II. Drafting the Emergency Detention Act: Writing a Concentration Camp Law
The Emergency Detention Act constituted Title II of the Internal Security Act of 1950, popularly known as the McCarran Act for its sponsor, Democratic Senator Patrick McCarran from Nevada. Title I of the McCarran Act, the Subversive Activities Control Act, required communist organizations to register with the Attorney General and tightened existing immigration and naturalization laws. Title II, the Emergency Detention Act, allowed the government to detain those who it suspected might engage in espionage or sabotage, and authorized the government to build concentration camps on American soil. Congress passed the Internal Security Act by an overwhelming majority, overriding President Truman's veto.
Notwithstanding the statute's restrictions on individual freedom, Title II contained procedural safeguards that protected individuals from wrongful detention. For example, the Attorney General had to issue a warrant for apprehension before arrests were made. Only officers of the Department of Justice could conduct the arrests. Furthermore, persons apprehended would be confined in places of detention prescribed by the Attorney General, which assured control of the detention procedure by the Justice Department rather than the military. After arrest, each apprehended person would be brought before a preliminary hearing officer, who would hear evidence and decide whether there was a probable cause for his or her detention pursuant to Title II. The person would be detained only if the hearing officer decided there was probable cause. Title II also established the Detention Review Board, which was empowered to review a detention order upon a detainee's petition. The board was authorized to revoke the detention order if it found no reasonable ground for detention. It was also authorized to hear the claim for loss of income resulting from groundless detention and, if necessary, order compensation. Finally, Title II provided judicial review for a detainee whose petition for release was rejected by the Detention Review Board.
To understand the equivocal content of Title II, one needs to understand the context in which the law was passed as well as the political positions of its drafters. The drafters of Title II shared two traits: they were pro-administration liberals, and they were directly or indirectly involved in forming or administering Japanese American internment. The drafters of the Emergency Detention Act insisted that the legislation was an improvement over Japanese American internment.
It should be noted that Congress passed Title II when a war with communist countries seemed imminent. Title II passed only a few months after the outbreak of the Korean War and the arrests of Julius and Ethel Rosenberg on atomic espionage charges. In 1948, nationalistic Republicans such as Richard Nixon and Karl Mundt, proposed a communist registration bill, but their effort did not get much support. By the summer of 1950, however, anti-immigration Western Democrats such as Senator Patrick McCarran, and anti-civil rights Southern Democrats such as Congressman John Rankin, had formed a conservative anti-administration coalition with Republicans like Nixon. This conservative block in Congress proposed Title I, a stronger communist registration bill combined with restrictive immigration regulations.
Pro-administration liberals, along with President Truman, faced difficulty fending criticism that they were soft on communism. At the same time, they were concerned that conservatives were pushing forward restrictive anti-communist laws, which liberals thought would violate freedom of speech and thought. To counter the strong congressional demand for communist registration bills, the White House and pro-administration Senators proposed the emergency detention bill as an alternative to the conservative-backed measures.
It is also important to note that the drafters of Title II had been involved in creating or administering Japanese American internment. Multiple accounts suggest that the staff of Democratic Senator Paul H. Douglas of Illinois initiated the emergency detention concept.
Professors Cornelius Cotter and Malcolm Smith explained the origin of the detention bill as follows:
The detention provisions which were embodied in the second part of S.4130 [emergency detention bill] reflected a week-end effort to produce an American counterpart to Defense Regulation 18B, under which the British, during the Second World War, arrested and preventively detained persons whose freedom was deemed by a high officer of state to endanger the national security. The bill's framers had a copy of the Regulation before them, and also drew upon the advice of Justice Department officials “who had something to do with the detention of Japanese-Americans” in the last war.
Unfortunately, Cotter and Smith did not reveal the source of this information, so the identities of these Justice Department officials remain unknown.
On the other hand, Senator Douglas's memoirs mention two individuals whose involvement in the drafting of the Emergency Detention Act suggests a direct connection between the design of both Japanese American internment and Title II.
Our progressive group immediately asked Joe Rauh and Frank McCulloch to draft an alternative [to the communist registration bill]. We did not want to take a purely negative position when some real danger to the nation was involved. The alternative we devised was a compulsory-detention law based on the system adopted by Great Britain in World War II. . ..
Frank McCulloch was a Chicago lawyer who, between 1949 and 1961, served as an administrative assistant to Senator Douglas. Joseph L. Rauh, Jr. was a civil liberties lawyer in Washington, D.C., and one of the founders of Americans for Democratic Action. In February 1942, Rauh had advised Attorney General Francis Biddle concerning the constitutionality of Japanese American internment, along with two other prominent lawyers in the administration, Benjamin V. Cohen and Oscar Cox. Shortly before President Roosevelt issued Executive Order 9066, Rauh, Cohen and Cox collectively reported to the Attorney General that military necessity might uphold the constitutionality of a mass exclusion of an ethnic group. According to Rauh's account, months after they drafted the memorandum, Benjamin Cohen was in tears after seeing a newspaper picture of a Japanese American boy being relocated, suggesting that internment seriously distressed the lawyers.
Senator Hubert H. Humphrey, another pro-administration Democrat, co-sponsored the Emergency Detention Act along with Democratic Senators Harley M. Kilgore (the bill's main sponsor), Paul Douglas, Herbert H. Lehman, William Benton, Frank P. Graham, and C. Estes Kefauver. Humphrey had firsthand experience dealing with the aftermath of internment. He was the mayor of Minneapolis during the war, and as such had helped the relocated Japanese Americans settle in the city. In early 1947, then-Mayor Humphrey welcomed Japanese Americans to Minneapolis and urged full Nisei participation in the city's civic activities.
Given the fact that the drafters and sponsors of the emergency detention bill included people who had dealt with internment and were distressed by the incident, it is not surprising that the bill contained clauses designed to prevent a recurrence of such injustice. The text of Title II shows traces of ambiguity and dilemma liberals shared. Liberals were wary of the encroachment of governmental powers into individual liberties. Yet they needed to devise tough measures against domestic and international communism. Thus, liberals authored a concentration camp law, even though they detested the idea of preventive detention. And they adopted the idea of preventive detention because of Japanese American internment. It was the very ambiguity about the constitutionality of internment that gave rhetorical justification for legalizing preventive detention of citizens in the postwar United States.