TESTIMONY OF HON. WAYNE MORSE, A UNITED STATES SENATOR FROM THE STATE OF OREGON

Senator MORSE. Mr. Chairman and members of the committee: As one of the 19 cosponsors of Senate Resolution 256, I am pleased to appear before this subcommittee and testify in behalf of the resolu

tion.

I ask the consent of the committee to have a copy of Senate Resolution 256 appear at the beginning of my remarks, for ready reference, with a few minor changes to correct and to clarify the meaning of a few provisions.

The CHAIRMAN. Without objection it may appear in the record at this point.

(S. Res. 256 as corrected and clarified by Senator Morse is as follows:)

[S. Res. 256, 83d Cong., 2d sess.]

[Omit the part struck through and insert the part printed in italic]

RESOLUTION

Whereas investigation of matters of public importance through committee hearings is of vital importance to the discharge of the constitutional functions of the Senate of the United States; and

Whereas the investigative power of Senate committees is derived from the power of the Congress to inquire into matters of public importance within its jurisdiction; and

Whereas article I, section 5, of the Constitution of the United States provides that "Each House may determine the rules of its proceedings": Therefore be it Resolved, That the following be, and hereby are, adopted as the Code of Fair Committee Procedure of the Senate of the United States in connection with all 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.

SUBCOMMITTEE, MEETINGS, INVESTIGATIONS AND REPORTS

SEC. 2. (a) Subcommittees, as required, shall be appointed by the committee chairman, subject to the approval of the majority of the committee, and shall ordinarily consist of no less than three members, a proportionate ratio of whom shall be members of the minority (the designation of the majority and minority members of a subcommittee shall be subject to the approval of the majority and minority members of the committee respectively in caucus assembled). Subcommittees of less than three members may be designated by the chairman, subject to the approval of the majority of the committee.

(b) Committee meetings, other than regular meetings authorized by section 133 (a) of the Legislative Reorganization Act of 1946 (60 Stat. 837), shall be called only upon a minimum of sixteen hours' written notice to the office of each committee member. This provision may be waived by the assent of the majority of the members of the committee.

(c) Committee hearings (whether public or in executive session) and committee investigations shall be scheduled and conducted only upon the majority vote of the committee in a meeting at which a majority of the committee is actually present.

(d) A resolution or motion scheduling hearings or ordering a particular investigation shall state clearly and with particularity the subject thereof, which resolution may be amended only upon majority vote of the committee in a meeting at which a majority of the committee is actually present.

(e) The chairman or a member shall consult with appropriate Federal lawenforcement agencies with respect to any phase of an investigation which may result in evidence exposing the commission of Federal crimes, and the results of such consultation shall be reported to the committee before witnesses are called to testify therein.

(f) No committee report shall be issued unless a draft of such report is submitted to the office of each committee member twenty-four hours in advance of the meeting at which it is to be considered and is adopted at a meeting at which a majority is actually present.

(g) No testimony given in executive session or part or summary thereof shall be released or disclosed orally or in writing by a member or employee of the Senate without the authorization of the committee by majority vote at a meeting at which a majority of members is present. No committee or staff report or news release or statement based upon evidence or testimony adversely affecting a person shall be released or disclosed by the committee or any member or employee orally or in writing unless such evidence or testimony and the complete evidence or testimony offered in rebuttal thereto, if any, is published prior to or simultaneously with the issuance of the report, or news release, or statement.

(h) The rule as to the secrecy of executive sessions as set forth in subsection (g) of this section shall be applicable to Members and employees of the Senate for a reasonable period following an executive session until the committee has had a reasonable time to conclude the pertinent investigation and hearings and to issue a report; subject, however, to any decision by a committee majority for prior release in the manner set forth in subsection (g).

HEARINGS

SEC. 3. (a) Witnesses at committee hearings (whether public or in executive session) shall have the right to be accompanied by counsel, of their own choosing, who shall have the right to advise witnesses of their rights and to make brief objections to the relevancy of questions and to procedure.

(b) Rulings on motions or objections shall be made by the Member presiding, subject to appeal to the Members present on motion of a Member.

(c) At least twenty-four hours prior to his testifying a witness shall be given a copy of that portion of the motion or resolution scheduling the hearing stating the subject of the hearing; at the same time he shall be given a statement of the subject matters about which he is to be interrogated.

(d) It is the policy of the Senate that only evidence and testimony which is reliable and of probative value shall be received and considered by a committee. The privileged character of communications between clergyman and parishioner, doctor and patient, lawyer and client, and husband and wife shall be scrupulously observed.

(e) No testimony shall be taken in executive session unless at least two members of the committee are present.

(f) (i) Every witness shall have the right to make complete and brief answers to questions and make concise explanations of such answers.

(ii) Every witness who testifies in a hearing shall have a right to make an oral statement and to file a sworn statement which shall be made part of the transcript of such hearing, but such oral or written statement shall be relevant to the subject of the hearing.

(g) A stenographic verbatim transcript shall be made of all committee hearings. Copies of such transcript, so far as practicable, shall be available for inspection or purchase at regularly prescribed rates from the official reporter by any witness or person mentioned in a public hearing. Any witness and his counsel shall have the right to inspect only the complete transcript of his own testimony in executive session.

RIGHTS OF PERSONS ADVERSELY AFFECTED BY TESTIMONY

SEC. 4. (a) A person shall be considered to be adversely affected by evidence or testimony of a witness if the committee determines that: (i) The evidence or testimony would constitute libel or slander if not presented before a committee of the Senate, or (ii) the evidence or testimony alleges crime or misconduct or tends to disgrace or otherwise to expose the person to public contempt, hatred,

or scorn.

(b) Insofar as practicable, any person whose activities are the subject of investigation by the committee, or about whom adverse information is proposed to be presented at a public hearing of the committee, shall be fully advised by the committee as to the matters into which the committee proposes to inquire and the adverse material which is proposed to be presented. Insofar as practicable, all material reflecting adversely on the character or reputation of any individual which is proposed to be presented at a public hearing of the committee shall be first reviewed in executive session to determine its reliability and

probative value and shall not be presented at a public hearing except pursuant to majority vote of the committee.

(c) If a person is adversely affected by evidence or testimony given in a public hearing that person shall have the right: (i) To appear and testify or file a sworn statement in his own behalf, (ii) to have the adverse witness recalled upon application made within thirty days after introduction of such evidence or the termination of the adverse witness' testimony, (iii) to be represented by counsel (as in (2) (b) (3) (a) hereof), (iv) to cross-examine (in person or by counsel) such adverse witness, and (v) subject to the discretion of the committee, to obtain the issuance by the committee of subpenas for witnesses, documents, and other evidence in his defense. Such opportunity for rebuttal shall be afforded promptly and, so far as practicable, such hearing shall be conducted at the same place and under the same circumstances as the hearing at which adverse testimony was presented.

Cross-examination shall be limited to one hour for each witness, unless the committee by majority vote extends the time for each a witness or group of witnesses.

(d) If a person is adversely affected by evidence or testimony given in executive session or by material in the committee files or records, and if public release of such evidence, testimony, or material is contemplated, such person shall have, prior to the public release of such evidence or testimony or material or any disclosure of or comment upon it by members of the committee or committee staff or taking of similar evidence or testimony in a public hearing, the rights conferred by subsection (3) (4) (c) hereof and the right to inspect at least as much of the evidence or testimony of the adverse witness or material as will be made public or the subject of a public hearing.

(e) Any witness (except a member of the press who testifies in his professional capacity) who gives testimony before the committee in an open hearing which reflects adversely on the character or reputation of another person may be required by the committee to disclose his sources of information, unless the committee determines that to do so would endanger the national security.

SUBPENAS

SEC. 5. Subpenas shall be issued by the chairman of a committee only upon written notice to all members of the committee with a statement as to the identity of the witness or material and their relevancy to the investigation or hearing already authorized. Upon the request of any member of the committee the question of whether a subpena shall be issued or remain in force if already issued shall be decided by majority vote.

COMMITTEE STAFF

SEC. 6. The composition and selection of, and changes in, the professional and clerical staff of a committee shall be subject to the vote of a majority of the members of the committee.

TELEVISION AND OTHER MEANS OF COMMUNICATION AND REPORTING

SEC. 7. (a) Subject to the physical limitations of the hearing room and consideration of the physical comfort of committee members, staff, and witnesses, equal access for coverage of the hearings shall be provided to the various means of communications, including newspapers, magazines, radio, news reels, and television. It shall be the duty of the committee chairman to see that the various communication devices and instruments do not unreasonably distract, harass, or confuse the witness and interfere with his presentation.

(b) No witness shall be televised, filmed, or photographed during the hearing if he objects on the ground of distraction, harassment, or physical handicap.

SUPERVISION, APPEALS, AND ENFORCEMENT

SEC. 8. The application of this code shall be supervised in the Senate by the presiding officer of the Senate and four members selected by the Senate (not more than two of the members selected shall be of the same party), who shall have authority (1) to receive and investigate complaints of alleged violations of this code filed by persons claiming to be aggrieved and by members, (2) to advise committee chairmen of their conclusions and their suggestions, and (3) to present their findings to the Senate, with such recommendations for remedial and disciplinary action, if any, they deem appropriate.

DEFINITIONS

SEC. 9. As used in this Act:

"Committee" shall mean any standing, select, or special committee of the Senate (except the majority and minority policy committees) and any subcommittees of the foregoing.

'Person" includes an individual, partnership, trust, estate, association, corporation, or society.

Senator MORSE. The Senate has an obligation to set its house in order. Investigating committees and subcommittees are no more than the children of the Senate. Some have proven obstreperous children. As the parent, the Senate is responsible for the excesses and shortcomings of its progeny. That responsibility has been shirked too long, in my opinion, by the Senate.

It is my earnest hope that this subcommittee will act expeditiously to present to the Rules Committee a code of mandatory procedures to govern investigations so that the Senate will have the opportunity to act upon proposals for fair committee practices before adjournment.

Certainly the basic ground rules should be established before the Senate organizes next year and is asked to pass upon appropriations for committees in the 84th Congress.

In my judgment, adoption of a code will be necessary to avoid considerable debate on committee appropriations early next session regardless of what party is in the majority at that time.

In our constitutional system the function of the Congress is to legislate. The American people do not go to the polls every 2 years to nominate and elect a super-FBI or a roadshow CIA.

The Senate must consider several thousand bills every 2 years. In determining the necessity of legislation and the appropriateness of proposed legislative means, it must seek information. It does so in many ways. Chief among these is conducting hearings.

In 95 percent of legislative hearings the committees of the Senate and House find it relatively simple to procure information and opinion evidence, much of it from experts, with comparatively little difficulty.

I believe that investigation is an indispensable part of the legislative process. I would reject any proposal to eliminate or hobble the Senate's right and power to investigate.

May I digress long enough to say for the past 2 years when it was suggested in the cloakrooms of the Senate by some that maybe a hobble ought to be placed upon Senate committees by way of denying them appropriations, I not only objected in the cloakroom, but I carried my objections to the floor of the Senate.

The CHAIRMAN. I recall that.

Senator MORSE. And both years I said in effect I will not be a party in seeking to deny to committees the funds they can show, by way of a prima facie case, that they need.

When we come to appropriations for the investigative function of any committee-I don't care what committee it is-the answers I want are to such questions as these:

Has the committee chairman or the spokesman for the committee in the appropriation matter made a prima facie case for the number of staff members needed, for the secretaries needed, for the money for transcripts needed-in other words, for the expenses of operating the investigation itself?

If you use the appropriation as a device for preventing an investigation, it seems to me you are undermining the power of the Senate through its committees to investigate.

This position is very much misunderstood by many of my critics, who are prone to say: "Why didn't you vote against such-and-such appropriation?"

Well, for the simple reason I don't ever propose to use my position in the Senate of the United States to undermine the proper exercise of the power of the Senate to investigate through its committees.

Now, when a committee abuses its power, then I think it is subject to disciplinary action by the Senate, on the issue of abuse.

I think that what we ought to do in order to prevent criticism of abuses of Senate committees is to see to it that all participating in them follow a fair code of procedure, and to that end I seek to do what I can to help develop a fair code of procedure, and Senate Resolution 256 is a recommendation.

I am open to any amendments to the resolution that will strengthen it and not destroy what I think is its very fine objective.

We must recognize, however, that the investigatory activities of the Congress have in recent years gotten out of hand. In my judgment this is a direct result of the lack of superintendence exercised by the parent bodies. We have written a series of blank checks to investigatory committees. They have operated without clearly assigned functions, purposes, and without mandatory limitations on their methods. Some have operated as one-man affairs.

I believe the public is confused and concerned about this state of affairs. Our international prestige has suffered. The work of the Senate has suffered. The public has seen and heard so many sensational charges and countercharges that it is a miracle that the electorate has been as aware as it has of the serious legislative issues of recent years.

As I have indicated, at least 95 percent of congressional hearings are devoted to accumulating evidence on public problems and the presentation of the views of various groups with information or an 'interest in the particular subject under consideration.

The problem of abuse has arisen where investigations are conducted (1) without an apparent legislative purpose, (2) into the conduct of an executive agency, or (3), and this may also apply to the first two categories, where the loyalty or alleged misconduct of an individual or group is drawn into question.

It is often argued in opposition to a code of fair procedures, such as Senate Resolution 256, that investigatory hearings are not trials and that formalized procedures are inappropriate, unnecessary, and hampering.

As a matter of fact, however, investigatory committees have tried individuals on charges which are often more serious than the commission of a crime covered by the Criminal Code.

What is more serious than the charge of disloyalty?

What is more damaging and damning than allegations that a man has been disloyal to his country?

Where issues of this sort are presented, it is simple justice to provide procedures which protect accused individuals from premature or unfounded accusations.

We owe it to the public to institute methods which require orderly procedures and reliable means of testing such allegations.