The reason for this presumption is that in almost every case the chairman does, in fact, act for the committee and fully within the limits of the committee's expressed wishes.

To require all subpenas to be authorized in advance by majority vote of the committee or subcommittee would be to inflict upon congressional committees a degree of administrative inefficiency.

Just as the Senate controls its own procedure and its own membership, so each committee and subcommittee, within the rules of the House and, in the case of a subcommittee, within the rules of the committee, must have the right to control its own affairs.

Unreasonable search and seizure: Congressional committees have no more right to make unreasonable searches and seizures than does a court. Any witness who thinks a congressional committee subpena duces tecum is unreasonable or lacking in particularity has the same right to refuse to obey it that he would have in the case of a similar subpena issued by a Federal Court; and if he guesses wrong and the subpena is not, in fact, unreasonable, he refuses to comply at his own peril, just as in the case of a court subpena.

Rules of evidence: Congressional committees are primarily factfinding bodies. Ordinary rules of evidence do not and should not apply. Rules of evidence are designed to protect a defendant in a trial. Before congressional committees there are no defendants and congressional hearings are not trials. It should always be for the committee to decide what evidence or testimony may be received, and at what length.

Right to call witnesses: No person ever has any right to call or require the calling of any witness before a congressional committee. The selection of witnesses and the calling of witnesses is for the committee to decide.

Here again it is important to remember that a committee hearing is not a trial.

It is the usual custom to call any witness requested by any member of the committee; but, even in the case of such request, it is basically for the committee to decide by majority vote whether or not the witness will be called.

Right to counsel: A witness should always have the privilege-the privilege, I repeat-to be accompanied by counsel. That does not mean counsel should have the right to testify for the witness or to put words in the mouth of the witness; and, of course, counsel should be required to observe proper decorum.

Right to reply: Any person the subject of derogatory testimony before a congressional committee should have the right to make a reasonable reply, preferably by testimony in person; but if that is not feasible, then in writing. If in writing, the reply should be in affidavit form since it is countering testimony under oath; and the right of reply should be confined within reasonable limits at the discretion of the committee because, clearly, Mr. Chairman, the right of reply should never be permitted to be expanded into the right to use a committee's proceedings or the committee's record as a forum for propaganda. This is particularly important in dealing with Communists. No committee over which I ever presided has ever refused any witness the right to reply. When there has been doubt, the committee has leaned in favor of the witness. An example is the case of Owen Lattimore, who was permitted at the outset of his testimony to read

a very lengthy statement, bitterly attacking the committee and the members of the committee-and if you don't believe that was an attack, you might well read the record.

Testimony adverse to others: The question has been raised respecting the right of a witness under oath to give testimony adverse to others. This is a spurious issue, Mr. Chairman. It is the duty of a witness under oath to testify fully and truthfully, regardless of who may be hurt or embarrassed by his testimony.

Leaks from executive session: A Member of the Senate who leaks information from an executive session of a committee, without the permission of the committee or the Senate, would be subject to censure by the Senate or might even be held in contempt of the Senate.

Rule XXXVI, clause 4, Standing Rules of the Senate, provides:

Any Senator or officer of the Senate who shall disclose the secret or confidential business or proceedings of the Senate shall be liable, if a Senator, to suffer expulsion from the body; and if an officer, to dismissal from the service of the Senate, and to punishment for contempt.

Executive sessions of a committee are confidential proceedings of the Senate, and confidential committee business is confidential business of the Senate, and the rule applies.

Comment on Senate Resolution 287: Present subsection (b) of subparagraph 3 of Rule XXV was enacted to meet a specific court decision respecting quorums for the purpose of taking sworn testimony. Subsection (d) of the new proposed subparagraph 5 under section 3 of Senate Resolution 287 is possibly technically deficient in providing substitute authority.

Subsection (a) of new 5 appears to strip the committee chairmen of the right to appoint special subcommittees and subcommittee chairmen.

In 5 (b) the phrase "having jurisdiction" might be construed as jurisdictional rather than procedural.

5 (d) would appear to authorize veto by boycott, in that even though a majority of the full committee, that is, all majority members might be present, the minority by absenting itself could block any proceedings.

5 (f) might be construed to give a witness the absolute right to refuse to testify if for any reason the counsel he chooses cannot be present or fails to appear, or even in a case where counsel having appeared has been, as a result of his own misconduct, expelled from the hearing.

It is not clear whether 5 (g) is intended to confine a specially called meeting, pursuant to that subsection, to the purposes stated in the notice therefor. This should be clarified.

5 (i) appears susceptible of misconstruction. Assuming a situation in which the committee or subcommittee has authorized the hearing, or series of hearings, to last several days, in some place outside the District of Columbia, it should not be necessary for the committee or subcommittee by majority vote to pass on the date and time of each hearing session, especially since these are matters which might well be affected by factors subject to ready change and ascertainable only at the place and approximately at the time of the particular session affected.

5 (h) is milder than rule XXXVI, paragraph 4, but it must be recognized that no rule can be written which will operate effectively to control at all times what an individual Senator may regard as his right

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to express his personal opinion or to speak for himself as a Senator of the United States.

The CHAIRMAN. Senator McCarran, inasmuch as you have made reference to Senate Resolution 287, I would like to insert that resolution in the record at this point.

(S. Res. 287 is as follows:)

[S. Res. 287, 83d Cong., 2d sess.]

RESOLUTION

Resolved, That rule XXV of the Standing Rules of the Senate is amended by deleting the title "Standing Committees" and inserting in lieu thereof "Senate Committees."

SEC. 2. Subsection 3 of such rule XXV is amended to read as follows: "3. Except as provided in paragraph (d) of subsection 5, each standing committee, and eath subcommittee of any such committee, is authorized to fix the number of its members (but not less than one-third of its entire membership) who shall constitute a quorum thereof for the transaction of such business as may be considered by said committee, subject to the provisions of section 133 (d) of the Legislative Reorganization Act of 1946."

SEC. 3. Such rule is further amended by inserting at the end thereof the following:

"5. The following shall be rules of the standing, select, and special committees of the Senate (except the Majority and Minority Policy Committees) and subcommittees thereof, and the term 'committee' as used in this subsection (except in paragraph (b)) means any such committee or subcommittee:

"(a) A subcommittee of any committee may be authorized only by a majority vote of the committee.

"(b) No investigation shall be initiated unless specifically authorized by the Senate or by majority vote of a standing, select, or special committee having jurisdiction.

"(c) Unless otherwise provided by a majority vote of the committee taken at a meeting called for such purpose, subpenas shall be issued only by authority of the committee.

"(d) No committee shall hear subpenaed witnesses or take sworn testimony unless a quorum is present or such lesser number of members as the committee provides by majority vote to constitute a quorum for the purpose of this paragraph, except that any such lesser number shall include at least one majority and one minority member.

"(e) Committee interrogation of witnesses shall be conducted only by members and authorized staff personnel of the committee.

"(f) A witness subpenaed to appear before a committee may be accompanied by counsel of his own choosing and may be advised of his legal rights by such counsel while testifying.

"(g) If a committee is unable to meet because of the failure or inability of its chairman to call a meeting, or for any other reason, the committee's next senior majority member able to act shall call a meeting of the committee within ten days after the receipt by the Secretary of the Senate of a written request for a meeting of such committee which request shall state the purpose for such meeting and shall be signed by a majority of the members of the committee.

"(h) No confidential testimony taken or confidential material presented in an executive hearing of a committee, and no report of the proceedings of such a hearing, shall be made public either in whole or in part or by way of summary unless authorized by a majority vote of the committee.

"(i) No committee hearing shall be scheduled in any place outside of the District of Columbia except by a majority vote of the committee."

Senator MCCARRAN. I will add one last final expression, Mr. Chairman, if I may, without any attempt at reminiscing too much. It has been the privilege of the senior Senator from Nevada to practice law in many courts and to preside over a court of last resort. There is a difference between evidence and proof, and that difference must be recognized all the way through congressional hearings.

One must keep in mind at all times that a congressional hearing is not a trial.

One must keep in mind at all times that the people of the United States, who constitute this Government, have a right to know everything that might affect their Government. They are represented by the House of Representatives and the Senate of the United States, and their representatives should have the right to bring before any congressional committee all of the facts and, whether facts or mere rumor, should have the benefit of such so that they may explore the area in which the rumor or the suspicion or the facts may apply.

I again draw your attention to the fact that no rules of procedure are necessary for a congressional action. What is necessary in a congressional investigation is the application of good common horse sense, if you please, so that no one will be abused, denied a privilege that really belongs to him, but that the committee, for the purposes for which they sit, shall have the benefit of all expressions, all thoughts, all incidents that belong to the jurisdiction in which they sit.

If you attempt to tie congressional committees down by rules, you will destroy the most effective thing that there is in the legislative body of this Nation because rules will destroy the opportunity that may arise in the twinkling of an eye, if you please, Mr. Chairman, whereby a congressional committee may see fit to reach out and bring to itself witnesses who will bring information that, whether it be information directly cogent to the subject matter under investigation or not, will at least give information to the representatives of the people of this country and thereby give Congress a right to act intelligently. Another thing may I impress on the chairman: In these investigations the executive meeting of a committee is of first importance. I recommend that no investigation go forward in open session until first the committee has in executive session examined the witnesses, taken their testimony, and made an executive record of it. Then if it be worthy of public notice it can be brought out again in public. Now, truly, that is a little cumbersome.

The CHAIRMAN. Do you think that should be a rule, such a requirement as to holding executive sessions?

Senator MCCARRAN. I don't say a rule. I say it should be a pro

cedure.

I am not in favor, Mr. Chairman, of rules because rules are binding and to get the facts before the people of this country there should be no limitation. We ought to have an opportunity to go into any phase of a question; and if it is not applicable, the committee of the Senate can discard it as being inapplicable.

That is about all I have to say. I will be glad to answer any questions that you may see fit to ask.

The CHAIRMAN. Senator McCarran, do you think that an executive commission--we have had various suggestions and recommendations made to this committee-could do the work, for example, of the Internal Security Subcommittee?

Senator MCCARRAN. If I understand what you mean by an executive commission, that would be a commission set up by the Executive. The CHAIRMAN. That is right.

Senator MCCARRAN. No, Mr. Chairman.

First of all, let's go back to first principles. This is a Government of the people. This is a republican democracy. It is for the people and of the people and by the people. A hundred and sixty-two millions of people can't meet in conclave. That was recognized by the

founders of our Government; and, so, they said they should meet by representation and they should select their representative every 2 years and every 6 years, respectively, and, that being true, the people have a right, through their representatives in Congress, to make these investigations, aside from the Executive. The Executive was primarily intended to execute the laws made by Congress, and that is the real object of the Executive.

The CHAIRMAN. I would like to ask you, Senator McCarran: Would the Internal Security Subcommittee have been able to function if a rule were effective requiring that more than one Senator preside at any hearing, executive or open?

Senator MCCARRAN. No; it would not have been able to function. Now, one Senator may preside at a hearing because maybe in a subcommittee of 3 his 2 colleagues cannot sit with him. So, he sits.

The CHAIRMAN. We have that situation here today. I am chairman of a subcommittee of three, but I am the only one present.

Senator MCCARRAN. Yes.

He sits with the authority of his subcommittee. He sits to make a record so that his subcommittee may have the benefit of the record that he makes. However, one Senator may be designated as a subcommittee by a majority vote of the full committee. That is not infrequent and were it not so it is doubtful that we could operate in the Senate of the United States; but, Mr. Chairman, during my experience I know of no such proceeding. I don't know when any one Senator sat alone on a hearing on any of the work of the Internal Security Subcommittee. I do know where one Senator sat alone, but he was a member of the subcommittee, the membership of which could not attend.

The CHAIRMAN. And that was for the purpose of taking testimony? Senator McCAFRAN. Correct.

The CHAIRMAN. I would like to ask you one other question: I know you have another committee meeting that you have to go to, but what would you have to say-and we have had many different opinions before this committee on the right of cross-examination by a witness? Senator MCCARRAN. The right of cross-examination?

The CHAIRMAN. Yes.

Senator MCCARRAN. By a witness?

The CHAIRMAN. By a witness; yes.

Senator MCCARRAN. I would say that it would lead to terrific confusion.

A witness, as I have stated before, should have the right to explain his testimony or to come back before the committee and make full explanation, but he should not have the right to cross-examine; and the reason for that is this: If you permit cross-examination, you will get into interminable fields that are irrelevant, incompetent, and immaterial and, by taking up the time of the committee, it will destroy the efficacy of the committee.

The CHAIRMAN. In the functioning of the Internal Security Subcommittee under your chairmanship, did you have a set of rules? Senator MCCARRAN. No, sir.

The CHAIRMAN. In other words, that committee has been able to function

Senator MCCARRAN. Unless you call the rule of commonsense a rule; yes.