The mass arrests that did not occur

The New York Times today reports on one of a batch of newly declassified documents from the early 1950s. The document in question, a memo from then FBI Director J. Edgar Hoover, is dated July 7 1950 (only two weeks after the outbreak of the Korean War). Hoover was angling for President Truman’s permission to implement a plan to suspend habeas corpus, arrest thousands of citizens who were “potentially dangerous”, hold them for an unspecified period, and permit the Attorney General to create special tribunals to decide whether to keep them imprisoned.

Hoover was hoping, in other words, for something close to a declaration of martial law.

For some months representatives of the FBI and of the Department of Justice have been formulating a plan of action for an emergency situation wherein it would be necessary to apprehend and detain persons who are potentially dangerous to the internal security of the country. I thought you would be interested in a brief outline of the plan.

Action to Be Taken By the Department of Justice

The plan envisions four types of emergency situations: (1) attack upon the United States; (2) threatened invasion; (3) attack upon United States troops in legally occupied territory; and (4) rebellion.

The plan contains a prepared document which should be referred to the President immediately upon the existence of one of the emergency situations for the President’s signature. Briefly, this proclamation recites the existence of the emergency situation and that in order to immediately protect the country against treason, espionage and sabotage the Attorney General is instructed to apprehend all individuals potentially dangerous to the internal security.

In order to make effective these apprehensions, the proclamation suspends the Writ of Habeas Corpus for apprehensions made pursuant to it. The plan also contains a prepared joint resolution to be passed by Congress and an Executive Order for the President which too will validate the previous Presidential proclamation.

The next step in the plan is a prepared order from the Attorney General to the Director of the FBI to apprehend dangerous individuals, conduct necessary searches and seize contraband as defined in the plan. Together with the order to the Director of the FBI the Attorney General will forward a master warrant attached to a list of names of individuals which names have previously been furnished from time to time to the Attorney General by the FBI as being individuals who are potentially dangerous to the internal security.

It should be pointed out that the plan does not distinguish between aliens and citizens and both are included in its purview. If for some reason the full plan is not put into operation it has so been drawn that the section applicable only to alien enemies may be put into effect.

Hoover goes on to describe an “index” of about 12,000 dangerous people, nearly all citizens, whom the FBI had been watching for some time (since at least 1948). After these 12,000 “potentially dangerous” people were locked up without charge, their dangerousness would be assessed by what are unmistakably kangaroo courts.

The plan calls for a statement of charges to be served on each detainee and a hearing be afforded the individual within a specified period. The Hearing Board will consist of three members to be appointed by the Attorney General composed of one Judge of the United States or State Court and two citizens. The hearing procedure will give the detainee an opportunity to know why he is being detained and permit him to introduce material in the nature of evidence in his own behalf. The hearing procedure will not be bound by the rules of evidence.

The Hearing Board may make one of three recommendations, that is; that the individual be detained, paroled or released. This action by the Board is subject to review by the Attorney General and the Attorney General’s decision on the matter will be final except for appeal to the President.

It seems pretty clear that Truman rejected Hoover’s plan, or at least refused to give an order to implement it. In retrospect, it may be easy and certainly is pleasant to assume that such a hare-brained scheme would go nowhere. But it’s closer to the truth to say that it was far from inevitable during the summer of 1950 that the president would turn down this ridiculously unconstitutional scheme. It’s worth pausing to consider how narrowly the nation avoided that fate.

Truman had had a spotty record on civil liberties for years. In March of 1947, for example, he created governmental “loyalty boards” that inquired into the “loyalty” of all federal employees. These pernicious boards eventually got some 400 – 1200 federal workers fired, and another 1000 or more employees resigned. It was one of several ugly marks against a president who was too ready to give ground to anti-communist hysteria in Congress, and too willing to appease several hardliners among his own top officials (such as his Attorney General, Tom Clark, whom Truman described as addicted to “secret police proposition(s)”).

In creating these loyalty boards Truman acted to pre-empt the Republican Congress from legislating something even more abusive of civil liberties. Truman also feared that something truly evil might be stirred up by Hoover, whom he loathed. Truman told Clark Clifford on May 2, 1947 that he “wants to be sure and hold FBI down, afraid of ‘Gestapo’”. Truman believed, rightly I think, that Hoover had assembled enough dirt on members of Congress that they would give in to almost any of Hoover’s demands. In fact within hours of taking the oath of office in 1945, the President had his eye on the manipulative Hoover (Hoover had sent over to the White House a young FBI agent from Truman’s home town, to chat the new President up).

So the background to this notorious decision from 1947 illustrates that Truman, far from indifferent to the Bill of Rights, instead believed that he was fighting as best he could on its behalf. His profound skepticism of the FBI Director was both a personal as well as a politically savvy judgment. For all his faults (including cronyism, occasional ineptitude, stubbornness), Truman was at least a very sharp, self-reflective, and principled man. Such a person has the potential to rise above his times.

To return to Hoover’s plan in July 1950. He was attempting to turn the military crisis on the Korean peninsula to his own aggrandizement by introducing (with little public notice) a policy of illegal secret detentions and a separate, secretive, and illiberal court system–under color of a national emergency. Hoover was trying to achieve something like what Dick Cheney’s gang did succeed in creating after September 2001.

Today’s NYT report by Tim Weiner draws attention to some of those parallels, but it strikes a false note in setting the political context of Truman’s actions:

In September 1950, Congress passed and the president signed a law authorizing the detention of “dangerous radicals” if the president declared a national emergency. Truman did declare such an emergency in December 1950, after China entered the Korean War. But no known evidence suggests he or any other president approved any part of Hoover’s proposal.

In point of fact Truman did NOT sign the McCarran Act in September 1950. Quite the opposite, he vetoed the bill and denounced it as unconstitutional. I quote from Alonzo Hamby’s biography, Man of the People:

But on this bill, the president–implicitly comparing himself with Jefferson in 1798 and encouraged in this direction by key aides–was determined to draw the line. He would not, he had told them for months, sign “a sedition bill.”

On September 22, he released a long veto message, which he had sent with a personal appeal for consideration to every member of Congress. Its most memorable line asserted: “In a free country, we punish men for the crimes they commit, but never for the opinions they have.”

Congress then overrode Truman’s veto and enacted what the American public quickly dubbed the “concentration camp law”. Most of the McCarran Act was subsequently ruled unconstitutional, or repealed.

In the long term, Truman emerged from this losing battle looking like a statesman. But in the heat of a mid-term election, with Democrats facing unrelenting attacks from Republicans for alleged weakness in rooting out “subversives”, and having too few Congressional allies willing to fight back against the Nixonian mob, it took political courage to veto the McCarran Act. Or was it principle, or ‘character’, that was required?

Whatever the cause, the country was fortunate to have a real leader when Hoover’s vicious scheme for destroying the Writ of habeas corpus needed to be rebuffed. And whatever that trait is, I’m looking for it in the next president. I’m searching for a candidate who can be trusted to take a firm line the next time the crazies try to pull a stunt like this.

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