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  • Mike Martinez

The Safety of the Kingdom: Government Responses to Subversive Threats, Part III

In my last two blogs, I mentioned the publication of my upcoming book The Safety of the Kingdom: Government Responses to Subversive Threats. Carrel Books, an imprint of Skyhorse Publishing, will publish the manuscript in 2015. In my last blog, I discussed the first four chapters of the book. In this posting, I will discuss Chapters 5-10.

Chapter 5. Relocation Centers for Japanese Americans

Following the attack on Pearl Harbor in 1941, President Franklin D. Roosevelt and his military advisers worried that the Japanese might invade the West Coast of the United States. On February 19, 1942, the president issued Executive Order 9066 identifying “exclusion zones” and “military areas” “from which any or all persons may be excluded.” Although the executive order did not specifically mention a particular nationality, it became the basis for a subsequent decision to exclude persons of Japanese ancestry from the West Coast, essentially all of California and much of Oregon, Washington, and Arizona. Roosevelt eventually issued Presidential Proclamations 2525, 2526, and 2527 designating Japanese, German and Italian nationals as enemy aliens.

After public opinion turned against Japanese-Americans early in 1942, the U.S. government decided to intern Pacific Coast residents of Japanese ancestry in a series of camps. Even today, the designation of the camps stirs controversy because of their euphemistic names. Several types existed. The first, known as “Civilian Assembly Centers,” were temporary camps, often located at a horse track, where the Nisei (second generation Japanese-Americans) were housed after they were removed from their homes. Eventually, these people were sent to “relocation centers,” which were long-term internment camps. Government agents sent disruptive Japanese-Americans to U.S. Department of Justice detention camps, Citizen Isolation Centers, federal prisons, or U.S. Army facilities.

On March 18, 1942, the president signed Executive Order 9102 creating the War Relocation Authority (WRA), a civilian agency tasked with operating the camps. Milton S. Eisenhower, General Dwight D. Eisenhower’s younger brother, served as the first WRA director. The agency operated from March 1942 until June 30, 1946.

The WRA eventually operated 10 WRA Relocation Centers, 18 Civilian Assembly Centers, eight Justice Department detention centers, three Citizen Isolation Centers, three federal prisons, and 18 U.S. Army facilities for Japanese-American detainees. Manzanar Relocation Center in California was the most infamous of the WRA relocation camps. By the end of the war, approximately 31,000 suspected enemy aliens and their families had been interned — more than 110,000 people.

The Granada War Relocation Center (also known as Camp Amache) in Colorado is pictured here in December 1942.

The internment process was controversial at the time, and remains so to this day. It was inevitable that the courts would become involved. The most famous case involved Fred Korematsu, a Japanese-American living in California, who refused to comply with the evacuation order in 1942. He was arrested, tried, and convicted of violating the law. He appealed the conviction to the U.S. Supreme Court. On December 18, 1944, the U.S. Supreme Court upheld Korematsu’s conviction by a 6-3 vote. Writing for the court majority, Justice Hugo Black explained that wartime activities sometimes require extreme actions to protect national security. “Korematsu was not excluded from the Military Area because of hostility to him or his race,” Black wrote in an opinion that has been lambasted for its duplicity. “He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this.”

In the years since the Korematsu opinion was handed down, public opinion has overwhelming changed. Many Americans who have studied the case have denounced the Japanese internment. In 1980, the U.S. Congress created the Commission on Wartime Relocation and Internment (CWRIC) to review the issue. On February 24, 1983, the CWRIC published a report, Personal Justice Denied, characterizing the internments as “unjust and motivated by racism rather than real military necessity.” Members of the commission recommended reparations for victims of the program.

Five years later, President Ronald Reagan signed the Civil Liberties Act of 1988 providing $20,000 for each survivor, a total of $1.2 billion dollars. The act also contained a formal apology from the U.S. government to Japanese-Americans. Questions about who should receive reparations and how much they should receive remained contentious. The Civil Liberties Act Amendments, enacted on September 27, 1992, appropriated $400 million in additional funding. On December 7, 1991, President George H. W. Bush issued another apology, this time on the 50th anniversary of the Pearl Harbor bombing. “The internment of Americans of Japanese ancestry was a great injustice, and it will never be repeated,” he said.

Chapter 6. The Internal Security Act of 1950 (The McCarran Act)

The Internal Security Act of 1950, also known as the Subversive Activities Control Act of 1950 or the McCarran Act, named for the sponsor, Senator Pat McCarran of Nevada, was among the many measures debated during a troubling era. Similar to the time when a red scare infected the country following World War I, the early 1950s was a period of enormous social unrest. In 1949, the Soviets acquired the nuclear bomb and mainland China fell to the Communists. In February 1950, a senator from Wisconsin, Joseph R. McCarthy, charged that the U.S. State Department, among other institutions in American life, had been infiltrated by Communists intent on subverting the American way of life. The McCarran Act was a reaction to the hysteria of the time.

Senator Pat McCarran of Nevada, once described as an "aging hack," sponsored the Internal Security Act of 1950.

Pat McCarran, once described as “an aging hack,” had built a congressional career as a fierce anti-Communist. He was tailor-made for the McCarthy era. In the aftermath of McCarthy’s incendiary comments, Senator McCarran wasted no time in pushing his legislation through Congress. President Harry Truman was disgusted by the McCarran anti-Communism bill. In his view, it “would make a mockery of our Bill of Rights [and] would actually weaken our internal security measures.” Citing an example from American history, Truman pronounced the bill “the greatest danger to freedom of speech, press, and assembly since the Alien and Sedition Laws of 1798.”

On September 22, 1950, the president vetoed the bill. To the president’s chagrin, the U.S. House of Representatives overrode the veto without debate by a vote of 286-48 that same day. The Senate ferociously debated the bill, but in the end, 57 senators agreed to override the veto and 10 voted against it. In both houses, the votes were far beyond the constitutionally required two-thirds majority.

Among other things, the act created a Subversive Activities Control Board (SACB) to investigate subversive activities, required registration for members of the Communist Party, prohibited protests at federal courthouses, and addressed non-citizen deportation during times of war. Throughout the 1950s, the SACB interrogated hundreds of witnesses in search of Communist organizations as well as Communist fronts. The American Communist Party eventually challenged the law in court. After 11 years of litigation, including two U.S. Supreme Court cases, the high court finally announced the decision in Communist Party v. Subversive Activities Control Board (1961). The court upheld the registration requirements but withheld judgment on the constitutionality of other provisions that had never been enforced. The act remained in effect but essentially died in 1973 when Congress refused to appropriate sufficient funds for enforcement.

Throughout the years, the McCarran was only selectively enforced. Arguably the most infamous case of enforcement involved actor-singer Paul Robeson, who found his passport revoked owing to his suspicious affiliation with Communism. The McCarran Act served as a complement to the House Un-American Activities Committee investigations later in the 1950s as well as the FBI’s COINTELPRO efforts in the 1950s and 1960s.

After the Supreme Court struck down portions of the law as unconstitutional, Congress repealed the registration requirements in 1968. As of this writing, most of the law has been overturned, yet a few sections remain intact. Current federal law in 50 U.S.C. § 797 (Section 21 of the Internal Security Act of 1950), for example, still governs security on military bases and other sensitive installations.

Chapter 7. The House Un-American Activities Committee (HUAC)

The House Un-American Activities Committee (HUAC) was an investigative committee of the U.S. House of Representatives created in 1938 to determine whether Communist forces threatened the welfare of the American republic. In 1945, the House voted to make HUAC a standing committee. Afterward, it reached the height of its infamy searching for evidence of Communist subversion in the aftermath of World War II.

Arguably HUAC reached the apex of its power and influence in the late 1940s investigating the Alger Hiss-Whittaker Chambers case. In July 1948, Elizabeth Bentley, an American who had spied on behalf of the Soviet Union in New York, identified several Soviet spies in the United States, including Whittaker Chambers, a Time magazine editor. Responding to a congressional subpoena, Chambers appeared before HUAC and “named names.” One of the alleged spies he identified, Alger Hiss, was a State Department official who had been instrumental in several post-World War II conferences, including the Yalta conference in 1945 and the meeting that helped to create the United Nations.

In many ways, Hiss was the “golden boy” of the Roosevelt administration. A handsome, bright, Harvard-educated lawyer, he was one of the new generation of leaders that hoped to guide public policy in the postwar United States. When he was compelled to appear before HUAC and defend himself, Hiss categorically denied his involvement in espionage. After a series of heated exchanges with Chambers, Hiss found himself under a blistering attack by committee members, especially a young congressman from California named Richard M. Nixon. Eventually, the committee referred the case to a grand jury, which indicted Hiss on perjury charges. The statute of limitations prevented prosecutors from pursuing an espionage case. Hiss was convicted of perjury and sentenced to serve five years in prison. He served three years and eight months. To the end of his long life, Hiss argued that he was innocent.

HUAC's investigation of Alger Hiss, pictured here as he testified during a hearing, captured headlines around the world.

HUAC indefatigably investigated Communist subversion in the 1950s. Its glory years continued, to some extent, with Senator McCarthy’s witch hunt. After McCarthy was discredited and censured, HUAC entered a period of slow decline. A backlash occurred against government abuses during the 1960s as many citizens objected vehemently to the use of congressional resources to blacklist “undesirable” liberals in Hollywood. In particular, anti-Vietnam protesters targeted HUAC as an instrument of oppression and a means for witch-hunting. In 1969, to forestall additional criticism, the committee changed its name to the Internal Security Committee and limped along for another six years. In 1975, Congress abolished the committee altogether.

Chapter 8. The FBI and COINTELPRO

During the early 1970s, the FBI came under attack for its counterintelligence program, known by the code name COINTELPRO. The program originated in 1956 in response to FBI director J. Edgar Hoover’s concerns about the pervasive activities of subversive groups, primarily the U.S. Communist Party. During the ensuing years, COINTELPRO expanded to include surveillance on a variety of groups deemed a security risk to the United States government, including the Ku Klux Klan, the Nation of Islam, the Black Panther Party, nonviolent civil rights groups, and leftist organizations such as Weatherman. Ignoring constitutional requirements and other legal niceties, investigators frequently used electronic surveillance without a warrant or effective judicial oversight. Aside from employing surveillance activities in clear violation of the Fourth Amendment to the U.S. Constitution, the Bureau used a campaign of “dirty tricks” to browbeat suspects and persons of interest into curtailing their activities. Sometimes FBI agents sent anonymous letters to group members threatening to expose a compromising secret or publish a salacious photograph if the subject did not cease and desist in his or her activities. No manner of blackmail or innuendo was beyond the pale.

COINTELPRO might have continued indefinitely were it not for a breach of security. A group calling itself “Citizens’ Commission to Investigate the FBI” burglarized an FBI office in Media, Pennsylvania, in April 1971. Thieves absconded with hundreds of pages of confidential COINTELPRO files clearly showing the Bureau’s interest in radical groups. To minimize the resultant backlash, Hoover formally dissolved COINTELPRO in 1971.

J. Edgar Hoover served as director of the FBI from 1924 until his death in 1972. He orchestrated the COINTELPRO operation.

Congress subsequently investigated COINTELPRO and other FBI tactics employed in the 1950s and 1960s. In 1978, during the Carter administration, U.S. Attorney General Griffin Bell launched an investigation that resulted in criminal indictments brought against several high-ranking FBI officials. The negative publicity and intense public scrutiny of the post-Hoover era FBI ensured that much of the information collected against radical groups could not be used to prosecute suspected offenders.

Chapter 9. The Post-9/11 War on Terror

With passage of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, commonly referred to as the USA PATRIOT Act (USAPA), following the terrorist attacks of September 11, 2001, federal law enforcement officials received enhanced police powers. Roving wire taps, the expansion of authority to request pen registers and trap-and-trace devices, including Internet records, the ability to request “any tangible thing,” and the expansion of National Security Letter (NSL) authority (similar to subpoena authority, but not issued by a judicial officer) all represented powerful data-mining tools in the war on terror. These powers allowed the federal government to cast a wide net in the hopes of collecting information that detects terrorist planning and support.

According to critics, enhanced government authority to investigate terrorism after 9/11 had an adverse effect on civil liberties. With enhanced surveillance techniques, the federal government is able to access more electronic information about people than it ever has in the past. Distrustful citizens argue they have no idea what information has been accessed, stored, and analyzed due to the confidentiality provisions that apply to most post-9/11 national security-related activities.

President George W. Bush meets with his National Security Council on Wednesday, September 12, 2001. Seated with the President are, from left to right, Secretary of Defense Donald Rumsfeld, Secretary of State Colin Powell, and Vice President Dick Cheney. The Bush administration championed the need for extraordinary government authority to fight terrorism.

Defenders explain that all actions undertaken in the interests of national security are subject to review by the United States Foreign Intelligence Surveillance Court (FISC). Created by the Foreign Intelligence Surveillance Act of 1978 (FISA), the FISC is charged with balancing the competing values of freedom and authority. The court oversees the federal government’s covert surveillance activities of foreign entities and “subversive” individuals inside the United States while maintaining the secrecy needed to protect national security.

For much of its history, the FISC has not been controversial among most members of the general public. The issue became politically charged in June 2013 when a former contractor for the National Security Agency (NSA), Edward Snowden, leaked details of an ongoing surveillance program to a British newspaper, The Guardian. As of this writing, Snowden is a wanted fugitive living in Russia to avoid coming back to the United States to face espionage charges.

Aside from concerns about national security, criminal law has been affected by the post-9/11 laws. Changes to restrictions on sharing federal grand jury information and the expansion of “sneak and peek” warrants reflect significant shifts from long-held criminal procedures protecting the rights of those who have not been convicted of a crime. Moreover, the “sneak and peek” warrant authority is not limited to terrorist or intelligence investigations. Over 98% of “sneak and peek” warrants are issued for non-terrorist or national security investigations. It is difficult to justify enhanced police authority owing to a need to protect the nation from 9/11-like attacks if terrorism is not the underlying concern.

Critics charge that it is difficult to conceive of a rollback of government authority under the USAPA. It is also impossible to measure with any precision the impact of the changes on national security or the impact on individual liberty. If there is an opportunity to change USAPA, detractors contend that Congress should restrict powers to national security investigations for a limited time following a national emergency. Congress also should ensure open, transparent judicial review and oversight, not simply FISC scrutiny. There should be appropriate public dissemination of data and information about the use of enhanced powers and their impact on national security and individual liberty so the public can make an informed judgment on the efficacy and desirability of extraordinary police powers.

Chapter 10. Conclusions and Lessons Learned

The final chapter of the book discusses problems in balancing freedom and authority in the American regime. In some instances, the government reaction to terrorist attacks and fears about the possibility of subversion may lead to abuses beyond the initial attack itself. Governments must act to protect their citizens but, in doing so, they must develop appropriate safeguards. With the loss of transparency comes the potential for abuse. If the old adage is correct that sunlight is the best disinfectant, the loss of sunlight can lead to a multitude of seemingly-intractable problems for a democratic regime.

Eugene V. Debs, an avowed Socialist, believed he should "speak the truth to power."

The conclusion examines two salient examples from twentieth century American history: Eugene Debs and Joseph McCarthy. Debs, the avowed socialist and presidential candidate, in his day was viewed as a substantial threat to the American system of government because he espoused unpopular ideas. Joseph McCarthy, at least early in his career, garnered support from a significant number of Americans who did not see him as a booze-swilling demagogue but as a guardian of American values from the insidious forces of Communism and oppression. Today their reputations are reversed. The unpopular Debs has become a symbol of an abrasive patriot who dared to speak the truth to power at great personal sacrifice. McCarthy has become a symbol of the overbearing, tyrannical public official who, drunk on power, misuses his office to advance an ideological agenda. Thus doth history demonstrate the moral ambiguity of the freedom-authority divide.

Wisconsin Senator Joseph McCarthy launched an infamous witch hunt to root out Communists in American institutions during the early 1950s.

Each of the nine cases explored in this book involves the U.S. government’s response to a perceived threat. In responding to the threat, governments must restrict some measure of human freedom. The nature and character of those restrictions must be monitored and altered as conditions change. In times of war and imminent national peril, citizens understand the need to surrender a measure of individual freedom in the interest of collective security. Citizens expect the government to protect them. Yet that temporary condition must never be allowed to become permanent. The citizenry must be eternally vigilant to ensure that a government based on the consent of the governed remains a reality as well as an ideal.

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