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 Various provisions of the law were subsequently overturned by the Supreme Court or repealed by Act of Congress.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.
U.S. Statutes at Large, 81st Cong., II Sess., Chp. 1024, p. 987-1031.
AN ACT To protect the United States against certain un-American and subversive activities by requiring registration of Communist organizations, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Internal Security Act of 1950.”
TITLE I – SUBVERSIVE ACTIVITIES CONTROL
Section 1. (a) This title may be cited as the ‘‘Subversive Activities Control Act of 1950.”
(b) Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.
Necessity for Legislation
Sec. 2. As a result of evidence adduced before various committees of the Senate and House of Representatives, the Congress hereby finds that
(1) There exists a world Communist movement which, in its origins, its development, and its present practice, is a world-wide revolutionary movement whose purpose it is, by treachery, deceit, infiltration into other groups (governmental and otherwise), espionage, sabotage, terrorism, and any other means deemed necessary, to establish a Communist totalitarian dictatorship in the countries throughout the world through the medium of a world-wide Communist organization.
(2) The establishment of a totalitarian dictatorship in any country results in the suppression of all opposition to the party in power, the subordination of the rights of individuals to the state, the denial of fundamental rights and liberties which are characteristic of a representative form of government, such as freedom of speech, of the press, of assembly, and of religious worship, and results in the maintenance of control over the people through fear, terrorism, and brutality.
(3) The system of government known as a totalitarian dictatorship is characterized by the existence of a single political party, organized on a dictatorial basis, and by substantial identity between such party and its policies and the government and governmental policies of the country in which it exists.
(4) The direction and control of the world Communist movement is vested in and exercised by the Communist dictatorship of a foreign country.
(5) The Communist dictatorship of such foreign country, in exercising such direction and control and in furthering the purposes of the world Communist movement, establishes or causes the establishment of, and utilizes, in various countries, action organizations which are not free and independent organizations, but are sections of a world-wide Communist organization and are controlled, directed, and subject to the discipline of the Communist dictatorship of such foreign country.
(6) The Communist action organizations so established and utilized in various countries, acting under such control, direction, and discipline, endeavor to carry out the objectives of the world Communist movement by bringing about the overthrow of existing governments by any available means, including force if necessary, and setting up Communist totalitarian dictatorships which will be subservient to the most powerful existing Communist totalitarian dictatorship. Although such organizations usually designate themselves as political parties, they are in fact constituent elements of the world-wide Communist movement and promote the objectives of such movement by conspiratorial and coercive tactics, instead of through the democratic processes of a free elective system or through the freedom-preserving means employed by a political party which operates as an agency by which people govern themselves.
(7) In carrying on the[ir] activities . . . such Communist organizations . . . are organized on a secret, conspiratorial basis and operate to a substantial extent through organizations, commonly known as ‘‘Communist fronts’’, which in most instances are created and maintained, or used, in such manner as to conceal the facts as to their true character and purposes and their membership. One result of this method of operation is that such affiliated organizations are able to obtain financial and other support from persons who would not extend such support if they knew the true purposes of, and the actual nature of the control and influence exerted upon, such “Communist fronts”. . . .
(9) In the United States those individuals who knowingly and willfully participate in the world Communist movement, when they so participate, in effect repudiate their allegiance to the United States, and in effect transfer their allegiance to the foreign country in which is vested the direction and control of the world Communist movement. . . .
(11) The agents of communism have devised clever and ruthless espionage and sabotage tactics which are carried out in many instances in form or manner successfully evasive of existing law.
(12) The Communist network in the United States is inspired and controlled in large part by foreign agents who are sent into the United States ostensibly as attachés of foreign legations, affiliates of international organizations, members of trading commissions, and in similar capacities, but who use their diplomatic or semi-diplomatic status as a shield behind which to engage in activities prejudicial to the public security.
(13) There are, under our present immigration laws, numerous aliens who have been found to be deportable, many of whom are in the subversive, criminal, or immoral classes who are free to roam the country at will without supervision or control.
(14) One device for infiltration by Communists is by procuring naturalization for disloyal aliens who use their citizenship as a badge for admission into the fabric of our society.
(15) The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthrow of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. . . .
Certain Prohibited Acts
Sec. 4. (a) It shall be unlawful for any person knowingly to combine, conspire, or agree, with any other person to perform any act which would substantially contribute to the establishment within the United States of a totalitarian dictatorship, . . . the direction and control of which is to be vested in, or exercised by or under the domination or control of, any foreign government, foreign organization, or foreign individual: Provided, however, That this subsection shall not apply to the proposal of a constitutional amendment. . . .
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(f) Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. The fact of the registration of any person under section 7 or section 8 of this title as an officer or member of any Communist organization shall not be received in evidence against such person in any prosecution for any alleged violation of subsection (a) or subsection (c) of this section or for any alleged violation of any other criminal statute.
Employment of Members of Communist Organizations
Sec. 5. (a) When a Communist organization, as defined in paragraph (5) of section 3 of this title, is registered or there is in effect a final order of the Board requiring such organization to register, it shall be unlawful
(1) For any member of such organization, with knowledge or notice that such organization is so registered or that such order has become final
(A) in seeking, accepting, or holding any nonelective office or employment under the United States, to conceal or fail to disclose the fact that he is a member of such organization; or
(B) to hold any nonelective office or employment under the United States; or
(C) in seeking, accepting, or holding employment in any defense facility, to conceal or fail to disclose the fact that he is a member of such organization; or
(D) if such organization is a Communist-action organization, to engage in any employment in any defense facility.
(2) For any officer or employee of the United States or of any defense facility, with knowledge or notice that such organization is so registered or that such order has become final –
(A) to contribute funds or services to such organization; or
(B) to advise, counsel or urge any person, with knowledge or notice that such person is a member of such organization, to perform, or to omit to perform, any act if such act or omission would constitute a violation of any provision of subparagraph (1) of this subsection. . . .
Denial of Passports to Members of Communist Organizations
Sec. 6. (a) When a Communist organization as defined in paragraph (5) of section 3 of this title is registered, or there is in effect a final order of the Board requiring such organization to register, it shall be unlawful for any member of such organization, with knowledge or notice that such organization is so registered or that such order has become final –
(1) to make application for a passport, or the renewal of a passport, to be issued or renewed by or under the authority of the United States; or
(2) to use or attempt to use any such passport. . . .
Registration and Annual Reports of Communist Organizations
Sec. 7. (a) Each Communist-action organization (including any organization required, by a final order of the Board, to register as a Communist-action organization) shall . . . register with the Attorney General, on a form prescribed by him . . . as a Communist-action organization. . . .
. . . containing the following information:
(1) The name of the organization and the address of its principal office.
(2) The name and last-known address of each individual who is . . . [or] who was at any time during the period of twelve full calendar months next preceding the filing of such statement, an officer of the organization, with the designation or title of the office so held, and with a brief statement of the duties and functions of such individual as such officer.
(3) An accounting . . . of all moneys received and expended (including the sources from which received and the purposes for which expended) by the organization during the period of twelve full calendar months next preceding the filing of such statement.
(4) In the case of a Communist-action organization, the name and last-known address of each individual who was a member of the organization at any time during the period of twelve full calendar months preceding the filing of such statement. . .
Use of the Mails and Instrumentalities of Interstate or Foreign Commerce
Sec. 10. It shall be unlawful for any organization which is registered under section 7, or for any organization with respect to which there is in effect a final order of the Board requiring it to register under section 7, or for any person acting for or on behalf of any such organization –
(1) to transmit or cause to be transmitted, through the United States mails or by any means or instrumentality of interstate or foreign commerce, any publication which is intended to be, or which it is reasonable to believe is intended to be, circulated or disseminated among two or more persons, unless such publication, and any envelope, wrapper, or other container in which it is mailed or otherwise circulated or transmitted, bears the following, printed in such manner as may be provided in regulations prescribed by the Attorney General, with the name of the organization appearing in lieu of the blank: “Disseminated by ____________, a Communist organization”; or
(2) to broadcast or cause to be broadcast any matter over any radio or television station in the United States, unless such matter is preceded by the following statement, with the name of the organization being stated in place of the blank: “The following program is sponsored by ____________, a Communist organization”. . . .
Subversive Activities Control Board
Sec. 12. (a) There is hereby established a board, to be known as the Subversive Activities Control Board, which shall be composed of five members, who shall be appointed by the President, by and with the advice and consent of the Senate. Not more than three members of the Board shall be members of the same political party. . . .
(e) It shall be the duty of the Board
(1) upon application made by the Attorney General under section 13(a) of this title, or by any organization under section 13(b) of this title, to determine whether any organization is a “Communist-action organization” within the meaning of paragraph (3) of section 3 of this title, or a “Communist-front organization” within the meaning of paragraph (4) of section 3 of this title; and
(2) . . . to determine whether any individual is a member of any Communist-action organization registered, or by final order of the Board required to be registered, under section 7(a) of this title. . . .
Proceedings before Board
Sec. 13. (a) Whenever the Attorney General shall have reason to believe that any organization which has not registered under . . . this title is in fact an organization of a kind required to be registered under such subsection, or that any individual who has not registered under . . . this title is in fact required to register under such section, he shall file with the Board and serve upon such organization or individual a petition for an order requiring such organization or individual to register pursuant to such subsection or section, as the case may be. . . .
(b) Any organization registered under . . . this title, and any individual registered under . . . this title, may, not oftener than once in each calendar year, make application to the Attorney General for the cancellation of such registration and (in the case of such organization) for relief from obligation to make further annual reports. . . .
(c) Upon the filing of any petition pursuant to subsection (a) or subsection (b) of this section, the Board (or any member thereof or any examiner designated thereby) may hold hearings, administer oaths and affirmations, may examine witnesses and receive evidence at any place in the United States, and may require by subpoena the attendance and testimony of witnesses and the production of books, papers, correspondence, memoranda, and other records deemed relevant, to the matter under inquiry. . . .
(d) (1) All hearings conducted under this section shall be public. Each party to such proceeding shall have the right to present its case with the assistance of counsel, to offer oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. . . .
(e) In determining whether any organization is a “Communist-action organization,” the Board shall take into consideration
(1) the extent to which its policies are formulated and carried out and its activities performed, pursuant to directives or to effectuate the policies of the foreign government or foreign organization in which is vested, or under the domination or control of which is exercised, the direction and control of the world Communist movement referred to in section 2 of this title; and
(2) the extent to which its views and policies do not deviate from those of such foreign government or foreign organization; and
(3) the extent to which it receives financial or other aid, directly or indirectly, from or at the direction of such foreign government or foreign organization; . . .
. . .
(8) the extent to which its principal leaders or a substantial number of its members consider the allegiance they owe to the United States as subordinate to their obligations to such foreign government or foreign organization.
(f) In determining whether any organization is a “Communist-front organization,” the Board shall take into consideration
(1) the extent to which persons who are active in its management, direction, or supervision, whether or not holding office therein, are active in the management, direction, or supervision of, or as representatives of, any Communist-action organization, Communist foreign government, or the world Communist movement referred to in section 2; and
(2) the extent to which its support, financial or otherwise, is derived from any Communist-action organization, Communist foreign govern-ment, or the world Communist movement referred to in section 2; . . .
(k) When any order of the Board requiring registration of a Com-munist organization becomes final under the provisions of . . . this title, the Board shall publish in the Federal Register the fact that such order has become final, and publication thereof shall constitute notice to all members of such organization that such order has become final.
Sec. 14. (a) The party aggrieved by any order entered by the Board under subsection (g), (h), (i) or (j) of section 13 may obtain a review of such order by filing in the United States Court of Appeals for the District of Columbia, within sixty days from the date of service upon it of such order, a written petition praying that the order of the Board be set aside. . . .
TITLE II – EMERGENCY DETENTION
Sec. 100. This title may be cited as the “Emergency Detention Act of 1950.”
Findings of Fact and Declaration of Purpose[This Title repeats the findings reported at the beginning of Title I above.]
. . .
(14) The detention of persons who there is reasonable ground to believe probably will commit or conspire with others to commit espionage or sabotage is, in a time of internal security emergency, essential to the common defense and to the safety and security of the territory, the people and the Constitution of the United States.
(15) It is also essential that such detention in an emergency involving the internal security of the Nation shall be so authorized, executed, restricted and reviewed as to prevent any interference with the constitutional rights and privileges of any persons, and at the same time shall be sufficiently effective to permit the performance by the Congress and the President of their constitutional duties to provide for the common defense, to wage war, and to preserve, protect and defend the Constitution, the Government and the people of the United States.
Declaration of “Internal Security Emergency”
Sec. 102. (a) In the event of any one of the following:
(1) Invasion of the territory of the United States or its possessions,
(2) Declaration of war by Congress, or
(3) Insurrection within the United States in aid of a foreign enemy, and if, upon the occurrence of one or more of the above, the President shall find that the proclamation of an emergency pursuant to this section is essential to the preservation, protection and defense of the Constitution, and to the common defense and safety of the territory and people of the United States, the President is authorized to make public proclamation of the existence of an ‘‘Internal Security Emergency’’.
(b) A state of ‘‘Internal Security Emergency’’ (hereinafter referred to as the ‘‘emergency’’) so declared shall continue in exercise until terminated by proclamation of the President or by concurrent resolution of the Congress.
Detention during Emergency
Sec. 103. (a) Whenever there shall be in existence such an emergency, the President, acting through the Attorney General, is hereby authorized to apprehend and by order detain, pursuant to the provisions of this title, each person as to whom there is reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage. . . .
Detention Review Board
Sec. 105. (a) The President is hereby authorized to establish a Detention Review Board (referred to in this title as the “Board”) which shall consist of nine members, not more than five of whom shall be members of the same political party, appointed by the President by and with the advice and consent of the Senate. . . .
Sec. 109. (a) Any Board created under this title is empowered
(1) to review upon petition of any detainee any order of detention issued pursuant to section 104 (d) of this title;
(2) to determine whether there is reasonable ground to believe that such detainee probably will engage in, or conspire with others to engage in, espionage or sabotage;
(3) to issue orders confirming, modifying, or revoking any such order of detention; . . .
(3) The several departments and agencies of the Government, when directed by the President, shall furnish the Board, upon its request, all records, papers, and information in their possession relating to any matter before the Board.
(f) Every detainee shall be afforded full opportunity to be represented by counsel at the preliminary hearing prescribed by this title and in all stages of the detention review proceedings, including the hearing before the Board and any judicial review, and he shall have the right at hearings of the Board to testify, to have compulsory process for obtaining witnesses in his favor, and to cross-examine adverse witnesses. . . .
(2) Any past act or acts of espionage or sabotage committed by such person, or any past participation by such person in any attempt or conspiracy to commit any act of espionage or sabotage, against the United States, any agency or instrumentality thereof, or any public or private national defense facility within the United States; . . .
Orders of the Board
Sec. 110. (a) If upon all the testimony taken in any proceeding for the review of any order of detention issued pursuant to section 104 (d) of this title, the Board shall determine that there is not reasonable ground to believe that the detainee in question probably will engage in, or conspire with others to engage in, espionage or sabotage, the Board shall state its findings of fact and shall issue and serve upon the Attorney General or order revoking the order for detention of the detainee concerned and requiring the Attorney General, and any officer designated by him for the supervision or control of the detention of such person, to release such detainee from custody; and shall forthwith serve a copy of such order upon the detainee. . . .
Sec. 111. (a) Any petitioner aggrieved by an order of the Board denying in whole or in part the relief sought by him, or by the failure or refusal of the Attorney General to obey such order, shall be entitled to the judicial review or judicial enforcement, provided hereinafter in this section. . . .
Separability of Provisions
Sec. 116. . . . Nothing contained in this title shall be construed to suspend or to authorize the suspension of the privilege of the writ of habeas corpus.
Sam Rayburn Speaker of the House of Representatives.
Alben W. Barkley Vice President of the United States and President of the Senate.
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?