Epitaph for the SACB

...But it surfaced again in 1950, with the outbreak of war in Korea and the conviction of Alger Hiss, as part of Senator Pat Mc-Carran's omnibus Internal Security Act, covering everything from the defense plants where Communists would not be permitted to hold jobs to the concentration camps that would hold them in the event of a national emergency...

...That October the Board order became final, and two months later the CP was indicted for failing to register...

...Under the new law, the Attorney General was required to give an explanation to Congress by July 1, 1968, if her still had not passed along any new cases...

...The registration provision, he predicted, would easily be evaded by Communists and would tend to threaten the free speech of non-Communists...

...The CP, whose spokesmen had declared from the beginning that they had no intention of cooperating in their own harassment, took the issue to the Court of Appeals, where the statute was upheld...

...Yet Lucas' acquiscence to the prevailing anxiety did not save him from losing in the November 1950 elections to Everett McKinley Dirksen, who made much of the Communist issue...

...No one could provide that assurance...

...Meanwhile, in 1962 the Attorney General had brought action against 10 CP officers under the provision of the law requiring individual members to register if the organization failed to do so, as was patently the situation...

...Leading the opposition, Democratic Senator William Proxmire of Wisconsin expected or hoped that the amendment, which left the Board's future in the hands of a liberal Attorney General, would be its "ultimate death warrant...

...Two years later the Court of Appeals overturned this conviction, too, pointing out that by subjecting the Communist party "to the combined sanction of compelled disclosure and criminal punishment" the McCarran Act was "hopelessly at odds" with the constitutional privilege against self-incrimination...

...Its career invited episodes of the lower forms of politicking at the highest levels of government...

...The following June the Supreme Court, by declining to review, let this decision stand...

...This wretched law, designed to expose Communists, exposed itself and its makers, slight men who built careers upon the distracted times...

...The seven names submitted by Ramsey Clark as well as 15 others submitted by John Mitchell were scratched...

...The juggling started in April 1953, when the SACB concluded, after listening to such stars of the ex-Communist circuit as Benjamin Gitlow and Louis Budenz, that the party was in fact a Communist-action organization and thus had to register with the Attorney General...

...Court of Appeals declared that the 1967 law authorizing publication of Communists' names was unconstitutional...

...In July 1971 he issued an Executive Order giving the Board, child of his flaming youth, power to hold hearings and assist in determining which organizations ought to be declared subversive by the Attorney General...

...And its prolonged existence reminds us that in the absence of a political birth control pill, the passions of an hour can produce a burdensome embarrassment to the country for years thereafter...

...The cruel fate of the Internal Security Act-deformed, unfinished, sent into this breathing world scarcely half made up-was to survive...

...The SACB, like the heroine in the Saturday serial, was plunging toward extinction...

...And in the contest for the Senate seat from California, the young Richard Nixon defeated Helen Gahagan Douglas by using tactics he would later express some misgivings about...

...At length, a compromise amendment was added that called for the SACB to go out of existence unless new proceedings were brought before it during 1968 and hearings were held...

...in the Senate, the division was 70 to 7?Lyndon Johnson, J. William Ful-bright and Hubert Humphrey voting with the majority...

...Its sole pending case, dealing with the W.E.B...

...Moreover, the law required the officers of a subversive group to register if their organization did not...

...In a bow to the Constitution, the Internal Security Act stated that belonging to such an organization was not in itself a crime, nor was registration to be used against an individual in any prosecution...

...President Truman, who in these years was staving off attacks from the Right by maintaining a tough-on-Reds position of his own, sent down a strongly worded veto...

...Yet, without straining for Big Meanings, we can, I think, find in the life of a lamentable, unlamented enterprise some points of interest about the times through which we have passed, the men who led us along the way, and the institutions that were their instruments...

...Solicitor General Erwin N. Griswold appealed the case to the Supreme Court...

...It had become clear that no job, invidious or innocuous, could be invented for this creature that would not get it into trouble with the law...

...The Supreme Court, however, returned the case to the Board so that it might study challenges against the credibility of three of the Attorney General's witnesses...

...The McCarran Act was passed by overwhelming margins...

...Ironically, he now found himself arguing in favor of a law concocted to do the very job that had previously affronted him...

...This inherent confusion was compounded in a nationally broadcast debate between the two leading contenders for the Republican Presidential nomination...

...Within the House Committee on Un-American Activities (HUAC), two approaches were advanced to contain the domestic threat: One was to outlaw the Communist party, the other to compel the party and its front groups to register...

...The Board's troubles were not over, though...

...The juices were running on the Right...

...Thus, there would be exposure without self-registration: The Communists would be relieved of the obligation to incriminate themselves, and the SACB would have something to do...

...On that deadline, Clark submitted a request to the SACB to declare seven persons members of the Communist party...

...For nearly a quarter of a century the SACB served as a mat on which the Executive, the Legislative and the Judicial branches sought to pin one another...

...Scott Lucas of Illinois, the Senate Majority Leader, offered this explanation of his vote to override the veto by his party's chief: "The American people are anxious to have an anti-Communist bill placed on the statute books...

...The SACB's lineage goes back to 1948, when the Communist menace was much on the nation's mind...

...He pleaded in behalf of the Government that the lower court's decision would frustrate the SACB's reason for existence-in its chairman's words, to "expose and disclose...

...Under the generous and probably unconstitutional language of this directive, the SACB would have been permitted to go after the non-Communist radical groups on campuses and in ghet-toes that had been making such a commotion in the latter 1960s...

...At this the Justice Department gave up ?The case is dead...

...From the fact that it made any attempt to establish a totalitarian dictatorship under foreign domination a crime and declared the Communist party was trying to do exactly that, one might infer the party would in effect be outlawed, since every Communist who registered might thereupon be jailed for his part in the ubiquitous conspiracy...

...Critics could not straight-facedly complain of McHugh's inadequacies, for the position required nothing of him, so they focused instead on the Board and its blank record...

...The Attorney General had done exactly what Senator Proxmire was sure he would not do...

...The Willis bill passed the House handily, but opposition developed in the Upper Chamber when Senators learned from the Wall Street Journal that, in a fit of inattention, they had just confirmed for a place on the SACB one Simon F. Mc-Hugh Jr., a 29-year-old holder of a degree in Business Administration, who earned his new post (then worth $26,000 a year) by marrying a former secretary of Lyndon Johnson's...

...Then Richard Nixon came riding to the rescue...

...Since they were all publicly known as CP functionaries in their home states, the chore was neither difficult nor useful-but it was enough to keep the Board alive...

...Even Billy Graham doesn't have time to mark the fall of every official sinner...

...U.S...

...Again the Board declared that the CP must register, the Court of Appeals upheld the decision, and the Supreme Court agreed to review the matter...

...If they did not avail themselves of this opportunity, the Justice Department could then present its evidence and ask the newly created Subversive Activities Control Board to order the named organizations to register under pain of fine and imprisonment for their officers...

...Their predicament touched a chord at HUAC, where the Mundt-Nixon registration provision had originated a generation before...

...He was convinced, he told the Senate, that "the outstanding Attorney General of the United States, the Honorable Ramsey Clark, would not be a party to any sham proceedings before the SACB and that, in January of 1969, his determination would result in the abolition of this do-nothing mischievous Board...

...Both Thomas E. Dewey and Harold E. Stassen seemed to favor the bill, the latter because it would outlaw the Communists, the former because it would not...

...It was widely appreciated at the time that Clark was merely a middleman in an old-fashioned political trade...

...The Board hung on in the face of growing Congressional reluctance to supply the $450,000 a year it required to do nothing, until the Administration caved in and decided not to seek an appropriation for fiscal '74...

...Dragged along through the courts into an era when the internal Red menace could barely be taken seriously even by Congressmen, its main accomplishment was to confirm the virtues of judicial review...

...in the Justices' view, the record was "tainted with perjury...

...Senate Minority Leader Dirk-sen, who had found the SACB congenial to his impulses of patronage as well as patriotism, was putting pressure on the Administration...

...Unlike the original registration requirement, it was not a violation of the Fifth Amendment, but it was, in the Court's opinion, a violation of the First Amendment's guarantee of political association, because it allowed the Board to single out CP members without proof that they actually held subversive views...

...In the mid-'50s Griswold, then dean of the Harvard Law School, had written an influential paper arguing that no inference could fairly be drawn from a witness who took the Fifth Amendment upon being asked whether he was a Communist...

...he had instituted a sham proceeding and saved the Subversive Activities Control Board...

...Nonetheless, his veto was beaten back resoundingly in both chambers (57 to 10 in the Senate, with Humphrey now leading the minority in 22 hours of debate...

...Soon after Richard Nixon took office and appointed to the SACB Otto F. Otepka-who had lost his job as chief evaluator at the State Department for passing classified documents to the Senate Internal Security Subcommittee-The U.S...

...At that point the Board had not called a hearing for two years...

...In December 1963-more than 13 years after passage of the McCarran Act-A three-judge panel of the Court of Appeals for the District of Columbia reversed the conviction on the grounds that the government had not proved there was anyone alive willing to run the risk of incriminating himself by registering as a member of a party that had been labeled "a criminal conspiracy...

...During these years of litigation, not one group, not one person was registered under the 1950 law, leaving the members and staff of the SACB with nothing much to do except gird themselves for the next blow from the courts...

...In November 1965 a unanimous Supreme Court ruled that individuals could not be required to register, for even though they could not be prosecuted for their admission of membership, it might still be used as evidence or as an investigatory lead that would subject them to prosecution under other Federal laws "in an area permeated with criminal statutes...

...The Senate adjourned without voting on the measure, which was opposed by the entire American Left...

...He introduced a bill authorizing the Board to determine who the Communists were, whereupon the Attorney General would enter their names in a public register...

...Like a lighted firecracker in a vaudeville routine, the registration requirement was tossed about among the Communist party, the SACB, the courts, and the Congress for two decades?without ever going off...

...In Maryland, Democratic Senator Millard Tydings, who had represented his state most conservatively since 1927 and also voted to reject the veto, was defeated after a soft-on-Com-munism campaign against him by Joseph McCarthy, the junior Senator from Wisconsin, who thereby markedly advanced his own political rank...

...That was as it must be...

...Dubois Clubs, was getting nowhere...

...it was tried in District Court, found guilty and fined $120,000...

...Perhaps to the Solicitor General's relief, the Justices were unmoved and the decision stood...

...The Justice Department tried again, producing a pair of FBI informers who said they would be happy to register the party and submit a list of its members to the Attorney General...

...So our sad-sack Federal agency has come to an end, done in by the defects of the act that created it-the outstanding legislative accomplishment of Congressman Nixon and the House Committee on Un-American Activities...

...The Court of Appeals sent the case back this time so that the defendants might be given an opportunity to examine FBI reports, in accord with a rule laid down by the Supreme Court in 1957...

...In the House, it was efficiently managed by Congressman Nixon...

...The dubious testimony was stricken, and the Board reaffirmed its decision...

...In June 1961, as the Cold War was ebbing and politicians were finding it more difficult to make their way upward on the corpse of the Communist party, the High Court by a vote of five to four upheld the constitutionality of the registration requirement, but declined for the time being to rule on a number of important questions because the party had not yet been convicted of anything...

...A faithful try-but futile...

...Did this mean that a registrant could be certain he would not be ensnared by the 1940 Smith Act, which made it a crime "to teach and advocate the overthrow of the United States Government by force and violence...

...After the Court of Appeals' 1967 knock-out blow, Chairman Edwin Willis of Louisiana began the rites of resuscitation...

...Responsive to the caution of J. Edgar Hoover that an outright ban would only drive the Reds underground, the committee chose registration-And the Mundt-Nixon bill sailed through the House of Representatives, swept on by gusts like those from Michigan Republican George Dondero: "The world is dividing into two camps-freedom versus Communism, Christian civilization versus paganism, righteousness and justice versus force and violence...

...As adopted by the House, the bill contained an element or two of ambiguity...

...With their help the CP was again convicted in 1965...

...Under the registration provision of the Internal Security Act, the Communist party and any front organization-Supposedly identifiable by "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 the Communist movement" ?were given 30 days to register and file information with the Attorney General regarding their officers, membership, finances, and printing facilities...

...The life of the SACB was reportedly his price for supporting the President's nominations of Abe Fortas to be Chief Justice and Homer Thorn-berry to be Associate Justice of the Supreme Court...