Replies

Is the Emergency Detention Act of 1950 still on the books?

INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS

BOOK II

FINAL REPORT OF THE SELECT COMMITTEE TO STUDY GOVERNMENTAL OPERATIONS WITH RESPECT TO INTELLIGENCE ACTIVITIES

UNITED STATES SENATE

TOGETHER WITH ADDITIONAL, SUPPLEMENTAL, AND SEPARATE VIEWS

APRIL 26 (legislative day, April 14), 1976

a. The Emergency Detention Act

In 1946, four years before the Emergency Detention Act of 1950 was passed, the FBI advised Attorney General Clark that it had secretly compiled a security index of "potentially dangerous" persons. 186 The Justice Department then made tentative plans for emergency detention based on suspension of the privilege of the writ of habeas corpus. 187 Department officials deliberately avoided going to Congress, advising the FBI in a "blind memorandum:"

The present is no time to seek legislation. To ask for it would only bring on a loud and acrimonious discussion. 188

In 1950, however, Congress passed the Emergency Detention Act which established standards and procedures for the detention, in the event of war, invasion or insurrection "in aid of a foreign enemy," of any person: as to whom there is reasonable ffround to believe that such person probably will engage in, or probably will conspire with others to engage in, acts of espionage or sabotage.

The Act did not authorize the suspension of the privilege of the writ of habeas corpus, and it provided that detained persons could appeal to a review board and to the courts. 189

Shortly after passage of the Detention Act, according to a Bureau document, Attorney General J. Howard McGrath told the FBI to disregard it and to "Proceed with the program as previously outlined." Department officials stated that the Act was "in conflict with" their plans, and was "unworkable." FBI officials agreed that the statutory procedures - such as "recourse to the courts" instead of suspension of habeas corpus - would "destroy" their program. 190 Moreover, the Security Index used broader standards to determine "potential dangerousness" than those prescribed in the statute; and, unlike the Act, Department plans provided for issuing a Master Search Warrant and a Master Arrest Warrant. 191 Two subsequent Attorneys General endorsed the decision to ignore the Emergency Detention Act. 192

b. Withholding Information

Not only did the FBI and the Justice Department jointly keep their noncompliance with the Detention Act secret from Congress, but the FBI withheld important aspects of its program from the Attorney General. FBI personnel had been instructed in 1949 that :

no mention must be made in any investigative report relating to the classifications of top functionaries and key figures, nor to the Detcom and Comsab Programs, nor to the Security Index or the Communist Index. These investigative procedures and administrative aides are confidential and should not be known to any outside agency. 193

FBI documents indicate that only the Security Index was made known to the Justice Department.

Regards

J.R.

Its my understanding the Emergency Detention Act of 1950 was repealed in 1971 after hearings by the Internal Security Committee in 1970.

One portion of the Detention Act of 1950 which was the cause of great concern read and caused questions about its Constitutionality read:

Sec. 103. (a) Whenever there shall be in existence such an emergency, the President, acting through the Attorney General, is hereby authorized to apprehend and by order detain, pursuant to the provisions of this title, each person as to whom there is reasonable ground to believe probably will engage in, or probably will conspire with others to engage in, acts of espionage or of sabotage,

The problem with the above section is that it violated the 5th and 6th amendment rights of those arrested.