papers. It was not a leak; one of the committee members came out of the committee hearing and told the newspapers that he had refused to answer questions on similar occasions. Now, there was no public session after that.

As far as following that rule about executive sessions, I have never known of any occasion-and I have represented over 100 people before the House Un-American Activities Committee-I have never known that rule to be followed by them.

Representative GRIFFIN. You have represented a hundred people who appeared before the committee and in many of those cases

Mr. SPEISER. They have not been forewarned in advance. The testimony has been obtained in executive session against them—not giving them an opportunity to appear in relation to that.

Representative GRIFFIN. Thank you.

Senator CASE. This kind of thing is a valuable contribution, I think, to our inquiry. And I appreciate your giving it to us. This is one of the most difficult areas that I know anything about, in part because the individuals involved always have difficult problems, too. Are they going to try and clear themselves or is it better not to give any further public circulation to the charges that are made? Is it better to let it drop? What are you going to do about this? The politician has the same kind of a problem in a way. Somebody makes a crack about you. Is it better to answer it or not? If you answer it, your words are going to get out and get publicity and give the charge a lot more publicity and then a certain number of people always say, "Where there is smoke there is fire." And you may end up much worse off. We ought to try initially to work out procedures so as to provide as little chance for harm as possible.

Mr. SPEISER. I might suggest that perhaps a more limited kind of procedure might be a starting point. There are some committees, and the House Un-American Activities Committee is one of them, but there are also some committees on the Senate side which have in the past called witnesses before it knowing in advance that they would refuse to answer questions on the basis of the privilege against self-incrimination or raising some other constitutional provision. When these witnesses raise some other constitutional provision it is really, in effect, asking for a contempt-of-Congress citation. In practically every case when someone has refused to answer questions based on some other provision of the Constitution than the one of the privilege against self-incrimination, the Congress has felt that it should go into court to test the validity of their refusal to answer on either pertinency or the first amendment grounds, or improper legislative purpose, or whatever. My experience with at least one Senate committee has been that it often calls witnesses in executive session first and then in public session. When they are called first in executive session and they refuse to answer questions and then called in public session, it seems to me that the sole purpose of that second calling is to insure that economic sanctions are to be imposed against them. It has been my experience on the House side, first, that the investigators have often had contact with the individuals and they knew very well that they are going to refuse to answer questions for a variety of reasons. Those witnesses were then called in public sessions. The committee would then pound away trying to get as large a number of questions that

those witnesses refused to answer so that the committee could say that a certain witness refused to answer 146 questions, based on the privilege against self-incrimination. That, it seems to me, is an improper purpose. It not only denigrates the constitutional provision and makes it a dirty word, but it also subjects those individuals to public opprobrium in which you are not getting information from them. It seems to me that it is for an improper legislative purpose. To my mind it is fairly clear cut that such witnesses should not be called in public session when there is broadcasting or television. And even though, as you suggest, if they object, that is not a complete protection in the public session because the mere fact of the objection is considered in some ways to show an indication of guilt of some kind.

Senator CASE. As to this question, though, of the impropriety of Congress conducting an investigation for the purpose of bringing public opinion to bear upon the conduct of people before it, I am not sure that I can admit that this is never a proper purpose. Is this not one of the great purposes of the power of Congress to investigate? Here we come to a real question. I, frankly, do not agree that the only time the Congress has the power to investigate is related to narrow legislative action. That is, the passage of laws. I think the independence of Congress, for example, from the Executive, is the very great bulwark of our strength, and the power of inquiry is a key element. Let us turn it around the other way. You had J. P. Morgan down here many years ago, you will remember.

Mr. SPEISER. Yes. I was not there but I remember.

Senator CASE. You were not there, I know. I was around. Cochairman Madden was in swaddling clothes and Senator Monroney and I were the only ones around then.

Cochairman MADDEN. Thank you.

Senator CASE. The purpose of this thing was to draw public attention to conduct of the combination of financial operators that controlled a great segment of our economy. I am not sure that this was wrong. We had a little bit of a circus act-where there was a midget who was put on Mr. Morgan's lap or something like that.

Cochairman MONRONEY. Yes.

Senator CASE. Which was kind of irrelevant, but the fact that it was done did excite publicity.

Take the investigation by Governor Hughes of the insurance people. This had a great value, not only in publicity, but in legislative results, and you cannot get legislation unless you arouse public interest to the need of it. You legislate in a framework of aroused public demand to solve problems and to correct injustices, to meet needs. I do think, therefore, that you cannot regard this solely in a purely abstract way or unrelated to the passions, if you will, of people.

Mr. SPEISER. It is because you have so much power in calling individuals before a forum in which their rights are really at a minimum. Senator CASE. I know.

Mr. SPEISER. That, assuming that you are right, Senator Case, you are bound then to tread very carefully on their rights when you get into such a situation.

Senator CASE. I think this is very correct.

Mr. SPEISER. I gather that there is no question about the power of Congress to hold hearings, to obtain facts for the purpose of passing

legislation. And there is no question about its secondary power to call the executive to account for how it is enforcing the laws or whether there are any laws that should be changed. But the third area, the one that you suggested about calling nongovernmental members of the public before it in which you suspect there is wrongdoing, causes all sorts of problems, simply because they do not have an opportunity to defend themselves. Congressional committees are in such a powerful position to bring in anyone by their complete control of the proceedings. The ground rules are not on the basis of due process, but on the basis of this power. I am not prepared to agree with you, Senator Case, that it is necessary for Congress to call private individuals before it under the compulsion of subpena in order to focus on problems. I think that there may be other ways to do it, however. I must confess that I have not thought through the alternatives, but I might suggest, for example, that England has managed to operate without compulsory processes in setting up various commissions in order to focus on problems within its national life and has managed to evolve legislation to handle its problems. Perhaps you do not need the subpena power in order to focus on public problems, but if you are going to have the subpena power then it seems to me that you will have to give some due process to the people that you call before you.

Senator ČASE. Do the English commissions operate public hearings? Mr. SPEISER. Some do and some have not. I have not studied it. Senator CASE. Do the English legislative committees meet somewhat as we do, too, or not?

Mr. SPEISER. I believe so.

Representative GRIFFIN. If they invited someone to appear and he refused to appear, would that be brought to the public's knowledge? Mr. SPEISER. I do not know. But I think that the key is that your subpena power is such that once you utilize the subpena power to bring people before you, then it seems to me that you have to give a wide range of procedural rights to the individual who has been called by the subpena. That is something that we are evolving toward and I think that there has been some acknowledgment of that. It has been somewhat under the pressure of the courts, but I think that that aspect of basic fairness to the individual comes into being by that subpena, and should.

Senator CASE. The whole thing is sharpened by this electronic business, particularly television, of course. This is a terribly irrevocable kind of mark that is made when the person appears on the screen in the position that many of the congressional witnesses have appeared. Mr. SPEISER. Also, it should be pointed out, the almost unanimous position of the bar, for example, against revising canon No. 35, which prohibits broadcasting and televising court proceedings, which is not à law, but which has been adopted, I think, in some 48 States. When you call someone before a committee, and he is really on trial, it seems to me that the same consideration should apply.

Senator CASE. I think this is a pretty sound thing. There are a few cases where televising the court proceeding might prevent a judge from acting in an arbitrary way, the way some judge here in the District has been accused by our colleague, Bob Bartlett, of acting. I do not know anything about the facts, but I know Bob does not

get upset unless there is some ground for it. But in the few cases where benefits would be produced, they seem to me to be outweighed by the other at the moment.

Mr. SPEISER. Yes. This is an argument that is made by the radio and broadcasting industry that it would have a healthy effect to prevent arbitrary action. I think there is some merit to it. I do not think it can be wholly dismissed as an argument.

Senator CASE. I agree. There are some little petty tyrants on the bench who ought to have their mugs put on television, their outrageous actions put in front of the public.

Mr. SPEISER. Conversely, they may very well overact.

Representative GRIFFIN. I am very sorry to have to leave now. Cochairman MADDEN. If you will yield, I will read your statement. We have a Rules Committee in session and also a quorum call. I will have to leave, if you will excuse me.

Cochairman MONRONEY. Yes.

Mr. SPEISER. I think that the other points that I have in my statement I will just submit. I think that the major points I wanted to make on procedural rights we have discussed in the colloquy, which I think has been the major point to be made.

Cochairman MONRONEY. Do you want to finish reading your state

ment?

Mr. SPEISER. No. I will just submit the rest of my statement for the record, and thank you for your time.

Cochairman MONRONEY. We thank you for your time and for your interest and for the statement. It will be printed in full as a part of the record with your summary of it.

Mr. SPEISER. Thank you, Mr. Chairman.

(The prepared statement of Lawrence Speiser, American Civil Liberties Union, is as follows:)

PREPARED STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION

The American Civil Liberties Union yields to no one in its recognition of the importance of congressional investigations. Congressional investigations provide the information which Congress needs if it is to legislate intelligently. Investigations also enable Congress to evaluate the operation of Government agencies. Nevertheless, while the historic right of Congress to investigate matters within its competence and jurisdiction must be preserved, we are concerned, along with many other organizations and individuals, about the need for fair rules of procedure to guide congressional investigating committees and subcommittees in the performance of their duties. Past and recent history have shown the dangers posed to American freedoms by legislative investigating bodies which fail to honor constitutional limitations and requirements of fairplay in legislative inquiries. The American Civil Liberties Union urges that the following set of principles recognizing the limits of congressional investigations and the requirements of procedural fairness be applied by all congressional committees.

I. PROPERLY DEFINED LEGISLATIVE PURPOSE

The purpose of each congressional investigation should be specifically defined, both by the congressional resolution creating a committee and by the resolution (whether adopted by the whole House or by the committee itself, acting within its mandate) authorizing a particular investigation. The specification of a legislative purpose is indispensable in focusing and guiding the investigative work of congressional committees and is required by decisions of the U.S. Supreme Court. As the Court said in Watkins v. United States (354 U.S. 178 187 (1957)): "No inquiry is an end in itself; it must be related to and in furtherance of a legitimate task of the Congress." A statement of the subject matter and pur

poses of an investigation is therefore necessary to enable individuals who may be subpenaed to testify under the compulsion of contempt power, as well as the public at large and the Federal courts, to judge whether or not a particular investigating body of the Congress is keeping its inquiry within proper limits or indulging in forbidden excesses. We need look no further than the vague mandate of the House Un-American Activities Committee to "investigate the extent, character, and objectives of un-American propaganda activities in the United States," and the utilization of that broad mandate by the committee to inquire into opinion and political belief, for ample support for the conclusion that congressional committees should have specific mandates for conducting investigations.

Of course, it is beyond argument that no mandate, however specific, may authorize a congressional committee to investigate merely for the sake of exposing unorthodox views or criminal activity. Congress has no power to expose individuals, but only to conduct legislative investigations pursuant to its constitutional powers.

Most important, any mandate for a committee investigation must be subject to the important limitation that an individual's private beliefs and associations are protected from congressional or other governmental inquiry by the first amendment. Although American history is replete with instances of legislative committees ignoring this principle, we have continually urged that no congressional committee undertake to interrogate witnesses or pursue investigations which solely concern private beliefs and associations. It should be emphasized that any governmental investigation, and especially one by a congressional committee, into ideological beliefs and personal associations has a deleterious and far-reaching effect on the free public debate which it is the purpose of the first amendment to encourage.

II. COMPOSITION OF COMMITTEES

Because of frequent abuses stemming from the use of one-man investigating subcommittees, it is imperative that the Senate should follow the House example and adopt a rule forbidding the holding of hearings and the examination of witnesses by one member of a subcommittee acting alone. As an example of a recent step in the right direction, the U.S. Commission on Civil Rights is required by law to have at least two members present at any hearing, representing each major political party.

III. ADEQUATE NOTICE FOR WITNESSES

Adequate notice to an individual that a hearing is to be held at which he will be compelled to testify is essential not only as a matter of constitutionally required due process, but as a means of insuring orderly and productive committee sessions. Notice to prospective witnesses must be given sufficiently far ahead of the committee hearing to enable them to secure the advice and assistance of counsel if they so desire. To make consultation with counsel meaningful, to enable a witness to prepare adequate testimony, and to prevent unfair surprise, notice should not merely state when and where a hearing is to be held, but should specify what the subject of the hearing is to be and, as precisely as possible, what specific matters the witness will be questioned about. The notice to prospective witnesses should be accompanied by a copy of the appropriate congressional rules governing investigatory hearings.

IV. THE RIGHT TO COUNSEL

The right to counsel should encompass more than the right merely to be accompanied by counsel, and to consult counsel-which most congressional committees now permit. Counsel for a witness should have the right to make and to explain briefly nonrepetitious objections to the relevancy or propriety of committee questions or to other committee procedures which violate his client's legal rights. In addition, counsel should be permitted to subject his client to reasonably direct examination in order to explain or justify answers given to the committee, and to reasonably brief redirect questioning of the witness. (For cross-examination see infra.)