Document Type: 
Document Number (FOIA) /ESDN (CREST): 
Release Decision: 
Original Classification: 
Document Page Count: 
Document Creation Date: 
December 16, 2016
Document Release Date: 
June 2, 2005
Sequence Number: 
Case Number: 
Publication Date: 
November 19, 1974
Content Type: 
PDF icon CIA-RDP75B00380R000700010003-5.pdf5.43 MB
Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 November 19, 1974 CONGRESSIONAL RECORD?SENATE certainly do not need 300,000 troops in Eu- rope, not after all these years. I think we can get along on considerably less, but I think first we have to bring about certain conditions with our allies there before we begin reducing our troops. On his "tough-it-out" advice to Richard Nixon: "I told President Nixon to tough-it- out, but not in connection with Watergate. That was in connection with the war in Viet- nam. Now the press interpreted that state- ment as relating to Watergate, but what I really said was this: 'He knows what it is to tough-it-out, he can do it.' I was talking about the war then, although when it came up I never did explain it fully," On the Nixon transcripts: "I was wanting to do it, to play some role in the matter. After months in the hospital I was feeling pretty good and this was a chance for me to start making a contribution, to exercise that usefulness I was talking about. So I agreed to the undertaking, but only. I said, after I had checked it with Senators Ervin and Baker. "The way it went, I was to dictate the transcript on anything that was close or controversial. I would have had full control. Anything that I didn't agree on. I just would not sign or okay it. Of course, I'm very glad that I didn't get any further into it than I did!" On President Ford and Presidents in gen- eral: "The most important decision a new President has to make concerns his advisers, the men who are going to be closest to him. He's got to be mighty careful about the men he chooses. Because a President is so depend- ent on them, that's why. "I remember the late President Kennedy saying in my presence that to him the most frightening things about the Presidency was the small percentage of items that he him- self had to make an exclusive judgment on. The very small number of decisions that he could say he had made all by himself. He had to take the word, 90 or 95 percent of the time, of others. So that would be my first advice to a new President: Be careful of the men you surround yourself with. They will make you look very good or very bad or very In between." MEMBERS OF _CONGRESS ARE NOT PAWNS Mr. HARTKE. Mr. President, remarks made recently by Gen. George S. Brown to a college audience touched off a storm of words in the press. Each mornin brings a new round of attack and d fense. There is universal agreement tha General's remarks were "unfort and "ill-advised." The debate now focused on the issue of what mpted the remarks. Joseph Alsopant e team of Rowland Evans and R..( t Novak have taken the position t no anti- Semitism was meant or plied in the Jewish conspiracy-type atements ut- tered by General Brow ? Regardless of the ds he may have used, the defense ar s that these were no more than un tunate phrases of the sort we all u behind closed doors. What really mo ated the general was his anguish ov the state of American defense and f ign policies. Commenta- tors who deft d him differ on the details, but assure that it was frustration and not anti- mitism that underlies it all. Perhapsr What is most disquieting is the appar- ent total contempt toward Congress. Re- peatedly, the view that the American Jewish community "owns" Congress te t t passes as an axiom; no one, at least in print, seems to question it. Truth, as usual, is more complicated. Facts are rarely unambiguous, and even if they were they would still be subject to a multiplicity of interpretations. Yes, the American Congress has traditionally been pro-Israel. Yes, those attitudes have something to do with the existence in the United States of a substantial Jew- ish minority. The implications that have been drawn from these facts is that American Jewry controls vast wealth and, more signif- icantly, access to the media; and that therefore Members of Congress support the cause of Israel either because they fear the loss of financial and media sup- port or, more crudely, because they fear the vengeance of the American Jewish community. . Apparently, it has not occurred to the major protagonists that a conspirac theory is unnecessary to explain p Israeli tendencies. It is just possible at m,ost Members are acting in cons ce, out of a spontaneously felt acoo with the efforts of Israel to sustain it ght to survive. Whether one agrees o ot with this view, should have little aring on either the legitimacy of the ws or their expression in good faith. It contravenes every c on of justice and morality to stigma e all members of a group with a no efining charac- teristic found in a fe I find it person- ally offensive that Members of the U.S. Congress be re'. rded as the natural pawns of anybody o controls wealth or any other ingr ent of power. Water- gate notwiths ding, our ability to function effe ely as a nation demands that we tak more discriminating and more rat al view of our elected represent yes. EXEMPTION FOR SAVERS HUGH SCOTT. Mr. President, sev- er weeks ago I introduced Senate bill 9. This bill would provide a tax ex- ption on interest earned on passbook savings accounts on amounts up to $10,- 000 held for more than 12 months. The bill as written would grant the tax bene- fit for savings and loan associations. Since the time I advanced this legis- lation, I have received a large number of very favorable comments from savings and loan associations in Pennsylvania and other States. The letters acknowl- edge that this would be a valuable tool in increasing the amount of money held in savings and loans. There would clearly be an increase in money available for home mortgages. This is the kind of boost the lagging construction industry needs. On November 9, 1974, I received a letter from Mr. Louis H. Nevins who is counsel to the National Association of Mutual Savings Banks. In Mr. Nevins' letter he outlines his view that my bill should be expanded to include mutual savings banks in the United States. He explains nearly 60 percent of savings banks' as- sets are invested in mortgages. There is no question the mutual savings banks are a very valuable source of mortgage money. S 1~465 I am now carefully studying Mr. Nev- ins' recommendation. I thought it would be useful if. other Senators would have the opportunity to examine-the argu- ments he advances on beha of the mu- tual savings banks of thunited States. I ask unanimous co ent to print a copy of Mr. Nevins'ter on behalf of the National Associ on of Mutual Sav- ings Banks in the CORD. There being objection, the letter was ordered to e printed in the RECORD, as follows: N NAL ASSOCIATION OF MUTUAL SAVINGS BANKS, w York, N.Y., November 8, 1974. The Ho able HUGH SCOTT, U.S. S te, Washington, D.C. D SENATOR SCOTT: This letter is in re- ga to the bill, S. 4099, which you recently oduced, to provide a tax exemption on terest earned on passbook savings ac- ounts. Under the terms of this bill, only interest income earned on deposits at savings and loan associations would qualify for this important savings incentive. I applaud your desire to assist the housing industry by mak- ing it more attractive for .savers to place funds with one of its .principal financing sources. The fact is, however, that mutual savings banks are also primarily residential mortgage lenders and, therefore, a major source of housing credit. In Pennsylvania, for example, total assets of savings and loan assiciations are more than $12 billion while savings banks' assets are more than $7 billion, with nearly 60% of the savings banks' assets invested in mort- gages. Thus, it would seem appropriate and equitable that our depositors be accorded the same benelat of tax exemption on a por- tion of the interest they earn. In this connection, you probably know that the House Ways and Means Committee recently approved legislation, H.R. 16994, to provide an exempti.,n of up to $500 for interest income earned by an individual tax- payer ($1,000 for married persons filing joint returns). It was specifically amended in com- mittee to include deposits at savings banks. It also includes commercial banks and credit unions. I respectfully Urge that you introduce a new bill that would exempt a portion of in- terest earned on deposits with mutual sav- ings banks by making the exemption avail- able at "a mutual savings bank whose de- posits and accounts are insured by the Fed- eral Deposit Insurance Corporation or other- wise insured pursuant to state law." You might also want to consider expanding the bill to include deposits at other types of financial institutions. Thank you for taking our views into con- sideration. If we may be of any further as- sistance, please do not hesitate to contact our office. Sincerely yours, LOUIS H. NEVINS, Director-Counsel. FIRST AMENDMENT RIGHTS Mr. ERVIN. Mr. President, Members of this body have been long aware of my deep concern for the preservation of civil liberties as outlined in the Bill of Rights to our Constitution. These free- doms cover many areas and among the most cherished are those outlined in the first amendment which protect free polit- ical association. On August 29, 1974, an important ju- dicial decision was filed by Judge James A. Coolahan of the U.S. District Court for the District of New Jersey. The case involved a high school student in New Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 `Jk, 12-)471 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 S CONGRESSIONAL RECORD ? SENATE Jersey, Lori Paton, who wrote the So- cialist Workers Party in 1973 to request Information for a research paper she W writing on political groups of vani ideological leanings. Earlier in the y r, the Director of the FBI had reque ed a mail cover to be placed on all inco s g letters to the Socialist Workers P rty. The Paton letter was detected a an immediate investigation of her w be- gun. After an extensive check int Lori Paton's school records and activiti and into her family history and backgr und, the Paton investigation ended w a memorandum to the special age -in- charge which stated: In view of the fact that the subje is a high school student who apparentl con- tacted the national office of the SWI'4 New York for information for one of her uraes and, due to the fact that she is not laved to be involved in subversive matte it is recommended that this case be clos dmin- istratively, However, Mr. President, the entire matter did not end there. The FBI con- tinued to maintain a file on the Paton investigation that was labeled "SM- SWP", an abbreviation for "Subversive Matter-Socialist Workers Party" which identified the Paton inquiry as a part of the larger investigation conducted by the FBI into activities of this orga- nization and its supporters. Lord Paton sought corrective court ac- tion, basing her claims for redress on several violations of her constitutional rights. Judge Coolahan rejected plain- tiff requests for financial compensation and punitive damages. In addition, her request for a declaratory judgment on the grounds that the mail cover and in- vestigations resulting from it were in vio- lation of the law was denied. Judge Coolahan did, however, decide in part that: Plaintiff Paton has argued and this Court holds, that irrespective of the question of the legality of the FBI investigation, there is no legal justification for the continued Pop- session by the FBI of the Paton file marked Insofar as plaintiff Pa-ton's files contain information which could be use- ful to the FBI in the exercise of its law en- forcement functions and the existence of those records may at a later time become a detriment to her, this Court holds that tile Paton file should be removed from the cus- tody of the Government and destroyed. Judge Coolahan further held that, be- cause of the nature of the decision and the actions taken on several motions, "it Is unecessary to address the?substantive question of the legality of the SWP mail cover." Mr. President, although many ques- tions Of considerable concern remain un- answered by the Coolahan decision, I do feel that this is an important step in the fight for protection of the rights and lib- erties of the individual. I have seen far too many examples of files and dossiers maintained by governmental agencies that document constitutionally-protected political activity. The continued exist- ence of these poses an affront to the lib- erties we prize. Rights of citizens under the first amendment are priceless. There should be no surveillance of citizens freely exercising those rights unless there can be shown probable cause that the activity in questior. is directly related to the commission of a crime or the likely of one. FREEDOM OF INFORMATION ACT Mr. BAYH. Mr. President, later this week the Congress will decide whether to override the President's unfortunate veto of the amendments to the Freedom of Information Act. As a member of the subcommittee which drafted this legis- lation as well as the Conference Com- mittee, I was very disappointed that the President believed it necessary to exer- cise his veto power in this matter. This legislation was passed overwhelmingly by both Houses of Congress, and its provi- sions were carefully worked out to strike a reasonable balance between the com- peting interests involved. I have noted in recent weeks editorials in several major newsr apers in my State urging that Congress override this veto, and I am hopeful that we will do so. I ask unanimous consent that editorials from the South Bend Tribune, the Fort Wayne Journal-Gazette, and the Terre Haute Tribune be printed in the RECORD. There being no objection, the editori- als were ordered to be printed in the RECORD, as follows: [From the South Bend, (Ind.) Tribune, Oct. 23, 19741 AN UNWISE VETO One of the first orders of business after Congress returns from its election recess should be to override President Ford's veto of changes in the Freedom of Information Act. The President's ill-ad vised veto appar- ently results from overwrought fears of threats to our national security. In his veto message, Mr. Ford said the bill was "un- constitutional and unworkable" and might endanger diplomatic and military secrets. When the original Freedom of Information Act was passed in 1966, it was hailed as a milestone in the realization of the American ideal of opening governraent to the people it represents. Bureaucratic types hi the government soon found ways te maim it relatively in- effective, however. The changes approved shnost Unanimous- ly by Congress would have shortened the time allowed government agencies to comply With requests for information from the pub- lic or press and made bureaucrats who refuse to comply with the law subject to punish- ment. The changes would also have allowed courts to review government claims that in- formation sought was classified or properly confidential, and would have required the government to pay court costs and fines if it lost any legal fight over a request for infor- mation. The ways in which exaessive secrecy can be misused became manifest in the Water- gate case. Making the Freedom of Informa- tion Act workable is one of the things that should be -done to prevent new abuses by keeping the public's business secret. [From the Fort Wayne Journal Gazette, Oct. 22, 1974] RIGHT-TO -KNO W VETO It's almost certain Congress will override Mr. Ford's veto of amendments to the Free- dom of Information Act, but the President's apposition to the legislation suggests his policy of candor falls far short of a genuine commitment. Since its passage in 19(4, the Information Act has been compromised beyond recognia November 19, 1974 tion. Government bureaucrats, eager to pro- tect their secrets, use a variety of loopholes in the original law to discourage cititens from prying. A popular diversion is delay that often involves long and costly lawsuits. Prodded by the public, Congress spent three years examining the weaknesses in the Information Act, then recently passed the corrective amendments by a lopsided vote. Perhaps the most important change would make federal judges the final arbiters of what infornation should be kept secret and what should be open to public inspection. It was this particular provision of the amendments to which Mr. Ford took the strongest exception. He insisted that federal judges aren't qualified to distinguish between national security information and other gov- ernment data. He's not necessarily saying the judges can't be trusted with military secrets, but he implies they lack the prerequisite sophistication to adequately protect the na- tional interest. The Supreme Court, however, met this is- sue in its unanimous ruling last summer against former President Nixon over release of White House tapes. At that time, the high court acknowledged the executive's consti- tutional right to protect secrets in the na- tional interest. But the court refused to ac- cept the White House claim that it -alone could decide when national security was in- volved. The dispute then ,fell on Judge John Sirica?a federal court judge?to resolve. Of course, the tapes dealt with alleged criminal activity in the executive branch. And the Supreme Court could modify its rul- ing if a broader question were at stake that lacked prima facie evidence of illegality. Still, the court upheld the principle that judges can discern what is properly classified infor- mation. Besides, the overwhelming congressional support of the amendments should have al- layed any presidential fears that national. security would be compromised. The im- provements in the Information Act, securing speedy resolution of contested government documents, should make federal policy more credible and therefore, more vigorously sup- ported by the public. The President's surprising veto has the ef- fect of undercutting public confidence. It was one of his first opportunities to put tangible meaning into his candor policy. Instead of applauding the amendments as an exten- sion of the spirit of his administration, he turned the question into a test of will with Congress. Either he or the public must surely lose. [From the Terre Haute (Ind.) Tribune Oct. 22, 1974] MORE INFORMATION, PLEASE The purpose of the Freedom of Informa- tion Act of 1966 was to strike down bureau- cratic obstacles which keep the American people from finding out what their govern- ment is up to. The purpose of the amended act just vetoed by President Ford is to strengthen the original legislation. Strengthening is ,necessary. The law has not been nearly as effective as its proponents had hoped, there have been many evasions and delays by federal agencies, and much information which should have been made public has continued to be held in the files. Mr. Ford raised two principal objections to the amended act. He opposed the amend- ment's central concept of permitting the federal courts to go behind a secrecy classifi- cation and determine whether it was justi- fied by circumstances. He also opposed the time limit provisions of this legislation. It would be burdensome, he argued, to require government agencies to decide in 10 days whether to furnish a requested document, and to give them 30 days in which to respond to lawsuits questioning a negative decision. We do not agree with Mr. Ford on the Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 November 19, 1974 CONGRESSIONAL RECORD ? SENATE latter point. Ten days strikes us as a reason- able time for an agency's initial decision on meeting a request for information, If there are Valid reasons for refusing to comply, the agency should be ble to set them forth in a tinthill'ilitry way far g.,-pourts within 30 days. Nor do we agree that judicial review of secrecy classifications would threaten to en- danger diplomatic relations or injudiciously reveal intelligence secrets. The President maintains that the courts would be deciding on document classification "in sensitive and complex areas where they have no expertise." Perhaps so, but the courts' record of respon- sibility suggests that in sensitive cases they would seek expert advice before ruling. In most cases, it would be preferable to have such decisions made by the courts rather than by bureaucrats whose interest may lie more in concealment than in dis- closure. The public needs more, not less, information about the workings of the gov- ernment. Senate and House votes on the legislation indicate that Congress feels this very strongly. The veto may be overridden, as it should be. A 55-MILE-PER-HOUR SPEED LIM SHOULD BE EXTENDED AND FORCED Mr. PERCY. Mr. Presiden st May I introduced with Sena ANDOLPH and STAFFORD and four er cosponsors a bill to extend indefin tely the current temporary 55-mile-per-hour speed limit on the Nation's highways. If this exten- sion is not approved, the speed limit will revert to pre-energy crisis levels next July. The desire of the Senate to extend the uniform national speed limit was ex- pressed clearly on September 11 when we voted 85-0 to approve S. 3934, the Federal-Aid Highway Amendments of 1974. The Senate based its support of the ex- tension provision on the fact that the reduced speed limit demonstrably saves human lives and scarce fuel resources. As time passes, the validity of those facts is borne out. According to statistics pro- vided by both the National Safety Coun- cil and the U.S. Department of Trans- portation, traffic fatalities during the month of September were 15 percent lower than in September 1973. For the first 9 months of this year, the traffic toll has been down an average of more than 20 percent each month. If this trend continues, "We can end 1974 with a sav- ing of close to 10,000 lives compared to 1973," according to Dr. James Gregory of the National Highway Traffic Safety Administration. And just last month, Administrator John Sawhill of the Federal Energy Ad- ministration confirmed to me that the 73 million barrels of oil we expected to save each year with the reduced speed lithit still represents a valid estimate if the reduced limit is observed. The Senate's wisdom in voting to ex- tend the 55-mile-per-hour speed limit is further corrobrated by the fact that the majority of Americans favor the exten- sion of the current limit. The Gallup poll reported on November 17 that 73 percent of American adults favor keeping the 55- mile-per-hour limit, an increase of 1 per- cent over a similar poll taken last June. While the 55-mile-per-hour limit is not strictly observed, 68 percent of those questioned in the Gallup poll said that they drive slower now than before the limit was reduced. In addition, law en- forcement officials in 12 States, according to the New York Times, have reported that the average speed of motorists on interstate highways has dropped. Even so, widespread violation of the 55-mile-per-hour speed limit is apparent. The New York Times reports that more than 70 percent of the vehicles on the road are routinely traveling faster than 55 miles per hour. Checks in Missouri, Connecticut, and Oregon show that at least twice as many speeding tickets are being issued this year as last year. Obvi- ously, he 55-mile-per-hour limit is not being rictly observed, despite the seri- ous e orts of most State highway patrols toe orCe it. ? I elieve the situation we face is clear cu The public supports the lowered s ed limit and its effectiveness in saving es and fuel has been proved, but the urrent 55-mile-per-hour limit is not nearly as effective as it should be. In my view, the reason for this is primarily psychological: because the limit is tem- porary, the public and law enforcement groups are uncertain as to how seriously the law should be taken. I believe Con- gress should act to eliminate this uncer- tainty by demonstrating that 'we do in- deed mean business. The Congress first concern should be to extend the 55-mile-per-hour limit indefi- nitely. The Senate has already approved this measure, so it is now up to the House of Representatives to do the same. In September, I wrote to each of the mem- bers of the House Public Works Commit- tee urging that the 55-mile-per-hour ex- tension be incorporated into the House companion to the Federal-aid highway bill. We should urge the House Public Works Committee to finish work on its bill so that it might receive the approval of the full Congress in this current ses- sion. Second, the Congress must act to en- courage enforcement of the 55-mile per hour limit in those States where enforce- ment has been lax. The law now in effect, which will be extended beyond June 1975 if S. 3934 is approved, provides only that Federal highway funds can be with- held from States not posting a maximum speed limit of 55 miles per hour on their highways. I believe Congress should now strengthen that authority so that States not enforcing the 55-miles-per-hour speed limit might lose access to Federal highway funds. The cutoff of funds would be based on objective tests of en- forcement and would be applied only after due notice and consultation with Individual States. Third, Congress must urge the legisla- tures of the 50 States to allocate suffi- cient funds for police and courts for ade- quate enforcement. State budgets, partly as a result of the Federal revenue shar- ing program, are in better shape than they have been for years. I do not feer that asking the States to spend some ad- ditional money on law enforcement is unreasonable, particularly in light of the reduced cost to governments and society that results from slower driving. The S 19587 National Safety Council estimates that the total cost of traffic accidents in the first 9 months of 1974 has dropped to $12.1 billion, from $13.8 billion for the first 9 months of 1973. But the most basic action of all that we must take is to urge individuals to observe the 55-miles-per-hour limit strictly for the sake of their own wel- fare, their families' safety, and the coun- try's continuing need to conserve ener- gy. No Federal legislation and no amount of ticket-writing will yield the desired results if a sense of cooperation by in- dividual motorists is lacking. The public has stated its preference for lower speeds; our citizens must now demon- strate their willingness to act in accord- ance with their beliefs. If such individual cooperation is not forthcoming, Federal laws and State enforcement policies will be meaningless. Only through a coopera- tive effort of individuals and State and Federal Governments can we hope to achieve our goals of 10,000 American lives and 73 million barrels of fuel saved annually. President Ford has called for such cooperation and I reiterate that re- quest. The increased welfare of our Na- tion depends upon it. JAMES M. COX, JR. Mr. TALMADGE. Mr. President. on October 27, while Congress was in recess, James M. Cox, Jr., chairman of the board of Cox Enterprises, Inc. and Cox Broad- casting Corp., died at Miami Beach, Fla. Mr. Cox was a close personal friend, and it was my privilege in the past 3 years to serve with him on the board of trustees of the Richard B. Russell Foundation, a foundation organized to build a memorial library to house the historically important papers of our late and beloved colleague in the Senate, Dick Russell of Georgia. Mr. Cox was a giant in the American publishing and broadcasting industry, and he will be sorely missed by his many friends and associates. I bring to the attention of the Senate an editorial eulogy to Mr. Cox and two news articles on his passing from the Atlanta Journal and Atlanta Constitu- tion, and ask unanimous consent that they be printed in the RECORD. There being no objection, the material was ordered to be printed in the RECORD, as follows: [From the Atlanta Constitution, and the Atlanta Journal, Oct. 28, 19741 JAMES M. COX, JR. (By Jack Tarver) With the death of James M. Cox Jr. these newspapers have lost an able and valued leader and those of us who have had the privilege of working with him mourn the passing of a respected colleague and a re- sponsive friend. Modest and self-effacing, blessed with a sense of humor which enabled him to smile wryly in recognition of his own as well as his fellowman's foibles, Jim Cox roused quickly to anger only when the independence and editorial integrity of his beloved news- papers were under attack. Then he could be most fiercely protective in defense even of a liberal editorial position with which, as a lifelong conservative, he reserved the right privately to disagree. Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 S 19588 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 CONGRESSIONAL RI:CORD ? SENATE November*-1.97 1974 "Our first obligation is to our readers," he tory Academy at Cheshire, Conn., and entered reassured a recently-appointed young pt(b- Yale University in 1924, He was graduated Usher in the early 1960's following a belltg- in 1928 with a B.A. degres. erent visit from a delegation of the citgr's Mr. Cox got his first taste of newspaper fat cats pro ting page one coverage of the work, and also publicity, when he was at then widespre d sit-ins and clemonstratiegis. Yale. -Tell those gu to go to bell. It's a nears- According to those weo remember him in paper's job to pr the news!" those days, one weekenc, he journeyed from Such oft-repeat enunciation of?and un- New Haven to New York City. He reportedly swerving dedicati to?the primary role was driving down Broadway at what several and. raison d'etre of he newspaper in a free, policemen considered an unseemly rate of democratic society i pired loyalty as virell speed. They pursued and caught up with him as pride-of-calling in his fellow worker& on the steps on his hotel. We shall honor his mory by striving to The incident. which would have been perpetuate the princip he held dear. ignored had he been anyone else, was re- ported by New York newspapers, It was car- ried on wire services and wound up in his father's newspaper, The Daily News. It was later that same year, during sum- mer vacation from Yale, that young Cox joined the staff of The Daily News as a cub reporter. Like many young reporters of his day, he started on the police beat, which meant com- ing to work at 6:30 a.m. But he worked near- ly all newspaper beats during his early days as a reporter, before he graduated from col- lege. The official biography which be prepared has as its first entry, under the heading busi- ness experience: "Entered newspaper work, Dayton (Ohio) Daily News, as reporter, 11 1929." It was that same year that another young reporter for the paper met Mr. Cox. Fred Bobbins, who has kneWn. the Cox family ce the 1920s and retired in December, '73, as the industrial editor of The Daily s, recalled the your g Cox as a reporter: im Jr. liked to have a good time in those day like anyone else that age," Robbins said. 'It was a little hs rd to get him up in the ing, though. When he wasn't at work time, someone would mit to get him out of , and he would slip out of the house an down to the office without break- fast:" Mr. Cox quently worked in the adver- tising and ? ulation departments of the newspaper an was named general manager in 1931, when s brother-in-law, Daniel J. Mahoney Sr? le to head the Miami Daily News, which Go Cox had just bought. In 1938, Mr. Co aa given the additional responsibilities of ie,tant publisher. Prior to that, in 1934, he h entereda field which was to lead to big gro ? for the Cox group: broadcasting. Late that year, the interests bought an Erie, Pa., radio stall. and had the li- cense transferred to Da ? Mr. Cox was given the job of getting t tion on the air. On Feb. 9, 1935, the stat using the call letters WHO, began b ting from studios located in a building xi- door to The Daily News, in downtown Da n. It eventually culminated in a Co broad- casting empire which to date incl five television stations, five ked and four stations and 34 wholly or partially o d cable TV systems. James M. Cox Jr. is credited- with basin the vision, foresight and acutebusiness abil- ity that built the empire and brought about its success. J. Leonard Reinsch, whom Mr. Cox hired as the first manager of WHIO and who later be- came head of all Cox Broadeasting opera- tions, said at one time, "Probably the most impressive message I have ever heard came at the dedication of 'SVHIO. The Governor talked about through the long watches of "Taft made quite a fuss over the youngster, day and night, we must ever be conscious of and the next morning the tad broke outwith our responsibility . . ." the measles. The question was widely dis- Reinsch said, "We all believed in that, but cussed in the press of whether the President I think it was through Jim Jr. that we've (a Republican) had been deliberately exposed been able to live up to it. to a Democratic infection." "We've never been pushed to make a few When young Cox was 14, he was enrolled at extra dollars that would have caused us to Indiana's Culver Military Academy for three [From the Atlanta Jou JAMES M. COX, JR, DIES James M. Cox, Jr., board Cox Enterprises newspaper and Cox Broadcasting Corj., St. Francis Hospital Sunday a Illness. He was 71. Mr. Cox had been chairman and Cox Broadcasting Corp., died James M. Cox, a three-time go Ohio and the unsuccessful De presidential candidate in 1920. James M. Cox, Jr., has been. desert "a man of his time, even as his fathe a man of his time." Mr. Cox lived much of his early 11 the shadow of his famous father, Eve he was a dynamic and respected publishe broadcaster, businessman, civic leader and force in education advancements. At the time of his death, his principal title was chairman of the board of Cox En- terprises, Inc., and Cox Broadcasting. COX Enterprises is the parent company of the newspaper group which includes The Atlanta Journal and the Atlanta Constitu- tion, the Dayton Daily News, Dayton Jaw- nal Herald, the Springfield News and Sun, the Miami News and the West Palm Beach Post and Times. Born in Dayton, Ohio, on June 27, 1903, Mr. COX was named James McMahon Cox. His godfather was John A. McMahoi& a noted Ohio lawyer and adviser to his fattier. But all his life he was known as Janes M. Cox, Jr. and is listed that way in "Who's Who in America." It was thought, even by most of his close friends and associates, that his middle name was the same as his father's, James Middleton Cox. His inti- mates always called him "Jim Jr." James M. Cox, Sr. had become publisher of The Daily News at the age of 28. He *rice represented Ohio's Third District in Con- gress. He was elected governor of Ohio three times and was the Democratic nominee for president in 1920. He was defeated by War- ren G. Harding. It was the father, known always as "Gov. Cox," who first called his son "Jim Jr.! In his autobiography, "Journey Through, My Years," he referred to the younger Cent as "James M. Cox Jr., my son." Mr. Cox never sought public office, but it was not an unfamiliar world to him. He knew several presidents, among them Franklin D. Roosevelt, his father's running mate in 1920. In 1961, 10 days before John F. Kennedy took office. Mr. Cox plazed golf with the President-elect at Palm Beach, Fla, Mr. Cox met his first president at the age of six. His father, who had been elected to Congress in 1908, made his first official call on President William Howard Taft and look his son along. Gov. Cox recalled the incident in his book: 1, Oct. 28, 19741 71 IN MIAMI airman of the Wishing firm d in Mianti's r a lengthy the two Miami's or of ocratic as as fling good properties, he wanted us to pro- vide service to the community and do what we could to provide leadership?in some re- spects, taking the community into arias that would make it a better Once to - In June of 1942engennarials father's Wishes, Mr. Cox, an aviation enthusiast and a pilot, became a lieutenant in the Naval Air Corps, Associates said that Gov. Cox was strongly against the move, - partly because his son was 39 at the time. Mr. Co.t served with 1945, when. he was discharged as a lieutenant com- mander. At that time, he plunged back Into the business world, where television was getting a foothold. Gov. Cox was reluctant to get into televi- sion, but after urging from his sone eventu- ally agreed to gamble, and Cox interests ac- quired television stations, first in -Dayton, then in Atlanta. Mr. Cox took charge of those operations, with still a firm hand in the newspaper em- pire, which also was growing. When GoV. Cox died on July 15, 1957, at the age of 87, Jim Jr. already had the major responsibility for seven newspapers, three radio stations and two television stations. Cox executive Robert W. Sherman, who went to wort for The Daily News as a teen- ager in 1928, believes that Jim Jr. was a "man for his time, as Gov. COX was for hes." Sherman said, "I think we have gone farther, faster, under Jim Jr. You think of everything that's happened since the Gov- ernor died. . . ." Some of the things that happened were acquisition of television, stations in Pitts- burgh, Charlotte, NC., and the Sea Fran- cisco-Oakland area; radio stations in Char- lotte and Los Angeles. There was the formation of CATS?' systems in Ohio, California, Georgia, Washington, Iowa, Vermont, Massachusetts, Texas, Flor- ida, Pennsylvania, Michigan, Oregon, In- diana, Illinois and New York. There were the addition of a technical publications division, embracing a don magazines; acquisition of a truck line and a steel warehouse, both in Georgia; the pur- chase or ii automobile auctions in as many states, and the purchase of a movie com- pany, Bing Crosby Productions. In 1969, Mr. Cox made another publishing acquisition in Florida which included the Palm Beach Post and Times; the Palm Beach Daily News; a 47 per cent interest in the Daytona Beach Journal and News, and a monthly magazine, Palm Beach Life. Sherman, who headed much of the opera- tion under Mr. Cos, added. "That's the way it has gone. But, even though we have got- ten big in the last 17 or 18 years, each opera- tion has remained pretty much an individual operation. Whet we are, really, is, a con- glomerate of small businesses." Mr. Cox, his associates agree, had an un- canny ability for picking the right man for the right job and then letting him do the job. Jack Tarver, president of Atlanta News- papers as well as Cox Enterprises, recalled Mr. Cox in a recent conversation: "He was always breathing down your neck. He e of the best newspaper operators I have because when he calls you on the e gets right down to the heart of doesn't ask a lot of damn fool at have nothing to do with the d." o went to Dayton as editor in 1953, made the same outset of a recent con- ox. "He's got the fastest ountered," Pain said, terest in education. 0 million national ittenberg Univer- is kno phone, things questions business at Jim Fain, of The Daily point almost at vereation about lar. mind I think I ever e Mr. Cox had a strong In 1960 he headed a development fund for remove some of our services. He (Mr. Cox) say in Springfield. years. In 1922, he attended Roxbury Prepare- wanted us to run good properties, but in run- Later, When he was wear a an honorary Approved For Release 2005/06/09 : CIA-RDP751300380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP75B00380R000700010 11 November 19, .1974 ? CONGRESSIONAL RECORD ? HOUSE tion will make him employable. ("Employ- ment" includes work at home or in work- shops.) A client who can afford it may be asked to pay part or all of the cost of his treatment and training. But inability to pay never blocks a disabled person from rehabilitation. Though vocational rehabilitation doesn't help everybody, the majority frequently do achieve a marvelous change in their lives. In Ohio, for example, 54-year-old Harry Hilliard had never really held a job, had committed numerous burglaries and spent half his adult life in prison. Deciding that there must be another way to survive, he asked for help ,at a VR center. His "disability" was obvious: he had nothing to offer an, employer. In four months under the center's guidance he earned his high-school equivalency certifi- cate, then undertook office-work training. He now works in a university library, owns a new Car and says, "I'm finally standing on my own feet." A physically, mentally or emotionally dam- aged person often is overwhelmed by disability prevents him from doing. uccess- ful rehabilitation, therefore, deman a shift in his point of view. Ken Adams w a con- struction worker when an automo fie acci- dent smashed and permanently wee ened his ankles. Be couldn't go back to his ade, and he had no other skills. He withdr into a cocoon of hopelessness. Stubborn p de about asking for help kept him vegetatin for four years. "I finally looked up a VR unselor, and I thank God I did," he told me "I-began growing up that day." -Adams took a ten-month course i automo- bile body-and-fender work, and wa offered a job even before he graduated. "Lear? big that skill changed my life," he said. " like my work, and I'm earning twice what I ade be- fore the accident. I'll always be abl to sup- port my family. Life once scared mk Now I enjoy it." , According to H.E.W., more than five-million people are now eligible for vocational rehabil- itation. The federal-state program is working with one million, Of the remaining four mil- lion, several hundred, thousand are being treated by the Veterans Administration, pri- vate and public agencies, individual physi- cians and their own families. But most of the disabled who are eligible for aid are not re- ceiving help. The reasons are numerous. Many disabled don't know that the program is available. Others think they cannot be helped or have reconciled themselves to their disability and don't want help. Pride or fear prevents many from approaching a public agency. Welfare agencies, especially in the big cities, have been neglectful about exploring the poten- tial of VR for their clients. In the job field, which is the payoff for VR, far too many em- ployers are prejudiced against the handicap- ped. The federal-state program itself has flaws. In some areas, VR. executives favor "easy" clients, who can be quickly rehabilitated at a minimum cost. The quality and adequacy of services vary considerably from state to state, and the South generally is doing a better job than the wealthier North. Despite problems, the federal-state VR program has succeeded In tripling the number of disabled placed in useful work over the past decade. Astonishingly, VR doesn't cost anything. While making life livable for the disabled, it makes money for the nation, In 1972, three out of every four persons entering the pro- gram were unemployed. Three out of four who completed the program immediately moved into moneymaking work. The pro- gram increased earning power nationwide by $800 million. While the average rehabili- tative effort costs about $2100 per person, the disabled individual restored to produc- tive work begins returning some $850 in annual taxes. In less than three years the good business of VR begins turning a profit for U.S. taxpayers. The top benefit of VR, however, will always be its impact on the human spirit. Listen to Jerry Paine, 28, who has cerebral palsy and holds an office job: "In my mind, I'm not handicapped. All human beings have limita- tions. Like others, I'm doing my very best with what I've got. I've received five raises-in my job. I like it, and I like the independence and manhood it has given me. I've got some- thing to live for. And I like to think that, because I've done my job well, I've opened the door for others like me." The nearest local VII office can generally be located by checking for "Vocational Reha- bilitation" in the "State" section of your telephone directory. If the directory does not contain this listing, the address can be obtained from the Governor's office, a physi- cian, public-health nurse, hospital social- service worker, welfare department or public employment-service office. VETO OF THE FREEDOM OF INFOR- MATION ACT (Mr. PIKE asked and was given per- mission to extend his remarks at this point in the RECORD and to include ex- traneous matter.) Mr. PIKE. Mr. Speaker, in the past several years, the American people have had their fill of secrecy in Government. They had no trouble at all communicat- ing their attitude on this issue to the people's House, as evidenced by our ready passage of the Freedom of Information Act last March 14 by near-unanimous vote. Had our erstwhile colleague, Gerald Ford, stood among us that -day it would have been difficult to believe that so con- summate a Representative could have failed to get the message from the people and voted against the majority of his old colleagues, both Republican and Demo- crat, who overwhelmingly passed the bill. Much has been written lately of the "Imperial Presidency" and the chilling transformation which can occur when normally down-to-Earth and accessible men are catapulted to the highest -office In the land. Behind a wall of Secret Service men and fawning, overprotective aides, perhaps it is difficult for the best- intentioned men to maintain vital day- to-day contact with the people and to understand clearly what they are think- ing and saying. Only this sort of isola- tion could have prompted President Ford to veto the Freedom of Information Act, The consequences of that veto have been clearly spelled out in an exemplary editorial which appeared in the Long Is- land Press on October 22. Since I have no doubt whatsoever that it is a popular expression of the views of the people of my own district, regardless of their polit- ical affiliation, I request permission to enter it in the RECORD here, both as a prelude to my own vote which will be cast to override the veto and, hopefully, to help the President reestablish neces- sary contact with the real voice, that of the people. ANOTHER PROMISE GONE ASTRAY The 1965 Freedom of Information Act, which provided that a citizen may see any government document except for nine ex- empt categories?ranging from legitimate military and trade secrets to law enforcement investigatory records?did much to open doors that should never have been closed, H 10851 But, as is so often the case, some bureau- crats openly violated the new law while others wriggled through legal loopholes and used delaying tactics in the court to deny the public access to a wide range of docu- ments that do not deserve "secret" classifi- cations. For example, some agencies refused to look for requested material without precise prior description and threw other roadblocks in the way of people with a right to obtain the requested information. As a result, both Republicans and Demo- crats in Congress, plus professional news or- ganizations, began a three-year study of the Federal of Information Act, seeking steps that could be taken to stop violations and plug loopholes. This culminated in congressional hearings, followed by a bill passed recently by the House by the overwhelming vote of 349 to 2 and by a voice vote in the Senate. The legis- lation would give the public quicker, easier access to government documents. Rights-to- know cases would gain precedence on ap- peals court dockets; a 30-day time limit Would be fixed for government replies to lawsuits; there would be a narrowing of agencies' power to withhold investigatory files compiled for law enforcement reasons, and agencies would be required to keep all index of documents so the public could keep track of them. One of the best features of the amend- ment was the authority to federal judges to inspect classified material to determine whether the government is justified in with- holding it from the public. Sadly, President Ford used this as a peg on which to hang a veto, and veto the bill he did. The courts, the President told Congress, "do not ordinarily have the background and expertise to gauge the ramifications that a release of a document may have upon our national security." The responsibility for such decisions, he added, are constitutionally those of the President. We thought the Supreme Court decision upholding the right of newspapers to pub- lish the famous Pentagon Papers disposed of that argument. After all, the high court did assume to have "the background and ex- pertise" to decide such matters. Moreover, Mr. Ford's veto is a poor way to demonstrate the credo he proclaimed when he took office last August. He promised an "open" administration. Ironically, former President Nixon, whose "closed" administra- tion no doubt helped inspire the Ford credo, two years ago spoke of the classification sys- tem as having "frequently served to conceal bureaucratic mistakes or to prevent embar- rassment to officials and administrations." We came to expect Mr. Nixon to say one thing and do another, but we didn't expect it of Mr. Ford. His veto, is a disappointment, and his argument in sustaining it is unac- ceptable. We agree with Rep. John E. Moss, D-Calif., who worked for 11 years to get the Freedom of Information Act passed and just as hard to have it strengthened through this amend- ment. He says that the courts' actions "through the whole unhappy history of Watergate prove that we can place our con- fidence in the judicial system of this na- tion." It is up to Congress to undo the harm President Ford has caused by overriding the veto. We hope this is done quickly and decisively. TIME FOR CONFIRMATION OF MR. ROCtu, (Mr. GUDE asked and was given, permission to extend his remarks at this point in the RECORD and to includo extraneous matter.) Approved For Release 2005/06/09 : CIA-RDP75600380R0D II 10852 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 CONGRESSIONAL RECORD?HOUSE November 19, 1974 Mr. 'GUDE. Mr. Speaker, Senate hear- ings on the nomination of Nelson Rocke- feller to the office of Vice President of the United States have just concluded, and the House hearings will be starting shortly. This is welcome news, but it would have been more welcome had it occurred a month or two ago. The Nation has been without a Vice Pres- ident since August 9, a fact of particular significance this week when the Pres- ident is out of the country. I have long been an admirer and supporter of Mr. Rockefeller's, and I was pleased when President Ford an- nounced the nomination. Mr. Rockefel- ler's qualifications aside, however, the Imperative national need at this point is to have a Vice President, and that demands confirmation by House and Senate. If there are legitimate questions about the President's nomination, then they should by all means be discussed, but it would be most unfortunate to have politics played with a decision as impor- tant to the Nation's leadership as this. I insert into the RECORD at this point a recent editorial from the Washington Post on the subject of Mr. Rockefeller's nomination which I commend to In37 colleagues' attention: WEALTH IS NOT INHERENTLY DISQUALIFYING One of the threads running through the hearings and the commentary on the nom- ination of Nelson A. Rockefeller to be vice president is the proposition that the join- ing of national political power with the eco- nomic power of the Rockefeller family would be bad for the country. This proposition has been spelled out both abstractly and pre- cisely. In its abstract form, and stripped of unnecessary rhetoric, it becomes an argu ? ment that the very rich should not be al- lowed to hold high political office because they bring with them a distorted view of American life. More precisely, the question becomes, as Sen. Cannon has put it, whether Mr. Rockefeller realizes the inherent risks of "the wedding Of great economic and po- litical power." In either form, it seems to us, this is a mischievous line of inquiry to the extent that it directs attention away from the real questions and diverts it toward a classical Marxist analysis of American politics in which, by definition, the holders of great wealth are, however enlightened individually, unavoidably corrupt agents of their class, It is time, no doubt, that in some cases the holders of great wealth may not be fit to hold high public office. Their view of America may be so distorted and so narrow- minded as to make them blind to the issues the nonwealthy in the country face. Sim- ilarly, some of the poor in the country may be unfit for high public office because their economic status has distorted their vision in a different but equally disqualifying way. And the same can be said of any ge class of persons?males, females, w ite, black, rich, poor, bankers, lawyers, so lets and so on, There were those who felt en- eral Eisenhower should not have been res- ident because he possessed a "military nd," and those who distrusted Woodrow Ison because he was a professor, and thos who would have ruled out Lyndon Johns? be- cause he was a Texan. The point is s ply that it is the character and qualifle ons of the individual that matter most and these are not criteria that can be rig applied on the basis of race or sex or cial and economic background or profess nal experience, or regional origin. Fortunately, Mr. Rockefeller chose to ileal directly with the issue of his wealth in 'his opening statement before the Senate Rules Committee Wednesday. It now seems crystal clear to us that he understands the risks of which Sen. Cannon spoke and the argu- ments made on this issue, both precisely and abstractly, and he may understand them far better than most of his critics or ques- tioners. The real questions Ebout wealth and eco- nomic power as they relate to the vice pres- idency (and the presidency) which Congress should be attempting to anSwer were spoken by Mr. Rockefeller himself: "Am I the kind of man who would use his wealth improp- erly in public office? Or, more generally and more importantly, would my family back- ground somehow limit and blind me, so that I would not be able to see and serve the general good of all Americans?" The answers to those questions, we be- lieve, can only be found in Mr. Rockefeller's record. And despite all the insinuations and all the details that huve been dredged up in the last three months, there is not yet one substantial bit of evidence that suggests he has used his wealth improperly or that he has been unable to see the problems of the average American. Indeed, all the evidence surfaced so far points in just the other direction. What was the purpose of the loans and gifts he made to vfadous public officials in New York State? Hs testimony is that his purpose was to make it possible for the state to have the services of men it might not otherwise have been able to attract, and nothing has been produced to contradict his version. That may not be a desirable way to run a state government?and in our view it is not?but it is neither unique in American history nor on its face an improper use of wealth. It may be worth recalling that in World War If it was paiTiotic for others to supplement the salaries of some of those Who worked for the federal government for a dollar a year. As to Mr. Rockefeller's second question, which has to do with the proposition that the rich should not be in high political office, there is no doubt from Its record as gover- nor of New York and as a national political candidate that he is sensitive to the needs of ordinary citizens. Few governors have been as quick to respond In a constructive and creative way to public needs as he was in his 15 years in Albany. We do not know in what direction the Senate Rules Commitee ntends to proceed with all the witnesses it rtill plans to hear. Nor do we know what surprises the House Judiciary Committee has 1n store. But we do know that the continuin; roundit of ques- tions about the details oi various gifts and loans and about the obviously misguided decision to publish a book on Arthur Gold- berg have produced little new and nothing that, in our view, is disqualifying. We also know that the country has been Without a vice president for three months now. At some point in this protracted inquiry?and that point is fast approaching?it will become appropriate to ask whether some part of the purpose of the exercise now going on is not to cripple r. Rockefeller as a future to rather than to Investigate his qualifications to be vice president. FREEDOM OF INFORMATION ACT VETO SHOULD BE OVERRIDDEN (Mr. GUDE asked and was given per- mission to extend his remarks at this Point in the RECORD and to include ex- traneous matter.) Mr. GUDE. Mr. Speaker, President Ford's action in vetoing the recently passed amendments to the Freedom of Information Act (FIR. :.2471) Is most regrettable. The legislation corrected some important defects :n the original Freedom of Information Act arid went a long way toward establishing once and for all the principle that the Govern- ment's business is in fact the people's business, and that the people have a right to know what their Government is doing. A most eloquent commentary on the veto and the reasons why it should be overridden appeared in the Washing- ton Star-News of October 23, 1974. I in- sert it in the RECORD at this point and commend it to my colleagues' attention. THE PEOPLE'S RUMNESS President Ford's surprising veto of legisla- tion to expand the public's access to informa- tion about government will, beyond much doubt, go over very poorly with 'the public. We expect that many Americans are sadly noting the contradiction with his promise, upon taking office, that this will be an ad- ministration "of openness and candor." In his personal performance he has brought a refreshing openness to the presidency, but in this veto he sided with the agencies that want to conduct much of the public's business in secrecy. Astonishingly enough, that includes most agencies?not just those engaged in sensitive diplomatic and defense fields. Most of them were opposed to the strengthening amend- ments to the Freedom of Information Act which Ford vetoed. These were passed by Congress to remedy serious deficiencies which have shown up in the 1966 act, including one that came to attention very sharply in a Supreme court decision last year. It turned out that the law had not empowered courts to look behind the "classified" designation which agencies place on documents. If a Citi- zen wants information bearing this stamp, the judiciary cannot decide whether the classification is being used justifiably or ca- priciously. Hence the agency label prevails and access to the information is denied. This vetoed legislation would have ended the vast coverup potentia/ inherent in such a system by allowing federal judges to decide, In privacy, whether documents have been classified properly. Ford fears for defense and diplomatic secrets under such a provision for judicial review, but the same guarding proce- dures agreed upon by Congress seem ade- quate. He also was troubled by a proposed time limit for providing information sought by citizens or the press, and in general fa- vored having less "administrative burden placed on the agencies . . ." The problem is that administrative inge- nuity now is applied all too often to delaying the release of requested information indefi- nitely, and hiding mundane facts behind la- bels of official secrecy. Official bumbles still can be covered up too easily by these and other methods which the 17 amendments vetoed by Ford would render largely Inopera- tive. We think the public wants, more than ever before, to see the workings of govern- ment illuminated, and the bureaucracy can very well take on some added burden?in- deed some strict accountability?for that worthwhile purpose. Congress realized that fully, in passing this legislation with only two dissenting votes in the House and none in the Senate. With that sort of majority an override of Ford's veto?which 'certainly is called for? should not be to difficult when Congress returns next month. LEAVE OF' ABMIsTigi?1.4 By unanimous consent, leave of ab- sence was granted as follows: To Mr. Bsrams (at the request of M RHODES) on account of illness. To Mr. FOUNTAIN (at the request Mr. O'NEILL) for Monday, November Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approyed For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 November 19, 1974 CONGRESSIONAL RECORD ? SENATE ANALYSIS OF THE PRESIDENT'S JUSTIFICATION OF HIS VETO OF THE FREEDOM OF INFORMATION ACT AMENDMENTS Mr. CHILES. Mr. President, at the request of the Subcommittee on Admin- istrative Practice and Procedure, U.S. Senate, the Center for Governmental Responsibility at the Holland Law Cen- ter, University of Florida, has provided the subcommittee with an analysis of the President's justification of his veto of H.R. 12471, the Freedom of Informa- tion Act amendments. It is the center's conclusion based on their research that neither the consti- tutional nor the administrative reasons? the only ones given in the President's veto message, can be sustained. I ask unanimous consent that this analysis be printed in full in the RECORD an that the enclosed editorials which support an override, from Florida news- papers, be printed in full in the RECORD. There being no objection, the material was ordered to be printed in the RECORD, as follows: ANALYSIS OF PRESIDENT FORD'S VETO OF H.R. 124'71 HR. 12471, a bill to amend Section 552 of of title 5, United States Code, known as the Freedom of Information Act, is designed to narrow the gap between the Act's original objectives and realities of current practices. However, finding the proposed changes "un- constitutional and unworkable," President Ford has vetoed the bill. The President's op- position to the bill is not, by his own im- plications, founded on philosophical dis- agreement with the substance of the Free- dom of Information Act but disapproval of the procedures selected to further those ob- jectives. The President's objections to BR. 12471 principally stem from provisions in the bill dealing with three areas: 1) judicial review of classification, 2) time limits for review of FDIA requests and costs for obtaining in- formation, and 3) investigatory files. I. REVIEW OF CLASSIFIED DOCUMENTS A. Practices under the current legislation The present language of exemption (b) (1) states that the provisions of the FOIA do not apply to matters that are "specifically required by Executive order to be kept secret in the interest of national defense or for- eign policy." The FOIA grants jurisdiction to district courts of the United States to order the production of agency records im- properly held. According to the Act, "the court shall determine the matter de novo and the burden is on the agency to sustain its action." The import of the term de novo has been the focal point of concern over the applica- tion of exemption (b) (1) since the passage of the Act in 1966, The plain meaning of the term de novo would seem to be a grant of authority for a court to consider a claim made under the FOIA "from the beginning" and in its entirety. This plain meaning in- terpretation, however, encountered difficulty when an attempt was made to apply it to a situation where the Government was claim- ing exemption from disclosure pursuant to exemption (b) (1) . The question which arose was whether the de novo provision, as ap- plied to materials claimed to have been class- ified pursuant to an Executive order, per- mitted a court to review the documents In auestion in camera to determine if they did in fact come within the scope of the alleged .classification. The Supreme Court found in camera inspection was not allowed. Environ- mental Protection Agency V. Mink, 410 73 (1973). The substance of the Court's con- sideration of the language of the Act and its legislative history was that Congress did not intend for the Act to subject the execu- tive security classification decision to ju- dicial review. This restriction on the review procedures applicable to exemption (b) (1) has been one of the principal subjects of criticism and suggested reform. In essence, the objection to the restricted judicial review of (b) (1) exemption claims Is that such restricted re- view amounts to no review at all. According to EPA V. Mink the Government sustains its withholding of requested materials by merely offering affidavits that the materials sought have been classified pursuant to an Execu- tive order. There is no further check on either the sincerity, or, assuming a good- faith effort, the accuracy of the classifica- tions itself. There is good reason for concern over the lack of review afforded these two factors. Classification abuse, chiefly through over- classification, is known to be common. To quote former Defense Secretary Laird, Let me emphasize my conviction that the American people have a "right to know even more than has been available in the past about matters which affect their safety and security. There has been too much classifica- tion in this country. As cited in H.R. Rep. No. 221, 93rd Gong., 1st Sess. 40 (1973)." Former United Nations Ambassador and Supreme Court Justice Arthur Goldberg, re- flecting on the basis of his personal experi- ence of reading and preparing thousands of classified documents, concluded that? "75 percent of these documents should never have been classified in the first place; another 15 percent quickly outlived the need for secrecy; and only about 10 percent genuinely required restricted access over any significant period of time. Id. at 41." Justice Douglas, in his dissenting opinion in EPA, noted the present day realities of overclassiflcation in this light: "Anyone who has ever been in the Execu- tive branch knows how convenient the "Top Secret" or "Secret" stamp is, how easy it is to use, and how it covers perhaps for decades the footprints of a nervous bureaucrat or a wary executive." It is Justice Douglas' opinion that the secrecy stamp is used to withhold infor- mation which in 99% of the cases would pre- sent no danger to national security. Gravel v. United States, 408 U.S. 606 (1972) dis- senting opinion). The significance of the abuse of classifica- tion procedures is intensified when no effec- tive review of the procedures is available. The lack of any realistic review of classifica- tion procedures other than that provided by the body responsible for the initial classifica- tion results in a giant loophole by which the Act's disclosure requirements may be avoided. B. What H .R. 12471 would do The provisions of H.R. 12471 relating to review applicable to exemption (b) (1) are designed to tighten the presently existing loopholes created by EPA v, Mink. H.R. 12471 would alter two provisions of the Act in order to reach this goal. Section (a) (3), the provision dealing with judicial review, would be amended to specifically grant the court discretionary authority to "examine the contents of .. . agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions . . ." Exemption (b) (1) would be amended so as to create a two- prong test, As it stands, exemption (b) (1) exempts matters "specifically required by Executive order to be kept secret in the in- terest of the national defense or foreign policy." H.R. 12471 would include the phrase "and are in fact properly classified pursuant to such Executive order" so as to demand adherence to procedural as werl as substan- S 19615 tive requirements of the order. The com- bined effect of these changes is to bring dis- cretionary in camera review of classified ma- terials within the ambit of the court's de novo determination. C. The President's objections The President voices two major objections to H.R. 12471's provisions for dealing with review of classified documents. According to the veto message of October 17, 1974, It is the President's opinion that the bill's pro- cedures would jeopardize military and intel- ligence secrets and diplomatic relations, and violate constitutional principles as well. The concern for the bill's effects on diplomatic relations and military secrets is evidently founded in a skepticism regarding the ca- pability of courts to deal with such Matters, matters for which, in the President's words, the courts "have no particular,expertise." The nature of the President's constitutional objection is not as easily pinpointed. The veto message makes no reference to the exact nature of the constitutional infraction. Pre- sumably, the constitutional principle re- ferred to is the separation of powers doctrine. Subsequent to his veto, the President for- warded his own amendments to H.R. 12471 to Congress. His proposals, aimed at curing the deficiencies he believes to exist in the bill as presently written, would allow in camera review only where a court finds, after first considerinig all attendant material, no rea- sonable basis to support the classification. In effect, the President's procedures would make the affidavit the first and final test of the validity of the government's claim of nondisclosure. Court expertise - The President evidenced, in his veto mes- sage, a skepticism of the capability of courts to deal with such matters as military affairs and diplomatic relations stating the courts "have no particular expertise" in these fields. The courts have, however, in other difficult and sensitive areas, managed to dis- pose of cases involving a thorough analysis of cases which require special expertise; for example in certain tax cases, the district courts have delved into such difficult tax Issues as sections 1311-14, Mitigation of Lim- itations, and have been affirmed by the circuit courts.' The courts have also demonstrated 1"In my opinion, citizens urgently need 'relief from the tyranny of classification secrecy as practiced by the executive branch. The judiciary could give us that relief. I am confident that a Federal court would ex- ercise good judgment about our national defense requirements in any given case. I would assume that the judge could handle any foreign policy case quite satisfactorily." Hearings on Executive Privilege, Secrecy in Government, Freedom of Information Before the Subcomm. on Intergovernmental Rela- tions of the Comm. of Government Opera- tions, 93rd Cong., 1st Sess., pt. 1, at 290 (1973). Testimony of William G. Florence, Air Force Security Analyst (Retired). 'The district court in Oklahoma Gas and Electric Co. v. United States, 289 P. Supp. 98 (W.D. Okla. 1968), affd. 464 F. 2d 1188 (10th Cir. 1972), stated that "the purpose of the mitigation sections is to correct tax inequi- ties where the statute of limitations, if con- trolling, would serve to create a double tax- ation or double escape from taxation to the unjust hardship of benefit of either taxpayer or the government." These sections of the Internal Revenue Code usually only apply under unusual circumstances, and only after several theshold requirements have been met. See Yagoda v. Commissioner of Internal Revenue, 331 F. 2c1 485, 488 (2nd Cir.); cert. denied, 379 U.S. 842 (1964); 2 Mertens, Law of Federal Income Taxation ? 14.01 (Zimet & Stanley ed. 1967). The Second Circuit in Benenson v. United States, 385 F. 2d 26 (1967), approved the disposition regarding Approved For Release 2005/06/09: CIA-RDP75600380R000700010003-5 S 19616 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 CONGRESSIONAL RECORD SENATE Novembe7- 19, 1974 the ability to deal with complex issues in the delicate area of patents and copyrights. See, e.g., Kewanee Oil Co. v. Bicron Corp., 94 S. C. 1879 (1974), and the highly technical area of antitrust law. See, e.g., Telex V. IBM, 367 F. Supp. 258 (N.D. Okla. 1973.) Perhaps the most salient example of courts dealing with sensitive issues and materials is the Water- gate case and the handling of the White House tapes. The President's hesitancy is misplaced in this situation since federal judges, on the district court level, have demonstrated competence in handling com- plex and sensitive issues. They are appointed by the President himself with the advice and consent of the Senate and as such are worthy of the trust of the executive. E. The doctrine of separation of powers The President makes no direct identifica- tion of the constitutional principle he claims to be violated by the procedures outlined in H.R. 12471, but it is apparently the separa- tion of powers doctrine. The President does, however, offer a elypothetical example illus- trating that he believes to be the unconsti- tutional arrangement. The President's hypo- thetical involves a situation where the Sec- retary of Defense has reasonably determined that disclosure of a certain document would endanger our national security. As the Pres- ident interprets the bill, a district judge who, upon contemplation under the FOIA, found a plaintiff's position just as reasonable, would have to order disclosure of the docu- ment. "Such a provision," according to the President, "would violate constitutional prin- ciples." 10 Presidential Documents 1318, Oct. 17, 1974. The President's concern with the scope of review to be applied under H.R. 12471 is founded upon the presumption or weight to be afforded the executive's findings. Evi- dently, the President's opinion is that fail- ure to proceed under a standard of review granting some presumption in favor of the executive is unconstitutional. Presumably, the rationale behind this opinion is that ab- sent a presumption in favor of a prior deter- mination by the executive branch, similar to the presumption of validity given to an agency under traditional principles of ad- ministrative law, the court is forced to un- dertake a totally independent evaluation of the validity of a certain classification. For the court to perform this function would be tantamount to substituting its judgment for that of the executive official making the Initial classification?a nonjudicial function. Assuming this is indeed the reasoning be- hind the President's objection, the constitu- tional principle which requires examination is the doctrine of separation of powers. The underlying objective of the doctrine of separation of powers is the desire to avoid autocracy. Myers v. United States, 272 U.S. 52, 293 (1926). To this end the doctrine serves to safeguard that degree of inde- pendence which a certain branch of the government needs in order to carter out its responsibilities. The doctrine is a necessary corollary of the specific constitutional desig- nation of the three branches of the govern- ment. Nearly a century ago the Supreme Court observed the following necessary re- straints of the Constitution: "1 It is essential to the successful working of this system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the exercise of the powers appropriate to its own department and no other . . . Kilbunz v. Thompson, 103 U.S. 168, 191 (1881)." relationship between the mitigation provi- sions of sections 1311-15 add the doctrine of equitable recoupment, made by the district judge in his exhaustive opinion." Id. at 28, See Benensen v. United States, 257 F. Stipp. 101 (S.D. NY 1966). It has been recognized that the principle of separation of powers "was obviously not instituted with the idea that it would pro- mote governmental efficiency. It was, on the contrary, looked to as a bulwark against tyranny." United States v. Brown, 381 U.S. 437 (1965). As applied to the Judiciary, it serves to interpret Article TII of the Consti- tution as troth "a grant of exclusive authority over certain areas and as a limitation upon the judiciary, a declaration that certain tasks are not to be performed by courts." Id. The issue, therefore, is whether the courts are being compelled to pesforrn a function which is properly left to another branch of the government. H.R. 12171 requires courts to perform a, de novo review. A court under- taking such review is authorized "to examine the contents of such agmey records in camera to determine whet her such agency records or any part thereof shall he withheld under any of the exemptions set forth . . ." in the Act. Taken in context these provisions confer to the courts the riEht to review an executive decision to determine its pro- priety?a traditionally judicial function. The President's objection is presumably based on the argument thas the courts' re- view function is equivalen t to the initial clasification decision. The crucial point is that the specific task assigned the courts under HR. 12471 is to establish whether agents of the Executive branch have followed the standards which the Esecutive branch itself has promulgated for classifying con- fidential materials. It is not the intention of the bill, nor does it allow, the courts to make an independent determination of -whether materials should or should not be classified in the interest of national security. The fundamental task before the court is one of review, a judicial function which the Constitution, has assigned exclusively to the courts. The President attaches grs at significance to what he considers a lack of presumption in favor of the government's findings. It is likely that the President attributes this lack of presumption to the Act's requirements Which call for de novo review and place the burden on the agency to sustain its action. The fact is the provisions do not necessarily remove an effective presumption in favor Of the government's findings. In reality, such a presumption will most like: y be the rule In the majority of cases. Ths courts have traditionally shown great deference to Ex- ecutive determinations in matters of national defense and foreign affairs and there is noth- ing in Hie 12471 which would require a change of procedure in that regard. United States v. Curtiss-Wright, 299 US. 304 (1936). The bill permits in camera, inspection at the discretion of the court; it is not automatic. The clear legislative intent is tnat in camera inspection will occur only after the court has considered all attendant evidence and found it insufficient to sustain the govern- ment's position. To quote the conferees: "Before the court orders in camera in- spection, the government should be given the opportunity to establish y means of testimony or detailed affidavits shat the doe- uMents are clearly exempt from disclosure." 'Thus a judge might very wal determine that an affidavit, asserting that requested materials have been classified pt rsuant to an Executive order, does itself establish the government's position. The objective of H.R. 12471 appears to be that the weight to be given evidence such as an affidavit is to be left with the court. The bill does not pre- vent a judge from attaching considerable weight to the fact that the government feels certain materials are within the ambit of a clasification. For reasons which will be dis- cusZed presently, H.R. 12171 seel:s merely to avoid a hard and fast rule which makes an affidavit conclusive evidence of the validity of the government's position. The hypothetical proposed by the Presi- dent in his veto message suggests a ntiscoe- struction of the scope of review called for under Bit. 12471. The hypothetical involves a situation where the court is comparing its own independent determination of the po- tential danger of a certain document to the national security with the government's de- termination on the matter. The procedure called for in H.R. 12471 is a process wherein the court would consider the government's determination in light of requirements out- lined in an Executive order. In deciding the question the court would inevitably attach considerable significance to the government's prior determination on the matter. Such a review procedure is not inconsistent with the Act's de novo and burden of proof re- quirements. The de novo requirement that the court is to consider the issue in its en- tirety does not preclude a court from at- taching whatever significance to the govern- ment's actions it finds appropriate. The bur- den of proof stipulation means only that the government must come forth with the evi- dence necessary to convince the court that the materials do indeed escape the Act's dis- closure requirements. To return to the President's hypothetical, it would seem to be somewhat of an impossibility for a court to find that a classification was at the same time both reasonable and unreasonable. Were the government to show that a par- ticular classification was made pursuant to the substantive and procedural requirements of an Executive order the court's only option under HR. 12471 is to refuse to compel dis- closure. Thus in the President's hypothetical a finding by the court that a classification made by the Secretary of Defense was in- deed reasonable, as judged by the specifica- tions in the Executive order under which the classification was made, would preclude a simultaneous conclusion that the material in question could be disclosed. If there exists a reasonable basis to classify, disclosure is unreasonable. The scope of review which the President would apply is the equivalent of the sub- stantial evidence rule which the courts fre- quently apply in reviewing agency actions. 'The President's procedure would permit dis- closure only where a court could find no rea- sonable basis to support the government's classification. This procedure would also make a government affidavit attesting to the validity of a classification the equivalent of prima facie evidence that the government had indeed made a legitimate classification. Under this procedure, an affidavit would pro- vide the court with a reasonable basis to support the government's classification such as to make in camera inspection unnecessary and inappropriate. Congress, however, had good reason for selecting a de novo scope of review instead of a substantial evidence ap- proach. The lack of any record by which the court could determine whether the govern- ment had acted according to the provisions of the Executive order authorizing and pre- scribing the conduct of the individual in- volved renders the application of a substan- tial evidence rule difficult. As the Supreme Court observed in Citizens to Preserve Overton Parlc V. Volpe, 401 U.S 402 (1970). "Review under the substantial evidence test is authorized only when the agency ac- tion is taken pursuant to a rulemaking pro- vision of the Administrative Procedure Act itself . . . or when the agency action is based on a public adjudicatory hearing. Id. at 414." To apply the substantial evidence rule to exemption (b) (1) of the FOIA would be in- consistent with the Act's objectives. In ef- fect, such a standard would do nothing to change the present status of the exemption, and therefore would be undesirable since as we have already seen the current limitations on review of exemption (b) (1) provides a loophole for avoiding the Act's disclosure re- quirements. The substantial evidence ap- Approved For Release 2005/06/09 : CIA-RDP751300380R000700010003-5 Approved Fdr Release 2005/06/09 : CIA-RDP75600380R000700010003-5 November 19, 1974 CONGRESSIONAL RECORD.? SENATE proach that the President prescribes pro- hibits any valid independent review and thus allows the abuses of overclassification to continue. This lack of any meaningful check on ad- ministrative action places the Executive rather than Congress in jeopardy of violat- ing the separation of powers doctrine. Total preclusion of judicial review makes the Exec- utive the sole judge of its actions. This is particularly inappropriate in the immediate case since the constitutional authorization for the power which the executive is here exercising stems from the Executive and Congress. While the Constitution designates the President as Commander in Chief of the Army and Navy, and grants him certain powers in regard to treaty making, it like- wise bestows the Legislative branch with the power to declare war and raise and sup- port armies to regulate commerce with foreign nations and to ratify treaties. The Constitution thus grants to both the Execu- tive and Legislative branches the authority to deal in matters pertaining to military and foreign affairs. Moreover, the history of the present system of classification shows a conspicuous absence of any constitutional authority for withholding information through classification. Indeed, what is shown is the legitimacy of Congress' authority to act in this area. The onset of the present sys- tem for withholding information relevant to the national defense or foreign policy can be traced back to World War I. See Executive Classification of Information?Security Clas- sification Problems Involving Exemption (b) (1) of the Freedom of Information Act (5 U.S.C. 552). H.R. Rep. No. 221, 93rd Cong., 1st Sess. (1973). The first Executive order estab- lishing a classification system became effec- tive in 1940 and relied upon the authority of a congressional enactment giving the Presi- dent power to establish as vital certain mili- tary installations and to make unlawful the conveying of information or physical repre- sentation of these designated installations. Ex. Order No. 8381, 3 C.F.R. 634. Since this time various orders have ex- tended the scope of the classification system in the area of non-military affairs. Currently, classification procedures are established by Executive Order No. 11652 (37 C.F.R. 5209, 1972) and apply to "official information or material which requires protection against unauthorized disclosure in the interest of the national defense or foreign relations of the United States" or, to use the collective term adopted in the order, "national security." It Is interesting to note that the only authority for the classification system cited in the order is section (b) (1) of the Freedom of Informa- tion Act. It is clear therefore that the ob- jectives of a classification system properly reside within the domain of both the Con- gress and the Executive. For one branch to completely usurp the administration of such responsibilities through the preclusion of any meaningful procedure for review run con- trary to the separation of powers doctrine. A thorough consideration of the provisions of x.n. 12471 reveals that the separation of powers doctrine is not threatened by the proposed legislation. Indeed it is the con- stitutionality of the procedures outlined by the President which appear suspect. One area of possible confusion Which de- serves consideration is the claim of executive privilege. This claim has no application to the matter under consideration here. As has been shown, it is not the purpose of H.R. 12471 to compel disclosure of materials which in the interest of national security should properly remain classified. H.R. 12471 seeks to exercise Congress' legitimate interest in insuring that the integrity of the clas- sification system is not destroyed through the abuse of overclassification. Additionally, Congress has the legitimate concern of main- taining to the fullest extent possible an open flow of all information pertinent to the decisions which citizens of a democracy are called upon to make. H.R. 12471 does not seek to deprive the Executive of the legiti- mate use of a privilege against disclosure since exemption (b) (1) is an express recog- nition of the possible propriety of such a privilege. H.R. 12471, aligns the privilege with principles underlying the separation of pow- ers doctrine. The alignment procedure out- lined in H.R. 12471 is the rejection, con- sistent with the holding of the Supreme Court, of any claim of absolute privilege. Whether or not the Executive has a legiti- mate privilege granting it immunity from compliance with the demands of the other branches of Government is something that only the courts can determine. What is called for is a decision whether, and to what degree, a matter has been committed by the Con- stitution to another branch of government. This decision "is itself a delicate exercise in constitutional interpretation, and is a re- sponsibility of [the Supreme] Court as ulti- mate interpreter of the Constitution." Baker v. Carr, 369 U.S. 211 (1961). "Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government." United States v. Nixon, 94 S. Ct. 3090, 3106 (1974). Consistent with the concept of separation of powers, the provisions of H.R. 12171 place the determination of the propriety of the Executive's privilege against disclosure where it properly resides--with the courts. The United States Court of Appeals for the Dis- trict of Columbia has articulated the essence of the issue with particular clarity and per- ception: "If the claim of absolute privilege was recognized, its mere invocation by the Presi- dent or his slarrogates could deny access to all documents in all the Executive depart- ments to all citizens and their representa- tives, including Congress, the courts as well as grand juries, state gOvernments, state of- ficials and all state subdivisions. The Free- dom of Information Act could become noth- ing more than a legislative statement of unenforceable rights. Support for this kind of mischief simply cannot be spun from incantation of the doctrine or separation of powers. Nixon v. Sirica, 487 F,2d 700, 715 (1973) ." 15. Tnyia LIMITS arm COSTS President Ford's second objection to the FOIA amendment relates to the limitations placed on an agency's time to respond to initial requests for information and admin.. istrative appeals from initial denials. The President suggests substitution of the initial 10 day period by a 30 day limitation, and a substitution of the 10-day administrative extension period for unusual circumstances by a 15 day period. Along with these substi- tutions the President suggests that an agency be allowed to petition the U.S. District Court for the District of Columbia for an even further extension of these time periods if compliance is essentially impossible. This application to the court must occur prior to the expiration of the periods specified in his substitution. Obviously, the President recognizes the need for specific guidelines on periods for agency responses?the need for which is born out by past experience. Perhaps the greatest abuse of the Freedom of Information Act has been the low priority accorded by agencies on information requests. Hearings on N.H. 5425 and 4960 Before the Foreign Operations and Government Information Subcomm. of the House Comm. on Govern- ment Operations, 93rd Cong., 1st Sess., 334 (1973) . One study has shown that six month delays in processing are not uncommon and mentioned one request that remained unde- termined after more than one year. Sub- comm. on Administrative Practice and Pro- cedure of the Senate Comm, on the Judiciary, S 19617 Freedom of Information Act Source Book, S. Doc. No. 82, 93rd Cong., 2nd Bess. 223 (1974). Such delays, whether intentional or not, can often amount to a de facto denial of a request. Specific, enforceable time limitations would significantly alleviate this problem, especially in light of section c (6)C of the amendment. This amendment permits a re- quester to treat his administrative remedies as exhausted if the time limitations are not complied with, allowing suit to be filed if desired. President Ford's modifications of the time limits do not present so substantial an im- provement over the amendment as to war- rant sustaining a veto. It is true that if one totals the time periods mentioned in the two proposals, the President's presents a total of 65 working days as compared to 40 working days. A measurement of percentage incre- ment is not possible because this total does not reflect the varying times involved in the requester framing an administrative appeal, a period during which the agency presumably continues to analyze the exempt nature of the requested materials. But simply referring to the difference in time limits fails to. recognize that the amendment as it now stands provides an agency with an opportu- nity to request still more time within which to analyze a request if it is presented with exceptional circumstances. If it is indeed impossible for an agency to comply with the time periods, once a com- plaint is filed by the requester, a district court may allot extra time to the agency and retain jurisdiction. Thus, as regards par- ticularly sensitive, complex, or extraordinar- ily voluminous materials, such as the Presi- dent is specifically concerned with in the case of investigatory files, an agency will not have to make a hasty or ill considered judg- ment. It should be further noted here that the Congressional proposal substantially follows the guidelines suggested by the Administra- tive Conference in Recommendation No. 24 wherein the 10 and 20 day basic time periods were first suggested. This recommendation was made after a thorough and precise study of agency procedures in relation to the FOIA. It is not clear that the President's proposal would result in less time, effort, or money ex- pended by an agency, vis-a-vis the Congres- sional proposal. As the FOAI now stands, the U.S. District Court in the district where the complainant resides has jurisdiction over an FOAI case and would normally be the site of an original proceeding. It is true that if the complaint were filed, under the procedures of the amendment an agency would have to file its request for a time extension in that district. Under the President's procedures the agency would merely have to file its affidavits in the District of Columbia, and it would be the prospective complainant who would have to defray the costs of traveling to Washing- ton to challenge the, adequacy of the affi- davits. However, under the President's pro- posal the agency involved would always have to draft such affidavits before the expira- tion of the initial time periods, whereas un- der the amendment's procedures the agency could inform the requester of the difficulty of the determination and suggest that he withhold suit for a period of time, save the time and effort of drafting a complaint, as well as the filing fees. If such a procedure is followed in good faith, it saves the com- plainant from the possibility of unnecessary suit; it saves the agency the time, eff'ort and money of filing affidavits for extension?as It would always have to do under the Presi- dent's proposal; and as a practical matter the whole apparatus operates in a much less cumbersome, inexpensive manner. Ultimately the point of disagreement on time limits is one of degree. Both the Presi- dent's proposal and the suggested amend- ment contain some time limit. Because of unnecessary extended delays, the shorter Approved For Release 2005/06/09 : CIA-RDP75130038014000700010003-5 S 19618 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 CONGRESSIONAL RECORD SENATE time limit seems justified and an extension does not warrant the veto. Ia. INVESTIGATORY PILES The Presidential objections identify inves- tigatory files as a separate problem from purported constitutional and time limit in- firmities. His complaints focus on the neces- sity of reviewing large files on a paragraph by paragraph basis to sever the disclosable from the non-disclosable portions. The President's message singles out inves- tigatory files which he believes should not be subject to the amendment's command that "any reasonably segregable portion of a record shall be provided . . .sitter deletion of the portions which are exempt." The Pres- idential substitute allows the agency to clas- sify a file as a unit without close analysis because the time limits are too stringent to allow such intensive analysis. If investigatory files are so unique in terms of length and complexity, an agency's logis- tical difficulty in conducting a thorough analysis would certainly strongly influence a court to extend the time for agency analysis as is authorized by the bill. Therefore, a pro- cedure is already available to provide for ac- curate and thorough analysis without em- powering agencies to make conclusory opin- ions that would result in no disclosure of in- formation in an investigatory file, no matter how much of it would be proper to disclose. Also, it is precisely this opportunity to ex- empt whole files that would give an agency incentive to commingle variouS information into one enormous investigatory file and then claim It to be too difficult to sift through and effectively classify all of that informa- tion. This objection, as was the objection to the time limits, is one of degree. In light of the fact that "Mlle FOIA was not designed to increase administrative efficiency, but to guarantee the public's right to know how the government is discharging its duty to protect the public interest," Wellford v. Hardin, 444 F.2d 21,24 (1971), disclosure of severable por- tions of investigatory documents does not create an unreasonable burden. CONCLUSION None of the objections issued by the Presi- dent's veto message appear to establish either that Kit. 12471 is unconstitutional or un- workable. The provision of the amendment which allows in camera inspection of classi- fication determinations is not unconstitu- tional under the separation of powers doc- trine but does provide a check on possible executive abuses of the classification system. Objections as to difficulty in culling public information properly classified in investiga- tive files is an administrative matter similar In nature to the objection as to lengths of times for review of requests. We conclude that the administrative problems do not constitute insurmountable barriers. Time limits in the amendment accord some flexi- bility if needed, If those responsible for cul- ling information from investigative files can- not reasonably meet the deadline, extensions can be granted. The basic philosophy underlying the FOIA is consistent with the President's proclaimed support for open government. Yet experts on the current implementation agree to the need for changes to better implement that philosophy. Our analysis also suggests that the Con- stitutiOn does not demand a veto of this bill since it does not violate the separation of powers. And finally the amendments, while requiring some additional effort from officials, are not administratively unworkable. (From the Miami News, Oct. 21, 1974] MOST SECRECY NEEDLESS The public should be distressed that Pres- ident Ford has vetoed important amend- ments to the Freedom of Information Act after Congress had overwhelmingly rec- ognized the need to further pry unwar- ranted secrets out of government agencies. Mr. Ford apparently had been fed a lot of bad advice by the Justice Department and the Pentagon chiefs that the amendments would give the citizens and the news media carte blanche to invade confidential FBI and military files. But the federal courts long have given ample protection to the necessary secrets of government and there is no reason to think this would not be the case In the future. The Freedom of Information Act, passed by Congress in 1966, says the public should have the broadest access to information about the workings of government. But the important agencies have done themr. best to escape compliance. Deliberately long delays in responding to requests for data have de- feated the purpose of the s,ct. The amendments wouli shorten the amount of time or an agency's response, would impose penalties on officials who arbi- trarily refuse to cooperate, and would re- quire annual reports to Congress on per- formance. The President promised an open adminis- tration when he assumed office last August. But if he yields to the desires of the FBI and the Defense generals for excessive secrecy, he will revert to one of the insidi- ous traits that wrecked the Nixon adminis- tration, Congress ought to override the veto. Learn- ing how governrhent conducts its business is the business of all Amerisans. [From the Miami Herald, Oct. 27, 19741 AN OVERRIDING CONCERN ON SECRECY President Ford's proposed substitute for the amendments to the Freedom of Informa- tion Act which he vetoed Ocls 17 is, if any- thing, worse than no bill at all. As J. Arthur Heise suggests in an adjoin- ing column, the existing information act is ''largely a toothless baby" which really en- courages bureaucrats to Clara up when it suits their fancy. It created a situation, he goes on, "akin to allowing a drunken driver to administer his own sobriety test." Mr. Ford's substitute for the amended act, which passed the Senate 64 to 17 and the House 366 to 8, grants wide latitude and lots of lead time to those who may wish to prevent the public from learning about its own business. For instance, the vetoed bill would give government agencies 10 days to respond to a request to furnish documents believed to be improperly classified. The Ford version would give agencies 30 days to cots ply plus an- other 15 days in some cases and the right to seek a longer delay from the courts in exceptional circumstances. In other words, plenty of time ts bury the banes or forget all about it. U.S. government files are clammed with tons of material affecting and perhaps cover- ing up decisions made in the name of the public but without its knowledge. Some of this material goes back half a century and more. Washington is an echo cham ser for petty politics and social gossip but many of its halls are tightly shut to public information, much of which has no title to official secrecy. At the very least Congress should pass the amended Freedom of Information Act over President Ford's veto, which we fear was derived from bad advice. rFrom the Miami Herald, Oct. 29, 19741 To LET aux SIINSH/NE OUT In a joke making the rounds a few years back, a picketer at the White House waves a sign reading "The President is a Pool" and is promptly arrested for revealing top secret information. The anecdote makes a point Although , November 19, 1974 governmental secrecy has some legitimate uses, it is as often the refuge of fools and scoundrels who cover up their indiscretions by denying the public access to vital infor- mation. It does not have to be that way. In Florida a tough law to bring about "government in the sunshine" is a Model for other states. At the federal level, Florida's Sen. Lawton Chiles, the citizen lobby Common Cause and several prominent persons in government and the media have been pushing for a national version of the "sunshine law" with a few changes to take into account military se- crecy and foreign affairs that are not a prob- lem at the state level. After months of work, congressmen thought they had hammered out an accepta- ble compromise to guarantee public access to public records and the public's business. The measure, watered down somewhat to meet President Ford's stated objections, passed the House 336-8 and the Senate 64- 17. The chief author of the compromise, Rep. William Moorehead of Pennsylvania, noted that the bill would 'provide the openness in government that President Ford has prom- ised us" and predicted it would be sig;sed into law. But Gerald Ford had a secret. He vetoed the compromise measure in an ill-advised. action that Washington observers blamed on the President's listening to the Pentagon's views on secrecy. Mr. Ford's stated reasons for his veto were totally unconvincing. We trust that when Congress returns following its election re. cess, it will act promptly to enact the Free- dom of Information Act to start letting a lit- tle sunshine illuminate the activities of the federal government. [From the Jacksonville (Fla.) Times-Union, Oct. 24, 1974] READDRESS SECRECY SILL SOON It took the Congress three agonizing years to produce a government anti-secrecy act designed to let the American people know. what is going on in the federal government. It took President Ford one week to veto the measure, an amendment to the Freedom of Information Act. The President's action is distressing unless the justification cited for it is adequate. First, it is distressing because of the ac- knowledged fact that there has been to much abuse by policymaking bureaucrats of the "secret" and "confidential" stamps placed on government documents. It is distressing also because one of the foremost pledges of President Ford when he assumed the presidency was for more open- ness at the White House, an example that should then filter down through the rest of the Executive Branch. The bill as it worked its way through the Congress was opposed by the Defense Depart- ment and by the State Department. They argued that diplomatic secrets and vital military secrets would be revealed as a result of the act. Congress took these arguments into con- sideration and, notwithstanding, overwhelm- ingly adopted the bill. The vote in the House was 366-8 and the Senate vote was 64-17. Congress must have felt that the bill con- tained sufficient safeguards of national se- crets?real secrets? as opposed to cover- ups?to produce those overwhelming votes for the measure. We hailed the passage of the anti-secrecy bill with muted praise because Congress failed to act more positively with regard to openness concerning its own activities, al- though some progress is being made M this direction. In his veto message, President Ford cited the diplomatic-military secrets angle and also said it was his view that the neW crack- in-the-door policy enunciated by Congress Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approled For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 November 19, 1974 CONGRESSIONAL RECORD ? SENATE for the ExecutiVe Branch was "unconstitu- tional and unworkable." The President prom- ised to send along proposals of his own to eliminate defects of unconstitutionality and unworkability that he perceives in the measure. We are reluctant to criticize the President on this issue. We do not want to see American foreign policy undermined by the inadvert- ent publication of diplomatic communica- tions; we do not want to see vital American military secrets revealed to enemies or po- tential enemies; we do not want to see domestic public enemies aided and abetted in their schemes to escape just punishment for crimes. If the President is right and the bill has serious defects with regard to protecting legitimate national secrets, it is distressing that Congress, after three years work, could not have struck a better balance. In any case, Congress should, in view of all the other pressing matters, move with all deliberate speed to readdress this question of the abuse of secrecy and confidentiality powers by various Fxecutive Branch agencies. [From the Palatka Daily News, Oct. 22, 19741 MORE INFORMATION PLEASE The purpose of the Freedom of Informa- tion Act of 1966 was to strike down bureau- cratic obstacles which keep the American people from finding out what their govern- ment is up to. The purpose of the amended act just vetoed by President Ford is to strengthen the original legislation. Strengthening is necessary. The law has not been nearly as effective as its proponents had hoped; there have been many evasions and delays by federal agencies, and much information which should have been made public has continued to be held in the files. Mr. Ford raised two principal objections to the amended act. He opposed the amend- ment's central concept of permitting the federal courts to go behind a secrecy classi- fication and determine whether it was jus- tified by circumstances. He also opposed the time limit provisions of this legislation. It would be burdensome, he argued, to require government agencies to decide in 10 days whether to furnish a requested document, and to give them 30 days in which to re- spond to lawsuits questioning a negative decision. We do not agree with Mr. Ford on the latter point. Ten days strikes us as a reasonable time for an agency's initial decision on meet- ing a request for information. If there are valid reasons for refusing to comply, the agency should be able to set them forth in a preliminary way for the courts within 30 days. Nor do we agree that judicial review of secrecy classifications would threaten to en- danger diplomatic relations or injudiciously reveal intelligence secrets. The President maintains that the courts would be deciding on document classification "in sensitive and complex areas where they have no exper- tise." Perhaps so, but the courts' record of responsibility suggests that in sensitive cases they would seek expert advice before ruling. In most eases, it would be preferable to have such decisions made by the courts rather than by bureaucrats whose interest may lie more hi concealment than in dis- closure. The public needs more, no less, in- f.6rmation about the workings of the govern- ment. Senate and House votes on the legis- lation indicate that Congress feels this very strongly. The veto may be overridden, as it should be, propriate referral, a bill to designate the Wheeling Suspension Bridge at Wheel- ing, W. Va. a national historic site and to assimilate the bridge into the national park system. This bridge has a long and colorful history and has played a significant role in the development of our Nation. It was the first bridge built across the Ohio River and linked the National Road to the emerging territories of the West. It also established Wheeling as the early gateway to the West. I am told that the city of Pittsburgh went to court in an effort to prevent the bridge from being erected, and only special legislation pushed through Congress by the delega- tion from Virginia permitted construc- tion to go forward, When the Wheeling Suspension Bridge was completed in 1849, it constituted a remarkable engineering feat. At 1,010 feet in length, it was the longest bridge in the world and was the most outstand- ing example of suspension bridge en- gineering, which in those days was a revolutionary new way to build bridges. Five years after its completion a storm swept through the Ohio Valley and the Wheeling Suspension Bridge crumbled into the Ohio River. Wheeling and the Nation were shocked. But local residents and the Wheeling and Belmont Bridge Co., owners of the span, were undaunted. They hired Johan A. Roebling of Pitts- burgh to rebuild it. He did, and the bridge was opened to traffic again in 1856 at a cost of $42,000. For nearly 120 years the Wheeling Suspension Bridge has played a vital role in the course of American history. During the Civil War, it was an indis- pensable passageway across the Ohio River. During World War I, it carried heavy and continuous loads of war trans- port trains, which bore the materials of victory to our Nation's seaports. This was a role the bridge played again dur- ing World War II. Millions of American travelers have crossed the Wheeling Suspension Bridge as they have moved back and forth across this vast Nation. Yet, it still stands?sturdy and strong and rich with history. Although a modern new four- lane bridge was built parallel t,o it in the late 1960's to carry Interstate '70 across the Ohio River, the Wheeling Suspen- sion Bridge still carries local traffic across the mighty Ohio. Mr. President, I firmly believe that the Wheeling Suspension Bridge richly deserves to be preserved as a national historic site under the guidance and supervision of the National Park Serv- ice, and I urge my colleagues on the In- terior Committee to favorably report this bill. I stand ready to work with the committee in any way that may be help- ful to achieve this objective. CONCLUSION OF MORNING BUSINESS Mr. MANSFIELD. Mr. President, is STATEMENT OF SENATOR there further morning business? ROBERT C. BYRD The PRESIDENT pro tempore. Is Mr. ROBERT C. BYRD. Mr. Presi- there further morning business? If not, dent, I am sending to the desk for ap- morning business is closed. S 19619 SUPPLEMENTAL APPROPRIATIONS, 1975 The PRESIDENT pro tempore. Under the previous order, the Senate will now resume the consideration of the unfln- lished business, H.R. 16900, which the clerk will state. The second assistant legislative clerk read as follows: A bill (HR. 16900) making supplemental appropriations for the fiscal year eliding June 30, 1975, and for other purposes. The Senate resumed the consideration of the bill. Mr. STAFFORD. Mr. President, I sug- gest the absence of a quorum. The, PRESIDENT pro tempore. The clerk will call the roll. The second assistant legislative clerk proceeded to call the roll. Mr. McCLELLAN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDENT pro tempore. With- out objection, it is so ordered. Mr. McCLELLAN. Mr. President, I send to the desk an amendment and ask for its immediate consideration. The PRESIDENT pro tempore. The clerk will state the amendment. The legislative clerk read as follows: On page 28, after line 9, insert the follow- ing new section: "Szo. 204. Notwithstanding any other pro- vision of law, appropriations provided in this or any other Act which would other- wise expire on June 30 of the calendar year 1976, or on such date of any subsequent calendar year, shall remain available until September 30 of each such calendar year." Mr. McCLELLAN. Mr. President, this amendment is proposed by the adminis- tration and I see no objection to it. Therefore, I make this brief statement for the RECORD: Mr. President, this proposed amend- ment, officially requested by the Presi- dent and transmitted to the Senate yes- terday, is contained in Senate Document 93-124. It should be characterized as a technical amendment. The gener,a1 provision makes funds that would otherwise expire on June 30 of 1976 or later years available until Sep- tember 30 of each of those years. In so doing, it facilitates the transition from the present July-June fiscal year period to the October-September fiscal year period. While the transition does not oc- cur until 1976, being able to plan on the extended fund availability authorized by the general provisions will remove a de- gree of uncertainty from both executive branch requests and legislative branch actions on the appropriations for the transition quarter?July 1-September 30, 1976. The transition quarter requests will be included in the 1976 budget and ap- propriations for the quarter will be in the regular 1976 appropriation acts. The change in the fiscal year is re- quired by section 501 of the Congres- sional Budget and Impoundment Con- trol Act of 1974 (Public Law 93-344). Fiscal year 1976 will be the last on the July-June basis. It will be followed by a transition quarter from July 1 through September 30, 1976. Fiscal year 1977 will commence on October 1, 1976. Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 S 19620 Approved For Release 2005/06/09 : CIA-RDP751300380R000700010003-5 CONGRESSIONAL RECORD SENATE November f9,1,74 This change in the fiscal year period requires a number of adjustments in present laws and procedures. Some are provided for in the act itself. Section 501, for example, provides that? any law providing for an authiriiation Of appropriations commencing on July 1 of a year shall, if that year is any year after 1976, be considered as meaning October 1 of that year. The proposed general provision is a shinier kind of adjustment for a later stage of the funding process. it will per- mit funds which would otherwise expire on June 30 of all years beginning with 1976 to remain available for obligation until September 30 of each of those years. In 1976, this will allow regular fiscal year 1976 appropriations to remain available through the transitional quarter. This will allow financial managers to make use of previously appropriated funds and thus allow smaller appropriation requests for the transitional quarter itself. In the fiscal years 197'7 and beyond, the general provision will prevent previously appro- priated funds from expiring three-quar- ters of the way through the fiscal year. I think, Mr. President, that this amendment is absolutely essential to the orderly process of transition of the fiscal year from June 30 to June 30, to Sep- tember 30 to September 30, of each year. It is, as I said in the beginning, simply technical in consequence, and I know of no objection to it. If there is no one wishing to be heard on it, then I suggest that it be adopted. The PRESIDENT pro tempore. The question is on agreeging to the amend- ment. The amendment was agreed to. Mr, McCLELLAN. Mr. President, I move to reconsider the vote by which the amendment was agreed to. Mr. YOUNG. I move to lay that mo- tion on the table. The motion to lay on the table was agreed to. Mr. McCLELLAN. Mr. President, as far as I know, the bill is open to Amend- ment and some Senators who have amendments are not here: We are wait- ing for someone else to be present. I would like to proceed with the bill and take up any amendments that may be available. The PRESIDENT pro tempore. The Senator from Nevada. Mr. BIBLE. Mr. President, I call up my amendment which is at the desk and ask that it be stated. The PRESIDENT pro tempore. The clerk will state the amendment. The legislative clerk proceeded to read the amendment. Mr. BIBLE. Mr. President, I ask unani- mous consent that further reading of the amendment be dispensed with. The PRESIDENT pro tempore. With- out objection, it is so ordered. The amendment is as follows: On page 25, between lines 7 and Et, insert the following: EUREATT OF LAND MANAGEMEDM Management of Lands and Resources For an additional amount for "Manage- ment of Lands and Resources," $12,400,000, to be derived by transfer from the appropria- tion for "Salaries and Expenses," Office of Coal Research, fiscal year 1975. On page 26, between lines 11 and 12, insert ,the following: GEOLOGICAL stravAT Surveys, Investigations aid Research For an additional amount for "Surveys, Investigations and Research,' $2,600,000, to be derived by transfer from the appropria- tion for "Salaries and Expenses," Office of Coal Research, fiscal year 1975. - On page 27, between lines 5 and 6, insert The following: RELATED AGENCIE3 FEDERAL ENERGY ADMINISTRATION Salaries and Expenses For an additional amount for "Salaries and Expenses," $8,000,000. Mr. BIBLE. Mr. Presidena my amend- ment is in response to late arriving sup- plemental budget estimates signed only this past weekend by the President. It embodies $15 million in transfer author- ity requested by the President for the Interior Department's Outer Continental Shelf oil and gas leasing program. And it includes $8 million of tho $16 million he requested for ongoing activities of the Federal Energy Administration. As chairman of the Appropriations Subcommittee on the Depar anent of the interior and Related Agenc es, I sched- uled a full hearing of these requests yesterday?Monday. The subcommittee took testimony from Under secretary of the Interior John C. Whitaker and from Federal Energy Administ Ator John attwhill, together with their associates. The amendment I offer today is the re- sult of information developed at that hearing and the recommendation of the subcommittee members present. This takes the form, then, of a committee ainendment although there was not time to permit the normal full committee re- view of these items. Let me briefly highlight the funding proposed in my amendment. -The Interior Department request, as I noted, involved transfer authority and no new additional appropriation. The request involves $12,400,000 to the Bu- reau of Land Management and $2,60,000 to the Geological Survey for the conduct of additional baseline and other envi- ronmental and geologic studies in several frontier lease areas and one area deep in the Gulf of Mexico on the Nation's Outer Continental Shelf for oil and gas leasing. These funds supplement sonic $49 million appropriated earlier in the regular Interior appropriatiors bill. The Department testified that the funds are needed now so that these prelease studies can be conducted in the brief summer seasons of the northern areas and move forward for contingency lease areas. The committee determined that none of the recptested funds will be used for actual lease sales. These funds will be derived from the so-called pioneer plant program of the Office of Coal Research which is deemed to be a lower priority. The Federal Energy Administration re- quested $16 million in new appropria- tions to meet the agency's increased re- sponsibilities under the Federal Energy Administration Act and the Energy Sup- ply and Environmental Coordination Act, both of which were signec into law this past summer and were not antici- pated in the agency's regular budget sub- mission. The committee determined that, while some of the energy study programs and related personnel costs did appear to need additional immediate funding, por- tions of the request such as additional Project Independence1 and energy con- servation studies could await the second supplemental appropriations bill when they could receive more complete con- gressional review. Therefore, my amend- ment proposes an appropriation of $8 million instead of the requested $16 million. As I say, these supplemental estimates reached us just this week. In my opinion, they could have and should have been submitted much earlier. Because of the urgent energy issues involved, the sub- committee did schedule a special hearing so that these requests could be examined before being proposed in the pending supplemental appropriations bill. The committee is mindful of the need to curb Federal spending during these difficult economic times, and the amounts I am proposing are being considered only because of the essential nature of the programs involved. Additionally, I would state, Mr. Presi- dent, I discussed this amendment with the distinguished chairman of the full committee, as well as the ranking mem- ber of the full committee. I urge the adoption of the amendment. The PRESIDENT pro tempore. Is all time yielded back? Mr. BIBLE. I did not realize we were acting under a time limit, but I am per- fectly willing to yield to the distinguished chairman of the full oommittee or to the ranking minority member for what- ever comments they might have on this proposal. Mr. YOUNG. Will the Senator yield? Mr. McCIPLLAN I yield to the dis- tinguished Senator from North Dakota. Mr. YOUNG. Is this a budgeted amount? Mr. BIBLE. That is absolutely correct. This is a budgeted amount, The amount requested was $16 million in the case of the FEA. The amount that we are sug- gesting is $8 million. In the area of the ELM and the Geological Survey, it does not take any appropriated dollars. It is simply a transfer from one fund of ap- propriated moneys in the regular Interior appropriation bill for a different purpose. Mr. YOUNG. I see no reason why the amendment should not be approved. Mr. BIBLE, Mr. President, I am pre- pared to yield back the balance of my time. Mr. McCLELLAN. Mr. President, as I understand it, two of the items are trans- fers. They do not increase appropria- tions. Mr. BIBLE. That is true. Mr. McCLELLAN. And the other item was a request for $16 million by the budget, which the Senator recommends as an amendment which provides for only $8 million. Mr. BIBLE. That is true. Mr. McCLELLAN. So there is an in- crease of $8 million in appropriations. Mr. BIBLE. That is the total effect of the amendment I am proposing. Mr. McCLELLAN I have no objection to the amendment, Mr. President, Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP751300380R000700010003-5 November 19, 1974 CONGRESSIONAL RECORD ?SENATE not admitted to a' lege was not addressed by the amendment. wever, again, a cer- tain reading of the lan uage would include N application files. Thus, ?h se questions re- main to be resolved. It is w th noting here, though, that at leaSt one co t decision has upheld access to such files. ' 12. Should all college student's be treated the same vis a vis the rights eatablished by this law? ' , 12. Response. While emotional mat-Wity is something that many people never aftieve, the rights of adult citizenships are by-4nd large conferred upon Americans at 0 ageS 8 1/4 (voting, etc.). The House-Senate confere felt it fitting and proper to extend the right established by the Buckley amendment to any student who is attending a post-sec- ondary educational institution, and no com- pelling body of evidence or argument has yet been put forth to successfully contest that judgment. 13. While this law may be appropriate for elementary and secondary schools, colleges and universities are different and the law should not apply likewise to them. 13. Response. This argument is an extreme case of in loco parentis. How is it that these basic rights, which will very likely be estab- lished throughout the Federal Government by the end of the 93rd Congress (see S. 3418) are all right for an 18 year old high school senior, but not for a 21 year old (or an 18 year old) college student? 14. Is a right of private action created to enforce the Act or is the HEW compli- ance mechanism created by the Act the only means of enforcement? 14. A right of private action was intended in the Buckley amendment by reference to another part of the Senate bill. However, the Conference did not accept the complete language of the referred-to Senate provision, and the explicit right of private action is no longer in the law at this time. However, it may be interesting to note that the na- tional PTA and the League of Women Vot- ers are considering establishing monitoring activities to review and seek compliance with this law. 16, The applicability of Section 438(b) (4) (A) of the Act is governed by its reference to subsections (c) (1), (c) (2) and (c) (3). There are no such subsections-in the Act. 15, This is simply a technical printing error caused by changes made in the amend- ment in the Senate which necessitated re- lettering the paragraphs. The reference should be subsections (b) (1), (b) (2), and (b) (3). By the same token, the last section of the law should be labeled (h), not (b). 16. The effort of locating and correcting all the applicable school records will be a severe problem for educational institutions, particularly those in higher education. 16. Response. As stated in the beginning of this memorandum, of course the change of policies and habits occasioned by this law will cause discomfort and some administra- tive problems. So do most new laws. But that is certainly not a serious or credible rea- son to postpone implementation of the law or to argue that institutions of higher edu- cation should be exempt from the law. In- deed, the objection is in itself compelling evidence of the need for the Buckley amendment. Schools don't even know what files and information on their students are floating around where and being given to whom! On some campuses there may be as many as fifteen to twenty separate files on a given student scattered around the campus. Some school officials have felt that the law would require them to gather all these files together and review them centrally, But this is not necessitated by the law. All that is basically required is that the student be informed, if he makes an inquiry or re- quest, of the existence and the location of these files, and that he or she be given the opportunity to review the appropriate files within forty-five days of the request. Indi- vidual offices might be advised to begin a general review of their files to see whether there are things in them which cannot be adequately justified, or which they are afraid to let the student see. The question of whether or not officials could or should destroy items in the file, or send them back to their source, after a student has sought access to his files has not yet been fully re- solved, although the law seems to permit it. There is a further question here as to whether this would be in the best interests of not only the students, but also the insti- tutions involved. The anticipated speedy passage of an amendment exempting confi- tv ntial letters and statements written in t past will resolve this question. PRO TION 05' THE RIGHTS AND PRIVACY OF PARENTS AND STUDENTS SEC. . (a) Part C of the General Educa- tion Pro ions Act is further amended by adding at e end thereof the following new section: 'PROTECTION THE RIGHTS AND PRIVACY OF PA TS AND STUDENTS "SEC. 438. (a) ) No funds shall be made available under applicable program to any State or loca educational agency, any Institution of high education, any com- munity college, any iool, agency offering a preschool program, or y other educational institution which has a olicy of denying, or which effectively preve the parents of students attending any- school of such ), agency, or attending su institution of higher education, communit college, school, preschool, or other educatioN institution, the right to inspect and revi ,any and all official records, files, and data dir tly related to their children, including all m erial that Is incorporated into each student' umula- tive record folder, and intended fo school use or to be available to parties outs le the school or school system, and specifical in- cluding, but not necessarily limited to, identifying data, academic work comple , level of achievement (grades, standard' achievement test scores), attendance data, scores on standardized intelligence, aptitude, and psychological tests, interest inventory results, health data, family background in- formation, teacher or counselor ratings and observations, and verified reports of serious or recurrent behavior patterns. Where such records or data include information on more than one student, the parents of any stu- dent shall be entitled to receive, or be in- formed of that part of such record or data as pertains to their child. Each recipient shall establish appropriate procedures for the granting of a request by parents for access to their child's school records within a rea- sonable period of time, but in no case more than forty-five days after the request has been made. "(2) Parents shall have an opportunity for a hearing to challenge the content of their child's school records, to insure that the records are not inaccurate, misleading, or otherwise in violation of the privacy or other rights of students, and to provide an opportunity for the correction or deletion of any such inaccurate, misleading, or other- wise inappropriate data contained therein. "(b) (1) No funds shall be made available under any applicable program to any State or local educational agency, any institution of higher education, any community college, any school, agency offering a preschool pro- gram, or any other educational institution which has a policy of permitting the release of personally identifiable records or files (or personal information contained therein) of students without the written consent of their parents to any individual, agency, or organization, other than to the following? "(A) other school officials, including S1961.3 teachers within the educational institution or local educational agency who have legit- imate educational interests; "(B) officials of other schools or school systems in which the student intends to en- roll, upon condition that the student's par- ents be notified of the transfer, receive a copy of the record if desired, and have an opportunity for a hearing to challenge the content of the record; "(C) authorized representatives of (i) the Comptroller General of the United States, (ii) the Secretary, (iii) an administrative head of an education agency (as defined in section 409 of this Act), or (iv) State edu- cational authorities, under the conditions set forth in paragraph (3) of this subsection; and "(D) in connection with a student's ap- plication for, or receipt of, financial aid. "(2) No funds shall be made available under any applicable program to any State or local educational agency, any institution of higher education, any community college, any school, agency offering a preschool pro- gram, or any other educational institution which has a policy or practice of furnishing, in any form, any personally identifiable in- formation contained in personal school rec- ords, to any persons other than those listed in subsection (b) (1) unless? "(A) there is written consent from the student's parents specifying records to be released, the reasons for such release, and to Whom, and with a copy of the records to be released to the student's parents and the student if desired by the parents, or "(B) such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena, upon con- dition that parents and the students are notified of all such orders or subpoenas in advance of the compliance therewith by the educational institution or agency. "(3) Nothing contained in this section shall preclude authorized representatives of (A) the Comptroller General of the United States, (B) the Secretary. (C) an admin- istrative head of an education agency or (D) State educational authorities from having access to student or other records which may be necessary in connection with the audit and evaluation of Federally-supported edu- tion program, or in connection with the orcement of the Federal legal require- ts which relate to such programs: Pro- That, except when collection of per- identifiable data is specifically au- by Federal law, any data collected officials with respect to individual hall not include information (In- al security numbers) which I the personal identification of or their parents after the data ted. rid sone thoriz by sue students eluding would per such studen has been coll "(4) (A) Wit respect to subsections (c) (1) and (c) (2)- and (c) (3), all persons, agencies, or orga ations desiring access to the records of a udent shall be required to sign a written m which shall be kept permanently with t e file of the student, but only for inspect n by the parents or student, indicating s cifically the legiti- mate educational or 0th r interest that each person, agency, or organ ation has in seek- ing this information. S h form shall be available to parents and to the school official responsible for record maintenance as a means of auditing the operation of the sys- tem. "(B) With respect to this siflasection, per- sonal information shall only be transferred to a third party on the condition that such party will not permit any other party to have access to such information without the writ- ten consent of the parents of the student. "(c) The Secretary shall adopt appropri- ate regulations to protect the rights of pri- vacy of students and their families in con- nection with any surveys or data-gathering activities conducted, assisted, or authorized Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP751300380R000700106b3151, ?,19614 CONGRESSIONAL RECORD ?SENATE November 19, 1974 by tee Secretary or an administrative head of an education agency. Regulations estab- lished under this subsection shall include provIsions controlling the use, dissemina- tion, and protection of such data. No survey or data-gathering activities shall be con- ducted by the Secretary, or an administrative head of an education agency under an ap- plicable program, unless such activities are authorized by law. "(d) Por the purposes of this section, whenever a student has attained eighteen years of age, or Is attending an institution of post-secondary education the permission or consent required of and the fights ac- corded to the parents of the students shall thereafter only be required of and accorded to the student. "(e) No funds shall be made available under any applicable program unless the re- cipent of of such funds informs the parents of students, or the students, if they are eighteen years of age or older, or are attend- ing an institution of postsecondary educa- tion, of the rights accorded them by this section. "(f) The Secretary, or an administrative head cf an education agency, shall take ap- propriate actions to enforce provisions of this section and to deal with violations of this section, according to the provsions of this Act, except that action to terminate assistance may be taken only if the Secre- tary finds there has been a failure to comply with the provisions of this sections and he has determined that compliance cannot be secured by voluntary means. "(g) The Secretary shall establish or desig- nate an office and review board within the Department of Health, Education, and Wel- fare for the purpose of investigating, proces- sing, reviewing, and adjudicating violations of the provisions of the section and com- plaints whch may be filed concerning alleged violations of this section, according to the procedures contained in section 434 and 437 of this Act.". (b) (1) (i) The provisions of this section shall become effective ninety days after the date of enactment of section 438 of the Gen- eral Education Provisions Act. (2) (1) This section may be cited as the "Family Educational Rights and Privacy Act of 1974", CONFERENCE REPORT EXPLANATION OF ACTION ON BUCKLEY AMENDMENT TO H.R. 69 Protection of the rights and pH' acCof parents and pupils.?The House bill ov es that the moral or legal rights of paren shall not be rsurped. In addition, the Honne bill provides that no child shall participate*i a research or experimentation program if his parents object. The Senate amendnknt denies funds to institutions which deny pr- cuts the right to inspect their ch dren's files and gives parents the rig to a hearing to contest their child school records. The Senate amendmen also der_ies funds to institutions est policies of releasing records, without parental, consent, to other than educational officials. Release or records is allowed only upon writ- ten parental consent_ The Secretary is di- rected to adopt regulations to protect stu- dents' rights of privacy and shall enforce them through an office and review board in -the Department of Health, Education, and Welfare to investigate and adjudicate viola- cions. The corference substitute adopts the pro- visions of the Senate amendment, includ-i ing in the List of persons who should hay the right to inspect student records th students who attend postsecondary inst1tui tions. An exception under the conference sub- stitute occurs in connection with a student's application for, or receipt of, financial aid. The conferees intend that this exception easould allow the use of social security num- bers in connection with a student's applica- tion for, or receipt of, firtencial aid. The conference substitute acids that noth- bag in these provisions of the Senate amend- aunt shall preclude official audits of federally supported education programs, but that data Go collected shall not be personally identifi- able. The conference substitute Also peovides bleat the consent and rights ef the parents of a student transfer to the student at age IS or whenever he is attending a post- secondary education institution. No action to terminate assistance for violation of these provisions of the Senate amendment shell be token unless the Secretary finds failure to comply, and that compliance cannot be secured by voluntary means. The conference substitute alio adopts the provisions of the House bill relating to pro- tection of parental and pupil rights, with amendments. The conference substitute pro- vides that all instructional material which will be used in connection with any research or experimentation program or project shall be available for inspection by parents or guardians. In approving this provision eonoerning the privacy of information abeut students, the conferees are very concern ui to stature that requests for information astociated with evaluations of Federal education programs do not invade the privacy of students or pose any threat of psychological damage to tbem. At the same time, the amendment is not meant to deny the Federal government the information it needs to carry out the evalu- ations, -as is clear from the sections of the amendment which give the Controller Gen- eral and the Secretary of HEW access to otherwise private information &bout otu- dents. The need to protect students' rights must be balanced against legitimate Federal needs for information. tinder the amendment, an educational agency would have to administer a Federal test or project unless the anticieated inva- sion, of privacy or potential halm waa de- termined to be real and significtint, as cm- robers,ted by a generally accept ad body of opinion within the psychological and mental health professions. In short, the amendment is intended to protect the legitimate rights of students to be free from unwarranted in- trusions; it is not intended to provide a blanket and autom justification foe a eeleehilles used to administer achievement tests and related instruments necessary to the evaluation of an applicable program. VETO REVEALS WATERGATE BLIND SPOT Mr, CRANSTON. Mr. Presideat, Presi- dent Ford's veto of new amendments to strengthen the Freedom of Information Act reveals a second blind spot in ids failure to learn the basic lessons of Wa- tergate. President Ford seemed to have missed the point of the Watergate trials when he Pardoned former President Nixon before the legal process was allowed to run its full course. That was an unpardonable pardon. Our laws must apply equally to each and all ofus, including Presidents and former Presidents. President Ford's ill-advised veto of the Freedom of Information Act amend- ments is further evidence that he has not grasped still another lesson of Water- gate?the dangers or undue secrecy In Government. The Watergate disclosure showed how public officials and Government bureau- crats try to cover up mistakes, misjudg- ments and even illegal acts under the cloak of "national security." Those people were more interested in job security than in national security. They were more concerned about saving their own necks than about safeguarding the Nation. The President's veto threatens to per- petuate the Nixon style of letting Gov- ernment bureaucrats manipulate the public by deceiving the press. We are all aware of recent efforts by administration officials?especially those at the Pentagon, the State Department, the Treasury, and the ?Ince of Manage- ment and Budget?to clamp down on so- called "premature" information to the press. The Freedom of information Act amendments, which Congress passed ear- lier this year are designed to broaden public access to Government documents. We want to speed up the process of get- ting the Government to respond to legit- imate requests for information by mem- bers of the public and the press. Under present procedures, for example, it took 13 months before the Tax Reform Research Group was able to get released to the public earlier this week 41 docu- ments showing how the Internal Revenue Service's Special Services Staff invest- gated dissident groups. The amendments also provide for judi- cial review of disputes over what infor- mation could be made public. This is in keeping with the American tradition of having disagreements set- tled by a third party?the courts. I supported the new legislation because I believe in the freest possible flow of information to the people about what their government is doing, and why. The people must have access to the truth if they are to govern themselves intelli- gently and to prevent people in power front abusing the power. The legislation has built-in safeguards against the disclosure of classified infor- mation that might endanger national se- curity. The way the President wants the bill to read, a judge would have to assume that a classified document was, and re- mains, Properly classified. If the Gov- ernment gives the judge a "reasonable" explanation why the document should not be made public, the judge must ac- cept the explanation without looking at the document himself and forming his own opinion. Only if the Government fails to give this "reasonable" explanation, could the court decide whether the document should be made public. Under the amendments In the vetoed bill, our courts, not our bureaucrats, will have the final say as to what information can legitimately be kept secret without violating the basic right of a democratic people to know what is going on in their Government. Arguments over declassifying mate- rials could be conducted privately in the judge's chambers, and if the Government did not like a judge's ruling, it could always of course appeal to a higher court. Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approv,ed For Release 2005/06/09 : CIA-RDP75B00380R00070001000p,M / y -7 / 14A02 CONGRESSIONAL- RECORD SENATE Novgirer 19, 1974 our firm and clear policy toward that crime. By giving its advice and consent to my rati- fication of this convention, which I urge, the Senate of the United States will demonstrate that the United States is prepared to take effective action on its part to contribute to the establishment of principles of law and justice. Political as well as social interest groups have overwhelmingly supported the legislation. Prior to the adoption of the genocide convention, 166 organiza- tions, representing a quarter of a billion people all over the world, appealed to the United Nations to outlaw mass murder. Likewise, in the United States, scores of American organizations have appealed to the Senate to ratify the Convention. Among these, diverse organizations, are the AFL-CIO, UAW, National Council of Churches, National Catholic Conference for Interracial Justice, Synagogue Coun- cil of America, American Civil Liberties Union, National Association for the Ad- vancement of Colored People, Leadership Conference on Civil Rights, General Fed- eration of Women's Clubs, and the American Association of University Women. In the interest of ?the millions of Americans represented by this cross- section of organizations, as well as the hundreds of millions more around the world who support this treaty, and in the inte overall human rights, I ap o my colleagues for ratification out delay of the Genocide Conven- ion Accords of 1949. THE PRESIDENT'S VETO OF THE 10REEDOM OF INFORMATION ACT AMENDMENTS Mr. MUSKIE. Mr. President, this week, Congress will vote on one of the most important questions pending during this post-election session?the President's veto of the amendments to the Freedom of Information Act, H.R. 12471, On the surface of the issue, there are a number of points on which the Presi- dent and the Congress are at odds. The President's veto message would have us believe that all these points were of equal concern to the executive branch. But beneath all the rhetoric, there is only one issue at stake?and that issue goes to the very heart of what this legis- lation is all about. The provision of H.R. 12471 in question is section 2(a), providing for a process of judicial review in cases where classi- fication of Government documents is challenged in the courts. In such cases, the legislation provides for in camera review of the documents in question by a Federal judge to determine whether or not the documents were, in fact, properly classified. The President has called this proVi- sion unconstitutional. As a lawyer who thinks he knows something about the Constitution, I found this charge puzzling, particularly since the President has not taken issue with the concept of judicial review, but only with the standard to be used. TO clarify the question in my own mind, I sought the advice of one of the Nation's most respected constitutional experts. Prof. Philip Kurland, of the Uni- versity of Chicago School of Law. I would like to share his response with my col- leagues now, for it should be helpful to us all in weighing our vote on this issue. The President's charge that H.R. 12471 is unconstitutional is serious in- deed. But Professor Kurland's lucid analysis has convinced me that it is a charge without foundation. I ask unanimous consent that Profes- sor Kurland's letter be printed in the RECORD, and I urge my colleagues' serious consideration of its argturients. There being no objection, the letter was ordered to be printed in the RECORD, as follows: UNIVERSITY OF CHICAGO, Chicago, Ill., Nov. 15,1974. Senator EDMUND P. Mosicia, U.S. Senate, Committee on Government Op- erations, Washington, D.C. DEAR SENATOR: I have been asked, by Mr. Davidson, the Counsel to your subcommit- tee, to give you an opinion on the constitu- tionality of H.R. 12471, in light of the Presi- dent's veto that rested, in part, on a proposi- tion of unconstitutionality. Before I do so, I would note that the certainty of the Veto Message of 17 October 1974 has been some- what diluted by later statements. In the Veto Message, the President said: "Such a provision (referring to the provision for ju- dicial review of the propriety of classifica- tion of documents] would violate constitu- tional principles." In this concluding para- graph, he reiterated "that the bill as enrolled is unconstitutional," But only last night, I heard him say to the newspaper fraternity that was urging an override of his veto, that the provisions "may be" unconstitutional. Although President Ford states that the provision to which he takes exception is un- constitutional, not surprisingly, he refers neither to a provision of the Constitution nor to any judicial decision on which such a conclusion could rest. It is not surprising, because there is neither constitutional pro- vision nor Supreme Court decision to sup- port his position. My considered opinion IS that the issues between the Congress and the President in this regard are really issues of policy and not at all issues of constitutionality. To me, it Is clear that the bill does not offend the Constitution in any way. The provision in question was described in the Conference Report to accompany HR. 12471 in this way: NATIONAL DEFENSE AND FOREIGN POLICY EXEMP- TION (B) (1) The House bill amended subsection (b) (1) of the Freedom of Information law to permit the withholding of information "authorized under the criteria established by an Execu- tive order to be kept secret in the interest of the national defense or foreign policy." The Senate amendment contained similar language but added "statute" to the exemp- tion provision. The conference substitute combines lan- guage of both House and Senate bills to permit the withholding of information where it is "specially authorized under criteria es- tablished by an Executive order to be kept secret in the interest of national defense or foreign policy" and is "in fact, properly classified" pursuant to both procedural and substantive criteria contained in such Exec- utive order. When linked with the authority conferred upon the Federal courts in this conference substitute for in camera examination of con- tested records as part of their de novo de- termination in Freedom of Information cases, this clarifies Congressional intent to override the Supreme Court's holding in the case of E.P.A. v. Mink, at al., supra, with respect to in camera review of classified documents. However, the conferees recognize that the Executive departments responsible for na- tional defense and foreign policy matters have unique insights into what adverse at- Sects might occur as a result of public dis- closure of a particular classified record. Ac- cordingly, the conferees expect that Federal courts, in making de novo determinations in section 552(b) (1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record. Restricted Data (42 U.S.C. 2162), com- munication information (18 U.S.C. 798), and intelligence sources and methods (50 U.S.C. 403 (d) (3) and (g) ), for example, may be classified and exempted under section 552 (6) (3) of the Freedom of Information Act. When such information is subjected to court review, 'the court should recognize that if such information is classified pursuant to one of the above statutes, it shall be ex- empted under this law. Presidential objection is to the standard to be used by the courts in determining the propriety of a claimed exemption from the duty to produce the information required. The bill requires that the Court determine that the material sought is "in fact, properly classified." The President would propose a standard be whether "there is a reasonable basis to support the classification pursuant to the Executive order." Unless the Presi- dent is really asserting that the classifica- tion by the executive department is to be treated as conclusive, I am at a loss to under- stand what his constitutional argument could be. The difference between the President and the Congress does not go to the question whether there is a constitutional privilege to be afforded to classified documents. I have doubts that any such constitutional privilege exists. But that is irrelevant to the differ- ences between the Presidential and Congres- sional positions. For the question is not whether such materials as come in question are privileged; the statute in question recog- nizes such a privilege. The issue is how to determine whether the materials in issue are entitled to the privilege. Such privilege, un- der either the Presidential or the Congres- sional view, would extend only to materials that are, indeed, in the category of "mili- tary" or "state" secrets. If the materials do not fall into the privileged category, they are not entitled to protection from disclosure. Nor does the President contend that the courts cannot undertake the determination by in camera inspection of the questioned material, where necessary. Both the bill and the President's suggested alternative would leave that power with the courts. The Presi- dent would provide: "The court may examine such records in camera only if it is necessary, after consideration by the court of all other attendant material, in order to determine whether such classification is proper." Con- gress has expressed similar recognition of the weight to be given to administrative action. As the quotation from the Conference Report set out above makes clear: ". .. the conferees recognize that the Executive departments re- sponsible for national defense and foreign policy matters have unique insights into what adverse affects [sic] might occur as a result of public disclosure of a particular classified record. Accordingly, the conferees expect that Federal courts, in making de novo determinations in section 552(h) (1) cases under the Freedom of Information law, will accord substantial weight to an agency's affidavit concerning the details of the classi- fied status of the disputed record." Under both the President's alternative and the bill as written, the courts are authorized to undertake in camera inspection, if neces- sary to determine whether the materials are Approved For Release 2005/06/09,: CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 CIA-RDP75600380R000700010003-5 November 19, 1974 eallellettess CONGRESSIONAL RECORD?SENATE S 19601 Those who say consumerism has had a major effect on their companies are more certain than other executives that ennsum- erism is basically a positive force for busi- ness. They are also more positive its their perception of business's responsiveness to consumerism thus far. Top managers view consumerism as a sub- stantive issue rather than simply RS a po- litical one and are more likely than operat- ing managers to espouse substantive com- pany responses to it. At the same time, top- level managers are more optimistic stout the efficacy of business self-regulation. Executives in those industries where con- sumerism has had the most direct impact? consumer durables and nondurables, adver- tising, and retailing? feel that the market- place already has shifted to a seller beware atmosphere. These same executives also see greater progress in product improvement and in other consumer-oriented programs than do executives in other industries. Extant= VIII--Corapanies doing an effec- tive job responding to consumer pressures Percent of respondents mentioning company Company: American Motors Sears, Roebuck Ford General. Motors AT&T Cieneral Electric Whirlpool IBM Procter & Gamble S. C. Penney Zenith Volkswagen Xerox Exxon Maytag 21.5 18.0 12.9 7.6 8.4 5. 2 4. 1 2.4 2.4 2.2 1.9 1.8 1.7 1.7 1.7 OVERALL APPRAISAL What then is business's overall appraised of consumerism? In trying to develop art answer to this broad question, we must note that consumerism is but one of several soci- etal pressures on business, others being anti- pollution actions, more minority group hir- ing and promotion, and so on. Executives, however, by a rather wide margin (over 2-1), think "business generally is inore responsive to consumerism than to other societal pres- sures." EXHIBIT IX THE PACE OF PROGRESS ON CONSUMER ISSUES Issue Percent of those responding who consider? Better today than 10 years ago Will he better Could 10 be years better from Ideally now than than 'toes today Quality of most products Quality of manufacturers' repair and maintenance services Truthfulness in advertising Manufacturers' sensitivity to con- sumer complaints The consumer's lot 59 60 76 36 57 79 47 73 72 44 72 59 61 72 A likely reason for this attatirde?and per- haps a response to the beriader matter of an overall appraisal?is baseinessmen's strong belief that "companies nean capitalize on consumerism as a competitive marketing tool." Some 89% agree with this claim. Fur- ther, almost 7 out or 10 respondents consider consumerism an ePportunity for marketers, while only 1 out of 10 see le as a threat. "Consumerism is a positive force in the marketplace" (71%), not a negative one (13%). So businessmen see consumerism basically as an ally, a tool through which profits can be generated. Indeed, 86% agree that "com- pany investment in consumer service' and satisfaction will usually pay for itself." How- ever, not all of consumerism's effects are translated into added service anti satisfac- tion for the consumer. For example, execu- tives agree (5-1) that "consumerists' de- mands lead to higher costs and prices." On the whole, however, what executives are telling us is that consumer sus is good for the consumer and good for leusiness. Of our responding executives, 70% agree (17% disagree) that "consumerism's presewns ovilisall have had a positive effeet on basal- ness." On the corollary statement that "con- stinaerism's pressures overall hays had a posi- tive result for the consumer," some '74% agree and only 14% disagree?an interesting twin-faceted overall endorsement of con- sumerism! "I'm optimistic," the president of an in- dustrial products company sail, "because I think that good business practices and con- stimerism are indivisible?what's good for consumers has to be good for business in the long run, and awareness of this by business and consumer is beneficial." To what degree does this optimism reflect executives' enthusiasm over business's ability to embrace consumerism and turn it to the mutual advantage of consumers and business? To what degree does it reflect reluctant acceptance that consumerism is here to stay and thus will 1 aexorably work Its way to both groups' advantage? We have no definite answer in these questions. we do know from this study that cons crisis's is no longer considered anathe management. It is seen as a positive f one that has brought about a genuine ange in business practices, one that bath benefit business and improve the c umer's lot, SST FLIGHT INTO SAN AND LOS ANGELI' TIONAL AIRPORTS Mr. TUNNEY. Mr.jMsident., I have been concerned abo1 supersonic trans- port flights into tIftJnted States for a long time. Now, l Concorde is coming to California. I have writ to FAA Administrator Butterfield resslng my reservations about thes monstration flights. I ask u imous consent that the text of this lsJr be printed in the RECORD. Ther rino objxtion, the letter was o' red to be printed in the RECORD, as f ws: U.S. SENATE, Washington, D.C., Oct. ii, 1974, . ALEXANDER P. BUTTERFIELD, dministrator, Federal Aviation Administra- tion, Washington, D.C. DEAR MR: leirreeariest; As you know, the British Aircraft Corporation will be con- ducting promotional demonstration flights of its Concorde supersonic transport at Los Angeles and San Francisco International Air- ports during the next few weeks. I flatly and consistently have opposed leg- islation to subsidize an Ameriean SST, but I am concerned that foreign airlines may in- sist on putting their own SSTs on inter- continental routes to the United States, and I believe strong and immediate action must be taken to prevent adverse noise and en- vironmental effects of flights to our cities. The landings in Los Angeles and San Fran- cisco should be utilized as a crucial test for gathering specific in! ormation on the im- pact of the Concorde. Two major require- ments must be implemented to protect Amer- ican cities from the hazards of supersonic jets: First, it is imperat .ve as mandated by the Noise Control Act oi 1972 and as promised ANCISCO INTERNA- by your Agency since 1970, that noise regula- tions be promulgated for SST landings, take- offs and subsonic travel "in order to protect the public health and welfare." Specific clar- ification of the relationship of the Concorde to the SST rule is essential. The 'United States Senate has already voted overwhelm- ingly (62 to 17) to make the FAR Part 36 standards for subsonic aircraft applicable to the SST. Existing FAA rules, barring fly-overs of supersonic aircraft at supeisonic speeds, are inadequate because these' lack any re- quirements regarding landi s, take-offs or flights by supersonic air ft at subsonic speeds. Second, an adequate e onmental impact statement must be co eted in accordance with Council on E ironmental Quality Guidelines Section 00.2(b) which states that "initial assess nts of the environmen- tal impacts of posed action should be undertaken coul rrently with initial tech- nical and eco mic studies." As the CV/ has pointed t, "if the 102 process ls not closely inte ated at this early point, it risks becoming overlay upon agency decision- making. d it tends toserve ass post facto Justine? on of decisions based on traditional and ow grounds." (CEQ, Third Annual Rep at 206, cited in Scientists' Institute for ublic Information v. A.E.C. 481 Fld ii , D.C. Clr., 1973). hiss, in order to be meaningful, an alie- nate impact statement must be completed concurrently with any additional test flights of the Concorde or other SST aircraft. Among other issues, such a statement must address adequately the fears that SST flights ad- versely affect the cesone layer in our upper atmosphere and cause considerably more sideline noise. Prompt clearance by relevant agencies and personnel and immediate is- suance of the statement are essential. The SST seems an incredibly wasteful and Imprudent plane. I fully support the recent Los Angeles City Council resolution offered by Councilwoman Pat Russell, to the effect that one test flight shall not be construed as a precedent in favor of an endorsement of the SST. I request a status report, detailing your progress toward compliance with these tasks, by November 1, 1974. Sincerely, Some V. TE KNEE, U.S. Sell tr.) r GENOCIDE TREATY HAS RECEIVED OVERWHELMING SUPPORT Mr. PROXMIRE. Mr. President, it seems almost ironic, that the Genocide Convention, a document the United States lobbied so hard for and had a major role in the writing of, has yet to be ratified by the Senate body. It is equally ironic that some of the most re- spected organizations and public officials have for 25 years urged ratification, and yet the Senate of the United States, the very body selected to represent the peo- ple of the United States, has thus far refused to give its consent to the people's wishes and to the logical morality of the human rights safeguarded by the Geno- cide Treaty. Every U.S. administration since 1949 has expressed support for ratification of this treaty. On June 16, 1949, Presi- dent Truman transmitted the following message to the Senate in urging speedy action. By the leading part the United States has taken in the United Nations in ptoducing an effective international legal instrument outlawing the world-shocking crime of geno- cide, we have established before the world Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 03 November 19, 197.4 CONGRESSIONAL RECORD? SENATE S 196 properly classified. And it should be clearly noted that the issue as posed by the bill is whether the classification is proper pursuant to standards established by the executive branch itself for such classification. It seems clear to me that the provisions of the bill are fully in accord with the only Supreme Court decision that directed itself to the issue that purports to be made be- tween the President and the Congress. I refer to the Supreme Court decision in United States V. Reynolds, 345 U.S. 1 (1953). There the question was whether a federal court could order the production of materials classified by the executive branch as military secrets. The Court set forth the proper pro- cedure for making that determination in these words: Judicial experience with the privilege which protects military and state secrets has been limited in this country. English experi- ence has been more extensive, but still rela- tively slight compared with other evidenti- ary privileges. Nevertheless, the principles which control the application of the privi- lege emerge quite clearly from the available precedents. The privilege belongs to the Gov- ernment and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court it- self must determine whether the circum- stances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect. The latter requirement is the only one which presents real diffi- culty. As to it, we find it helpful to draw upon judicial experience in dealing with an analogous privilege, the privilege against self-incrimination. The privilege against self-incrimination presented the courts with a similar sort of problem. Too much judicial inquiry into the claim of privilege was meant to protect, while a complete abandonment of judicial control would lead to intolerable abuses. In- deed, in the earlier stages of judicial experi- ence with the problem, both extremes were advocated, some saying that the bare as- sertion by the witness must be taken as conclusive, and others saying that the witness should be required to reveal the matter be- hind his claim of privilege to the judge for verification. Neither extreme prevailed, and a sound formula of compromise was de- veloped. This formula received authoritative expression in this country as early as the Burr trial. There are differences in phrase- ology, but in substance it is agreed that the court must be 'Satisfied from all the evidence and circumstances, and "from the implica- tions of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous be- cause injurious disclosure could result." Hoffman v. United States, 341 U.S. 479, 186- 487. If the court is so satisfied, the claim of the privilege will be accepted without re- quiring further disclosure. Regardless of how it is articulated, some like formula of compromise must be applied here. Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers. Yet we will not go so far as to say that the court may automatical- ly require a complete disclosure to the judge before the claim of privilege will be accepted in any case. It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compul- sion of the evidence will expose military matters which, in the interest of? national security, should not be divulged. When this, is the case, the occasion for the privilege is appropriate, and the court should not jeop- ardize the security which the privilege is meant to protect by insisting upon an ex- amination of the evidence, even by the judge alone, in chambers. There is nothing in E.P.A. v. Mink, 410 U.S. 73 (1973), inconsistent with the pro- visions of amendatory law that the Presi- dent has vetoed. The vetoed bill is in fact a response to the deficiencies of the Free- dom of Information Act as applied in the Mink case. The sole question resolved there was the meaning of the statute as it was then framed, and as Mr. Justice Stewart said in his concurring opinion: "This case presents no constitutional claims, and no issues regarding the nature or scope of "Executive privilege." It involves no effort to invoke judicial power to require any documents to be reclassified under the mandate of the new Executive Order 11652. The case before us involves only the meaning of two exemptive provisions of the so-called Freedom of Information Act, 5 U.S.C. g 552. "My Brother DOUGLAS says that the Court makes a 'shambles' of the announced purpose of that Act. But it is Congress, not the Court, that in ? 552 (b) (1) has ordained un- questioning deference to the Executive's use of the 'secret' stamp. As the opinion of the Court demonstrates, the language of the ex- emption, confirmed by its legislative history, plainly witholds from disclosure matters 'specifically required by Executive order to be kept secret in the interest of the na- tional defense or foreign policy." In short, once a federal court has determined that the Executive has imposed that requirement, it may go no further under the Act. "One would suppose that a nuclear test that engendered fierce controversy within the Executive Branch of our Government would be precisely the kind of event that should be opened to the fullest possible disclosure con- sistent with legitimate interests of national defense. Without such disclosure, factual in- formation available to the concerned Execu- tive agencies cannot be considered by the people or evaluated by the Congress. And with the people and their representatives reduced to a state of ignorance, the demo- cratic process is paralyzed. "But the Court's opinion demonstrates that Congress has conspicuously failed to attack the problem that my Brother Douglas discusses. Instead, it has built into the Free- dom of Information Act an exemption that provides no means to question an Executive decision to stamp a document "secret," how- ever synical, myopic, or even corrupt that decision might have been." Indeed, the Court, in its opinion, makes it clear that the question was within Congres- sional control and all but invited the legis- lation that is in issue between the President and the Congress here: "Congress could cer- tainly have provided that the Executive Branch adopt new procedures or it could have established its own procedures?sub- ject only to whatever limitations the Execu- tive privilege may be held to impose upon such congressional ordering. Cf. United States v. Reynolds, 345 U.S. 1 (1953). But Exemption 1 does neither. It states with the utmost directness that the Act exempts matters 'specifically required by Executive order to be kept secret.' Congress was well aware of the Order and obviously accepted determinations pursuant to that Order as qualifying for exempt status under ? (b) (1)." 410 U.S. at 83. It is obvious from the bill that Congress is no longer willing to accept an executive classification as final and de- terminative. I would repeat that the issue between Congress and the President here is not whether there is or should be a privilege for military and state secrets. Both are in agree- Ment that there should be such a privilege. Nor is the issue between the President and the Congress the question whether the fed- eral courts should have the power of in camera inspection in order to determine whether the materials that are classified should retain their privilege. Both are in agreement that in camera ihspection is ap- propriate. The controversy is solely over the question of the standard to be applied by the courts in making determinations of availability. Congress says that the materials in question must in fact have been properly classified in accordance with the Executive's own standards for classification. The Presi- dent wants the secrecy maintained if the court finds a "reasonable," if erroneous, basis for the classification. The distinction cannot, in fact, be important except in a very small number of cases, indeed. In any event, I do not see how it is possible to say that the Presidential position is constitutional but the Congressional position unconstitutional. Having said this, I would remind you that, if what is sought is not a statement about the meaning of the Constitution as applied to this question but a prediction of what the Supreme Court will do if faced with the question, I must say that the Court is a most unpredictable body in areas such as this. In the Nixon case, the Court assumed, without reason or proof, the existence of a constitutional basis for the so-called execu- tive privilege, although it compelled the pro- duction of the materials there sought for in camera examination and judgment by the trial court. The only way to secure the Supreme Court's opinion on this matter is to enact the law and await, that singular case in which the Presidential standard would bring about a different result from the Congressional standard. I can guess but I cannot warrant that the Court would there sustain the validity of the law, With all good wishes. Respectfully yours, PHILIP B. XIIRLAND. REPORT BY THE COMMISSION N UNITED STATES-LATIN AME AN RELATIONS Mr. CHILES. Mr. Preside nee the spring a distinguished of Ameri- cans with substant' erest in Latin America has be eeting regularly to consider imp ements that might be made in U.S. policy toward Latin Amer- ica and relations within the hemisphere. During October this Commission on United States-Latin American relations, chaired by Sol Linowitz, fomer Ambas- sador to the OAS, issued a 54-page report with some 33 recommendations. In the brief time I have had to peruse the Commission's report, I am impressed by the breadth of its content and its rec- ommendations. Of course, none of us in this body will agree with all the recom- mendations in any commission report. I do not agree, for example, with the Com- mission recommendations on U.S. policy toward Cuba. Nevertheless, I think that all of us would benefit from giving this report and the recommendations some considerable thought. The report can be a good stimulus for debate and discussion within the Congress. It is with this in mind that I shall ask unanimous consent to have printed at the end of these re- marks the conclusion of the Commis- sion report. The Commission's opening shot is sim- ple and clear: "The United States should change its basic approach to Latin Amer- ica and the Caribbean." The Commission reminds us that tremendous changes are occurring in world and hemispheric re- lations and that "unchanging policies Approved For Release 2005/06/09: CIA-RDP75600380R000700010003-5 S 19604 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 CONGRESSIONAL RECORD ? SENATE November 19, 1974 in the face of rapidly changing conditions is a sure recipe for trouble." Our policy and relations with Latin- America over the last decade have suf- fered most from neglect by policymakers and inadequate discussion and eveti knowledge within the Government of options actually being pursued. If our relations with Latin America are to im- prove, we must as a government give greater attention, both in the admin- istration and in the Congress, to U.S. policies. The Commission has presented their report to President Ford. Hopefully, the Secretary of State will have some tune to become aware of the report. / hope responsible Members of both Houses of Congress will give the recommenda- tions and content of this report serious consideration as a means of focusing more attention on what positive role we can play in bringing our policy relations with Latin America up to date. I ask unanimous consent that the con- clusions of the Commission report be printed in the RECORD. There being no objection, the conclu- sions of the report were ordered to be printed in the RECORD, as follows: RECOMMENDATIONS BY THE COMMISSION ON UNITED STATES-LATIN AMERICAN RELATIONS 1. The United States should refrain from unilateral military interventions in Latin America, and covert U.S. interventions in the ineernal affairs of Latin American countries should be ended. The President and the Con- gress should ensure that all agencies of the U.S. government fully respect the sovereignty of the countries of Latin America. 2. The United States should urge all states In the region to provide free access and essen- tial guarantees to the Inter-American Com- mission on Human Rights. It should support efforts to strengthen the staff and enhance the prestige of the Commission, and should help assure that the Commission's reports are fully publicized and discussed in the OAS General Assembly. a. The United States should press for the investigation of reported violations of human rights by appropriate international commis- sions, and it should take the findings of those groups into account in deciding on the sub- stance and tone of its bilateral and multi- lateral relations. 4. As a demonstration of its deterrninatio to do what it can- to alleviate the distr caused by political repression, the U d States should expand its emergency im ra- tion program for political refugees, w ther those refugees flee oppression of the- eft or right. 5 The United States should takeftie initia- tive in seeking a more normal lationship with Cuba. While emphasizing at progress toward improved relations refres positive action on both sides, the Co mission urges thee the United States act, xow to end the trade embargo. This recommended U initiative toward Cuba should be imple ted in conjunction with the Latin Amer n countries. At the earliest opportunity resumably the forth- coming Meeting of oreign Ministers of the Organization of A rican States?the United States should co-nit with other OAS mem- bers, indicatin its willingness to support repeal of the .-a.sures against Cuba adopted at the Ninth eeting of Consultation of Min- isters of ign Affairs in July 1964. Assum- ing -that the OAS resblutions are repealed, the U.S. gmaternment should then revoke Execu- tive regulations restricting trade between the United States and Cuba and ought to act, within the President's discretionary author- ity, to suspend any legislative provisions which penalize third countries for trading with Cuba. Regardless of progress or a Cuban response in other areas, the United States, taking into consideration its discussione with other OAS members, should move quickly to: (a) drop its restriction on travel to and from Cuba: (b) make evident its will ,ngness to permit cultural, scientific, and educational ex- changes on a non-official basis; and (e) make clear its willingness .to improve cooperative arrangements with Cuba on practical mat- ters of mutual concern, such as hijacking and weather watching, and to negotiate on such additionel matters as may be Indicated. Appropriate opportunities should be taken for dealing with Cuba informally within en- ternational organizations. ",7tie United States government should encourage and facilitate, not discourage, non-official cultural ex- changes and other forms oe contact. If and when Cuba's response permits, the Commission believes the President should be prepared to take other Executive actions and to seek whatever legislative changes may be necessary to facilitate commercial and cul- tural relations with Cuba. We should also.bee prepared to consider renewal of bilateral di lomatic relations as well ea other steps o facilitate Cuba's integration into a tons c- tive paattern of inter-American relatio ps. When both Cuba and the Uni tates have taken conciliatory stops tow d con- structive relations, it should be ssible to resolve outstanding issues, and securing compensation for expropriate .8. proper- ties, agreeing on the status the U.S. base at Guantanamo, and foster reconciliation among separated elemen of the Cuban community. 6. We strongly supt the signing and ratification of a new enema canal treaty based on the Stat ent or Principles ac- cepted by both con ries oniFebruary 6, 1974. Any arrangementftIould in fairness take into account the int?sts of U.S. citizens in the Canal Zone. 7. Consisted with the Statement of Prin- ciples and the interests of efficiency and economy, e President should now take ap- propriatejfneasures to reduce U.S. govern- ment p?onnel and operations which are not cl riy essential to the Canal's operation and ?fense: In this connection the United Ste Armed Forces Southern Command shflld be transferred from the Canal Zone tet; the continental United States. 8. The United States should encourage and, where appropriate, participate in efforts to develop subregional, regional and global conventional arms limitation agreements among supplier and consumer nations. , 9. The United States should terminate grant military material assistance programs in Latin America. The recently abolished Agency for International Development (AID) public safety program in 'Latin America, which provided equipment and training to police forces, should not be revised. 10. The United States should not actively encourage the purchase of arms by Latin - American countries. However, legislative re- strictions on arms transfers that discriminate against Latin America ought to be repealed. Conventional military equipment should be available to Latin American countries on a competitive, commercial and non-discrim- inatory basis?the same as ehat governing sales to other friendly nations. except those -engaging in military hostilities or whose se- curity forces are found by appropriate inter- national processes to be systematically vio- lating human rights. 11. US. Military Assistance Advisory Groups in Latin America should be phased out and replaced by small intereervice liaison offices or joint commission delegations (pos-- iiably as part of Military Ateache Offices), whose primary reeponsibilities would involve Coordination of professional exchanges and training, rather than sales promotion cr ad- visory functions. 12. The United States should abandon the threat or application of unilateral measures of economic coercion in its relations with the countriets of Latin America. Specifically, the Commission urges: (a) Repeal of the Ilickenlooper and Gon- zales Amendments euast revocation cd the January 1972 Preside ?al policy statement, on expropriation. (b) Repeal of th eign Assistance Act, and Ship automatic ec fisheries d (c) Rej nom ic pr nial to Attlee cons i olu ni ? 4. II I ? amendments to the For- Foreign Military Sales n Act which provide for sanctions in cases of es. ion by the United States of eco- urea or policies of economic de- eat the internal processes of Latin countries. Such measures should be red only pursuant to appropriate res- .ns of the United Nations or the Crea- m of American States. . The United States should propose a odification of the Inter-American Develop- ent Bank -cheater to encourage additional contributions by other nations in. a manner which would permit dilution of the U.S. eat- ing share below one-third, or alternatively, to eliminate the requirement for a two-thirds majority in the Fund for Special Operations. But such action must be accomplished in a manner which would not lower the level of U.S. contribirtions to the Bank. 14. The United States should assure that its actions in the Inter American Development Bank and other multilateral development in- stitutions accord with the broad purposes of those institutions and are not taken pri- marily to serve narrow 'U.S. political or eco- nomic interests. 15. The United States should encourage the strengthening of the OAS conciliation and peacekeeping capacities. 16. With respect to the future role of the OAS?including its structure, leadership and location?, the United States should be guided primarily by Latin American initi- atives and wishes. 17. U.S. immigration legislation should be reviewed systematically with the aim of elim- inating restrictions barring travel and migra- tion on purely political grounds. The Com- mission urges that the President promptly seek Congressional approval for amendments designed to eliminate these restrictions. In the meantime, we urge the President to in- struct all relevant U.S. agencies to interpret and apply existing legislation in the light. of changed circumstances and priorities. 18. The United States should propose estab- lishment of an Inter-American Endowmene for Cultural Exchange, with funding from a percentage of the earnings of the Inter- American Development Bank. The mandate of such an entity should be broadly defined and its functioning should remain free from the pressures of government agencies in any of the participating countries. Its sole pur- pose should be to utilize the talents and ca- pacities of institutions and individuals to- ward a better and broader understanding among the nations of the Americas. 19. The U.S. government should provide i:a- creased support for Latin American Area Studies at all levels of the educational system. 20. The-United States should enact a gen- eralized scheme of tariff preferences for de- veloping countries. However, both the list tDf products to be admitted and the limitations on dollar volume should be drawn with a View to providing increased benefits to Latin America. 21. The United States should cooperate with Latin American nations in the forth- coming multilateral tariff negotiation to achieve tariff reductions on products which would be of mutual benefit. 22. The waiver provision on countervail- t. Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003- dvember 19, 1974 CONGRESSIONAL RECORD ? SENATE rary and intermittent services to the same extent as Is authorized by section 3109 of title 5, United States Code, but at rates not to exceed $150 per day for persons perform- ing such services. (c) The Chairman is authorized to negoti- ate a,nd enter into contracts and agreements as the Commission determines are necessary in order to carry out its duties. ASS/STANCE OF GOVERNMENT AGENCIES SEC. 6. Each department, agency, and in- strumentality of the Federal Government, including the Congress and independent agencies, and State and local agencies, con- sistent with the laws and the Constitution of the United States, shall furnish to the Commission, upon request of the Chairman, such data, reports, and such other informa- tion as the Commission deems necessary to carry out its functions under this Act. DEFINITIONS SEC. '7. As used in this act "Federal regu- latory agency" includes any existing inde- pendent Federal agency which, as one of its principal responsibilities, exercises regula- tory functions affecting one or more seg- ments of American industry, as well as any agency or governmental unit within an agen- cy or department of the Federal government which exercises such regulatory functions as one of its principal activities. The term is meant to include but not be limited to such independent regulatory agencies as the In- terstate Commerce Commission, the Securi- ties and Exchange Commission, the Federal Reserve Board, the Federal Deposit Insur- ance Corporation, the Federal Home Loan Bank Board, the Federal Energy Administra- tion, the Federal Power Commission, the Federal Trade Commission, the Federal Com- munications Commission, the Federal Mari- time Commission, the Civil Aeronautics Board, the Consumer Product Safety Com- mission, the Commodity Fittures Trading Commission, the National Labor Relations Board, the Farm Credit Administration, the Tariff Commission, the Equal Employment Opportunity Commission, the Small Busi- ness Administration, the Nuclear Regulatory Commission, the Environmental Protection Agency, and others. The term is also meant to include but not be limited to such agen- cies or units within an agency or depart- ment as the Food and Drug Administration, the National Highway Traffic Safety Admin- istration, the Occupational Safety and Health Administration, the Federal Aviation Administration, the Antitrust Division of the Justice Department, the Office of the Comp- troller of the Currency, the Agricultural Marketing Service, the Commodity Credit Corporation, the Packers and Stockyard Administration, and others. LZRMINATION Sso. 8. Sixty days after the submission of the final report provided for in section 3 (b) , the Commission shall cease to exist. AUTHORIZATION SEC. 9. There is authorized to be appro- priated $1,500,000 to carry out the provisions of this Act, By Mr. HATHAWAY: S. 4169. A bill to prohibit unreasonable searches and seizures incident to and fol- lowing arrests for traffic and vehicular law violations and to prohibit the use in Federal and State criminal trials of any evidence discovered in the course of or as a result of any such searches; and S. 4170. A bill to prohibit unreasonable searches and seizures incident to and following arrests and to prohibit the use in Federal and State criminal trials of any evidence discovered in the course of or as a result of any such searches. Re- ferred to the Committee on the Judiciary. Mr. HATHAWAY. Mr. President, the purpose of the two bills which I am of- fering today is to assure persons of some degree of privacy by prohibiting all searches which are not strictly tied to and justified by the circumstances of their arrest. The Traffic and Vehicular Arrests Evi- dence Act is limited to the situation in which stopping an individual for a traffic violation becomes a pretext for a full- scale search of the vehicle he is operating. The Search and Seizures Act of 1974 is a more general bill. Both would utilize the traditional exclusionary rule. In the preparation of this legislation, I solicited the help of the Civil Rights- Civil Liberties Research Committee of the Harvard Law School. In explaining my reasons for offering this legislation and what I feel is the need and justification for it, I ask unanimous consent to in- clude in the REcoao the following ex- cerpts from a memorandum prepared for me in connection with this legislation by Bill Wilkins, Lynne Bernabei, and Abigail Elias of the Civil Rights-Civil Liberties Research Committee. There being no objection, the material was ordered to be printed in the RECORD, as follows: EXCERPTS FROM MEMORANDUM The Fourth Amendment of the Constit tion of the United States requires th "The right of the people to be secure their persons, houses, papers, and effec , against unreasonable searches and seizure shall not be violated, and no Warrants sh I issue, but upon probable cause, support d by Oath or affirmation, and particularly d scribing the place to be searched, and t e persons or things to be seized." As the law has developed, searches b. e generally been seen as reasonable wit n the meaning of this amendment only w n accompanied by a search warrant. Searc es without warrants, however, have come to e seen as reasonable and lawful under c - tam n special circumstances. Such special c - cumstances fall into two categories; search's incident to a valid arrest, and searches under "exigent circumstances." The tradi- tional reasons behind allowing searches in- cident to arrest, were twofold: first, to allow the officer to remove any dangerous weapons which might endanger the officer himself, and second, to prevent the concealment or destruction of any evidence. Chimel V. California, 395 US 752 (1969). The "exigent circumstances" exception allows an officer, where he has enough prob- able cause to search as would justifiy a war- rant, but has no cause to arrest, to proceed with a warrantless seach if exigent circum- stnces make the usual warrant procedure impractical. Such warrantless searches are seen as reasonable because insisting on war- rants in these cases would allow the evi- dence in question to disappear. Carroll v. United States, 267 US 132 (1925). The exception which concerns us here IS the exception allowing warrantless searches incident to an arrest. Until recently, our courts have refused to give an absolute po- lice power to search incident to any arrest. They have insisted that, for a search to be reasonable, "the scope of the search must be strictly tied to and justified by the cir- cumstances which. rendered its initiation permissible" and that the police officer care- fully restrict his search "to what was ap- propriate to the discovery of the particular Items which he sought." Terry v, Ohio, 392 US I (1968). In 1973, however, the Supreme Court of the United States held, In two cases involv- dit /247 S 19531 ing warrantless searches incident to traffic arrests, that all searches incident to arrest are reasonable, and need not be restricted by the circumstances of the arrest to be lawful. United States v. Robinson, 414 US 218, 94 S Ct 467 (1973); Gustafson v. Florida, 411 US 260, 94 S Ct 488 (1973). These decisions found to be admissible as evidence drugs seized from persona whom the police had arrested for driving without a valid license. In laying down a uniform arrest-search rule, the Su- preme Court rejected the earlier reasoning for restricting a traffic arrest search: "The authority to search the person in- cident to a lawful custodial arrest, while based on the need to disarm and to discover evidence, does not depend cm what a court may later decide was the proability in a par- ticular arrest situation that weapons or evi- dence would in fact be found upon the per- son of the suspect. A custodial arrest of a suspect based on probable cause is a reason- able intrusion under the Fourth Amend- ment; that intrusion being lawful, a search incident to the arrest requires no additional justification." United States v. Robinson, supra at 472. We feel this is a dangerous rule, and one which threatens the traditional rights of privacy. It is offensive to most of our notions of pri- vacy that such trivial offenses could consti- tute the sole basis for such a serious intru- sion as a full search. By Mr. HUGH SCOTT (for him- self, Mr. TAFT, Mr. BENNETT, Mr. HRUSKA, Mr. BROCK, and Mr. IFFIN) A bill to amend section 552 o i e 5, United States Code, known as the Freedom of Information Act. Refer- red to the Committee on Government Operations. FREEDOM OF INFORMATION ACT AMENDMENTS: A CLEAN BILL Mr. HUGH SCOTT. Mr. President, on October 17, President Ford vetoed , a bill to amend the Freedom of In ormation Act?title 5, United States Code, section 552. In returning H.R. 12471, the President noted that it was only his conviction that the bill as enrolled is unconstitutional and unworkable in several vital respects that caused him to withhold approval. The bill that I introduce today will cure the defects revealed by the Presi- dent in his veto message. It's central fea- tures may be summarized in the follow- ing manner. REVIEW OF CLASSIFIED DOCUMENTS This bill would, as did the bill it is de- signed to replace, permit a court to re- view documents classified by agencies in the interest of national defense or for- eign policy and to insure the reasonable- ness of that classification. However, the proposed language would permit a court to review the document itself and to dis- close the document only if there is no reasonable basis to support the classifica- tion. This bill removes a constitutionally questionable arrangement in H.R. 12471 as vetoed whereby a highly sensitive doc- ument pertaining to our national defense would have to be disclosed even if the classification were reasonable. The new language simply provides that after a re- view of all the evidence pertaining to a classified document, including the docu- ment itself if necessary, the document may be disclosed unless there is a "rea- Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP751300380R000700010003-5 S 19532 CONGRESSIONAL RECORD?SENATE sonable basis" for the classification by the agency. The burden of proof remains upon the agency to sustain the reason- ableness of the classification. TIME LIMITS AND COSTS As vetoed, H.R. 12471 provides that following a request for documents an agency must determine whether to fur- nish the documents within 10 days, and following an appeal from a determination to withhold documents, the agency is afforded 20 days to decide the appeal. In unusual circumstances an agency may, obtain an additional 10 days for either determination. Time limits on agency action with re- gard to requested documents are tin- portant additions to the public's right to know of the operations of its Govern- ment, and several agencies have already voluntarily adopted time limits for their responses. Experience with these time limits indicates that the restrictions in H.R. 12471 may be impracticable. Be- cause of the large number of documents often requested, their decentralized loca- tion and the importance of other agency business it might often be impossible to comply with requests in the time allotted. This bill would provide 30 days for the initial determination and would pro- vide an additional 15 days in unusual circumstances. Furthermore, in excep- tional circumstances, the agency would be authorized to seek additional time. from a court if it could demonstrate due diligence in responding to a request. For Particularly burdensome requests, an agency would also be permitted to charge for the cost of reviewing requested docu- ments if such cost exceeded $100 for each request or each series of related requests. This provision would help to defray those unusual expenses in responding to re- quests for documents at a time when we are seeking to limit our governmental expenditures. Furthermore, the addition- al time afforded agencies in responding to requests will lead to more responsive determinations and more efficient use of agency personnel and resources, while still providing for prompt agency re- sponse to requested documents. INVESTIGATORY RECORDS The first portion of this revision is Intended to render more realistic the showing of harmful effect Which the Government would have to make in order to sustain the withholding of investiga- tory records. It may not be possible in most cases to establish that release "would" cause particular harm of the type described. But when whit is in- volved is harm so enormous as depriving a defendant of the right to a fair trial, Invading personal privacy, compromising our law enforcement operations, and endangering the life or physical safety of law enforcement personnel, existence of a "substantial possibility" that the harmful effect will ensue ought to be ade- quate reason for withholding the docu- ment. The second portion broadens the pro- tection of confidential information pro- vided to a criminal law enforcement agency to such information provided to an agency with civil law enforcement functions. There are several agencies that perform important civil law enforcement functions, and often civil law enforce- ment investigations directly lead to criminal investigations. In these in- stances it is essential that confidential information furnished only by a con- fidential source be protected from pre- mature disclosure. In the past, all records contained in investigatory files compi Led for law en- forcement purposes hay e been exempt from disclosure under tee Freedom of Information Act. Althoueli such a cate- gorical exemption is too broad, Congress originally adopted that provision in 1966 because of special characteristics of these files which the present bill disregards. First, improper release of the Informa- tion they contain can be harmful, and thus particularly careful screening is required; second, many oi these files are of enormous size; and fine ay, the propor- tion of nonreleameble information they contain is typically much higher than that contained in other Government files. The combination of these factors makes it impracticable in some situations to devote the efforts of our law enforce- ment personnel to a paragraph-by- paragraph screening of tY..ese files. This is so whether or not the time which these personnel take from law enforcement -duties is paid for by the person making the request. While this consideration does not justify the categorical exeeption of all investigatory files, it cannot be entirely ignored. This bill will enable the agency head himself to make a case-by-case finding of impracticability, on the basis of specific factors which can be reviewed by the courts. This resolution is both reasonable and not subject to uncon- trolled application by tee executive branch. The last clause of the sentence also prevents this limited 'investigatory files" exemption from being abused so as to protect records which are not Investigatory records or which the agency knows do not qualify for any specific exemption from disclosure. Mr. President, I would hope that my colleagues on both sides of the aisle recognize the salutary effect of these changes which have been r ?commended by the President. Mr. HRUSKA. Mr. President, I sup- port the bill introduced by Senator SCOTT Which would amend the Freedom of In- formation Act to insure the fullest re- sponsible disclosure of Government rec- ords. As my colleagues are aware, this body passed a Freedom of Information bill, HA. 12471, late last spring. I supported that bill, as it was reportec out of the Senate Judiciary Committee. Indeed, I worked with the original author of that bill, the senior Senator from Massa- chusetts (Mr. KENNEDY) in drafting a bill that would remove the obstacles to full and faithful compliance with the- mandate of the Freedom of Information Act. That mandate, of course, is to grant citizens the fullest access to records of Federal agencies that the right of pri- vacy and effective government will per- mit. The bill was amended or, the floor, however, in a way that coulc open con- November 19, 1974 fidential files to the public at the ex- pense of our Nation's interest in foreign relations and defense and every individ- ual's interest in law enforcement and the right pf privacy. Because of these amendments, the President was com- pelled to veto this bill. The bill intro- duced by the senior Senator from Penn- sylvania (Mr. Sone) amends the en- rolled bill to eliminate the military and diplomatic information prob- lems and the damage to effective law enforcement in the enrolled bill. By amending the bill in this way, we will have worked out a fair, responsible way to increase public access to Federal papers and records without impairing Individual rights and essential Govern- ment activities. In vetoing the enrolled bill, the Presi- dent expressed several reservations about the constitutionality and feasibility of H.R. 12471. The first ground for vetoing this bill Involves our Nation's military, intelli- gence and diplomatic secrets. At the out- set, I want to stress what is and what is not the issue here. The crux of the issue is not whether a judge should be authorized to review classified documents in camera. The President in his veto message stated that he was prepared to accept those aspects of the provision which would enable courts to inspect classified documents and review the justification for their classification. As this bill was reported out of the Judiciary Committee, it au- thorized judicial review of the justifica- tion for withholding classified docu- ments in a provision I fully supported. The issue, Instead, is whether a stand- ard should be established to guide the judge's decision as to whether a docu- ment is properly classified. As the Presi- dent stated in his message: As the legislation now stands, a deter- mination by the Secretary of Defense that disclosure of a document would endanger our national security would, even thougli reasonable, have to be overturned by a dis- trict judge who thought the plaintiff's posi- tion just as reasonable. Such a provision would violate constitutional principles and give less weight before the courts to an Ex- ecutive determination involving the protec- tion of our most vital national defense in- terests than is accorded determinations in- volving routine regulatory matters. The constitutionality of the enrolled bills provision granting the courts un- limited power in reviewing and releasing classified documents is discussed in a memorandum that I ask by unanimous consent be printed at the conclusion of my remarks. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. HRUSKA. Basically, the points of this memorandum can be summarized as follows: First. The Constitution vests in the President the authority to maintain our national defense and to conduct our for- eign relations. Second. In order to discharge these responsibilities effectively, the President must take measures to insure that confi- dential information bearing on national defense and foreign relations is not dis- closed to all the world. Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 November Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 19, 1974 CONGRESSIONAL RECORD?SENATE Third. To grant a judge the authority to determine, on his own, whether this same type of information should be dis- closed to the public infringes on the con- stitutional power of the President to maintain in confidence national defense and foreign relations information. Mr. President, it is one thing to review an agency's decision to determine whether the agency acted arbitrarily or unreasonably. It is an entirely different matter to empower a court to determine in the first instance whether a document should be classified or released to the public. The issue then boils down to this: Should judicial scrutiny of classified documents be unchecked? The legal memorandum I refer to cites a number of recent cases as well as law review articles in analyzing this issue. A thoughtful reading of this memorandum will make the President's veto even more convincing. Second, the confidentiality of count- less law enforcement files containing in- formation of the highest order of privacy is jeopardized by this bill. At stake here Is not simply the issue of effective law enforcement but the individual's right to privacy and to be secure in the knowl- edge that information he furnishes to a law enforcement agency will not be dis- closed to anyone who requests it. By requiring the FBI and other law enforcement agencies to respond to any person's request for investigative infor- mation by sifting through pages and pages of files within strict time limits to prove to a court line-by-line that dis- closure would cause a type of harm spec- ified in the amendment distorts the pur- pose of agencies such as the FBI. The magnitude of such a task and the stand- ards of harm that are defined in the amendment create serious doubt as to whether such a provision is workable aside from its questionable wisdom. Where the rights of privacy and personal security are at stake, no measures should be adopted that even tend indirectly to undermine these fundamental rights. In his veto message, the President also expressed concern with the time limits set out in the bill. These time limits can be counterproductive to the disclosure of information under the act. If an agency is required to respond to a re- quest within unrealistic time limits, it will be forced to deny the request for fear that the interests in confidentiality such as the right of privacy, the confi- dentiality of informants and frank dis- cussion of policy issues, would be jeop- ardized. Thus, the agency will be com- pelled to deny requests that, in many cases, could With more study be granted. Unrealistic time limits, therefore, thwart full and free disclosure. Mr. President, I fully support most of the features of enrolled bill, H.R. 12471. It was?and is?my belief that amend- ments to the Freedom of Information Act are necessary to remove obstacles to full and free compliance with the thrust of the act. As I stated earlier, I support judicial review of the justification for withhold- ing classified documents. I also support realistic time limits for processing re- quests so that a requester will not be frustrated by seemingly endless delays by a reluctant agency. And I support re- forms to insure that information that can be disclosed is not hidden in law enforcement files. It is because I believe that amend- ments to the Freedom of Information Act are necessary that I am cosponsor- ing the bill introduced today. This bill retains the favorable features of HR. 12471 and incorporates the amendments proposed by the President to insure that we have a bill that is both constitutional and workable. The basic features of the amendments incorporated in this bill are the follow- ing: First, a standard is established to guide the judge's detision in reviewing classi- fied documents. Judicial scrutiny of clas- sified documents is not left unchecked. The amendment simply provides that a classified document should not be re- leased to the public unless the judge finds that there is no reasonable basis to sup- port the classification. Second, the time limits provision is amended to reflect a more realistic ap- proach to administration of the act. The amendment would grant an agency 30 days rather than merely 10 days to re- spond to a request. Because of the loca- tion of documents, the press of other agency business and the large number of documents often requested, it is at times impossible to determine in 10 days whether the records requested should be disclosed. Third, the amendment broadens the bill's protection of confidential informa- tion provided to a criminal law enforce- ment agency. :rt insures that information that can be disclosed without impairing an agency's discharge of its responsibili- ties or infringing an individual's rights, is, in fact, subject to disclosure. Mr. President, these amendments are constructive to the thrust of the free- dom of information. A bill which em- bodies the basic features of H.R. 12471 together with the amendments proposed by the President will give us legislation insuring the fullest responsible disclo- sure of Government records. It is my hope that this legislation will be re- enacted with these amendments. MEMORANDUM (Re: Freedom of Information amend- ments: Constitutionality of provisions of H.R. 12471 pertaining to' judicial release of classified defense and foreign relations docu- ments.) This memorandum discusses the constitu- tionality of the provisions of HR, 12471, the bill amending the Freedom of Information Act, which authorizes a court to release doc- uments that are reasonably classified. It concludes that while Congress can provide for judicial review to prevent the withhold- ing of documents based upon unreasonable classification, the provisions of HR. 12471 Which empower the courts to release docu- ments that have been reasonably classified to protect national defense and foreign rela- tions would be an unconstitutional infringe- ment upon the powers and duties of the executive under Article H of the Constitu- tion? There is no doubt that under the express language of H.R. 12471 as vetoed, providing for in camera inspection and de novo review of classified documents with the burden of proof on the government in the same terms S 19533 SUMMARY OF' DISCUSSION I. The Constitution and the, words of the Founding Fathers make clear that the Ex- ecutive's function of maintaining this na- tion's defense and conducting our foreign relations carries with it the responsibility to control the dissemination of informa- tion affecting the success of those responsi- bilities. II. The Supreme Court, other courts, and previous Acts of Congress have consistently recognized the Executive's constitutional power and duty to protect defense and for- eign relations information. III. Responsible critics of the Supreme Court's decision in EPA v. Mink have rec- ognized that judicial review of classified doc- uments must not undermine reasonable ex- ecutive decisions that defense and foreign relations documents require protection. DISCUSSION I. Article H, ? 1 of the Constitution vests the executive power of the United States in the President. Article II, ? 2 makes him Commander-in-Chief of the armed forces. Article II, sections 2 and 3 entrust to him the conduct of foreign relations. Article II, ? 3 commands him to "take care that the laws be faithfully executed." Article VI, clause 2 makes it clear that these laws in- clude the Constitution itself, which, as noted, confers on the President the power to maintain' our defense and conduct our foreign relations. That the President would have authority to secure the secrecy and confidentiality necessary to the successful conduct of for- eign affairs in a militarily unfriendly world was understood by the Framers of the Con- stitution. Writing in Federalist, No. 64, John Jay stated: "It seldom happens in the negotiation of treaties, of whatever nature, but that per- fect secrecy and immediate despatch are sometimes requisite. There are cases where the most useful intelligence may be ob- tained if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mer- cenary or friendly motives; and there doubt- less are many of both descriptions who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popu- lar Assembly. The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them, act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such a manner as prudence may sug- gest." Jay then elaborated in some detail on the issue why the President needed authority to provide for secrecy in the conduct of inter- national relations, noting that the rapidly changing tides of foreign affairs could be best handled by the executive branch which has the most experience and knowledge in this area. II. In a line of cases running down to this year, the Supreme Court has consist- ently recognized the executive's constitu- tional power over information held in the exercise of its military and diplomatic func- tionS. In New York Times v. United States, 403 U.S. 713, 729-30 (1971) , Justice Stewart, in a concurring opinion joined by Justice White, stated that the President's constitutional power in these areas implied a corresponding duty and authority to establish a system of that apply to all other government records, a judge is instructed to release documents that he finds have a reasonable basis for classification if he also finds that the plain- tiff's case is equally or more reasonable. '410 U.S. 73 (1973). Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 S 19534 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 a. CONGRESSIONAL RECO RD -- SENATE November 19, 1974 classifying documents. Justice Stewart wrote: "It is clear-to me that it is the constitu- tional duty of the Executive?as a matter of sovereign prerogative and not as a matter of law as the courts know law?through the pro- mulgation and enforcement of executive reg- ulations, to protect the confidentiality nec- essary to carry out its responsibilities in the fields of international relations and defense." Justice Marshall, in a concurring opinion, also recognized the President's authority to classify information. 403 U.S. at 741. The views expressed by Justices Stewart, White, and Marshall are supported by other Supreme Court cases, by congressional statutes noted below, and by the intent of the Framers of the Constitution as noted above. In the area of international relations and defense the powers of the Executive traditionally have been treated as very broad, although not lim- itless. In C & S Air Lines v. Waterman Corp., 333 U.S. 103, 109 (1948) e the Supreme Court stated that the "President . . . possesses in his own right certain powers conferred by the Constitution on him as Commander-in- Chief and as the Nation's organ in foreign affairs." Acting in these capacities, the Court added, the President "has available Intelli- gence services whose reports are not and ought not to be published to the world." id. at 111. In United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936), the Court stated that in the area of foreign affairs, "with its impertant, complicated, delicate and mani- fold problems, the President alone has the power to speak or listen as a representative of the nation." The Court quoted with ap- proval John Marshall's statement made as a Congressman that "Mlle President is the sole organ of the nation in its external re- lations, and its sole representative with foreign nations." An 1816 Senate Foreign Re- lations Committee Report, quoted with ap- proval by the Court in the Curtiss-Wright Case, also recognized the President's con- stitutional power with respect to foreign af- fairs and the national safety and observed: "The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends on secrecy and dispatch." Just this past summer, in its 8-0 opinion on former President Nixon's effmesto with- hold tapes sought by the Special Prosecutor, the Supreme Court expressly recognized that the authority of the President to maintain the confidentiality of secret documents is grounded in the Constitution. The Court stated that, although a generalized claim of confidentiality 'Would not prevail over the specific need shown in the pending criminal proceedings, a President has a "constitu- tionally based" power to withhold informa- tion the disclosure of which could impair the effective discharge of a President's pow- ers: "In this case the President challenges a subpoena served on him as a third party it- quiring the production of materials for use in a criminal prosecution on the claim that he has a privilege against disclosure of con- fidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost defer- ence to presidential responsibilities. In C. & S. Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948), dealing with presiden- tial authority involving foreign policy con- siderations, the Court said: There the Court held that a Presidential decision approving or disapproving a Civil Aeronautics Board order granting or denying an application to engage in foreign air trans- portation was not subject to judicial review. _ 'The President, both as C'ommancleren- Chief and as the Nation's organ for foreign 'affairs, has available intelligence services whose reports are not and caght not to be published to the world. It would be intol- erable that courts, without the relevant Information, should review and perhaps nullify actions of the Executive taken on in- formation properly held secret.' Id., at 111, 68 S.Ct., at 436. "In United States v. Reynolds, 3e5 U.S. 73 S.Ct. 528, 97 L.Ed. 727 (1952), dealing with a claimant's demand for evidence in a damage case against the Government the Court said: 'It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger it at compulsion of the evidence will expose m.litary matters which, in the interest of national security, should not be divulged. Whoa this Is the csase, the occasion for the privilege is approp- riate, and the court should not jeopardize the security which the privilege is meant to pro- tect by insisting upon an culmination of the evidence, even by the judge alone, in chambers.' No ease of the Court, however, he,s ex- tended this high degree of deference to a President's generalized interest in confiden- tiality. Nowhere in the Consteution, as we have noted earlier, is there any explicit ref- erence to a privilege of confidentiality, yet to the extent this interest relates to the ef- fective discharge of a President's powers, it 18 constitutionally based." (Emphasis sup- plied.) United States v. Nixon, -- U.S. ?, 94 S. Ct. 3090 at 3108-3109 (July 24, 1974). Another recent court decision, United States v. Marchetti, 466 F.2d 1309 (4 Cir. 1972) is particularly noteworthy, both for the court's succinct summary of the law in this area, and especially for the concurring opin- ion of Judge Craven, which cpresses views similar to those in Presidene Ford's veto message as to the proper scope of judicial review of the withholding of classified in- formation. The Court summarized the law as follows: "Gathering intelligence informatioli and the other activates of the Agency, includ- ing clandestine affairs against other nations, are all within the President's constitutional riwponsibility for the security ,)f the Nation as the Chief Executive and an Commander in Chief of our Armed forces. Const., art. LT, ? 2. Citizens have the right ts criticize the conduct of our foreign affairs, but the Gov- ernment also has the right and the duty to strive for internal secrecy about the conduct of governmental, affairs in areas in which disclosure may reasonably be thought to be inconsistent with the national interest. (Emphasis supplied.) 46 F.2d at 1315. Judge craven's concurring opinion strikes an essentially similar balance- in this field as that which President Ford has -urged (and as was reflected, incidentally, in the pending amendments as reported by the Senate Ju- diciary Committee). Judge Craven said: "I agree that 'Mlle conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative?"the political"?departments of the government, and the propriety of what May be done in the exercise of this political power is not subject to judicial inquiry or dccision.' Oetjen v. Central Leather Co., 246 VB. 297, 302, 38 S.Ct. 309, 311, 62 L.Ed, 726, 732 (1917). Sel concur in the opinion of the court ex- cept for the statement that the classification of documents and information by the exec- utive is not subjeet to judicial review. Be- cause the national security may be involved and because of the expertise of the executive, I would resolve any doubt about the reason- ableness of a classification in favor of the government. If the burden were put upon one who assails the classification, 4.faid surely it ought to be, much of the difficulty envisioned in the court's opinion would presumably disappear. Indeed, I would not object to a presumption of reasonableness, and a re- quirement that the assailant demonstrate by clear and convincing evidence that a classification is arbitrary and capricious be- fore it may be invalidated. "But however difficult the adjudication of the reasonableness of a secrecy classification. I cannot subscribed to a fiat rule that it may never be attempted. The 'right to know' is in a period of gestation. I think that the people will increasingly insist upon knowing what their government is doing and that, because this knowledge is vital to government by the people, the 'right to knew' will grow. I am not yet ready eo foreclose any inquiry ink) whether or not secrecy classifications are rea- sonable. To protect those that are does not require that we also protect the frivolous and the absurd. "Other than my doubt about the insula- tion of a classification system for judicial review, I fully concur in the opinion of the court." 466 F.2d at 1318, 1319. (Emphasis supplied.) A number of congressional enactments have else recognized the first constitutional basis for Presidential authority to classify both the defense and the foreign relations types of national security information. The espionage lavys, 19 U.S.C. ?? 792-798, alter- nately refer to classified information or make it imperative to establish a classifica- tion system in order to enforce them fairly and effectively. Subsection (b) of the In- ternal Security Act of 1950, 50 U.S.C. 788, makes it a crime "for any officer or employee of the United States" to communicate to a foreign agent "any information of a kind which shall have been classified by the Presi- dent as affecting the security of the 'United States...." (emphasis supplied). See also 50 U.S.C. ?783(c). III. The two dissenting Supreme Court opinions in the Mink case, plus recent com- mentaries criticizing that decision in two distinguished law reviews, support the view that H.R. 12471, as vetoed, goes beyond over-- turning Mink and purports to transfer the basic constitutional responsibility for classi- fication decisions from the executive branch to the courts. Justice Brennan's dissenting opinion makes it very clear that he wished to affirm the de- cision of the Court of Appeals which he understood only to call for the release of non-secret components of classified docu- ments, not to override executive determine.. tions as to which parts must remain classified for reasons of defense or foreign relations. In referring to the argument of the petition-. _ers" (i.e., the government) Justice Brennan said: "Even the petitioners concede, no doubt in response to the 'specifically required' stand- ard of ? 552(b) (1) and the 'specifically stated' requirement of ? 552(c), that docu- ments classified pursuant to ? 3(b) of Exec- utive Order 10501 cannot qualify under Ex- emption 1. Indeed, petitioners apparently accept the conclusion of the Court of Ap- peals that as to ? 3 (b) : 'This court sees no basis for withholding on security grounds a document that, al- though separately unclassified, is regarded secret merely because it has been incorpo- rated into a secret file. TO the extent that our position in this respect is inconsistent with the above-quoted paragraph of Section 3 of Executive Order 10501, we deem it re- quired by the terms and purpose of the [Freedom of Information Act], enacted sub- sequently to the Executive Order.' 464 F. 2d, at 745. "Nevertheless, petitioners maintain that information classified pursuant to ? 3(e) of the Order is exempt from disclosure under Exemption 1. The Court of Appeals rejected Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 14ember 19, 1974 CONGRESSIONAL RECORD ? SENATE that contention, and in my vie*, correctly. The Court of Appeals stated: 'The same reasoning applies to this pro-, vision as the one dealing with physically- connected documents. Secrecy by association is not favored. If the non-secret components are separable from the secret remainder and may be read separately without distortion of meaning, they too should be disclosed.' 464 F. 2d, at 746. 'Petitioners' argument, adopted by the Court, is that this construction of the Act Imputes to Congress an intent to authorize judges independently to review the Execu- tive's decision to classify documents in the interest of national defense or foreign pol- icy. That argument simply misconceives the holding of the Court of Appeals. Information classified pursuant to ? 3(c), it must be em- phasized, may receive the stamp of secrecy not because such secrecy is necessary to pro- mote 'the national defense or foreign policy,' but simply, because it constitutes a part of such other information which genuinely merits secrecy. Thus; to rectify this situa- tion, the Court of Appeals ordered only that the District Court in camera determine 'filf the non-secret components are separa- ble from the secret remainder and may be read separatela7 without distortion of mean- ing. . . .' The determination whether any components are in fact 'non-secret' is left exclusively to the agency head representing the Executive Branch. The District Court is not authorized to declassify or to release in- formation which the Executive, in its sound discretion, determines must be classified to `be kept secret in the interest of the national defense or foreign policy.' The District Court's authority stops with the inquiry whether there are components of the docu- ments which would not have been inde- pendently classified as secret. If the District Court finds, on in camera inspection, that there are such components, and that they can be read separately without distortion of meaning, the District Court may order their release. * * * (Emphasis supplied.) pp. 3-5 of Brennan's opinion. The remainder of Justice Brennan's opin- ion makes it clear that he objected to the majority's interpretation of the Freedom of Information Act as exempting an entire doc- ument from judicial review, inspection, and disclosure by the mere fact that the docu- ment is classified, even though the govern- ment might not dispute that some portions of the document do not warrant classifica- tion. Justice Douglas' dissenting opinion is to the same effect?it stops well short of sug- gesting the substitution of judicial for execu- tive discretion as to that material which the executive determines warrants classificatton for reasons other than its mere inclusion in a classified document. He said: "The Government . . . suggests that judges have no business declassifying 'se- crets," that judges are not familiar with the stuff with which these "Top Secret' or 'Secret' documents deal. "That is to misconceive and distort the judicial function under ? 552(a) (3) of the Act. The Court of Appeals never dreamed that the trial judge would reclassify documents. His first task would be to determine whether nonsecret material was a mere appendage to a 'secret' or 'top secret' file. His second task would be to determine whether under normal discovery procedures contained in Rule 26 of the Rules of Civil Procedure, factual material in these 'secret' or `top secret' material [sic] is detached from the 'secret' and would there- fore be available to litigants confronting the agency in ordinary lawsuits. 'Unless the District Court can do those things, the much advertised Freedom of In- formation Act is on its way to becoming shambles. Unless federal courts can be trusted, the Executive will hold complete sway and by ipse dixit make even the time of day 'top secret.' Certainly, the decision today will upset the 'workable formula,' at the heart of the legislative scheme, 'which encompasses, balances, and protects all in- terests, yet places emphasis on the fullest possible disclosure.' S. Rep. No. 813, supra, at 3. The Executive Branch now has carte Blanche to insulate information from public scrutiny whether or not that information bears any discernible relation to the interests sought to be protected by subsection (b) (1) of the Act. * * *." (Emphasis supplied.) pp. 5 and S of Douglas opinion. Recent issues of the Columbia Law Review and the Duke Law Journal, containing care- ful scholarly appraisals of Freedom of In- formation Act developments, have both criti- cized the Supreme Court's decision in the Mink case, but both clearly reject a remedy that would transfer to the courts the basic responsibility for protecting national secu- rity information, as is envisaged by H.R. 12471 as vetoed. The 1974 Duke Law Journal, In an article on "Development Under the Freedom of Information Act?I973, says: "In this regard, Senator Muskie recently proposed an amendment to the FOIA which would broaden the scope of de novo judicial review. Pursuant to the proposed amend- ment a court would be empowered to ques- tion the Executive's claim of secrecy by ex- amining the classified records in camera in order to determine whether 'disclosure would be harmful to the national defense or foreign policy of the United States.' This proposal, however, extends judicial authority too far into the political decision-making process, a field not appropriately within the province of the courts. A more satisfactory legislative solution would be a judicial procedure which would not unduly restrict the Executive's prerogative to determine what should re- main secret in the national interest but which would simultaneously provide a limit- ed judicial check on arbitrary and capricious executive determinations. An acceptable compromise of these competing interests might be a procedure whereby the agency asserting the privilege would separately classify each document and portions thereof and prepare a detailed itemization and in- dex of this classification scheme for the court. Thus, the court could adequately ascertain whether the claim of privilege was based upon a reasoned determination rather than an arbitrary classification without subject- ing the material to in camera scrutiny. Such a procedure would prevent indiscriminate and arbitrary classification yet not unduly infringe upon the privilege of the Executive to protect national secrets." (Emphasis sup- plied.) 74 Duke L.J. 258-259. The Columbia Law Review's June 1974 issue, in a comprehensive study entitled "The Freedom of Information Act: A Seven Year Assessment" says: "To advocate some form of judicial scru- tiny is not to say that power should be un- checked. That a court should assume the burden of declassifying documents seems altogether improper. Judgments as to the independent classification of genuinely secret information should be left to the executive. Little can be said, however, for exempting from disclosure non-classified information solely because of its physical nexus with a classified document. To assign to the judici- ary the function of winnowing the state secret from the spuriously classified docu- ment does violence neither to the language of the Act as an integrated statute, nor to the declaration of policy implicit in the first exemption. Even conceding that excising in- terspersed but non-secret from secret -matter necessarily implies the exercise of some sub- stantive judgment, this does not amount to a de facto power of declassification. Only ma- terials that would not have been independ- ently classified as secret should be deleted and disclosed on the court's initiative. In close cases, the court, cognizant of the 'deli- S 19535 cate character of the responsibility of the President in the conduct of foreign affairs,' should defer to the executive determination of secrecy." (Emphasis supplied.) 74 Col. L. Rev. 935. ' A "Developments in Law Note on Na- tional Security" by the Harvard Law Review reaches the same conclusion. In discussing the role of the courts in reviewing classifi- cation decisions, it states that? "There are limits to the scope of review that the courts are competent to exercise." And concludes that? "A court would have difficulty determin- ing when the public interest in disclosure was sufficient to require the Government to divulge information notwithstanding a sub- stantial national security interest in se- crecy." 85 Harvard Law Review 1130, 1225- 26 (1972). The foregoing also helps to make clear why, with President Ford's suggested change, the bill's treatment of classified documents would be constitutional. All federal action, by any branch, is subject to the due process clause of the Fifth Amendment. Congress in passing the Freedom of Information Act has conferred on all persons a broad "liberty" of access to federal records. A right of access can also be regarded as a form of limited property. The President's powers over the conduct of defense and foreign relations and Information pertaining thereto, as dis- cussed above, must be reconciled with the citizen's right not to be deprived of his Statutory "liberty" of access under the Act by a denial that is arbitrary and capricious and thus without due process of law. Judicial review to make certain that there is a rea- sonable basis for classification, as suggested by President Ford, is constitutionally war- ranted as a safeguard against such a denial of due process. In short, the distinction is between em- powering a court to review an agency's decision to determine whether it is arbitrary or clearly unreasonable and empowering a court to decide on its own what the agency should be. Where judicial scrutiny is unlim- ited, as in this latter case and as provided in the enrolled bill, the court can substi- tute its decision for that of the agency. This purported transfer of power intrudes upon the responsibility of the executive branch and, accordingly, is an unconstitutional in- fringement of the powers and duties of the Chief Executive. ADDITIONAL COSPONSORS OF BILLS AND JOINT RESOLUTIONS S. 796 At the request of Mr. FELL, the Senator from South Dakota (Mr. McGomix) and the Senator from Maine (Mr. Musxm) were added as cosponsors of S. 796, a bill to improve museum services. S. 3707 At the request of Mr. TUNNEY, the Sen- ator from New Mexico (Mr. MONTOYA) was added as a cosponsor of S. 3707, a bill to provide a tax credit for increases In personal savings. S. 4159 At the request of Mr. TALMADGE, the Senator from Arizona (Mr. FANNIN) was added as a cosponsor of S. 4159, a bill to provide that the sex discrimination guidelines prescribed under title IX of the Education Amendments of 1972 do not apply to fraternities and sororities, S. 4163 At the request of Mr. BAYII, the Sen- ator from Georgia (Mr. TALMADGE) and the Senator from Texas (Mr. TowEa) were added as cosponsors of S. 4163, a Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 S 19536 - Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 CONGRESSIONAL RECORD ? SENATE November 19, 19'; bill to amend title XI of the Education Amendments of 19'12 to exempt certain fraternities and sororities from sex dis- criminaton guidelines. ADDITIONAL COSPONSORS OF RESOLUTIONS SENATE RESOLUTION 422 At the request of Mr. BENTSEN, the Senator from Iowa (Mr. CLARK) was added as a cosponsor of Senate Resolu- tion 422 relating to improving law en- forcement efforts to control and prevent rape. SENATE RESOLUTION 426 At the request of Mr. TUMMY, the Senator from Hawaii (Mr. INOUYE) was added as a cosponsor of Senate Resolu- tion 426 expressing the sense of the Senate with respect to certain oil and gas leases pursuant to the Outer Con- tinental Shelf Lands Act. AMENDMENTS SUBMII s,13 FOR, PRINTING FOREIGN ASSISTANCE ACT OF 1974-- S. 3394 AMENDMENT NO. 1986 (Ordered to be printed 'and referred to the Committee on Foreign Relations.) Mr. PERCY submitted an amendment intended to be proposed by him to the bill (S. 3394) to amend the Foreign As- sistance Act of 1961, and for other purposes. Mr. PERCY. Mr. President, last year during consideration of the foreign aid bill the Senate passed an unpretentious piece of legislation, now known as the Percy amendment, though adopted with the support of Senator HUMPHREY and other of my colleagues. In one sentence the amendment directed the Agency for International Development to administer our foreign aid effort in such a way as to promote the integration of women into the national economies of recipient coun- tries, thus improving the status of women and assisting the total development effort. This amendment, although simple, has reaped highly significant results. In Sep- tember of this year AID issued the "Percy Amendment Policy Implementation Plan" directing all Agency development assistance plans to contain clear state- ments as to how women in developing countries will be involved in the develop- ment process and how the plan or pro- posal will benefit women and use their capabilities. More important, in the ap- proval of all development plans and proj- ects, strong preference will be given to those which provide for the effective utilization of women. International and voluntary organizations working with AID will also be encouraged to give spe- cific attention to the role of women in development. Moreover, AID Washing- ton bureaus and missions overseas have been instructed to collect information pertinent to the understanding of the role, status, and contribution of women in developing countries. Finally, our mis- sions overseas will be required to report on the general progress of integrating women in the development process, highlighting effective projects. The Percy amendment, however, is in- complete as it stands, f or it affects only our bilateral aid programs. The United States also participates in and makes substantial contributions to multilateral aid programs such as those supported by organizations like the World Bank, the International Monetary Fund, and the United Nations, to name but a few. I am, therefore, introducing an amendment to- day to reinforce this amendment and make U.S. policY where women's equality Is concerned consistent regardless of whether we are dealing with bilateral or multilateral aid rrograms. This amendment would direct our representa- tives in those international organizations of which we are a memt, er to carry out their duties so as to encourage and pro- mote the integration of women into the national economies of member and re- cipient countries and into Professional and policymaking positions within those organizations. Mr. President, I offer the amendment for the consideration of my colleagues, for the integration of women into the national economies of countries around the world deserves serious consideration. Equity and equal opportunity should be basic to the economic and social develop- ment process of all countries. SUPPLEMENTAL APPROPRIATIONS, 1975?H.R. 16900 AMENDMENT NO. 1087 (Ordered to be printed and to lie on the table.) Mr. PERCY submitted an amendment intended to be proposed by him to the bill (HR. 16900) making supplemental appropriations for the fiscal year ending June 30, 1975, and for other purposes. AMENDMENT NO. 1089 (Ordered to be printed E.nd to lie on the table.) Mr. MONDALE (for himself, Mr. HUMPHREY, Mr. Doxinexcx, and Mr. WIL- LIAMS) submitted an amendment in- tended to be proposed by ihein jointly to the bill (H.R. 16900) , supra. ADDITIONAL COSPONSOR OF AN AMENDMENT AMENDMENT NO. I9E I At the request of Mr. JOIINSTON, the Senator from New York(Mr. Javirs) was added as a cosponsor of unendment No, 1981, intended to be proposed to the bill (11.R. 16900) making st pplemental appropriations for the fiscal year ending June 30, 1975, and for other purposes. NOTICE OF HEARINGS ON THE NEIGHBORHOOD SCHOOL ACT Mr. PFTJ, Mr. President, during our debate on the elementary and secondary education bill, Public Law 93-380, the Junior " Senator from Florida (Mr. CsitLes) offered as an amendment, the substance of S. 503, the Neighborhood School Act of 19/2. After discussing the amendment, I suggested that we put it aside so that the Subcommittee on Edu- cation could give it consideration through hearings. Therefore, I am very pleased to an- nounced that the Subcommittee on Edu- cation, on December 10, 1974, will have hearings on S. 503, the Neighborhood School Act of 1972. All those who wish to appear at this hearing should contact Stephen J. Wexler, counsel, Subcommit- tee on Education, room 4230, U.S. Senate, Washington, D.C. 20510, 202-225-7666. NOTICE OF HEARING?CLOSURE OF UNDERGROUND COPPER MINES Mr. METCALF. Mr. President, the Anaconda Co. has announced plans to close its underground copper mines in Butte, Mont. This action will have a disastrous impact on the miners involved, their families, and the economy of Mon- tana. Because of my deep concern about this situation, the Subcommittee on Minerals, Materials, and Fuels will hold a hearing on the Anaconda Co.'s plans on Novem- ber 25. We have asked the company to explain the reasons for its plans. Mon- tana Gov. Thomas Judge will testify on the probable impact of the company's ac- tions on Montana. We have also asked exports from the Department of the in- terior to testify aboutageneral conditions in the copper mining industry. We want to determine if Anaconda's proposed shift away from underground mining is based on the particular cir- cumstances of the company and the na- ture of the ore body involved or if it is indicative of general trends in the copper mining industry. We are equally concerned about the potential long-term social, economic, and environmental im- plications of elimination of underground copper mining. We want to identify any needs for new mining and/or processing technology, more trained personnel, or new sources of ore, such as deep ocean mining. The hearings will begin at 10 a.m. on Monday, November 25, in room 3110, Dirksen Senate Office Building. For fur- ther information call Mike Harvey, spe- cial counsel, Subcommittee on Minerals, Materials, and Fuels, 202-224-1076, NOTICE OF WITNESSES TO TESTIFY AT HEARINGS ON REGULATORY REFORM Mr. ERVIN. The Committee on Gov- ernment Operations will hold hearings on the following bills: S. 4145, which would establish a National Commission on Regulatory Reform; S. 3604, the Federal Agency Efficiency Act; S. 704, the Regulatory Agencies Independence Act; and, S. 770, the Consumer's Information and Counsel Act, and others. The hearings will be held in room 3302. Dirksen Senate Office Building, on Thursday, November 21; Friday, Novem- ber 22; Monday, November 25; and Tues- day, November 26. The hearings will be- gin at 10 a.m., except that on November 22, the hearings will begin at 9:30 am. Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP75B00380R000700010000-51 ? No'vember 20, 1974 CONGRESSIONAL do the job that needs doing. The federal government should not be expected to bail out the railroads even to the extent of safety needs at taxpayer expense. However, if there were less government economic regu- lation of railroads and the transportation industry in general, sound business prac- tice might provide the money to do the job, while competition might provide the impetus. IS THE UNITED NATIONS RELEVANT ANY MORE? HON. ROBERT J. HUBER OF MICHICAN IN THE HOUSE OF REPRESENTATIVES Wednesday, November 20, 1974 Mr. HUBER. Mr. Speaker, recent years have seen the United Nations change a great deal. We have witnessed the expul- sion of our friend the Republic of China. We have seen an attempt to exclude South Africa entirely. The latest sad epi- sode was the giving of a podium to a ter- rorist leader?Yasir Arafat. A former delegate to the U.N. and also the former Governor of Virginia, Colgate W. Dar- den, Jr., has suggested that now may be the time to abandon the United Nations and find some other way to maintain world peace. Former Governor Darden's speech at the Virginia Military Institute, in turn sparked an editorial in the Rich- mond Times-Dispatch of this same sub- ject. Both hems from that paper of No- vember 12 and 14, 1974, respectively fol- low for the edification of my collea nes: DARDEN PROPOSES REEXAMINDIC TI. LEXINGTON.?POTMer Gov. Colgate W den Jr. said Monday the United N should be abandoned and some othe found to maintain world peace if the structure cannot be changed to "bring a reasonable balance between the me "To achieve world peace, It is my th that some form of collective action offe Dar- ions way .N.'s out ight still the best hope," Darden told the Virgin" //1111- tary Institute corps of cadets. "I do n t be- lieve that world government can be m4tde to work." But, he added, "I'm afraid the United Na- tions offers little real hope. "The structure of the present organization should be reexamined, and if it cannot be re- vamped so as to bring about a reasonable balance between the members, it should be abandoned and some other plan devised." In the meantime, Darden said, "It is im- perative that the United States remain strong militarily and resolute in its determination to protect her interests throughout the world. It is my deeply held belief that only the strong will remain free in the world in which we live." Darden, who served as governor throughout World War II, came to VMI to receive the New Market Medal, the institute's highest awtird. The award was presented during Founders Day ceremonies marking the 135th anniver- sary of the institute. ABANDON THE UN? Normally when an organization is not serv- ings useful purpose, the answer is to reform It or close up shop. But suggestions that this standard be ap- plied to the United Nations are usually dis- missed as the blathering of right-wing ex- tremists. As the actions of a ITN General Assembly -,ntr011ed by the Third World-Communist RECORD ?Extensions of Remarks E 6737 bloc have become ever More bizarre, however, thoughtful Americans are gradually being forced to rethink the question of whether the UN any longer has a reason or a right to exist. Yesterday's appearance-by-invitation be- fore the General Assembly of Yasir Arafat,. the Palestinian terrorist leader, is just one more cause for renewed reflection. When last observed before opening the world forum to Arafat, plotter of hijackings, kidnappings and murders, and unelected representative of a state that doesn't exist, the General Assembly was closing its forum to one of its charter member-states, Souh Africa. Former Virginia Gov. Colgate W. Darden Jr., for one, thinks it is time to start thinking the once-unthinkable: Maybe the UN should be abandoned. Unless it can be restructured into an effective, balanced organization offer- ing real hope for solution of world problems, that should be the case, he told Virginia Military Institute cadets Monday. Mr. Darden, who was this state's World War II governor and U. S. representative to the UN General Assembly in 1955, believes in international cooperation. H the UN is scuttled, an attempt should be made to put something better in its place, in his view. Some form of collective action remains the "best hope" of establishing an enduring peace, but, realistically, the United States must con- tinue to have a strong military and a strong will to protect its freedoms and its vital interests into the indefinite future, he added. Mr. Darden's timely observations on the state of the UN ought to stimulate worth- while debate as to whether America should continue to furnish refuge to a world organi- zation that seems to have lost its moral and intellectual compass. THE VETO OF THE FREEDOM OF IN- FORMATION ACT AMENDMENTS HON. EDWARD R. ROYBAL OF CALIFORNIA IN THE HOUSE OF REPRESENTATIVES Wednesday, November 20, 1974 Mr. ROYBAL. Mr. Speaker, I rise to support the override of the President's veto of H.R. 12471, the Freedom of In- formation Act amendment as an impor- tant step to ending arbitrary and capri- cious Government secrecy. Public confidence in Government is probably at the lowest level in our Na- tion's history. At least a part of the loss of confidence can be traced to the perva- sive secrecy in which Government agen- cies attempt to shroud their activities. In 1966, Congress passed the Freedom of Information Act to insure that the citizens of this country have access to basic nonclassified information concern- ing activities undertaken by our Govern- ment's executive agencies. Since that time, the agencies have established a number of impediments to circumvent the intention of Congress. The major provisions of H.R. 12471 would remove these impediments and re- assert the intention of Congress as stated in the original legislation. First, the bill provides for public ac- cess to records on the basis of reasonable description of the document rather than requiring a specific title or file number as is presently the case in many agencies. Second, it provides that an agency must respond to a citizen inquiry within 10 days of the request. If the agency re- fuses to furnish the requested informa- tion and the citizen appeals that deci- sion, the agency must process the appeal and render a decision within 20 days. Next, the bill provides that courts can conduct an in camera review of docu- ments that have been classified as secret to determine whether the classification was proper under the prevailing statutes and regulations. Finally, in those cases where the courts determine that Government per- sonnel have arbitrarily or capriciously withheld records, the Civil Service Com- mission must conduct an investigation to determine if disciplinary action is warranted. It Is unfortunate that at this time when openness in Government is so cru- cial, the President has seen fit to veto the bill. It is time to reverse our propen- sity for executive branch secrecy by en- acting this bill. Upholding the veto would only continue to sanction the Govern- ment's policies of withholding informa- tion that should be made public. WHAT THE ELECTIONS MEAN HON. BURT L. TALCOTT OF CALIFORNIA IN THE HOUSE OF REPRESENTATIVES Wednesday, November 20, 1974 Mr. TALCOTT. Mr. Speaker, political pundits throughout America have been studying the outcome of the election of November 5 with each formulating their own theories on the results. The products of this brainstorming are diverse and too often merely confirm the preconceived bias of the theoretician. It was refreshing, therefore, to read an editorial of Mr. Tom Nash which ap- peared in the Seaside Post News-Senti- nel, a newspaper serving the 12th Dis- trict of California, which presented some unembellished facts. I commend this article to my colleagues: WHAT THE ELECTIONS MEAN (By Tom Nash) The election of officers for the various offices is behind us with most of us being elated over the outcome (and I personally think this is premature), and some of us with deep regret. Differences are being patched up, and new plans are being implemented to battle infla- tion, the number one problem facing the nation. New ideas to combat the apathy of the American people to insure their involve- ment in their government. It was truly amazing the total number of registered voters who stayed away from the polls, stating that their vote didn't count. The apathy that has been shown clearly re- veals that the American people are totally disgruntled with the two major parties. The Republicans lost favor behind the Watergate situation. The Democrats contin- ued to belabor the point, aided by the press, to such an extent that most people became bored to tears, thereby creating a dangerous condition for the present form of government that has made this country the greatest country in the world. So much noise and bandying of words al- most led this country to a one party system which could have caused a dictatorial form Approved Fok,lelease 2005/06/09 : CIA-RDP75600380R000700010003-5 E: 6738 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 CONGRESSIONAL RECORD-- Extensions of Remarks November 20, 1974 of government that could have wrecked havoc with our constitutional form of government, yet we at at home and refused to intercede by casting our ballot for what we thought was right. The free press has been given an even greater responsibility now than ever in the history of the United States. The responsi- bility of being a watchdog to insure that the American people be kept abreast of what is going on in Congress. Already one of the labor publications has come out with th8 following statement: "The Nation needs a creative and respon- sive Congress that will cooperate with the new President when it feels he is on the right course, but be strong enough to shape needed .Legislation itself when the President's pro- grams are inadequate." On the surface this sounds like a good statement, but can't you see the imposed threat? The Republican party MUST begin their recruitment program immediately, and up- permost on their program must be the re- education of the masses. They must recruit many new faces, and from these must come strong leadership to shape the plans for bal- ancing the scales in 1976. There is no doubt in anyone's thinking that with the Congress being dominated by the Democrats, a Republican President will catch hell trying to implement any programs through the Congress. Yet the blame for the failure will lie at his doorstep, lust as it has been in the past. The best we can hope for, at this point in time, is that we can survive the next two years without going to war. The country clamored for a change. The country received their change, now let us see if it was for the best, or was it just jumping out of the frying pan into the fire. AN AMENDMENT TO RATIONALIZE THE DATING POLICY ON GPO PUBLICATIONS HON. DONALD M. FRASER OF MINNESOTA IN THE HOUSE OF REPRESENTATIVES Wednesday, November 20, 1974 Mr. FRASER. Mr. Speaker, I am sure that my colleagues have shared my an- noyance at finding that many materials issued by the Government Printing Of- fice contain only obscure, hard-to-find references to the date of publication. This creates needless difficulty for con- gressional staff members and other re- searchers, who often must leaf through an entire GPO document before discern- ing whether it is current or out of date. Persons compiling bibliographies have also complained about the difficulty in finding dates of publication in GPO documents. Clearly, a system which specifies a uniform location for the date of publication in all GPO documents is in order. I, therefore, have introduced the following bill: A bill to amend title 44, United States Code, to require that the date of publication of any material printed by the Government Printing Office, or of any material author- ized to be printed under chapter 5 of that title, appear on the first page of the mate- rial Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That chapter 5 of title 44, United States Code, is amended by adding at the end thereof the following new section: "1 518. Date of publication to appear on first Page. "The date of publication of any material for which the printing 13 done at the Gov- ernment Printing Office, or which is printed pursuant to section 502, 503, or 504 of this title, shall appear on the first page on which there is printing in the material.". SEC. 2. The chapter analysis for chapter 5 of title 44, United States Code, is amended by adding at the end thoreof the following new item: "518. Date of publication to appear on first page.". SOCIALIZED MEMCINE?THE CONSTITUTIONAL PROBLEMS HON. EARL F. LANDGREBE OF INDIAN, IN THE HOUSE OF REPPESENTATIVES Wednesday, November 20, 1974 Mr. LANDGREBE. Mr. Speaker, per- haps the aspect of the debate about so- cialized medicine that receives the least attention is the problem of the consti- tutionality of such a program of fedmedicine. I believe that this lack of interest in the problem cif the constitu- tional basis for feclmedicirie is due to the prevailing opinion in this country that the people are and ought to be rulers. Such an opinion leads logically to dis- interest in the Constitution and avid interest in public opinion polls as the proper guide for legislative action. For that reason we are regaled with the latest news from the pollsters about the public's feeling about the "health-care crisis" and the proposed "cures." Gov- ernment by public opinion is precisely what the founders of the American Na- tion sought to avoid. They recognized that there is not, nor ought to be, any unlimited power on Earth, so they estab- lished a government limited by the Con- stitution. The Constitution, as any reader of the Federalist would know, was de- signed to limit the powers of government so that no single man nor group of men can use the government to achieve any ends they desire. The limitations apply as much to the will of a majority as to the will of one man. In the bask questions of government, counting noses is to have as little place as sovereign degrees by a king. But our modern politicians?and I am afraid too many of the American people themselves?tend to think that majori- ties do make right, that li the people want it, they should get it and get it when they want it. I disagree. The tyran- ny of the majority?for it is a tyranny when its power is unlimited?can be as oppressive and as lethal as the tyranny of one man or a small group of men. Un- limited power in the hands of any man will result in a limited life expectancy for other men. In a democracy, the ma- jorities are always changing?one may be in a majority one day and In a minori- ty the next. Far from curbing the appe- tite for power, as some have suggested, this continual changing of the majorities would result in an increasingly fierce war of everyman against everyman, as each struggled to impose his viewpoints on others. The result would be that out of this civil war of pressure groups there would emerge one group so powerful that no one would be able to oppose it effec- tively. This is the path from unlimited democracy to unlimited dictatorship. In both forms of government the constant factor is the unlimited nature of the power that is possessed by the ruler, whether that ruler be a majority or a single man. The emergence of the dicta- tor will act as a curb on the appetite for power in some people and will probably be welcomed by most of the people, for it will stop the chaotic conditions that prevail in such an Unlimited democracy. Right now we are seeing the expansion of the civil warfare of democracy by pressure groups and politicians intent upon socializing our still private medical care system, The struggle will not end until: First, socialized medicine is a real- ity; or second, we return to the concept of limited government and recognize the Constitution, not the Gallup poll, as the source of authority in our system of gov- ernment. If the first of these things hap- pens, then our descent into a totalitarian society?a society in which the govern- ment has unlimited, total power, is guar- anteed. However, if we return instead to the idea of a limited government, then we will not be forced with the prospect of socialized medicine and the totali- tarian State. This is because the Consti- tution does not grant the central govern- ment the authority to intervene in health care in this manner. Anyone who pre- tends to see a .constitutional justifica- tion for socialized medicine or national health insurance has a very vivid imagi- nation. Those people who can see justi- fication for their Socialist programs in the Constitution are usually the same people who accuse conservatives of Im- agining Communists under every bed. They attribute their- powers of imagina- tion to everyone else, particularly to those with whom they disagree. If there Is a constitutional justification for so- cialized medicine, let the proponents of fedmedicine point it out. If there is no constitutional justification for socialized medicine, then let the proponents of fed- medicine keep silent?or let them say publicly that they do not recognize the Constitution as the basis of this Govern- ment's authority and that their programs are aimed at destroying the Constitution. I suspect that they will not do the lat- ter, for it would make unmistakely clear the antifreedom bias of the proponents of socialized medicine. I believe that they will do what subverters of governments have always done: claim that they are acting within the established and legiti- mate order. The proponents of fedmedi- cine will claim constitutional justifica- tion for their programs-probably the "general welfare" clause of the Consti- tution. Unfortunately, such a claim must be based upon misrepresenting of the meaning of the clause, and an appeal to ignorance of what the meaning of the clause is, an ignorance that apparently reaches to the highest levels of govern- ment. The proponents of fedmedicine would like everyone to believe that the "general welfare" clause which appears in article I, section 8 of the Constitutior is an independent grant of powe and above the powers enumer ssee'' Approved For Release 2005/06/09 : CIA-RDP751300380R00070001,003-5 Approved For Release 2005/06/09 : CIA-RDP751300380R000700010003-5._ November 20, 1974 CONGRESSIONAL RECORD ?Extensions of Remarks proclamation of independent Latvia, their 56th anniversary. The depressing fact is, however, that since 1940 Latvia has observed this anniversary under an Ippressive, unwanted Communist rule. fhe passing of this anniversary means yet another year of living on the hope that some day their country will be free again. It has been said of these people that "those who live in their homeland have no freedom, and those who live in freedom have no homeland." I would hope that the United States in negotiat- ing with the U.S.S.R. would continue to seek guarantees of human rights fo vians and other Cornmunist-domi4iated countries, and perhaps, eventually, re- turn of their freedom. FREDA PAYNE HON. THOMAS M. REES OF CALTFORNIA IN THE HOUSE OF REPRESENTATIV Wednesday, November 20, 1974 Mr. REES. Mr. Speaker, it is With pleasure that I take this opportunity to call to the attention of my colleagues to a woman who, in addition to being a great entertainer, should be commended for being a great humanitarian as well. I speak of one of the more important young American entertainers to achieve stardom in the past few years, a fellow Californian, Freda Payne. All too often in the entertainment world, success and recognition take their toll on the human side of the performer. Ms. Payne is an exception. Although most Americans and indeed many music lovers throughout the world know of Ms. Payne's achievements and artistry through her personal appearances, per- formances on television and through her fine recordings, very few people have learned of her selfless and untiring ef- forts on behalf of many humanitarian causes, such as for the battle against sickle cell anemia, as well as for the March of Dimes. I would personally like to extend my deep admiration and re- spect to Ms. Payne for having contrib- uted so much to ease the hardship of human beings in the world. As an indication of the extent of Freda Payne's efforts, earlier this year, she was named a Dame of Honour of the Knights of Malta, internationally recog- nized as one of the foremost organiza- tions devoted to raising funds for the needy, the oppressed and the stricken. In being named for this great honor, Ms. Payne became one of the few women?and the first black woman?to achieve this recognition. I am certain that many of my col- leagues here are familiar with the out- standing nature of the recordings Ms. Freda Payne has produced during the recent past. Needless to say, she has brought the American public and the in- ternational music-minded public great enjoyment in the past several years with her dynamic vocal style, on recordings, in supper clubs, on television and in concerts. Althogh Freda Payne was born in De- triot, and began her musical training in that city, she now makes her home in the State of California, and has truly brought a great deal of pride to all those who reside in our State. Mr. Speaker, may I say that it is a honor for me to lead the applause for this great woman and entertainer. Let the record show that this Congress has rec- ognized and recommended Freda Payne for her outstanding efforts in behalf of those less fortunate than ourselves both at home and throughout the world. FREEDOM OF INFORMATION ACT HON. JAMES C. CORMAN OF CALIFORNIA IN THE HOUSE OF REPRESENTATIVES Wednesday, November 20, 1974 Mr. CORMAN. Mr. Speaker, today I would like to share with my colleagues an editorial which was published in the Los Angeles Times on October 21, 19'74. I believe that it is of special interest to my colleagues and makes an excellent case for overriding the President's veto. The editorial follows: FORD'S ALARMIST VIEW ON SECRECY Vast government departments routinely sit on information that the public should have. A bias toward seorecy is a natural tendency in the bureaucracy. The cold war that followed World War II provided a magic formula for censorship. It was "national security," but the security in- volved was often the security of a depart- ment to be free from public inspection. In response, Congress eight years ago passed the Freedom of Information Act. Its intent was to enforce greater access to information from government. The law brought some im- provement, but it was not as effective as it should have been. Its operation was impeded by bureaucratic delay, heavy costs of court action to force disclosure, and excessive charges levied by agencies for providing re- quested information. Last year, a UB. Supreme Court decision revealed a major weakness in the act. The court ruled that, under the law, the courts had no power to go behind a "classified" stamp on material. If it was classified, it was secret. Earlier this month, Congress sent to Presi- dent Ford's desk a bill to strengthen the 1966 law. The measure set time limits for agency response to requests for information. It al- lowed courts to order the government to pay the legal costs of persons winning suits against government departments under the act. And it permitted court review of classi- fied information to determine whether the material sought under the act was properly classified. In vetoing the bill Thursday, Mr. Ford took particular exception to this provision, assert- ing in our opinion, a thoroughly mistaken and alarmist view that the courts could brush aside even "a determination by the secre- tary of defense that disclosure of a docu- ment would endanger our national security." That is not the intent of the law and, if his- tory is any guide, that certainly will not be the result. The intent of Congress is to stop the abuse of classifying information that by any rational standard cannot be remotely connected to national security. If there is any reasonable basis to uphold such a clas- sification, it would be difficult to imagine that a court would rule otherwise. If that E 6731 occurred, the appellate process is a sure safeguard. Congress should override the President's veto. WE GAVE THOUSANDS BACK TO THE NKVD HON. EDWARD J. DERWINSXI OF ILLINOIS IN THE HOUSE OF REPRESENTATIVES Wednesday, November 20, 1974 Mr. DERWINSKI. Mr. Speaker, at a time when Communist pressures in the Middle East are more threatening than ever and the pressures of other free world nations, in addition to Israel con- tinue to create numerous foreign policy problems for us. The evaluation of cur- rent situations are certainly aided by objective understandings of pertinent history developments. Thus, I was especially interested in an article by Nicholas Bethell in the Sun- day, November 17, Washington Star- News, which I insert into the RECORD at this point, along with the followup arti- cle on the tragic aftermath of the Yalta Agreement: WE GAVE THOUSANDS BACK TO THE NKVD (By Nicholas Bethell) On May 20, 1945, Winston Churchill sent a note to General Ismay, his personal chief of staff: "What is known about the number of Russians taken prisoner by the Germans and liberated by us? Can you discriminate be- tweeli those who were merely workers and those who actually fought against us? "Could I have a further report on the 45,- 000 -Cossacks of whom Gen. Eisenhower speaks? How did they come into their pres- ent plight? Did they fight against us?" Churchill did not follow up his worried questions. On May 29 the Chiefs of Staff ordered Field Marshal Alexander to hand over the Cossacks who were in his terri- tory to Stalin. In fact, repatriation of vir- tually all Soviets in allied hands had already begun without waiting for the order, on the authority of an explicit proviso of the Yalta Agreement. Some extremely bloody operations took place. Repatriation, overall, was for many British soldiers the most disagreeable epi- sode of the whole war. During the Russian Civil War of 1918-20 some of the keenest fighters on the White side were Cossacks. At the beginning of this century there were five million of them in Russia, Most of the Cossacks fought against the new Bolshevik authority and the Red Army. When the revolution was all over and the Reds had won, many thousands of Cossacks fled to the West. It was among Cossacks most of all per- haps that hearts leapt when Hitler invaded the Soviet Union and for a time seemed likely to conquer it. Cossack leaders such as Vyscheslav Naumenko (the stamen of the Kuban Cossacks who in 1920 had been a major-general in the White forces) and the ataman of the Don Cossacks, Pyotr Krasnov, were quick to offer the Germans their serv- ices. In November 1943, the Nazis promised eventually to give the Cossacks hack their traditional lands in the Soviet Union. Four months later they appointed Krasnov and Naumenko to a directorate of Cossack forces within the German army. Another member was T. I. Domanov, Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5 E 6732 CONGRESSIONAL RECORD Extensions ' In the dying months of the war an area around Tolmezzo in the Italian Alps, a few miles from the Austrian. border, was occu- pied and used as a base for 35,000 Cossacks, half soldiers and half refugees. At the end of April 1945, they loaded everything into their horse-drawn carts and within two days the whole community was camped near two Austrian_ villages, infauthen and Kotschach. On May 8, a Cossack delegation drove over the pass to Tolmezzo to tell British forces that they were ready to surrender uncondi- tionally. Zoe Polaneska, a 17-year-old Russian girl from a village near Odessa, a refugee but not a Cossack, remembers the kindness with which they were treated by the British when they arrived at Liens, the surrender point. After crossing the mountains we got little beds to sleep on and blankets and I thought, 'This can't be so bad.' And then I always remember, they gave us three cream crackers at breakfast time and I thought, This is better still.' And then they gave us white bread, pure white, we hadn't seen it for years. I thought, 'This is heaven!' By May 16, according to British figures, there were 22,009 of Domanov's Cossacks under British supervision in the Drau Val- ley-15,380 men, 4,193 women and 2,436 chil- dren. A little further east British soldiers were guarding the 15th Cossack Cavalry Corps, commanded by a German, Lieutenant- General Helmut von Pannwitz, which had surrendered with its full strength of 18,792. Brigadier T. P. Scott, commander of the 38th (Irish) Brigade, came across a regiment of Cossacks, about 400 men, who were in imininent danger of being attacked by a division of Bulgarians. He went to see the Cossack commander, Prince zu Salm. The situation was quite simple, Salm said. The Cossacks would sur- render to the British so long as they were sure that they would not be handed over to the Soviet Union. Scott told Satin that British prisoners were British prisoners, and on this understanding Salm surrendered. The next day Scott's corps commander, Lieutenant-General Charles Keightley, was alarmed to hear that Scott had accepted the Coesacks' surrender and given them certain assurances. He told him of the Yalta Agree- ment. "It was the first I'd heard of it," says' Scott. tinder this agreement, Keightley said, the Cossacks would probably have to be handed over to the Russians. Scott says, "I told him I thought it would be a damn bad show if they were. I'd ac- cepted their surrender and given my word. I got very hot under the collar about It." In fact, in fulfillment of part of the Yalta Agreement, ordets were that everyone of the Cossacks?man, woman and child?was to be handed back to the Soviet authorities, ir- respective of individual wishes and by force if necessary. Lieutenant General Keightley made it clear in an order dated May 24: "It is of the utmost importance that all the officers and particularly senior corn- menders, are rounded up and that none are allowed to escape. The Soviet forces consider this as being of the highest importance and will probably regard the safe delivery of the officers as a test of British good faith." Apart from moral scruples, the British face a practical difficulty. As soon as the Cossacks realized what was to happen to them they would fight. Such considerations persuaded senior of- ficers that trickery and deceit would have to be used. They ordered their subordinates to keep the Cossacks in a state of false secu- rity right to the last moment; only thus could the Cossacks be disarmed, loaded into vehicles and carried east without bloodshed and mass escapes. of Remarks November 20, 1974 On the morning of May 27, British soldiers were read an order from Brigadier Musson calling for the total disarmament of all Cos- sacks by 2 p.m. that day. British officers did their duty with such care and tact that no Cossack suspicions were aroused. Shortly after the disarmament. Davies told the senior Cossack ?ricers that all officers were required to attend a conference which would decide the future of the Cossack units. This was a lie. In fact, there was to be no conference at all. What was planned for the officers was not a discussion but an immedi- ate transfer into the hands of the Soviet authorities. The announcement caused the Cossacks some consternation. Al last their doubts were beginning to grow, and the prospect of being handed over to the Soviets began to seem more fearsomely real. It was the duty of British Major Rusty Davies, who was immensely popular with the Cossacks, to carry out the deception, and today he is amazed at how successfully he did it: "How the hell se lulled them into that, I just don't know." Davies was told that the repatriation order came from higher authority and had been agreed between Stalin and Churchill at Yalta. What he was no t told was that the agreement applied only to people who were Soviet citizens on the outbreak of war in September 1939. Under the agreement, many of the Cossacks gathered at Liens, should not have been due for repatriation at all. Indeed, of the most senior officers, only Do- manov had been a Soviet citizen in 1939. An order was issued from General Keight- ley's headquarters which bore no resem- blance to the terms laid dawn in the Yalta agreement. In this order, tnaole groups and nationalities were earmarl ed for repatria- tion: the Cossacks under Dimanov at Lienz, the 15th Cossack Cavalry Corps under Gen. von Paianwitz, the units under Gen. Audrey Shinn? and Caucasians ur der Gen, Klych Girey. All members of these units were as- sumed to be Soviet, said the order, and "in- dividual cases will not be considered unless particularly pressed." In other words, there was a presumption of "guilt." People were to be handed over to certain imprisonment and possible execution merely for failing to assert strongly enough that they were not Soviet citiAns. Interpreter Olga Rotovaya was present while the officers were being loaded on May 28: "Some of their wives were crying and begging me as interpreter to ask the British officers whether their husbands would return. "Of course they will," the officer told me. "Try to calm the women down. There's no need for them to cry." But the evening passed and there was no sign of the Cossack leaders, At eight o'clock Rotovaya was told that some British officers wanted an interpreter. "Where are the Coesa,ck (Alcoa?" she asked them. "They're not coming back," they told her. "Where are they?" "We don't know. We are only British sol- diers and we carry out the ?Ileac of our superiors." Another woman interpreter; N. Leon- tieva, asked British officers the next day whether or not the Cossack officers were to -be' handed over. She was assured that this would not happen. They were safs and would be accommodated in good conditions. *tasty Davies finally was giveu the most unpleasant task of breaking the truth: They had a sort of camp committee and I asked the heads of this committee to come together. They were quite horrified when I told them, and I was petrified n yself. You see, they had implicit faith in me. That's why I feel sick about the whole thing. Zoe Polaneska, the young Russian girl, remembers, "I put my arms around my ears and said, 'No, I don't want to hear it.' " Davies tried to soothe and reassure He was authorized to tell them, he east that the Soviet authorities had promised to treat all those who were repatriated humanely and decently. The Cossacks almost laughed at such naivete. Davies remembers that some Cossacks brought an old woman toward him. She held out her hands and he could see that she had no fingernails. "The torturers of the NKVD?that's what you're sending us back to!" she told him through an interpreter. British Lieutenant V. B. English was in command of a Royal Artillery detachment guarding the bridge over the river Mur where the transfer took place. He says he asked a Soviet officer what would happen to the Cos- sacks and was told, "The officers will be shot, but the ordinary soldiers will just be sent to Siberia." It was two days before the bulk of the deportations were to start. A number of Cossacks and Caucasians disappeared into the neighboring hills during the ensuing few days. But the vast majority; more than 20,000 people, decided to stay in the valley and resist the oder. Their officers were gone. so they elected a senior sergeant called Kusma Polunin to be their temporary "ate:nate- Polunin addressed a petition to Alec Mal- colm, commanding officer of the troops guarding the area. It began, "We Russians. Cossacks, who evacuated from. Russia on our own will and Who Joined the German ,Army not for the reason to protect the German interests, but bearing in mind exclusively the struggle against the Soviet Union, declare that our return to the Soviet Union is ab- solutely impossible. We prefer death than to be returned to the Soviet Russia, where we are condemned to a long and systematic annihilation." Many went on a hunger strike. Davies told the Cossacks that if they re- sisted they would be loaded by force. Par- ents would be separated from their children. Surely they did not want that? The special horror of the subsequent events at Lienz is that they involved some 4,000 women and 2,500 children and amount almost to an act of genocide, marking as they did the liquidation of a large part of the emigre Cossacks. The affair was not discussed in the British or American press at the time. It suited both sides, the Soviet Union as well as the West, to keep the whole question of forcible repatriation quiet. The former Cossack ataman, Vyachesia,v Naumenko, has called June 1 'the day which, together with the world Liens, is inscribed In letters of blood," The Cossacks were human beings and, al- though they had no claim on the allies' loy- alty, they had a right to expect correct, de.. cent treatment from the army. It is on this basis that one examines British documents on the affair, only recently opened to public view. Alec Malcolm wrote a report which begins: At 0730 hours on June 1st I went with Major Davies to Peggetz Camp. . At the camp I saw a very large crowd of people. numbering several thousand, collected in a solid square with women and children in the middle and men around the outside. A body of 15 to 20 priests were assembled in one part of the crowd, wearing vestments and carrying religious pictures and banners. At 0730 hours these priests began to conduct a service and the whole crowd to chant. The previous evening the priests had de- cided to summon Cossacks to a huge open- air service. At 6 a.m, the priests walked in procession around the camp, gathering people as they want, until by Davies' estimate there was a crowd of 4,000 gathered in a central Approved For Release 2005/06/09 : CIA-RDP75600380R000700010003-5