man would be in the so-called 'friendly' or 'unfriendly' category.
'There were other devices and techniques which were used, some of which were of a confidential nature.' (S-Tr. 5-6.)
Mr. Arens testified that he had no independent recollection of whether the procedures and criteria just outlined were followed in deciding whether to call defendant Grumman in executive or in public session, but since the practice he described was 'an invariable' one, he said he was 'confident' that there was no departure in the case of Grumman. (G-Tr. 14-15.)
This Court has concluded that the application of Rule IV, as outlined in the above testimony of Mr. Arens, violates the language and purpose of Rule IV itself, and conflicts with one of the basic limitations which Congressional committees must observe in conducting investigations. There is absolutely no basis in Rule IV for distinguishing between 'friendly' and 'unfriendly' witnesses. Regardless of which category a particular witness might be thought to fall into, that witness is entitled to the protection of Rule IV, which states in clear terms that the Committee must consider possible danger to the national security, and possible unjust injury to the witness' reputation or to the reputations of other individuals.
The issue clearly must be phrased in terms of what Rule IV means by 'unjust' injury.
According to the Committee's interpretation, as described by Mr. Arens, there can be no unjust injury where a witness who is expected to be uncooperative and who has been reliably identified as a member of the Communist Party is interrogated publicly about his supposed Communist connections. The only instance of an 'unjust' injury, in Mr. Arens' view, occurs if a witness were to be erroneously identified as a Communist in public.
This interpretation of Rule IV ignores the delicate balancing of public against individual interests which the word 'unjust' requires the Committee to make in determining whether to call a witness in public or in executive session. Traditionally, courts in reviewing contempt of Congress cases must undertake such balancing in evaluating the propriety and pertinancy of questions asked of a witness. Barenblatt v. United States, 360 U.S. 109, 126, 79 S. Ct. 1081, 3 L. Ed. 2d 1115 (1959); United States v. Peck, 154 F.Supp. 603, 607 (D.C.D.C.1957). Rule IV imposes a similar obligation upon the Committee in reaching its decision of whether to ask its questions in public or in private. The apparent truthfulness or 'solidity' of the identification of the witness as a Communist is only one of several factors to be weighed in the scales on the side of the interests of the particular individual. Another factor is the possible remoteness in time of the alleged Communist connections which the Committee wishes to expose -- even if those connections are assumed to be true. Against such factors on the side of the individual, there must be weighed on the side of the public the amount of valuable information the Committee expects to gain. See Peck, supra, 154 F.Supp. at 607.
It is clear, however, that Mr. Arens' interpretation of Rule IV does not provide for this kind of delicate and particularistic balancing, as the word 'unjust' requires. Indeed, Mr. Arens' interpretation blatantly reveals the real purpose of the Committee in calling in public session a witness who has already been labelled 'unfriendly' -- namely, exposure for the sake of exposure. For according to the Committee's own definition, an 'unfriendly' witness is one who has already been 'solidly' identified and who is expected to divulge nothing. Thus by the Committee's interpretation, no new information will be gained in the public session, and the Committee is merely engaged in exposing to public view the past associations of the witness. The Supreme Court has castigated such exposure in clear and binding terms:
'The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. * * * Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to 'punish' those investigated are indefensible.' Watkins v. United States, 354 U.S. 178, 187, 77 S. Ct. 1173, 1179, 1 L. Ed. 2d 1273 (1957).
'We have no doubt that there is no congressional power to expose for the sake of exposure. The public is, of course, entitled to be informed concerning the workings of its government. That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals. * * * The theory of a committee inquiry is that the committee members are serving as the representatives of the parent assembly in collecting information for a legislative purpose. Their function is to act as the eyes and ears of the Congress in obtaining facts upon which the full legislature can act.' 354 U.S. at 200, 77 S. Ct. at 1185-1186, 1 L. Ed. 2d 1273.
In this language from the Watkins case, the Supreme Court has declared that Congress has no power, under our Constitution, to expose for the sake of exposure. Yet precisely such forbidden exposure for the sake of exposure is the clear result of this Committee's interpretation of its own Rule IV: since no new information is expected from a so-called 'unfriendly' witness, the sole remaining purpose of public interrogation is to create public scorn. Revealing the truth in public, even in regard to an uncooperative witness, may of course sometimes be appropriate. But it is not automatically appropriate: it is the Committee's task, in applying its own standard of 'unjust injury,' to exercise a delicate balancing of judgment, weighing legitimate private interests against legitimate public interests.
The Committee's discretion in this regard is thus limited by standards of fundamental procedural fairness implied in the word 'unjust.' As one commentator has recently observed in discussing limitations imposed upon Congressional investigations:
'It is I think correct to suggest that * * * the vague but fertile notions of fairness, of respect for the dignity of an individual confronted with governmental power, of notice, and of regularity * * * (provide) a goal, a point of reference properly and traditionally within the competence of a court's discretionary and particularistic judgment. For even should it not be possible conscientiously to conclude that the power of Congress here may be limited in principle, the court may very well insist that its own processes not be invoked -- as they inevitably are in criminal proceedings -- unless the exercise of governmental power which is being vindicated comports in form and style (whatever its content) with these procedural notions of fairness and decorum.' Fried, 'Two Concepts of Interests: Some Reflections on the Supreme Court's Balancing Test,' 76 Harv.L.Rev. 755, 776 (1963).
In Rule IV, of course, we have a standard of fairness adopted by the Committee itself and not imposed by the courts, which suggests even more strongly the proposition that the failure of the Committee properly to apply its own Rule IV requires a court to enter judgment of acquittal in any subsequent prosecution for contempt of Congress. Yellin, supra. Rule IV exists as a self-imposed reminder to the Committee that in deciding whether to call a witness for public interrogation, competing public and private interests must be carefully weighed in order that the reputation of the prospective witness or of other persons not be unjustly damaged, and in order that the national security not be endangered. Such careful balancing is conspicuously absent in the procedures described by Mr. Arens in testimony before this Court.
Complete disregard of such balancing is shown by the facts surrounding the decision to call defendant Grumman in public, rather than in executive, session.
The record shows that Grumman had filed non-Communist affidavits with the National Labor Relations Board beginning with September 1, 1949, and continuing through and after his appearance before the Committee in July of 1957. In these affidavits the defendant swore under oath and subject to the penalties for perjury that he was not a member of the Communist Party or affiliated therewith and that he did not believe in and was not a member or supporter of any organization which advocated the overthrow of the Constitution of the United States by any illegal method. The record also shows that prior to calling Grumman as a witness, the Committee had knowledge that he had filed such affidavits.
The record also shows that Grumman was called as a witness because the Committee has information which it considered to be completely reliable and trustworthy from a previous witness to the effect that Grumman had been a member of the Communist Party sometime in the period between 1936 and 1940. This is the same issue of remoteness which this Court considered seven years ago, where a defendant before a Congressional committee had been
'asked to identify persons who belonged to groups at a time when those groups constituted legitimate political associations and when many Americans who would have violently opposed the overthrow of the government by force were members. These questions related to periods which were remote in time and in which a different political climate prevailed. There had not yet occurred any armed conflict between American and Communist armies. * * * There is little, if any, national interest to be served by engaging in so indiscriminate a resurrection of the political past -- and whatever interest there is, is more than counterbalanced by the deprivation of First Amendment rights.' United States v. Peck, D.C., 154 F.Supp. 603, 607 (1957).
In addition to the above knowledge about Grumman's past -- both recent and remote -- the Committee had already concluded that Grumman would be an 'unfriendly' witness. (G-Tr. 55.)
Thus the Committee could hope to gain nothing from interrogating Grumman except exposing to public view the accusation that he had been a member of the Communist Party in the relatively remote past sometime between 1936 and 1940. If the Committee had applied Rule IV with a proper awareness of what constitutes an 'unjust' injury to reputation, and without relying upon the extraneous distinction between 'friendly' and 'unfriendly' witnesses (which distinction is not found in Rule Iv,), the Committee could not have called Grumman in public session, especially in view of the remoteness of the period during which Grumman was charged with having been a member of the Communist Party. For the Committee to call Grumman in public was thus a violation of its own rules of procedure.
In view of the foregoing, a finding of not guilty will be entered in the case against Grumman, pursuant to Rule 23(c), Federal Rules of Criminal Procedure.