McCarran Internal Security Act

Provisions

Its titles were I: Subversive Activities Control (Subversive Activities Control Act) and II: Emergency Detention (Emergency Detention Act of 1950).

The Act required Communist organizations to register with the United States Attorney General and established the Subversive Activities Control Board to investigate persons suspected of engaging in subversive activities or otherwise promoting the establishment of a "totalitarian dictatorship," either fascist or communist. Members of these groups could not become citizens and in some cases were prevented from entering or leaving the country. Citizens found in violation could lose their citizenship in five years. The Act also contained an emergency detention statute, giving the President the authority to apprehend and detain "each person as to whom there is a reasonable ground to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage."

It tightened alien exclusion and deportation laws and allowed for the detention of dangerous, disloyal, or subversive persons in times of war or "internal security emergency".

The Act made picketing a federal courthouse a felony if intended to obstruct the court system or influence jurors or other trial participants.

Legislative history

Several key sections of the Act were taken from the earlier Mundt–Ferguson Communist Registration Bill, which Congress had failed to pass.

It included language that Sen. Mundt had introduced several times before without success aimed at punishing a federal employee from passing information "classified by the President (or by the head of any such department, agency, or corporation with the approval of the President) as affecting the security of the United States" to "any representative of a foreign government or to any officer or member of a Communist organization". He told a Senate hearing that it was a response to what the House Un-American Activities Committee (HUAC) had learned when investigating "the so-called pumpkin papers case, the espionage activities in the Chambers-Hiss case, the Bentley case, and others."

President Harry Truman vetoed it on September 22, 1950, and sent Congress a lengthy veto message in which he criticized specific provisions as "the greatest danger to freedom of speech, press, and assembly since the Alien and Sedition Laws of 1798," a "mockery of the Bill of Rights" and a "long step toward totalitarianism".

The House overrode the veto without debate by a vote of 286-48 the same day. The Senate overrode his veto the next day after "a twenty-two hour continuous battle" by a vote of 57-10. Thirty-one Republicans and 26 Democrats voted in favor, while five members of each party opposed it.

Constitutionality

The Supreme Court of the United States was initially deferential towards the Internal Security Act. For example, in Galvan v. Press, the Court upheld the deportation of a Mexican alien on the basis that he had briefly been a member of the Communist Party from 1944 to 1946, even though such membership had been lawful at that point in time (and had been declared retroactively illegal by the Act).

As McCarthyism faded into history, the Court adopted a more skeptical approach towards the Act. In 1965, the Court voted 8–0 in Albertson v. Subversive Activities Control Board to invalidate the Act's requirement that members of the Communist Party were to register with the government. It held that the information which party members were required to submit could form the basis of their prosecution for being party members, which was then a crime, and therefore deprived them of their Fifth Amendment right against self-incrimination. In 1967, the act's provision prohibiting communists from working for the federal government or at defense facility was also struck down by the Supreme Court as a violation of the First Amendment's right to freedom of association in United States v. Robel.

Use by U.S. military

The U.S. military continues to use 50 U.S.C. § 797, citing it in U.S. Army regulation AR 190-11 in support of allowing installation commanders to regulate privately owned weapons on army installations. An Army message known as an ALARACT states "senior commanders have specific authority to regulate privately owned weapons, explosives, and ammunition on army installations." The ALARACT refers to AR 190-11 and public law (section 1062 of Public Law 111-383, also known as the National Defense Authorization Act for Fiscal Year 2011); AR 190-11 in turn cites the McCarran Internal Security Act (codified as 50 USC 797). The ALARACT reference is a truncated version of the public law.

Amended

Part of the Act was repealed by the Non-Detention Act of 1971. For example, violation of 50 U.S.C. § 797 (Section 21 of "the Internal Security Act of 1950"), which concerns security of military bases and other sensitive installations, may be punishable by a prison term of up to one year.

The part of the act codified as 50 U.S.C. § 798 has been repealed in its entirety for violating the First Amendment.

The now-powerless Subversive Activities Control Board was abolished by congress in 1972.

Enforcement

The bill revoked the passport of the renowned singer and actor Paul Robeson, preventing him from traveling outside the United States.

18 U.S.C. § 793 (e) was later used in several cases that did not involve traditional espionage but rather interactions with the media (or in AIPAC's case, lobbyists). These cases included the Pentagon Papers Russo/Ellsberg case (1972), the Morison case (1985), the AIPAC case (United States v. Franklin, 2005), the Thomas Andrews Drake case (2010), and the Chelsea Manning case (2010).