At a time in our history when mounting fear and often outrage at increasing criminal activity is the prevailing mood, it is all-too-easy to strike out blindly in "shot-gun" fashion at the threat posed by criminal activity and all-too-tempting to try to meet that threat by circumventing constitutional guarantees. When those suggested methods violate the letter of the Constitution, their advocates point to the "safeguards" in the bill and argue that the letter of the law was not meant for this special situation. Where those methods do not violate the letter of the law but clearly run counter to its spirit, proponents often ignore constitutional objections altogether and justify their actions in terms of the threat. Because the ACLU believes that the legislation under consideration here today employs just such approaches, we cannot support it.

The entire justification for these proposals has been couched in terms of waging war on organized crime, citing the continued growth and tenacity of organized criminal activity throughout the United States despite the more or less vigorous efforts of law enforcement officials. In introducing S. 30, Senator McClellan quoted the President's Crime Commission as follows:

Law enforcement's way of fighting organized crime has been primitive compared to organized crime's way of operating. Law enforcement must use methods at least as efficient as organized crime's. The public and law enforcement must make a full-scale commitment to destroy the power of organized crime groups. We agree with the President's Commission that "[t]he public and law enforcement must make a full scale commitment to destroy the power of organized crime groups." Where we take issue with the Commission, however, is that "[law] enforcement must use methods at least as efficient as organized crime's." Unlike organized crime law enforcement may not be able to resort to the most efficient or expedient method. Our constitutional system of government wisely limits the range of methods available to us, reflecting our historical commitment to liberty and justice rather than to efficiency and expediency. To the extent that this puts us at a disadvantage in dealing with the criminal organization, it is a price we must pay, for ultimately it is this which distinguishes, the lawful from the lawless society. That does not mean, however, that we are powerless to deal with the problem.

Just last year Congress passed the Omnibus Crime Control Act. We supported Title I of that measure which provides grants to state and local law enforcement agencies to improve their programs, as a proper and useful method of increasing our ability to deal effectively with the problem of crime. We support similar proposals put forth recently by President Nixon to increase the federal budget for dealing with organized crime, to establish strike forces and special antiracketeering teams trained and assigned to focus on organized crime. In contrast to this, however, the ACLU last year vigorously opposed Title III of the Crime Control Act which authorized federal and state wiretapping, as an unconstitutional method of dealing with the problem. As you know, Title III was included in the Act despite the opposition of the then Attorney General, Ramsey Clark, and numerous civil rights and civil liberties groups, including the ACLU. At that time it was argued by proponents of Title III that authority to engage in wiretapping and electronic eavesdropping was "the single most important weapon" which law enforcement officials needed in order to mount a successful attack on organized crime. Yet, today, when the authority gained in that legislation has not even been fully tried, we are told that law enforcement officials must have additional new weapons.

Circumvention of contitutional protections in one instance appears to whet the appetite to push for more. Today that supposedly "necessary" provision is on the books and Attorney General Mitchell has announced his intention to utilize it fully. In addition the Justice Department has begun to organize and fully implement the strike-force concept as a promising new and more effective way of dealing with organized crime. Under the circumstance the ACLU is not persuaded that there is a "crying" need for further legislation of this kind.

S. 30

The professed aim of the primary measure under consideration by this Subcommittee, S. 30, is to strengthen and vitalize the "various legal tools which are available to the government in the evidence-gathered process." Senator McClellan pointed out in introducing S. 30 that it was addressed to the problems of corruption of government officials by organized crime, and securing testimony to

convict participants in organized crime from those who by reason of fear or indifference will not now provide it, both of which were said to be the most important remaining obstacles to dealing with the problem. In addition it provides new penalties to further discourage participation in such criminal activity. All of its provisions are designed to destroy existing, and discourage further, organized criminal activity. Yet, one of our most serious difficulties with the legislation is that while justified by and aimed only at organized crime, there is nothing contained in it which would necessarily limit it to such. As a result its consequences are potentially much more far-reaching than its supporters suggest, and the possibilities for abuse are manifold. Much of any justification which there is for these measures disappears completely when applied in a context other than that of "organized crime" as commonly defined, and experience tells us that we cannot rely alone on good intentions to prevent use of limitedpurpose legislation in other contexts.

For example, derogation of the privilege against self-incrimination by providing for compelled testimony from a witness even if constitutionally permissible has serious implications for the quality of American life. In weighing the evils which would result against the benefits to be derived, one might arrive at entirely different conclusions in one context than in another. One might decide it is worth it in the area of organized crime where, because of the terroristic methods of the criminal organization, the reluctance of witnesses to give evidence makes prosecution difficult. The same difficulties, however, are not encountered with respect to what are commonly referred to as street crimes so that the balance shifts considerably. It is essentially a different problem. Yet proposed Title II of S. 30 would cover both.

Similarly, special offender sentencing which some may support as justified by the special kind of violent "dangerousness" of the leader of an organized crime group could conceivably apply to an offender of another kind where this justification does not exist. For example, it is not impossible in these times to conceive that a publisher of an underground newspaper convicted on obscenity charges might be viewed as "dangerous" by a sentencing judge or a student militant leader convicted of violation of the recently enacted interstate riot act who received pay and travel expenses for organizing student groups would be considered a "professional offender"-one who knowingly devotes himself to criminal activity as a major source of livelihood—and subject to a thirty year sentence as a result. Likewise the definition of "organized crime offender" in Title VIII of the bill well might fit many anti-war dissenters or civil rights militants.

As I have indicated in general terms the ACLU does not support S. 30. While it does contain a few provisions which are in themselves unobjectionable, taken as a whole, its many defects both constitutional and practical far outweigh any benefit to be derived from those few provisions alone. Our specific objections are set forth in the Title by Title examination of the bill which follows.

Title I-Grand Jury

Title I seeks in a variety of ways to increase the autonomy and expand the powers of federal grand juries. We believe that there is serious doubt as to whether these provisions will actually strengthen our ability to attack organized crime. In addition, we specifically object to empowering grand juries to write reports and presentments.

The unstated assumption behind Sections 102 and 103 of Title I is that a group of citizens representing a cross-section of the community and untrained in the law is often better able to exercise discretion as to the length and scope of an investigation of organized crime than are federal district judges, prosecutors, and investigators. We find this assumption doubtful at best.

In light of the fact that organized crime flourishes by providing services and commodities nominally illegal but for which there is a continuous public demand. there is little reason to believe that members of a grand jury are any more immune from apathy or the possibility of corruption than are appointed or elected federal officials. If the problem of judicial incompetence or malfeasance in the federal courts is of sufficient weight or sufficient probability to eliminate the traditional oversight by the courts of grand jury proceedings, rather than viceversa, then it would seem that the better way to deal with this is by reform or revision of the appointment and removal processes. Finally, codification of the already recognized principle that grand juries are free to hear and consider evi

dence from any and every source in the language suggested by amended Section 3324 (c) is unnecessary. It will result only in making probable, by the literal application of the language, that the time and resources of a grand jury will be diverted and distracted by any and every "man on the street" who has a gripe to register.

While the ACLU merely doubts the wisdom and necessity for Sections 102 and 103 of Title I, we strongly oppose Section 104. That section would empower federal grand juries to issue reports and presentments based on information obtained during the course of an investigation into an offense against the criminal laws of the United States brought to the attention of the grand jury by the court or by any person. It is noteworthy that this power is not limited to organized crime investigations. Thus, justification in terms of the need for special weapons to meet the "special challenge" of organized crime will simply not stand up.

Our opposition to any kind of grand jury reports, short of indictments, rests on the fundamental unfairness and inherent abusiveness of such reports. The grand jury, although composed of individual lay citizens chosen to serve for short periods of time, is an official body, traditionally considered an arm of the court. As such, its reports are bound to be given greater credence than would the allegations of a private group or individual. An individual, group or organization made the subject of such a report has no comparable means of disputing any allegations or defending against such criticism. While the grand jury can subpoena witnesses and evidence and compel testimony, the subject of its reports cannot. Moreover, the evidence on which the grand jury bases its findings remains secret so that the public cannot evaluate its findings. In People v. McCabe, 148 Misc. 330, a New York District Court clearly states the objections to grand jury reports and presentments.

A presentment is a foul blow. It wins the importance of a judicial document; yet it lacks the principal attributes the right to answer and appeal. It accuses, but furnishes no forum for a denial. No one knows upon what evidence the finding was based. An indictment may be challenged even defeated. A presentment is immune. It is like the "hit and run" motorist. Before application can be made to suppress it, it is the subject of public gossip. The damage is done. The injury it may unjustly inflict may never be healed.

The distinction between accusation by indictment and accusation by presentment, though great indeed in a legal sense, is often lost on the public-at-large. When an indictment is filed, the accused has right to a public trial, to a jury, to counsel, to confront the witnesses against him, and to submit his own witnesses. Where a presentment is filed instead, he can only issue a denial for the newspapers and hope that the readers will give it weight in their minds equal to that given to a judicial document rendered by a respected body of citizens-a chimeral hope at best. The subject of a presentment or report cannot be said to have been treated with that fundamental fairness which is required by due process of law. It is clear that S. 30 was drafted with an awareness of these objections and that attempts were made to diminish the possibility of abuse and unfairness resulting from empowering grand juries to file reports. A close examination of Section 104 of the bill reveals however that the safeguards written into the bill are far from adequate. All of the supposed safeguards which have been included are absolutely necessary, but even taken all together they are still insufficient. The bill authorizes three kinds of reports.

First, the grand jury could make a report "concerning non-criminal misconduct, malfeasance, or neglect in office by a public officer or employee as the basis for a recommendation of removal or disciplinary action."

Second, it could state that "after inevstigation of a public officer or employee it finds no misconduct, nonfeasance, or neglect in office by him, provided that such public officer or employee has requested the submission of such report."

Finally, it could propose "recommendations for legislative, executive or administrative action in the public interest based upon stated findings."

All three kinds of reports are required to be the result of an authorized investigation pursuant to Section 3324 of Title 18 U.S.C. as amended by Section 103 of the bill. This purports to guard against fishing expeditions and to prevent "general" reports by grand juries. However, given the broad mandate of Section 3324, which authorizes investigations of any alleged offense against the laws of the United States, and its requirement that evidence from any source be considered, the value of this limitation is negligible.

In addition, these reports can be filed and made public by the court only if the court is convinced they are supported by a preponderance of the evidence (Sec

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tion 3330(b)). This restriction is designed to assure protection against totally unfounded accusations or criticisms by a grand jury. However, it would seem evident that a standard such as "preponderance of the evidence” is virtually meaningless in the vast majority of grand jury proceedings, where the only evidence heard is that of the prosecution and where the accuser may compel testimony and produce witnesses and documents but the accsued may not.

Specific provisions are included as safeguards with respect to reports concerning non-criminal misconduct, non-feasance or neglect in office by a public official or employee. Each person named must have had an opportunity to testify before the grand jury. While this affords the individual involved some measure of protection it is significant that he is only able to offer his word against that of unknown witnesses with no opportunity for cross-examination or confrontation or even for presentation of other witnesses in his own behalf, a right long recognized as essential to the fact finding process on which our adversary system is based. The report cannot be filed as a public document until 31 days after the named individual has been served with a copy. The individual may appeal the court's decision to file the report. If he avails himself of that right the report is not made public until the appeal is dismissed or the court's decision affirmed. While this right of appeal is useful in contesting any procedural irregularity in the filing of the report its usefulness in providing a review of the substantive criteria of "preponderance of the evidence" is still as meaningless as the criteria itself. In addition, as an alternative to an appeal the individual may file an answer to the report within 20 days after he is served and that answer becomes an appendix to the report. The value of this safeguard, too, is dubious considering that the grand jury may have had up to 36 months to gather evidence and was assisted immeasurably in that task by its subpoena power and ability to compel testimony while the accused individual has only a few days, and must rely solely on his own resources and ability to find willing witnesses to secure any evidence to support his answer. There is not even any provision for him to seek an extension of time.

Perhaps, the strongest objection to allowing reports which may name and identify a public officer or employee and subject him to criticism and accusation when he is not guilty of any action which would support a criminal indictment is in the potential breadth of this power. The bill defines the term "public officer or employee" as "any officer or employee of the United States, or any State or any public subdivision, or any department, agency or instrumentality thereof." Presumably, then, it covers not only the district attorney or policeman who may have taken a bribe, for example, but also the high school janitor who fails to sweep the halls properly, or a zoo attendant who neglects his assigned duties. Surely the need to "break the back" of organized crime does not require this! Indeed, the entire distinction which S. 30 makes between public officials and employees and other persons is untenable. The consequences of charging a public official with misconduct in office are every bit as grave as are those of calumnizing private citizens. However great the public interest in "clan" government it does not justify subjecting individuals to criticism by an official governmental body against which he cannot defend himself.

The other two kinds of reports authorized by Section 104 of S. 30-those stating the grand jury has found no misconduct, nonfeasance or neglect in office by an official or employee, when requested by that person, and those proposing recommendations for legislative, executive or administrative action-are subject to the proviso that they may only be filed as a public document if not critical of an identified or identifiable person. No definition of an "identified or identifiable person is given. If this protection has any meaning at all it would have to include organizations, groups, corporations, businesses and so forth as they are equally susceptible of harm by grand jury criticism. And, as mentioned above, this seemingly broad protection for individuals against the dangers we have described is substantially diminished by the broad exemption with respect to public officials and employees.

An important objection to empowering grand juries to issue the third kind of reports, those proposing recommendations for legislative, executive, or administrative action is found in the doctrine of separation of powers which is basic to our constitutional scheme. Traditionally, the federal grand jury is an arm of the federal courts. When it exercises its power it is essentially exercising a judicial power. This proposal would add legislative and executive type powers to those now exercised by grand juries. The implications of this may be far

reaching. As the Supreme Court stated clearly in United Public Workers of America v. Mitchell, 330 U.S. 75;

"When the court acts continually within these constitutionally opposed boundaries of their power, their ability to perform their function as a balance for the people's protection against abusive power by other branches of government remains unimpared *** By these mutual checks and balances by and between the branches of government, democracy undertakes to preserve the liberties of the people from excessive concentrations of authority."

No one seriously suggests that the courts themselves be given a general power to conduct investigations into official conduct, recommend legislation and act as general advisor to the legislative and executive branches. It would seem to follow logically that the same principles mitigate against giving this power to an arm of the court made up of untrained laymen who are apt to be less sensitive to constitutional protections of individuals, constitutional doctrines and the nuances thereof. As the United States District Court for the Southern District of New York stated in Application of United Electrical, Radio, and Machine Workers, et al, 111 F. Supp., April 13, 1953.

"The effectivenesses of laws and the quality of their enforcement by administrative agencies are matters for the chief executive and the Congress. Where existing laws seem to be inadequate or to require strengthening the wisdom of remedial legislation rests with the legislature and involves political judgment. Here the courts may not intrude."

It must be remembered that grand juries like members of the Judiciary are not accountable to an electorate and as such are ill-equipped to render political decisions. Their secret proceedings can hardly be properly evaluated by the public.

One can hardly ignore the obvious similarity between a grand jury report recommending legislative, administrative or executive action and Congressional investigations. In both instances the investigative body is endowed with subpoena and contempt powers. Whereas Congressional investigators are answerable to an electorate for abuse of these powers-grand jurors are not. Moreover, the Supreme Court has made clear that there are constitutional limits beyond which a Congressional investigation may not go. See, Watkins v. United States, 354 U.S. 178 (1957); Barenblatt v. United States, 360 U.S. 109 (1959); Wilkerson v. United States, 365 U.S. 399 (1961); Deutsch v. United States, 367 U.S. 456 (1961). If Congress may not merely "expose for the sake of exposure," Watkins. at p. 200, it is doubtful that a grand jury, whose members are unaccountable for their actions and whose proceedings in the interest of protecting individual rights are required by law to be secret, may do so. And since the grand jury is devoid of power to act an any of its recommendations what other justification is there for allowing reports than mere exposure.

Historically the grand jury has had two roles to play in our system of justice. It was to act as accuser to root out crime on behalf of the state. Of equal importance, however, was its role of protecting the individual from unfounded accusation. The proposed legislation entirely subordinates the latter role to the interest of the former one. The ACLU, in its concern for the protection of individual liberties, is opposed to its enactment. A statement of William T. Gossett, former President of the ABA quoted by Marquis Childs in his pamphlet The Erosion of Individual Liberties, is particularly appropos.

"When we are frustrated by the feeling that certain people-*** gangsters or labor racketeers, for example,-have flouted society with inpunity, it is tempting to pillory them through prolonged public exposure ***. But, '[continued Mr. Gossett]' to try by such means to destroy the very safeguards that protect us against tyranny and arbitrary power."

Title II-Immunity

The purpose of Title II of this bill is to provide grants of immunity from prosecution to compel persons to testify or produce evidence in any case or proceeding before a grand jury or court of the United States involving a violation of any law of the United States or any consipracy to violate such a law. Although, like the rest of S. 30, this Title is rationalized in terms of its necessity for securing organized crime convictions, it is not limited by its terms to such

cases.

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Under our reading of this bill, if a person claims his privilege against selfincrimination, he may, with the approval of the Attorney General or Assistant Attorney General be compelled to testify anyway: