Hon. PRESCOTT BUSH, BRIDGEPORT BAR ASSOCIATION, INC. Senate Office Building, Washington, D. C. DEAR SENATOR BUSH: At a recent meeting of the executive committee of the Bridgeport Bar Association the following resolutions were adopted: "We believe that a uniform code for congressional investigations is needed for the protection of the public and individual witnesses and for the more orderly and efficient conduct of such investigations and we recommend that our association approve in principle the aim and purposes of Senator Bush's proposals, and "Those who are charged with the preparation of such codes act to the end and purpose that the investigating committees of the Congress shall function with due regard for the American tradition of civil rights and the full protection of the constitutional rights of all individuals." It was voted that a copy of these resolutions be sent to each of our Senators and Representatives in Congress. Respectfully yours, JOHN C. THOMPSON, Secretary. The CHAIRMAN. Senator Hennings, will you come around and take the witness stand? Senator, it is up to you whether or not you want to be sworn. My testimony will be objective, I hope, and not relating to any lax circumstances. The CHAIRMAN. Do you swear the testimony given in this hearing will be the truth, the whole truth, and nothing but the truth, so help you God? Senator HENNINGS. I do. The CHAIRMAN. You have a prepared statement, I believe. Senator HENNINGS. I have, Mr. Chairman, which I shall undertake, perhaps, as time goes along, to condense or omit portions thereof. The CHAIRMAN. You may proceed in your own fashion. TESTIMONY OF HON. THOMAS C. HENNINGS, JR., A UNITED STATES SENATOR FROM THE STATE OF MISSOURI Senator HENNINGS. I am very glad, Mr. Chairman, to have this opportunity to testify in behalf of Senate Resolution 256, of which I am one of the cosponsors, to establish a code of fair procedure for congressional investigations. I have been the author of and have introduced in the past several earlier resolutions for the same purpose; but, after some study and thought, I believe that Senate Resolution 256 represents an organization and combination of the best features of the previous resolutions into a code which is designed to protect the rights of witnesses before committees while at the same time assuring to Senate committees their full powers to discharge their necessary and proper investigative functions. Now, this resolution and the resolutions which preceded it, Mr. Chairman, grew out of a definite need to establish strong and effective measures for the dealing with the failure of some committees, happily not all, to provide adequate safeguards for witnesses, and with the denial of due process of law, and with the unconstitutional attacks made by some committees, or their members, upon the authority and prerogatives of the President of the United States and the executive branch of the Government. At the outset may I say I am sure there is unanimity of opinion among all of us as to the necessity and legal justification of committee investigations, but one of the most important distinctions, it seems to me, that we must make in considering the entire question of adopting a code of fair procedure is between the two types of investigations carried on by congressional committees. On the one hand, we have the investigations where questions of governmental policy and the administration of particular programs are explored rather than the integrity and loyalty of individuals. While such hearings may certainly explore the wisdom of decisions made or actions taken by governmental officials with relation to particular programs, the subject matter is such that they would not ordinarily be concerned with questions of whether individuals are loyalty or security risks. For this reason, such hearings would not ordinarily require specific machinery for enabling persons under attack to defend themselves. I might say, Mr. Chairman and gentlemen, parenthetically, that where questions of loyalty or security arise incidental to such a legislative hearings, I believe the rights of the individual concerned should be afforded special consideration by any congressional committee. On the other hand, we have investigations that supplement, where necessary, the extensive investigative machinery already at work in the executive branch, but whose primary aim should be to develop information on which to base legislation that will strengthen our laws dealing with crime and corruption generally and, in particular, with acts and conspiracies against the national security. There is no question that this type of investigation is important and that Congress has a definite responsibility in this direction. Such investigations, in my judgment, should take the form of what I might call interrogatory hearings or fact-finding hearings. That they have, as a matter of fact, developed into inquisitorial hearings has materially diminished in some respect their effectiveness and has, in general, lessened public respect in some instances for this important function of the Government. The inquisitorial type of hearing is not a new phenomenon in American political life, nor is it necessarily a monopoly of one political party. Probably the most sensational series of such hearings occurred during the 8 years of the Grant administration, when Congress undertook no less than 37 separate inquiries aimed at exposing corruption and incompetence in public life during that period, and I think it might be of interest to the committee to hear a brief excerpt from an article written more than a quarter of a century ago by Dr. George Galloway, whom we all recognize as an outstanding student of government and political science. Dr. Galloway was writing in the American Political Science Review in February 1927 on the investigative function of Congress, at which time he said: Party affiliation makes for party prejudice, and our legislative committees do not exercise their quasi-judicial duties impartially. Their members feel obligated to advance the interests of the party which has elected them, sometimes even at the expense of the facts, and they rationalize their actions by identifying party interest with the general welfare. The temptation to transcend the proper limits of a public inquiry is, of course, very strong, and the disposition to enter the domain of private life and personal affairs very great. To gratify personal spleen or to disparage the opposition, excuses are often invented to justify the examination of immaterial witnesses. The door is open to an indefinite search after evidence and the proceeding converted into a fishing excursion. From political duties to private life has been an easy transition for the investigators, while the suspension of the usual rules of evidence and judicial procedure has too often transformed the legislative committee into a tribunal of inquisition. Now, speaking of inquisitions, Mr. Chairman, of course, we are going to remember that crimes against humanity committed in the name of law and order and Christianity by the infamous inquisitions that arose periodically throughout the course of Western European history and the horrors of the famous or infamous court of star chamber. It was out of these excesses, in part, that our great AngloSaxon constitutional liberties came to be established. In order that we may freshly have in mind the lengths to which fanatical zeal was carried, I would like to quote briefly from a passage of a treatise written in 1841 by Charles MacKay, LL. D., treating on this subject, entitled, "Memoirs of Extraordinary Popular Delusions and the Madness of Crowds." In a chapter entitled "The WitchMania," Dr. McKay wrote as follows: Bodinus, of great repute and authority in the 17th century, says, "The trial of this offense must not be conducted like other crimes. Whoever adheres to the ordinary course of justice perverts the spirit of the law, both divine and human. He who is accused of sorcery should never be acquitted, unless the malice of the prosecutor be clearer than the sun for it is so difficult to bring full proof of this secret crime, that out of a million of witches not one would be convicted if the usual course were followed." Henri Boguet, a witch-finder, who styled himself "The Grand Judge of Witches for the Territory of St. Claude," drew up a code for the guidance of all persons engaged in the witch trials, consisting of 70 articles, quite as cruel as the code of Bodinus. In this document he affirms, that a suspicion of witchcraft justifies the immediate arrest and torture of the suspected person. If the prisoner muttered, looked on the ground, and did not shed any tears, all of these were proofs positive of guilt. In all cases of witchcraft, the evidence of the child ought to be taken against its parent and persons of notoriously bad character, although not to be believed upon their oaths on the ordinary occasions of dispute that might arise between man and man, were to be believed, if they swore that any person had bewitched them. Who, when he hears that this diabolical doctrine was the universally received opinion of the ecclesiastical and civil authorities, can wonder that thousands of unhappy persons should be brought to the stake? That Cologne should for many years burns its 300 witches annually? The district of Bamberg its 400? Nuremberg, Geneva, Paris, Toulouse, Lyons, and other cities, their 200? Dr. Galloway went on to point out that the theory of the inquisitorial investigation was that an aroused public opinion would bring about the removal of the guilty person and that it had, as a rule, worked out that way. There is no question, however, that excesses and abuses during this sort of hearing dilute the respect of the people for their Government. This contention is borne out by the comments of Dr. Galloway with respect to the 1924 committee investigation into the scandals of the Harding administration: The public he said wearied in time of the reiterated scandals and ceased to respond to the cry of the reformer. The people were first dismayed, then bewildered, and finally bored. The way the inquiries were conducted, the type of witnesses heard, the kind of evidence accepted at face value, the ignorant questions of committee members, and the apparent party bias of the investigators prompted the public to discount the full significance of the disclosures and limited the effectiveness of the investigation. Many inquiries have been fishing expeditions actuated by political malevolence or determined by the exigencies of an election campaign or bent upon gratifying personal animosities or casting reflection upon an opposite administration. That is what Dr. Galloway had to say, Mr. Chairman, relating to the investigations of the administration of President Harding, which went into great excesses in the latter portion of it. Now, in recent years I would say there has probably been little abuse in the conduct of legislative hearings. Our primary concern, therefore, and the reasons which have motivated the introduction of resolutions by both Democrats and Republicans, has been the need recognized by responsible members of this body to correct the abuses and the excesses of inquisitorial investigations which have affronted our standards of fair play and fair hearing. There is no question that such abuses have resulted in irreparable damage to loyal and innocent persons, and I am completely unsympathetic to the proposition that some innocent people may have to suffer in order to get at crime and corruption in Government. My answer to that, and I believe the answer of most every thoughtful citizen who is devoted to our Bill of Rights and to the principles of democracy put forth by our Founding Fathers, is that liberty and freedom in the United States can endure only as long as the rights of every individual-and that means each individual person-are respected. We can't have one code of procedure for people presumed to be innocent and another code of procedure for people presumed to be guilty. Justice is an absolute, as we know. There must be a uniform procedure on which all witnesses appearing before a Senate committee may have reason to rely. Let there be no mistake, gentlemen-this is not suggested as coddling Communists or being soft toward crime, corruption, or disloyalty. It is simply an attempt to safeguard the American tradition of absolute justice by assuring witnesses some semblance of due process of law when confronted by adverse allegations in a committee hearing. Due process of law, of course, is no more than the use of fair and appropriate methods in conducting examination of witnesses and in the presentation and consideration of evidence. I am sure that we can all agree this is consistent with our traditional notions of justice and fair play, but I am also certain that justice and fair play, if nothing else, demand the presence of certain minimum requirements of due process when the legislative branch exercises, in effect, a quasi-judicial power and questions the honesty, integrity, or the loyalty of any individual. I believe these minimum requirements are supplied by the uniform code proposed in Senate Resolution 256. The code of procedure proposed in Senate Resolution 256 is not applicable to legislative hearings whose purpose, as I have already said, is to develop concise and adequate information in order to formulate an intelligent legislative policy. This resolution states specifically that the provisions therein apply to— investigations in which committees act as organs of inquiry and investigation as distinguished from their general roles in which they discharge normal legislative functions, including the holding of normal hearings incident to committee business. This resolution has three principal features which will protect the rights of witnesses without impairing the Senate's necessary and proper investigative function. The basic purpose of the first feature of this resolution has to do with the committees themselves, and insures that the principle of majority rule will be observed in their operations. Such action is required for appointment of subcommittees, scheduling and conducting of investigations, consideration of committee or subcommittee reports, issuance of subpenas, and employment of staff members. It also requires the resolution or motion scheduling hearings or ordering a particular investigation to state with some clarity and particularity the subject to be considered. This resolution will also regulate executive sessions. Now, briefly, gentlemen, I would like to discuss, if I may, the need for these provisions. I am sure we all realize in the past some committees have operated in a somewhat undemocratic, if not highhanded and arbitrary, manner. Meetings have been called without adequate notice to members. Staff members have been hired and fired without action by a majority of the committee. Investigations have been instigated without the knowledge of some members. Resolutions and motions of the committees have at times been hazy and vague. The use of executive sessions for the taking of testimony has sometimes been abused. These methods have engendered disrespect and, in some instances, public contempt for investigating committees and even, at times, for our Congress itself. I think it well to point out the advisability of requiring a motion or resolution scheduling hearings or ordering investigations to be stated clearly and with particularity. It will, first, provide a witness with the indication of what the line of interrogation will be once he appears before the committee. Second, it will define the scope of the investigation or hearing and will be of invaluable assistance to the committee itself and to the witness, and perhaps even to the courts, in determining the materiality or the pertinency of certain questions. The wisdom of requiring a draft of any prospective report to be submitted to each committee member's office 24 hours in advance, I think, is apparent. From a recent personal experience, I know that drafts or reports have not always been submitted to committee or subcommittee members or their offices before action has been taken, and I think such provision as this is really imperative. Insofar as executive sessions are concerned, this resolution would, I believe, regulate those that need regulating and in an effective manner. It provides, first, that no testimony given in executive session or any part thereof may be released, either orally or in writing, by any member or employee of the Senate without authorization given by a majority vote at a meeting which is attended by a majority of the members of the committee. No one doubts the validity or usefulness of executive sessions. However, there has arisen a new type of quasi-executive session which has some of the characteristics of a public hearing and some of the characteristics of an executive hearing. The hearing is held behind closed |