The Dangers of Protection

The Subversive Activities Control Board (SACB), will begin hearings today in Boston's Federal Building. Four Bostonians have been charged (by the United States Attorney-General) with membership in the Communist Party, and it is the purpose of the Board's hearings to determine whether or not these people are Communists.

The SACB was established by the Subversive Activities Control Act of 1950 (the McCarran Act) which was passed over President Truman's veto during the early McCarthy era and the Korean War. This legislation empowers the attorney-general to order "Communist-action," "communist-front," and "Communist infiltrated" organizations to register as such with his office.

Any group which registers must annually submit to the attorney-general a report of all officers, funds (and their sources), and, in the case of "action" groups, a list of all members. These annual reports are to be open to the public. Members of a registered group cannot hold government jobs or work in defense installations and are liable to prosecution under the Smith Act. Still other restrictions are placed on the functioning of a registered group; for example, mail sent by such a group must be labeled, "Disseminated by--, a Communist organization," and in the case of a labor union, the group loses its NLRB bargaining rights.

The SACB itself consists of five members, appointed by the President and approved by the Senate. Proceedings against any group or individual must first be initiated by the attorney-general, but from there on the Board holds the hearings, hands down the registration orders, and fights appeals in the federal courts.

Naturally the first group the board moved against was the Communist Party itself. After ten years of litigation, the Supreme Court ruled in 1961 that it was legal for the SACB to require the party to register. But the Communists refused to comply, and recently federal courts have held that this failure to register cannot be punished. Because "mere association with the party is incriminating," the courts said, the Fifth Amendment protects the party from the self-incrimination of registration.

Although the SCAB can no longer hope to get the Communists to register as an organization, it can still persecute individuals whom it believes are party members. Furthermore it is free to take action against "front" groups and "infiltrated" organizations. Already the SACB has ordered two dozen such groups to register, including the International Union of Mine. Mill and Smelter Workers and the United Electrical Workers.

The dangers of the SCAB's powers are multifold and its benefits to internal security are imperceptible. As the courts have already held in the case of the Communist Party itself, the McCarran Act is a patent violation of the Fifth Amendment. This logic clearly should protect any organization or any individuals that the SACB might order to register.

But the real evil of such a quasi-judicial board is its power to prosecute without a trial and the threat it poses to free speech. The SCAB merely has to prove that a person belongs to an organization which it deems to be of a Communist nature. Then, whether or not this person has actually committed espionage or any other illegal act, he can be forced to register (and suffer the consequences) or can be penalized by the courts for not registering. In the words of Justice Black, the McCarran Act is "a classical bill of attainder which our Constitution in two places prohibits, for it is a legislative act that inflicts pains, penalties and punishments in a number of ways without a judicial trial."

In order to determine whether or not a group is of a "Communist" nature, the McCarran Act expressly instructs the SACB to examine "the extent to which the positions taken or advanced by it from time to time on matters of policy do not deviate from those of any Communist-action organization..." This sort of guilt-by-parallelism stigmatizes liberal views which sometimes do coincide with the views of Communists. Such legislation, which forces groups to look over their shoulders to see if Communists are agreeing with them, can only serve to paralyze progressive thought.

Today's SACB hearings in Boston are nothing more than an embarrassing reminder of McCarthyism. The attorney-general should recognize this and withdraw all the petitions which he now has before the SACB, thus ending the board's activities (which, incidently, now cost roughly $400,000 per year). And the Congress could do even more towards destroying the vestiges of a disgraceful era (and preventing its recurrence) by repealing the Internal Security Act of 1950.