unfavorably to his testimony. This is a matter for his employer to determine.

These, in broad outline, are procedural principles that we believe congressional investigating committees should respect.

Finally, I plead for the adoption of rules that will serve the salutary purpose of reversing the drift toward a general loss of respect for individual rights.

We are today engaged in a struggle with communism for the hearts and minds of men. These must be won fairly. Our cause is just and it must always be clear that it is just. If there is one principle of democracy that is more fundamentally opposed to the principle of communism than any other, it is the principle that the individual is not a mere instrument of the state, but is a supreme end in himself.

In a democracy the state serves the individual; under a totalitarian system, the individual is subservient to the state.

In our unique society, the state cannot permit its legitimate concern for security to destroy the rights and privileges of individual citizens, for when the individual suffers needlessly, democracy languishes. It is both desirable and feasible that a balance be struck between the two. If the critical juncture is ever reached where the individual suffers chronically the denial of his basic rights, then our system will have become indistinguishable from the totalitarian society that it now opposes.

By permitting unfair procedures, we are risking the loss of the battle to win the hearts and minds of those people elsewhere in the world who are watching anxiously to see whether the promises of our democracy will continue to be fulfilled or whether, under strain, they will succumb to expediency.

I close with a quotation from the case of West Virginia State Board of Education v. Barnett, in which the United States Supreme Court said:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Senator CARLSON. Judge Rose, we appreciate very much your taking the time to appear before this committee and give us this information, which is very helpful. I, personally, have enjoyed very much your statement.

Mr. ROSE. Thank you.

Senator CARLSON. Senator Hayden.

Senator HAYDEN. I want to reiterate what the chairman has said. You have really brought us some constructive suggestions. Senator CARLSON. Mr. Berkovitch.

Mr. BERKOVITCH. I think this is a clear, constructive statement, and there is no question I could ask at this point.

Senator CARLSON. Judge Morris.

Mr. MORRIS. Judge Rose, I wonder if you could tell us what investigating committee is involved in the Supreme Court cases you cited. I think one of them was the U. S. v. Lovett (328 U. S.); another was U.S. v. Rumely, and I think there were several other references.

Mr. ROSE. The Rumely case, of course, involved the lobby investigation, in which Mr. Rumely was held for contempt for failing to

produce the list of subscribers to his service, and the Supreme Court said that the investigation had gone beyond the scope of its purpose. Mr. MORRIS. That was which committee? Was that the Buchanan committee?

Mr. ROSE. I think that is the Buchanan committee.

Mr. MORRIS. And U. S. v. Lovett?

Mr. ROSE. That arose out of, I think, the Dies committee in which three individuals

Mr. MORRIS. Well, Judge, I just wanted to know which particular committees.

Mr. Rose. I would say this, the case went up on evidence which had been originally produced by the Dies committee in the House, in which these three men were determined to be subversives, and then an act of Congress was passed which proscribed these men from receiving any compensation from the United States Government, except from military duty, and the Supreme Court said this, in effect, was a bill of containment.

Mr. MORRIS. Thank you very much, Judge.

Senator CARLSON. We thank you very much, Judge Rose.

Mr. ROSE. Thank you.

Senator CARLSON. The next witness is Mr. Irving Ferman of the American Civil Liberties Union.

Mr. Ferman, do you care to be sworn?

Mr. FERMAN. Yes, sir.

Senator CARLSON. Do you promise and swear the testimony you are about to give is the truth and nothing but the truth, so help you God?

Mr. FERMAN. I do, Mr. Chairman.

Senator CARLSON. Mr. Ferman, if I may be bold enough to suggest, I would urge that you put your statement in the record and give us a few comments on it because of the time.

Mr. MORRIS. I think, Mr. Chairman, Mr. Ferman has just a 1-page

statement.

Mr. FERMAN. Yes.

Senator CARLSON. All right; go right ahead.

TESTIMONY OF IRVING FERMAN, DIRECTOR OF THE WASHINGTON,
D. C., OFFICE OF THE AMERICAN CIVIL LIBERTIES UNION
Mr. FERMAN. My name is Irving Ferman. I am the director of the
Washington, D. C., office of the American Civil Liberties Union.

I am a lawyer by training and a member of the Louisiana bar.
My appearance this morning I am presuming is an addendum to
Mr. Angell's eloquent testimony, based upon the firsthand observation
of committee operations that my job has afforded me.

I do not intend my brief remarks to be interpreted as minimizing the necessity for certain procedural reforms. What I would like to stress this morning, and urge the committee to study, are some of the problems that are not easily solved by procedural reforms.

In the investigative process, as has been emphasized by Mr. Angell this morning, we have one of the most essential safeguards for the assured promotion of the democratic process, both as a check on the executive and as a necessary adjunct of the legislative process per se.

This investigative process is really a form of government, and the difficulty that I see and I see it as a difficulty-is to have imposed on this form of governmental activity the constitutional safeguards of, first, limited government; and, secondly, precisely drawn government, so that the citizen will be able to determine at all times what the jurisdiction of a committee embodies.

Our National Government is one of limited powers. That perhaps is the most basic concept underlying our liberties. It can only govern in certain constitutionally designated area. But the problem is whether the congressional scope of inquiry is so limited.

National problems, deserving of the most intensive investigation, so often fan out into every phase of our life-into areas in which Congress cannot legislate.

An example of this difficulty is the Senate Internal Security Subcommittee which has been charged with investigations into our internal security, a problem rightfully concerning Congress. Moreover, its mandate is based on an acknowledged legislative concernthe prohibition of acts aimed at overthrowing our Government by force or violence. An inquiry into such acts cannot avoid looking into the nature of certain associations involving political beliefs.

However, the first amendment generally bars Congress from legis. lating on matters dealing with political beliefs. Yet, should not our legislature be given a free rein to investigate so basic a problem as internal security in all its facets, despite the fact that in some of these facets, such as opinion and belief, it is barred from Federal intervention?

In the congressional inquiries, we have a means for Government to be exercised. There are really no guaranties that the end to which it can be put will be good; and, like so many democratic institutions, we must have faith and hope in the good sense of our people and their chosen representatives.

Senator CARLSON. Senator Hayden.

Senator HAYDEN. I have no questions.
Senator CARLSON. Mr. Berkovitch.

Mr. BERKOVITCH. I have no questions. Thank you.

Senator CARLSON. Judge Morris.

Mr. MORRIS. Mr. Ferman, do you have, in connection with your position in the Civil Liberties Union, a particular assignment in Washington with respect to congressional committees ?

Mr. FERMAN. Yes. One of my functions is to observe and report the activities of the committees as they bear on problems relating to individual liberty.

Mr. MORRIS. And, as such, you have been, you might say, a firsthand witness to many of the investigations that have been conducted here in Washington?

Mr. FERMAN. Yes; I have, Judge Morris.

Mr. MORRIS. Senator, may I point out the particular qualification of this particular witness, inasmuch as he has the assignment of watching particular committees perform here in Washington, and I wonder if I might, Mr. Chairman, and Mr. Witness, ask a few quescions about your own personal observations on the operation of the congressional committees.

Mr. FERMAN. Yes, sir.

Mr. MORRIS. Mr. Ferman, do you find that the committees have been guilty, as frequently has been charged and as several witnesses who have appeared before this committee have contended, of going into the views and political opinions and the beliefs of individual witnesses, rather than undertaking an inquiry into the organizational connection of various individuals?

Is that clear?

Mr. FERMAN. Yes; the question is clear to me, Judge Morris.

I might say at this point I am somewhat heartened by the trend in committees investigating subversive activities to direct their injuiries and to direct their questions and to direct the wording of their questions to acts and to associations. However, the line is admittedly very, very thin when one, on one hand, recognizes organizational associations involve political beliefs, which we in the union feel represent an area which should not be the subject of congressional investigation; on the other hand, associations in certain political groups can be construed as an act properly within the purview of a congressional investigation.

The line is very, very difficult to draw, but I want to make particular emphasis that in the form of the questions asked by several congressional committees I think there has been an attempt not to ask questions concerning political beliefs, but to emphasize acts, acknowledging, of course, the difficulty in drawing such a line.

Mr. MORRIS. Mr. Ferman, have you been able to observe congressional committees with respect to their granting the right of crossexamination and the right of confrontation of witnesses?

Have any of the committees that you have observed gone ahead in granting such rights to individual witnesses?

Mr. FERMAN. Yes. I think there hasn't been as much cross-examination and confrontation as I would like.

Mr. MORRIS. You would like more than you have observed?

Mr. FERMAN. Oh, yes; but I have observed some. I think it indicates a trend that I think should be recognized.

I think even our worst problem, Senator McCarthy's committee, has had a form of confrontation and cross-examination in some of his hearings, and so has the House Committee on Un-American Activities. A good number of their hearings have been based upon confronted testimony.

I am not suggesting there isn't still remaining a problem, but there has been much more confrontation and some cross-examination than has been realized by the critics of congressional investigations.

Mr. MORRIS. Mr. Ferman, have you observed, as I have, in the various problems confronting congressional committees, a certain conflict between two desirable trends?

One is the trend, on the one hand, to preserve the anonymity and the identity of an individual who appears before a congressional committee in executive session and answers very candidly, "Yes; I have been a member of the Communist Party. I joined in 1938, stayed in the party for 7 years; then realized it was a totalitarian organization; it was doing damage to the free world, and I left that party," and he testifies very candidly and fully before the subcommittee in executive session about many of the details of that particular experience.

Now, various committees, for the most part, have encouraged that, have encouraged men to come forward and, in executive session, tell the full story, being very candid, and they, themselves, have either commended the particular performance or else have reserved decision, feeling it was not for them to judge the propriety or impropriety of the man's behavior. Meanwhile, he has given the committee evidence. Now, the committees have assured these people-at least from my own experience that their anonymity would be preserved, that their identity would not be brought forth, because no purpose would be served in bringing out evidence about a man's past activity, particularly if he gives an indication that that activity is something in the past.

Don't you find there is a certain conflict between that and the situation of forcing the identity of that man to be known, to have this man reappear before a congressional committee and then subject that particular witness to cross-examination and the testimony of witnesses against him in connection with his testimony?

Now, there are two trends there, Mr. Ferman. I am sorry it is such a long question.

Mr. FERMAN. No.

Mr. MORRIS. But it brings out two trends that I have observed. Each is a desirable trend. You want to get as much truth as possible from a particular witness, and at the same time you do want to encourage people to come forward and give these very necessary secrets to both the executive and the legislative branch of the Government. Have you given any thought to that, Mr. Ferman, that would be helpful to us?

Mr. FERMAN. Yes; and, of course, the conflict is based upon our inability to precisely characterize the investigative process.

If we consider it an investigative process, an inquiry, a looking into facts, rather than an indictment, which basically it is, then I would say there should be no necessity to force our anonymous person to come forward-and, indeed, I have discussed this problem with our board chairman, Mr. Ernest Angell, who was faced, as the chairman of the second region loyalty board, with the precise problem, and I know in the light of his experience he shares my feeling.

I think, in rare situations, where you do have, by the very circumstances of the case, more or less an indictment, then I think I would require confrontation, but in the long pull I think more can be gained by the emphasizing of the inquiring nature of the process and not requiring anonymous persons to come forward.

Mr. MORRIS. By that, Mr. Ferman, do you mean if the committee comes forward and brings out the fact that a particular witness has testified to certain facts against an individual-if the committee does that, it, of course, has to provide for the source of the information and present it for confirmation?

Mr. FERMAN. I think one way to answer the problem is to try to impress upon the people of this country that a person appearing before a congressional committee is not a person guilty by his very presence of an illegal act.

I think the problem rests very largely in educating the American people as to precisely what the investigative process is, and I think