Fifth. Only a majority of the committee would be permitted to authorize the release of statements or documents.

Sixth. A majority of the committee would be required to order executive hearings, and at least two members would be required to be present.

Seventh. Committee testimony would be released only in full text except in such cases as might compromise national security.

Eighth. No committee reports could be issued unless submitted in advance to the committee members and adopted at a committee meeting.

Ninth. Advance notice would be required to be given to persons about whom it is proposed to present derogatory information at a public hearing, and insofar as practicable such material shall be presented first in executive session to permit the committee to test its reliability and probative value.

Tenth. Persons who believe they were defamed or their reputations damaged by committee testimony made public would be permitted to file a sworn statement refuting such testimony, to appear personally and testify, to obtain witnesses in their behalf if allowed by the committee majority, and to secure the appearance of and cross-examine adverse witnesses unless the majority should decide otherwise.

Eleventh. Witnesses would also be permitted to submit cross-examination questions in writing to the chairman of the committee to be put to other witnesses who have given damaging testimony.

Twelfth. A novel provision of the bill requires that a witness who gives testimony reflecting adversely on the character and reputation of another in an open hearing shall "be required to disclose his sources of information, unless to do so would endanger the national security." This clause would compel witnesses to identify their sources of information regarding other persons.

SENATE RESOLUTION 256 IS MOST DESIRABLE BASIC PROPOSAL

The more extensive procedural provisions of Senate Resolution 256 include several desirable additions to both of my earlier proposals. Because it seems to be the most comprehensive of the various measures before you, I would hope that this resolution, Senate Resolution 256, might be selected as the basic proposal for this committee's affirmative recommendation.

Among the important additions, I note the following:

(a) the requirement for consultation with appropriate Federal law enforcement agencies (sec. 2 (e)).

(b) the limitations upon television or filming of witnesses (sec. 7 (b)). (c) the supervising and enforcement machinery, of four Senators and the Vice President (sec. 8).

Senate Resolution 253 introduced recently by the Senator from Connecticut (Mr. Bush) contains many of the same provisions as are found in Senate Joint Resolution 137 and Senate Resolution 256. I find less desirable, however, the following aspects of Senate Resolution 253:

(a) The limitation on the right to counsel in subsection 17 (p. 4, lines 1-2). (b) The authorization of staff "fishing expeditions" by direction of a committee chairman without full committee approval. (Subsec. 19 (b), p. 4, lines 19-20.) (c) The omission of provisions giving to persons adversely affected rights of access to testimony about to be publicly released.

(d) The omission of any requirement for advance notice to persons who may be adversely affected.

(e) The omission of any provision for a prior test in executive session of the credibility of adverse or defamatory material.

(f) The absence of any provisions for even a limited cross-examination of adverse witnesses.

(g) The absence of any permission to bring in other witnesses in rebuttal of adverse charges.

(h) The lack of any requirement for the disclosure of sources of information of adverse testimony, except where considerations of national security would prevent it.

(i) The omission of any supervising or enforcement machinery for these new procedures.

Even with all these shortcomings, however, Senator Bush's resolution seems to me far superior to the mild and ineffective proposals presented in behalf of the Majority Policy Committee.

Because it is not deficient in the foregoing respects, Senate Resolution 256 seems to me a much more desirable basic proposal for the committee to recom

49144-54-pt. 8- 5

mend. I hope it may be considered favorably, and I am convinced it would accomplish to a greater degree than the other proposals the necessary improvement of procedures and restoration of public confidence.

GROUND SWELL OF OPINION FOR REFORMS

It is not often that many people become aroused over procedural matters. But today I observe an awakening of the conscience of the American people on this issue. Editorial opinions have been expressed in many papers, along the general lines of those cited in my Senate speech of a year ago. Church bodies have spoken with urgent appeals for action. Among these I note the March 17, 1954,

statement of the General Board of the National Council of Churches.

"Deeply concerned by certain trends in American public life the National Council of Churches in March, 1953, created a committee on the maintenance of American Freedom and instructed it to 'watch developments that threaten the freedom of any of our people or their institutions, whether through denying the basic right of freedom of thought, through Communist infiltration, or wrong methods of meeting that infiltration.'

I.

"One such threat has come from procedural abuses by congressional committees. Remedial measures are now being proposed, and we commend the President, the leaders of both major parties and the Members of Congress who have spoken out and demanded reforms. If these reforms are to be adequate they should provide protection from at least the following:

"1. The stigmatizing of individuals and organizations on the basis of unsupported accusations and casual associations.

"2. The forcing of citizens, under pretext of investigation of subversive activities, to testify concerning their personal economic and political beliefs.

"3. The functioning of congressional committee as legislative courts to determine the guilt or innocence of individuals.

"4. The denying to witnesses opportunity to bring out material favorable to their side of the case through questions by witnesses' own counsel and opportunity to test the validity of accusations through cross-examination of accusers. "5. The permitting to a committee member or counsel the reading into the record against a witness defamatory material and charges without requiring the accuser personally to confront the accused.

"6. The usurping by congressional committees of powers not granted to Congress by the Constitution and their failing to concentrate on the primary task of collecting information for purposes of new legislation.

"7. The scheduling of hearings, subpenaing of witnesses and evaluating of their testimony by chairmen of committees without the concurrence of, or consultation with, their fellow committee members.

"8. The releasing from the files of a congressional committee of so-called information consisting of unverified and unevaluated data in such a way that the committee can be used to help spread and give credence to malicious gossip.

II.

"Another threat has come from competition among rival congressional committees, creating the impression that they seek publicity, personal aggrandizement and political advantage rather than basic facts. In order to concentrate energy on the legitimate and essential tasks of resisting the Communist threat, and in order to avoid wastage and duplication of effort and to minimize the risk of the exploitation of public interest and fear, we urge the establishment of a single joint congressional committee for the investigation of subversive activity.

III.

"A more basic threat has been a growing tendency on the part of our people and their representatives in government to suppose that it is within the competence of the state to determine what is and what is not America. The American way is to preserve freedom by encouraging diversity within the unity of the Nation and by trusting truth to prevail over error in open discussion. The American way is to rely upon individuals to develop and express individual opinions. The American way is to depend upon the educational institutions to seek the truth and teach it without fear. The American way is to look to the

churches in the richness of their diversity to bring to the Nation light and discipline from God to maintain a responsible freedom.

IV.

"Aggravating these threats to American freedom is the prevailing mood of restlessness and tension. This arises in part from the real menace of communism, which our Nation is resisting by strength. It arises in part from the lack of a sense of security within our people which no physical strength can produce. Spiritual security can be achieved only by strengthening the Nation's faith in the God. The responsibility for deepening this faith rests with the churches."

A resolution adopted by the Conference of American Rabbis just recently on June 23, made similar recommendations. And one of the most comprehensive studies of the problem was presented in a symposium on safeguards for witnesses in legislative investigations held at Notre Dame Law School, December 9, 1953. While all of the presentations on that occasion might profitably be included in the committee's record, I would like to incorporate in my statement at least the foreword by Dean Joseph O'Meara, of the Notre Dame Law School, and the introductory statement by the chairman of the symposium, William T. Gossett, vice president and general counsel of the Ford Motor Co.

"LEGISLATIVE INVESTIGATIONS: SAFEGUARDS FOR WITNESSES

"FOREWORD

"Our plans for the symposium postulate that a free and independent legislature is the hallmark of democracy, that the power of investigation is essential to proper discharge of legislative responsibilities, but that the investigative power has been abused1 and that it is the obligation of the bar to find an answer to the resulting problem. It is our purpose to examine the problem objectively, without rancor or partisanship. We recognize, however, that abuses have occurred and the whole point of the symposium is to make a contribution to the solution of the problem they have created.

"Goaded by fear and hatred of communism, some at times condone and even applaud abusive treatment of witnesses in legislative inquiries. But, whatever the provocation or seeming advantage, surrender of principle is the death of justice and, without justice, there is chaos or totalitarian dictatorship and, in either case, total disregard of the dignity and destiny of man. In all that we do to combat subversion,' said President Eisenhower last week, 'it is imperative that we protect the basic rights of loyal American citizens.'' It is, however, impossible to protect the basic rights of loyal American citizens, as no doubt the President fully understands, unless we protect the basic rights of every man, woman, and child in America. For no man's rights are safe unless all men's rights are respected.

"From earliest times the legal profession has resisted oppression and oppressors. It faces now a challenge as insistent as any in its proud history. One aspect of the challenge we confront today: how to assure due process of law for witnesses in legislative investigations without unduly hampering legislative functions.

"This is not a problem to be solved by denunciations, emotional appeals or catchwords. It demands hard thinking by all who love and serve the law. The

1 See, for example, Senator Irving M. Ives, In Place of Congressional Circuses (New York Times Magazine, August 27, 1950, p. 20) “* * the chief cause of the general disrepute into which congressional inquiries have fallen-let us admit it outright-is the fact that the Congress itself has allowed serious abuses to permeate the entire investigative process. Incompetence, publicity-seeking and barefaced political partisanship have characterized and stigmatized so many recent important congressional investigations that the American people are rapidly becoming thoroughly disgusted with this essential adjunct to the lawmaking function of the Congress.". Senator Estes Kefauver. To What Extent Do Legislative Investigatory Powers Impinge On Civil Liberties? address at American Bar Association convention August 25, 1953. "The great majority of all members of legislative bodies in this country want to carry on investigation properly, without embarrassing witnesses or holding them up to scorn or depriving them of any basic rights. We all recognize, however, that rights of people have been violated, that some congressional inquiries have been haphazardly carried out and many persons have been harmed unnecessarily. I think the important problem is how to get the facts, and keep the public informed, while at the same time avoiding or at least holding to a minimum evils and pitfalls coming from investigationsof which we are all fully aware."

2 New York Times, December 3, 1954, p. 2. col. 7.

responsibility rests on the law schools no less than on the practicing bar. Today's symposium attests recognition here at Notre Dame of this joint responsibility. "Our symposium reflects, moreover, the eloquence and zeal of the distinguished lawyer who will preside, for it was a speech by him which begot this meeting.' I am proud to present our chairman, Mr. William T. Gossett, vice president and general counsel of the Ford Motor Co. "JOSEPH O'Meara.

"INTRODUCTORY STATEMENT

"I appreciate Dean O'Meara's generous introduction. But he has assigned me too much credit. My contribution to the progress of the bar upon this subject has been small, although my interest is large. I am grateful for the opportunity to participate with so distinguished a group in this symposium.

"Of the current questions before the American people, none has agitated us more than those revolving around the use of the legislative investigative process. They have aroused the hottest flames of emotion and partisanship; and no subject is better calculated to turn friendly discussion into angry disputation.

"This is the not the first time that the investigative process has been scrutinized critically by the American people. But heretofore the issue has been for the most part a domestic affair, uncomplicated by international tensions and sharp ideological contrasts. Today the issue has global dimensions. It has been debated ceaselessly, not only in this country, but abroad. The conflict has grown in intensity and now is clearly audible across national boundaries and around the world.

"The debate has confused our friends and comforted our foes. The decisions America makes on the questions involved will say much to the peoples of the world about the strength and stability of our institutions-about the road this country plans to take in the months and years ahead.

"We shall be concerned here with events; and events involve people and sometime politics and parties. As a consequence, names may be brought into the discussion. Some of these names may carry overtones of political partisanship. But, as Dean O'Meara has said, this symposium will be above emotionalism and partisanship. It will not be our purpose to promote or criticize any person, party or faction at the expense, or for the benefit, of any other.

"Our purpose here is to discuss a problem that lies at the foundations of our society. The problem centers around those threats to justice under law and result from abuses of the investigative power-not around the exercise of the power itself.

"In this symposium our basic premise is that abuses have in fact occurred. This has been conceded by thoughtful and responsible men both in and out of Congress.

"It follows that the bar, as the traditional first custodian of the liberty and dignity of the individual, has a compelling interest in the situation. We conceive it to be the duty of the legal profession by reason of its peculiar competence: "(a) to identify the abuses,

"(b) to define them with precision,

"(c) and to suggest remedies that will neither hamstring legitimate investigation nor pervert basic principles of due process of law.

"The legal issues are by no means simple; indeed, they are subtle and difficult to state with precision. One reason is that we are exploring a shadowland that lies between the legislative and judicial branches of government.

"In this country, when an individual is brought into court, he has the benefit of a carefully constructed legal system—a system that we call due process of law. Due process stems from the common law and from the Bill of Rights. Unfortunately, the protection thus afforded to the individual in the courts has not been carried over into the investigative process. There, individuals are not afforded the safeguards to which, as a matter of right and not of grace, they are entitled in court.

3 Entitled, "A Call to Leadership," the address was delivered April 18, 1952, before the Southwestern Legal Foundation, in Dallas, Tex. See also, Gossett. Are We Neglecting Constitutional Liberty? A Call to Leadership (38 A. B. A. J. 817 (1952); editorial, 38 A. B. A. J. 844 (1952)).

"Legislative committees are not courts, and their proceedings are not trials. There are striking similarities. Witnesses are heard, usually under oath; a transcript is kept; and counsel often is present.

"The dissimilarities are even more striking. The committees have no uniform rules of procedure. They are not bound by the rules of evidence. There are no adversary parties to define the issues; and there need be no resolution of any issue that may be raised. Even if the committee makes a report and decides some or all of the issues involved, its determination is not binding upon the rights or duties of individuals, as the decision of a court would be.

"Yet legislative investigations often affect directly and adversely the rights of individuals. This may come about in several ways. Through witnesses appearing before a committee or as a result of evidence developed by the staff, charges may be made against an individual. It is important to note that the so-called charges often amount to a mere assertion that the individual holds an unorthodox or unpopular opinion. But no charge, however serious, would place the individual in jeopardy in a strict legal sense. If, however, the charge is made public, his reputation may be imperiled. And the denial of an opportunity for the accused to appear and answer the charge, to face his accuser and to cross-examine him, may have a serious effect upon his standing and his ability to earn a livelihood. Almost without exception, committees have refused to allow confrontation or cross-examination of accusers. Even if the accused is allowed to appear and answer charges made against him, there is no assurance that equal publicity will be given to his denial. A court action for defamation against an accuser probably would not be successful because of the degree of 'privilege' conferred on both committee members and the witnesses before them. "Investigative committees have the right to compel individuals to appear before them and testify under oath.' The failure of a witness to appear or to answer questions may be punished either by Congress itself or as a misdemeanor in the courts. And the giving of false testimony to a committee is punishable as perjury. On the other hand, a witness may refuse to testify only at his peril.' In doing so he must either question the power of the committee or rely upon the constitutional safeguards of the first or of the fifth amendment.

"Derogatory inferences are likely to be drawn from a reliance upon the privilege against self incrimination. And even a good faith belief by a witness that the committee has exceeded its authority is no defense if, in the opinion of the court having jurisdiction of the issue, the belief is without basis in fact. Experience has shown that courts are reluctant to place limitations upon the power of an investigating committee if the question put to the witness has possible relevance to the stated purposes of the investigation.

"Thus, almost any form of self-protection that a witness may assert is subject to serious practical limitations.

"This brief discussion of the problem may serve to demonstrate the breadth and depth of the troubled waters on which we are embarking today. But the difficulties involved will not deter us from our quest for a solution. Our guide will be the knowledge that this nation throughout its long history has been committed preeminently to the high ideal of government by law, and dedicated to the rights and privileges of the individual human being as the focus of that law. Now, as in the past, the legal profession will fulfill its responsibility to lead the way toward reason and justice.

"WILLIAM T. GOSSETT."

While demands for the reform of congressional investigating procedures have mounted, one State legislature, that of New York, has acted. It passed a bill recommended by the Lockwood committee to give better protection to witnesses and others involved in legislative hearings. The text of that bill is as follows:

1 Rev. Stat. 102 (1875), as amended, 52 Stat. 942 (1938), 2 U. S. C. 192 (1946). 2 In re Chapman (166 U. S. 661, 672 (1897)). 18 U. S. C. 1621 (Supp. 1952); United States v. Moran (194 F. 2d 623 (2d Cir. 1952), cert. denied, 343 U. S. 965 (1952)).

Sinclair v. United States (279 U. S. 263, 299 (1929)).

& Loew's Inc. v. Cole (185 F. 2d 641, 649 (9th Cir. 1950)).

United States v. Josephson (165 F. 2d 82 (2d Cir. 1947), cert. denied, 333 U. S. 838 (1948), rehearing denied, 333 U. S. 858 (1948), motion for leave to file second petition for rehearing denied, 335 U. S. 899 (1948)).