Today in 1950: The McCarran Internal Security Act is passed

September 23, 2011

Today in Legal HistoryOn September 23, 1950, the Internal Security Act (ISA) was passed.

Also called the McCarran Act, it was passed over President Harry Truman’s veto by 89% of Congress.

Truman made no secret of his reasons for opposing the bill.

Calling it “the greatest danger to freedom of speech, press, and assembly since the Alien and Sedition Laws of 1798,” and that it “would make a mockery of our Bill of Rights [and] would actually weaken our internal security measures.”

In addition, while the act supposedly was intended to fight against the U.S. turning into a “totalitarian dictatorship,” Truman stated that the Act was itself a “long step toward totalitarianism.”

Against the backdrop of the Cold War and anti-Communist fervor, the public wasn’t particularly concerned with the implications of the act eroding away personal liberties.

What personal liberties, and how were they supposedly eroded?

For one, it required Communist organizations –defined broadly enough to include any organizations with any associations to Communism worldwide – to register with the U.S. Attorney General.

It established the Subversive Activities Control Board to investigate persons suspected of engaging in subversive activities or otherwise promoting the establishment of a “totalitarian dictatorship,” fascist or Communist.

Members of these groups could not become citizens and in some cases were barred from entering or leaving the U.S.

Any citizen found in violation could lose his or her citizenship for five years.

Investigating such subversive activities was the U.S. Senate Subcommittee on Internal Security, created by the ISA, and was essentially the Senate equivalent to the earlier-established House Committee on Un-American Activities.

While today many may be familiar with such broad government inquiries and investigations typical of the “Red Scare” era of the 1950s, most are probably unaware of what Title II of the ISA gave the government the power to do.

To establish concentration camps (and just over five years after the end of World War II, to boot).

Title II authorized the President to “apprehend” and “detain” each person as to whom there’s “reasonable ground to believe” that he or she “probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage.”

An exceptionally broad granting of powers, to say the least, offset only by the limitation that this authority may only be invoked during war or during an “Internal Security Emergency.”

This provision is, however, no longer valid law: it was repealed by the Non-Detention Act of 1971.

Furthermore, various provisions of the law were struck down as unconstitutional by the Supreme Court.

First, in 1965’s Albertson v. Subversive Activities Control Board, the Supreme Court held that Communist Party members could not be compelled to register themselves as such, since doing so would expose them to criminal sanctions.

Thus, the registration requirement was found to be unconstitutional under the Fifth Amendment’s protection against self-incrimination.

1967’s U.S. v. Robel held that the section of ISA making it unlawful for a member of a Communist organization to be employed in any defense facility is unconstitutional as a violation of the First Amendment rights of association.

Today, the Act, along with the investigatory bodies it established, is mostly defunct with some minor exceptions.

It stands as another example both of security winning over liberty, and of public regret over such a decision after realizing their earlier fears were overstated.