Veterans of Abraham Lincoln Brigade v. Subversive Activities Control Board/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice HARLAN concur, dissenting.

I think this case is ripe for decision. The controversy is real, not feigned. All of the relevant facts one needs to know to resolve the constitutional question are exposed in the present record.

This is the famous brigade of Americans who fought in the Spanish Civil War against Franco. Approximately 3,000 American youths were members; and of these only about 1,800 survived. Petitioner was formed in 1939 as an unincorporated association and was incorporated in 1940 under the laws of New York, its charter being forfeited in 1952 for failure to file required reports.

The record is detailed. The Court of Appeals, which sustained the Subversive Activities Control Board in finding that petitioner is a 'Communist-front organization' within the meaning of § 3(4) of the Subversive Activities Control Act of 1950, as amended, 64 Stat. 989, 50 U.S.C. § 782(4) (117 U.S.App.D.C. 404, 331 F.2d 64), spoke of 'the tremendous volume of the record' and the 'almost numberless facets of fact involved.' Id., at 413, 331 F.2d, at 73. The history of the formation of the Brigade, its relationship with the Communist Party and with Communists, the manner in which international brigades of this kind were employed by Communists, the role of Communists in forming this Brigade, the affiliations of officers of the Brigade, the ideas and program promoted by the Brigade's official organ, Volunteer for Liberty, the efforts of the Brigade to get its members employed in unions, offices, or factories where a Communist unit or functionary was located, the extent to which the Brigade responded to Party discipline, and the extent to which the Brigade aided and supported the Party-all were fully explored.

Since 1950 the Brigade's affairs have been run almost entirely by an Executive Secretary and a National Commander. Since 1950 its activities have consisted principally of social affairs, rehabilitating and resettling veterans and getting them employment, making statements in opposition to the Franco regime, supporting its members who were indicted under the Smith Act, and defending itself in this proceeding.

This proceeding started in 1953, when the Attorney General petitioned the Board for an order requiring the Brigade to register as a Communist-front organization. Hearings before the Board commenced May 3, 1954, and ended November 16, 1954. Over a year later the Board issued a registration order against the Brigade, and its report in the case. The final order of the Board is dated December 21, 1955. The opinion of the Court of Appeals comes eight years later and is dated December 17, 1963.

But no one suggests that there have been any basic changes in the pattern of the Brigade's activities either since the Board's order or the Court's judgment. The Court of Appeals found no difficulty in concluding that as of the date of the record the Brigade continued to be what it had been in the past:

'The events in 1950-1954 were not factually isolated. The     Brigade continued to operate after 1950. It had the same     officers and occupied the same offices. It continued to     publish its magazine. The character and tone of its     declarations upon the subjects with which it dealt were the      same as those it had always utilized. So that factually, on     this record, the post-1950 activities and policies appear as      a continued, although diminished, stream, rather than as a      separate, new phase of life.' 117 U.S.App.D.C., at 412-413,      331 F.2d, at 72-73.

None of the parties before us has suggested that the record is stale or incomplete; and as noted in my dissenting opinion in American Committee for Protection of Foreign Born v. Subversive Activities Control Board, 380 U.S. 507, 85 S.Ct. 1151, the Act contains a special provision covering that contingency. None of the parties before us has suggested that we need to know more about the Brigade since the Board's decision in 1955. We are told by counsel that what the Brigade once was, it still is.

There is one way and one way only in which this case is getting stale with the passage of time. And that is that the Brigade's membership is not being renewed but depleted. Its membership, as noted, is made up of Americans who fought in the Spanish War against Franco. The mortality table has caused that list to shrink and it will continue to shrink. In 1955 there were only 600 survivors of the Brigade, not all of whom were members of petitioner. Hence in some months or years the case will return to us more stale than it is at the present time.

With all due respect, I think it is indefensible not to decide the important constitutional questions tendered here and now.