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He was legal advisor to the Board of Economy of War and the Department of State of the United States in Washington, and in 1942 a special aide to the Ambassador of the United States in the Dominican Republic.

As a lawyer he has distinguished himself as constitutionalist and defender of the civil rights. He is a legal advisor of the Civil Rights Commission.

Dr. AMADEO. Mr. Chairman, Members of the U.S. Senate's Subcommittee on Separation of Powers, ladies and gentlemen, deeply honored I am by your invitation to express my views on Senate bill 2803 to establish the Department of Justice as an independent establishment of the United States, introduced December 12, 1973, by the Chairman, Hon. Sam J. Ervin, Jr.

Conscientious of my American citizenship and a firm believer in our system of government, especially in the separation of constitutional powers which the framers of our Constitution deemed essential, and which the bill under consideration seeks to strengthen, I cannot but subscribe to the philosophy and purpose of the bill so brilliantly expounded by Senator Ervin in his introductory remarks upon submission of the bill. In a statesmanlike manner, suffused with constitutional acumen, Hon. Senator Ervin's remarks should serve as an inspiration not only to us who are preoccupied with the constitutional evolution of our system, but to all who hold faith in the greatness of our Nation.

There is no denying that events of the past year have eroded in weaker souls the trust in some of our more vital institutions, the highest office of the land not excepted. Despair, cynicism, hopelessness and suspicion are palpably rising their ugly heads in the Nation.

But when the remedy is at hand-S. 2803—hope is renewed, and brighter is the future of our people and our Nation.

În creating a Department of Justice as an independent establishment of the United States, S. 2803 not only removes it from the tainted shadows of political influence by the executive branch, but preserves and enhances and guarantees the required independence in the administration of justice, one of the mainstays of our democracy.

Most appropriately, and consistent with Anglo-American philosophy of government, S. 2803 seeks to confine the role of the Attorney General to that of what he should have been, and should be--the legal adviser to the government, an officer whose primary duties are mainly ministerial, someone not involved in policymaking. With minor exceptions, the office of the Attorney General, as contemplated in S. 2803, is likened to its British counterpart.

It is admittedly hard to improve on S. 2803, but the opportunity arises to advance some proposals aimed at streamlining the functions of the Department of Justice and of the Attorney General, mindful, however, of the ultimate goals of the bill under consideration.


1. Procedure of Appointments of the Attorney General and subordinate officers :

To further preserve the independence essential to the proper administration of justice and to insulate the Department of Justice from the direct political control of the executive branch of government, I respectfully submit that the appointment of the Attorney General, the Deputy General and the Solicitor General by the President be, by and with the advice and consent of the House and the Senate, for a term of 12 years.

Consent of both Houses as well as the longer term of office would, in

my view, not only encourage a more careful selection by the President, but attract the best qualified aspirants to the respective offices. The salary of the Attorney General should of necessity be commensurate with that of a Justice of the U.S. Supreme Court.

2. Director of the Federal Bureau of Investigation:

Under S. 2803 the Director of the Federal Bureau of Investigation ceases to be a presidential appointee and is designated by the Attorney General.

I would propose that the term of office of the Director of the Federal Bureau of Investigation be increased to 8 years, with the proviso that the appointment be subject to advice and consent of the Senate.

3. U.S. attorneys:

S. 2803 authorizes the Attorney General to appoint U.S. attorneys. In my view, this gives the Attorney General too wide a latitude to avail himself of an eventual phalanx of pliable functionaries only too willing to do his bidding and command, defeating S. 2803's goal of proper administration of justice.

I would propose that a 12-year term be provided for U.S. attorneys and that their appointments be subject to the advice and consent of the Senate.

4. Grand jury proceedings: Within the scope of an independent Department of Justice, a long,

a hard look must be cast at the Federal grand jury proceedings if we are to insure, as is the goal of S. 2803, a proper administration of justice.

The institution of the grand jury is essential to a system of democratic justice. In its inception the grand jury was in England an instrument of the executive branch. It developed, however, as an instrument for the protection of the citizen against the State. Since 1923, the grand jury in the United States has been subjected to attack as an inefficient instrument of criminal justice, and many authorities have recommended its abolition, branding it as a rubber stamp of the prosecution.

Now, within the scope of S. 2803, the opportunity arises to give the grand jury system its democratic intended purpose and to strip it of its star chamber-like vestiges.

Without divesting it of its investigative powers, the grand jury system must be endowed with the elements of the preliminary hearing, giving the accused the constitutional right to confront the accusers with assistance of counsel, before an indictment issues. And consequently, the U.S. attorneys should be deprived of the power to file information absent a finding by the grand jury or a Federal committing magistrate of probable cause for prosecution.

5. Prison systems and parole:

In order to apply the principles of the rehabilitation of prisoners, the administration of the Federal penitentiary and jail systems should be removed from the Department of Justice and placed under the jurisdiction of the Department of Health, Education, and Welfare.

The underlying reason for this proposal is that imprisonment, is society's instrument for the reform rather than a punishment of the prisoner.

In England, the prison system is under the jurisdiction of the Home Office and it is the Home Secretary who advises the Crown on matters dealing with executive clemency. The British practice, in our view, is more logical and scientific because the Home Office, having nothing to do with prosecution, as our Department of Health, Education, and Welfare, is in a better position to achieve prisoner rehabilitation and eventual return to social usefulness.

For the same reasons parole matters should be removed from the Department of Justice and transferred to the Department of Health, Education, and Welfa

The sociological impact of this proposal can easily be recognized in the British experience.

On July 20, 1910, when Sir Winston Churchill was appointed Home Secretary he said the following on the treatment of criminals, in a speech delivered in the House of Commons:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of any country. A calm, dispassionate recognition of the rights of any accused, and even of the convicted criminal, against the state—a constant heart-searching by all charged with the duty of punishment-a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment; tireless efforts towards the discovery of curative and regenerative processes : unfailing faith that there is a treasure, if you can find it, in the heart of every man. These are symbols, which, in the treatment of crime and the criminal, mark and measure the stored up strength of a nation, and are sign, and proof of the living virtue within it.

6. The press and criminal investigations:

Without any attempt to infringe upon the first amendment's guarantee of a free press, some provision must be made in S. 2803's goal of proper administration of justice to insure a fair trial for the accused.

It should be made a crime for prosecutors and other executive divisions to provide to the press and other communications media information detrimental to the accused's right to a fair trial. News should be limited to the name of the accused, the crime charged, personal data, and bail fixed. Details of the investigation, like grand jury proceedings, should be kept secret until the trial. The law should prohibit the publication of the testimonies of witnesses and the criminal record of the accused, as well as any confession or admission of the person investigated.

The Attorney General, under S. 2803, should be held responsible for the preservation of the accused's right to a fair trial—that is, by preventing trial by news media.


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Senate bill 2978, introduced by the Honorable Alan Cranston, Senator from California, with the ultimate purpose of establishing the office of an Independent Permanent Prosecutor whose main function would be the investigation and prosecution of official misconduct and other offenses committed by high Government officials, offers the opportunity for some remarks I deem pertinent within the more comprehensive scope of Senate bill 2803 under consideration.

The former bill-S. 2978/addresses itself to the creation of a commission to study the establishment of an independent permanent mechanism to investigate and prosecute official misconduct and other offenses by high Government officials, whereas the latter-S. 2803— seeks to remove the U.S. Department of Justice from direct political control of the executive branch.

The ultimate purpose of both measures, in my view, is to insulate the investigative and prosecutorial processes from the control and influence of the executive branch, especially when officers of the same are suspect of involvement in misconduct.

Both bills share identical motivating circumstances and aim at the same goal. Thus, I respectfully submit that some of the intended provisions of S. 2978 be incorporated in Senate bill 2803 as follows: Within the proposed independent Department of Justice contemplated by S. 2803 I believe there is room for the independent mechanism for the investigation and prosecution of official misconduct and other offenses committed by high Government officials as intended in S. 2978.

I fully agree with Hon. Senator Cranston's findings as stated in S. 2978, subsections (1) through (5), but I see no reason why the bill's ultimate goal should not be incorporated into S. 2803, although, of course, there is ample room for exploring and scrutinizing through the commission it creates all of its aspects and projections.

With these thoughts in mind and conscious of S. 2978's ultimate goal—an Independent Permanent Prosecutor entrusted with the investigation and prosecution of official misconduct and other offenses in high Government circles—I would propose that this particular official with his particular functions be appointed by the U.S. Supreme Court, not the Chief Justice alone, from among three candidates submitted by the independent Attorney General.

To carry out his appointed, though limited, duties, he should command all the investigative and prosecutorial resources of the independent Department of Justice and of all other governmental departments and agencies as provided in S. 2803.

I believe that appointment of the Independent Permanent Prosecutor by the U.S. Supreme Coạrt removes him from political control by the executive.

An alternative to the nomination of the Independent Permanent Prosecutor by the Attorney General would be through a four-member commission representative of the legal profession, the public interest, and Government interest, three of whose members cannot be of the same political persuasion. Such a commission would be created by congressional action for the sole purpose of nominating the Inde

pendent Permanent Prosecutor, and should cease to exist once its duty is discharged.

The Independent Permanent Prosecutor's term of office should be 12 years and his salary equivalent to the Solicitor General's.

Thank you very much.

Senator Ervin. I infer that you believe that the grand jury should be restored to its original purpose, and left to stand as an instrument between the state and the accused so that the accused would not be placed on trial unless the evidence brought before the grand jury shows that he was probably guilty.

Dr. AMADEO. Yes, I think that the Federal grand jury has too many powers.

Senator Ervin. Do you not agree with me that during recent years the functions of the grand jury in the Federal system of criminal justice have been perverted and the grand jury has become an investigative instrument for the benefit of the prosecution?

Dr. AMADEO. Yes, well, as I said, the investigative powers should remain

Senator ERVIN. Yes.

Dr. AMADEO [continuing]. Because the grand jury represents the people. There is no question about that. But the suspect should have the right to present his views to the grand jury.

Senator ERVIN. Is it not true that the Federal prosecutors use the grand jury to collect testimony for their benefit?

Dr. AMADEO. Exactly. Especially when they make reports. I do not see how that is possible in this country. In England, there is a preliminary hearing. The grand jury practically has disappeared, and the accused has a right to counsel. He has the right to interrogate witnesses. And here, the Supreme Court has given too much power to the grand jury because the grand jury can file an indictment on the basis of hearsay evidence and then not let the accused see the testimony. So, it is really a star chamber proceeding.

Senator Ervin. And the counsels for the prosecution are permitted to be present during the presentation of testimony, and the defendant's counsel is excluded.

Dr. AMADEO. Yes. I mean even if they have a small grand jurylet us say 12 instead of 23 or 24—in other words, hold a preliminary hearing within the grand jury.

Senator Ervin. I am very much intrigued by your suggestion about the prisons and parole functions—transferring them to the Department of Health, Education, and Welfare.

Now I have always been taught that criminal punishment has three objectives. The first is to punish the offender. The second is to deter other people from offending. And the third is to rehabilitate or reform the offender and restore him to society.

Do you not agree that our prison systems are performing this third function very badly?

Dr. AMADEO. Yes. We do not know what we can do with prisons. They could be abolished and limit jails and prisons to people who are really a danger to society. The purpose is for rehabilitation. I do not believe in punishment, as such.

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