On January 21, 1950, a federal grand jury indicted Alger Hiss, a former State Department official, on perjury charges related to his spy work for the Soviet Union during the 1930s. Also in 1950, Klaus Fuchs, who had worked on the American atomic bomb, confessed to being a Soviet spy while doing so, and implicated others, revealing a Soviet espionage network that had acquired significant classified information about America’s atomic bomb program. His confession ultimately led to the arrest, trial, and conviction of several other people, including Julius and Ethel Rosenberg, who were executed in 1953.
Senator Joseph McCarthy (R-Wisconsin), a first-term senator, was not a well-known figure when he spoke at an event sponsored by the League of Women Voters in Wheeling, West Virginia, shortly after the Hiss indictment. Taking this news as his theme, he claimed that 205 State Department employees were members of the Communist Party of the United States of America and that Secretary of State Dean Acheson was protecting them. In subsequent speeches, McCarthy cited different numbers – eighty-one, then fifty-seven – without providing much corroboration. (After the Cold War, newly accessible Soviet files revealed that over 500 Americans, including journalists and other ranking government officials besides Hiss, had spied or worked for the Soviet Union in the 1930s and 1940s. See John Earl Haynes, Harvey Klehr, and Alexander Vassiliev, Spies: The Rise and Fall of the KGB in America [New Haven: Yale University Press, 2009]. McCarthy knew nothing of this.)
Problems with McCarthy’s evidence did not diminish the massive attention he and his charges received. (Nor did the existence of a federal employee loyalty program that President Harry Truman had implemented in 1947.) The Hiss case, the communist victory in China (1949), the Soviet development of atomic weapons (1949), and the outbreak and early stages of the Korean War (1950) fed the impression that the United States was losing the Cold War. According to McCarthy, subversives within the U.S. government were responsible.
McCarthy’s charges, the espionage trials, and growing Cold War tension led Congress to pass the Internal Security Act on September 20, 1950. President Truman vetoed the act on September 23. His veto was overridden by both houses of Congress on the same day. Various provisions of the law were subsequently overturned by the Supreme Court or repealed by Act of Congress. As for McCarthy, some Senators opposed him early on (most prominently Margaret Chase Smith, R-Maine), but he continued to command attention for several years, summoning people to Senate hearings and publicly accusing them of disloyalty and treason. He was eventually censured by the Senate for his conduct (December 2, 1954). After that, he ceased to be an influential public figure. He died in 1957.
Public Papers, Harry S. Truman, 1945–1953, Truman Presidential Library. https://goo.gl/yZYnPU
To the House of Representatives:
I return herewith, without my approval, H.R. 9490, the proposed “Internal Security Act of 1950.”. . .
It has been claimed over and over again that this is an “anti-communist” bill – a “communist control” bill. But in actual operation the bill would have results exactly the opposite of those intended. . . .
Specifically, some of the principal objections to the bill are as follows:
1. It would aid potential enemies by requiring the publication of a complete list of vital defense plants, laboratories, and other installations.
2. It would require the Department of Justice and its Federal Bureau of Investigation to waste immense amounts of time and energy attempting to carry out its unworkable registration provisions.
3. It would deprive us of the great assistance of many aliens in intelligence matters.
4. It would antagonize friendly governments.
5. It would put the Government of the United States in the thought control business.
6. It would make it easier for subversive aliens to become naturalized as United States citizens.
7. It would give Government officials vast powers to harass all of our citizens in the exercise of their right of free speech.
Legislation with these consequences is not necessary to meet the real dangers which communism presents to our free society. Those dangers are serious, and must be met. But this bill would hinder us, not help us, in meeting them. Fortunately, we already have on the books strong laws which give us most of the protection we need from the real dangers of treason, espionage, sabotage, and actions looking to the overthrow of our Government by force and violence. Most of the provisions of this bill have no relation to these real dangers.
One provision alone of this bill is enough to demonstrate how far it misses the real target. Section 5 would require the Secretary of Defense to “proclaim” and “have published in the Federal Register” a public catalogue of defense plants, laboratories, and all other facilities vital to our national defense – no matter how secret. I cannot imagine any document a hostile foreign government would desire more. . . .
This is only one example of many provisions in the bill which would in actual practice work to the detriment of our national security. . . .
I repeat, the net result of this bill would be to help the communists, not to hurt them.
I therefore most earnestly request the Congress to reconsider its action. I am confident that on more careful analysis most members of Congress will recognize that this bill is contrary to the best interests of our country at this critical time.
H.R. 9490 is made up of a number of different parts. In summary, their purposes and probable effects may be described as follows:
Sections 1 through 17 are designed for two purposes. First, they are intended to force communist organizations to register and to divulge certain information about themselves – information on their officers, their finances, and, in some cases, their membership. These provisions would in practice be ineffective, and would result in obtaining no information about communists that the FBI and our other security agencies do not already have. But in trying to enforce these sections, we would have to spend a great deal of time, effort, and money – all to no good purpose.
Second, those provisions are intended to impose various penalties on communists and others covered by the terms of the bill. So far as communists are concerned, all these penalties which can be practicably enforced are already in effect under existing laws and procedures. But the language of the bill is so broad and vague that it might well result in penalizing the legitimate activities of people who are not communists at all, but loyal citizens.
Thus the net result of these sections of the bill would be: no serious damage to the communists, much damage to the rest of us. Only the communist movement would gain from such an outcome. . . .
. . . [The] provisions [of the Act] . . . [that] prevent us from admitting to our country, or to citizenship, many people who could make real contributions to our national strength. The bill would deprive our Government and our intelligence agencies of the valuable services of aliens in security operations. It would require us to exclude and to deport the citizens of some friendly noncommunist countries. . . .
Sections 100 through 117 of this bill (Title II) are intended to give the Government power, in the event of invasion, war, or insurrection in the United States in aid of a foreign enemy, to seize and hold persons who could be expected to attempt acts of espionage or sabotage, even though they had as yet committed no crime. . . . [T]he provisions in H.R. 9490 would very probably prove ineffective to achieve the objective sought, since they would not suspend the writ of habeas corpus, and under our legal system to detain a man not charged with a crime would raise serious constitutional questions unless the writ of habeas corpus were suspended. . . .
. . . Instead of striking blows at communism, [the bill] would strike blows at our own liberties and at our position in the forefront of those working for freedom in the world. At a time when our young men are fighting for freedom in Korea, it would be tragic to advance the objectives of communism in this country, as this bill would do.
Because I feel so strongly that this legislation would be a terrible mistake, I want to discuss more fully its worst features. . . .
Most of the first seventeen sections of H.R. 9490 are concerned with requiring registration and annual reports, by what the bill calls “communist-action organizations” and “communist-front organizations,” of names of officers, sources and uses of funds, and, in the case of “communist-action organizations,” names of members.
The idea of requiring communist organizations to divulge information about themselves is a simple and attractive one. But it is about as practical as requiring thieves to register with the sheriff. Obviously, no such organization as the Communist Party is likely to register voluntarily.
Under the provisions of the bill . . . . [t]he Attorney General would have to produce proof that the organization in question was in fact a “communist-action” or a “communist-front organization.” To do this he would have to offer evidence relating to every aspect of the organization’s activities. The organization could present opposing evidence. Prolonged hearings would be required to allow both sides to present proof and to cross-examine opposing witnesses. . . .
The bill lists a number of criteria for the Board to consider in deciding whether or not an organization is a “communist-action” or “communist-front” organization. Many of these deal with the attitudes or states of mind of the organization’s leaders. It is frequently difficult in legal proceedings to establish whether or not a man has committed an overt act, such as theft or perjury. But under this bill, the Attorney General would have to attempt the immensely more difficult task of producing concrete legal evidence that men have particular ideas or opinions. This would inevitably require the disclosure of many of the FBI’s confidential sources of information and thus would damage our national security.
If, eventually, the Attorney General should overcome these difficulties and get a favorable decision from the Board, the Board’s decision could be appealed to the Courts. The Courts would review any questions of law involved, and whether the Board’s findings of fact were supported by the “preponderance” of the evidence.
All these proceedings would require great effort and much time. It is almost certain that from two to four years would elapse between the Attorney General’s decision to go before the Board with a case, and the final disposition of the matter by the Courts.
And when all this time and effort had been spent, it is still most likely that no organization would actually register. . . . [T]o frustrate the law [leaders] would . . . dissolve the organization and establish a new one with a different name and a new roster of nominal officers. The Communist Party has done this again and again in countries throughout the world. And nothing could be done about it except to begin all over again the long dreary process of investigative, administrative, and judicial proceedings to require registration.
Thus the net result of the registration provisions of this bill would probably be an endless chasing of one organization after another, with the communists always able to frustrate the law enforcement agencies and prevent any final result from being achieved. . . .
Unfortunately, these provisions are not merely ineffective and unworkable. They represent a clear and present danger to our institutions.
In so far as the bill would require registration by the Communist Party itself, it does not endanger our traditional liberties. However, the application of the registration requirements to so-called communist-front organizations can be the greatest danger to freedom of speech, press and assembly, since the Alien and Sedition Laws of 1798. This danger arises out of the criteria or standards to be applied in determining whether an organization is a communist-front organization.
There would be no serious problem if the bill required proof that an organization was controlled and financed by the Communist Party before it could be classified as a communist-front organization. However, recognizing the difficulty of proving those matters, the bill would permit such a determination to be based solely upon “the extent to which the positions taken or advanced by it from time to time on matters of policy do not deviate from those” of the communist movement.
This provision could easily be used to classify as a communist-front organization any organization which is advocating a single policy or objective which is also being urged by the Communist Party or by a communist foreign government. . . . Thus, an organization which advocates low-cost housing for sincere humanitarian reasons might be classified as a communist-front organization because the communists regularly exploit slum conditions as one of their fifth-column techniques.
It is not enough to say that this probably would not be done. The mere fact that it could be done shows clearly how the bill would open a Pandora’s box of opportunities for official condemnation of organizations and individuals for perfectly honest opinions which happen to be stated also by communists.
The basic error of these sections is that they move in the direction of suppressing opinion and belief. This would be a very dangerous course to take, not because we have any sympathy for communist opinions, but because any governmental stifling of the free expression of opinion is a long step toward totalitarianism.
There is no more fundamental axiom of American freedom than the familiar statement: In a free country, we punish men for the crimes they commit, but never for the opinions they have. And the reason this is so fundamental to freedom is not, as many suppose, that it protects the few unorthodox from suppression by the majority. To permit freedom of expression is primarily for the benefit of the majority, because it protects criticism, and criticism leads to progress.
We can and we will prevent espionage, sabotage, or other actions endangering our national security. But we would betray our finest traditions if we attempted, as this bill would attempt, to curb the simple expression of opinion. This we should never do, no matter how distasteful the opinion may be to the vast majority of our people. The course proposed by this bill would delight the communists, for it would make a mockery of the Bill of Rights and of our claims to stand for freedom in the world.
And what kind of effect would these provisions have on the normal expression of political views? Obviously, if this law were on the statute books, the part of prudence would be to avoid saying anything that might be construed by someone as not deviating sufficiently from the current communist propaganda line. And since no one could be sure in advance what views were safe to express, the inevitable tendency would be to express no views on controversial subjects.
The result could only be to reduce the vigor and strength of our political life – an outcome that the communists would happily welcome, but that free men should abhor.
We need not fear the expression of ideas – we do need to fear their suppression.
Our position in the vanguard of freedom rests largely on our demonstration that the free expression of opinion, coupled with government by popular consent, leads to national strength and human advancement. Let us not, in cowering and foolish fear, throw away the ideals which are the fundamental basis of our free society. . . .
No considerations of expediency can justify the enactment of such a bill as this, a bill which would so greatly weaken our liberties and give aid and comfort to those who would destroy us. I have, therefore, no alternative but to return this bill without my approval, and I earnestly request the Congress to reconsider its action.
HARRY S. TRUMAN
A. The Internal Security Act states that it should not be construed to restrict freedom of speech or press. Was President Truman right to think it would? Section 4a of the Act prohibits establishing a totalitarian government except by constitutional amendment. If it is wrong to vote or campaign for such a government, why would it be right to amend the Constitution to allow for one? Why does section 5 apply only to nonelective officials? If the law allows Americans to elect communists, why does it prohibit other actions intended to bring about a communist government?
B. Threats to national security also formed an important part of the backdrop of President Barack Obama’s speech in Cairo in 2009. To what extent are the concerns and issues raised in these two time periods similar, and in what ways are they distinguishable? Has America learned to balance its need for security with its commitment to freedom of expression and association?
C. Would the organized dissent movements so prevalent in earlier American history have been “legal” under the terms of the National Security Act? Consider especially the Whiskey Rebellion, the Hartford Convention, and the Nullification Crisis. Is there a conflict between the type of “security mindset” exemplified in this chapter and a commitment to freedom of conscience?