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Action premised on comprehensive recommendations formulated outside of the legislative processes, is appropriate in areas where the professional nature of the task would leave the legislature time for little else. In this regard, the demands of formulating procedural rules are similar to those required for an effort towards codification of our substantive criminal laws. Here I note that a most fruitful approach was followed by the National Commission on Reform of Federal Criminal Laws, in its work on a proposed new Federal Criminal Code which is currently the subject matter of hearings by the Subcommittee on Criminal Laws and Procedures.

Nevertheless, I think that it is essential in all of these matters that the Congress not surrender meaningful, final control over the basic lawmaking function, for if we do, we shall materially contribute to the demise of our representative form of government. I, for one, do not want it ever said that I contributed to that result.

Mr. HRUSKA. Mr. President, will the Senator yield?

Mr. MCCLELLAN. I am pleased to yield to the distinguished Senator from Nebraska.

Mr. HRUSKA. Mr. President, I express my appreciation to the Senator from Arkansas for taking the leadership in introducing the bill. It is a very important suggestion, and its importance will certainly be revealed as a study of the bill is made and as the hearings progress.

Mr. President, if I might, I would like to ask the Senator from Arkansas a few questions concerning the scope and direction of the bill that he has just introduced, and on which I have joined him as a cosponsor.

It is my understanding that under present law and Court rule changes reported to the Congress have the force and effect of law unless both Houses register their objection within 90 days. Those who are familiar with the legislative process realize that this is not sufficent time for Congress to digest and act upon numerous rules aimed at complex and important situations. The net effect is that the Court is exercising legislative functions which belong to Congress under article I of the Constitution. This bill would restore these functions to their proper place.

It is correct to say that in essence this bill would do three things: First, require that no rules would take effect until the end of the session in which they are reported; second, stipulate that the rules would not take effect if either House expressed objection; and third, permit objections to be made to the proposed rules in whole or in part?

Mr. MCCLELLAN. The Senator's understanding of the bill is correct. Ultimate lawmaking power rightly rests here in the Congress, and this proposed legislation would guarantee the Congress a meaningful role in the establishment of rules of practice and procedure in our judicial system. In other words, the rules could not become law if Congress objected to them.

Mr. HRUSKA. Mr. President, I would like to have clarified for me the matter of the date of effectiveness of proposed rules. It is my understanding from reading the bill that, if proposed rules are submitted to Congress prior to May 1, they become effective at the end of that session of Congress if no objection is lodged. What is the situation with regard to proposed rules which are submmitted to Congress after May 1?

Mr. MCCLELLAN. Rules submitted to Congress after May 1 would have to carry over to the next session of Congress. The proposed statute is not explicit on this point. In this regard, it tracks the language of present law, where that interpretation is a part of its legislative history (see S. Rept. No. 1491, 81st Cong., 2d sess., 3 (1950) (letter of Elmore Whitehurst, Acting Administrator, Administrative Office of U.S. Courts)).

Mr. HRUSKA. Mr. President, the immediate stimulus for this bill is the fact that the Revised Rules of Evidence for the U.S. Courts and Magistrates are now being circulated and will soon be reported to Congress. Contained therein are some very far-reaching and important rules that Congress should have an opportunity to study in detail, particularly in light of the ongoing project of the Criminal Laws Subcommittee to revise the totality of Federal criminal law. Having looked at a copy of these draft rules, several provisions struck this Senator as being particularly worthy of study and comment by Congress. These are certainly not intended to be a complete enumeration of provisions that might merit our attention.

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Is the Senator familiar with proposed rule 509 dealing with the Government privilege not to reveal military and state secrets? If so, would he care to make a comment on his initial thoughts concerning the effect of this proposed rule?

Mr. MCCLELLAN. Mr. President, proposed rule 509, in my judgment, raises a number of serious issues. As originally proposed in March of 1969 by the advisory committee on evidence, the rule closely followed the Supreme Court's holding in United States v. Reynolds, 345 U.S. 1 (1953), where the Government's right to withhold military information in a tort suit was upheld. The test under the evidence committee's rule was a "showing of substantial danger that the evidence will disclose a secret of state." The March 1971 Revised Draft, promulgated by the parent Rules Committee, however, subtly shifts the test. It would require a "showing of reasonable likelihood of danger that disclosure of the evidence would be detrimental or injurious of the national defense or international relations of the United States." I note, too, that under subdivision (b) of the rule, the showing could be made in chambers, but that counsel could be present during the showing.

I am troubled that this procedure would result in a defeat of the privilege itself. Too often today there is a little distinction between counsel and defendant-particularly in radical and subversive prosecutions. Disclosure to counsel of information would be tantamount to disclosure to defendant. The Supreme Court itself in the Reynolds case (345 U.S. at 8) recognized that the procedure adopted to determine the validity of a claim of privilege must not "force the disclosure of the very thing that privilege is designed to protect." If the test is to be not whether a state secret would be disclosed, but whether the disclosure of a state secret would endanger the national security, I am concerned that in most cases, establishing the likelihood of danger would, in fact, substantially disclose the state secret.

I am not prepared, at this juncture, to venture an opinion on how I would vote were either the original version of rule 509 or the revised version introduced as a specific item of legislation. These questions are extremely sensitive and complex, as I am sure the distinguished Senator from Nebraska is well aware. Onr colleague, the distinguished Senator from North Carolina (Mr. Ervin), is now holding hearings in this general area. I am sure that the Senate will be able to make an intelligent decision in this area following the completion of those hearings. This in itself is the point that I am raising in the introduction of the "Court Practice Approval Act of 1971."

I would have little objection to rule 509 if it merely codified the present law. Yet when selected members of the judiciary and a few law professors, without public hearings, undertake to make significant changes in the fundamental rules by which our system of justice is administered, they are arrogating to themselves a basically legislative function. When that is coupled with a procedure that makes meaningful participation in that process by the elected representatives of the people impractical, I must object and protest.

Mr. HRUSKA. Similarly is the Senator aware of the proposed rule relating to divulging the identity of informers? I believe that it is proposed rule 510. Has the Senator a comment on that?

Mr. MCCLELLAN. I am indeed seriously troubled by the scope of proposed rule 510. As originally proposed by the Evidence Committee, it basically codified the rule announced by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 59 (1957). Again, however, the rule has undergone a subtle, but significant change at the hands of the parent Practice Committee. Under Roviaro and the Evidence Committee's rule, the informant's privilege-a privilege necessary to effective investigations, as I am well able to testify from my experience on the Permanent Subcommittee on Investigations-could be pierced where the informant's testimony was necesary "to a fair determination of guilt or innocence.” In contrast. under the practice Committee's rule, the test is to be a “fair determination of a material issue." This is explained in the Advisory Committee's note as a change made necessary to adapt the rule to civil proceedings. Nevertheless, as so stated, it might well be read to set aside the Supreme Court's decision in McCray v. Illinois, 386 U.S. 300 (1967), where the Supreme Court upheld the propriety of not disclosing an informant's identity where his testimony bore not on guilt or innocence but on the propriety of arrest without a warrant. I note, too, that as the rule presently reads, the informant's identity may be privileged only where his information purported to reveal a violation of law. Many times the information furnished law enforcement today, particularly in

the area of organized crime and subversion, does not immediately relate to a violation of a particular statute. Instead, it gives the Government the sort of general intelligence information it needs to protect our Nation's security from the actions of revolutionaries and those who would subvert our democratic processes. To fail to protect the identity of the informant in these areas would be to court social suicide.

Finally, I note that subdivision (3) of rule 510, like rule 509, permits a judge to require certain disclosures in camera, but grants to counsel the right to be present during such disclosures. Consequently, what the rule purports to protect, it denies by adopting an unrealistic procedure.

Mr. HRUSKA. I thank the Senator for his very scholarly discourse on these matters. His answers have, I believe, given us all a clearer understanding of the problems involved with present rulemaking procedures and has laid a firm foundation for this bill that we introduce today. It is my hope that early hearings can be scheduled on this important proposal.

Mr. MCCLELLAN. I hope notice will be taken of the introduction of this bill by those who are seeking to make these serious changes, perhaps in the expectation that Congress will be too busy to give it attention. I believe Congress should keep control and not completely surrender the lawmaking authority over rulemaking and court procedures to some committee of the Judicial Conference or someone else.

Mr. ERVIN. Mr. President, will the Senator yield for an observation without losing his right to the floor?

Mr. MCCLELLAN. I yield.

Mr. ERVIN. Mr. President, I think this legislative proposal is an exceedingly wise one.

When Congress gave to the court the power to make changes in the rules it was actuated by the purpose of acquiring the expert opinion of the court in respect to the changes and it thought it reserved its legislative power by the provision of the act giving it the power to veto changes within a period of 90 days. As a practical matter, however, experience has shown that the 90-day period is entirely too short, that it does not give Congress even an opportunity to familiarize itself with the scope and effect of the proposed changes in the rules, and for that reason amounts to a deprivation of the legislation power of Congress. I think the provision which gives more adequate power to Congress to review the proposed rules is absolutely essential if Congress is going to retain its legislative power in this area of our Nation. I think it is essential that speedy hearings be held on this proposal, that it be speedily reported to the Senate and passed not only by the Senate but also by the House of Representatives.

Some of the proposed changes are very drastic in nature and they merit congressional consideration which they cannot receive in an adequate manner under the law as it now exists.

I thank the Senator.

Mr. MCCLELLAN. I thank the distinguished Senator from North Carolina. Simply stated, Congress must not abdicate its responsibility with respect to the procedures to be followed in the trial of cases in the courts.

Mr. BYRD of West Virginia. Mr. President, will the Senator yield?

Mr. MCCLELLAN. I yield.

Mr. BYRD of West Virginia. Mr. President, will the Senator permit me to join as a cosponsor of the bill?

Mr. MCCLELLAN. Mr. President, I am delighted to add the name of the Senator from West Virginia (Mr. Byrd) as a cosponsor of this measure. I ask unanimous consent that his name may be added as a cosponsor.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. Mr. MCCLELLAN. Mr. President, I ask unanimous consent that the name of the distinguished Senator from Alabama (Mr. Allen) be added as a cosponsor to the bill I have just introduced.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. Mr. MCCLELLAN. I thank the presiding officer.

The ACTING PRESIDENT pro tempore. The bill will be received and appropriately referred.

Mr. HUNGATE. We are pleased to have with us our colleague from Wisconsin, Mr. Froehlich, this morning.

Congressman, we recognize you for the amenities. Glad to have you.

REMARKS OF HON. HAROLD V. FROEHLICH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN

Mr. FROEHLICH. Mr. Chairman and members of the Judiciary Committee, it is a pleasure to be here this morning to introduce a distinguished Wisconsin citizen, Bob Warren, the attorney general of the State of Wisconsin.

Bob served as county district attorney in Wisconsin, then as a State senator and for the past 4 years as Wisconsin's Attorney General. He is an outstanding attorney general. He is well schooled in the law, a good prosecutor, and the national president of the National Association of Attorneys General.

I would appreciate your earnest attention to his testimony this morning.

Thank you very much.

Mr. HUNGATE. Thank you.

General, you have a written statement which, without objection, will be made a part of the record, and you may proceed as you choose. (The statement referred to is at p. 338.)

TESTIMONY OF HON. ROBERT W. WARREN, ATTORNEY GENERAL, STATE OF WISCONSIN, AND PRESIDENT-ELECT, NATIONAL ASSOCIATION OF ATTORNEYS GENERAL

Mr. WARREN. Thank you, Mr. Chairman and members of the committee. I appreciate the introduction from Congressman Froehlich, who is my Congressman from my home district and a former speaker of the Wisconsin State Assembly.

I would correct one statement of his. I am the president-elect, not the current president, of the association.

Mr. HUNGATE. What is your home district?

Mr. WARREN. Green Bay, the home of the Packers.

Mr. HUNGATE. I've heard of them. We sent you Danny Devine. Mr. WARREN. As you have indicated, I have filed 35 copies of my written statement with the committee and I would like to have those placed in the record.

And I would also like to introduce to the committee Assistant Attorney General Robert Repasky, to my left. Mr. Repasky is one of my staff of some 60-odd attorneys in the Department of Justice and he does a good deal of representational work in the area of corrections and criminal appeals.

I would like to direct to the committee this morning some of my concerns as they relate specifically to chapter 5 of the proposed rules, that deal with the privilege in relationship to discovery devices in Federal courts.

Very frankly put, we have great concern about a couple of sections and a couple of proposed rules there, because we are of the belief that they will tend to diminish substantially the State's ability to protect the confidentiality of its records and files, and subject these to rather wide-ranging disclosures.

I realize that anybody that criticizes a product that is before a committee had better darn well have some constructive suggestions to offer,

and at the conclusion of my statement, I do make some suggestions that I would hope that the committee would give some consideration to.

The concept of governmental privilege has a solid basis, I think, in the long-established judicial feeling and understanding that the proper operation of government requires some kind of provisions for the confidentiality of records and information, to protect government from unnecessary intrusion, particularly in one of our big areas of concern, law enforcement investigation files.

As we indicated in our statement, we think there are perhaps three underlying purposes in connection with this concept: One, there is a desirability of encouraging a free flow of information; two, the encouraging of candid comments by subordinates; and three, protecting from interference activities of a governmental agency that would be jeopardized by premature disclosure.

The privilege that has been afforded to State governmental agencies and records is only a conditional privilege and Federal courts in the past have, consistent with the Federal Rules of Civil Procedure, gone through a sort of a weighing process, where they have weighed the suggested interest of the State government or the State agency that is asserting the privilege, against the suggested needs of the litigant.

And by and large it is our belief that this has resulted in flexible decisions, good decisions, decisions that have been adopted to protect the given needs of a lawsuit, and I think the whole process has worked rather well.

We are not here today saying that you cannot improve on the situation by a codification, as has been attempted here, and I think that rule 509, which is one of them that we would like to talk about, has to a very substantial degree, satisfied some legitimate interests of the litigant and the State government. But it does, we feel, have a couple of very major defects.

Now, chapter 5 would significantly alter the law in this area of privilege. In the first place, rule 501 specifically removes the type of governmental privilege that I have previously referred to and essentially limits the privilege for purposes of testimony and discovery to those that are specifically found within chapter 5. And there isn't any provision there that generally adopts the State-created privileges.

Apparently, I gather, this was done by the committee under the belief that they felt that the States were being put back in the condition in which they were before; and I believe that that is incorrect. I don't think that the States do have the same degree of protection that they had before and we feel, on examining the rules, that we come out on the opposite side of the fence.

Let's talk for a moment about rule 502. Now, rule 502, of course, is just a one-paragraph rule, and perhaps we ought to read it so that the committee gets what I am talking about.

A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made, has a pivilege to refuse to disclose and to prevent any other person from disclosing the return or report if the law requiring it to be made so provides.

The emphasis, I am supplying, of course, in those two phrases. Then it goes on to say:

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