Senator HRUSKA. How do you go to jail? I can't quite get that Who sends you to jail?

Mr. RAUH. I presume that if anyone refuses to answer and they have no defense for that, they get prosecuted.

Senator HRUSKA. Who determines whether or not there is a de fense? Is it the Senator, or is it the witness? Under the Watkin case who is it that decides it?

Mr. RAUH. Clearly the Federal district judge in the first instang and the appellate courts thereafter. But it seems to me that th Watkins case requires no more than that the committee give a fai explanation of pertinence, and that if the committee gives that, the a witness who still is obstinate would be sent to jail under rulings o the court, and that as long as there is no infringement on any othe rights, first-amendment rights, there would be no defense at all. don't think it is a defense by a witness before a congressional com mittee to say, "I don't understand the reason you are giving me fo pertinency" the only defense would be, a reasonable man would n understand.

Senator HRUSKA. That is all very fine in theory, but I still su gest that in actual practice that does not happen and that is not th result.

Mr. RAUH. May I say-and I think we can agree on this, Sen tor that there is no case yet determining this, there has been prosecution since Watkins which would indicate whether a man wh was obstinate after a fair answer had been given by the committ would have a defense.

My interpretation of the Watkins case, I don't believe he woul have a defense.

Mr. SOURWINE. Are you saying that Congress isn't the judge the pertinency, but under the Watkins decision the Supreme Cou is in each instance, and therefore, as soon as he raises a pertinency

Mr. RAUH. Yes; I am saying that, but I am pointing out that the is always a judicial issue as to pertinency in all of these cases. It tried in the district court every other day. Indeed, I think Mr. Sou wine will recall that he and I were engaged in such a trial.

Mr. SOURWINE. What you are saying is that all questions of per nency are jurisdictional?

Mr. RAUH. I wouldn't want to use the word "jurisdictional" ther I would say that an issue of pertinency is always raised as a defen in a contempt case, and it is always for the Court to decide. If th is what you meant by jurisdictional; yes.

Mr. SOURWINE. I don't mean to halt you if you want to say mo about the Watkins case, but when you are through with your treatme of the Watkins case, I have one more question.

Mr. RAUH. I am through.

Mr. SOURWINE. Don't you see that, in the Watkins case, the S preme Court has sought to interfere and to assert the right to inte pret and control, not merely acts of Congress, but the actions of t Congress?

Mr. RAUH. I do not, Mr. Sourwine. It seems to me that some the committees of Congress-let's take the House Un-American Acti ities Committee-had themselves enroached upon the executive an judicial branches, and that was up to the Court, the Supreme Cour

te rght that balance. I feel toward the Supreme Court the way the of the Harvard Law School did in a recent article in the Harvard Law School Bulletin. He said, "In the last analysis the Supreme Ert is the umpire."

And I think that is right.

Mr. SURWINE. Didn't the Supreme Court in the Watkins case say at it was going to umpire the question of whether a congressional ttee was effectively carrying out the mandate of its parent M. RAUH. No; I don't think it said that. I think it said it was to umpire whether the citizen was getting a fair shake before Le congressional investigating committee. I do think it said it was to umpire that. But as to the dispute between the citizen called pena before a congressional committee and the committee itself said:

We will umpire that, because that citizen has a Bill of Rights claim, and we mpare the need of Congress for the information against the Bill of Rights of the citizen.

And I see no way out of having such an umpire.

Mr. SOURWINE. You say you are undoubtedly as familiar with the kins case as anyone you say that the Watkins case did not inTe any assertion by the Supreme Court of the right to determine a committee was effectively and properly carrying out the ite of the parent body?

Barn. Insofar, Mr. Sourwine, as it was necessary for the citi.. determining whether he was required to answer, to see whether lution was sufficiently clear so that he could tell what Congress i by it, only in that respect. But in that respect, the answer question would be "Yes."

SARWINE. Mr. Chairman, I ask permission to insert at this the record a Court excerpt from the Watkins decision directly on this point.

For HRUSKA. Permission is granted. It will be inserted.

WINE. So that the record will show what Mr. Rauh and I king about.

ator HRUSKA. Very well.

scerpt referred to is as follows:)

FROM THE OPINION OF THE SUPREME COURT OF THE UNITED STATES IN - CASE OF JOHN T. WATKINS, PETITIONER, v. UNITED STATES OF AMERICA, D JUNE 17, 1957

troversy thus rests upon fundamental principles of the power of the and the limitations upon that power ***. No inquiry is an end in Lust be related to and in furtherance of a legitimate task of the ConIt is unquestionably the duty of all citizens to cooperate with the Lits efforts to obtain the facts needed for intelligent legislative The Bill of Rights is applicable to investigations as to all forms al action. Witnesses cannot be compelled to give evidence against They cannot be subjected to unreasonable search and seizure. Nor → amendment freedoms of speech, press, religion, or political belief Sanation be abridged * *. In the decade following World War II, ared a new kind of congressional inquiry unknown in prior periods at history. Principally this was the result of the various investigathe threat of subversion of the United States Government, but other ***ngressional interest also contributed to the changed scene. This

of legislative inquiry involved a broad-scale intrusion into the lives of private citizens. It brought before the courts novel questions of

» "mits of congressional inquiry * * *. It was during this peri iamendment privilege against self-incrimination was frequent ecognized as a legal limit upon the authority of a committee witness answer its questions * *. *. A far more difficult ta de claim by witnesses that the committees' interrogations we on the freedoms of the First Amendment. Clearly, an subject to the command that the Congress shall make no l edom of speech or press or assembly. While it is true that there e reviewed, and that an investigation is not a law, neverthele ca's part of law-making. It is justified solely as an adjunct ocess. The First Amendment may be invoked against infrin colected freedoms by law or by law-making ***. The me A witness and compelling him to testify, against his will, ab xressions or associations is a measure of governmental interf Accommodation of the congressional need for particular infor individual and personal interest in privacy is an arduous a any court ***. The critical element is the existence of, a be ascribed to, the interest of the Congress in demanding ta unwilling witness. We cannot simply assume, however, t onal investigation is justified by a public need that overbalan his affected. To do so would be to abdicate the responsibil cvu ditution upon the judiciary to insure that the Congress d encroach upon an individual's right to privacy nor abri ccch, press, religion or assembly ***. The theory of a c that the committee members are serving as the representati embly in collecting information for a legislative purp To act as the eyes and ears of the Congress in obtaining fa l legislature can act. To carry out this mission, committ ometimes one Congressman, are endowed with the reza to compel testimony ***. An essential premise in The House or Senate shall have instructed the committee m e to do with the power delegated to them. It is the so Congress, in the first instance, to insure that compuls in Turtherance of a legislative purpose. That requires t an investigating committee spell out that group's jurisdict mitciont particularity. Those instructions are embodied That document is the committee's charter. Bros Aworded, however, such resolutions can leave tremend cretion of the investigators. The more vague the committ cres becomes the possibility that the committee's spe conformity with the will of the parent House of

"

་ ་་་

"

Pa wide gulf between the responsibility for the use of and the actual exercise of that power. This is an especi in touring respect for constitutional liberties. Prote as he placed in danger in the absence of a clear determina senate that a particular inquiry is justified by a spe An excessively broad charter, like that of the H se Committee, places the courts in an untenable posi a balance between the public need for a particular inte of citizens to carry on their affairs free from unnecess སོ་་།་།།། ༄་ It is impossible in such a situation to ascer ave jutt pose justifies the disclosures sought and, if so, commation to the Congress in furtherance of its legisla Vence of the qualitative consideration of petitioner's q Hone of Representatives aggravates a serious problem, reve axelationship of congressional investigating committees way appear before them. Plainly these committees are restri Jefe ared to them, i. e., to acquire certain data to be used toware in coping with a problem that falls within its legi No WITHIN Can be compelled to make disclosures on matters Fit is a Jurisdictional concept of pertinency drawn from correccional committee's source of authority. It is not wh non unrelated to the element of pertinency embodied in e under which petitioner was prosecuted. When the definit

A

onal pertinency is as uncertain and wavering as in the case of Activities Committee, it becomes extremely difficult for the C

amite inquiries to statutory pertinency ***.

Mr. RAUH. Turning to the second of the eight cases, we have the ele ision, which would be reversed in effect by the second section bill. And now, all that the Cole case held was that the Federal yee security program should apply only to persons holding a tive position.

Mr Sot RWINE. Mr. Rauh, that is not quite it. What the Cole case was that that was the intention of the Congress.

Mr. RAUH. That is correct.

M2. SOURWINE. Not that it had to be, not that as a matter of right should be such a limitation, but only that it was the intention. Congress that the right to fire be so limited; isn't that right? V. RAUH. That is absolutely right. And all I am saying is that - held that it holds that the Federal employee security program

only to persons holding sensitive positions, that is correct. f you want to say that the reason behind this was that they said at was Congress' intent, that is true, that should be added to it. And now, all I would say is that that was the most sensible holding at one could possibly make. What is the sense of screening people Lave nothing to do with security?

W SURWINE. Well, Congress has the right to ascertain and make ent as to what it considers security, isn't that right?

KATH. But applying it to an inspector in the Food and Drug istration, which Mr. Cole was, is hardly my judgment of

SOURWINE. You are arguing there with the judgment of ConIf the Congress intended-as the Supreme Court said it did as the lower court said it did-if the Congress intended to - authority applicable to such a case as Cole's, then the arguther the Congress was wise in that intent is not a basis for of the Congress, is it?

RACH. I would say it was.

VO NARWINE. You think that is why the Supreme Court reversed they thought Congress was not wise?

M: RAT H. NO.

or HRUSKA. Would you like to have the Supreme Court exermer of saying that it was wise or not wise? Krн. No, I would not.

URWINE. Just one more question. The Congress therefore wer clearly and is doing no violence of any right of the Court, if the Supreme Court interprets the argument in 1ys to say that Congress did not intend to pass the legislation. ke clear what the intent was in this, isn't that right? RT H. That Congress can pass the legislation? NURWINE. Yes.

TH. It can pass new legislation. Such legislation is pendor of the House of Representatives at the present time. I would just like to say a word about this. I think that legisnstitutional. It seems to me that for Congress to apply weeting to nonsecurity jobs is arbitrary and unconstituase it gives the Government the duty to screen for security, to the past lives of people, when there is no need from a sedpoint to go into that screening.

fe, it would be my contention--if the bill is passed, it will etion-that that bill, insofar as it provides for screening

of nonsensitive positions for security purposes, in fact is uncons tutional. I think that in a sense that underlay the Cole decisi That is why I didn't want to agree entirely with your analysis, though I agree with most of it, Mr. Sourwine.

I think the Court had a certain feeling that if, in fact, it was t broad it would raise serious problems, and therefore they said, do not believe Congress intended to make it that way.'

Senator HRUSKA. Isn't that tantamount to saying that the S preme Court would be the one to decide what is sensitive or not a what is wise or not with reference to the classification of positio as sensitive or insensitive?

Mr. RAUH. No, I wouldn't say that, Senator. It seems to clearly that Congress can say what is sensitive.

Senator HRUSKA. They can say a janitor holds a sensitive posit if they want to, can't they?

Mr. RAUH. But they cannot in my judgment say a janitor in very nonsensitive agency does.

Senator HRUSKA. What is a nonsensitive agency, and who is say so?

Mr. RAUH. I think, within reasonable limits, Congress can, there are many, many areas of nonsensitivity, and if you just everybody is in a sensitive position, that I don't think you can s because I don't believe everybody is in a sensitive position.

Senator HRUSKA. That gets back to my original question. Is that tantamount to saying that the Supreme Court is the one that w say, with whatever degree you might want to put on it, they are ones who say what is sensitive and what isn't?

Mr. RAUH. No, I can't agree with that, Senator.

Let me try to make myself clearer than I did last time. Congr will say in the first instance what is sensitive and what is nonser tive. As long as there is any possible basis for that, the Supre Court will undoubtedly uphold it. It is only when Congress s everything is sensitive that I believe the Supreme Court will s in the case involving Mr. Cole, a food and drug inspector, that t goes so far from sensitivity that we cannot uphold it.

Mr. SOURWINE. What you are saying is this, that the Supre Court has the right, when, in its judgment, Congress has made unreasonable definition of what is sensitive, to say that that is unreasonable decision and overthrow it?

Mr. RAUH. Precisely.

Mr. SOURWINE. In other words, the determination of Congress w regard to what is sensitive is subject to Supreme Court review Mr. RAUH. But only for unreasonableness or arbitrariness. Mr. SOURWINE. But only for what the Supreme Court feels reasonable or arbitrary?

Mr. RAUH. Yes. But that is true of everything in this world, 1 Sourwine, that the Supreme Court is thoroughly reviewing C gress' action as to whether the thing is so arbitrary or unreasona as to be a violation of the due process concept. The whole conc of due process of law in America is whether the action of the G ernment against the citizen is so arbitrary and so unreasonable as constitute a violation of due process. And whether it is in the a