The Reverend Dr. John A. Mackay, moderator of the Presbyterian Church in the United States, in his ringing letter of November 2, 1953, said: Some congressional inquiries have revealed a distinct tendency to become inquisitions. These inquisitions, which find their historic pattern in medieval Spain and in the tribunals of modern totalitarian states, begin to constitute a threat to freedom of thought in this country. Treason and dissent are being confused. The shrine of conscience and private judgment, which God alone has a right to enter, is being invaded. Un-American attitudes toward ideas and books are becoming current. On March 11, 1953, the general board of the National Council of Churches of Christ in the United States adopted a policy statement on congressional investigations. Parts of that statement read as follows: Congress has the right and duty to make such investigations as may be necessary to secure the information upon which sound legislation may be based. Conspirators in any area of life who seek the violent overthrow of the Government of the United States should be discovered, tried in American tribunals, and where found guilty, punished. No witness at any investigation should be denied fair and dignified treatment. Having sworn to tell the truth, the whole truth, and nothing but the truth, he should be permitted the right of an uninterrupted initial statement of reasonable length, since unlimited right of cross-examination by all members of the investigating committee is allowed. No committee should circulate on its letterhead, over the signature of its members or employees, unsupported charges against individuals or organizations which it has made no effort to investigate or substantiate. The proper and essential function of congressional investigations must be preserved. It must be jealously guarded against abuse through methods that are now bringing it into disrepute. Enough has been said-here and elsewhere-to demonstrate the imperative, almost desperate, need for regulation of this potent instrument of Government, so that the essential process of detecting subversion does not lead to the enduring injury of innocent people. As far back as 1948 the Association of the Bar of the City of New York recommended the adoption of a code of procedures to govern congressional investigating committees. Recently, the New York County Lawyers Association and the New York State Bar Association announced that they joined the Association of the Bar of the City of New York in its recommendation of the adoption of fair procedures for all legislative investigating committees. We do not propose to duplicate the contribution of bar associations by suggesting specific provisions which might be incorporated into such a code. That is within the special competence of professional groups. However, there are moral and ethical considerations which dictate that certain broad principles be incorporated in any code recommended by this committee. They are: 1. The scope of a congressional inquiry should be clearly defined and the inquiry should be kept within the scope so defined. Both the Congress and the courts have been alert to prevent administrative agencies from engaging in "fishing expeditions." Limitation upon the scope of the congressional inquiry, publicly announced, would serve to protect witnesses, since the Supreme Court has held in United States v. Rumely that they may justifiably refuse to answer questions outside the scope of a committee's purpose. I might say, parenthetically, it was refreshing to see that the unanimous vote of the Republican policy committee had advocated the limitation of such a scope of the investigation. 2. The very essence of the committee procedure is to insure the opportunity for discussion prior to action and to guard against autocratic behavior by an individual member. Hence, no subcommittee should be permitted to function with fewer than two members present, preferably representing both major political parties. If the testimony received at sessions of any committee or subcommittee serves no legislative purpose and tends to injure the reputation of individuals, living or dead, its public release cannot reasonably be justified. In no case should a member of the committee or of the staff be permitted to issue a press release or public statement based on the testimony taken in executive session. If the material is to be released to the public, the entire testimony should be released. I might say, in passing, also, that the substance of this proposal was approved unanimously by the Republican policy committee. 3. There should be a clear definition of the witness' right: to submit a statement of reasonable length; to question other witnesses who have impugned his character or behavior; and to introduce testimony on his own behalf. Similiarly, persons mentioned unfavorably in the course of congressional hearings should be so advised and given an opportunity to submit testimony in their own behalf. The Congress must appreciate that unrefuted or unexplained testimony received before its investigating committees can have a devastating effect upon an individual's reputation and even, if you will, on his ability to earn a livelihood. 4. There should be an affirmation of the right of a witness to counsel of his own choosing, and a definition of the rights and duties of such counsel. 5. Stenographic records of all testimony taken in hearings should be made available to the witness and to those whose reputations have been called into question. 6. On occasions, some committee hearings have appeared to become spectacles rather than serious attempts to ascertain the facts. Radio and television coverage of hearings have tempted witnesses, and even some Members of Congress, to play to the public spotlight. We would, therefore, urge that, in order to expedite the serious and important work of congressional committees, no moving pictures, television, or radio broadcasting of committee proceedings be permitted while any witness is testifying and this whether or not the witness has consented to such publicity. 7. Individual guilt or innocence should not concern a congressional investigating committee, except to report possible violations of law to the proper law enforcement authorities. This is a matter for the Department of Justice, grand juries, and the courts, nor is the meting out of punishment the proper concern of a congressional committee. Hence, no committee should seek to induce an employer to "purge" an employee because the committee, or one or more of its members, reacts unfavorably to his testimony. This is a matter for his employer to determine. These, in broad outline, are procedural principles that we believe congressional investigating committees should respect. Finally, I plead for the adoption of rules that will serve the salutary purpose of reversing the drift toward a general loss of respect for individual rights. We are today engaged in a struggle with communism for the hearts and minds of men. These must be won fairly. Our cause is just and it must always be clear that it is just. If there is one principle of democracy that is more fundamentally opposed to the principle of communism than any other, it is the principle that the individual is not a mere instrument of the state, but is a supreme end in himself. In a democracy the state serves the individual; under a totalitarian system, the individual is subservient to the state. In our unique society, the state cannot permit its legitimate concern for security to destroy the rights and privileges of individual citizens, for when the individual suffers needlessly, democracy languishes. It is both desirable and feasible that a balance be struck between the two. If the critical juncture is ever reached where the individual suffers chronically the denial of his basic rights, then our system will have become indistinguishable from the totalitarian society that it now opposes. By permitting unfair procedures, we are risking the loss of the battle to win the hearts and minds of those people elsewhere in the world who are watching anxiously to see whether the promises of our democracy will continue to be fulfilled or whether, under strain, they will succumb to expediency. I close with a quotation from the case of West Virginia State Board of Education v. Barnett, in which the United States Supreme Court said: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. Senator CARLSON. Judge Rose, we appreciate very much your taking the time to appear before this committee and give us this information, which is very helpful. I, personally, have enjoyed very much your statement. Mr. ROSE. Thank you. Senator CARLSON. Senator Hayden. Senator HAYDEN. I want to reiterate what the chairman has said. You have really brought us some constructive suggestions. Senator CARLSON. Mr. Berkovitch. Mr. BERKOVITCH. I think this is a clear, constructive statement, and there is no question I could ask at this point. Senator CARLSON. Judge Morris. Mr. MORRIS. Judge Rose, I wonder if you could tell us what investigating committee is involved in the Supreme Court cases you cited. I think one of them was the U. S. v. Lovett (328 U. S.); another was U.S. v. Rumely, and I think there were several other references. Mr. ROSE. The Rumely case, of course, involved the lobby investigation, in which Mr. Rumely was held for contempt for failing to produce the list of subscribers to his service, and the Supreme Court said that the investigation had gone beyond the scope of its purpose. Mr. MORRIS. That was which committee? Was that the Buchanan committee? Mr. ROSE. I think that is the Buchanan committee. Mr. MORRIS. And U. S. v. Lovett? Mr. ROSE. That arose out of, I think, the Dies committee in which three individuals Mr. MORRIS. Well, Judge, I just wanted to know which particular committees. Mr. Rose. I would say this, the case went up on evidence which had been originally produced by the Dies committee in the House, in which these three men were determined to be subversives, and then an act of Congress was passed which proscribed these men from receiving any compensation from the United States Government, except from military duty, and the Supreme Court said this, in effect, was a bill of containment. Mr. MORRIS. Thank you very much, Judge. Senator CARLSON. We thank you very much, Judge Rose. Senator CARLSON. The next witness is Mr. Irving Ferman of the American Civil Liberties Union. Mr. Ferman, do you care to be sworn? Mr. FERMAN. Yes, sir. Senator CARLSON. Do you promise and swear the testimony you are about to give is the truth and nothing but the truth, so help you God? Mr. FERMAN. I do, Mr. Chairman. Senator CARLSON. Mr. Ferman, if I may be bold enough to suggest, I would urge that you put your statement in the record and give us a few comments on it because of the time. Mr. MORRIS. I think, Mr. Chairman, Mr. Ferman has just a 1-page statement. Mr. FERMAN. Yes.. Senator CARLSON. All right; go right ahead. TESTIMONY OF IRVING FERMAN, DIRECTOR OF THE WASHINGTON, I am a lawyer by training and a member of the Louisiana bar. I do not intend my brief remarks to be interpreted as minimizing the necessity for certain procedural reforms. What I would like to stress this morning, and urge the committee to study, are some of the problems that are not easily solved by procedural reforms. In the investigative process, as has been emphasized by Mr. Angell this morning, we have one of the most essential safeguards for the assured promotion of the democratic process, both as a check on the executive and as a necessary adjunct of the legislative process per se. This investigative process is really a form of government, and the difficulty that I see-and I see it as a difficulty-is to have imposed on this form of governmental activity the constitutional safeguards of, first, limited government; and, secondly, precisely drawn government, so that the citizen will be able to determine at all times what the jurisdiction of a committee embodies. Our National Government is one of limited powers. That perhaps is the most basic concept underlying our liberties. It can only govern in certain constitutionally designated area. But the problem is whether the congressional scope of inquiry is so limited. National problems, deserving of the most intensive investigation, so often fan out into every phase of our life-into areas in which Congress cannot legislate. An example of this difficulty is the Senate Internal Security Subcommittee which has been charged with investigations into our internal security, a problem rightfully concerning Congress. Moreover, its mandate is based on an acknowledged legislative concernthe prohibition of acts aimed at overthrowing our Government by force or violence. An inquiry into such acts cannot avoid looking into the nature of certain associations involving political beliefs. However, the first amendment generally bars Congress from legis. lating on matters dealing with political beliefs. Yet, should not our legislature be given a free rein to investigate so basic a problem as internal security in all its facets, despite the fact that in some of these facets, such as opinion and belief, it is barred from Federal intervention? In the congressional inquiries, we have a means for Government to be exercised. There are really no guaranties that the end to which it can be put will be good; and, like so many democratic institutions, we must have faith and hope in the good sense of our people and their chosen representatives. Senator CARLSON. Senator Hayden. Senator HAYDEN. I have no questions. Mr. BERKOVITCH. I have no questions. Thank you. Senator CARLSON. Judge Morris. Mr. MORRIS. Mr. Ferman, do you have, in connection with your position in the Civil Liberties Union, a particular assignment in Washington with respect to congressional committees ? Mr. FERMAN. Yes. One of my functions is to observe and report the activities of the committees as they bear on problems relating to individual liberty. Mr. MORRIS. And, as such, you have been, you might say, a firsthand witness to many of the investigations that have been conducted here in Washington? Mr. FERMAN. Yes; I have, Judge Morris. Mr. MORRIS. Senator, may I point out the particular qualification of this particular witness, inasmuch as he has the assignment of watching particular committees perform here in Washington, and I wonder if I might, Mr. Chairman, and Mr. Witness, ask a few quescions about your own personal observations on the operation of the congressional committees. Mr. FERMAN. Yes, sir. |