Senator FONG. Suppose it was a national of another country who had a son who was a Cuban citizen?

Mr. STEVENSON. There is no hard and fast rule to that, but presumably if the parent was dependent on the son the parent would be permitted to come. Perhaps the representative of Immigration and Naturalization can comment on that.

Mr. DE HAAN. What kind of situation currently exists regarding political activities in the refugee community?

Mr. SAYRE. The political activity within the refugee committee is nowhere near as active as it was several years ago. We have no complete list of Cuban refugee organizations in the United States. The Cuban refugee community is fragmented, with an estimated minimum of 400 refugee groups and a maximum of 800. They are politically active in the sense that they have an interest in Cuba, and going back to Cuba, and so on, but they are not organized in any fashion which would make such activity effective.

Mr. DE HAAN. Two or three years ago one of your predecessors made a statement before this subcommittee regarding the desirability of getting some cohesion among the refugee organizations. Hasn't this effort been made and encouraged?

Mr. SAYRE. We have always been interested in the Cuban refugees speaking more with one voice and cooperating better among themselves on their own interest, but they have tended to fragment more than they have tended to organize. They are far more fragmented now than several years ago.

Mr. DE HAAN. Does the refugee community have any measurable influence on the attitude of the United States toward Cuba or Latin America? Do any refugee organizations play a specific role-in consultations, for example?

Mr. SAYRE. As far as I am aware, they play no role at all. Our policy toward Cuba has been developed in consultation with governments-all the governments in the hemisphere-and Cuban refugees have no discernable influence.

Mr. DE HAAN. How do you handle an organization trying to express its views to the Department?

Mr. STEVENSON. We refer them to the Office of Coordinator of Cuban Affairs in Miami, Henry Taylor. His job there is to coordinate all matters related to Cuba that come up in the Miami area. He acts in a liaison function with regard to other Government agencies in Miami that have duties with regard to Cubans and Cuba.

For example, the Immigration and Naturalization Service, Health, Education, and Welfare, Public Health-all are involved in the refugee movement. The officer in charge in Miami tries to keep things moving along smoothly. If problems arise he tries to bring different officers together to solve the problems and also keeps in touch with the Cubans in the Miami area and works with the local officials.

At the time the U.S. Departments involved are Health, Education, and Welfare; Justice, and State.

Mr. DE HAAN. You would include the Coast Guard and the FBI, for example?

Mr. STEVENSON. That would be under Justice.

Mr. DE HAAN. Would you supply a list of all Federal agencies and departments active in the Cuban refugee program, and a brief statement on their function?

Mr. STEVENSON. Certainly (see appendix, exhibit 3).

Mr. DE HAAN. How does Castro replace the manpower, the elements of the society which are lost to the exodus-doctors, university professors, engineers, and so forth?

Mr. SAYRE. As a practical matter, the only way he has to replace them is to train the younger people to take over the jobs. There is no inward immigration into Cuba to fill the jobs. This is the only way he can fill the jobs.

Mr. DE HAAN. Are no foreign nationals brought in for the purpose of filling these jobs?

Mr. SAYRE. In a sense, the foreign nationals have been technical advisers from the Soviet Union, Czechoslovakia, Poland, East Germany, but this is the only way he has been able to get outside advisers. Mr. DE HAAN. But the jobs that are left by refugees are filled? Mr. SAYRE. Yes, in the ways I have mentioned.

Mr. DE HAAN. Is there air transportation from Cuba in addition to the Iberia flight and the refugee airlift?

Mr. SAYRE. Yes, KLM has a flight once a month.

Mr. DE HAAN. Is there pressure for additional flights? I ask that question because earlier testimony before the committee suggested that a resumption of flights between Cuba and Miami would make it difficult for us to prevent the flying in of other free world airlines which may provide transport in and out of Cuba for subversive agents and others inimical to the security of the hemisphere.

Mr. STEVENSON. The U.S. Government charters flights, and it is a completely controlled action aimed at moving refugees.

Mr. DE HAAN. Is there any legal or constitutional basis barring the OAS from becoming involved in the refugee problem?

Mr. SAYRE. The OAS has no organizational arrangements. The OAS system is very flexible, and I wouldn't really see any problem in the OAS doing it, if it wanted to do it.

Chairman KENNEDY. Has an effort been made to include the OAS? Mr. SAYRE. We have talked to the Council about the refugee problem, but as for proposing a refugee commission under the OAS, we have not done that.

Chairman KENNEDY. You talked to the Council?

Mr. SAYRE. We discussed with the Council our program. We proposed to undertake this program and appealed to the member governments through their representatives on the Council to accept refugees in their own countries.

Chairman KENNEDY. What did they say?

Mr. SAYRE. The Council itself took no action on our statement. The response has been on a bilateral basis from the countries Mr. Stevenson mentioned.

Chairman KENNEDY. You stated you had had a conversation with the Council of the OAS. You communicated this information to the OAS expecting some kind of response?

Mr. SAYRE. We have not had any response.

Chairman KENNEDY. How long ago did you have the conversation? Mr. STEVENSON. Just prior to the time of the Memorandum of Understanding, on October 18. The last time it was presented to OAS. Since that time, bilaterally, we have talked to a number of govern

ments.

Chairman KENNEDY. I know, but that is different from utilizing the structure of the OAS. You talked to them in October, but have you had any followup since then?

Mr. SAYRE. No.

Chairman KENNEDY. And they haven't submitted an answer?

Mr. SAYRE. No, sir; our representative discussed it with the Council of the OAS, and the OAS members represented on the Council reported this to their governments. As a result we had reactions from three governments and a successful operation with respect to the Government of Costa Rica. These governments have chosen to handle this matter on a bilateral basis.

Chairman KENNEDY. What is your position? Do you care whether the OAS is utilized? I am not impressed by any success of the effort. Mr. SAYRE. It would involve the creation of additional mechanics within the Organization of American States to handle this problem. There is nothing in the charter that would cover this.

Chairman KENNEDY. There is nothing in the charter that would suggest that the OAS might be competent to develop this kind of humanitarian program?

Mr. SAYRE. There is nothing in the charter, to my knowledge, that would. We have regarded the Cuban problem as a multilateral program.

Chairman KENNEDY. You were really just informing the OAS of the situation.

Mr. SAYRE. We weren't making a formal request to the OAS.

Chairman KENNEDY. You were not requesting that the OAS take some kind of action?

Mr. SAYRE. Yes, in a sense, but we expected it to be handled on a bilateral, not a multilateral basis. We have had conversations directly with the governments.

Senator FONG. Mr. Sayre, you said, in your prepared statement there, that the refugees who have been coming in were relatives of Cubans who reside in this country.

Mr. SAYRE. Yes; all relatives.

Senator FONG. Now, the program now goes to the other people with the other priorities.

Mr. SAYRE. We have not exhausted the refugees who are members of families in the United States. We have come nowhere near exhausting that list.

Senator FONG. As I understand it, from your prepared statement you said there are several hundred thousand Cubans who desire to come to the United States?

Mr. SAYRE. That is correct.

Senator FONG. Would you say what vicinity would that be-two or three hundred thousand?

Mr. SAYRE. At least that many. As already stated, there is a list. of at least 125,000 in Cuba and relatives in the United States have been applying for relatives in Cuba, around 900,000.

Senator FONG. Already approximately 275,000 Cubans have come in?

Mr. SAYRE. Yes.

Senator FONG. And you now have approximately 125,000 more?

Three times in three years the Court had made changes whose repercussions would be felt across the whole spectrum of criminal justice. These events formed the backdrop against which the new Pennsylvania Rules of Criminal Procedure emerged. It was a backdrop of expanding federalism in which the broad plan had been set for redevelopment of a considerable body of procedural law. But while the broad plan was conceived in federalistic architecture, to some extent the laying of stone upon stone remained for the states. The new Pennsylvania Rules are a part of this new structure.

The mounting concern over the rights and the welfare of the accused in a criminal proceeding is patently evident in at least three features of the Rules: (1) the preliminary arraignment, (2) provision for the use of a summons rather than a warrant of arrest in many offenses, and (3) various provisions built around the new stress on the right to counsel. It is axiomatic that there is seldom a benefit without a burden and, as can be readily seen, the benefits provided by some of these features are not free from concomitant problems and difficulties.

THE PRELIMINARY ARRAIGNMENT

One of the vital parts in this new machinery of justice is the preliminary arraignment, a stage in the proceedings heretofore unknown in the Pennsylvania system. The safeguards it provides are significant, and unlike some other steps in a criminal prosecution, there is no authority for waiver of this stage. It is the threshold on which the defendant stands after arrest in a court case and at which, before any further step is taken, it is mandatory that he be advised of certain matters and rights and be permitted to take certain steps.

23

Many ills of the past will be avoided by the application of Rule 116. The defendant must be fully apprised of the nature of the charge since the first requirement of this Rule is that the complaint be read and explained to him. In this connection there is a salutary injunction that he cannot be questioned by the issuing authority " about the offense charged against him at any time during the preliminary arraignment. This will avoid the making of improperly incriminating answers or statements in situations where a layman cannot be expected to understand the legal significance of his acts." There are "advice" aspects of the Rule whose merits are self-evident: the defendant must be advised of his right to counsel, including the right to be assigned counsel, his right to a prliminary hearing and his right to bail. Furthermore, he cannot be committed to jail until he has been given "immediate and reasonable" opportunity to post bail, secure counsel, or notify others of his arrest. Short commitments to jail until bail arrangements were made were not unknown in the past. If a defendant, given a reasonable opportunity, can secure bail, fairness to him as well as a regard for the administrative problems of the county jail dictates that this opportunity be given him at the magistrate's office rather than at the warden's desk.

But while these and other benefits are perceived in Rule 116, its requirement that the defendant shall be preliminarily arraigned “without unnecessary delay” after his arrest can be a destructive force of high potency to law enforcement efforts. It has been said that the investigation of every crime is a search for truth and the pathway is always an arduous one. The constriction of the two most effective techniques of any investigation-interrogation and the search for evidence, the very vitals of every investigation-in the Mapp and Escobedo cases, have made the pathway infinitely more difficult to tread. Rule 116 can amount to another serious obstacle upon that path with its potential for futrher restricting the right of interrogation.

In February 1964, a lone individual, caught in the act of committing a burglary in Allentown, Pennsylvania, gave police a confession which led to the solution of 530 unsolved burglaries, most of which had occurred over a two-year period from 1960 to 1962.25 His confession implicated five other men, and ultimately

22 Rule 116.

23 Rule 116(b).

24 E.g., the writer once tried, as defense counsel, a serious assault case in which the defendant, at the magistrate's office when the warrant was being served, was asked by the magistrate: "Did you do this?" The defendant replied, "Yes." He had, in fact, struck the alleged victim and inflicted a serious injury. However, it was done in self-defense. the trial in Court, his reply to the magistrate's question was used in evidence against him as an incriminating admission.

The Allentown Morning Call, Feb. 17, 1964, p. 5, col. 1.

At

a minimum number of refugees have been taken-only 833 since June 1961. Is it possible for some of these countries to take in a few thousand?

Mr. SAYRE. As I have already indicated, we have talked to these. countries, except for the European countries, which Senator Kennedy mentioned. We talked to the countries about accepting Cuban refugees. We have had, as you know, some limited success, but we have not had any significant response from other countries willing to take refugees.

For example, it is true that a lot of Cuban refugees go to Spain, but the Cuban refugees regard Spain as a way station on the way to the United States. Even when they have gone off to other countries they still want to end up here in the United States, the closest country to Cuba and where their friends are. It is a human problem as to where they want to go, and we have tried to deal with it on that basis.

Senator FONG. Shouldn't the State Department be talking to the Organization of American States and more or less-we can't insist, but we can make it plain that we think

Mr. SAYRE. I think you are right, and, as I suggested to Senator Kennedy, we will be glad to consider whether we can do anything to European countries and again talk to the Latin Americans, but our success has not been significant.

Senator FONG. I would advise that the State Department delve into this problem a little more and see what can be done. I think this is a problem, not only for the United States, but for all.

Mr. SAYRE. I certainly agree with that.

Chairman KENNEDY. One final observation. The memorandum was one of humanitarian concern, and if this situation were recognized by the OAS it would certainly be extremely important. If there isn't a strict definition of authority in the charter of the OAS, perhaps an ad hoc committee could be appointed by the OAS, and concern itself with this problem of Cuban refugees.

It is painfully evident this morning that too little has been done in this area.

I want to thank you gentlemen very much for being here this morning. Your testimony has been helpful. We are deeply appreciative. You are the first witnesses, so to some extent we are still feeling our

way.

Our next witness is Mr. Mario T. Noto, Associate Commissioner, Immigration and Naturalization Service, U.S. Department of Justice. STATEMENT OF MARIO T. NOTO, ASSOCIATE COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, DEPARTMENT OF JUSTICE; ACCOMPANIED BY RICHARD H. FFRENCH

Mr. MARIO NOTO. Mr. Chairman and members of the Subcommittee on Refugees and Escapees, I appreciate the opportunity of appearing before the subcommittee to discuss those aspects of the Cuban refugee program which are within the responsibility of the Immigration and Naturalization Service of the Department of Justice.

As you know, some of the operations of this humanitarian program are under the jurisdictions of two other Departments, that of State