ERVIN HEARINGS ON PRIVACY--V: TESTIMONY OF ALEXANDER POLIKOFF

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP81-00818R000100050055-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 16, 2016
• Document Release Date: August 1, 2005
• Sequence Number: 55
• Publication Date: June 14, 1971
• Content Type: OPEN

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June 14, Y97'.~pproved For ~lg9/4I:~~6ff81gR>~AF~00100050055 91J S 8947
1. An Ivy League elitism in the press which
is more and more influenced by attitudes
genuinely hostile to American society and
American government.
2. A growing acceptance by the press of the
simplistic notion of the near-omnipotence of
the president and the feeling that he has
only himself to blame if things go wrong.
3. An increasing reliance by the press on
information from dissidefits in the civil serv-
ice bureaucracy who often take up the cudgel
against the president in their own interests.
4. A tendency to report nonevents and spu-
rious charges against the government in
the name of objective coverage of the news:
5. The absence in the press "of a profes-
sional tradition of self-correction."
Moynihan is not the first to observe an
elitism in the press that increasingly is sepa-
rating it from support for middle class values
and opening up a credibility gap between it
and the general public.
Nor is he the first to note that the
press, in its questioning of the President and
his executive department heads, often seems
to be more interested in a scalp than a
scoop, more concerned about showing up the
White House than in getting facts to report
about it.
While the earliest criticism of the Vietnam
war came from the uncensored Saigon press
corps, some of the critics lacked the creden-
tials to do more than surface reporting since
since they knew little about the background
of the country, the people or even U.S. par-
ticipation in the war.
Moynihan agrees the relationship between
the presidency has grown more troubled as a
result of the war in Vietnam. But he contends
it has been a matter of concern ever since the
cold war began.
"At the close of World War II official
press censorship was removed but the kinds
of circumstances in which any responsible
government might feel that events have to be
concealed from the public did not go away."
Moynihan writes
"The result was a contradiction impossible
to resolve. The public interest was at once
served ? and disserved by secrecy ; at once
served and disserved by openness. Whatever
the case, distrust of government grew"
At any rate, Moynihan feels that as a re-
sult of these conditions, it is hard for the
government to succeed and just as hard for
government to appear to have succeeded
when it has done so.
More important, he feels that this consist-
ently negative picture of government is not
good for democracy and that it is becoming
a matter of national morale, or what Nathan
Glazer has called a "loss of confidence and
nerve."
Moynihan has little to prescribe in the
way of correction but he does suggest the
need for improved reporting, more thought
by owners and editors and reporters as to
what is good and bad about the country and
what might be done to make things better,
and also more concern by the press as to just
how much elitist criticism is good for de-
mocracy.
On a more specific level, he recommends
that the press do a better job of correcting
its own errors and of keeping a critical eye
on itself. He also urges that the government
respond in specific terms to what it believes
to be errors or mistaken emphasis in press
coverage of its activities.
If these comments reflected only the fears
of one former public official, even a highly
intelligent one who has served three presi-
dents, two Democratic and one Republican,
newsmen and the public could dismiss them
as stemming from the annoyance of a frus-
trated bureaucrat. But, unfortunately, crit-
icism of this kind has become more common
not only among the intelligentsia but among
average readers.
Some of .the criticism no doubt stems from
the traditional antagonism toward the bear-
er bf bad tidings and the feeling among large
segments of the public that the press stresses
bad news rather than good.
Some of it arises from mistakes by the
press and the fact that a better educated,
more literate public now is more aware of the
errors made by the press.
But some of it also is prompted by the
fact that the press exercises a great deal more
freedom these days in reporting news about
such controversial matters as pornography,
abortion, church reforms, sexual issues and
other matters that once were swept under
the rug insofar as press coverage was con-
cerned.
To some extent, critics who complain
about the openness of the press in reporting
such controversial matters are raising the
same objections Moynihan does. They see the
press as a negative force in society and one
which often is out of touch with the average
reader.
Many newspapermen, including this one,
agree there is substance to these criticisms,
especially the sneering at American institu-
tions and accomplishments. This attitude of
disparagement stems, in part, at least from
a tendency to measure American institutions
and accomplishments against the ideal of a
perfect world rather than against the reali-
ties of an imperfect world.
But will the press in this country have
to mute its criticism of democracy in order
to save it, as Moynihan seems to be asking?
Is there some solution other than the self-
discipline that Moynihan and others sug-
gest?
If a free press is curbed, in the name of
protecting democracy, who then will serve
as the public's eyes and ears in reporting the
activities of the government's elected and
appointed officials? And who, indeed, then
will become the bulwark of our democratic
system which requires an informed electo-
rate if it is to function properly?
Unfortunately, Moynihan doesn't really try
to answer those questions.
ERVIN HEARINGS ON PRIVACY-V :
TESTIMONY OF ALEXANDER POL-
IKOFF
Mr. ERVIN. Mr. President, in continu-
ation of my plan to put the more im-
portant and frequently requested state-
ments from our hearings in the CoN-
GRESSIONAL RECORD, I would like to enter
today the statement of Mr. Alexander
Polikoff.
Mr. Polikoff appeared before the Sub-
committee on Constitutional Rights pri-
marily to discuss the trial in Chicago of
the lawsuit brought as a result of John
M. O'Brien's December disclosures of
Army intelligence activities in Illinois.
Mr. Polikoff acted as counsel for the
plaintiffs in American Civil Liberties
Union against Laird. This case was dis-
missed after 5 days of evidentiary hear-
ings and is presently an appeal.
At our hearings on Federal Data
Banks, computer and the bill of rights
Mr. Polikoff first summarized the testi-
mony given by the witnesses in the Chi-
cago trial. Then he analyzed for the sub-
committee the legal principles applicable
to the issues raised by military surveil-
lance.
Mr. President, I think that in both as-
pects of his testimony Mr. Polikoff made
valuable contributions to our under-
standing of the problem involved in Gov-
ernment data collection. I ask unanimous
consent that his statement be printed in
the RECORD at this point.
There being no objection, the state-
ment was ordered to be printed in the
RECORD, as follows:
STATEMENT OF ALEXANDER POLIKOFF BEFORE
THE SUBCOMMITTEE ON CONSTITUTIONAL
RIGHTS OF THE SENATE COMMITTEE ON THE
JUDICIARY, FEBRUARY 24, 1971
Mr. Chairman, it is a privilege to appear
before the Subcommittee on Constitutional
Rights, and I thank you for the opportunity
to do so.
My name is Alexander Polikoff. Since April,
1970, I have been the full-time Executive
Director of Businessmen for the Public In-
terest, a not-for-profit corporation in Chi-
cago. For 17 years before that I was an asso-
ciate and then a general partner with a large
Chicago law firm.
On a volunteer basis I am one of the gen-
eral counsel of the Illinois Division of the
American Civil Liberties Union. In that ca-
pacity I acted as counsel for plaintiffs in
the law suit entitled American Civil Liber-
ties Union, at al., v. Laird, at al., in the
Federal District Court in Chicago (No. 70 C
3191). That law suit, as you may know, con-
cerned the Army's domestic civil disturbance
intelligence activities. After five days of evi-
dentiary hearings, from December 28, 1970 to
January 5, 1971, Judge Richard B. Austin dis-
missed the suit. The dismissal order is now
on appeal.
My principal purpose in being here today
is to summarize for you some of the sworn
testimony in the Chicago trial. Among the
Army witnesses were Thomas Filkins, a civil-
ian employee' of the Army, who was the im-
mediate superior of John O'Brien, the former
Army military intelligence agent from whom
you will also hear this morning. In addi-
tion, Ralph Stein and Richard Stahl, form-
er Army military intelligence agents, testi-
fled for the plaintiffs. There were other wit-
nesses, of course, but these are the prin-
cipal ones whose testimony I will summarize,
although I will be happy to answer questions
about others.
I am going to refer hardly at all to John
O'Brien's testimony. Partly, of course, the
reason is that he is here to testify himself.
More importantly, however, it is to give you
an understanding of the Army's own testi-
mony and of the uncontradicted testimony
of some of its former agents other than
O'Brien. Some effort has been made, at least
in the press, to make it appear that there
is a significant issue of credibility between
Mr. Filkins and Mr. O'Brien, Indeed, some
stories have suggested that there is a serious
factual controversy about whether the Army
carried on at all intelligence activities of the
sort O'Brien described.
I hope, by telling you this morning of the
testimony of the Army's own witness, to
make it plain that this is not the case. The
fact is that through Mr. Filkins the Army
has substantially admitted practically every-
thing Mr. O'Brien ever said about the na-
ture of the Army's civil disturbance intel-
ligence activities. The widely publicized dif-
ferences over Senator Stevenson and Con-
gressman Mikva are only partial differences,
and in any event are differences of detail.
The fundamental nature and extent of the
Army's civil disturbance intelligence activ-
ities in the Chicago area was agreed to by
witnesses from both sides.
I wish to make one preliminary observa-
Much of the Army's intelligence activity con-
sists of background investigations of civilian
or military personnel for security clearance
purposes. In the Chicago area these investi-
gative activities were conducted by separate
branches of the intelligence command called
"PSI", Personnel Security Investigations,
and, in certain specially sensitive cases,
"SIB", Special Investigations Branch. Such
investigative activities were separate and dis-
tinct from the civil disturbance intelligence
activities and were carried out by different
personnel. The trial in Chicago did not con-
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EC T
CONGRESSIONAL R
cern PSI or SIB at all. No question was
raised about the propriety of those investi-
gative activities, and the testimony I am
going to summarize for you relates exclu-
:;i'oely to the civil disturbance area, and not
all to background personnel Investiga-
t;ons.
will divide my statement this morning
irc'o two parts, first a summary of the evi-
(ience given in Chicago, and second a brief
statement of what I believe to be the law
applicable to that evidence. With the Chair-
mrinn's permission, Mr. O'Brien will testify
;E; the end of the factual portion, after which
'.l e will both be happy to answer questions
on the facts before I turn to my brief re-
imirks on the law. In the written statement
1. have submitted to the Subcommittee
Counsel, the numbers in parenthesis are
page references to the transcript of the Chi-
cago trial.
ORGANIZATION OF REGION I OF THE 113TH
MILITARY INTELLIGENCE GROUP
The 11.3th Military Intelligence Group,
headquartered at Fort Sheridan, Illinois, cov-
ers a sizeable portion of the midwest and
plains states. It is divided organizationally
into Regions. One of these, Region I, to
which both Mr. Filkins and Mr. O'Brien were
assigned, covers the entire state of Illinois,
except the East St. Louis area, and is head-
uuartered in Evanston, Illinois, which im-
mediately adjoins Chicago on the North.
Region I is divided into a number of
'branches or sections. Two of these I have
already mentioned, Personnel Security In-
vestigations and the Special Investigations
Branch. Two other branches or sections were
called, respectively, Special Operations and
CONUS/Liaison, and they were the sections
which carried on the civil disturbance in-
telligence activities at Region I. Special
Operations engaged primarily in covert or
undercover operations; CONUS/Liaison's in-
telligence gathering activities were primarily
overt. Mr. Filkins was in charge of the Spe-
cial Operations Section, to which Mr. O'Brien
was also assigned, and a Mr. Richard Norusis
was in charge of CONUS/Liaison. The two
sections worked closely together and were
physically located in immediately adjoining
portions of the Region I Headquarters build-
ing.
Mr. Fiikins was assigned to Region I in
September, 1968 and had been there con-
tinuously since that time. He was a highly
trained intelligence operations specialist.
(517.) He had served for three years with
the Army Security Agency (683), then at-
tended the Area Studies Course at the Army's
Intelligence Command Center at Fort Bola-
bird, Maryland. (518.) Mr. Filkins then Served
for approximately 6 years (689) with mill-
f.ary intelligence in Korea (518), after which
he returned to Fort Holahird where he took
the Military Intelligence Counter-Intelli-
gence Specialist Course. (518). Mr. Filkins
',,id that without permission from the Na-
tional Security Agency he could not describe
the activities of the Army Security Agency,
or his own duties with it (684), that he could
not divulge the nature of the Area Studies
Course without trenching upon classified
material (687), and that he could not divulge
the nature of his work in Korea, although
lie did acknowledge it was intelligence activ-
ity. (689.) Nonetheless, it seems clear that
Mr. Filkins was a highly trained and experi-
enced intelligence specialist.
Mr. O'Brien, incidentally, was assigned to
the Special Operations Section in June, 1969,
and served directly under Mr. Filkins for
about six months. He too, as you will hear
from him directly, was a well trained, ex-
perienced intelligence agent.
I now propose to summarize the testimony
principally from Mr. Filkins, concerning the
quantity of civil disturbance intelligence
formation collected by the Special Opera-
tions and CONUS Sections of Region
the nature of the material collected,
manner in which it was collected and, final
what was done with it.
QUANTITY OF CIVIL DISTURBANCE INTELLIGE*
COLLECTED BY REGION I
First, in the files maintained by the CONI
section at Region I there were approximates
800 dossiers, so-called, on Individuals al:
organizations. (849.) The figure of apprcv
mately 800 was first mentioned by Mr. O'Brt;.
and then confirmed by Mr. Filkins in
written report he wrote to the commandin
officer of the 113th Military Intelligebc
Group. (Ex. 1, TM.) A dossier was describ
by Mr. Filkins as "a large voluminous I'
that contained all details on a person's li
background and history." (620.)
These files included, according to Mr. ':if
kins, reports on virtually every organizati'
in the Chicago area. (845-46.) This was =
he went on, because under the Intelligent:
Collection Plan, the document pursuant
which Mr. Fiikins said Special Operatip
and CONUS civil disturbance intellige l
activities were conducted, CONUS was obli.
to maintain coverage of and keep files _
any organizations "intertwined either Ofr-
cially or unofficially" with groups which 14E 1
engaged in violence and "related activlti (847.) To Illustrate what this meant, i',i
Fiikins said that if a "perfectly legitims . ,
and peaceful organization like the Arne.
can Friends Service Committee" co-sponsor= -t
a demonstration or other activity with 8c -
other organization which had engaged
violence and "related activities," a file wot. ?1
be maintained on the American Frier.
Service Committee. (847-48.) Mr. P11113i >
also said that if an organization made s
public statement In defense of a person ill a
had engaged in violent activities or In -
fended such a person legally, a file was estr -
lished on such organization. (758.)
As to,.individuals, Mr. Filkins said tL1
"any person who we had reason to belie c
was in a leadership position in a group ti,t
was or could be or reasonably expected to e
involved in civil disturbance, he was the s
put in a file." (619.)
These various flies, which were housed L
roughly nine file cabinets (870), were exdl+ -
sively CONUS files. In addition to and Sec--
arate from the CONUS files materials wke
generated by the Special. Operations Sectic, .
These were in the form of so-called agic is
reports, which were written reports of ope
tions conducted by military intelligence
dercover agents. (639-40.) A Special Oper -.-
tions Section file was prepared for et 'i
such individual undercover operation (68!y
consisting of one or more agent reports (84i`s+ : ,
and the file terminated with the terminaji-: n
of the specific operation. (640.)
The Special Operations Section at Regior4 I
had about seven persons engaged in und - -
cover operations. (810.) Mr. Filkins was a&,. ,d
about the volume of reports generated, y
these undercover persons and he said it
for the 6 month period during which ?-...
O'Brien was assigned to Special Operatiti
that is, from June to December, 1969, average of 15 such reports per month was gI ;-
erated. (888.) He said, incidentally, that
though he could not remember, the volge e
of agent reports generated by the COllil 3
Section was "certainly more" than t;,.
(885.)
Mr. Filkins said that when an underoo 'r
operation was completed the file was sed:: 1
and sent to Group Headquarters and Iii ::t
this was done within three to six montU-
"Depending on the situation," alter comp'=r-
tion of the operation. (883--84.) Acco,rI-
ingly, at any point in time the Special Op _, --
ations files at Region I represented only aT,l -
rent or recently ccacluded operations. (88;i
Mr. Filkins said that at June, 1970, there V'--
about 175 Special Operations files at Reg tI
1. (642.)
NATURE OF CIVIL DISTURBANCE INTELLIGENCE
COLLECTED BY REGION I
Let Inc turn to the nature of the material
included. In these Special Operations and
CONUS files. I have already referred to Mr.
Filkins' testimony that the CONUS dossiers
contained "all details of a person's life, back-
ground and history." (620.) Ralph Stein,
from whom you will hear a little later, and to
whom details included such personal matters
as financial condition and sexual conduct.
(446-47. )
The sources of this information were vari-
ous. One was the undercover operations of
the Special Operations Section. Reports of
these operations made up the Special Oper-
ations files, as already noted, but in addit on
the reports were sent to Group Headquarters
(654-55) where extracts were prepared which
were then placed in the CONUS files. (657.)
Secondly, reports were received from other
investigative agencies, including the FBI, the
Secret Service, the Illinois State Police, the
so-called Red Squad or subversives Investi-
gations unit of the Chicago Police Depart-
ment, the Gang Intelligence Unit of the Chi-
cago Police Department, suburban police de-
partments, and, as Mr. Filkins put it, "al-
most any law enforcement agency in this
area." (650-51.) Where such reports were of
interest to the Army, copies were madefor the
CONUUS files. (651.) Where the report was not
of Interest it was sent "forward" (presum-
ably to Group Headquarters) with the recom-
mendation either for retention or dispatching
to Fort Holabird (651.)
A third source of the information con-
tained in CONUS files was the newspapers.
The newspaper article, or a xerox copy, was
normally mounted and attached to an ex-
hibit cover sheet, which was in turn attached
to an agent report written about the article
on an official agent report form. (673-74.)
The agent report included a brief synopsis of
the information in the article and, if an
individual on whom CONUS was reporting
was mentioned in the article, identifying data
on the individual, including the date and
place of birth, social security number, and
any previous involvement in civil disorders
or disruptions. (675.)
These were the three basic sources of
Information contained in the Special Opera-
tions and CONUS files. Special Operations
report, were all classified "confidential," and
some but not all of the CONUS files were so
classified. (670.)
NATURE OF CIVIL DISTURBANCE INTELLIGENCE
COLLECTION ACTIVITIES AT REGION I
Next, mention should be made of the
nature of the intelligence collection activities
In the Special Operations Section at Region I.
Thenewspaper clipping activity and receipt
of inveetfgati ve reports from other agencies
speak for themselves; "special operations"
perhaps, does not.
Mr. Filkins defined an undercover opera-
tion at Region I as an operation "where a
person is assuming an identity or a back-
ground or a raison d'etre, a reason for
existence, other than the truth for the pur-
pose of obtaining information" (646)-
where "he misrepresents who he is" (646)
and has "artificial, contrived or bogus"
credentials. (646-48). Undercover agents
were utilized who were assigned to other
branches of the military service (648-49),
though Mr. Filkins could not say what other
branches because that was classified. (648.)
The al;eats, including Mr. O'Brien, used
"cover" name:e. (694). Both Mr. Filkins and
Mr. O'Brien engaged in undercover opera-
tions, separately and together. (771.) Filkins
and O'Brien went out on undercover opera-
tions together perhaps once each week. (771.)
They also met undercover agents acting
under supervision at pre-arranged meeting
places (692-93), kept records of all such
meetings (693), and prepared written re-
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ports of the Information imparted by the
agent. (656-57.)
Although both Mr. Filkins and the com-
manding officer of the 113th Military Intel-
ligence Group, Colonel Joseph Walker, de-
clined to disclose the nature of special opera-
tions activities at Region I because they said
such information was classified (118, 589),
Mr. Filkins did testify to coverage of demon-
strations (891) and, so far as his own per-
sonal activities were concerned, of a peace-
ful debate on a college campus (892),, sur-
veillance of a meeting in a private home
(560), following cars and taking down li-
cense numbers (893). Persons assigned to
other sections in the Region I Headquarters
were aware of the existence of Special Opera-
tions, Mr. Filkins said, but they were not
authorized to know the details of Special
Operations activities. (614.)
PERSONS AS TO WHOM CIVIL DISTURBANCE
FILES WERE MAINTAINED AT REGION I
Since, as previously noted, Mr. Filkins ac-
knowledged that CONUS files were maintain-
ed on virtually every organization in the Chi-
cago area, no effort was made in the trial
to have Mr. Filkins recall their names. Nei-
ther was Mr. Filkins asked for his recollec-
tion of all the individuals as to whom files
were maintained. He did say that files were
maintained on each of the individual plain-
tiffs, who were Jay Miller, the Executive Di-
rector of the Illinois Division of the American
Civil Liberties Union (531), Jesse Jackson,
the national director of the Operation Bread-
basket arm of the Southern Christian Lead-
ership Conference (538), two Chicago Alder-
men, A. A. Rayner and William Cousins (537,
540), Gordon Sherman, a member and for-
mer chairman of Business Executives Move
for Vietnam Peace (535), and Henry de Zut-
ter, a Chicago newspaperman. (533-34).
During his testimony Mr. O'Brien was
asked by the United States Attorney to re-
call names of persons in various occupa-
tional categories, such as clergymen, busi-
ness leaders, university professors and news-
men, as to whom files were maintained. (258
et seq.) He did so, and his recollection was
confirmed in the great majority of instances
by Mr. Filkins. (531-68.) (Mr. Filkins also
acknowledged (821-22) that CONUS files
might have existed on a particular individual
without his knowing it.) Two celebrated
exceptions are Senator Adlai Stevenson III
and Representative Abner Mikva. As to Sena-
tor Stevenson, Mr. Filkins said that no file
was established (669) but he did testify
that on an occasion when Senator Steven-
son addressed a rally in Chicago "a notation
was made of that fact in a spot report that
was sent out to the Army Intelligence Com-
mander at Fort Holabird." (667.) He also
said that it was "feasible" that additional in-
formation on Senator Stevenson may have
been collected by CONUS/Liaison without
it coming to his attention. (668.) Similar.
ly, although Mr. Filkins said that to his
knowledge there was no file on Representa-
tive Mikva (821-22), he said that a CONUS
spot report "may well have" noted that Rep-
resentative Mikva had addressed a Chicago
rally (822-23), and that there could have
been a file on Representative Mikva without
his knowing it. (822).
DISTRIBUTION OF CIVIL DISTURBANCE
INTELLIGENCE
This completes my summary of the civil
disturbance intelligence activities at Region
I as testified to at the trial. I wish to em-
phasize that it is taken exclusively, except
where I have explicitly noted otherwise, from
Mr. Filkins' testimony. I have not sum-
marized for you the testimony of John
O'Brien or of other former military intelli-
gence agents. I might note, however, that
Richard Stahl, another former Region I
agent, testified that he too engaged in civil
disturbance intelligence gathering activities,
including personal surveillance of such nota-
bles as Ralph Abernathy (1059) and Governor
Lester Maddox (1060), as well as the entire
Georgia Delegation at the 1968 Democratic
National Convention. (1069. )
I wish now to turn briefly to what was
done with the information thus collected In
Special Operations and CONUS files. Here I
leave Mr. Filkins, and turn principally to Mr.
Ralph Stein, a military intelligence specialist
who served for over a year from late 1967 to
late 1968 in the counter-intelligence analysis
branch of the office of the Assistant Chief of
Staff for Intelligence. (434.) Prior to his serv-
ice with CIAB, as it was called, Mr. Stein
had graduated from the Military Intelligence
Specialist Course at Fort Holabird (433) and
then served for 13 months with military in-
telligence in Korea. (434.) Upon his dis-
charge from the Army Mr. Stein was awarded
a certificate stating that he "displayed ex-
ceptional ability as a counter-intelligence
analyst while assigned to the domestic sec-
tion of the Counter-Intelligence Analysis
Branch," as well as many other nice things it
would be immodest to repeat. (431.) Follow-
ing Mr. Stein's direct testimony at the
Chicago trial the United States Attorney
chose not to cross examine, so Mr.
Stein's testimony stands uncontradicted and
unimpeached.
Mr. Stein testified that CIAB served as the
analytical arm of the Assistant Chief of Staff
for Intelligence, that it provided him with
reports, briefed members of his staff and
himself, and was responsible for receiving
and analyzing incoming intelligence infor-
mation. (435.) He said that CIAB was di-
vided into sections, each of which was
responsible for a particular area, and that he
was assigned to the domestic intelligence
section whose area of responsibility was
the entire United States. (435.) The other
sections were Latin America, Afro-Asian, In-
ternational and Administrative. (436.)
Mr. Stein said his particular responsibility
was left-wing activities (436) and that he
was placed in charge of a so-called "left-wing
desk" (438) with the responsibility for be-
coming thoroughly conversant with left-
wing activity in the United States (438) and
particularly with the information coming to
CIAB from both its covert and overt sources.
(439.) One of these sources was the military
intelligence groups of the United States
Army. (422.)
The information which flowed across his
desk, Mr. Stein said, fell roughly into three
categories. (444,) The first was information
on individuals, including leaders of left-
wing and anti-war groups but also individ-
uals of no prominence who had attended
meetings of such groups. (444-45.) Most of
this information was in the form of Army
agent reports on form number DA341 (446),
the same form number Mr. Filkins testified
was used at Region I. (673.) The reports con-
tained information relating to political ac-
tivities, thoughts, associations, travels,
finances and other background data (444),
and sometimes included information relat-
ing to extremely personal areas, such as
sexual conduct and checking account bal-
ances. (446-47.)
The second category of information was
data on organizations (448), and the third
category was "incident" reports, that is, re-
ports of particular events, "anything ranging
from a massive nationally covered demon-
stration to a number of elderly people light-
ing candles in a vigil for peace in New Eng-
land." (449.)
Mr. Stein said that, discounting newspaper
articles, there were never fewer than one
hundred reports per day crossing his desk
and on some days the total was substantially
higher. (451.) The material was screened,
coded, placed in a microfilmed data bank,
and, with particularly important material,
maintained in a "hard copy" file at CIAB.
(452.) Material not so retained was sent to
Fort Holabird. (453.)
S 8949
Mr. Stein said that CIAB prepared a book
called the "Compendium"-the official name
was Counter-Intelligence Research Project
on Persons and Organizations of Civil Dis-
turbance Interest (455)-which was an en-
cyclopedic reference work of civil disturbance
information for the use of units in the field.
(456.) About 375 copies were sent to military
intelligence groups for distribution to the
regional level, as well as to other federal
investigative agencies. (457.)
Mr. Stein said that a computerized index
to the microfilm data bank was revised and
updated every month. (457.) He said that
the vast majority of the files maintained at
CIAB consisted of reports from Army In-
telligence Command agencies containing in-
formation not generally available to the pub-
lic, which he illustrated by referring to the
CIAB file on Jesse Jackson. (514-15.) This
file, Mr. Stein said, contained a great deal
of specific information on the conversations
between Jackson and other members of the
Southern Christian Leadership Conference.
(515.) He said that the wording of the re-
port made it obvious that the information
was obtained by someone who was in the
confidence of Mr. Jackson or other members
of the SCLC.
AUTHORITY FOR CIVIL DISTURBANCE INTELLIGENCE
ACTIVITIES
Let me now turn briefly to a last subject
about which Mr. Filkins testified-the au-
thority pursuant to which the Special Op-
erations and CONUS activities were car-
ried on.
Mr. Filkins said that the basic authority
for opening, maintaining and distributing
information from the CONUS files was the
Intelligence Collection Plan I have referred
to earlier. (622-23, 626.) This Plan did not,
however, apply to Special Operations (626),
and Special Operations files were opened only
pursuant to directions from Fort Holabird.
(626-27.)
Mr. Filkins said that in early 1969 Special
Operations personnel were ordered not to go
on the street to observe legal peaceful
demonstrations. (889-90.) He said that a
similar order was given with respect to
CONUS approximately a year later, in about
March, 1970. (890) Then, in mid-spring,
1970, Mr. Filkins said, CONUS was ordered
to limit. its reporting of civil disturbance
information to incidents which might be
beyond the capability of local and state au-
thorities to control. (893-94.) Special Oper-
ations was not so ordered and was still au-
thorized to report civil disturbance in-
cidents which were within the control ca-
pability of local and State authorities. (895).
Mr. Filkins said he recalled no order prior to
June, 1970, to end the covert infiltration of
civilian protests groups. (885-86.)
Mr. Filkins said that in June 1970 the In-
telligence Collection Plan was rescinded and
a directive was issued to destroy all files that
did not have a "direct and clear bearing on
the mission of the United States Army."
(568.) He said that. such files were destroyed
(848-49) except that three or four files were
sent to Fort Holabird to determine whether
the destruction order applied to them (849),
and that the file on Students for a Demo-
cratic Society was turned over to the Chi-
cago Police Department. (850.) Under the
new order, Mr. Filkins said, files continued
to be maintained on the two Chicago alder-
men who are plaintiffs in the Chicago case
(537, 540) and on Gordon Sherman. (536.)
It may be relevant, as a final point, to
note briefly the testimony of a newspaper-
man, Jared Stout, about a personal, on-the-
record interview with Army General Coun-
sel Robert Jordan, III, on December 4, 1970.
(389.) According to Mr. Stout, Mr. Jordan
said that he had inquired of the Command-
ing General of Intelligence as to the exist-
ence of computer data banks with respect
to civil disturbance activities and had been
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CONGRESSIONAL RECOR -
told that such data bank did not exist.
396.) Mr. Jordan said he then went to Fort
Holabird himself where he discovered that
two such data banks in fact existed. (397.)
Of the Commanding General of whom be had
made the initial inquiry, Mr. Jordan said,
-But I don't think he lied to me. I don't
think he knew." (396.) Mr. Jordan also said
that material relating to some aspects of the
computer banks was not authorized by any
Army regulations or directives of which he
was aware (397), and that he later found
two additional unauthorized data banks.
(397-98.)
Finally, according to Mr. Stout, Mr. Jor-
dan said he thought that information in
individuals or groups associated with dis-
orders was beyond the need of the Army
(400-01), and that in February, 1969, then
Undersecretary of the Army David E. Mc-
Giffert had issued a memorandum which, had
it been followed, would have ended the sur-
veillance of civilians. (401). He said that Mr.
McGiffert had never imagined that the Army
would collect the kind of data it was dis-
covered to be collecting (401-02), and that
the McGiffert memorandum of February,
1969, had ordered an end to all covert infil-
tration of civilian protest groups and to all
direct observations of lawful demonstrations.
(404-05.)
You may recall that Mr. Filkins said no
such order as to covert infiltration was re-
ceived prior to June. 1970, well over a year
after the McGiffert memorandum, and that
although Special Operations had been or-
dered to cease its observations of lawful
demonstrations in early 1969, shortly after
the date of the McGiffert memorandum,
CONUS was not so ordered until a year later.
The final documentary item of evidence
introduced in the case was a copy of the
letter, dated February 25, 1970, from Mr. Jor-
dan to the Chairman, Senator Ervin, with
which I am sure the members of the Sub-
committee are familiar. The letter is printed
in the Congressional Record for March 2,
1970, and says, among other things,
"The Army's present policy is that report-
ing of civil disturbance information is lim-
ited to incidents which may be beyond the
capability of local and state authorities to
control and may require the deployment of
Federal troops."
This completes my summary of some of the
evidence given in the Chicago trial, exclu-
sive as I indicated earlier of John O'Brien's
testimony. I have a brief statement on the
law to submit as well, but perhaps Mr. Chair-
man, before I turn to that, you would prefer
to hear from Mr. O'Brien and then have any
Interrogation there may be on the factual
aspects of the trial.
A VIEW OF THE APPLICABLE LAW
I turn to the subject of the law with some
trepidation. Any discussion of First Amend-
ment questions by a witness before a sub-
committee chaired by Senator Ervin smacks
of carrying coals to Newcastle. Nonetheless,
since I have been asked to do so, I will
briefly discuss what I think are the appli-
cable legal principles.
It will be helpful to begin by posing the
issue in a slightly hypothetical way. You
know, of course, that the intelligence activ-
ities I have been discussing are rested, on a
statutory base-10 U.S.C. ?? 331, 332 and 333.
These statutes say in effect that in stated
circumstances the President shall use the
Army to suppress domestic violence. Suppose
the intelligence activities carried on by the
Army, as disclosed by the Chicago testmony,
were expressly authorized by those statutes.
Suppose, in other Words, that the statutes
said that to prepare itself to respond to the
President's call the Army should acquire all
the information it could about possible do-
mestic violence, such as where it was likely
to occur, who was likely to foment it, and
the like, and that in aid of that task the
Army should collect and maintain extent e
dossiers on individuals and organizatj .'s
containing allsort of information, inciudl,g
as to individuals information relating '.o
political activities, thoughts, associatit'
travels, finances and sexual conduct. S?or-
pose also that the statutes authorized tie
collection of this information by "Covera't.
which Mr. Filkins described. Woula
statues be constitutional?
States v. Robel, 389 U.S. 258. The Robei case
dealt with a statute (? 5(a) (1)) (D) of 'lie
Subversive Activities Control Act of l"h0)
that prohibited a member of a so-cal ed
Communist-action organization from Wd: lt-
iug in a "defense facility." Robel was a icai-
ber of such an organization and woh' cd
in such a facility, but he argued that v re
membership couldn't constitutionally he
made a reason for prohibiting him from -e-
taining his job. He said that he might: 'se
a mere passive or inactive member, not in
active, knowing, member possessing the : e-
cific intent of furthering the unlawful g?:als
of his organization, and that therefore t)`' re
was no showing of possible harm to he
country if he were to retain his defense +a.-
cility job. Absent such a showing, the
ment went, the statute would be uneof, 11-
tutional because it indirectly affected `to-
bel's First Amendment right of freedo of
association, and a statute which tref.fzee
upon First Amendment rights must be ^ry
narrowly drawn to achieve only its legitil','te
objective. The Robel statute, it was arg': ?"d,
was too broad because it covered any--';!?'pe
of membership,
The Supreme Court agreed and held he
statute unconstitutional. "[P]recision of 'g-
ulation must be the touchstone in an s?ea
so closely touching our most precious T.ze-
doms," it said. And it added, "It is preci ely
because that statute sweeps indiscrimint' ely
across all types of association with C`?,m-
munist-action groups, without regard to the
quality and degree of membership, the it
runs afoul of the First Amendment." 189
U.S. at 265, 262.)
The Government argued that the U-; Ai-
mate interest It had in protecting deli ose
facilities was very great, that there q t ' a
risk of internal subversion in plants on ti ich
the national defense depended, and tn.at
the statute was therefore based on the 'n-
portant and pervasive war power.
The Court responded that these co: a .id-
erations were insufficient to save the stair ate.
"[T]he phrase 'war power' cannot be in-
voked as a talismanic incantation to suport
any exercise of congressional power ,r;aich
can be brought within its ambit. '[E]vea. the
war power does not remove constitut1 foal
limitations safeguarding essential libertii ."'
(389 U.S. at 263-64.)
"[T]his concept of 'national defense' - an-
not be. deemed an end in itself, justif lug
any exercise of legislative power deslgnp '_ to
promote such a goal. Implicit In the ;-arm
'national defense' is the notion of defeti ling
those values and ideals which set tht(; Na-
tion apart . . . It would indeed be jr,nic
if, in the name of national defens?. we
would sanction the subversion of of of
those liberties-the freedom of associat.= a-
which makes the defense of the N,aion
worthwhile." (389 U.S. 264.)
The Robel statute, which the Court .aid
"cut deeply into the right of associaton"
(389 U.S. at 264), was a very narrow sty -.:.ite.
It singled out a limited category of per- ?ns,
Tune 14, 1971
members of Communist-action organizations,
and it imposed a limited disability nn them,
namely, they they couldn't be employed in
certain kinds of defense plants.
Here we are talking about a hypothetical
statute that does not define narrowly the
category of persons to whom It relates and
does not impose a limited disability. Rather
it covers very nearly all of the activities of
an open-endedgroup of persons.
And so I think, in principle, our hypo-
thetical statute should fare no better than
the statute in Robei. Indeed, ours would be
what the lawyers call an a fortioriri case.
There are some differences, of course. Robei
Involved a criminal statute, and if we come
back to the real world, we are not in the
Army case talking about a statute at all, let
alone a criminal statute-only about What
I will call administrative activity. None-
theless, I think the deterrent effect on the
exercise of the freedom of association is
clear, and the fact that the government
activity takes the form of administrative ac-
tivity rather than a criminal statute would
not, T think, save the activity from being
viewed as running afoul of the First Amend-
ment.
I air reminded of a 1965 case, Lamont v.
Postmaster General of the United States,
381 U.S..301, in which the Supreme Court
held that a statute unconstitutionally
abridged the First Amendment right of free
speech because it required recipients of a
certain kind of mail --so called "communist
political propaganda"--to request in writing
that it be delivered. The abridgment of a
First Amendment freedom there took the
form, as it does here in the Army situation,
of an administrative activity which had only
an indirect impact on the right of free speech.
Lamont is an interesting and relevant case
on the issue of impact as well. There It was
argued that since an addressee taking the
trouble to return a card would receive the
publication named in it, only inconvenience
and not an abridgment of First Amendment
rights was involved; and that the Post Office
procedure did not control the content of
speech but only incidentally limited its un-
fettered exercise. (This view is analogous
to Judge Austin's view in the Chicago trial
that the Army's surveillance activities did
not bear directly on the plaintiffs' first
amendment rights and that they had no
reason to be fearful or deterred in their exer-
cise.) The Lamont court said:
"This requirement is almost certain to
have a deterrent effect, especially as respects
those who have sensitive positions. Their
livelihood may be dependent on a security
clearance. Public officials, like school teach-
ers who have no tenure, might think they
would invite disaster if they read what the
Federal Government says contains the seeds
of treason. Apart from them, any addressee
is likely to feel some inhibition in sending
for literature which federal officials have
condemned as 'communist political props-
ganda.' " (381 U.S. at 307.)
Since his view that the Army's activities
were no real threat to any First Amendment
right was one of the two principle threats
in Judge Austin's decision in the Chicago
case, perhaps an additional word on the
subject of threat or impact would be appro-
priate. One commentator has put very suc-
cinctly and well a common theme of some
recent Supreme Court cases, namely, that a
regulation "may run afoul of the Constitu-
tion not because it is aimed directly at free
speech, but because in operation it may
trigger a set of behavioral consequences
whit ! am'ntnt in effect to people censoring
themselves in order to avoid trouble with
the law." (Zalven A Note on Free Speech
and the Warren Court, 67 Mich. L.R. 289,
297.) Three illustrations were given. In
Speiser v. Randall, 357 U.S. 513, the Court
invalidated a state statute requiring affi-
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davits on non-Communist affiliation as a
condition for tax exemption because, fearful
that he might otherwise prejudice his ability
to bear his burden of persuasion, the tax-
payer would restrict his own utterances. The
Court said, "[T]his procedural device ...
can only result in a deterrence of speech
which the Constitution makes free." (357
U.S. at 526.)
In Smith v. California, 361 U.S. 147, the
Court struck down a statute which imposed
strict criminal liability on sellers of obscene
books, because "if the bookseller is crimi-
nally liable without knowledge of the con-
tents . . . he will tend to restrict the books
he sells to those he has inspected; and thus
the State will have imposed a restriction
upon the distribution of constitutionally
protected as well as obscene literature." (361
U.S. at 153.) The Court concluded,
"The bookseller's self-censorship, com-
pelled by the State, would be a censorship
affecting the whole public, hardly less viru-
lent for being privately administered." (361
U.S. at 154.)
Finally, in Time, Inc., v. Hill, 385 U.S. 374,
the Court held that Life Magazine could not
be required to pay a libel judgment Tor a
false story on a matter of public interest
absBnt proof that it had knowledge of the
falsity or published in reckless disregard of
the truth. The reason was again the self-cen-
sorship concern-
"Fear of large verdicts in damage suits for
innocent or merely negligent misstatement,
even the fear of expense involved in their de-
fense, must inevitably cause publishers 'to
.steer ... wider of the unlawful zone ...' "
The principle at work in Speiser, Smith
and Time, Inc. seems to me equally applicable
in the Army situation. Paraphrasing Lamont,
anyone is likely to feel some inhibition in
attending certain meetings or joining cer-
tain organizations if as a result the military
arm of the government will compile and
maintain an extensive dossier concerning his
activities. The full and free exercise of the
First Amendment right of freedom of associ-
ation is likely to be the loser.
This is not to say, of course, that no sur-
veillance of anyone under any circumstances
is permissible. It is only to say that since
surveillance Is likely to have a restrictive ef-
fect upon First Amendment freedoms, the
government's legitimate interests must be
pursued by means which are not needlessly
wasteful, as Professor Kalven has put it, of
First Amendment values. In Shelton v.
Tucker, 364 U.B. 479, a statute was voided
which required each schoolteacher, as a con-
dition of employment, to file annually an af-
fidavit listing every organization to which
he had belonged_ or contributed in the pre-
ceding five years. The Court said that al-
though the state had a legitimate interest in
the organizational commitments of Its teach-
ers, the statute overshot its target.
"[E]ven though the governmental pur-
pose be legitimate and substantial, that pur-
pose cannot be pursued by means that
broadly stifle fundamental personal liberties
when the end can more narrowly be
achieved." (364 U.S. at 488.)
And in the concurring opinion in Lamont,
Justice Brennan said, "In the area of First
Amendment freedoms, government has the
duty to confine itself to the least intrusive
regulations which are adequate for the pur-
pose." (381 U.S. at 310.)
Given Mr. Jordan's admission that the
Army has no need of much of the informa-
tion which it has been collecting, it seems to
me almost beyond argument that these prin-
ciples are applicable to the facts as disclosed
by the testimony in the Chicago trial.
Once again, Mr. Chairman, I thank you
for the opportunity to appear here today.
CONSUMER PRODUCT WARRANTY
AND FEDERAL TRADE COMMIS-
SION IMPROVEMENTS
Mr. COOK. Mr. President, currently
before the Consumer Subcommittee is S.
986, the Consumer Product Warranty
and Federal Trade Commission Im-
provements Act of 1971. As the ranking
minority member of the subcommittee,
I have been very much involved both in
the hearings held on the bill, and in the
recent executive sessions,
Basically, the bill would accomplish
two things. Title I would establish Fed-
eral standards regarding the presenta-
tion, offer and fulfillment of warranties
and warranty obligations. Title II would
greatly expand the FTC's authority
granting it legislative rulemaking au-
thority which would give it unprece-
dented power.
As expected, the bill has aroused con-
siderable controversy among consumer
groups and industry representatives, as
well as Members of Congress.
Recently, there appeared in the May
30 Louisville Courier Journal a story re-
portedly covering my alleged activities
and feelings in regard to this legislation.
To portray this article as merely mis-
leading or an oversimplification of the
proposed bill, and the facts surrounding
it, would be a compliment that it unjust-
ly deserves.
Because such inaccuracies should not
go unanswered, I am taking the liberty of
pointing out the most obvious errors,
Just as vehemently ... he [Cook] op-
poses . . . fines, for any unfair or deceptive
practices.
Those who have been seriously follow-
ing this legislation must know that I
support an increase in the maximum
civil penalty from $5,000 to $10,000 per
violation.
With one of the sweeping legalistic judg-
ments . Cook declares the provision is
unconstitutional and that it represents an-
other abdication by Congress of its legislative
role.
I do not apologize for being a lawyer.
Title'II of S. 986 gives to the FTC more
authority than any executive agency has
ever possessed. It would give this five-
man appointed Commission the power to
issue legislative rules. Article I of the
Constitution clearly states that-
All legislative powers herein granted shall
be vested in a Congress of the United
States ... (emphasis added).
It is bewildering in this era of congres-
sional reassertion of authority that there
should be a clamor for the Congress to
delegate any more of its constitutional
functions.
Furthermore, these industrywide
rules would be issued after an informal
procedure that does not even guarantee
the right of cross-examination.
Title II would also permit the FTC,
when it deems necessary, to order specific
consumer redress in the form of ancil-
lary remedial orders entered in the Fed-
eral district courts. I have very serious
reservations as to whether there are
S 8951
sufficient checks on the Commission's
authority in this area.
Cook's delaying tactics-seeking time for
more witnesses, asking for postponements,
failing to show up for meetings-have helped
stall subcommittee action on the bill.
Of the several misrepresentations and
erroneous allegations, this is the easiest
to refute. Anyone who did not have suffi-
cient interest to follow the hearings may
have solicited the committee records to
ascertain the correct facts.
I have never asked for a delay or a
postponement of any meeting or hearing,
except for a 1 day delay of an executive
session scheduled for May 20, at 9:30
a.m., which request was prompted due
to the fact that the Senate was in session
until 11:29 p.m. on May 19. No objection
was heard to this suggestion; it was
readily accepted by the chairman.
I have never missed any meetings and
thus delayed action because of a lack of
a quorum. In fact, the Commerce record
will show that I have not missed a single
hearing day or executive session in re-
gard to this legislation. Furthermore, I
have chaired the hearings on one occa-
sion when the chairman could not be
present. This is certainly not the track
record of an obstructionist.
The actual reason for the delay has
been the heavy schedule of the Com-
merce Committee, which has considered
S. 986, consumer class action legislation,
"no fault" insurance legislation and
campaign reform legislation, and several
other matters all within the past 3
months.
I ask unanimous consent to insert in
the RECORD at this point a letter from
Fred Lordan, staff director of the Senate
Commerce Committee, certifying my
attendance in regard to meetings and
hearings on S. 986. I also ask that a let-
ter, disputing the Courier Journal article
and signed by every member of the
subcommittee, be inserted at this point.
There being no objection, the letters
were ordered to be printed in the RECORD,
as follows:
JUNE 4, 1971.
Hon. MARLOW W. COOK,
U.S. Senate,
Washington, D.C.
S. 986: March 9-hearing-you did attend.
March 15-hearing-you did attend.
March 16-hearing-You did attend and
preside.
March 22-hearing-you did attend.
May 21-executive session-you did attend.
June 2-executive session-you did attend.
Sincerely,
FREDERICK J. LORDAN,
Staff Director.
Enclosures: Front pages of all hearings
on said bills.
U.S. SENATE,
COMMIT= ON COMMERCE,
Washington, D.C., June 7, 1971.
Hon. MARLOW W. CooK,
Old Senate Office Building,
Washington, D.C.
DEAR MARLOWE: We, as members of the
Consumer Subcommittee of the Committee
on Commerce, have become aware of the
Sunday, May 30, article in the Louisville
Courier Journal entitled, "Marlow Cook
draws the Fire of Consumer Groups."
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1971
This article makes several misrepresenta-
tions concerning your activities in your
capacity as ranking minority member of this
Subcommittee.
in particular, the article alleges that you
have, by involving parliamentary and pro-
cedural rules, delayed and forestalled action
on S. 986, "The Consumer Product Warranty
and Federal Trade Commission Improve-
ments Acts of 1971" As your colleagues we
disapprove of and disagree with the errone-
ous allegations set forth in the article.
We are writing this letter to clarify the
nlisimpressions created by this story. For the
record:
(1) The article claims that you have been
responsible for numerous and prolonged de-
lave in the consideration of S. 986. To our
knowledge you have never asked for a delay
or a postponement of any meeting or hear-
ing except for a one day delay of an execu-
tive session scheduled for May 20, at 9:30
a.m., which request was prompted due to
the fact that the Senate was in session until
midnight on May 19.
(2) The article alleges that you have In-
tentionally missed meetings and thus delayed
action because you created the lack of a
quorum. In fact we know you have not missed
a single hearing day or executive session in
regard to this legislation; and that you
chaired the hearing on one occasion when
the Chairman could not be present.
(3) The article attributes the delays In
action on S. 986 (over two months) to your
activities, when the actual reason for the
delay has been the heavy schedule of the
Commerce committee, which has considered
S. 986, consumer class action legislation, "no
fault" insurance legislation and campaign
reform legislation, and several other matters
all within the past three months.
(4) The article claims that several mem-
bers of the Subcommittee are displeased with
your supposed delay tactics. None of us have
ever made such a statement or such a sug-
gestion.
With best wishes.
Sincerely,
Frank E. Moss, Chairman, John O. Pas-
tore, Daniel K. Inouye, William B.
Spong, Philip A. Hart, Vice Chairman,
Vance Hartke, James B. Pearson, Mark
O. Hatfield, Ted Stevens, Norris Cotton.
Mr. COOK. Mr. President:
Knowledgeable sources report that Pear-
son-a close personal friend of the Ken-
tuckian-lectured Cook that he was making
a "bad mistake" by attempting to stymie
consumer legislation, and that such tactics
could cost Republican politicians votes.
Again, by an unknown "source," a very
serious allegation concerning my activ-
ities on consumer legislation was stated
in the article. Once again, I can merely
say that I have never attempted to
"stymie" any consumer legislation, The
so-called lecture by my good friend and
distinguished colleague from Kansas was
merely a talk in which he expressed con-
cern that I might be unjustly labeled
anticonsumer by various groups. How
prophetic he turned out to be. Once
again, I ask unanimous consent to insert
at this point a letter of reply from Sena-
tor PEARSON.
There being no objection, the letter
was ordered to be printed in the RECORD.
as follows:
U.S. SENATE,
CoMmirTEE ON COMMERCE,
Washington, D.C., June 8, 1971.
Hon. MARLOW W. COOK,
Senate Office Building,
Washington, D.C.
DEAR MARLOW: I have read with great in-
terest the May 30 article in the Louisville
Courier Journal concerning my alleged ? -e-
marks about your views on many pefcltng
consumer proposals. To set the re ?rd
straight, I must state that I never had =ny
concern that you would "stymie" consli er
legislation.
However, I was worried then, as I am i-sw,
that your interest in obtaining more effect ve
consumer laws and your tendency to ast he
hard question, would put you in the posy'.on
of being labeled unjustly as anti-const',s:7er
by some groups.
As a matter of fact, your active and krl" l-
edgeable participation in shaping S. 98( c-
veais yout great interest In the problel1 of
the consuming public.
Sincerely yours,
JAMES B. PEARSON,
U.S. Senate
Mr. COOK. Mr. President:
This bill has been heard now for 2 year
Any conscientious Congressman can vote on
it today--all the consumer wants is for t he
Members of Congress to stand up aWl be
counted.
This last quote is neither particul rly
important nor relevant, I merely quot it
as an excellent example of journal. tic
innuendo designed to characterize sne
as "anti."
The period of time that a bill is be,` }re
the Congress has, in fact, very little t+: do
with its merits. In my brief 2Y2 yeas-: in
the Senate, I have seen poor legisla on
become law quickly; likewise, many?od
measures have been pending for yi ars
without any committee consideratio'r .
Title II of S. 986 which grants swr ap-
ing legislative rulemaking authorit' to
the FTC is similar to title II of S. 323 of
a year ago. This proposal has then
around for only 1 year as it was addef by
the Commerce Committee to S. 3201 n a
closed and secret executive session c ter
public hearings were closed. Actii fly,
legislative rulemaking was substanti illy
different in S. 3201 of the 91st Coro, ens
than S. 986 of this year. Every witazess_
including the bill's sponsor, at the tlerr-
ings on S. 986 have testified to this aa-
terial difference in the rulemaking? ro-
posal.
Thus, the demand that Congress s(::nd
up and be counted is one that in tai 4:ect
asks that Congress act hastily on ~.ew
and far-reaching legislation.
Mr. President, as the only memb+: of
the subcommittee who has attended to airy
hearing and every executive sessiol in
regard tothis legislation; and as a In am-
ber of the two committees, Comb -rce
and Judiciary, which considered sili??ilar
legislation in the last Congress, I fcA I
have a good understanding of the il..ent
and the potential effects of this leg; la-
tion.
Unfortunately, many consumer 0.. o-
cates have created the impression hat
any opposition to any provision of S. 986
is sufficient grounds to accuse tht =_Eb-
jector as anticonsumer.
However, I should like to point out nat
unlike many I do support a chart, in
the present law increasing the FTC? ;tu-
thority to matters "affecting" camp.. rce
as well as "in commerce." I also fii oily
support the proposal allowing the 1"ed-
eral Trade Commission to seek a re-
liminary injunction or a temporary re-
straining order against an unfair or de-
ceptive practice. I believe these chs- ges
are absolutely necessary to correct' = on-
sumerr abuses. I have always supported
these proposals; I will continue to sup-
port them regardless of the position of
any industry group..
I have been relatively outspoken, both
in the hearings and executive session, in
criticizing certain provisions of the bill.
I have not attempted to hide behind
Closed doors the views that I hold. These
criticisms have not been intended to
deny needed protection to the consumer.
Rather, I feel strongly that S. 986, as
introduced, did not provide adequate
protection to the consumer, and in some
cases could actually work to his detri-
ment. For example, certain provisions of
title I would have placed requirements
on industry that would probably have
forced some small businesses to forgo
the offering of warranties on their prod-
ucts. This was not the intent of the leg-
islation. The intent was to allow the
Federal Trade Commission to establish
standards for warranties, not to force
manufacturers to warrant. As a matter
of fact, by forcing many companies out
of business, the consumer will have his
freedom of choice in the marketplace re-
stricted. Monopolization will not benefit
the consumers.
Recognizing these faults, I sug-
gested several changes which have been
accepted by the members of the subcom-
mittee, and also by bill's sponsor, Sen-
ator Moss, the chairman of the subcom-
mittee.
As a matter of fact, every change that
I have proposed in title I has been ac-
cepted. I believe this is ample evidence
that all members of the subcommittee
are vitally interested in producing a
significant and effective bill in this area.
I feel that title I of S. 986, now represents
such a piece of legislation.
Mr. President, in spite of such ill-
founded attacks, such as appeared in
this article, I pledge to continue my ef-
forts to enact truly effective consumer
ANSWER TO THE MAJOR OBJEC-
TIONS TO THE GENOCIDE
CONVENTION
Mr. PROXMIRE. Mr. President,
Arthur Goldberg is an ardent supporter
of the International Convention on the
Prevention and Punishment of the Crime
of Genocide. He has served this Nation
in many capacities. His terms on the Su-
preme Court and as Ambassador to the
United Nations qualify him as an ex-
pert on both constitutional and inter-
national law.
The Senate ought to consider the
arguments made by Arthur Goldberg in
testimony before the ad hoc subcommit-
tee on the Genocide Treaty. The Senate
ought to ratify the Convention so
stanchly supported by Mr. Goldberg.
1 ask unanimous consent to have an
excerpt of Mr. Goldberg's testimony
printed at this point in the RECORD.
There being no objection, the excerpt
was ordered to be printed in the RECORD,
as follows:,
Let; me comment on the arguments that
have been given particular prominence by
the opponents of ratification:
1. The contention that the Constitution
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