CONGRESSIONAL RECORD--SENATE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000500370021-8
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 9, 2016
• Document Release Date: September 2, 2001
• Sequence Number: 21
• Publication Date: May 7, 1973
• Content Type: OPEN

Approved For Release 2001/09/0Z ? CIA:INIP7M313pR000500370021-8
May 7, 1973 CONGRESSIONAL KEcult
'The minimum wage would be raised to $1.80
an. hour on the effective date of these amend-
raents (60 days after enactment); to $2.00 an
hour one year later; to $2.10 two years after
the effective date; to $2.20 three years after
the effective date; and to $220 four years
after the effective date. These increases
would apply equally to all non-agricultural
employees within the coverage of the Act,
regardless of when they were first covered.
Amends section 6(a) (5) of the Act to raise
the minimum wage for agricultural em-
ployees to $1.50 an hour during the first year
after the effective .date of these amendments,
$1.70 an hour during the second year, and
$1.90 an hour thereafter.
SECTION 4
Amends section 6(a) of the Fair Labor
Standards Act to retain the present mini-
mum wage of $1.60 an hour for employees
in the Canal Zone.
SECTION 5 ?
Amends section 6(c) Of the Fair Labor
Standards Act to raise' the minimum wage in
Puerto Rico and the Virgin Islands by three
121/2 percent increases over the most recent
wage order rate, the first increase to be effec-
tive either 60 days after enactment of the
bill or one year after the effective date of
the most recent wage order, whichever is
later. The second increase would be effective
one year after the first; the third increase
would be effective one year after the second.
SECTION 6
Amends section 12 of the Fair Labor Stand-
ards Act to authorize the Secretary of Labor
to require employers to obtain proof of age
from any employee. This would facilitate
enforcement of the child labor provisions
of the Ace.
? SECTION 7
Amends section 13(c) (I) of the Fair Labor
Standards Act, which relates to child labor
in agriculture, to prohibit employment of
children under 12 except on farms owned or
operated by parents; and to prohibit employ-
ment of children aged 12 and 13 except with
written consent of their parents, or on
farms where their parents are employed.
Amends section 13(d) of the Act to extend
the existing child labor exemption for news-
boys defivering daily newspapers to newsboys
.delivering advertising materials published by
weekly and semi-weekly newspapers.
SEL41017 8
Amends section 14(b) of the Fair Labor
Standards Act to establish a special mini-
mum wage rate for youth under 18 and full-
time students of 85 percent of the applicable
minimum wage or $1.60 an hour ($1.30 an
hour for agricultural employment) , which-
ever is higher. The special minimum wage for
the same employees in Puerto Rico, the
Virgin Islands, and American Samoa would
be 85 percent of the industry wage order
rate applicable to them, but not less than
the rate in effect Immediately prior to the
effective date of the Pair Labor Standards
Amendments of 1973.
Non-students under 18 would qualify for
the "youth differential" rate only during their
first 6 months of employment on a job. run-
time students would qualify for the differ-
ential rate (a) while employed at the educa-
tional institution they are attending; or (b)
while employed part-time (not in excess of
20 hours per week) at any job.
The existing requirement in the Act that
employers receive Labor Department certifi-
cation prior to employment of youth at the
special minimum rate would be removed. The
Secretary of Labor would be required to issue
regulations insuring against displacement of
adult workers. Employers violating the terms
of the youth differential provision would be
subject to existing civil and criminal penalty
provisions of the Act.
SECTION 9
Amends section 16 of the Fair Labor Stand-
ards Act to provide for a civil penalty of up
to $1,000 for each violation of the child labor
provisions of section 12 of the Act.
SECTION 10
Amends section 16(c) to allow the Secre-
tary of Labor to bring suit to recover unpaid
minimum wages or overtime compensation
and an equal amount of liquidated damages
without requiring a written request from an
employee. In addition, this amendment
would allow the Secretary to bring such -
actions even though the suit might involve ,
issues of law that have not been finally )
settled by the courts.
?
S 8343
if they continue to oppose any type of youth
sub-minimum.
Senator Dominick has already gone over
the provisions of our proposal and included
a summary thereof. I will not duplicate this
effort. I would ask, however, that each Sen-
ator carefully examine the issues raised with
respect to increasing the minimum wage and
then consider our proposal.
All Americans desire to see the elimination
of sub-standard and exploitive wage prac-
tices. Let us in the Congress work together
in this session toward this goal. es' 0 G
SECTION 11
Amends the Age Discrimination in Em-
ployment Act of 1967 (P.L. 90-202) to ex-
tend its coverage to federal, state and local
government employees.
SECTION 12
Requires the Secretary of Labor to under-
take a comprehensive review of the minimum
wage and overtime exemptions under section
13 of the Fair Labor Standards Act and to
submit to Congress within three years a re-
port containing recommendations as to
whether each exemption should be continued,
removed or modified.
SECTION 13
Technical amendments.
SECTION 14
Provides that the amendments made by
this Act would become effective sixty days
after enactment, and authorizes Secretary of
Labor to promulgate regulations necessary to
carry out such amendments.
STATEMENT A SENATOR TAFT
Minimum wage legislation has been the
subject of considerable discussion during the
last two years, with extensive debate in this
body and the other body. Senator Dominick
and I today have introduced a bill that we
feel is a very constructive approach to in-
creasing the minimum wage. I understand
Senators Williams and Javits also plan to in-
troduce a minimum wage proposal in the
near future. I am sure their proposal will be
a great help in considering this important
topic.
It is Important to remember, however, that
the Congress must be very careful in acting
to amend the Pair Labor Standards Act. If
we enact increases to the minimum wage too
quickly, many employees may lose their jobs.
Many of our nation's small businesses would
also be severely affected if the minimum is
increased too quickly. We must remember
that the Fair Labor Standards Act is basically
small business legislation, and any attempt
to make it other than that can be fatal to
many of our nation's small employers and
their employees.
Another extremely important concept with
regard to the minimum wage question is the
concept of a youth differential. Any way you
examine the unemployment situation for our
nation's youth, you are readily apprised of
extremely pressing problems. It is truly dis-
couraging to see that many of our nation's
youth, especially minority youth, do not have
a job, nor do they have the prospect of ob-
taining one. Senator Dominick and I have
suggested a sub-minimum wage proposal to
be applicable for youth 18 years of age and
under. We feel this proposal has merit and
will help alleviate part of this youth unem-
ployment problem. I realize the strong feel-
ing of organized labor against this concept,
but I also know that they are quite aware
and quite concerned about the problem of
youth unemployment. I hope that they will
again carefully consider this question and
provide constructive alternatives in this area
(4
Lir)
By Mr. GRAVEL:
S. 1726. A bill to provide guidelines
and limitations for the classification of
information and material, to insure the
integrity of the Congress as a separate
branch of the Government by preventing
the unwarranted interference in con-
gressional functions by the executive and
judicial branches, to establish an Office
of the General Counsel to the Congress,
to require the disclosure of information
to Congress by the executive branch,
to protect the confidentiality of informa-
tion and sources of information of the
news media, and for other purposes. Re-
ferred to the Committee on Government
Operations.
TIIE PEOPLE'S NEED TO KNOW
Mr. GRAVEL. Mr. President, the pre-
requisite of a free, self-governing peo-
ple is an enlightened citizenry. If the
American people are to be meaningful
participants in the operation of their
Government, they must have easy access
to virtually all information. The Gov-
ernment's shrill claims of a "need" for
secrecy must give way to the higher
priority of the citizen's need to know,
his right to know. .
I have identified five areas in which
it seems to me crucial, that we act in
order to preserve the free flow of in-
formation:
First. We must control excessive
secrecy by establishing guidelines, and
limitations for classification and declas-
sification. This does not mean mandat-
ing secrecy itself, as the administra-
tion has proposed.
Second. We must assure the congres-
sional role in gathering and disclosing
Information by protecting Members of
Congress from intimidation by the
Executive.
Third. We must put a stop to the abuse
of Executive privilege. While the ad-
viser relationship should be kept sacro-
sanct, it should never be used to keep
information from the Congress.
Fourth. We should establish our own
general counsel to preserve congressional
Immunity, defend our membership from
Executive harassment, and act aggres-
sively to halt Executive usurpation of
power.
Fifth. We must grant newsmen im-
munity from disclosure of information
and sources. A free press will assist Con-
gress in informing the people, and it will
keep the Congress itself honest.
I have attempted to deal with the
problems in each of these areas in sep-
arate titles of a comprehensive bill,
the "Public Information Act of 1973,"
which I am introducing today. I ask
unanimous consent that this bill, to-
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S 8a44 CONGRESSIONAL RECORD ? SENATE May 7, 1973
gether with an accompanying scclon-
by-section analysis, be printed at this
pointin the RECORD.
There being no objection, the bill and
analysis were ordered to be printed in
the Itecoan, as follows:
S. 1726
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress .assembled, That this
Act may be cited as the "Public Information
Act of 1973".
TITLE I?AMENDMENTS TO FREEDOM OF
INFORMATION ACT
SHORT TITLE
SECTION 101. This title ma)' be cited an the
"Freedom of Information Act Amendments
of 1973".
ATTORNEYS' FRES
SEC. 10::. Section 552(a) (3) of title 5,
United States Code, is amended by adding
at the end thereof the following new sen-
tence: "The court shall award reasor able
attorneys' fees and court costs to the com-
plainant 11 it issues any such injunction or
order against the agency,"
CONFORMING AMENDMENTS
SEC. 103. Section 552(b) of title 5, United
States Code, is amended?
(1) by striking out "(b) This section" and
insertion in lieu thereof "(b) (1) subsection
(a)";
(2) by redesignating paragraphs (1)
through (e) as subparagraphs (A) thrc ugh
,1I), respectively;
3) by striking out subparagraph (A), ac re-
designated by clause (2), and inserting in
lieu thereof the following: "(A) designated
Secret Defense Data in accordance with eub-
section (d);"; and
(1) by inserting at the end thereof the
following new paragraph:
"(2) Subsection (a) applies to any matter
Which is declassified under subsection (e)."
CLASBEFICATION OF INFORMATION
SEC. 104. Section 552 of title 5, United
States Code, is amended by adding at the
end thereof the following new subsections;
"(d) (1) The Congress Ands and declares
that the free flow of information among in-
dividuals, between the Government and the
citizens of the United States, and among
tee separate branches of the Government is
essential U the proper functioning of the
Constitutional processes of the United States.
'I'he Congress further finds that certain an-
warranted eolicies and procedures for the
classificatioa of information and to material
have in the past unduly inhibited this free
floe/ of information, and that in order to cor-
rect this situation it is necessary to pre-
scribe certa.n guidelines and limitations for
the classification of information and mete -
rial which the President or the head of an
agency determines to require limited die-
semination in the interest of national de-
fense. By prescribing such guidelines and
limitations, it is not the intention of the
Congress either to encourage the classifica-
tion of information and material or to es-
tablish as a criminal offense, in itself, 'the
unauthorized disclosure of any such clasei-
fled information or material.
"(2) The :Fresident and the heads of these
agencies listed under subparagraph (A) of
paragraph (4) are authorized to classify as
'Secret Defense Data' any official information
or material originated or acquired by them,
the unauthorized disclosure of which may
reasonably be expected to cause damage to
the national defense. Official information or
material may be classified as Secret Defense
Data only if its unauthorized disclosure
would adversely affect the ability of the
United States to protect and defend itself
against oveit or covert hostile action. In
no case shall information or material be
classified in order to conceal incompetence,
it efficiency, wrongdoing, or administrative
error, to avoid embarrassment to any in-
dividual or agency, to restrain competition
ce independent initiative, or to prevent or
delay for any reason the release of informa-
tian or material the dissemination of which
will not damage the national defense.
"(3) Except as otheraise provided by law.
no designation other than 'Secret Defense
Data' shall be used to classify information or
material in the interest of national defense.
The President or the head of the agency
originating or receiving Secret Defense Data
may use such routing indicators as may be
appropriate to assist in limiting the dis-
semination of individual items of such Secret
Defense Data to designated recipients.
-'(4) (A) Official information or material
nety be originally classified is Secret Defense
Data by the heads of?
(i) such offices within the Executive Office
of the President as the President may de-
sienate by Executive Order;
'411 the Department of State;
''(11i) the Department of Defense and the
military departments, as defined in section
105 of this title;
t(icl the Department of the Treasury;
'(vi the Department of Justice;
(vi) the Department of Commerce;
(vii) the Department of Transportation;
(viii) the Atomic alnergy Commission;
-(1x) the Central Intelligence Agency; and
-(x) the Naticnal Aeronautics and Space
Ad ministration.
a(B) (i) The President and the head of
each agency listed under subparagraph (A)
may authorize In writing senior principal.
deputies, assistants, and subordinate offi-
cials within each such agency to classify
official information or material as Secret
Defense Data. In no case may any individual
occupying a positron lower than the level
of section chief or its equivalent be authoe-
izel to classify official information or ma-
terial as Secret Defense Data, and no indi-
vidual may be granted such authority un-
less his daily operational responsibilities re-
quire that he have such authority.
(ii) Officers and employees of agencies
other than agencies listed under subpara-
graph (A) may not classify official informa-
tios or material, and the authority to clas-
sify may not be delegated or transferred to
any other agency except by Act of Congress.
An officer or employee 01 an agency who is
not authorized to classify official information
or material under this subsection, but who
originates or supervises the origination of
official information or material which ha
believes to qualify for classification as Secret
Defense Data, may recommend classification
of any such information or material by the
head of the agency having both a direct offi-
cial interest in the information or material
and the authority to classify it.
"(Hi) Each individual authorized by the
heal of an agency listed under subparagraph
(A) to classify official information or mate -
rial shall be furnished within written in-
streettons advising him cif the subject mat--
ter which he may classify and of any other
requirements applicable to him in the exere
cise of his classification authority. The head:
of each such agency shall semiannually re-
view his designation of alathority to classify
official information or material and shall re-
yoke such designation in the case of any
individual whose operational responsibilities-
no longer require that he have such
authority.
4'11Y) No individual authorized to classify
information or material may redelegate such
authority to any other individual.
"( v) Any individual who, acting in a cler-
ical capacity, handles any classified informa-
tion or material need not have authority to
classify such information or material in or-
der to copy Cr otherwise reproduce or to put
classification markings on such information
or material.
"(5) The head of each egency listed under
paragraph (4)(A) shall compile and main-
tain a oemplete llst of the inames and offi-
cial addressesiof all indlivduals within such
agency who ;ere authorized to classify offi-
cial addiesses of all individuals within such
list shall be submitted iluarterly by each
such agency bead to the Comptroller Gen-
eral of the United States, A copy of each
such list shale be made available, upon writ-
ten request to the appropriate agency head
by any Member or committee of Congress,
to such lefeinher of committee.
"(6) Official information and material
shall be class:Bed according to what It con-
tains or reveals and not according to its
relations-tip with or reference to other in-
formation or material. No document or other
material may be classified unless it contains
or reveals an -element of official information
specifically designated as Secret Defense Data
pursuant to this subsection,
"(7) Any document or ether material ob-
ject, including,- communications transmitted
by electrical means, containing or revealing
information designated a; Secret Defense
Data shall be appropriately and conspicu-
ously markeel or other identified to show--
(A) the designation 'Secret Defense Data';
"(B) any routing designator which may
have beer, assiened;
"(C) the office of origin:
"(D) the data of origin;
"(E) the name and title of the individual
who classified the document or object; and
"(F)--the date of original classification.
The marking cr other ideraification shall be
limited to theses paragraphs or other sep-
arate segments of the document or other ob-
ject which requireprotection, and the clas-
sification authority shall (1) mark or identify
only those paragraphs or segments which
require protecieon, or (ii) include with the
document or other object a statement spe-
cifically describing those paragraphs or seg-
ments which require proteetion.
"(8) Information or material furnished to
the United Stales by a foreign government or
International organization, the unauthorized
disclosure of which could reasonably be ex-
pected to cause damage to the national de-
fense or to the defense of is foreign govern-
ment with whieh the Unitel States is allied,
may be designated as 'secret defense data',
except that any such information or mate-
rial shall be provided to any Member or com-
mittee of Congress upon written request to
the appropriate agency, notwithstanding any
contrary agreement or stipulation.
"(9) Official information or material origi-
nated or acquired by an agency and classified
as 'confidential', 'secret', or 'top secret' pur-
suant to shy Executive order shall be sub-
ject to the provisions of this subsection.
Subject to review procedures established by
the President or the head of an agency, any
officer or emplooee having custody of a docu-
ment or other material classified as 'con-
fidential,'secreise or 'top secrete which is in
use or withdrawn from file or storage for use,
shall mark it in accordance With the pro-
visions of this subsection ro show that it
has been designated as Secret Defense Data,
or to show that it has been declassified and
cite this subsection or subsection (e) as the
authority for sach marking, unless declassi-
fication was accomplished before the effective
date of thin subeection.
"(e) (1) (A) /my official information or
other material which--
"(I) is classilled pursuant to the provi-
sions of subsecdon (d) after the effective
date of such subsection; and
"(it) at any time thereafter ceases to meet
the requirements of subsection (d) (2), or
can no longer be protected against unauthor-
ized disclosure,
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May 7, 1.973 CONGRESSIONAL RECORD ?SENATE
shall be declassified promptly by the Presi-
dent or an individual within the appropriate
agency who has the authority to classify
such information or material.
"(B) Except as provided in paragraph (2),
any official information or material which is
classified pursuant to subsection (d) on or
after the effective date of such subsection
and Which is not declassified as provided in
subparagraph (A), shall be declassified auto-
matically upon the expiration of two years
/after the end of the month of its classifica-
tion, by the President or an individual with-
in the appropriate agency who has authority
to classify such information or material, re-
gardless of whether or not the document or
other material has been marked to show the
declassification.
"(C) Except as provided by paragraph (2),
any official information or material which
was originally classified as 'confidential,
'secret', or `top secret' pursuant to any Ex-
ecutive order during the two-year period im-
mediately preceding the effective date of sub-
section (d), and which is classified as 'con-
fidential', 'secret', or 'top secret' on such ef-
fective date, shall be declassified automati-
cally upon the expiration of two years after
the end of the month of the original clas-
sification of such information or material,
by the President or an individual within the
appropriate agency who has the authority
to classify such information or material, re-
gardless of Whether or not the document or
other material has, been marked to show the
declassification. If the original date of clas-
sification of such information or material
is not known, it shall be declassified auto-
matically not later than the expiration of two
years after the effective date of subsection
(d).
"(D) Except as provided by paragraph (2),
any official information or material which
was originally classified pursuant to any Ex-
ecutive order, directive, memorandum, or
. other authority prior to the two-year period
immediately preceding the effective date of
subsection (d), and which continues to be
classified on such effective date, shall be
declassified automatically upon the expira-
tion of six months after such effective date,
by the President or an individual within the
appropriate agency who has authority to
classify such information or material, re-
gardless of whether the document or other
material has been marked to show the
declassification.
"(2) (A) Any official information or mate-
rial which is classified and which is subject
to automatic declassification as provided in
subparagraph (B), (C), or (D) of paragraph
(1) may be assigned a deferred automatic
declassification date by the President or the
head of the agency which originally clas-
sified such information or material or by
the head of the agency which has respon-
sibility for such information or material in
the case of a transfer of functions from one
agency to another, upon a determination by
the President or the agency head that the
information or material is of such sensitivity
and importance to continue to satisfy the
requirements for classification as Secret De-
fense Data. For each item of information
or material for which the President or the
head of an agency makes such a determina-
tion, he shall submit, in writing, to the
Committee on Government Operations of the
Senate, the Committee on Government Op-
erations of the House of Representatives,
and the Comptroller General of the United
States a detailed justificVon for the con-
tinued classification of such information or
material. Both such committees shall com-
pile and print at least annually as a public
document all such reports received by them,
except that upon recommendation of the
President or the head of the agency con-
cerned, such committee may delete from
printing any material which itself satisfies
the requirements for classification as Secret
Defense Data. Each such deletion shall be
indicated in the printed document, and the
complete document without deletions shall
be kept in committee files and made avail-
able, upon request, to any Member or com-
mittee of Congress. In no case may the Presi-
dent or the head of an agency assign a
deferred automatic declassification date of
more than two years after the date of de-
classification provided for under subpara-
graph (B), (C), or (D) of pargaxaph (1),
except that such official may assign an addi-
tional deferred automatic declassification
date upon determination that the classified
information or material continues to satisfy
the criterion for classification as Secret De-
fense Data. For each such deferral such offi-
cial shall submit a written justification as
provided herein. The authority to defer de-
classification shall not be redelegated by the
head of any agency. Any information or
material assigned a deferred automatic de-
classification date may at any time be declas-
sified in accordance with paragraph (1) (A).
"(B) (i) Any person may bring a civil ac-
tion on his own behalf against the President
or the agency head who is alleged to have
deferred the automatic declassification date
of official information or material which does
not satisfy the requirements (as described
in subsection (d) (2) ) for classification as
Secret Defense Data. The district court of
the United States in the district in which
the complainant resides, or has his principal
place of business, or the district court for
the District of Columbia, has jurisdiction to
enjoin the President or the agency head
from deferring the automatic declassification
date of information or material and to order
such declassification upon finding that such
information or material does not satisfy the
criterion for classificatin as Secret Defense
Data. In such a case the court shall deter-
mine the matter de novo and the burden
Is on the President or the agency head to
sustain his action. In the event of noncom-
pliance with the order of the court, the dis-
trict court may punish for contempt the
responsible official. Except as to causes the
court considers of greater importance, pro-
ceedings before the district court, as au-
thorized by this paragraph, take precedence
on the docket over all other causes and
shall be assigned for hearing and trial at
the earliest practicable date and expedited in
every way.
"(ii) The court, if it issues any injunc-
tion or order against the President or the
agency head in any action brought pur-
suant to subparagraph (B) (i), shall award
reasonable attorneys' fees and court costs
to the complainant.
"(3) The declassification of Secret Defense
Data shall be accomplished by issuance of
an official announcement describing or other-
wise identifying the information or material
to be declassified, or by the classification au-
thority authenticating the declassification
according to the procedures described in para-
graph (4) on the record copy of a docu-
ment or other material and notifying all
holders of copies of such document or mate-
rial that the information or material has
been declassified.
"(4) Any information or material which is
declassified, including information or mate-
rial automatically declassified, shall be mark-
ed as soon as practicable in order clearly to
show that it has been declassified. Such in-
formation or material also shall be annotated
to show the date of the declassification and
the name and title of the person who au-
thorized the declassification. Information
or material which is in storage when de-
classified need not be marked or annotated
until it is withdrawn for use, and informa-
tion or material which is declassified and
which is designated for destruction need
not be marked or annotated but may be
destroyed according to procedures applicable
to other non-classified material.
S 8345
"(5) The head of an agency which has
responsibility for functions transferred from
another agency shall exercise declassification
authority for such Secret Defense Data as
falls within the purview of the transferred
functions, even if such agency does not have
original classification authority. The Admin-
istrator of Services shall exercise declassi-
fication authority for such Secret Defense
Data as has been transferred to the General
Services Administration in order to be placed
In the Archives of the United States. In
order to carry out the provisions of this para-
graph, heads of agencies may designate such
senior principal deputies, assistants, and
subordinate officials as they may require to
accomplish declassification.
"(6) An officer or employee who has custody
of Secret Defense Data which he believes no
longer requires classification, and concerning
which he does not have declassification au-
thority, may recommend immediate declassi-
fication by the person or office having both a
direct official interest in such Secret Defense
Data and the authority to declassify it.
"(f) (1) The head , of each agency which
exercises authority to classify or declassify
official information or material shall, in con-
junction with the Comptroller General of the
United States, prescribe such regulations as
he considers necessary or appropriate to carry
out the provisions of subsections (d) and (e)
of this section, including regulations which
prescribe administrative reprimand, suspen-
sion, or other disciplinary action for the
improper classification of official informa-
tion or material.
"(2) The Comptroller General of the
United States shall monitor the actions taken
by agencies to implement and adhere to the
policies and provisions of subsections (d)
and (e) of this section. To this end the Comp-
troller General shall perform, among others,
the following functions:
"(A) Prescribe, in conjunction with heads
of agencies, such regulations as may be neces-
sary to achieve uniformity among agencies
in the implementation of subsections (d) and
(e) of this section.
"(B) Obtain and review agency implement-
ing regulations and those of such subordi-
nate components as may be necessary to de-
termine the effectiveness of agency actions.
"(C) Inquire on a periodic basis regarding
the need for assignment or retention of the
Sector Defense Data designation on selected
documents and other material.
"(D) Conduct visits on a periodic basis to
observe the practical application of classifica-
tion and declassification policy and the safe-
guarding of Secret Defense Data by officers
and employees of agencies.
"(E) Investigate, when deemed appro-
priate, inquiries initiated by private citizens,
officers or employees of the United States,
or any other person concerning any allega-
tion of improper classification of informa-
tion or material, or concerning any allega-
tion of the failure of any agency, or any
officer or employee thereof, to comply with
the policies and provisions of subsection (d)
or (e) of this section, or any regulation pre-
scribed under this subsection.
. "(F) Transmit semi-annual reports not
later than March 1 and September 1 of each
year to both the Senate Committee on Gov-
ernment Operations and the House Commit-
tee on Government Operations, setting forth
the findings of such reviews, inquiries, visits,
and investigations as may have been con-
ducted pursuant to subparagraphs (B)
through (E) during the reporting period, as
well as any other matters pertaining to the
implementation of subsections (d) and (e)
which may be of interest to the committees.
Such reports also shall contain any recom-
mendations for action by the committees
relating to this Act which the Comptroller
General may deem appropriate.
"(g) 'go person may withhold OT authorize
withholding information or material from
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the Congress, or any committee or Member
thereof, -el* from any court of the United
States on the basis that such information or
material is classified or qualifies for classi-
fication i.e Secret Defense Data or ie ether-
wise classified pursuant to any law. Execu-
tive order, directive, memorandum, or other
authority."
ATONLIC ENEGRY RESTRICTED DATA
SEC. 105. The provisions of this title shall
not affect any requirement made by or under
the Atomic Energy Act of 1954, as amended,
regarding the designating and protect on of
Restricted Data, as defined in that Act.
EFFECTIVE DATE
SEC. 106. (a) Except as provided in sub-
section (b), the provisions of this title shall
take effort on the first day of the fourth
month that commences after the date of its
enactment,
(b) Section 552(f), as added by section
104 of this title, shall take effect upon the
date of enactment of this Act.
TITLE II--CONGRESSIONAL PROTECTION
SEC. 201. Part II of title 18, United States
Code, is amended by adding at the end there-
of the fallowing new chapter:
"Chapter an?CONGRESSIONAL PROTECT/ON
"Sec.
"3791. Congressional protection.'
"1 3791. Congression protection.
"(a) Notwithstanding any other prolieion
of law, the courts of the United States, the
United ;States District Court for the District
of the Canal Zone, the District Covet of
Guam, the District Court of the Virign Is-
lands, the United States Commissioners, and
the United States magistrates shall have no
jurisdiction to conduct any criminal pro-
ceeding with respect to offenses against the
laws of the United States if such proceeding
relates to a legislative activity of a Member
of Congress.
"(la) (1) If an attorney for the United
States intends to issue a subpoena to any
person, and such attorney has reason to
believe that the subpoena, or any part there-
of, relates to a legislative activity of a Mem-
ber of Congress, then such attorney shall
immediately notify the Attorney General of
the United states. The Attorney General
shall approve personally the issuance ef the
subpoena, and shall notify in writing such
Member and the President pro tempera of
the senate, in the case of a Senator, or the
Speaker of the House of Representatives, in
the case ot a Representative, a Resident Com-
missioner, or a Delegate of the House of Rep-
resentatives, not less than 48 hours in
advance of the issuance of the subpoena..
"(2) If at any time in the course a! any
criminal proceeding it appears that testimony
which relates to the legislative activity of a
Member a! Congress is being heard or may be
heard, and the provisions of paragraph (1)
have not been complied with, then the court
shall stay' the proceedirigs and give such
Member an opportunity to move, as provided
In subsection (c), to quash the subpoena or
subpoenas pursuant to which- testinmay 15
being taken.
"(c) If any subpena is issued to any per-
son with ;respect to any activity of a Mem-
ber of Congress, that Member may file a; mo-
tion, before the court under whose seal the
subpena was issued, asking? that the sub-
pens, or any part thereof, he quashed on
the grounds that such subpena or part
thereof relates ;to a legislative activity of
such Member and is therefore heyonc. the
jurisdicticin of such court, commissioner,
or magistrate, as the case may be. Upon the
filing of such motion, the subpena, ? or
part thereof, sought to be quashed shell be
stayed. In any hearing on a motion to quash
the subpena, the United States (1) 13 re-
quired to state with particularity the 1 afor-
/nation it intends to receive as the result of
ifie issuance of the subpena, and (2) shall
have the burden of proving, beyond a rea-
sonable doubt, that such subpena, or part
hereof, does not relate to any legislative
ectivity of such Member. If the United States
Jells to satisfy the provisions of both clauses
(1) and (2) of this subsection, the subpena,
or part thereof shall be quashed. If the court
I rids that both such clauses have been satis-
f ed, the court may order the enforcement of
the subpena or part ehereof. However, the
crder shall specifiy with particularity, and as
r arrowly as practicable, the information
about which the United States may inquire
cr obtain under such subpena in order to
assure that such information will not relate
to any legislative activity of such Member.
"(d) For purposes of this section?
"(1) 'court of the Uatted States' has the
s ime meaning given that term under section
451 of title 28;
"(2) 'legislative activity' means any ac-
tivity of a Member of Congress, while a Mem-
ber of the Congress, relating to the due tune-
toning of the 1egislative process and carry-
ing out the obligations a Member of Con-
gress owes to the Congress and to his con-
s ,ituents, and includes, but is not limited
to, speeches, debates, and votes, in either
^ ouse of Congress, committee or subcom-
mittee conduct, gather.ng or receipt of in-
formation for use in legislative proceedings,
sffieches or publications outside of Congress
informing the public on matters of national
or local importance, and the motives and
processes by which a decision was made with
respect thereto; and
"(3) 'Member of Congress' means either
a present or former Senator, or a present or
former Representative. Resident Commis-
s,oner, or Delegate of the House of Repre-
sentatives."
Sze. 202, The table of chapters of part II
or such title 13, preceding section 3001, is
amended by adding at the end thereof the
following:
"239 Congressional protection."
TITLE III?OFFICE OF THE GENERAL
COUNSEL TO THE CONGRESS
ESTABLISHMENT
SEC. 301. There is established in the Con-
g. ess an office to be known as the office of the
General Counsel to the Congress, referred
to hereinafter as the "Office".
PURPOSE AN) POLICY
SEC. 302. The purpose of the Office shall be
to provide legal advice, legal representation,
legal counseling, and other appropriate legal
services to the Congress its two Houses, and
their respective commietees, Members, offi-
cials and employees in those matters relating
to their institutional or official capacities
and duties. The Office shall maintain tin-
pertiality as to matters brought before it,
as id it shall provide services indiscriminantly
to any committee or Member of Congress w, -
less directed otherwise by either House Cr
Congress as a whole. The Office shall main-
ts in the attorney-client relationship with re-
spect to all communications between it and
any committee or Member of Congress.
FUNCTIONS
SEC. 303. The functions of the Office shall
be as follows:
(a) Upon the request of the Congress,
either of its two Houses, any joint committee
of the Congress, or any committee of either
House of the Congress. to commence civil
aetion against the President or any other
officer of the Government to compel compli-
ance with any law.
(b) Upon the request of the Congress,
either of its two Houses, any Member of
ti e Congress, any join; committee of the
Congress, any committee, of either House of
tae Congress, or any subcommittee of any
:each committee, to commence civil action
against the :President or any other officer of
the Government to compel compliance with
any request for information.
(c) Upon the request of the Congress,
either of its two Houses, any Member of the
Congress, any joint committee of the Con-
gress, any committee of either House of the
Congress, or any subcommittee of any such
committee, t3 represent the Congress, either
of its two Houses, or any of their respective
committees, Members, former Members, offi-
cers or employees before any grand jury pro-
ceeding or in any civil or criminal action
arising from their performing or not per-
forming any action relating to their institu-
tional or official capacities and duties.
(d) Upon the request of the Congress,
either of its two Houses, any Member of the
Congress, any joint committee of the Con-
gress, any committee of either House of the
Congress, or any subcommittee of any such
committee, to intervene as a party before any
grand jury proceeding or in any civil or crim-
inal proceeding.
(e) rpon the request of the Congress,
either of its two Houses, any joint com-
mittee Cf the Congress, or any committee of
either House of the Congress, to appear be-
fore the Supreme Court or any other court
of the United States as amicus curiae in
cases involvi:ag the intent and meaning or
constitutionality of legislation or of any ac-
tion of either House of Congress.
(f) To review rules and regulations from
time to time issued by the various agencies
of the . Government and to report to the
Congress; as te whether such rules and regu-
lations are authorized by the legislation un-
der which they purport to be issued.
(g) To bring to the attention of the Con-
gress such legal proceedings, actions; of the
Government, and other matters which relate
to the institational or official capacities or
duties of the Congress or its Members.
(h) To furnish advice and other appro-
priate services to any Member of the Con-
gress, any joint committee of the Congress,
any committee of either House of the Con-
gress, any subcommittee of any such com-
mittee in connection with the foregoing.
CONGRESS/ONAL COUNSEL
SEC. 304. The management, supervision,
and administration of the Office are invested
In the General Counsel to the Congress who'
shall be ape ointed by he President pro,
tempore of tee Senate, the Speaker of the
House o:f Representatives and the majority
leaders and minority leaders of' the Senate
and House of Representatives (referred to
hereinafter as the "Leaders") acting unani-
mously, 'without regard -to political affiliation
and solely on the basis of fitness to perform
the duties of the position. In the event of the
failure of the Leaders to act, the appoint-
ment shall be made by majority vote of both
the Senate and the House of Representatives.
Any person so appointed shall serve for only
one term of len years, but may be removed
from office by the Leaders, acting unani-
mously.
STAFF
SEC. 305. With the approval of the Leaders,
or in accordance with policies and procedures
approved by them, the General Counsel shall
appoint such attorneys and other employees
as may be neeessary for the prompt and effi-
cient performance of the functions of the
Office. Any such appointment shall be made
without regard to political affiliation and
solely on the basis of fitness to perform the
duties ai the position. Any person so ap-
pointed may be removed by the General
Counsel to the Congress with the approval
of the Leaders, or in accordance with policies
and procedures approved oy the Leaders.
COMFENssTiox
SEC. (a) The General Counsel to the Con-
gress shall be paid at a per annum gross
rate equal to the rate of basic pay, as in
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effect from time to time, for level III of
the Executive Schedule of section 5314 of
title 5, United States Code.
(b) Members of the staff of the Office other
than the General Counsel to the Congress
shall be paid at per annum gross rates fixed
by the General counsel with the approval
of the Leaders, or in accordance with policies
approved by the Leaders, but not in excess of
a per annum gross rate equal to the rate of
basic pay, as in effect from time to time, for
level V of the Executive Schedule of section
5316 of title 5, United States Code.
EXPEND [TITRES
SEC. 307. In accordance with policies and
procedures approved by the Leaders, the
General Counsel to the Congress may make
such expenditures as may be necessary or
appropriate for the functioning of the Office.
OFFICIAL MAIL
Sm. 308. The Office shall have the same
privilege of free transmission of official mail
'matter as other offices of the United States
Government.
AUTHORIZATION OF APPROPRIATIONS
SEC. 309. There are authorized to be appro-
priated, for the fiscal year ending June 30,
1973, and for each fiscal year thereafter, such
sums as may be necessary to carry out this
title and to increase the efficiency of the
Office and the quality of the services which
it' provides.
TITLE IV?PRIVILEGED INFORMATION
SEC. 401. Chapter 6 of title 2, United States
Code, is amended by adding the following
new section:
"? 192a. Privileged Information
"(a) The Congress declares that informa-
tion or material of, or under the custody or
control of, any agency, officer, or employee of
the Government is to be made available to
the Congress so that the Congress may exer-
cise, in an informed manner, the authority
conferred upon it by article I of the Consti-
tution to make laws necessary and proper to
carry into execution the powers vested in the
Congress and all other powers vested in that
Government or any department or officer
thereof.
"(b) For the purpose of this section?
" (1) 'agency' means each authority of the
Government of the United States, whether
or not it is within or subject to review by-an-
other agency, but does not include?
"(A) the Congress; '
"(B) the courts of the United States; or
" (C) the governments of the territories or
possessions of the United States;
"(2) 'employee' means--
"(A) an employee in or under an agency;
"(B) a member of the uniformed services;
and
"(C) an employee engaged in the perform-
ance of a Federal function under authority
of an Executive act; and
"(3) 'Government' means the Government
of the United States and the government of
the District of Columbia.
"(c) Any officer or employee of the Govern-
ment summoned or requested to testifY or
produce information or material before Con-
greps, any joint committee of the Congress,
any committee of either House of the Con-
gress, or any subcommittee of any such com-
mittee (hereinafter the 'requesting body'),
shall not refuse to appear on the grounds
that the requested testimony, information, or
material is privileged. Any such officer or
employee appearing as a witness may be re-
quired to answer questions with regard to,
or required to produce, any?
"(1) information or material within such
person's immediate knowledge or jurisdic-
tion; and
"(2) policy decisions that such person per-
sonally has made or implemented.
If such witness asserts that the requested in-
formation or material is privileged and re-
fuses to supply the same, such person 1m-
mediately shall provide a justification for the
assertion of privilege, whereupon it shall then
be a question of fact for the requesting body
to determine whether or not the plea or priv-
ilege is well taken. If not well taken, the
witness shall be ordered to supply the re-
quested information or material. Upon such
order. if the witneas continues to refuse to
supply the requested information or material,
such person shall be held in contempt of
Congress.
"(d) Any information or material of, or
under the custody or control of, any agency,
officer, or employee of the Government shall
be made available to any Member of the Con-
gress, any joint committee of the Congress,
any committee of either House of the Con-
gress, any subcommittee of any such com-
mittee, or the general accounting office, upon
written request of any such Member, commit-
tee, subcommittee, or office to the head of the
agency or other officer or employee of the
Government who has custody or control of
such information or material. Any informa-
tion or material so requested shall be furn-
ished within fifteen days of receipt of the
request unless within such time the head of
the agency or other governmental authority
which receives the request asserts that the
Information or material is privileged and pro-
vides in writing to such Member, committee,
subcommittee, or office a justification for the
assertion of privilege. In the case of informa-
tion or material requested by a committee or
subcommittee, upon receipt of a plea of priv-
ilege it shall then be a question of fact for
the committee or subcommittee to deter-
mine whether or not such plea is well taken.
If not well taken, the head of the agency or
other governmental authority which receives
the request shall be ordered to supply the
requested information or material, and if
such information or material is still refused,
such person shall be held in contempt of
Congress.
"(e) Nothing in this section shall be
construed to require any officer or employee
of the Government to make available to the
Congress, any Member of the Congress, any
joint committee of the Congress, any com-
mittee of either House of the Congress, any
subcommittee of any such committee, or the
General Accounting Office the nature of any
advice, recommendation, or suggestion (as
distinct from any form of information or
material included within or forming the
basis of such advice, recommendation, or
suggestion) made to or by such person in
connection with matters solely within the
scope of such person's official duties, except
to the extent that such information may be
required by some other provision of law
to be made available to Congress or made
public.
'(f) Nothing in this section is intended
to recognize or sanction a doctrine of 'ex-
ecutive privilege' or to permit the refusal
of information or material on the grounds
that such information or material consti-
tutes 'internal working papers'."
Sep. 402. The analysis of such chapter is
amended by adding the following new item:
192a. Privileged information."
TITLE V?COMMUNICATIONS MEDIA
PRIVILEGE SHORT TITLE
SEC. 501. This Title may be cited as the
"'Communications Media Privilege Act of
1973".
DEFINITIONS
SEC. 502. For the purpose of this Title, the
term?
(1) "Federal or State proceeding" includes
any proceeding or investigation before or
by any Federal or State judicial legislative,
executive, or administrative body;
(2) "medium of communication" includes,
but is not limited to, any newspaper, mag-
azine, other periodical, book, pamphlet, news
service, wire service, news or feature syndi-
cate, broadcast station or network, or cable
television system;
(3) "information" includes any written,
oral or pictorial news, or other material;
(4) "published information" means any
information disseminated to the ptiblic by
the person from whom disclosure is sought.
(5) "unpublished information" includes
information not disseminated to the public
by the person from whom disclosure is
sought, whether or not related information
has been disseminated and includes, but is
not limited to, all notes, outtakes, photo-
graphs, tapes, or other data of whatever sort
not itself disseminated to the public through
a medium of communication, whether or not
published information based upon or related
to such material has been disseminated;
(6) "processing" includes compiling, stor-
ing, and editing of information; and
(7) "person" means any individual, and
any partnership, corporation, association, or
other legal entity existing under or author-
ized by the law of the United States, any
State or possession of the United States, the
District of rimbia, the Comm ealth of
Puerto Rico, or any foreign countr
SEC. 503. o person shall be ired to
a
disclose in any Federal or State proceeding?
(1) the source of any published or un-
published information obtained in the gath-
ering, receiving, or processing of information
for any medium of communication to the
public, or
(2) any unpublished information obtained
or prepared in gathering, receiving, or proc-
essing of information for any medium of
communication to the public.
SECTION-BY-SECTION ANALYSIS
TITLE I--$-AMENDMENTS TO FREEDOM OF .
INFORMATION ACT
Sec. 101. Short title. This title, would would
regulate and limit the classification of mate-
rial by the Executive branch, amends the
Freedom of Information Act to emphasize
that the intention is to make much more in-
formation available to the public.
Sec. 102. Amends paragraph (a) (3) of the
Freedom of Information Act to provide the
award of attorneys' fees . and court costs to
individuals who show that they have been
Improperly denied information by an agency.
Sec. 103. Housekeeping amendments.
Sec. 104. Adds paragraphs (d) through (g)
to the Freedom of Information Act.
(d) Classification of information.
(1) States that the purpose of providing
guidelines and limitations for Executive
branch classification is to control the abuse
of classification as it has come to be prac-
ticed. This abuse is so severe that security
experts agree that somewhere between 75 and
99 percent of all current classification is un-
necessary. Such examples of classification of
newspaper articles and the classification of
whole documents, no individual part of
which is itself classified, are common. Such
overclassification has been accomplished not
under law, but solely on the authority of Ex-
ecutive order. The Executive order under
which classification is now carried out (No.
11652) became effective June 1, 1972, with
the announced purpose of bringing the clas-
sification system under rein. It has failed
to do so, and many think the situation has
worsened since its issuance.
This paragraph specifically states that by
passing legislation governing classification
the Congress would have no intention of en-
couraging classification or making the un-
authoritzed disclosure of classified material
a criminal offense. Classification would re-
main an executive prerogative?it would not
be mandated by the Congress. Consequently,
it would not be illegal to disclose classified
matters, just as it is not now illegal. It would
continue, however, to be illegal under the
Espionage Act to disclose information with
intent or reason to believe that it could be
used to the injury of the United States. This
is as it should be. To make simple disclosure
a crime, without intent to injure, would be
tantamount to creating an Official Secrets
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Act?something the United States has always
avoided. To make mere disclosure a crim-
inal offe:ase would give any person who could
use a ciassification stamp the authority to
make caminals of other citizens. Such a law
would certainly show little respect tor the
First Amendment.
(2) Stipulates that only one desig:aation,
"Secret Defense Data", may be used to class-
ify information. The present use oi three
categories of cla.ssification?"Confidential",
"Secret", and "Top Secret"?serves no useful
purpose in protecting the national defense;
it only Lahibits the availability to the public
of large volumes of information. Information
either deserves protection, or it does not.
This wan the practice followed by the Con-
gress in the Atomic Energy Act of 1934,. the
only place where classification has a sanc-
tion in am. Information to be proteeted is
there designated "Restricted Data". The use
of only one category of classification will not
prevent the limited dissemination of infor-
mation within the executive branch. Para-
graph (d) (3) provides for the use of ap-
propriate routing indicators, which wculd be
not unlike such present designations aim "Eyes
Only" sad. "Lim Dis".
The criterion of classification would be
protection of the national defense ogainst
either meat or covert hostile action. The
term "mitional defense" is chosen perpose-
fully, rather than "national security'. The
latter teem is much broader, includlag the
economic condition of the United States for
instance, and its use as the criterion cf clas-
sification would more severely restrict the
availability of information to the eublic.
Of course no criterion should justify the use
of classification to conceal incompetence,
wrongdoi.ng, etc., and this. is specifically
spelled out in the bill.
(3) Requires that -Secret Defense Data"
will be the exclusive designation used in
classification. Provides for the use of reuting
.indicatoxs, as explained above.
(4) Limits the authority to classify to the
President and such offices within the Ex-
ecutive Office of the President as he desig-
nates; the heads of the Departments of State,
Defense, Treasury, Justice, Commerce, and
Transportation; the heads of the military
departments; and the heads of the AEC, CIA,
and NASA. The needless proliferation
of wielders of classification stamps has had a
significant effect in denying information to
the public. The bill meets this problem by
lodging the authority to classify in only those
agencies where it is operationally necessary,
and that, only in the heads of the agencies
and such principal deputies as they designate
in writing. Only those individuals whose
daily operational responsibilities require 'such
authority will be allowed to classify, aid the
heads of agencies will be required to review
this authority twice a year, to determine
each individual's continuing "need to clas-
sify". Any individual exercising classification
authority will be furnished written it struc-
tions which set the boundries within Which
he may classify. The redelegation of classi-
fication euthority will not be permitted, but
the mere handling of classified materiel, in a
clerical capacity, will not require the wathor-
ity to classify. ?
(5) The heads of agencies exercising clas-
sification authority will be required quarterly
to subma to the Comptroller Genera lists
of all individuals with the authority to clas-
sify. Such lists shall also be available to the
Congress This will insure a public check
on who is classifying public information.
(6) Prevents the classification of informa-
tion by association. Under the present eystem
it is common practice to classify an entire
document, even though only a very small
portion is actually sensitive. In come cases,
a document is classified even when no part
of it, taken separately, is classified.
(7) Requires that all classified material
will clearly show: the designation 'Secret
Defense Data", any routing designator which
may have been assigned, the office of origin,
the date of origin, the name and title of the
classification authority, and the date of clas-
sification. ft will be further shown what part
or parts of the material require protection, so
that the remainder may be used without the
encumbrance of classification.
(8) Allows the classification of information
received from foreign governments and in-
eernational organizatio as if unauthorized dis-
closure could be expected to damage the
national defense or the defense of an allied
government. Any such information would
be available to the Congress, however, even if
the foreign government or international or-
ganization had stipulated otherwise.
(9) Brings inforrnaeion classified by the
?resent system under coverage of the bill.
(e) Declassification of information.
(1) (A) Pros ides that information which
so longer needs to be classified to protect, the
eational defense, or watch simply no longer
can be protected from unauthorized disclo-
sure, will be declassified promptly. The Penta-
gon Papers are a good example for both these
eases. They were fins; kept classified un-
aecessarily, and then, even after they were
released, not all released portions were de-
dassified.
(B) Except as provided in paragraph (2)
aelow, requires that information classified
mder the provisions of this bill will be de-
classified automatically at the end of two
years, regardless of whether or not it was
narked to show the declassification. The
eollowing points from the 1970 Report of the
:3efense Science Board Task Force on Secrecy
are relevant:
"It is unlikely that classified information
will remain secure for periods as long as 5
;rears, and it is more reasonable to assume
that it will become known to others in pe-
riods as short as 1 year."
"Classification of information has both
negative as well as positive aspects. On the
negative side, in addition to the dollar costs
of operating ender conditions of classifies-
Lion and of maintaining our information
security system, classification establishes
barriers between nations, creates areas of
uncertainty in the public mind on policy
issues, and impedes the flow of useful In-
formation within our cam country as well as
abroad."
"The volume of scientific and technical in-
formation that is classified could profitably
be decreased by perhaps as much as 90 per-
tient through limiting the amount of infor-
mation classified and the duration of its
classification."
"More might be gained than lost if our
nation were to adopt?unilaterally, if neces-
eary?a policy of complete openness in all
erects of information . ."
(C) Except as provided in paragraph (2)
below, requires that information classified
during the two-year period preceding the es-
tablishment of the new classification system
will be declassified automatically two years
irom the date of its densification, unless that
date is not known, in which case it will be
declassified two years from the effective date
of the bill.
(D) Except WS provided in paragraph (2)
eelow, requires that tnformation classified
Prior to the two-year period preceding the
effective date of the bill will be declassified
automatically six monohs after the effective
date.
(2) (A) Provides that the President or the
head of an agency (but no one elee) may
assign a deferred automatic declassification
date of up to two years to any information,
rather than allow it to become declassified
as set out in paragraphs (B), (C), or (D)
above. Any such deferred classification date
?vould itself automatically expire in not
more than two years, but it could always be
deferred for another two years. In order to
assign. any such deferred declassification
date, howeeer, the Plea dent or head of an
agency woued be required to submit, in writ-
ing, to the Senate and Louse Committees an
Governmene Operations and the Comp-
troller ?General a detailed justification for the
continued classification. The committees, in
turn, would be required to print these justi-
fications as a public dc iument at least an
Thie process leaves the determina-
tion of whether or not information Should
be dedassited in the bands of the agency
which knoas the meeerial and circum-
stances best, but it erasures periodic high
level review and ma lie;; the Congress and
the public aware that information exists, al-
beit in classified form. (Of course, some jus-
tifications for continued clas,sificat ion
might themselves reveal information which
should be kept secret. In this circumstance
the bill provides that the justification will
not be publicly printed, but will be avail-
able to the Congress.) This overall procedure
also is in accord with the recommendation
of the Defense Science Board Task Force on
Secrecy that in each instance of classifica-
tion there be set "a limit on the classifica-
tion, as short as possible, which could be ex-
tended with detailed justification."
(B) Provides that any person (which
would indeed? the Congress) may bring a
civil action to seek to enjoin a deferral of
declassification or to order declassification
on the grounds that such a deferral does
not satisfy the requirements for classifica-
tion, namely, protection of the national de-
fense. ::n any such case, the burden would
be on the President or the head of an agency
to sustain his deferral. This procedure paral-
lels the provision for judicial relief already
contained in the Freedom of Information
Ad. It is essential if citizens are to have
recourse in the face of needless govern-
mental secrecy.
(3) Requires that the declassification of
information will be Made widely known
through either an announcement describing
the information declassified or notification
of all holders of material which contains
the declassified informat on.
(4) Frovides that when material is de-
classified it will be so marked, showing the
*date of declassification and the name and
title of the person who authorized the de-
classification. This requirement would not
apply to material in storage or material to
be destroyed.
(5) Provides that in cases of transferred
functions Cm materials, the head of an
agency need not have Classification author-
ity in order to declassify information if that
information is under his jurisdiction.
(6) Provides that any officer or employee
of the executive branch who has custody
of classified material which he thinks should
be declassified may recommend immediate _
declassification by the appropriate author-
ity.
(f) Impleraentation.
(1) Provides that implementing regula-
tions shall be prescribed jointly by the head
of an agency and the Comptroller General.
This will provide congressional oversight of
executive classification .procedures.
(2) Charges the Comptroller General with
monitoring executive classification proced-
ures.
(g) Prevents the withholding of informa-
tion from the Congress or federal courts on
the grounds that such information is clas-
sified. Although the Executive is relucta.ne
to admit that it withholds information from
the Congress on the basis of classification,
it in fed does so. There can be only two
possible justifications sor this executive
withholding. One would be that there is no
"need to know" on the part of Congress, and
the other would be that in the hands of the
Congress information would soon lose its
confidentiality. Neither answer suffices.
There is aseuredly a "reed to know", for
Congress must legislate, and it must have
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facts to do so. The argument for withholding
information because Congress will destroy
its confidentiality also fails. In the first
place. Congress handles classified informa-
tion all the time without "leaking" it. Execu-
tive withholding is selective. Secondly, it is a
well-established constitutional principle that
the fact that a power might be abused is no
argument against its existence. Every power
may be abused. Thirdly, the public release
of information by the Congress is an im-
portant separation-of-powers check on ex-
cessive executive secrecy.
The need to specify that classification of
information will not form the basis for with-
holding such information from the courts
arises from the recent decision of the Su-
preme Court in Environmental Protection
Agency v. Mink. In that case, it was the
opinion of -the Court that an examination of
the Freedom of Information Act and the sur-
rounding legislative history "negates the
proposition that Exemption 1 [of the Free-
dom of Information Act, which allows with-
holding of information classified pursuant
to executive order] authorizes or permits in
camera inspection of a contested document
bearing a single classification so that the
court may separate the secret from the sup-
posedly nonsecret . . ."Of course, the ma-
jority went on to say that ". . . in some situ-
ations; in camera inspection will be necessary
and appropriate." But this concession is
qualified by the further statement that in
camera inspection may be ordered only after
an agency first has been given the oppor-
tunity to ". . . demonstrate, by surrounding
circumstances [without producing the docu-
ments], that particular documents are
purely advisory and contain no separable,
factual information." In the words of the
majority opinion itself, an agency is ". . .
entitled to attempt to demonstrate the pro-
priety of withholding any documents, or
portions thereof, by means short of submit-
ting them for in camera inspection." The
Court has in this decision adopted something
less than careful judicial review of the ex-
ecutive's inclination to keep its secrets se-
cret, and legislative clarification appears
necessary to assure the free flow of informa-
tion to the public.
SEC. 105. Exempts from the provisions of
this title the classification of atomic energy
information by the Atomic Energy Commis-
sion, which already is regulated by law and
has not nosed problems of the same order as
other executive classification.
SEC. 106. Effective date.
TITLE II?CONGRESSIONAL PROTECTION
Sec. 201. Amends part II of title 18,
United States Code, by adding at the end
a new chapter 239 and a new section 3791.
? 3791. Congressional protection.
(a) Provides that the courts shall have no
jurisdiction to conduct criminal proceed-
-ings which relate to a legislative activity of
a Member of Congress. Such an alteration of
the jurisdiction of the courts?which the
Congress has the undoubted power to regu-
late?is made necessary by the decisions in
United States v. Brewster and Gravel v.
United States, in which a majority of the
Supreme Court held that the "Speech or
Debate" clause of article I, section 6 of
the Constitution does not bar grand jury
investigations and 'criminal prosecutions
against Members of Congress for deciding
how to speak and vote, and for informing
themselves and their constituents about
maladministration and corruption in the
Executive branch.
The Speech or Debate clause?which
states that "for any Speech or Debate in
either House, they [the Senators and Repre-
sentatives] shall not be questioned in any
other place"?has historically been con-
strued broadly by the courts, to include
much more than just speeches and debates
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CONGRESSIONAL RECORD ? SENATE
delivered within the four walls of the Capitol.
As Senator Sam Ervin has stated, it is the
Congress' "First Amendment", preserving
broad freedom to speak and act when Mem-
bers of Congress do the people's business.
The Constitution's Speech or Debate clause
derives directly from a similar provision in
the English Bill of Rights of 1689, which
itself arose out of the case of Sir William
Williams, Speaker of the House of Commons.
Williams had republished, after it first ap-
peared in the Commons Journal, a report
about an alleged pilot between the Crown
and the King of France to restore Catholi-
cism as the established religion of England.
During the reign of James H, Williams was
charged with libel and fined 10,000 pounds
even though he had pleaded that the publi-
cation was privileged as -iecessary to the
"counseling" and "enquiring" functions of
Parliament. Shortly after Williams' convic-
tion James II was sent into exile, and a
committee was appointed by the House of
Commons to report upon "such things as are
absolutely necessary for securing the Laws
and Liberties of the Nation." In reporting
to the House, the chairman of the commit-
tee stated that the provision for freedom of
speech and debate was included "for the
sake of one . . . Sir William Williams, who
was punished out of Parliament for what
he had done in Parliament."
Flying in the face of this historical prece-
dent, the Supreme Court in Gravel stated
that "the English legislative privilege was
not viewed as protecting republication"; and
while acknowledging that prior cases have
read the Speech or Debate clause "broadly
to effectuate its purposes," and have included
within its reach anything "generally done in
a session of the House by one of its members
in relation to the business before it," the
Court severely narrowed its application by
stating that:
"Legislating acts are not all-encompassing.
The heart of the clause is speech or debate
in either House, and insofar as the clause is
construed to reach other matters, they must
be an integral part of the deliberative and
communicative processes by which Members
participate in committee and House proceed-
ings with respect to the consideration and
passage or rejection of proposed legislation
or with respect to other matters which the
Constitution places within the jurisdiction
of either House."
While the Gravel case involved the ques-
tion of protection of a Senator's aide from
interrogation about republication of the
Pentagon Papers, the Brewster case con-
cerned the very different issue of an indict-
ment of a former United States Senator for
the solicitation and acceptance of bribes "in
return for being influenced . . in respect to
his action, vote, and decision" on certain
legislation. Though Senator Brewster's ac-
tions centrally involvd legislative activity,
the Court drew a distinction between the
performance of a legislative act and an agree
ment to perform the same. It thus was able
further to erode the protection of the Speech
or Debate clause by holding that ". . . a
Member of Congress may be prosecuted un-
der a criminal statute provided that the
Government's case does not rely on legisla-
tive acts or the motivation for legislative
acts." Chief Justice Burger, writing for the
majority, then went on to devise an appar-
ently gratuitous distinction between politi-
cal acts and legislative acts:
"It is well known, of course, that Members
of Congress engage in many activities other
than , the purely legislative activities pro-
tected by the Speech and Debate Clause.
These include a wide range of legitimate
'errands' performed for constituents, the
making of appointments with government
agencies, assistance in securing government
contracts, preparing so-called 'news letters'
to constituents, news releases, speeches deliv-
ered outside the Congress Although these
S 8349
are entirely legitimate activities, they are
political in nature rather than legislative..."
Thus, in the Brewster and Gravel decisions,
the Court restrictively defined "legislative
acts" and limited the scope of Speech or
Debate immunity to those acts. The legislator
has been left with no protective immunity
from Executive branch harrassments such as
subpoenaing him to testify as to his confi-
dential sources of information and prosecut-
ing him for unpopular legislative acts on the
grounds that they are improperly motivated.
This danger was recognized by Justices
White, Douglas, and Brennan, dissenting in
Brewster:
"[T]he opportunities for an executive, in
whose sole discretion the decision to prose-
cute rests . . ., to claim that legislative con-
duct has been sold are obvious and undeni-
able. These opportunities, inherent in the
political process as it now exists, create an
enormous potential for executive control or
legislative behavior by threats or suggestions
of criminal prosecution?precisely the evil
which the Speech or Debate Clause was de-
signed t6 prevent"
Similarly, Justice Brennan, writing in dis-
sent for himself, Justice Douglas, and Jus-
tice Marshall, warned of the dangers to pub-
lic dialogue posed by the majority's opinion
in Gravel:
"Whether the Speech or Debate Clause
extends to the informing function is an is-
sue whose importance goes beyond the fate
of a single Senator or Congressman. What
is at stake is the right of an elected repre-
sentative to inform, and the public to be
informed, about matters relating directly to
the workings of our Government. The dia-
logue between Congress and people has been
recognized, from the days of our founding,
as one of the necessary elements of a repre-
sentative system. We should not retreat from
that view merely because, in the course
of that dialogue; information may be re-
vealed that is embarrassing to the other
branches of government or violates their no-
tions of necessary secrecy. A member of Con-
gress who exceeds the bounds of propriety
in performing this official task may be called
to answer by the other members of his
chamber. We do violence to the fundamental
concepts of privilege, however, when we sub-
ject that same conduct to judicial scrutiny
at the instance of the Executive."
(b) (1) Provides that before a subpoena
which relates to legislative activity of a Mem-
ber of Congress can be issued it must be
personally approved by the Attorney General.
The Attorney General is also required to
notify, at least 48 hours in advance of its
issuance, the Member concerned and the
President pro tempore of the Senate in the
case of a Senator and the Speaker of the
House in the case of a Representative. This
procedure will assure that legislative immu-
nity is not infringed upon without the Mem-
ber or his House being aware of the govern-
ment action. It also will allow time for the
Member to move to quash the subpoena, as
provided in subsection (c).
(2) Provides that if a Member and his
House have not been notified as provided
in paragraph (1) , and if testimony is being
taken in a criminal proceeding which re-
lates to that Member's legislative activity,
then the court will stay the proceedings and
give the Member an opportuntiy to move to
quash those subpoenas pursuant to which
the testimony is being taken, as provided
in subsection (c).
(c) Provides that if a subpoena is issued
to anyone with respect to any activity of a
Member of Congress, that Member may move
to quash the subpoena on the grounds that
it relates to his legislative activity, and hence
Is beyond the jurisdiction of the court. Upon
such a motion, the subpoena in question
shall be stayed and a hearing held to deter-
mine its proper disposition. The subpoena
shall be quashed unless the government (1)
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S 835(0 CONGRESSIONAL RECORD ? SENATE
states with particularity the leformittion it
intends to receive as the result of the IS-
Rushee af the subpoena and (2): proves be-
yond reasonable doubt that the subpoena
does not relate to the Member's lesislative
activity. If the government satisfies these
conditicns the court may order the enforce-
ment of the subpoena, but the order shall
specify as narrowly as practicable ;he in-
formation about which the government may
inquire in order to prevent questioning con-
cerning legislative activity.
These procedures provide Members of
Congress a mechanism by which teey can
prevent executive inquiry into their legisla-
tive activity, either through requiring them
to testily directly or through the testimony
of third parties. This will prevent ihe ab-
uses countenanced by the Supreme Court in
Brewstel? and Gravel, where third party in-
quiry was in no way circumscribed and
where rrotection against even dime; ques-
tioning was limited to only the most nar-
rowly conceived legislative activities.
(d) Definitions.
(1) "Court" is defined as under section
451 of title 28.
(2) "Legislative activity" is defined gen-
erally as any activity of a Member of Con-
gress reating to the due functioning of the
legislative process and carrying out the ob-
ligatione a Member of Congress owes to the
Congress; and his constituents. This broad
language includes all constitutionally dele-
gated responsibilities of the Congress, and
is meant to encompass legislative oversight
of the executive departments and the func-
tion of informing one's constituents and
one's colleagues. The term is further spe-
cifically defined to include speeches, cebates,
and votes, whether on the floor or in com-
mittee; gathering or receipt of information
for use in legislative proceedings; speeches
of publications outside of Congress inform-
ing the public on matters of national or lo-
cal importance; and the motives and proc-
esses by whichea decision was made with re-
spect to any of the foregoing. This deinition
includes several activities specifically sup-
posed by the Supreme Court not to be a
part of legislative activity.
(3) "Member of Congress" is defined to
mean either a present or a former Member,
a protection clearly shown to be necessary
by government prosecution of former Sena-
tor Brewster. Legislative integrity will not
be preserved if Members are subject to ex-
ecutive harrassment when they tire no
longer in office.
SEC. 212. Amends the table cs1 chapters of
part II cf title 18.
TITLE ra?orance OF THE GENERAL CC UNSEL
TO THE CONGRESS
SEC. 3)1. Establishes a new entity within
the Congress, to be known as the Office of
the General Counsel to the Congress.
SEC. 302. Stipulates that the purpose of
this new office will be to provide legal advice,
representation, counseling, etc. to the Con-
gress and its committees and Members in
those matters relating to their official re-
sponsibi: Mies. The services of the office could
not be used on personal legal matters. The
office would be required to serve al: com-
mittees and Members equally, and to per-
form those functions set out in section 30;3
when requested to do so by the appropriate
authorite, :unless directed otherwise by the
House or the Senate or the Congress as a
whole. 'Ibis procedure will assure that each
Member and committee will be able to obtain
legal assistance in protecting his or its leg-
islative prerogatives, even if the ma iter in
question is an unpopular cause, unless there
is in effect disciplining of the Member or
committee by the body as a whole. This is
in keeping with the constitutional provi-
sion that "Each House may determine the
Rules of its Proceedings, [and; punish its
Member: for diserderly Behavior .
The Congress and its committees and
Members are, from time to time, involved
as parties litigant. This has been increas-
ingly true in recent years, and in the 92nd
Congress alone some 206 Members were di-
rectly concerned with litigation affecting
Congress. Ma:ay of these cases have been
private suits against Members; some, such
as Mink v. Environmental Protection Agency,
have involved efforts by Members of Con-
gress to obtain information from the Ex-
ecutive; and still others, such as United
States v. Brewster, Gravel V. United States,
and Doe v. McMillan, have concerned the
question of legislative immunity under the
Speech or Debate clause of the Constitution.
Historically, :representation in such eases
has been by private counsel or by the De-
partment of Justice. In a few cases?for
example. Powell v. McCormack?the Congress
has had its own counsel under special ar-
rangeme sat.
If the Congress is to preserve its independ-
ence as a separate branch of the government,
it is important that it establish its own
General Counsel to defend it, to compel
executive compliance with the law and with
requests for informseion, and to preserve
its integrity through strong assertion of
legislative immunity. The cost of retaining
private counsel for these purposes is almost
prohibitive, and in other ways not as satis-
factory as having representation by an offi-
cial of the Congress itself. The alternative
of turning such matters over to the Depart-
ment of Justice is net always available, as
when congressional pesitions run counter to
executive policy, but even when it is, such
representation is often not particularly ag-
gressive or enthusiastic. Each branch of the
government, under the constitutional sep-
aration of powers, must ultimately discharge
its responsibilities based on independent
judgments, and one branch cannot and
should :aot be dependent on the other
branches for guidance and direction.
SEC. 303. Functions of the Office of the
General Counsel to the Congress.
(a) Provides that upon request of the
Congress, either of its Houses, or any of its
committees, civil action may be commenced
against any officer of the government to
compel compliance with any law. For ex-
ample, the Congress might wish, under this
provision, to bring action against the Presi-
dent to force him to release impounded
funds.
(b) Provides that upon request of the
Congress, either of its Houses, any Member
or any committee or subcommittee, civil
action may be commenced against any officer
of the government to compel compliance
with any request for nformation. The legal
assistance provided under this provision
could have been used by Representative
Patsy Mink and 32 ether Members of the
House when they sought to obtain seeeral
documents relating to the proposed under-
ground nuclear test at Amchitka Island,
Alaska. It also could be used, for instance, by
the Senate or House Committee on Gov-
ernment Operations to challenge the assign-
ment of a deferred declaration date, as pro-
vided by subsection (e) (2) (B) of the Free-
dom of Information Act, as amended by sec-
tion 104 of title I of this bill.
(c) Provides that upon request of the Con-
gress, either of its Houses, any Member, or
any committee or subcommittee, the Office
of General Counsel raay represent any of
the aforeriamed or any former Member of
Congress or any officer or employee of Con-
gress in any civil or creninal action arising in
connection with their official responsibilities.
This provision would provide legal assist-
ance tei the man Members of Congress and
the several committees against whom suits
are brought. It also would have provided
assistance to former Senator Daniel Brewster
when he was indicted on charges of solicit-
May 7, 1973
ing anti accepting a bribe, if the Congress had
so requested.
(d) Provides that upon request of the Con-
gress, either of its Houses, any Member, or any
committee or subcommittee, the Office of
General Ceensel May intervene as a party
before any grared jury proceeding or in any
civil Or crirainal proceeding. Under this pro-
vision Senator Mike Gavel could have re-
ceived legal assistance when he moved to
intervene in an action brought "by aide
Leon.ard Rodberg to quash a subpoena is-
sued by a federal grand jury convened to
investigate matters relating to the public dis-
closure of the Pentagon Papers. '
(e) Proviles that upon request of the Con-
gress, either of its Houses, or any of its
committees, the Office of General Counsel
may appear before any federal court as ami-
cue curiae :n eases involving the intent and
meaning or constitutionality of legislation or
of any action of either House. This provisicai
weuld have applied, to; instance, when the
Senate filed an amicus brief before the Su-
preme Court in the Gravel case.
(1) Provides that the Office of General
Counsel will review periodically the rules and
regulations issued by the various agencies, to
determine if they are authorized by the legis-
lation under which they purport to be is-
sued. Oversight of this type would sigitifi-
cantly increase congressional control over
the agencies which often issue regulations
which substantially alter the law enacted.
(g) Charges tlaeOffice of General Counsel
with the responsibility of bringing to the
attention of the Congress any matters which
relate to tee functions and duties of the
Congress or its Members.
(h) Provides that the Office of General
Counsel wi:1 furnish advice and other ap-
propriate services in connection with its
other functions.
Sec. 304. Provides that the Office will be
under the direction of the General Counsel
to the Congress, who will be appointed by
unanimous action of the President pro tern-
pore of the Senate, the Speaker of the
House, and the majority and minority lead-
ers of the two Houses. The General Counsel
would serve for only one ten-year term, and
he could be removed from office by unani-
mous action of the leaders.
Sec. 305. :Provides that the General Coun-
sel may appoint such staff as is required
for the Office, subject to approval of the
leaders. All appointments would be made
solely on the basis of fitness to perform the
duties of this position.
Sec. 306. Provides that compensation csf
the Genera:. Counsel will be at the rate of
Executive level III, and that compensation
of other staff will be at rates not to exceed
that of Executive level V.
Sec. 307. Authorizes expenditures; for the
operation of the Office, in accordance with
policies: and procedure.; approved by the
leaders.
Sec. :308. Provides that the Office will have
the pnvilege of free transmission of mail.
Sec. 309. authorization of appropriations.
TITLE TV?PR/VILEGEO INFORMATION
Section 401. Amends chapter 6 of title 2,
United States Code, by adding a new section
192a.
192a. Privileged information.
(a) Declares it to be the policy of the Unit-
ed States that any information in the posses-
sion of the Executive is anch is to be made
available to nthe Congress in order that it
may discharge in an informed manner those
duties and responsibilities given ft by the
Constitution. In 1927, a ananimous Supreme
Court In McGrain v. Daugherty, 273 'U.S. 135,
174-5, stated that:
". . the power of inquiry?with process
to enforce it?is an essential and appropriate
auxiliary to the legislative function. . . A
legislative laxly cannot legislate wisely or ef-
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May 7, 1973 CONGRESSIONAL RECORD ? SENATE
fectively in absence of information respect-
ing the conditions which the legislation is
intended to affect or change; and where
the legislative body does not itself possess
the requisite information?which frequent-
ly is true?recourse must be had to? others
who possess it...."
The principle of Executive accountability to
Congress was asserted from the outset of
the nation's history. In 1789 Congress adopt-
ed a statute stating that:
"[I]t shall be the duty of the Secretary
of the Treasury . . to make report, and
give information to either branch of the leg-
islature in person or in writing (as he may
be required), respecting all matters referred
to him by the Senate or House of Repre-
sentatives, or which shall appertain to his
office. . ." [1 Stat. 65-66 (1789) (now 31
U.S.C. 1002) ]
This provision was drafted by Alexander
Hamilton himself, and the satute makes no
provision for executive discretion to with-
hold. Not only was this a constitutional in-
terpretation by the First Congress, but it also
was approved by President Washington, who
signed it. Since the First Congress, many
other statutes have been passed requiring
the various agencies to turn over informa-
tion to the Congress upon request. But the
? original statute was itself at an early date
applied by extension, to all departments. In
1854 Attorney General Cushing furnished this
advice to the President:
"By express provision of law, it is made the
duty of the Secretary of the Treasury to com-
municate information to either House of
Congress when desired: and it is practical-
ly and by legal implication the same with
the other secretaries, and with the 'Postmas-
ter and the Attorney General."
(b) Defines the terms "agency", "employ-
ee", and "Government" in such a way as to
impose the requirements of the section upon
all individuals within the Executive branch,
including advisors to the President.
(c) Stipulates that any officer or employee
of the Government summoned or requested
to testify or produce information before the
Congress or any of its committees may not
refuse to appear on the grounds that the re-
quested testimony or information is privi-
leged. Although it is almost undeniable that
some information will be privileged, the priv-
ilege clearly runs to Information and not to
individuals. Accordingly, if an employee of
the Executive branch is requested to testify,
even if he plans to claim that the requested
testimony is privileged, he should appear to
explain the reasons for his refusal. There is
no reason to immunize the Executive from
the burden of Justifying its failure to testify.
The Congress is entitled to at least an ap-
pearance.
This subsection further stipulates that any
individual appearing as a witness may be
questioned concerning (1) information with-
in his immediate knowledge or jurisdiction
and (2) policy decisions that he personally
made or implemented. This procedure will
assure that the Congress gets the informa-
tion it needs, while at the same time pre-
venting abuse of lesser officials by congres-
sional committees. It is somewhat unseemly,
not to say unproductive, for Congress to
badger minor bureaucrats about matters over
which they have no real control.
If a witness is questioned about matters
within his authority, and he refuses to an-
swer and asserts that the information re-
quested is privileged, he will be required to
Justify his claim of privilege-, and it Shall
then be a question of fact for the committee
to determine whethel or not the plea of priv-
ilege is well taken. There are several grounds
on which a claim of privilege might be as-
serted, and which the committee would need
to evaluate in the individual case. For ex-
ample: (a) the information is made confi-
dential by statute (b) the information Is
solely of the nature of advice to a superior
(c) the information concerns pending litiga-
tion and must be protected to assure an indi-
vidual his right of privacy. Each of these
pleas of privilege, which might be considered
well taken in a given instance, have fre-
quently been included under the rubric "ex-
ecutive privilege", but a claim of executive
privilege should not be accepted in such
unrefined form.
Executive privilege?the alleged power of
the President to withhold information, the
disclosure of which he feels would Impede
the performance of his constitutional re-
sponsibilities?supposedly' has its constitu-
tional basis in article II section 3, where the
President is charged with seeing that the
laws are faithfully executed. But this can be
no grounds for refusing information to the
Congress, which, as shown above, has both
a constitutional and: a statutory right to re-
quire whatever information it needs to make
those laws which shall be "necessary and
proper" for carrying out its responsibilities.
As early as 1838 the Supreme Court asserted
in Kendall V. United States that: "To con-
tend that the obligation imposed upon the
president to see the laws faithfully executed
implies a power to forbid their execution,
is a novel construction of the Constitution,
and entirely inadmissible."
A congressional request for information is
too important to be blocked even by a re-
fusal from the President. For this reason, it
would be a mistake simply to require that
the President personally direct an assertion
of the privilege, as some have suggested. Al-
though it is best that an assertion of privi-
leged communication with the President, for
Instance, not be made without presidential
approval, it would be a grave error to con-
cede that the President has any such uncon-
trolled discretion to deny the Congress in-
formation. This is not a decision which can
be made by the Executive alone. In a case
in which the Congress has legitimate author-
ity, but in which the President contends
that disclosure would hinder the discharge
of his constitutional powers, recourse must
be had to the courts.
Subsection (c) provides this recourse by
requiring that if a witness is ordered by a
committee to comply with a request for in-
formation even after he has asserted the in-
formation to be privileged, he may be held in
contempt if he still continues to refuse. If a
standoff of this sort were reached, there
would be two ways to get the matter before
the court. One would be for the Congress
to punish the contempt by having the Ser-
geant at Arms seize the offender and im-
prison him in the common jail of the Dis-
trict of Columbia or the guardroom of the
Capitol Police. The case would then be
brought before the court through the is-
suance of a writ of habeus corpus. Alter-
natively, under section 303(b) of title III
of this bill, the committee could direct the
General Counsel to the Congress to com-
/nence civil action against the recalcitrant
official to compel compliance with the re-
quest for information. That the court would
have authority to decide between the claims
of the contending parties in such a circum-
stance is fairly well established. In United
States v. Reynolds in 1953, the Supreme
Court asserted that executive privilege was
"not to be lightly invoked," that "the Court
itself must deterthine whether the circum-
stances are appropriate for the claim of priv-
ilege," and that "judicial control over the
evidence in a case cannot be abdicated to
the caprice of executive officers." In a much
earlier case, United States v. Burr, Chief Jus-
tice Marshall ruled in 1807 that:
"That the president of the United States
may be subpoenaed, and examined as a wit-
ness, and required to produce any paper in
his possession, is not controverted....
The occasion for demanding it ought, in
S 8351
such a case, to be very strong, and to be
fully shown to the court before its produc-
tion could be insisted on."
The Chief Justice did in fact require Presi-
dent Jefferson to produce the letter in ques-
tion in this case.
(d) This subsection is the same as (c)
above, except that it pertains to written re-
quests for information rather than oral
testimony, and it includes the individual
Members of Congress and the General Ac-
counting Office in its provisioni as well as
the committees of Congress. Individual
Members and the GAO_ would not, however,
have the contempt power.
(e) Provides that this section cannot be
used as authority to require any member of
the Executive branch to make available to
the Congress the nature of any advice, re-
commendation, or suggestion made to or
by such person in connection with matters
solely within the scope of such person's of-
ficial duties. Just as aides to Members of
Congress and clerks for judges should not be
required to reveal the advice they give their
employers, so members of the Executive
branch should not be so compelled. This
exemption does not include, however, any
information or material included within or
forming the basis of such advice.
(f) Disclaims any intention of sanction-
ing a doctrine of executive privilege or per-
mitting the refusal of information on the
grounds that it constitutes "internal work-
ing papers".
Sec. 402. Amends the chapter analysis to
include this new section.
TITLE V?COMMUNICATIONS MEDIA PRIVILIGE
Sec. 501. Short title.
Sec. 502. Definitions.
(1) "Federal or State proceeding" is de-
fined to include proceedings or investigations
before Judicial, legislative, executive, and ad-
ministrative bodies. State, as well as federal,
proceedings are included because most of the
current controversy over press freedom has
arisen at the State level, and the law in even
those States which have so-called "shield
laws" has not been adequate to protect news-
men.
(2) "Medium of communication" is defined
to include books as well as more traditional
sources of news, and includes electronic as
well as print media.
(3) "Information" is defined to include
oral and pictorial, as well as written, news.
(4) "Published information" is defined to
include all information disseminated to the
public by the person from whom disclosure is
sought.
(5) "Unpublished information" is defined
to include all information not disseminated
to the public by the person from whom dis-
closure is sought, regardless of whether pub-
lished information based upon such material
has been disseminated.
(6) "Processing" is defined to include
compiling, storing, and editing of informa-
tion.
(7) "Person" is defined to include partner-
ships, corporations, associations, etc. as well
as individuals.
Sec. 503. Stipulates that no person will be
required to disclose in any federal or State
proceeding (1) the source of any published
or unpublished information obtained in the
gathering, receiving, or processing of infor-
to the public, or (2) any unpublished infor-
mation for any medium of communication
mation obtained or prepared in gathering,
receiving, or processing of information for
any medium of communication to the public.
This section grants the unqualified priv-
ilege from disclosure recommended by the
American Newspaper Publishers Association.
Legislation to provide this immunity is re-
quired in face of the 5 to 4 Supreme Court
decision in United States v. Caldwell that the
First Amendment does not relieve a news-
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S 8352 CONGRESSIONAL RECORD SENATE May 7, 1974
paper reporter of the obligation that all citi-
zens have to respond to a grand jury sub-
poena and answer questions relevant to a
criminal investigation. As Justice Stewart
stated, Writing for the minority:
"The Court's crabbed view of the First
Amendment reflects a disturbing insensitivity
to the cricital role of an independent press
in our society.... The Court ... invites state
and federal authorities to undermina the
historic Independence of the press ty at-
tempting to annex the journalistic profes-
sion as an investigative arra of government."
If newsmen are required to reveal their con-
fidential sources and information, press in-
formants will "dry up", and the public will
receive nothing but the official line or gov-
ernment actions. Similarly, inside coverage
of crime and unpopular organizations and
ideas wit. also be severely diminished.
It has been argued that the proposed un-
qualified immunity should not apply when a
newsman is the defendant in a libel action,
However, because of the decision in New
York Times Company v. Suaivan, in which
the Supreme Court ruled that in libel aetions
brought by public officials and public f glues
recovery 06.A be had for a defamatory false-
hood only if it is published with actual
malice, there is almost no possibility o.,7 suc-
ceeding in sucha case against a newsin an, so
little is lost by making the privilege absolute.
On the other hand, to allow libel suits against
newsmen when they are otherwise protected
from government intimidation might sim-
ply subject them to harassment through
frequent libel actions, even though they in
all probability would not be successful.
By Mr. INOUYE (for himself, Mr.
A.130ITREZK, Mr. ALLEN, Mr.
CRANSTON, Mr. DOP/IINICK, Mr.
ERVIN, Mr. FANNIN, Mr. HOL-
LINGS, Mr. HUGHES, Mr. PAETORE,
Mr. RIBICOFF, Mr. STEVENS, Mr.
THURMOND, and Mr. Yours"):
S. 1721. A bill to incorporate the Pearl
Harbor Survivors Association. Referred
to the Committee on the Judiciary.
Mr. mouyE. Mr. President, today
have intaoduced a bill to incorporate the
Pearl Harbor Survivors Association. This
measure would bestow Federal recogni-
tion on this private nonprofit association
but would not affect its legal, corporate,
or other status.
The association is comprised of men
and women who defended our Nation
against she historic Japanese attack on
the U.S. Pacific Fleet and bases mound
Pearl Harbor on December 7, 1941. Since
1941, survivors of the Pearl Harbor attack
have formed many local and regional
groups, and there are now 101 active
chapters located in almost every State.
Their national organization, the Pearl
Harbor :Survivors Association, was incor-
porated in Missouri in 1958.
An estimated 12,500 surviving mem-
bers of the U.S. Armed Forces served at
Pearl Harbor and in the area of ,Daliu
Island during the December 7 attack.
Of that number, the Pearl Harbor Sur-
vivors Association has an active member-
ship of 5,259 men and women. Anyone
who was a member of the Armed Forces
on Oahu or who was stationed abo srd a
ship located within 3 miles of the island
on December 7, 1941, is eligible to join.
Member:a must either have been honor-
ably discharged or still be a member of
our Armed Forces. The association con-
ducts regular chapter, district, and State
meetinga, and a biennial national con-
vention.
The motto of the organization is "Keep
America Alert," which the association
seeks to accomplish by preserving his-
torical mementos and chronicles of the
Pearl Harbor attack. protecting graves
cf Pearl Harbor victims; and stimulating
Americans to take a more active interest
ta the affairs and future of the United
States. The association has been particu-
larly active in. veterans' causes and na-
tional preparedness.
The association is unique because it
will exist only as long as there are Pearl
Harbor survivors. In order for the asso-
ciation to be more effective, it is impera-
tive that it be recognized through the
granting of a Federal charter. I believe
the association fulfills all of the necessary
requirements.
I am proud to sponsor this legislation
as are the cosponsors who joined me in
this effort. I ask unanimous consent to
have printed in the CONGRESSIONAL REC-
CAD a statement by the Pearl Harbor
Survivors Association. I believe it best
sammarizes the purpose of the organiza-
tion.
There being no Objection, the state-
ment was ordered to be printed in the
RECORD, as follows:
REMEMBER PEARL HARBOR
On that peaceful Sunday morning, De-
cember 7th, 1941, an enemy attack force hit
'earl Harbor with all it's fury of death and
destruction. Iii only 30 short minutes
the attackers accomplished their most im-
gortant mission, they had wrecked the
tattle force of the United States Pacific
Fleet. We also lost half of the military air-
craft on the island. W+.1 accounted for our-
selves as military, by lighting back, not yet
aware that history had been thrust upon us.
Pearl Harbor was the actual beginning of
the great war which was to change the eh-
tire political structure of the world. We
Americans who were there, demonstrated
that we were p:repared to give our lives, and
did give them when necessary. Our sacrifice
at Pearl Harbor united the n.ation and gave
rise to a determination to protect and keep
the American freedom. Our sacrifice alerted
a relaxed nation, brought it to it's feet and
caused it ho win World War II. The lesson we
learned by our sacrifice will not be easily for-
gotten. Many of us are no longer of use as
sailors, soldiers, marines and airmen. We
must make ourselves useful at home, by ded-
icating ourselves to the principals of free-
dom; by doing everything within our power
'L.) bring about a commitment of patriotism.
We survivors who are still alive, and to those
that did not survive, we can never permit
ourselves to become vulnerable again.
ADDITIONAL COSPONSORS OF BILLS
AND JOINT RESOLUTIONS
S. 111
At the request of Mr. HARTKE, the Sen-
ator from Pennsylvarna (Mr. Scnwansaa)
was added as a cosponsor of S. 151, the
Foreign Trade and Investment Act of
1973.
S. 60.8
At the request of Mr. KENNEDY, the
Senator from Iowa (Mr. HUGHES) was
added as a cosponsor of S. 608, a bill
6 authorize certain retirement and pay
benefits to military and civilian person-
r el who were prisoners of war.
S. 1015
At the request of Mr. CASE, the Senator
from Illinois (Mr. Piatcy), the Senator
Pnom. Minnesota (Mr. HUMPHREY), the
Senator from Pennsylvania (Mr.
SCHWE) KER) , the Senator from Utah (Mr.
Moss) , the Senator from Rhode Island
(Mr. PELL), the Senator from Massa-
thusetts (Mr. KENNEDY), the Senator
from Michigan (Mr. lam), the Senator
from California (Mr. CRANSTON), the
Senator from Vermont (Mr. STAFFORD)
the Senator from California (Mr. Tins-
NEY) , and the Senator from Maine (Mr.
Mamas) were added as cosponsors of
S. 1005, a bill to amend the National
School Lunch Act, as amended, to assure
that the school food service program is
maintained as a nutrition service to chil-
dren in. public and private schools, and
for other purposes.
S. 1167
At the request of Mr. HART, the Sen-
ator from Wisconsin (Mr. NELSON) was
added as a cosponsor of S. 1167, a bill to
supplement the antitrust laws, and to
protect trade and commerce against oli-
gopoly power or monopoly power, and
for other purposes.
S. 1255
At the ret nest of Mr. Mamie, the Sen-
ator from North Dakota (Mr. BURDICK)
and the Senator from 'Utah (Mr. Moss)
were added as cosponsors of S. 1255.
the Property Tax Relief and Reform Act
of 1973.
S. 1423
Mr. ROBERT C. BYRD. Mr. President,
at the request of Mr. WILLIAivts, I ask
unanimous consent that at the next
printing the following names be added
as cosponsors of the bill (S. 1423) to
amend the Labor-Management Relations
Act to permit employer contributions to
jointly administered trust funds estab-
lished by labor organisations to defray
coats of legal services: Messrs. Raimoaan,
DOMINICK, GURNEY, PEL.L, NELSON, MON-
DALE, C.RANSTON, and HATHAWAY.
The :PRESIDING OFFICER. 'Without
objection, it is so ordered.
s. 1500
Mr. ROBERT C. BYRD. Mr. Presi-
dent, I ask unanimous consent that at
the next printing the name of the Sena-
tor from Colorado (Mr. HASKELL) be
added as a cosponsor of my bill (S. 1500)
to establish a tenure of. office of 7 years
for the office of the FBI Director and
the Deputy Director, and for other pur-
poses.
The PRESIDING OFFICER. Without
objection, it is so ordered. -
8. 1541
Mr. ROBERT C. BYRD. Mr. President,
at the request of the Senator from Maine
(Mr. Musatia), I ask unanimous consent
that at the next printing his name be
aded as a cosponsor of S. 1541, the Con-
gressional Budgetary Procedure Act of
1973.
The PRESIDING OFFICER. Without
objection, it is so ordered.
S. 1563
At the request of Mr. TUNNEY, the
Senater from Massachusetts (Mr.
BROOKE) was added as a cosponsor of
S. 1563, a bill to enable domestic growers
or canners of seasonal fruits or vegeta-
bles or of fruit juices, fruit nectars, or
fruit drinks prepared from such seasonal
fruits, which were packed in hermetically
sealed containers and sterilized by heat
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