And on June 13, United States Attorney Anthony Julian did indeed announce that the government had decided not to continue its prosecution of Furry. In a short, terse statement, he said: "The evidence in this case is deemed insufficient to warrant further prosecution of the defendent on this indictment." But observers generally agreed the government's decision to drop charges had become inevitable following Judge Aldrich's Kamin decision.

Waived Fifth Amendment

Furry, like Kamin, had been asked about men he had known in the Communist Party and had refused to talk about them, though he talked freely of his own activities. At the University's urging, he waived the Fifth Amendment privilege.

Judge Aldrich held that the investigation of subversion in defense plants, for which Kamin and Furry had been summoned, was outside the powers Congress had granted to the Government Operations Committee, parent committee of McCarthy's permanent investigations Subcommittee.

The Judge said the Committee lacked authority to investigate subversion in privately operated defense plants. The questions Furry and Kamin had been ordered to answer dealt with either the University or defense plants.

Since both the University and the defense plants hold Government contracts, Judge Aldrich was faced with the difficult legal questions of distinguishing between "private" and "public." He dealt with it as follows:

He noted that the 1946 Legislative Reorganization Act, which defined the Committee's functions, had assigned to it the task of "studying the operation of Government activities at all levels with a view to determining its economy and efficiency."

"It seems to me," the Judge said, "that, as a pure matter of language, private operation of private industry is not 'activity performed by the Government' at an 'operational level,' and that the general economy and efficiency of such private corporation was outside the scope of the Committee."

Judge Aldrich cited a recent Supreme Court ruling which held that even private management of Government-owned installations must be deemed private business. "It is not the purpose that determines who is performing the operation," he said.

In reaching this decision, Judge Aldrich noted he had difficulty in determining just what it was McCarthy had been investigating. He had no records before him of the summer 1953 meeting at which the investigation was approved, but only the oral testimony of the Senators who attended it. McCarthy had said on the stand in October that his Subcommittee had been investigating, not private industry, but the operation of Government security regulations. After studying the conflicting testimony of Senators Dirksen, Potter, and Mundt, and the content of the hearings McCarthy held on the subject, Judge Aldrich ruled McCarthy's contention "entirely insubstantial."

Defense Protests Overruled

Although Judge Aldrich felt forced to disagree with Senator McCarthy on the trial's key issue, he was unsympathetic to defense appeals for restrictions on Committee procedures. Protests about the crowded hearing room and McCarthy's slackness in telling Kamin what was the subject matter were overruled. The Judge did not feel that Kamin's performance at the hearing (which was cool and rational) had been impaired. He apparently felt that failing to examine the Committee's legal authority before embarking upon an investigation was much more serious than procedural sloppiness.

During the Government's five-month silence following Kamin's acquittal, Furry's lawyers had followed a policy of simply waiting, ready either for a trial or a dismissal of the charges against their client. Since Furry was questioned in the same investigation as Kamin, and he too worked for a privately operated defense establishment, their confidence was justified.

Senator McCarthy had been indicating, ever since January, that he felt the case a lost cause. He had attacked Judge Aldrich several times for handing down a "ridiculous" decision, for running a "kangaroo court", and for insulting the Senate. He finally said in April he would not testify at Furry's trial unless there were a different judge. Aldrich had, however, drawn the assignment of trying the case.

In the meantime Kamin has become "as obscure as possible" beginning his career as an animal psychologist.