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December 9, 1974
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Approved For Release 2001/11/01 : CIA-R P76M00 27R00070017Il021-3 S 20814 CONGRESSIONAL RECORD- SENATE December 9, 1974 mind, which persons were felt both to have committed horrible acts, and who had es- caped punishment for such acts. The fact that this treatment is visited solely upon former President Nixon, where whatever justification for the publication of his papers exists as to him exists equally as to other public officials, including Congress- men, is evidence of its individual, punitive aspect. Indeed, specifically designating an individual as an object of supposedly regu- latory legislation is one of the indications of a bill of attainder. See United States v. Brown, 381 U.S. at 447. Thus, the passage of S. 4016 In this climate would raise serious questions as to its legiti- mate purpose and would instead subject it to attack as a bill of attainder. VII. CONCLUSION S. 4016, which was conceived and developed in haste following the pardon of Mr. Nixon, is fraught with a number of substantial Con- stitutional infirmities. The bill is of ex- tremely dubious validity. Mr. ERVIN. I wish to say that I was opposed to the House-passed amend- ments. The PRESIDING OFFICER. The in- itial 2 minutes have expired. Mr. ERVIN. May I have 1 more min- ute? As a realist, I have had to compromise with myself by rejecting the worst House amendment and concurring in the least harmful. I think that the business of es- tablishing study commissions for things that Congress ought to study itself is not very wise. Mr. President, has final action been taken? The PRESIDING OFFICER. The Sen- ator is correct. Mr. ERVIN. Mr. President, I ask unan- imous consent that the Senate return to executive session. Mr. GRIFFIN. Mr. President, I object. I suggest the absence of a quorum. Mr. ROBERT C. BYRD. Mr. President, will the Senator withhold? Mr. GRIFFIN. Yes. Mr. ROBERT C. BYRD. Mr. President, the Senate never went into legislative session. The request was "as in legislative session." The PRESIDING OFFICER. The Sen- ator from North Carolina did ask unani- mous consent that the Senate go into leg- islative session. Mr. ROBERT C. BYRD. I am sorry; I did not understand that. Mr. GRIFFIN. Mr. President, I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call the roll. The second assistant legislative clerk proceeded to call the roll. Mr. GRIFFIN. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. Who yields time? EXECUTIVE SESSION Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that the Senate return to executive session. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. ROBERT C. BYRD. Mr. President, will the Senator from Nevada yield me 30 seconds? Mr. CANNON. I yield. NUCLEAR REGULATORY COMMIS- SION-NOMINATION REFERRED TO COMMITTEE Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that the nomi- nation of Mr. William A. Anders, of Vir- ginia, to be a member of the Nuclear Regulatory Commission, be no longer held at the desk, but that it be referred to the appropriate committee. The PRESIDING OFFICER. Without objection, it is so ordered. NOMINATION OF NELSON A. ROCKE- FELLER TO BE VICE PRESIDENT OF THE UNITED STATES The Senate continued with the consid- eration of the nomination of Nelson A. Rockefeller to' be Vice President of the United States. Mr. GOLDWATER. Mr. President, the nomination of Nelson Rockefeller to be Vice President has presented me with one of the most difficult decisions I have ever confronted as a Member of the Senate. Because of this, I ask unanimous con- sent to place in the RECORD a letter I sent to President Ford explaining why I cannot support his nominee. There being no objection, the letter was ordered to be printed in the RECORD, as follows: U.S. SENATE, Washington, D.C., December 9, 1974. The PRESIDENT, The White House, Washington, D.C. DEAR MR. PRESIDENT: Party loyalty is im- portant to me. I have always tried to sup- port the proposals and policies of the Repub- lican Presidents who have held-office during, my terms in the United States Senate. I ap- preciate all your. reasons for choosing Nelson A. Rockefeller to be your Vice President. I have great admiration for Governor Rockefeller. He is a man of wide experience and many talents. He has conducted himself magnificiently during the drawn-out con- firmation hearings before both the Senate and House Committees. When I met with Mr. Rockefeller after you announced your decision I told him that I expected to be able to support his confirma- tion. I assured him that I had forgiven him for his non-support of my candidacy in 1964, and that I harbored no resentment against anyone for what happened so long ago. My inclination then was to cast my vote for confirmation, but recent disclosures have forced me to re-examine that earlier decision. It is now apparent to me that Mr. Rocke- feller did in effect use his own personal money to accomplish the purchase of political power. I am not questioning Mr. Rockefeller's mo- tives nor am I suggesting that he made any improper use of the political leverage avail- able to him as a result of his gifts and loans to his political associates. In my opinion, there exists in this country a strong suspicion that the tremendous finan- cial power of the Rockefeller family might have a corrupting influence on the political process. The support for Mr. Rockefeller in Arizona is very low. I have received some 4,000 communications from Republicans and not more than 20 percent have expressed support for Mr. Rockefeller. My decision in this matter is made even more difficult by the fact that when I ap- proached Mr. Rockefeller, soliciting funds from the Rockefeller Foundation to assist the Arizona Historical Foundation, of which I am president, he told me that he had nothing to do with the Foundation, but made a personal contribution of $5,000. It is my understanding that he also made a personal contribution tocreate a so-called "Goldwater Chair" at one of the Arizona state univer- sities. I feel that in this letter to inform you of my decision I would be derelict in my duty to my conscience if I did not mention these two examples of Mr. Rockefeller's generosity. Mr. President, I am torn between my desire to abide by your wishes and my feelings that our nation and our party will be better served by the selection of a younger man-one who would not carry the burden of suspicion which is clearly in the public mind regarding the power of the Rockefeller fortune. I have concluded that I cannot vote to confirm your present choice for Vice President. Respectfully, BARRY GOLDWATER. Mr. HELMS. Mr. President, in previous statements I have addressed myself to some basic issues which are inherent in the nomination of Mr. Rockefeller, and perhaps would arise with no other man. I have discussed the controversy which surrounds him and his interconnection with the powerful family dynasty in part I of this series. In part II, I discussed the case of L. Judson Morhouse, and how Mr. Morhouse was central to Mr. Rocke- feller's early political ambitions and suc- cess, a fact which seemed to blind Mr. Rockefeller to certain traits in the char- acter of Mr. Morhouse which ought to have been clearly apparent to any man of ordinary judgment. Instead of taking steps to investigate fully and insure that the laws of New York were impartially enforced, no matter what the embarrass- ment to his administration and to Mr. Rockefeller's Presidential ambitions, Mr. Rockefeller tried to buy Mr. Morhouse's honesty through gifts and insider deals, apparently failing to realize that virtue is not a commodity to be bought and sold. It is a fair conclusion, therefore, that Mr. Rockefeller unwittingly corrupted Mr. Morhouse's sense of values with his lavish gifts, and directly contributed to the personal tragedy of his top - political aide. Indeed, the physical deterioration which accompanied the collapse of Mr. Morhouse's career may well have been an outward sign of the moral sickness which festered In his soul. To all of these moral issues, Mr. Rockefeller seems im- pervious. His repudiation of Mr. Mor- house before the Rules Committee can scarcely be viewed as other than ?a dis- tortion of history that seems intended to mislead the Senate about his rela- tionship with a man upon whom he conferred benefits ultimately worth at least $$900,000. He is obviously insensi- tive toward the inverted morality of making gifts to keep a man out of "temptation," and shows no inclination toward assuming any responsibility for contributing to that man's fall. Finally, his insistence that the corrupt transac- tion between Morhouse and the race- track crowd took place a month later than the facts will allow, and in a con- Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 De:;ember 9,p/ roved For E&s'Ls2,QI /11AZ RECORD 6WN ,72000700170021-3 in the course of which discussion with inti- iuates and friends often plays an integral part. See United States v. Nixon, 42 U.S.L.W. at 5245 & n. 17. It has been long recognized that enforced public exposure of such inherently private aspects of "free speech" has a stifling effect. Courts have not ruled on a First Amend- ment challenge to forced revelation of the unedited stream of individual's comments, public and private for an extended period of time, They have, however, dealt with what must be considered the less severe intrusion of an attempt to discover a simple list of the persons who belong to a political organiza- tion In doing so, they have found the privacy of political association indispensable to the viability of the system of free thought and speech established under our Constitution. NAACP v. Alabama, 375 U.S. 449 (1968). If is hardly a novel perception that com- pelled disclosure of affiliation with groups engaged in advocacy may constitute as effec- tive a restraint on freedom of association as the forms of governmental action upon the particular constitutional rights there in- volved. This Court has recognized the vital relationship between freedom to associate and privacy in one's association." [375 U.S. at 4.32] See also Shelton v. Tucker, 364 U.S. 479 (1960). c * : s s A:- stated by Justice Brennan, ", . . inhi- bition as well as prohibition against the ex- ercise of precious First Amendment rights is a power denied to government." Lamont v. Postmaster General, 381 U.S. 301, 809 (1965). The same principle must be applied to leg- islative attempts to monitor any man's daily political expression Cf. Eastern Rail- road Presidents Conf. v. Noerr Motor Freight, Inc., 366 U.S. 127 (1961). The "chilling ef- fect" of the knowledge that every political utterance or writing, whether tentative or experimental, will be exposed to public scru- tiny would be an intolerable inhibition upon any man's thought and political development. Yet this would be precisely the effect of S. 4016. It seeks to obtain and make avail- able to the public the voluntarily-kept, daily record of a man's tenure in the Presidency. Were the subject anyone other than the former President, were the times any other than these, the extent to which such a scheme undermines the free thought and speech protected by the First Amendment would be obvious. While the theory that every thought of the man occupying the White House is legitimate public business has initial appeal, it is at war with the fact that development of presi- dential political thought develops no dif- ferer_tly from that of any man and is in- hibited by the same factors. The electorate has the right, and indeed the political duty, to monitor the conduct of public officials. It is a duty, however, to monitor the decision made, not the cption considered. There is nothing in the Consti- tution, or in the political theory which it embodies, which argues that officialdom must live in a goldfish bowl. Cf. E.P.A. v. Mink, 410 U.S. 73 (1973); Carl Zeiss Stiftung V. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966). Rather it Is anticipated that those elected to public office will develop and modify their political beliefs and understandings in the same manner as private citizens, that is, through both public debate and private con- ference. Although in the case of executive officials the constitutional interest guaranteed by the First Amendment is similar to that en- compassed by the term "Executive Privilege," and the two in this context are complemen- tary, it is separable In both root and appli- cation. While Executive Privilege has its foundation in practical necessity, behind it rests the more general personal right of the chief executive.,as an individual to think and talk freely among his intimates. Knowledge that notes and tape recordings made for por- sonai use can, by whatever means, be cc n- demned and published will inevitably strait this process. A President as much as any man is guaranteed freedom from such constrai at. As stated by Judge Learned Hand. e s * - [The First Amendment] presupposes th,it right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have stated upon it our all. United States v. Associated Press (52 F. Supp, 362, 372 (S.D.N.Y.,1943). * s To the extent that evidence of criminal wrongdoing is suspected, the Constitution provides formal judicial mechanisms for the discovery of relevant material. United States v. Nixon, supra. If legislative investigation is in order, relevant material can there too be obtained. But the wholesale acquisition of a man's tape recordings and notes, for the simple satisfaction of public curiosity, how- ever crest, is inimical to the First Amei d- ment's guarantees. While the material sought is of unusual Interest to the public, it is not, and was not when compiled, public prop- erty. If it can be taken from any man for the purposes of public dissemination, it can be taken from every man. If it can be taken from a former President, our system of political development through free expres- sion is stifled at precisely the point at which it is supposed to culminate. V. FIFTH AMENDMENT Although President Ford pardoned Richs;d Nixon for all crimes committeed during Mr. Nixon's tenure as President, the Presidert:'s pardon power under Art. II, 12 runs only to "offenses against the United States." This, Mr. Nixon remains subject to state criminal prosecution for any crime committed during his tenure as President. For example, alleia- tions have been publically aired, althouh they are as yet unsubstantiated, that the former President was involved in crimiial conspiracy and tax evasion punishable under California law. To the extent that the publication of in- formation involuntarily obtained under the proposed bill will place in the hands of st8 to officials evidence which might tend to in- criminate the former President, severe Fifth Amendment questions are raised. "Whenever the Court is confronted with the question of a compelled disc:osure that has an incriminating potential, the judic: al scrutiny, in invariably a close one." Cali- fornia v. Byers, 402 U.S. 424, 427 (197;:). Since the Fifth Amendment protects an in- dividual not only against compelled se: (- incriminatory testimony but also agafrst compelled disclosure of potentia:ly incrim- inatory private papers, Boyd v. United Stat.err, 116 U.S. 616 (1886), those questions are raised here. The Supreme Court has held unconstit-a- tional requirements that individuals report potentially incriminating information to t_2e government. Marchetti v. United States, 390 U.S. 47 (1968); Grosso v. United States 390 U.S. 62 (1968); Haynes v. United States, 390 U.S. 85 (1968). The government, of course, has various legitimate needs for pri- vate information, and it can, under proper circumstances, require its submission. Co.,- stitutionality under the Fifth Amendment however, requires that the reporting or din- closure requirement not be aimed at a "highly selective group Inherently suspect of criminal activities." California v. Bye-.'s, supra, at 430. See also Albertsori, V. SACK, 382 U.S. 70 (1965). The mechanism the gov- ernment chooses for attaining involuntary disclosure is, of course, essentially irrelevant to the Fifth Amendment interest involved, 520813 so the fact that S. 4016 contemplates con- demnation and then public disclosure as op- posed to the means used in the cited cases is not important. With regard to S. 4016, the bill could not be more narrowly confined in terms of selec- tively. It is aimed at and solely applicable to one man-Richard Nixon. While most of the cases cited above have involved narrow requests for specific in- formation within certain defined areas, the constitutional infirmity of such statutes is surely not removed by providing that the information forcibly obtained by the govern- ment be all encompassing. The problems with such a bill addressed to a single "sus- pect" individual are augmented rather than decreased. The extreme breadth of the information sought by S. 4016 renders this bill the type of government fishing expedition which the Fifth Amendment privilege against self- incrimination was originally designed to protect against. VI. BILL OF ATTAINDER Article I, Section 9, clause 3, of the Con- stitution states that no bills of attainder shall be passed. This express prohibition on the power of the Federal government to en- a_-t statutes has been broadly interpreted by the courts. Thus, in Ex parte Garland? 4 Wall. (71 U.S.) 33 (1867), the Supreme Court struck down a statute which required that attorneys take an oath that they had taken no part in the Confederate rebellion against the United States before they could practice in federal courts. The Court found that "exclusion from any of the professions or any of the ordinary avocations of life for past conduct can be regarded in no other light than as punishment for such conduct." Id. at 377. In United States v. Lovett, 328 U.S. 303 (1946), the Court struck down a rider to an appropriations act which forbade the pay- ment of any compensation to three named persons then holding office by executive appointment. What these cases have in common with each other and with S. 4016 is the use of law- making powers to punish without a trial an individual or small groups of individuals for certain conduct. What constitutes punish- ment is to be liberally interpreted to effect the remedial purpose of the bill of attainder clause in the Constitution. Thus, denying the ability to practice law before federal courts was punishment, as was withholding person's salaries. On its face, S. 4016 may not .demonstrate a punishing purpose, but such was also true of the statute in Garland. Yet no one can deny the punishing effect of S. 4016. The punishment meted out is the baring of Mr. Nixon's most personal papers and conversa- tions to public scrutiny and ridicule. Indeed, in terms of the suffering it will cause, the effect of such punishment seems much greater than that of merely forbidding a law- yer from practicing law before the federal courts, forcing federal employees to find a new job, or forbidding Communists from holding union office, see United States v. Brown, 381 U.S. 437 (1965). In any case, the damage to reputation and earning capacity is a cognizable effect of the punishment, and are acknowledged as evidence of punish- ment by the Court. United States v. Lovett, 328 U.S. at 314. No doubt the sponsors of S. 4016 are able to recite supposed legitimate bases for the bill, but again each of the laws struck down by the Supreme Court as bills of attainder were defended on the basis that they were exercises of legitimate regulatory powers and not bills of attainder. The Court, however, looked beyond the self-serving justifications for the laws to the motive and underlying purpose of Congress. In each case the Court found an environment where legislation was conceived with specific persons or groups in Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 S20812 . - - - _ - ClONG1kI SSIONAL RECORD - SENA'ti Dece n ber? 9, 1974 teed right of privacy with respect to all per- sons whose conversations were the subject of the tape recordings to be condemned and made public by the bill. Section 6 of the bill gives to the Adminis- trator authority to release the tape record- ings to the public subject to only three re- 'frictions. These restrictions are: (1) "in- t:ormation relating to the Nation's security snail not be disclosed" (section 6(1)); (2) there shall be no release if "the Office of Watergate Special Prosecution Force certifies it writing that such disclosure or access is likely to impair or prejudice an indivdual's right 'to a fair and impartial trial" (section 6 (3) (A) ); and (3) there shall be no release 'if a court of competent jurisdiction deter- mines that such disclosure or access is likely to impair an individual's right to a far and impartial trial" (section 6(3) (B) ). None of these restrictions serves to protect the right of privacy. Thus, we have virtually unchecked authority in the Administrator to release the tapes. As discussed below, (1) there is a privacy interest in the tapes which is recognized by the courts as constitution- ally protected; (2) when Congress legislates to that such a fundamental constitutional right may be affected, it must utilize the narrowest of means to achieve its objectives and cannot leave the protection of the rights to the unrestricted discretion of others; and 13) this bill represents a broad and un- checked grant of authority affecting a fun- damental right and therefore is constitu- tionally impermissible. A. Right to Privacy-a constitutional right. There is a right to privacy which has been recognized by the courts in many contexts. Thus, it has been found in the First Amend- ment, NAACP v. Alabama, 357 U.S. 449 L958), in the Fourth Amendment, Weeks v. United States, 232 U.S. 383 (1914); Silver- thorne Lumber Co. v. United States, 251 U.S. 385 (1920) ; Katz v. United States, 389 U.S. 347 (1967), in the Fourth and Fifth Amend- znents, Boyd v. -United States, 116 U.S. 616 (1886), in the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479 (1965). (Gold- berg, J., concurring), and under a penumbra of the First, Third, Fourth and Fifth Amend- rnents, Griswold v. Connecticut, 391 U.S. 479 (1965). See, generally, Roe v. Wade, 310 U.S. 113,152-53 (1973). Concerning the specific material covered by Section 8 of the bill-the tapes-it is clear from the language of the Supreme Court that the conversations of the persons recorded on the tapes are the type of material encom- passed by the right of privacy. In Katz, supra, the Court stressed that the expecta- tions of persons define the limits of the pro- tection afforded by the Fourth Amendment. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protec- tion. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. at 351-52 (citations omitted) . * It is clear that all persons whose conver- sations were recorded expected that their conversations would not be made public. Most of those who discussed matters in the executive office were actually unaware that their conversations were being recorded, and as to those who were aware, even they be- lieved that the recordings would be pro- tected from public exposure. In Boyd v. United States, supra, the Court gave a sweeping definition of the protection afforded under the combined coverage of the Fourth and Fifth Amendments which it de- rived from the discussion by Lord Camden in Entick v. Carrington and Three Other King's Messengers, 19 Howell's State Trials 1029 (1765). "The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of,the case there before the court with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the in- vasion of his indefeasible right of personal security, personal liberty and private prop- erty; where the right has not been forfeited by his conviction of some public offence- it is the invasion of his sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but-any forci- ble and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime to to forfeit his goods, is within the condem- nation of that fudgment. In this regard the Fourth and Fifth Amendments run almost into each other." 116 U.S. 630 (emphasis added). b * Y F 4 The making public of the taped conversa- tionsof men who believed their confidences were secure would also be a "forcible and compulsory extortion of a man's own testi- mony", and equally abhorrent to the prin- ciples of the Fourth and Fifth Amendments. The bill's forced disclosure of the tapes dictates another "invasion on the part of the government" into "the privacies of life." The essence of the passage quoted above is that the Fourth and Fifth Amendments pro- tect privacy, and it is the unwarranted inter- ference with that privacy which constitutes the gravamen of the offense, not the par- ticular manner in which the invasion is ac- complished or the form in which the privacy interest appears. It would be equally abhor- rent for the Congress to order a general invasion of the privacy of the conversations of persons in the executive offices as it was for the King's Messengers, utilizing a general warrant, to invade the privacy of a man's home. B. Limits on Congressional Relation of Constitutionally Protected Freedom. As is demonstrated above, the right. to privacy is a constitutionally protected free- dom. From that follows certain consequences when Congress proposes to take action that many affect that freedom. b * * * * "When certain 'fundamental rights' are in- volved, the Court held that regulation limit- ing these rights may be justified only by a 'compelling state interest,' . and that legislative enactments must be narrowly drawn to express only legitimate state inter- ests at stake." Roe v. Wade, 410 U.S. 113, 155 (1973) (citations omitted). Although the Court speaks of "state" in- terests, this applies equally to Congress legis- lating the federal area. Aptheker v. Secretary of State, 378 U.S. 500, 507-09 (1964). It should be noted that whether the right of privacy derives from the First Amend- ment, United States v. Robel, 389 U.S. 258 (1987); NAACP v. Alabama, 377 U.S. 288 (1964); NAACP V. Button, 371 U.S. 415 (1963); the Fourth Amendment, Sanford v. Texas, 379 U.S. 476 1965; Weeks v. United States, 232 U.S. 383 (1914); the Fifth Amendment, Aptheker v. Secretary of State, 378 U.S. 500 (1964) ; the Ninth Amendment or a penumbra of the Amendments, Roe v. Wade, 410 U.S. 113 (1973) ; Griswold v. Con- necticut, 381 U.S. 479 (1965): the result is the same--it must be carefully protected againsteoverbroad assertions of authority. The limitation imposed may be expressed as a restriction of Congressional fiction to "narrowly drawn" statutes, Roe v. Wade, supra, or it may be an attack on unfettered discretion bestowed on others. Kunz v. New York, 340 U.S. 290 (1951) ; Cantwell v. Con- necticut, 310 U.S. 296 (1940). Cf. Stanford v. Texas, 379 U.S. 476 (1965); Weeks v. United States, 232 U.S. 383 (1914). The lesson of all these. cases is clear. Fun- damental rights are too precious to have their protection left to the unfettered dis- cretion of public officials. The emphasis placed on this rule is illustrated by Katz v. United States, 389 V.S. 347 (1967), where a search (electronic listening device attached to telephone booth) by law enforcement offi- cers was held improper because there was no Judicial restraint imposed, even though the conduct did not exceed that which would have been permitted under judicial author- ization. C. Section 6 of S. 4016 is Constitutionally infirm. From part A of this discussion we see that. there is a constitutionally protected privacy interest in the tapes. In part B it was shown that where such a constitutionally protected interest is present, there are certain limita- tions imposed on legislation. Thus, there may be interference with the privacy right only in the case of a "compelling interest," and the statute must be drawn in the narrowest manner that will further that interest.-Dele- gations of authority must be carefully cir- cumscribed so that the protection of the right is not left to the mercy of the unfet- tered discretion of a public official. Section 6 fails to meet any of these requirements. There is first the question of what "com- pelling" interest, is asserted to justify this intrusion into the privacy of the subjects of the tapes. No interest is asserted in the bill. If the interest is that of increasing public knowledge of the events that transpired in the executive offices, then that would not suffice to overcome the privacy interest. See E.P.A. v. Mink, 410 U.S. 73, 87 (1973), and cases cited therein, regarding the protection of executive discussions. . This brings us to the second point, that whatever valid interests are to be served can be achieved only by a statute that has a narrower focus. Thus if there are valid needs for the information, for example, as evidence in a criminal proceeding, a valid statute could be drawn with that limitation. In fact, it would appear that release in that case would be available regardless of the exist- ence of a statute. See United States v. Nixon, - U:S. - (1974), 42 U.S.L.W. 5237 (de- cided July 24, 1974) ; Nixon v. Sirica, 487 F. 2d 700 (D.C. Cir. 1973). If public informa- tion is the goal of the statute then there is already a more narrowly drawn statute on the books. See The Freedom of Information Act, 6 V.S.C. ? 552. Finally, is the requirement of a carefully circumscribed range of discretion. 'However. the bill as it is written vests almost com- pletely unbridled discretion in the Adminis- trator of General Services to release the tapes. This delegation of authority provides absolutely no protection for privacy rights and thus violates the final requirement for legislation in this area. N. FIRST AMENDMENT RIGHTS It is submitted that the right to unfet- tered speech is not lost as a consequence of election to high government office. No one, would deny a President's right to speak freely in public debate. Equally as crucial to the principle of free speech as public advocacy is the private for- mulation of political thought and perspec- tive. This is a process of experiment and de- velopment. It is a process of trial and error, Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 December 9, 1974 CONGRESSIONAL RECORD -SENATE will be prejudiced, or if a court determines that a person's right to a fair and flfipartial trial would be prejudiced. 'rho scheme envisaged by S. 4016, there- fore, would In effect reverse both United States v. Nixon, supra; and Committee for Nuclear Responsibility; Inc. v. Seaborg, supra. This is so first because Section 3(b) directs that materials simply "shall . be made availi,ble for use in any judicial proceed- Ing.... "No provision is made for in camera inspection which the Court required in both Nixoiy and Seaborg. In fact the clear intent of the language is to do away with that judi- cially derived requirement. The decision in Nixon. however. is constitutionally based, and the requirement of an in camera inspec- tion is the result of a careful balancing of competing constitutional interests. 42 U.S.L.W. at 5244-45. This careful balancing is destroyed by S. 4016, and Instead all. mate- rial subpoenaed or otherwise shall be made available. Not only does S. 4016 eliminate the constitutional balancing the Supreme Court required in criminal cases, but it also repuciates the decision in Seaborg, a civil case. In Seaborg the District of Columbia Cir- cuit acknowledged the importance of con- fidentiality in contributing substantially to the effectiveness of government decision- makiig. 463 F. 2d at 792. Thus, a demand for materials in discovery proceedings would not defeat: Executive Privilege, rather the court would inspect the material to see if the priv- ilege was rightfully invoked. If it was, then. the. material would not be produced, even if relevant. See Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F. 2d 796, 799 (D.C. Cir. 1971). Thus, S. 4016 not only eliminates the need for in camera inspection, but more importantly it overrules the hold- ing that material for which Executive Privilege is rightfully claimed is Indeed priv- ileged from production in a civil case. Again S. 4016 attempts to overrule judicial, consti- tutional decision by statute. What S. 4016 does to violate Executive Privilege vis-a-vis judicial demands for presidential materials, however, is minor compared to its provision for general public access to all the materials except national secur, ty information. To give authority to the Administrator to allow general public access would be to negate Executive Privilege altogether with no concomitant public inter- est being served in its stead, rather catering only ,o the gross curiosity of the public. To open all the most personal aspects of any person's life to the public for no legitimate reaso.a is a violation of privacy if nothing else, but when that person is also a President it is a most virulent attack on the Separation of Powers. In United States v. Nixon, supra, the Supreme Court unanimously held that presi- dential communications are "presumptively privileged." r a t r ? "Tl:e expectation of a President to the con- fidentiality of his conversations and corres- pondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and added to those value.i the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in presidential deci- sion-making. A President and those who assist him must be free to explore alterna- tives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except pri- vately. These are the considerations justi- fying a presumptive privilege for presidential communications. 42 U.S.L.W. at 5245. ? ? s ? r 'rh. effect of the presumption is to give the privilege effect until it is challenged by a particularized demand for certain materials. Only then is the presumption overcome. 3. 4016's general authority for public access, ]iowever, ignores the presumption and prc- "ides no opportunity for the invocation of the privilege. In short, the constitutionally based privilege, acknowledged by the Supreme Qourt and given effect by lower courts, is to lie eliminated by a mere statute. Becawie oxecut_ve privilege is constitutionally based, ;iowever, it is not subject to repeal or re- i;triction by statutes. Rather statutes must 'themselves conform to the constitutional right of Executive Privilege. Even commentators who have expressed a very circumscribed view of Executive Privilege, for example, Raoul Berger, hate never suggested that Congress has the power t.o make each and every presidential paper and conversation public, willy-nilly without regard to the confidences upon which may y huch conversations and papers were based. :. ather, these commentators have merely oxpressed the opinion that calls by Coi:- l;ress for particular materials necessary for J is consideration of legislation or by the ;:udiciary for relevant evidence have a higher public interest than the executive's generalized need for confidential, commu- nications. This weighing of the conflicting public interests is precisely the approach that was utilized in Senate Select Comml,l- ree v. Nixon, 370 F. Supp. 521, 522 (D. D. C. :.974). See also Nixon v. Since, 487 F. 2d 70,, 116-18 (D. C. Cir. 1973). And it was rec%,- nized in Senate Select Committee v. Nixon, 870 F. Supp. at 524, that even Cohgres3' light to demand information by subpoena is limited to proceedings to aid of Its legisle;- I:ive function. The conclusion to be drawn, therefore, from both the cases and the com- mentators Is that, there is no authority for Congress to require the publication of all presidential papers and conversations. Such an action would violate the Doctrine of fieparaLion of Powers and render the Pres-- dent but a servantof Congress. .The United States Court of Appeals for the District of Columbia circuit recognized this full well in Nixon v. Sirica, 487 F. 2d at 715; We acknowledge that wholesale public access to Executive deliberations and doet-- inents would cripple the Executive as a f*-equal branch. ? ? a a r Such could be the result of S. 4016, and Ior that reason It is of extremely dubioi:=s Constitutional validity. C. Former Presidents' Rights to Invoke Lxecutive Privilege. The question may be raised whether a former President has the authority to Invoke Executive Privilege for materials generated during his presidency, but the rationale behind Executive Privilege and the intere:rt it serves compels the answer that a former President may indeed invoke Executive ]Privilege in the same manner as a sitting President. This is so because the public interest in the confidentiality of executive discussions requires that those discussions remain confidential indefinitely, not to be publicized as soon as the President leavers c)ffice, for if these discussions were to be- come public after the President leaves office, future discussions with future Presidents would ever after-be chilled by the knowled?e that within at least eight years those discu. - .ions could be public. Viewed another wa`d. the invocation of Executive Privilege is not e.o much to protect the content of the par- t icular discussions demanded as it is to pre- fect the expectation of confidentiality which enables future discussions to be free and crank. That expectation of confidentiality would be destroyed, and the public intere., t which It serves with it, if the mere leaving of office would destroy that confidentialit.1, As early at 1846 this prb}ciple was recognized and honored by President Polk. Richardson, S20811 Messages and Papers of the Presidents, Vol. IV, 433-34. Harry S. Truman in 1953, having returned to private life, was subpoenaed by a House committee to testify concerning matters that transpired while he was in office. Refusing by letter, he explained that to subject former Presidents to inquiries into their' acts while President would violate the separation of powers. It must be obvious to you that if the doc- trine of separation of powers and the inde- pendence of the Presidency is to have any validity at all, it must be equally applicable to:a President after his term of office has ex- pired when he is sought to beexamined with respect to any acts occuring while he is President. 'rho doctrine would be shattered, and the President, contrary to our fundamental theory of constitutional government, would become a mere arm of the Legislative Branch of the Government if he would feel during his term of office that his every act might be subject to official inquiry and possible dis- tortion for political purposes. The House committee accepted the letter and did not attempt to enforce the sub- poena, indicating perhaps its concurrence with President Truman's claim of privilege. D. Custody as an Element of the Privilege. The above discussion has dealt with the constitutional violation of Executive Priv- ilege committed by the disclosure provisions of S. 4018. In addition, however, serious con- stitutional questions are raised by the mere custody provisions set forth in the bill. That is, while it is clear that Executive Privilege limits 'the ability of Congress or courts to disclose presidential materials, it may also be that Executive Privilege extends to at- tempts merely to wrest custody of privileged materials from a President or former Presi- dent even with supposed safeguards against their disclosure. There are no cases on point or examples of similar actions to answer this question, but the policy considerations are telling to support a claim that privileged materials cannot even be wrested from the custody of the President unless and until a court has determined that they may at least be exam- ined in camera. The policy served by Executive Privilege is advanced most effectively by maintaining the custody of the privileged materials in the person entrusted with the right of as- serting that privilege, for without custody he is unable to insure that attempts to-gain ac- cess to privileged material will be resisted or tested by the courts. Thus, separation of custody from the person responsible for safeguarding the confidentiality of the ma- terials separates the function from the re- sponsibility for it in violation of the most elementary laws of management efficiency. The President or former President is the one individual with the interest in assuring con- tinuing confidentiality; the Administrator, has-no such Interest-and therefore is not the proper person to maintain custody. More- over, the President is the person with the knowledge of what needs to be maintained as confidential and what not. All these considerations suggest that the President or former President should retain custody of the privileged materials, and that a statute which wrests this privileged mate- rial completely from his control violates the Separation of Powers by removing executive material from the executive and by under- mining the privilege by separating the cus- todian of the materials from the defender of the privilege. Iii. RIGHT OF PRIVACY Section 6 of S. 4016 presents another con- stitutional Issue. It would result in an abridgement of the constitutionally guaran- Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 S 20810 Approved For Release 2001/11/01 : CIA-RDP76MOO527R000700170021-3 CONGRESSIONAL RECORD -SENATE December 9, 1974 across the board. However, I fail to com- prehend the distorted logic that resulted in the recommendation to create yet an- other commission to pursue this effort. Two bills on this point are currently pending in this body (S. 2951 by Senators BAYH, RIBICOFF, CHILES and PERCY and S. 4080 by the Senator from Nebraska) and on October 3, we received assurances that hearings would be held on the mea- sures in January or February. Why can not the Congress assume its responsibil- ity to deal with this matter directly? Congress should do its own work on this matter and should not delegate its re- sponsibility to yet another study com- mission. In title 2, there is an effort to create a public study commission for the pur- pose of going into the broad subject of documents of all Members of Congress and other officials, as I understand it, to determine the feasibility of making these documents government property. Mr. President, as I just stated, we were assured during the debate on this bill that the Committee on Government Op- erations, early in this coming year and in the new Congress, would consider that subject on its broad basis and that the matter would be treated on a legislative basis, rather than on the basis of creat- ing an extensive, a time-consuming and a natural- and human-resources-ex- pending operation consisting of a study commission. The PRESIDING OFF ICEI;. The Sen- ator's time has expired. Mr. HRUSKA. While I object to the conclusion of title 2 in the bill, it is not my purpose to hold up the bill. If there is a disposition on the part of the Senate to approve it in its amended form, so be it. But I express the hope that in due time, in the January coming, there will be a bill introduced on this subject, that the chairman of the Committee on Gov- ernment Operations will hold the hear- ings contemplated and that one of the products of any legislation that would be forthcoming as a result of those hearings, would result in a repeal of the law which establishes this commission as contained in title 2 of this bill. I think that would make a better, tighter operation for properly legislating, rather than spread- ing the subject out in such a fashion that it will take an interminable length of time, in addition to the useless ex- pense which would otherwise be incurred. I yield the floor. - EXHIBIT 1 STAFF MEMORANDUM Re S. 4016, a bill to protect and preserve tape recordings of conversations involving former President Richard M. Nixon and made during his tenure as President, and for other purposes. Set forth below is an analysis of the fun- damental Constitutional issues raised by the above-noted bill. 1. EMINENT DOMAIN S. 4016 would condemn all the papers and materials which constitute the Presidential historical material of Richard Nixon as de- fined by Title 44, U.S.C. ? 2101 as well as all tape recordings of all conversations which were caused to be recorded by a Federal officer or employee and which involve either Richard Nixon or any Federal employee between Janu- ary 20, 1969 and August 9, 1974. The power of eminent domain is said to exist as an attribute of sovereignty separate from any written constitution. Boom Co v. Patterson, 98 U.S. 403, 406 (1878). The Fed. eral power of eminent domain, however, is limited by the grants of power in the Con- stitution, so that property may be taken only for the effectuation of a granted power. United States v. Gettysburg Electric Ry. Co., 160 U.S. 668, 679 (1896). This is but a recog- nition that the Federal government is a gov- ernment of limited powers, and for property to be taken for a "public use" by the Fedreal governs lent, that public use must be one within the enumerated powers of the Federal government. Admittedly, the interpretation of "public use" for purposes of Federal condemnation has been broadly construed, United States ex rel. TVA v. Welch, 327 U.S. 646, 552 (1946), but this is only to give effect to the Necessary and Proper Clause. See Corwin, The Constitu- tion 336 (1973). While certain "Presidential historical materials" might be justifledly ob- tained by eminent domain because of a pecu- liarly public interest, e.g., materials necessary for the ongoing functions of government, ma- terial relating to the national security, etc., S. 4016 does not attempt to distinguish be- tween such necessary materials and other unnecessary materials. Yet the power of emi- nent domain as a sovereign attribute only extends to that property which is necessary to advance the government's legimitate pub- lic interest. See United States v. Lynah, 188 U.S. 445, 465 (1903). ' Clearly the most personal papers of former President Nixon would not be necessary for any legitimate public use, for Presidential "historical material," as defined by 44 U.S.C. ? 2101, would include not only official papers, but Christmas cards, personal letters, per- sonal diaries, etc. Therefore, because all tapes and all Presidential historical materials are condemned'by S. 4016, it would seem that the power of eminent domain is being used here, at least in part, for other than a public use. This threatens the constitutionality of the whole bill despite the fact that the proposal contains the customary severability clause. To cure this deficiency it woi)ld appear that the condemnation of Presidential materials and tapes must be limited to those particular materials which are necessary for some specific reason. This exercise of eminent domain in S. 4016, moreover, is of a novel type-extending to literary property, personal papers, and the most personal of possessions, indeed the innermost thoughts of Richard Nixon as he expressed or recorded them. Not only is the subject matter of the condemnation novel, but the extent of it is unique--extending to every scrap of paper produced in the White House, personal or official, whether existing there as a home or office, for over five years. This is without precedent and contemplates an invasion of privacvy unparalleled in Con- gressional history. In stark contrast to the wholesale condem- nation proposed by S. 4016 is the approach. used by Public Law 89-318, 79 Stat. 1185 (1965). There evidence accumulated by the Warren Commission was to be considered by the Attorney General in order to determine which particular items of evidence were necessary for the United States to retain. The items so determined were condemned, and provision was made for just compensation. This exercise of eminent domain demon- strates a responsible and constitutional ap- proach of condemning only that property necessary for the public use. II. EXECUTIVE PRIVILEGE A. Executive Privilege as a Constitutional Right. In United States v. Nixon, - U.S. - (1974) 42 U.S.L.W. 5237, 5244 (decided July 24, 1974), the Supreme Court unanimously recognized the existence of a constitutionally based Executive Privilege. Executive privilege may be considered to have three aspects-first, with reference to a judicial demand for information or ma- terials; second, with reference to a Congres- sional demand; and third, with reference to the public at large. Further, the judicial demand aspect may be separated into cases where the demand is for evidence relevant to a criminal trial, e.g., United States v. Nixon, supra, and cases where the demand is merely for discovery material in a civil case, e.g., Committee for Nuclear Responsi- bility, Inc. v. Seaborg, 463 F. 2d 788 (D.C. Cir. 1971); Nader v. Butz, 60 F.R.D. 381 (D.D.C. 1973), appeal pending. The thrust of Nixon was that in a criminal case if the evidence was indeed determined to be rele- vant after in camera inspection, then the privilege would be defeated. In Seaborg, how- ever, a civil case, the in camera inspection was merely to determine if the privilege was rightfully claimed, in which case the ma- terial would remain confidential and the privilege would be upheld. Congressional demands for material also may fall into two categories. The first would be a normal committee request, demand, or subpoena for material which may be re- jected on the basis of Executive Privilege where it is deemed by the President that the production of such material would be detrimental to the functioning of the Execu- tive Branch. This at least has been the con- sistent practice by Practically every adminis- tration and acceded to by Congress. This should be contrasted with a demand for material pursuant to an impeachment in- quiry, which some presidents have acknowl- edged would require production of any and all executive material. See e.g., Washington's statement, 5 Annals of Congress 710-12 (1796), Finally, there is the demand by stat- ute- for general public access to information. This last is the situation presented by S. 4016. The analysis of the different situations in which Executive Privilege may be invoked and its differing weight and treatment is instructive, for it, not surprisingly, reveals that the more particularized and the more compelling the demand for material is, the. less weight Executive Privilege has. Thus, in Nixon, the Court acknowledged that a- generaI claim of privilege depends "on the broad, undifferentiated claim of public in- terest in the confidentiality of such con- versations ," 42 U.S.L.W. at 5244, and it was for that reason that the privilege would fail against a showing of particular- ized need in a criminal trial. The importance of that public interest in confidentiality, nevertheless, was emphasized. "The privilege is fundamental to the operation of govern- ment and inextricably rooted in the separa- tion of powers under the Constitution. (cit- ing cases]." Id. at 5245. The conclusion, therefore, is clear that absent such a partic- ularized need for evidence in a criminal trial, the public interest in fostering free and frank discussion, by protecting it with confidentiality, would serve to 'sustain a claim of Executive Privilege. The -device of in camera inspection reflects this under- standing. Yet S. 4016 would jettison this acknowledged public interest and authorize general public access to all presidential con- versations without any showing of need for that access, particularized or otherwise. B. Disclosure of PrivilegedMaterial. S. 4018 contemplates that former President Nixon's presidential tapes and materials shall he made available "for use in any judicial proceeding or otherwise subject to court sub- poena or other legal process." (Section 3(b) ), Moreover, Section 6 of the Bill directs the Administrator to issue regulations governing access to the tapes so as to authorize him to allow general public access to each and every Presidential conversation recorded be- tween 1969 and 1974 with but three restric- tions-if national security is involved, if the Special Prosecutor determines that an in- dividual's right to a 'fair and impartial trial Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 Deti;ember 9, 1974 CONGRESSIONAL RECORD -SENATE. On page 8, line 22, delete "104" and insert in lieu thereof the following: "103". On page 9, line 3, delete "104" and insert In lieu thereof the following: "103". On page 9, line 1, delete the following: "cur-ent". On page 9, delete all the language between lines 4 and 15, inclusive. On page 9, line 18, delete "104" and insert in 1t "ii thereof the following: "103". On page 10, line 4, delete "105" and insert In lieu thereof the following: "104". Ot: page 11, delete all the language lines 1 and 7, inclusive, and insert in lieu thereof the following: "Ia9) the need to provide public access to those materials which have general historical significance, and which are not likely to be related to the need described in paragraph 1), under procedures comparable to those used to provide public access to the materials of recent former Presidents;" On page 11, line 5, delete after "(1)" the remainder of the line as well as all of line 6 and "of former Presidents" on line 7. Or, page 12, line 6, add after "power of the" the following: "Senate and the"; On page 12, line 7, after "Representatives", insect the following: "respectively,"; On page 12, line 8, delete "the House", and insert in lieu thereof the following: "each House, respectively,"; On page 12, delete the language in line 12 and Insert in lieu thereof the following: "of either House to change such rules (as far as relating to the procedures of that House) at"; On page 12, line 14, after "rule of" delete "the" and insert in lieu thereof the follow- ing: "that"; On page 12, line 15, delete "in the House of" On page 12, line 16, delete "Representa- tives;" On page 12. line 17, after "House", insert the following: "or by the President of the Senate, as the case may be"; On page 13, line 10, delete "in the House of Representatives". On page 13, line 24, delete the period (".") and Insert in lieu thereof the following: "(d) the provisions of this title shall not In any way affect the rights, limitations or exemptions applicable under the Freedom of Information Act; 5 U.S.C., sec. 552, at seq." On page 14, delete all the language be- tween lines 2 and 13, inclusive, and insert in lieu thereof the following: "SFc. 105. (a) The United States District Court for the District of Columbia shall have the exclusive jurisdiction to hear challenges to the legal or constitutional validity of this title or of any regulation issued under the authority granted by this title, and any ac- tion or proceeding involving the question of title, ownership, custody, possession, or con- trol of any tape recording or material re- ferred to in section 101 or involving payment of an?f just compensation which may be due In connection therewith. Any such challenge shall be treated by the court as a matter re- quiring immediate consideration and resolu- tion, and such challenge shall have priority on the docket of such court over other cases." On page 14, between lines 21 and 22, in- sert the following new subsection: "(c) If a final decision of such court holds that any provision of this title has deprived an individual of private property without just compensation, then there shall be paid out of the general fund of the Treasury of the United States such amount or amounts as may be adjudged just by that court." On page 14, delete the language on lines 22 through 25, inclusive; On page 15, delete the language on lines 1 through 9, inclusive. On page 15, line 11, delete "108" and insert In lieu thereof the following: "106". Mr., ERVIN. Mr. President. I accept the Senator's amendment as a substitute for that part of my motion which asks that the Senate concur in the House- passed amendment in the nature of a substitute, subject to the following amendment, and set out there the amendment offered by the Senator from Wisconsin? The PRESIDING OFFICER. Without objecion, it is so ordered. Mr. NELSON. As I understand it, the amendment that the Senator from Wis- consin sent to the desk will be considered as a substitute for the amendment pro- posed a few moments ago by the Sen- ator from North Carolina. The PRESIDING OFFICER. Witho :;t objection, it is so ordered. The question is on agreeing to the mo- tion of the Senator from North Carolina concurring in the House amendment with the amendments of the Senator from Wisconsin. The motion was agreed to. Mn ERVIN. Does the Senator have any further statement to make on this matter? Mr. HRUSKA. Mr. President, what is the pending business? The PRESIDING OFFICER. The 'ac- tion is concluded on that matter. Mr. HRUSKA. The amendment is i,greed to, and we are now on the bill it- ielf, with amendments? Mr. ERVIN. Mr. President, we have concurred in the House amendment sub- ;iect. to this amendment. The PRESIDING OFFICER. The Ser;- ,ltor is correct. Mr. ERVIN. Mr. President, I yield whatever time I have to the Senator :rom Nebraska. Mr. HRUSKA. I thank the Senator.- Mr. President, I have just a few brief remarks that cover two points. One is a reiteration of my opposition to title I of the bill proper. The second involves the ill-advised title II. When S. 4016 was before tl7..e Senate earlier this session, I made known my opposition to the bill at that time be - cause of six rather fundamental consti- 1-utional issues which were presented by the measure. The first problem posed by the bill re- lated to the novel type of eminent do- main which it contemplates. While Con- ?;ress might be justified in obtaining by eminent domain those particular mate- rials which are necessary for specific reasons of public interest, S. 4016 would r,uthorize a wholesale taking of literary property, personal papers, and the most personal of possessions of Richard Nixon IS he expressed or recorded them. In- cluded would be not only official paper. . but Christmas cards, personal letters. c farces, and the like. This view of eminent comain Is without precedent and con- templates an unparalleled invasion of privacy. The second issue involved the appro- priate scope of executive privilege. In this regard, I noted that S. 4016 did not a bide by the-Court's teaching in the case cf United States against Nixon with re- spect to judicial demands for Presiden- rent. These rules should be well-con- tlal materials and with respect to its pro- sidered, should protect against political lsion for general public access to all exploitation and unnecessary invasions of rlaterials except national security Infor- privacy and should apply evenhandedly S 20809 mation. In these particulars, the bill appeared to be designed to cater more to the curiosity of the public than constitu- tional tenets. The third issue which I aired was the potential for inadvertent abridgment of the constitutionally guaranteed right of privacy of all persons whose conversa- tions were the subject of the tape record- ings to be condemned and made public by the bill. My reading of section 6 of the bill led me to the conclusion that the broad delegation of authority to the Ad- ministrator of General Services to re- lease Presidential tapes provides abso- lutely no protection for, privacy rights and thus violates the requirements for legislation in this area. Three more issues of constitutional di- mension were also raised. How does the bill impact upon the first amendment right to unfettered speech? Is it violative of former President Nixon's fifth amend- ment privilege against self-incrimina- tion? Does the measure constitute a bill of attainder expressly prohibited by article I, section29, clause. 3, of the Con- stitution? Mr. President,. for the benefit of my colleagues, I ask unanimous consent to have'printed in the RECORD at the conclu- sion of my remarks a memorandum which was reprinted in the RECORD dur- ing the consideration of this bill in Octo- ber, and which discusses each of these issues. It concludes that the bill simply does not pass constitutional muster. The PRESIDING OFFICER. Without objection, it is so ordered. (See.exhibit 1.) Mr. HRUSKA. S. 4016 was originally conceived in great haste within the Gov- eminent Operations Committee following the pardon of former President Nixon. However, in the intervening months we have witnessed developments that have operated to insure the security of the former President's tapes and ma- terials and to provide necessary access for. law enforcement purposes. Indeed, it might be that further refinements of the rules governing access to these ma- terials will be forthcoming. Surely there is no reason for precipitous action at this time. Mr. President, title I of the bill which is the subject of the Senate's attention at this time mirrors S. 4016 as it passed the Senate earlier in October. Because of the serious constitutional issues raised, I am fundamentally opposedto the pas- sage of this measure. Moreover, the major substantive change that the House has made in this bill-the addition of title II-actually makes it even more objectionable. Title II would create a "Public. Docu- ments Commission" composed of 17 members to study problems concerning "the control, disposition, and preserva- tion" of records "produced by or on be- half of Federal officials," including legis- lators and judges. It is clear that there is a need for rules governing access to the materials of all Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 S. 20808 Approved For RelT6$MS1S1I8JVACI,IARR00?ff ,RqF001700211~ecember 9, 1.M, "(B) one Member of the House of Repre- sentatives appointed by the Speaker of the House upon recommendation made by the minority leader of the House; "(C) one Member of the Senate appointed by President pro tempore of the Senate upon recommendation made by the majority leader of the Senate; "(D) one Member of the Senate appointed by the President pro tempore of the Senate upon recommendation made by the minority leader of the Senate; "(E) one Justice of the Supreme Court, appointed by the Chief Justice of the United States; "(F) one person employed by the Executive Office of the President or the White House Office, appointed by the President; "(G) three appointed by the President, by and with the advice and consent of the Sen- ate, from persons who are not officers or employees of any government and who are specially qualified to serve on the Commission by virtue of their education, training, or experience; "(H) one representative of the Department of State, appointed by the Secretary of State; "(I) one representative of the Department of Defense, appointed by the Secretary of Defense; "(J) one representative of the Department of Justice, appointed by the Attorney Gen- eral; "(K) the Administrator of General Services (or his delegate); "(L) the Librarian of Congress; "(M) one member of the American His- torical Association, appointed by the counsel of such Association; "(N) one member of the Society of Ameri- can Archivists, appointed by such Society; and "(O) one member of the Organization of American Historians, appointed by such Or- ganization. "(2) No more than two members appointed under paragraph (1) (G) may be of the same political party. "(b) A vacancy in the Commission shall be filled in the manner in which the original appointment was made. "(c) If any member of the Commission who was appointed to the Commission as a Member of the Congress leaves such office, or if any member of the Commission who was appointed from persons who are not officers or employees of any government be- comes an officer or employee of a govern- ment, he may continue as a member of the Commission for no longer than the sixty- day period beginning on the date he leaves such office or becomes such an officer or em- ployee, as the case may be. ".(d) Members shall be appointed for the life of the Commission. "(e) (1) Members of the Commission shall serve without pay. "(2) While away from their homes or reg- ular places of business in the performance of services for the Commission, members of the Commission shall be allowed travel expenses in the same manner as persons employed in- termittently in the service of the Federal Government are allowed expenses under sec- tion 5703(b) of title 5, United States Code, except that per diem in lieu of subsistence shall be paid only to those members of the Commission who are not full-time officers or employees of the United States or Members of the Congress. "(f) The Chairman of the Commission shall be designated by the President from among members appointed under subsection (a) (1) (G). "(g) The Commission shall meet at the call of the Chairman or a majority of its members. "? 3319. Director and staff; experts and consulants "(a) The Commission shall appoint a Di- rector who shall be paid at a rate not to ex- ceed the rate of basic pay in effect for level V of the Executive Schedule (5 U.S.C. 5316). "(b) The Commission may appoint and fix the pay of such additional personnel as it deems necessary. "(c) (1) The Commission may procure tem- porary and intermittent services to the same extent as is authorized by section 3109(b) of title 5, United States Code, but at rates for individuals not to exceed the daily equiv- alent of.the annual rate of basic pay in effect for grade GS-15 of the General Schedule (5 U.S.C. 5332). "(2) In procuring services under this sub- section, the Commission shall seek to obtain the advice and assistance of constitutional scholars and members of the historical, ar- chival, and' journalistic professions. "(b) Upon request of the Commission, the head of any Federal agency is authorized to detail, on a reimbursable basis, any of the personnel of such agency to the Commission to assist it in carrying out its duties under section 3315 through 3324 of this title. 3320. Powers of Commission "(a) The Commission may, for the pur- pose of carrying out its duties under sections 3315 through 3324 of this title, hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence, as the Commission may deem desirable. "(b) When so authorized by the Commis- sion, any member or a&ent of the Commis- sion may take any action which the Com- mission is authorized to take by this section. "(c) The Commission may secure directly from any department or agency of the United States information necessary to enable the Commission to carry out its duties under section 3315 through section 3324 of this title. Upon request of the Chairman of the Commission, the head of such department or agency shall furnish such information to the Commission. "? 3321. Support services "(a) The Administrator of General Serv- ices shall provide to the Commission on a reimbursable basis such administrative sup- port services and assistance as the Commis- sion may request. "(b) The Archivist of the United States shall provide to the Commission on a reim- bursable basis such technical and expert ad- vice, consultation, and support assistance as the Commission may request.. "? 3322. Report "The Commission shall transmit to the President and to each House of the Congress a report not later than March 31, 1976. Such report shall contain a detailed statement of the findings and conclusions of the Cotmis- sion, together with its recommendations for such legislation, administrative actions, and other actions, as it deems appropriate. 3323. Termination "The Commission shall cease to exist sixty days after transmitting its report under sec- tion 3322 of this title. "? 3324. Authorization of appropriations "There is authorized to be appropriated such sums as may be necessary to carry out section 3315 through section 3324 of this title.". TECHNICAL AMENDMENT SEc. 203. The table of sections for chapter 33 of title 44, United States Code, is amended by adding at the end thereof the following new items: "3315. Definitions. "3316. Establishment of Commission. "3317. Duties of Commission. "3318. Membership. "3319. Director and staff; experts and con- sultants. "3320. Powers of Commission. 3321. Su port services. 3322. Reports. "3323. Termination. "3324. Authorization of appropriations.". Mr. ERVIN. Mr. President, I move that the Senate concur in the House amend- ment in the nature of a substitute, with the following amendment: That section 107, which appears on lines 23, 24, and 25 of page 14, and lines 1 through 9, inclusive, on page 15, be stricken, and that section 108, which appears on line 11 -of. page 15 of the House-passed bill, be re- numbered as section 107. Mr. NELSON. Mr. President, will the Senator yield for a question? Mr. ERVIN. I yield. Mr. NELSON. I have an amendment that encompasses the amendment of the Senator from North Carolina plus a num- ber of technical changes that should be included. They have been supplied to the Senator from Nebraska. I am wondering whether it would be tidier if the Senator withdrew- his amendment and I sent this amendment to the desk, of which the Senator from Nebraska has a copy, which amendment would do precisely what the Senator from North Carolina proposes in his amendment, plus a number of technical amendments that are acceptable on the House side. Mr. ERVIN. In other words, the Sen- ator's amendment would cover the same ground I have covered and contains some additional matters? Mr. NELSON. That is correct. Mr. ERVIN. The Senator, in effect, suggests that I amend my motion so. as to move that the Senate concur in the House-passed amendment in the nature of a substitute, subject to the amend- ment phrased as the Senator from Wis- consin has phrased it. Mr. NELSON. Yes, which embraces the amendment which the Senator has just proposed, along with several other tech- nical points. Mr. HRUSKA. Mr. President, will the Senator yield? Mr. NELSON. Yes. Mr. HRUSKA. This matter has been discussed informally with the Senator from Nebraska This group of amend- ments submitted by the Senator from Wisconsin does include the amendment just described by the Senator from North Carolina. S-,cause of the cross-refer- ences, it would be more advantageous to consider these technical amendments to- gether with the amendments proposed by Senator ERVIN en bloc, so that there will be proper sequence and proper cross- referencing. I have no objection to the considera- tion of the amendments on that basis. The PRESIDING OFFICER. The amendment will be stated. The legislative clerk proceeded to read the amendment. Mr. NELSON. Mr. President, I ask unanimous consent that further reading of the amendment be dispensed with. The PRESIDING OFFICER. Without objection, it is so ordered. The amendment is as follows: On page 8, line 4, after the word "as" add the following: "hereafter". On page 8, line 21, after the word "pur- pose", delete the comma (",") and add the following: "which is consistent with the pro- visions of this title, subsequent and"; Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 December 9, 1974Approved Eff ~~6 JJ1 -KECc3H-1-RD5J1tilA'TE27R000700170021-3 S,20807 the tape recordings and other materials re- ferred to in section 101. Such regulations shall take into account the following factors: (1) the need to provide the public with the full truth, at the earliest reasonable date, of the abuses of governmental power popularly identified under the generic term "Water- gate"; (2) the need to make such recordings and materials available for use in judicial pro- ceedings; (3) the need to prevent general access, ex- cept in accordance with appropriate pro- cedures established for use in judicial pro- ceedings, to information relating to the Nation's security; (4) the need to protect every individual's right to a fair and impartial trial; (5) the need to protect any party's oppor- tunity to assert any legally or constitution- ally based right or privilege which would prevent or otherwise limit access to such recordings and materials; (6) the need to provide public access to those materials relating to the Presidency of Richard M. Nixon which have general his- torical significance, and which are not likely to be related to the need described in para- graph (1)? in a manner which is consistent with procedures which have been used to provide public access to materials of former Presidents; and (7) the need to give to Richard M. Nixon, or his heirs, for his sole custody and use, tape recordings and other materials which are not likely to be related to the need de- scribed in paragraph (1) and are not other- wise of general historical significance. (b) (1) The regulations proposed by the Administrator in the report required by sub- section (a) shall take effect upon the ex- piration of ninety legislative days after the submission of such report, unless such reg- ulations are disapproved by a resolution adopted by either House of the Congress during such period. (2) The Administrator may not issue any regulation or make any change in a regula- tion if such regulation or change is disap- proved by either House of the Congress under this subsection. (3) The provisions of this subsection shall apply to any change in the regulations pro- posed by the Administrator in the report re- quired by subsection (a). Any proposed change shall take into account the factors described In paragraph (1) through para- graph (7) of subsection (a), and such pro- posed change shall be submitted by the Administrator In the same manner as the re- port required by subsection (a). (4) Paragraph (5) is enacted by the Con- gress- (A) as an exercise of the rulemaking power of the Houseof Representatives, and as such it shall be considered as part of the rules of the House. and such rules shall supersede other rules only to the extent that they are inconsistent therewith; and - (B) with full recognition of the constitu- tional right of the House of Representatives to change such rules at any time, in the same manner, and to the same extent as in the case of any other rule of the House. (5) (A) Any resolution introduced in the House of Representatives under paragraph (1) shall be referred to a committee by the Speaker of the House. (B) If the committee to which any such resolution is referred has not reported any resolution relating to any regulation or change proposed by the Administrator under this section before the expiration of sixty calendar days after the submission of any such proposed regulation or change, it shall then be in order to move to discharge the committee from further consideration of such resolution. (C) Such motion may be made only by a person favoring the resolution, and such me- tion shall be privileged. An amendment to such motion is not in order, and it is not in order to move to reconsider the vote by which. such motion is agreed to or dis- agreed to. (D i If the motion to discharge Is agreed to or disagreed to, such motion may not be renewed. (E) When the committee has reported, or has been discharged from further consider- ation of, a resolution introduced in the Heusi of Representatives under paragraph (1), it shall at any time thereafter be in order (even though -a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of such res- olution. Such motion shall be privileged. An amendment to such motion is not in order, and it is not in order to move to -reconsider the vote by which such motion is agreed to or die agreed to. (6) For purposes of this subsection, the term "legislative days" does not include any calendar day on which both Houses of the Congress are not in session. (c) The provisions of this title shall not apply, on and after the date upon which regulations proposed by the Adminls rator take offeot under subsection (b), to any tape recordings or other materials given to Richard M. Nixon, or his heirs, pursuant to subsection (a) (7). JUDICIAL REVIEW SEC. 106. (a) The United States District Court- for the District of Columbia shall have exclusive jurisdiction to hear challenges to the i)gal or constitutional validity or any provision of this title or of any regulation issuect under the authority granted by this title. Such challenge shall be heard by a dis- trict court of three judges constituted under the p:'ocedures established by section 2284 of title :18, United States Code, with the right of direct appeal to the United States Su- preme Court. Any such challenge shall be treated by the district court of three judges and the Supreme Court as a priority matter requiring immediate consideration and reso- lution... (b) If, under the procedures established by subsection (a), a judicial decision is ren- dered that a particular provision of this title, or a particular regulation Issued under the authority granted by this title, is uncon- stitutional or otherwise invalid, such decision shall not affect in any way the validity or enforcement of any other provision of this title or any regulation issued under the au- thority granted by this title. PAR"ICIPAT ION IN CERTAIN COURT ACTIONS SEC. 107. The Committee on Government Operations of the Senate and the Commit- tee on House Administration of the House of Representatives may, acting jointly or sepa- rately appoint counsel to intervene in any case o' proceeding relating to- (1) the ownership, custody, use, or com- pensation for any taking, of tape recordings and other materials referred to in section 101, or any other similar right to or in such recordings and materials; or (2) any challenge to- the legal or constitu- tional validity of any provision of this title or of any regulation issued under the author- ity granted by this title. I+UTHORIZATION OF APPROPRIATIONS SEC. 108. There is authorized to be appro- priated such sums as may be necessary to carry out the provisions of this title. II _ITLE II-PUBLIC DOCUMENTS COMMISSION SHORT TITLE SEc. 201. This title may be cited as the "Public Documents Act". ESTABLISHMENT OF STUDY COMMISSION SEC. 202. Chapter 33 of title 44, Urdted States Code, is amended by adding at the end thereof the following new sections: "I 3315. Definitions "For purposes of this section and section 3316 through section 3324 of this title- "(1) the term 'Federal official' means any individual holding the office of President or Vice President of the United States, or Sen- ator or Representative in, or Delegate or Resident Commissioner to, the Congress of the United States, or any officer of the exec- utive, judicial, or legislative branch of the Federal Government; "(2) the term 'Commission' means the National Study Commission on Records and Documents of Federal Officials; and "(3) the term 'records and documents' shall include handwritten and typewritten documents, motion pictures, television tapes and recordings, magnetic tapes, automated data processing documentation in various forms, and other records that reveal the his- tory of the Nation. - '13316. Establishment of Commission "There is established a commission to be known as the National Study Commission on Records and Documents of Federal Offi- cials. 113317. Duties of Commission "It shall be the duty of the Commission to stuc(y problems and questions with respect to the control, disposition, and preservation of records and documents produced by or on behalf of Federal officials, with a view toward the development of appropriate leg- islative recommendations and other recom- mendations regarding appropriate rules and procedures with respect to such control, dis- position, and preservation. Such study shall include consideration of- "(1) whether -the historical practice re- garding the records and documents produced by or on behalf of Presidents of the United States should be rejected or accepted and whether such practice should be made ap- plicable with respect to all Federal officials,, "(2) the relationship of the findings of the Commission to the provisions of chap- ter 19 of this title, section 2101 through section 2108 of this title, and other Federal laws relating to the control, disposition, and preservation of records and documents of Federal officials; "(3) whether the findings of the Commis- sion should affect the control, disposition, and preservation of records- and documents of agencies within the Executive Office of the President created for short-term purposes by the President; "(4) the recordkeeping procedures of the White House Office, with a view toward estab- lishing names to determine which records and documents are produced by or on be- half of the President; "(5) the nature of rules and procedures which should apply to the control, disposi- tion, and preservation of records and docu- ments produced by Presidential task forces, Commissions, and boards; "(6) criteria which may be used generally In determining the scope of materials which should be considered to be the records and documents of Members of the Congress; "(7) the privacy interests of individuals whose communications with Federal officials, and with task forces, commissions, and boards, are a part of the records and docu- ments produced by such officials, task forces, commissions, and boards; and "(8) any other problems, questions, or is- sues which the Commission considers rele- vant to carrying out its duties under sec- tion 3315 through section 3324 of this title. 13318. Membership "(a) (1) The Commission shall be com- pi'sed of seventeen members as follows: "(A) one Member of the House of Repre- sentatives appointed by the Speaker of the House upon recommendation made by the majority leader of the House; Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 December 9, 1977pproved Fe"Pgs'IUN-A~/q&C.'Ufll-DPKENA'TE7R000700170021-3 S 20805 greatest example on earth. A Ford-Rocke- feller team Is,right for this Nation and for our people. I believe the statement I made on Au- gust 20 has been confirmed by everything that has happened since then, taken to- gether as a unit. I was very interested, Mr. President, to find this evaluation confirmed also by a discussion pf four prominent newsm n on Martin Agronsky's show regarding J he Rockefeller nomination this last we- Time magazine, George Will, and Carl Rowan, columnists, agreed that Nelson Rockefeller has come through the confir- mation proceedings of both the Senate Rules and Administration Committee and the House Judiciary Committee with even greater respect than he commanded just 6 weeks ago. That is quite a tribute from such high- powered newsmen for a nominee who has been very, very thoroughly investigated, to say the least, as evidenced by these hearings. And the editorial in the Washington Post, to which Senator MATHIAS referred, certainly lends point and emphasis to the comments of these newsmen that I just referred to., Mr. President, a few other points: First, Governor Rockefeller has a unique quality In attracting high-class personnel, personnel of skill and ability. After what this Nation has been through in respect to seedy politics In the hor- rendous Watergate scandals, you need in Goverment the kind of figures who will attract decent and honorable men and women of skill to Government with a feeling of confidence that they will not be besmirched in the process. President Ford, with that clean, honor- able, and straightforward look and at- titude and feeling, which he has so richly communicated to our country, and now Nelson Rockefeller, with the tremendous shill and standing which he has, will ma- terially help us at a time when men and women of talent and quality may be ex- tremely reluctant to serve in those high places in Government which seems to have been the most jeopardized in these dreadful scandals. . Second, we are faced with enormous challenges of an economic character. We are now In the grip of both inflation and recession, an almost unmatched sit- uation in our world. In addition, there are widespread fears voiced from the most responsible sources that we are on the greased skids to a worldwide depression. How critically important, therefore, it is that a man connected with a family which stands so signally high in the view of the private sector in the United States be enlisted in such a high place in the service of the Nation at this time. Also, we are in very serious difficulties abroad. The Middle East situation is very tense, Involving, as one of its effects, another danger of an oil embargo. Cyprus is a battlefield engulfing two of the NATO partners and compromising the whole southern flank of NATO. Our SALT negotiations, the reduced nuclear armaments, are just getting off the ground with the Soviet Union in a very sensitive way. All of us recall problems with previous new Presidents, even Presi- dents who later proved themselves to be superb men, like Harry Truman. In the early days they had to go through the rigors of Potsdam and similar postwar negotiations which tried not only their mettle but their standing. Considering Nelson Rockefeller's standing in this field in the world, I con- sider it to be an immensely strengthening element to our country in its negotiations and in the future actions in these foreign policy matters to have them in its serv- Finally, Mr. President, I would like to s % few words about Nelson Rocke- fel 's accomplishments, highlighted and de sharper even by the record of his ow amily, as Governor of New York. Like any they incumbency, it was by no means an ninterrupted stream of suc- Mr. Presi t, on the whole, it was a splendid incu bency as Governor of New York-elected our successive times- and also demo trated certain unique qualities which hink should commend the nominee to u very strongly. For one, Nelson ckefeller was very hard-headed about oney and did not fear, when he felt t t It was essential to spend, and the Sta legislature was with him, to go to the p plc in order to be sustained in activities hich were al- ways difficult for a govern to go to the people on-that is, higher t es or bond issues. He was ready to pe wade and able to persuade the people of w York, in the most farsighted way, at the measures he recommended e so worthwhile as to deserve financia sac- rifice on their part, which they ma The PRESIDING OFFICER. The ator's time has expired. Mr. COOK. Mr. President, I yield additional minutes to the Senator. Mr. JAVITS. The lead which we have taken, for example, in prefinancing clean water, with the assistance and powerful support of big bond issues voted by the people, is the kind of enter- prise and the kind of leadership which we want in the executive department of the United States, in which Governor Rockefeller would function. Finally, his unusual devotion to edu- cation and the arts have made New York a true exemplar of leadership in terms of education. California was miles ahead of us when Governor Rockefeller took over in 1958. In that intervening period, the State University of New York has been built up into one of the most splendid State educational institutions among all the 50. This is his monument. He made of the New York State Arts Council a pilot. plant operation which has now carried with it our much larger operation in the Federal Government- but when it began, a much smaller op- eration-enormously profiting, as we brought Nancy Hanks to head it, out of New York, from the gifted and enter- prising leadership of Governor Rocke- feller in this field. So, Mr. President, for all these rea- sons, without gilding any lilies and at the same time complimenting enor- mously and speaking of the debt we all owe to the committees which so thor- oughly investigated the nominee, I com- mend to the Senate the confirmation of Nelson Rockefeller's nomination to be Vice President of the United States. The PRESIDING OFFICER (Mr. HELMS). The time of the Senator has expired. Who yields time? Mr. COOK. I yield myself 3 minutes. Mr. President, relative to a remark which was made by Senator ABOUREZK, there is no point in my debating the various points that he raised, but he re- ferred to defense spending and the atti- tude of the Governor of New York. I should like to read a colloquy which the nominee had with Senator PELL, which begins on page 151 of the record: Senator PELL. So the same type procedure might be followed here? Mr. ROCKEFELLER. I really haven't thought it through but at the moment that's my sort of reaction to what you want. Sentaor PELL. On another subject. A few years ago our Nation began turning its thoughts to the Bicentennial celebration. We hope it is going to be a humdinger, better than the one in 1876. But so far as it looks it hasn't taken off the ground as it should, being plagued wtih problems at the national level and in the various States. I'm not think- ing of your own and my State which are well run. What are your thoughts in regard to the Bicentennial in 1976 in regard to your Vice Presidential role. Would you be able to give it some thought? Mr. ROCKEFELLER. To be perfectly frank, I hadn't thought about that. I would pre- sume that would depend on the President- his desires; I'd conform to whatever was on his mind. Sentaor PELL. What are your views, Gov- ernor Rockefeller, with regard to the public financing of campaigns for Federal elected office; for President, Vice President, for Senators, and Congressmen? Mr. ROCKEFELLER. Well, of course, they have some very interesting possibilities. One has to think, as one who has .participated in financing of campaigns. I have a little on the ballot as a gubernatorial can- Now if the State were to finance the financing, th most. Senator PELL be for the two at. But in relation to public is the item that concerns me 'Me public financing would receive funds in propor- received in the elections major parties. Certainly the subject is Mr. ROCKEFELLER. a tremendously dim ental basis that this be explored and very The real problem is t campaigning and I've campaigned snice 10,08 and the costs have gone just straight up like this because of television time. So that I assume when you talk about public financing then you're talking, thinking about also how you finance time on television. And I suppose in England they give you time on television. Senator PELL. That is another approach that has been suggested. But I think the would have the tremendous the two-party system. Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3 20806 1' c bills before us now-y+oc yo%tx'rj families with the Senate bill afid House bill on ca>Qi- paign finanbing. -` Mr. ROCKEFELLZ . I'm not famtfiar in d l definite character to it because I really haze rot had a chance to study those. Senator FELL. On another subject. This is '..rasicaily a philosophical one. I think there Ought to be a reduction of expenditures .n she Federal budget. The question is, where do the reductions .:ome from, the hardware, defense and space .;ector, or the so-called human sector, eda- eation and health? What is your view as to where the main thrust of these reductions should come from? They've got to come from one area or a:7- other because there are only the two prin- =:ipal areas. Mr. ROCKEFELLER. Well, I suppose, first, is a policy decision as to whether- a out is ,o be made; and secondly, how big a cut; and thirdly, then to examine every department and see where those cuts can be made, or a zery careful analysis of the work being done, its essentiality, its priority. It is a very dif- flicult thing always to cut back. I had to face .t in New York, and the State payroll was reduced by 11,000 employees, which for a state was an awful lot of employees. And we would out back on programs, in all areasi and postponed and an forth. And it can b ,nuscle to do it. Senator FELL. Would you be for an even President Ford said there should be no :'e- duction in defense expenditures. That was suggested and some disagreed with it. You would believe that the reduction should be on an evenhanded basis? Mr. RocxEFELLER. I would think really If it were possible to do it, it should be done on the basis of least harm to the service and fundtion of the particular department or agency which was under review so that if it is national defense, how do we preserve the strength of our national defense; what are areas where activities could be reduced or cut which are not of high priority character? And other programs, programs that have been on the books a long time that perhaps today are not as important as new arias which are emerging. Senator PELL. But basically, as you know, a dollar spent on defense and space produ;es far less in human benefits than that spent in health and education, Would that rel ite to- Mr. ROCKEFELLER. Except as you relate it to the problem of freedom. I have to think fundamental to everything is freedom. Senator PELL. Freedom at home as well as abroad? Mr. ROCKEFELLER. Freedom at home end abroad. Senator PELL. Thank you. Finally, in connection with Cuba, there seems to be a feeling that perhaps we she old improve and regularize our relationship. Do you have any views in that regard? Mr. ROCKEFELLER. I have not in rec--tnt years discussed the question of Cuba, :lot since 1969. In 1969 when ,I was on that trip for the President and went to 20 countries and talked to the heads of state, I got a pretty good feel at that time as to the alti- tude of the other American republic leac ers about Cuba. At that time there was very little sentiment for reestablishing relations. From what I read in the papers, there seems to be some softening of that position, and I would assume that this is a question which would be taken up in discussion with the heads of other states to get a consensus position. Senator FELL. Thank you very much. The CHAIRMAN. Thank you. 01J , 001/11/01: CIA-RDP76M00527R000700170021-3 Mr, Rockefeller, Senator Allen has re- -turfied and we will let the hearings go right ahead and proceed with the questionn. Sen- ator Cook will be the next one up as soon as he returns from the vote. Mr. President, I suggest the absence of a quorum. Mr. CANNON. On my time. The PRESIDING OFFICER. The clerk ill call the roll. The second assistant legislative clerk roceeded to call the roll. Mr. CANNON. Mr. President, I ask nanimous consent that the order for e quorum call be rescinded. The PRESIDING OFFICER. Without Mr. CANNON. I yield 5 minutes to the enator from North Carolina. The PRESIDING OFFICER. The hair-inquires whether this is to be in. LEGISLATIVE SESSION Mr. ERVIN. Mr. President, I ask unani- mous consent that the Senate go into leg lative session. The PRESIDING OFFICER. Without PRESIDENTIAL RECORDINGS AND MATERIALS PRESERVATION ACT Mr. ERVIN. Mr. President, I ask the Chair to lay before the Senate a message from the House of Representatives on S. 4016. The PRESIDING OFFICER (Mr. HELMS) laid before the Senate the amendment of the House of Representa- tives to the bill (S. 4016) to protect and preserve tape recordings of conversations involving former President Richard M. Nixon and made during his tenure as President, and for other purposes, as fol- lows: Strike out all after the enacting claase, and insert: That this Act may be cited as the "Presidential Recordings and Materials Pres- ervation Act". TITLE I-PRESERVATION OF PRE::>IDEN- TIAL RECORDINGS AND MATERIALS DELIVERY AND RETENTION OF CERTAIN PRESIDENTIAL MATERIALS SEC. 101. (a) Notwithstanding an7 other law or any agreement or understanding made pursuant to section 2107 of title 44, United States Code, any Federal employee in pos- session shall deliver, and the Administra- tor of General Services (hereinafter in this title referred to as the "Administrat,or"- shall receive, obtain, or retain, complete pos- session and control of all original tape re- cordings of conversations which were record- ed or caused to be recorded by any officer or employee of the Federal Government and which- (1) involve former President Richard M. Nixon or other individuals who, at the time of the conversation, were employed by the E?'ederal Government; (2) were recorded in the White E;use or in the office of the President in the Execu- tive Office Buildings located in Washington, District of Columbia; Camp David, Mary- land; Key Biscayne, Florida; or San Clements, California; and (3) were recorded during; the period be- ginning January 20, 1969, and endi,,g Au- gust 9, 1974. (b) (1) Notwithstanding any other law or any agreement or understanding made pur- suant to section 2107 of title 44, United States Code, the Administrator shall receive, retain, or make reasonable efforts to obtain, complete possession and control of all pa- pers, documents, memorandums, transcripts, and other objects and materials which con- stitute the Presidential historical materials of Richard M. Nixon, covering the period be- ginnnig January 20, 1969, and ending Au- gust 9, 1974. (2) For purposes of this subsection, the term "historical materials" has the meaning given it by section 2101 of title 44, United States Code. AVAILABILITY OF CERTAIN PRESIDENTIAL MATERIALS SEC. 102. (a) None of the tape recordings or other materials referred to in section 101 shall be destroyed, except as may be pro- vided-by law, (b) Notwithstanding any other provision of this title, any other law, or any agreement or understanding made pursuant to section 2107 of title 44, United States Code, the tape recordings and other materials referred to in section 101 shall, immediately upon the date of enactment of this title, be made available, subject to any rights, defenses, or privileges which the Federal Government or any person may invoke, for use in any judicial proceed- ing or otherwise subject to court subpena or other legal process. Any request by the Office of Watergate Special Prosecution Force, whether by court subpena or other lawful process, for access to such recordings or ma- terials shall at all times have priority over any other request for such recordings or. ma- terials. (c) Richard M. Nixon, or any person whom he may designate in writing, shall at all times- have access to the tape recordings and other materials referred to in section 101 for any purpose, subject to the regulations which the Administrator shall Issue pur- suant to section 104. (d) Any agency or department in the ex-. ecutive branch of the Federal Government shall at all times have access to the tape re- cordings and other materials referred to in section 101 for current lawful Government use, subject to the regulations which the Administrator shall issue pursuant to sec- tion 104. COMPENSATION SEC. 103. If any court of the United States decides that any provision of this title has deprived any individual of private property without just compensation, then there shall be paid out of the general fund of the Treas- ury of the United States such amount or amounts as may be adjudged just by an appropriate court of the United States. How- ever, the provisions of this title shall not be construed as making any determination with respect to any private property right of title to tape recordings and other materials re- ferred to in section. 101, if any such right existed prior to the ate of enactment of this title. REGULATIONS TO PROTECT CERTAIN TAPE RECORD- rlGS AND OTHER MATERIALS SEC. 104. The Administrator shall issue at the earliest possible date such regulations as may be necessary to assure the protection of the tape recordings and other materials re- ferred to in section 101 from loss or destruc- tion; and to prevent access to such record- ings and materials by unauthorized persons. Custody of such recordings and materials shall be maintained in Washington, District of Columbia, or its metropolitan area., except as may otherwise be necessary to carry out the povisions of this title. REGULATIONS RELATING TO PUBLIC ACCESS SEC. 105, (a) The Administrator shall, with- in ninety days after the date of enactment of this title, submit to each House of the Con- gress a report proposing and explaining reg- ulations that would provide public access to Approved For Release 2001/11/01: CIA-RDP76M00527R000700170021-3