twenties, with Owen J. Roberts (later Justice of the Supreme Court) as counsel, was a model of efficiency. In 1933 Senator Fletcher of the Senate Banking Committee conducted a fair and fruitful inquiry, with Ferdinand Pecora as counsel, which led to creation of the Securities and Exchange Commission. Scrupulous regard for decency and democratic rights also marked the inquiry into railway holding companies, under direction of former Senator Wheeler, with Max Lowenthal as counsel. More recently, of course, the Truman committee admirably illustrated the constructive use of the investigative power.

He

Harry S. Truman (then a Senator from Missouri) launched his investigation of the war effort, with congressional approval but sharp opposition from the White House. Within a few months, however, the executive branch was almost as pleased with the results as was Congress. Mr. Truman hired Hugh Fulton as counsel on advice from the Department of Justice. He sought only facts. shunned publicity-hunting and partisanship. Not only did the committee treat witnesses fairly; it went further and submitted its reports to officials under fire so that they could correct any slip that the committee or its staff might have made. The naked facts remaining could not be refuted; so they hit inefficiency with devastating impact. This bipartisan committee put out 40 important reports, with scarcely a dissenting vote and no minority reports. So effective was its exposure of weakness in the war effort that mere indications that facts would be reported to the Truman Committee brought quick action on the part of negligent or arbitrary agency heads.

This well-run committee contributed immeasurably to winning the war as well as to Mr. Truman's stature. It is largely responsible for his being in the White House today. In other words, a nonpartisan and undramatic investigation efficiently conducted seems to add far more to a legislator's reputation than a demagogic flight into sensationalism. All that Congress needs to do to keep its investigations on a high plane, in our opinion, is to write into a code of fair practice the methods already proved to be fair and practicable by the best investigating committees of the past.

[February 19, 1948]

TURNING ON THE LIGHT-NO. VII

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

Because many congressional investigations have been motivated by politics, it is often assumed that no restraint can be imposed on the partisanship of investigators. We do not share that view. As previously noted, the most successful investigations have been those which have subordinated politics to a public demand for facts. When the facts have been brought forth, they may be more useful to one party than another. But if an investigation is conducted in a partisan manner, it is not likely to be really useful to anyone; for it cannot be depended upon to uncover the truth, the whole truth and nothing but the truth. Facts will be blurred by smearing, which may be as detrimental to the smear artists themselves as to their victims.

It would be foolish, of course, to try to take politics out of the legislative process. Political differences are the essence of democracy. Intelligent men who are serving the public interest, however, try to confine their differences to the interpretation of facts and to the shaping of policy on the basis of facts. Only chaos results from a biased or incompetent search for the facts themselves. And it is in this realm of fact-finding that the congressional investigating committee necessarily functions.

In our opinion, therefore, the proposed code of fair procedure for congressional investigations should include a rule requiring all such investigations to be conducted in a nonpartisan manner. It is true that each investigating committee would put its own interpretation on that restraint. Smearsmen cannot be transformed into fair-minded fact-finders by a rule. Nevertheless, such a rule would give the public, the press, and Congress itself a measuring rod by which to judge the performance of each group of investigators. Partisanship in the investigative process would thus be more readily apparent and more widely condemned, and pressure of this sort is after all the most reliable weapon against the abuse of any governing power.

[February 20, 1948]

TURNING ON THE LIGHT-NO. VIII

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

Congressional investigations are public business, and they ought to be conducted as such. A vicious practice has grown up of hearing witnesses in secret, digesting the testimony thus taken, and then asking the witnesses to repeat in open session so much of their testimony as the committee wishes to go into the record. The effect is frequently to give the public a distorted view of what the witness has to say. Such screening of testimony is more in line with totalitarian methods than with democracy.

There are, of course, confidential matters which cannot be properly aired in public. National defense secrets must be protected by Congress no less than by other branches of the Government. But these are the exception. The necessity of safeguarding defense secrets in no way justifies secrecy in the general run of congressional investigations. In our opinion, investigating subcommittees should operate in the open no less than do the legislative committees. Of course, they will need some means of determining what testimony is worth the attention of the committee. But screening for this purpose can be done by the staff, without any reliance upon star chamber methods. When the staff has done its work properly, no excuse remains for incurring the extra expense or the odium of secret committee hearings. We think each investigative subcommittee might well be required to get special approval from the full committee of which it is a part before being allowed to examine a witness in secret.

In some instances information obtained in secret hearings has been made the basis of charges or conclusions released to the public before the individual in question has had a chance to testify openly. That foul practice has nothing more to recommend it than the sentencing of an accused prisoner before he is tried. It is so utterly out of keeping with the democratic concept of fair play that no rule against it should be necessary. In the face of many recent examples of condemnation before hearing, however, we are forced to conclude that Congress ought to set up a rigid rule against it.

A corollary rule should prevent the issuance of any report by an investigating committee until it has been approved by majority vote. Too often the investigative power has become a tool in the hands of a biased chairman or member -a tool employed for personal or partisan purposes. The aim to be sought through the rules here suggested-open hearings, the drawing of conclusions only after the evidence is in, and majority approval of all reports issued by the committeeis nothing more or less than the good old concept of justice. It seems to use that Congress itself should be first to insist that committees acting in its name should adhere to methods in keeping with this objective.

[February 24, 1948]

TURNING ON THE LIGHT-No. IX

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

What rights should be guaranteed to witnesses appearing before congressional investigators? The need for some additional safeguards is now widely recognized. A memorandum recently put out by the Senate Judiciary Committee, at the instigation of its chairman, Senator Wiley, concludes: "Much confusion and ill feeling might be avoided by the adoption in each House of the Congress of standard rules and procedures for the guidance of committees conducting investigations. As a minimum, the right of cross-examination should be considered." Several experts with whom we have discussed this proposal agree that a person whose reputation is assailed before a congressional committee should have an opportunity to question the accuser. One acceptable practice is the submission of such questions to the committee's counsel. However it is done, limits on the privilege are everywhere recognized as essential to avoid disruption of inquiries or their diversion to irrelevant issues.

Extensive cross-examination can readily be avoided by not taking loose hearsay evidence from one person against another. When the conduct of an individual

is under inquiry, the best witness is the individual himself. If the committee staff is doing its work properly, it will have ample evidence at hand to guide the questioning of the official or individual whose acts are under scrutiny. Expert staff work can reduce to a minimum the sort of reckless mud-throwing and replies in kind that characterize the inquiries of poorly managed committees. When derogatory evidence is introduced by third parties, however, fairness demands that the defamed person be given a chance to reply, in person or in writing, within reasonable limits of time and space.

There is widespread agreement that a person summoned before a committee should have the right to make a statement of his views relevant to the subject of the inquiry. When this right is denied, the enraged witness usually gives his statement to the press and gets more publicity than he would be likely to get if it went quietly into the committee record. Any attempt at muzzling a witness thus defeats its own purpose and puts the inquiring committee instead of the witness on the defensive before the public. Aside from this practical consideration, the first principle of fair play requires that a person summoned to inform Congress on any subject be allowed to have his say, again within reasonable limits as to time and space.

Another rule ought to permit every witness to have his attorney present, if he cares to do so. Of course, the attorney could not reasonably be permitted to testify for the witness, but there seems to be no sound reason for excluding him. The rules here suggested would not hamstring any congressional committee. They are not comparable to court procedure, which must naturally be more carefully guarded than congressional quests for information. We are convinced, however, that these rules would eliminate many current abuses and notably improve the relations between Congress and the people.

[March 4, 1948]

TURNING ON THE LIGHT-No. X

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

The hottest issue in the broad controversy over congressional investigations is whether the contempt power of Congress should be used to punish those who refuse to answer questions touching their personal beliefs and affiliations. Our previous assumption that the Supreme Court would be extremely reluctant to restrain this power has been strengthened by its refusal to hear the Josephson case. Leon Josephson was sentenced in a lower court to a year in jail and a $1,000 fine for contempt before the Committee on Un-American Activities. If abuse of the contempt power is to be restrained, probably Congress itself will have to act. We hope that it will do so. Essential as this power is to the investigative arms of our law-making body, we do not think it should continue to be exercised without restraint.

The investigative power, as we have tried to emphasize in this series of editorials, is the power of turning on the light. It is legitimately used to inform Congress and the public of any state of affairs that has a vital bearing upon national policy. But it is not properly used to punish individuals for any belief they may hold, however unorthodox, heretical or potentially treasonable. We cannot suppress the feeling that, in the recent Hollywood probe, Congress permitted its contempt power to be used to hale individuals before the courts because of hatred of the beliefs they were accused of holding. This is a grave departure from the democratic way. It has the appearance of throwing men into jail because of what they think. In our opinion, Congress has a duty to itself to lift its activities to a higher plane.

As a practical matter, contempt proceedings against the 10 alleged Communists from Hollywood might have been avoided by more adroit handling of the case. The Committee on Un-American Activities introduced into evidence cards indicating that the stubborn witnesses were members of the Communist Party. Their refusal to testify as to their affiliations with communism seemed to clinch the assumption that the cards were authentic. If the committee's purpose was to identify the followers of Moscow for the enlightenment of Congress and the public, its purpose was then served. To go beyond this and hound the exposed individuals into jail serves only to make martyrs of them, to divide the American people and bring our own regard for civil liberties into grave question.

In our opinion, Congress ought not to use its contempt power in this arbitrary manner. Judicious and tolerant restraint of power is the essence of democracy, and Congress ought to be no less amenable to it than the courts. When it comes to the actual drafting of a rule to prevent abuse of this power, however, the task is admittedly difficult. We think a proper start could be made by amending the existing law so as to provide that no witness before an investigating committee should be cited for contempt for refusal to answer questions as to his religious or political beliefs. To be sure, this would not go very far. It would leave the committee authority to imprison witnesses for refusal to testify as to their conduct, such as the joining of a party or a subversive organization. But it would doubtless have a constructive psychological effect on reckless investigators and would reassure those citizens who now fear that there are no limits to impingement of the investigative power upon individual rights.

We do not think that Congress will ever agree to foreclose inquiry into political affiliations. Nor do we think it should. "One need only recall the activities of the so-called fifth columns in various countries both before and during the late war," as Judges Swan and Chase of the United States Circuit Court of Appeals pointed out in the Josephson case, "to realize that the United States should be alert to discover and deal with the seeds of revolution within itself." The power to expose subversives, whether Communist, Fascist or any other variety, must be ever at hand. But Congress ought to use it sparingly. If the national safety requires that subversives be incarcerated, let it be by legislation. Certainly the power to imprison witnesses for contempt should not be used, when other equally effective methods of enlightening the public are at hand.

[March 7, 1948]

TURNING ON THE LIGHT-No. XI

CONGRESSIONAL INQUIRIES SHOULD BE DEDICATED TO ENLIGHTENMENT AND NOT TO PERSECUTION

No congressional investigation is likely to succeed without highly skilled personnel. The sifting of truth out of rumors, hearsay, charges, countercharges, smears and propaganda is one of the most difficult arts known to man. Busy Members of Congress cannot possibly do the legwork in such undertakings, and even part of the headwork must necessarily be delegated to others. If investigating committees fail to equip themselevs with expert staffs, therefore, the chance of their rendering a significant service is rather small.

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The success of New York's insurance investigation in 1905 was due almost entirely to the skill, the persistence and integrity of Charles Evans Hughes. demonstrated in a superb manner the power of facts elicited without browbeating and logically assembled to illustrate the abuses that the Armstrong committee been assembled to expose. Likewise the achievements of the securities inquiry in the 1930's must be ascribed in considerable measure to the investigating skill of Ferdinand Pecora. Many similar examples could be cited. The fact is that the choice of counsel often makes or breaks an investigation.

It is scarcely necessary to note that the chief investigator ought to be a man who respects facts, rather than a fanatic; one who is skilled in modern techniques of investigation, rather than use of the rubber hose; one who is capable of comprehending the entire subject under investigation, not merely a distorted segment of it; and one who is capable of working dispassionately for reforms in the public interest, instead of merely striking at his foes and smearing his critics. When such a man is found, he will need an ample staff to facilitate his work and minimize the temptation to cut corners.

A man of this caliber can work most effectively if he is allowed to examine the witnesses and direct the detailed work of the inquiry in his own way. Indeed, the investigating committee maintains a much more secure position if its members assume the attitude of impartial judges of the case presented by their counsel and his staff. Sometimes, of course, they may usefully participate in the questioning of witnesses, especially if they are experienced in the field under inquiry. But if an expert piece of work is to be done in an atmosphere of fairness conducive to highlighting the truth, the burden of the detailed work will have to be carried by experts of the caliber indicated. Possibly no other single factor is so important as this in improving the character of congressional investigations.

[March 9, 1948]

TURNING ON THE LIGHT-No. XII

(This series is ended with the following summary and will be reprinted shortly in booklet form)

In the series of editorials under this heading we have tried to indicate how the congressional investigation can be made a more useful and less dangerous instrument of democracy. Our research has indicated that only Congress can reform its own investigations and that no drastic or radical changes are essential. We have urged Congress to enact a code of fair procedure and to require its committees to abide by the code, but every point we have suggested for inclusion within the code has been drawn from the actual practice of successful investigating committees of the comparatively recent past.

The chief aims to be sought, in our opinion, are maximum enlightenment of Congress and the people on every issue of public concern that Congress is disposed to inquire into and protection of the rights of individuals against unreasonable and undemocratic encroachments. We do not think these aims are incompatible. Both can be and have been achieved by men who combine expert investigative methods with a sense of fairness and democratic purpose. achieve these aims we think Congress should lay down a code of rules including the following points:

To

1. Investigations should be conducted by groups within the regular standing committees of the House or Senate and not by special committees.

2. No legislator who is an interested party or who is in a position to shake down potential witnesses should be permitted to serve as head of an investigating subcommittee.

3. Investigations should be confined to important matters of public concern, as distinguished from party interests, and should be conducted in a nonpartisan

manner.

4. Investigations should be conducted in the open, the committee relying upon expert staff members to screen out prospective witnesses whose testimony is irrelevant.

5. Every witness should be guaranteed the right to put questions (within appropriate limits under control by the committee) to any other witness who has reflected on his reputation.

6. At the conclusion of his examination a witness should have the right to state his views briefly, or submit a statement for the record. The right of submitting a statement for the record should also be extended to persons who have been the subject of adverse comment who are not called as witnesses.

7. Attorneys for witnesses should be permitted to be present, and the witness should have the right to obtain a stenographic copy of his testimony at cost.

8. Recalcitrant witnesses should be cited for contempt only by majority vote of the Senate or the House.

9. No witness should be cited for contempt of Congress for refusal to answer questions as to his religious or political beliefs.

10. Every investigating committee should be supplied with expert counsel and staff investigators especially trained in the art of fact-finding by democratic methods.

Application of any code of fair procedure would, of course, depend upon the investigating committees themselves and the leadership of the Congress of which they are a part. But at least such a code, prescribed by legislation, would give the Members of Congress as well as the public a yardstick by which to measure the performance of every investigating committee. That is the democratic way. We do not see how a Congress that has provided a code of procedure for administrative agencies can longer resist the enactment of a code designed to assure fairness on the part of its own investigators.