IV. Significance of the Emergency Detention Act in Postwar Civil Liberties: Preventive Detention under McCarthyism
Following the passage of the Internal Security Act, the American Civil Liberties Union (ACLU), after careful study, came out in opposition to Title I and supported court cases challenging the communist registration clause. The organization appointed a special committee to study Title II. A month later, the committee recommended that the ACLU should not oppose Title II. The Committee on Emergency Detention Provision of McCarran [Internal Security] Act explained their decision as follows:
At the present time, the persons who may be dangerous to our security . . . are not necessarily aliens, but are likely to be citizens. The Act merely declares that such persons are virtually alien enemies. (They do, indeed, owe a superior allegiance to a foreign power.) There is no reason why an alien who is a threat to our national security at such times should be discriminated against by being interned while a citizen who poses a similar threat should be allowed to go free.
Written by the most influential civil liberties organization, the ACLU's statement declares that disloyal citizens are virtually enemy aliens. Edward J. Ennis, a prominent ACLU lawyer who specialized in cases concerning civil rights and immigration, was one of the committee report's three authors. It is important to note that Ennis was another liberal involved in Japanese American internment. As director of the Alien Enemy Control Unit in 1942, he was directly in charge of both controlling and securing the safety and welfare of Japanese Americans in the wake of the Pacific War. Working under Attorney General Francis Biddle, Ennis opposed the mass evacuation of Japanese Americans so strongly that he considered resigning from the job when the government proceeded with internment. Eight years later, in the wake of the McCarthyist fervor, even staunch liberals such as Ennis equated disloyal citizens with enemy aliens. It shows that in the postwar United States, the border between citizens and aliens ceased to exist in terms of civil liberties. Freedom became a privilege that only those whom the government considered loyal enjoyed. At the same time, the definition of “loyalty” was defined by the government, influential members of Congress, investigative officers, or, in times of war, by the military.
Internment provided not only a historical legacy and a legal precedent, but also a physical model for the detention of American citizens in early Cold War America. In 1952, the Department of Justice completed six detention facilities for those arrested pursuant to Title II: Florence and Wickenburg, Arizona; Avon Park, Florida; Allenwood, Pennsylvania; El Reno, Oklahoma; and Tule Lake, California. Tule Lake had originally been built as a camp to house relocated Japanese Americans but was later turned into a segregation camp that incarcerated those internees categorized as “disloyal.” It was the largest of the War Relocation Authority internment camps, housing over 18,000 people at its peak.
In June 1952, James V. Bennett, Director of the Federal Bureau of Prisons, testified during hearings before the Senate Appropriations Subcommittee that the Department of Justice was spending $750,000 a year to prepare and maintain wartime internment camps for the purpose of housing up to 15,000 subversives. The camps were maintained in “stand-by” status until 1957 under the Bureau's supervision. Title II, however, was never actually invoked before it was officially repealed in 1971. The law was to be activated only when the President declared an “internal security emergency,” and this never happened between 1950 and 1971. In fact, Title II was effectively inactive long before the law's repeal, for the budget allocation for the camps was terminated five years after the government announced the designation of detention camps. As the McCarthyite fervor subsided, the camps and the camp law were forgotten until the law once more attracted public attention in the late 1960s.
Nonetheless, Title II had a substantially negative impact on postwar civil liberties. The blurring of the already nebulous national border was a serious blow to civil liberties, notwithstanding the actual number of people, or the lack thereof, who were detained in concentration camps. The term “disloyalty” was particularly versatile in the political context in which Title II was passed. The Internal Security Act was a legal embodiment of McCarthyism, used by conservative politicians as the equivalent of the all-encompassing term “communist” to persecute those engaged in social reforms to improve race relations, labor relations, and social welfare. Politicians such as Richard Nixon and Patrick McCarran exercised strong influence, particularly in the House Un-American Activities Committee (HUAC) and the Senate Internal Security Subcommittee (SISS), respectively, purging people by branding them “communists” and/or “un-American.” Southern Democrats such as Congressman John Rankin and Senator James Eastland utilized the Cold War discourse of loyalty to empower their pro-segregationist, anti-civil rights political stance. They branded efforts to alleviate racial inequality in the South as “communist” and successfully blocked civil rights legislations promoted by the Truman Administration.
The discursive power of the term “un-American” lay in the fact that those labeled as such were deemed to be outside the national border, regardless of their citizenship status. Hence, the government was not obligated to respect their constitutional rights. The irony of liberals regarding their failure to prevent conservative attack on civil liberties lay precisely on this point. In order to counter arbitrary congressional control of internal security issues, liberals schemed to empower the executive branch so that it had adequate means to prevent subversive activities and still preserve freedom of thought. The measure liberals adopted was Title II, which authorized the internal security agencies, such as the FBI, to arrest people before potential saboteurs had a chance to commit espionage and sabotage. In justifying the preventive detention of citizens, however, liberals discursively constructed their own version of alienable citizens.
Title II legalized emergency detention as a legitimate governmental measure to prevent subversive activities. The safeguard on civil liberties, which the liberal drafters of Title II included in the law, did not function because the FBI ignored the statutory procedures through which the agency conducted the detention policy. In fact, the FBI had been creating a list of potentially subversive persons since the end of the 1930s, and the list grew during the 1940s and 1950s. William Keller argues that the liberal strategy to counter McCarthyism by strengthening the government control on internal security areas led to the growth and transformation of the FBI in the following two decades “from a bureau of internal security with delimited functions into an agency resembling more a political police and an independent security state within a state.” Title II only authorized detention in time of war, invasion, and insurrection. However, preparing for emergency detention required constant surveillance of citizens and aliens during peacetime in order to detain suspects immediately once an emergency occurs. Even though Keller's attribution of this development to liberals has to be discounted by the fact that the Truman administration did not give its full support to Title II, there is little doubt that the law's passage contributed to the development of a formidable domestic surveillance agency completely unaccountable to democratic sanctions.