FREEDOM OF INFORMATION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000700010003-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 28
• Document Creation Date: December 16, 2016
• Document Release Date: June 2, 2005
• Sequence Number: 3
• Publication Date: November 19, 1974
• Content Type: OPEN

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