with pro

...that the power of inquiry
cess to enforce it - is an essential and
appropriate auxiliary to the legislative
function... A legislative body cannot legis-
late wisely or effectively in the absence of
information respecting the conditions which
the legislation is intended to affect or
change; and where the legislative body does
not itself possess the requisite information
which not infrequently is true-recourse must
be had to others who possess it. Experience
has taught that mere requests for such infor-
mation often are unavailing, and also that
information which is volunteered is not always
accurate or complete; so some means of compul-
sion are essential to obtain what is needed.
All this was true before and when the Constitu-
tion was framed and adopted. In that period
the power of inquiry-with enforcing process-
was regarded and employed as a necessary and
appropriate attribute of the power to legi-
slate--indeed, was treated as inhering in it.
Thus, there is ample warrant for thinking as
we do, that the constitutional provisions
which commit the legislative function to the
two houses are intended to include this attri-
bute to the end that the function may be
effectively exercised.

McGrain, supra at 174.

Unfortunately, the

The issuance of a congressional subpoena in a form directed at the custodian of the incarcerated prisoner would seem to fit nicely into the legislative and constitutional scheme outlined by the court in McGrain, supra. It has the further advantage of having the court's implicit blessing. Congress and its committees have not chosen to take this course. Perhaps, the absence of such Congressional initiative may be explained by the feeling on a committee's part that absent a special rule allowing their issuance, such a writ would necessitate going to the floor for a vote by the whole House, a very

32

inconvenient and cumbersome process for so minor an issue.

At

any rate, committees have chosen to take the judicial route. The fact they they have routinely been aided by the courts has made both branches only the more oblivious to the weighty jurisdictional problems raised by such a petition. If the issue is raised and the courts balk, the inherent power of the Congress could prove to be a satisfactory and proper alternative means to the production of the prosoner.

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Rule XI (M) (I) (B) of the House Rules under which the Select Committee is empowered to subpoena pursuant to H. Res. 222, does provide authorization "to require by subpoena or otherwise, the attendance and testimony of witnesses." "Otherwise" could be construed to mean the power to issue process in the form of a testificandum writ. The novelty of the process, however, argues for formal House action.

V. Responsibility for the Safeguarding and Transporting of the
Prisoner-Witness

The issuance of a writ of habeas corpus ad testificandum can effect the interests of several jurisdictions and various authorities within those jurisdictions. A writ issued pursuant

to Congress' inherent power poses the least amount of difficulty as to allocating responsibilities and for that reason raises another kind of problem. The Congress through its sargeant of arms would solely be responsible for safety and transportation and would bear all the incident costs. As the staff of the Sargeant at Arms is composed of 15 members, mostly administrative personnel, the House would probably have to provide for special assistance. In contrast, a petition granted by the court has typically involved the Marshall's service and the relevant state authorities. There is a problem of determining responsibilities in a writ authorized by the court but it essentially boils down to one of allocation of duties among those best able to perform them. When the transfer has involved a federal prisoner, as for example, when the Armed Services Committee petitioned the District of Columbia court for the production of G. Gordon Liddy in 1973 from the D.C. Jail the court's order placed responsibility for the transfer on the U.S. Marshall's Office. involve state prisoners the problem is a little more difficult. There are no cases reported where the Congress petitioned for the production of a state prisoner except that involved in the Matter of Hearings Before the Banking Committee, supra. In that case, the Congressional

When the transfers

hearings took place in the Chicago Federal Courthouse.

The Federal

court order directed the Warden of the Illinois State Prison to The production of a state prisoner

produce the prisoner in Chicago.

witness for Congressional hearings on Capitol Hill, of course, may complicate the procedure.

In such a situation state authorities could only offer assistance within the state's territory. The sensitive nature of the Committee's investigation also militates against reliance on State authorities. The proper procedure, therefore, would seem to be to have the court direct its Marshal's office to take charge of all transportation custody, and security responsibilities. This could be done pursuant to 28 USC §5519 (c) (b) which enpowers the court within its discretion to require the Marshall's to attend any session of court execute all lawful writs .. and command all necessary assistance to execute their duties." Such broad based power has the advantage of making one authority have the overall responsibility for taking care of the witness. It also allows for assistance by the Sargeant at Arms or Capitol Hill Police to whatever degree and in whatever form may be required by the Marshall's office. The lattitude given the courts in this regard is quite large. One case that could be found where a problem arose over the Marshall's role in testificandum proceedings is instructive. In Ballard, supra the Marshall's office balked at its responsibility in transporting and safeguarging a Florida prisoner who was to appear in a Federal Civil Rights action in the Middle District of that state. It complained of lack of funds and that the State was the proper party to bear the costs and

responsibility. The Court in denying the Marshall's appeal from its habeas corpus order stated that the rights involved were federal in nature and that the Marshall's office raison d'etre is service to the federal forum in civil as well as criminal litigation. Ballard, supra at 481. It further stated that whatever funds were needed could come from the office's contingency fund. In the case of a Congressional petition the economic problem is even less of an issue since the Committee could readily re-imburse the Marshall's Office for any expense incurred in production and security of the witness. Aside from normal problems of administration and coordination there seems to be no legal obstacles to the Committee's using the office and expertise of the Marshall's service in securing the production, and safety of its prisoner-witness.