scientology describing the process of auditing which appellants have claimed, without contest from the Government, is part of their religion and central to its exercise." 6

The Government had used the misbranded device charge merely as a handle to institute the legal action, said the Scientology lawyers. "But the entire thrust of their case is directed against spiritual healing and improvement. Without the books and pamphlets referring to auditing, the Government is left with a completely harmless article, a variation of which can be purchased in a toy shop.

"The entire Government argument that the 'unthinking' public needs the protection of the Food and Drug Administration when they go to confession is a ridiculous, unconstitutional and 'unthinking' extension of Government paternalism."

The defence also argued that in the government's singling out the Church of Scientology's religious use of an artifact, from the many religions in U.S. which also use artifacts, was establishment of religion, prohibited by the establishment clause of the First Amendment.

Other religions, without interference from the Government, "buy, sell, and transport in interstate commerce articles and literature concerning and making health claims for such articles.

"These articles, used by other religions, are stated to have healing powers. A partial catalogue of these articles stated to have healing power for which health claims are made would include the Roman Catholic use of the Lourdes Water, Holy Water, Easter Wafer, Scapulars (cloth straps), Saint Glaize Candles for healing and preventing throat disease, Miraculous Medals. Similarly the Fundamentalists faith healers use Prayer Cloths, oil, and red pieces of string, for which healing claims are made."

The Scientologists cited legal precedent to show that the Government must be neutral when it comes to religious

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organizations. To do otherwise was discriminatory and a denial of equal protection of the law. In a previous case (Tick Wo v. Hopkins 118 U.S. 356), a federal court had stated:

"Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and unequal hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."

The Government presented no new evidence at the second trial.

Once again, however, the District Court found in favour of the government and entered an order condemning the meters and all the confiscated writings. And once again, on November 24, 1971, attorneys for the Church filed notice of appeal.

Like all legal battles between the Government goliath and the private sector, the contest was greatly uneven. The protracted litigation was costing the defendants a great deal of money, which they would never be able to recover, no matter what the outcome of the preceedings.

The federal dictocrats, on the other hand, had available to them the limitless financial resources of the national treasury - that is to say, the people's money. They had spent thousands of dollars prosecuting a minority religion for employing a simple galvanometer in its practice, an instrument which the District Court itself had declared to be harmless, adding that destruction of it would intrude upon religion. The only possible loser on their side of the bar was the taxpayer.

In a brief filed with the U.S. Court of Appeals following the second trial in the District Court, lawyers for the Church of Scientology again argued that the "misbranded device" provisions of the federal Food, Drug and Cosmetic Act were not applicable to a harmless instrument such as

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the E-meter, which is central to a bona fide religious practice.

Under First Amendment guarantees of religious freedom, it was a well-settled fact of law that such an encroachment could be justified only in cases that involved the gravest abuses which endangered paramount interests.

Even then) a regulation of religious practice is invalid

unless the Government can show "that no alternative forms of regulation would combat such abuses without infringing First Amendment rights". 4

The FDA was trying to apply a consumerism statute to matters of religion by attempting to prove the "misbranding" of a confessional aid because its "labelling" - that is, the Church's scripture - did not bear adequate directions for its use!

Who gave the food and drug mandarins the right to determine what are or are not adequate directions for the use of a harmless galvanometer used in a religious setting?

"If there is any fixed star in our constitutional constellation," declared the Supreme Court in an earlier case, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act their faith therein." 5

That constitutional luminary may still be shining stead fastly out there in the legal firmament somewhere, but it has long since been lost to the view of federal agencies, such as FDA and IRS, who daily issue official opinions on virtually every act of the citizen's life, including religious acts. And their officially proclaimed dogma has, time after time, been supported by the nation's courts. It was the Supreme Court itself that in 1954 declared that the state may set up standards that are "spiritual as well as physical, aesthetic as well as monetary".

Dangerous and chilling words these) coming from the court of last resort. As in the case of so many other decisions that have followed in the past two decades, the

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cynical observation of Chief justice Marshall that the Constitution means what the judges say it means, would seem to apply. Indeed, the U.S. today is ruled not by law, but by judges, some of whom grossly distort or wholly ignore the clear meaning of the supreme statutes. The result has been a gradual erosion of public respect for the entire legal system in America.

When the U.S. Court of Appeals issued a final ruling in its "clarified" rehearing of the Scientology case, the three-judge panel again reaffirmed the judgment of the District Court, and ordered the FDA to return to the Church of Scientology the literature and E-Meters seized in the illegal 1962 raid.

This judgment was widely interpreted in the press and elsewhere as a great victory in the church's fight for religious freedom. As the large truck drew up in front of the Founding Church of Scientology in Washington to return the material the Government had confiscated in its Nazi-style raid more than nine years previously, a large crowd of onlookers burst into loud applause. The Scientologists themselves celebrated with ceremony and champagne the seemingly successful denouement of the longest case ever brought by the FDA.

However, a careful look at the legal facts makes it abundantly clear that the church's adherents were celebrating something less than a Pyrrhic victory.

While directing the FDA to return the confiscated material, the high court at the same time ordered the Scientologists to pay the enormous storage bill for warehousing the literature and devices stolen and held by the FDA for so long.

Not only that, but the church was also required to pay all legal costs and fees of the Government's disgraceful prosecution of them (exclusive of those involved in their appeal following the first trial.)

The judges further decreed that the Scientologists must

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post a penal bond of $2o,ooo to insure their compliance with the court's judgment.

Yet another clause of the court's ruling restored the master-slave relationship between FDA and the church by making the E-meter and credal literature subject to provisions of the Federal Food, Drug and Cosmetic Act. Even worse, it stated that "the Founding Church of Scientology of Washington, D.C., Inc., shall compensate the United States of America for costs of reasonable supervision of matters under the direction or control of the Church at the rate of $8.00 per hour, per representative for each hour or portion thereof actually employed in such supervision under the terms of this Decree as salary or wage; and where subsistence expenses are incurred, at the rate of $25.oo per day or portion thereof per person for such subsistence expenses. Said claimant shall also compensate the United States of America (i.e., FDA commissars) for necessary travelin expenses and for any other necessary expenses which may be incurred in connection with supervisory responsibilities of the United States Food and Drug Administration."

Most shocking of all the judges' over-riding contempt for the Bill of Rights in purporting to exercise prior restraint in the publication of the churches literature: "Any and all items of written, printed, or graphic matter which directly or indirectly refers to the E-meter or to Dianetics and/or Scientology and/or auditing or processing shall not be further used or distributed unless and until" the said items carried a printed caveat on the outside front cover or in the title page, a "warning" prescribed by FDA.

In these circumstances, the Church of Scientology's long and costly legal battle against governmental despotism assumes an importance far beyond its own self-interest.

All Americans, whether religiously affiliated or not, were the unnamed defendants in the case.

(Reference Notes will be found on page 233)