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Just as there was a clear need for a Special Prosecutor to handle Watergate and the related cases, there is also a need for a special counsel to defend the interests of the United States in this situation. . .

If the courts are to decide the question of ownership or custody, the United States is entitled to representation by counsel who has not committed himself publicly, as the Attorney General has already done here, to the position of his adversary--Richard Nixon. . .

Rep. Holtzman's logic was unassailable.

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Yet her proposal for a Special

I quite rightfully

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Prosecutor was deleted by sponsors of the Act because it could have become a focal point of partisan opposition to the legislation. Many Republicans in Congress would have viewed the proposal as a slap at the Ford administration and its ability to administer justice impartially. If the legislation had incorporated the Holtzman proposal, its swift passage through Congress would have been jeopardized. This experience suggests that when a special prosecutor is most needed, the political atmosphere may not permit its appointment. For this reason, it would be preferable to have a standing institutional arrangement by which conflicts of interest could be avoided than to rely on Congress' ability to resolve them in the heat of the moment when the conflict becomes apparent.

Congress and the American people have been very lucky during this litigation. Because of the important public issues and the renown of the parties involved, a battery of formidable attorneys have become involved in the case, arguing on behalf of the constitutionality of the Act. For example, the Reporters Committee et. al. has been represented by the noted Washington law firm, Arnold and Porter. Attorneys in Arnold and Porter have committed hundreds of hours to the case, receiving no fee in the case beyond reimbursement for costs incurred. John Shattuck and Melvin Wulf of the ACLU, law professor Friedman, and private attorneys William Dobrovir and Andra Oakes have also

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contributed their talents to this case. Not every case, however, will attract this array of legal talent, even when the constitutionality of a Federal

statute is at issue. In another case, less in the public spotlight, a Justice Department conflict of interest could seriously affect the outcome in a way injurious to the public interest.

WATERGATE REORGANIZATION AND REFORM

ACT OF 1975

THURSDAY, MARCH 11, 1976

U.S. SENATE,

COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C.

The committee met, pursuant to notice, at 10 a.m., in room 3302, Dirksen Senate Office Building, Hon. Abraham Ribicoff (chairman) presiding.

Present: Senators Ribicoff, Percy, Javits, and Weicker.

Staff members present: Richard A. Wegman, chief counsel and staff director; David R. Schaefer, counsel; Marilyn A. Harris, chief clerk; and Elizabeth A. Preast, assistant chief clerk.

Chairman RIBICOFF. The committee will please come to order.

Today the Committee on Government Operations concludes its extensive hearings on S. 495, The Watergate Reorganization and Reform Act of 1975. This bill is based upon the recommendations of the Senate Select Committee on Presidential Campaign Activities, also known as the Watergate committee.

Over the last 14 months this committee has heard oral testimony from 20 witnesses during 7 days of hearings, as well as receiving written comments from numerous government agencies and over 25 legal scholars. The important issues raised in this legislation have been thoroughly explored. I believe that after today's hearing it is appropriate for this committee to redraft and revise the Watergate Reform Act based on the extensive advice we have received.

At the conclusion of this hearing I would hope that the committee staff, in cooperation with the staffs of other interested members, would put together a committee print of the Watergate Reform Act incorporating the suggestions for improvements we have received. In this way, the committee will have a well-drafted piece of legislation. which the committee can consider at a markup later this month or early next month.

We are very pleased to have with us today William B. Spann, Jr., the president-elect nominee of the American Bar Association and chairman of the ABA Special Committee to study Federal Law Enforcement Agencies. Accompanying Mr. Spann is Prof. Herbert S. Miller of Georgetown University Law Center and reporter/consultant of the ABA Special Committee.

The ABA Special Committee, chaired by Mr. Spann, has studied this problem for over 2 years and has come up with some useful and creative recommendations. I understand that these recommendations were approved by the House of Delegates of the American Bar Association last month.

Mr. Spann, we are very pleased to have you with us today. You may proceed as you wish.

TESTIMONY OF WILLIAM B. SPANN, JR., PRESIDENT-ELECT NOMINEE OF THE AMERICAN BAR ASSOCIATION AND THE CHAIRMAN OF THE AMERICAN BAR ASSOCIATION SPECIAL COMMITTEE TO STUDY FEDERAL LAW ENFORCEMENT AGENCIES; AND PROF. HERBERT MILLER, GEORGETOWN UNIVERSITY LAW CENTER, REPORTER/CONSULTANT FOR THE ABA SPECIAL COMMITTEE

Mr. SPANN. Thank you, Mr. Chairman. The prepared testimony is before you and the committee.

Chairman RIBICOFF. Your entire statement will be made a part of the record.

Mr. SPANN. I am William B. Spann, Jr., a practicing attorney from Atlanta, Ga., and the president-elect nominee of the American Bar Association. It is a privilege to appear before you today on behalf of the association to share with you our views on the important subject your committee is addressing the prevention of partisan and other improper influences from intruding upon and disrupting the functioning of agencies and departments of the Federal Government.

The association, as the principal representative of and spokesman for the legal profession in this country, is particularly concerned about such improper influences being exerted upon Federal law enforcement agencies and activities, and my comments today will be addressed primarily to those matters. The association's interest in the subject of the proper administration of justice dates back, of course, to the association's inception in 1878.

The views expressed today, however, were formulated over the last 221⁄2 years by the Special Committee to Study Federal Law Enforcement Agencies, which was created in 1973 to examine the functioning of these agencies and to formulate recommendations to insure they would not be improperly politicized or misused. While the creation of the special committee was occasioned by the series of events generically called Watergate, the association and the special committee were fully aware that the problems being addressed were not peculiar to a particular administration but have been of concern for many years. I have been privileged to serve as chairman of the special committee since its inception. With the assistance of its consultant, Prof. Herbert S. Miller of the Georgetown University Law Center, the special committee produced a preliminary report of its findings in July 1975 and distributed it for comment to a wide range of organizations and individuals interested in this topic. We were particularly honored that large segments of the report were reprinted in the record of hearings published by your committee last year on S. 495.

Extensive comments were received from both within and without the ABA on the preliminary report. The special committee made substantial modifications of its recommendations in response to this input and published its final report, "Preventing Improper Influence on Federal Law Enforcement Agencies," in January of this year.' The 20 specific recommendations for reform contained in the report were considered by the Association's House of Delegates at its midyear

1 See appendix, p. 259.

meeting last month and were adopted in their entirety as the official policy of the association. A copy of the final report has been sent to each member of your committee.

In formulating its recommendations, the special committee began by rejecting the notion that problems of improper influence and corruption are solely attributable to a few bad individuals and that the preventive, therefore, is to ensure that only the good occupy positions of power. Such a bad apple theory does not bear up well when viewed in the historical context of the last several decades.

The report documents a long and unfortunate history of the progressive politicization of the Department of Justice and the growing misuse of the FBI and the Internal Revenue Service and subsequent abuses of power by these organizations. Beginning in 1936 the FBI was asked by President Roosevelt to look into "subversive activity in the United States" and obtain "a broad picture of the general movement." Further memoranda from President Roosevelt and succeeding Presidents, as well as specific requests from a number of Attorneys General, brought the FBI into the domestic intelligence function and ultimately into highly questionable areas involving the civil and political rights of U.S. citizens. All but one President since Roosevelt have appointed as Attorney General an individual who played a key or leading role in that President's election campaigns. Finally, beginning in 1961, the Internal Revenue Service, under pressure from the White House and some committees of Congress, has engaged from time to time in politically oriented intelligence activities unrelated to the administration of the Internal Revenue laws.

The ABA believes that basic institutional and structural reform is essential to assure the public of the integrity of our Federal law enforcement agencies. The ABA agrees with the statement made by James Madison in the 51st Federalist Paper.

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity for auxiliary precautions.

I emphasize this consideration because we now have a Department of Justice headed by an Attorney General and Deputy Attorney General held in the highest repute in the legal profession and by the American Bar Association. Nothing in the ABA recommendations is directed at them as individuals. Neither Attorney General Levi nor Deputy Attorney General Tyler has any connection, of course, with the events known as Watergate. But more importantly, they have taken and are taking strong measures to assure that official corruption will be prosecuted fully and to assure that the FBI will be closely monitored to prevent abuses of its great power. The committee has met with both the Attorney General and the Deputy Attorney General to discuss the committee's draft recommendations, and, as a result of those discussions the committee has modified certain of its recommendations. We are particularly pleased that the Department has now instituted some of the measures suggested in our report.