rity and antiterrorist activities, it is sounder, more economical and maybe more efficient to have the transfer over of relevant material information from all lawful intelligence gathering to the Secret Service so that it can fulfill its functions of protecting the executives and its other security functions. I guess that is the answer. Mr. DODD. Didn't the guidelines that were promulgated limit that kind of activity specifically to the FBI and exclude other such agencies from engaging in that kind of activity? Mr. CIVILETTI. I don't think so; no. Mr. DODD. I don't have it in front of me. Mr. CIVILETTI. No; I have the domestic security investigations guidelines before me, but I think they apply to the functions and to the nature of the activities, particularly by the Bureau. I don't think there is any provision that says that for other missions. another law enforcement agency or bureau or group could provide, can conduct what would be known as either domestic security or intelligence investigations under similar standards or the same guidelines. The reason for the exemption was the Treasury Department and the Secret Service's argument that when they receive information as a result of domestic security investigations, to check out that information, and particularly because of the nature of the executives who travel, they have to have prompt and immediate access, to follow the leads and to reduce the risks or to find out more information, to the kinds of records that are available in not only financial institutions, but employment records and all others. So it is not simply the initiation, but it is the pursuit and evaluation, once the leads are obtained from the collection agencies. Mr. DODD. I might point out this morning the Secret Service testified that they were formulating regulations as to their access under this section, which would limit their access, so as to prevent abuse of individual rights. The Director said he would like a similar exemption, exception rather, to other acts enacted by Congress. Mr. CIVILETTI. I am sure that their position will be the same with regard to health records and employment records and to the whole series of privacy initiatives. Mr. DODD. Will your office have any input into that at all, or is that something that will come solely from them? Mr. CIVILETTI. Yes; we will have input in two ways: One, we will have a view to express in the process in the White House, in the Domestic Policy Office, which is dealing with the general issue of privacy initiatives pursuant to the Privacy Commission report. We participate in that particular series of initiatives, as do most of the executive departments, and I have attended a number of those meetings. Second, we will have an input on the applicability of the standards and mechanisms set up in the Banking Act to other types of records when they are the subject of specific pieces of legislation proposed by different committees in the Congress or by different executive committees. For example, there are reasons or some arguments which could be made why the model adopted for financial record privacy, and those exceptions and exemptions and the tests and the times and so forth, should not be determined on an administrationwide basis to be immediately applicable to all kinds of records. Instead, a policy determination might be made to leave some type of model or standard for evaluation as each particular category of records is presented, such as employment records or health records or another type of record, subject only to the principle that there be in certain instances recognition of an expectation of privacy and what that means in terms of protections. There are arguments that are less or more strong from a law enforcement point of view, and from the point of view of Treasury and many other legitimately interested agencies, depending on whether you are talking about one kind or subject matter of record or another. Mr. DODD. Thank you. Chairman STOKES. The time of the gentleman has expired. Chairman STOKES. Mr. Civiletti, I am sure you are familiar with the fact that the Warren Commission was quite critical of the Dallas Police Department, with reference to many of the statements that were made by police officials relative to the guilt of Lee Harvey Oswald, to the degree that had there been a trial in his case, in all probability there would have been the assertion of violation of his constitutional rights by virtue of this type of prejudicial release of information. I would be concerned in knowing what the Justice Department policy is with reference to the dissemination of news regarding an assassination, in the event there were such an occurrence. Mr. CIVILETTI. There is a tug between two sound principles, in answering that question. The first principle, which the Attorney General has reinforced and extended, is that the Justice Department, in criminal investigations and prosecutions, in accordance with standard law, but in greater detail in application, should have no comment with regard to investigations, and no comment even at the time of the public disclosure of particular dependents through charging or arrests or public searches, on the guilt or innocence or details of facts which relate to evidence or the determination of guilt or innocence. And the Attorney General has applied, both to the U.S. attorneys and to the FBI, a standard that limits public comment to a simple recitation of the charges in the indictment or of the limited particulars available in a public document, such as the arrest warrant, at the time of the prosecution, and has insisted that there be no other comments. Now despite that insistence, from time to time you will read in the paper of a prosecutor, an assistant U.S. attorney or someone else who goes beyond those rules, and they are called by the head of the PIO Office, or in some instances written to by me or by the Attorney General, reminding them, and in effect reprimanding them, for having gone across that line. So that our view consistent with that principle, sound principle, with regard to assassinations, to the extent that it was a criminal investigation and involved potentially a prosecution, would be to forbid the comment. On the other side, in those instances where there may not be a specific matter or a specific suspect or a specific course of action or prosecution or investigation underway, but something occurs that comes under our jurisdiction concerning an intensely newsworthy subject, a judgment is difficult to make as to whether or not there is a public right to know, under some principles, first amendment principles or other principles. Largely that often is determined in this second area almost by default, by the ability of the press and the media, despite whatever rules are in existence, to obtain good sources and obtain facts and information through hard work, digging, and the rest. Sometimes in that instance it becomes a necessity to acknowledge a certain governmental action in order to prevent wild speculation, misleading or inflammatory rumors which are floating around in a volatile circumstance. So the line between the two, between when it is important and proper in a highly explosive and inflammatory situation to acknowledge and provide sensible general information, accurate information, and the other duty not to prejudice or hinder or inadvertently even handicap an investigation, is one that I could foresee in the circumstance of an attempted assassination or assassination of a high Government official not to be entirely clean cut and easy. My own judgment would be that the Attorney General, because of his disposition and his efforts to enforce his press policy in the rest of the department and the U.S. attorney's office's, would be inclined to err, if we err, on the side of protecting the investigation and the nonprejudice of all the respective rights involved. But you can see the kind of difficulty in the great tragedies and the resultant massive inquiries concerning the Guyanian and Congressman Ryan's death. Chairman STOKES. I suppose then in actuality, the precise situation which existed in Dallas as it relates to the local authorities would still be the same today really. There just are no rules or regulations. Mr. CIVILETTI. I am sorry, I didn't mean to give you that impression. There are written guidelines, directions by the Attorney General to all U.S. attorneys, which also have been directed to the Bureau, although-I saw a draft about 2 weeks ago-they are being revised and spelled out more clearly. They would be generally applicable to all SAC's and other Bureau personnel as well as to the Department of Justice, and they set out expressly prohibitions and allowances in the handling of press inquiries and press matters concerning criminal investigations and criminal prosecutions. So I think that those guidelines and directives would be looked to first in the responses and for the formal communications they would generally be followed. What I am suggesting is that they would perhaps suffer some in practice, because of the enormous pressure that would be brought to bear on the department. Chairman STOKES. Thank you very much. My time has expired. The gentleman from North Carolina, Mr. Preyer. Mr. PREYER. Thank you, Mr. Chairman. Following up on that point, I am encouraged by what you say. We asked Mr. Knight, the head of Secret Service, this morning what his news policy would be, and it in effect was to give informa tion in the nature of name and serial number, and refer it to the Justice Department when they took over to do the rest. I am encouraged that you actually are considering this in the form of written guidelines to offer guidance on it. Generally, I agree strongly with your position about no comment on guilt or innocence, but I would hope, in the case of a Presidential assassination, those guidelines will take into consideration; that where a President is assassinated, and you are dealing with the transfer of power and the need to make sure that it is a legitimate transfer of power, that probably we have to lean a little more toward the public's right to know in that instance. Generally, I am not in favor of double standards, but in this case it seems to me we do have to work out some way that the American people can get, in an orderly way, information on that, and if we can also figure out some way, I hope your guidelines will consider this: how false information can be corrected. In the Dallas situation there was a lot of false information, and as far as I know, most of it is still uncorrected in the source, in the newspapers, for example, that put it out. Let me just ask one other question for your legal judgment on it, which is not directly related to what we have been talking about. The President recently signed legislation which authorized legal representation of the Senate. The House did not go along with that in the conference, so it was left just that the Senate has legal representation. We have found in the assassination hearings that the staff has quite a few, has run into quite a few problems, in going into court and asking for immunity orders or habeas corpus orders, and that something like a House legal representative would have been very useful. Do you have any comment on whether the House should do what the Senate has done, that is, authorize a legal representative for the House? Mr. CIVILETTI. No. Mr. PREYER. You are a very wise man, Mr. Civiletti. Thank you. Mr. FITHIAN. I have one additional question, Mr. Chairman. Would you personally favor the drafting of a code of conduct for attorneys who accompany clients before an investigative congressional committee? Mr. CIVILETTI. I don't think so. I think that I would probably-I don't know the experiences that you have been exposed to and suffered through or found intolerable or very distasteful, whatever. But the only two things that spring to my mind in that regard would be rules perhaps, rather than a code of conduct. I haven't given any thought to it, but rules of the House might be considered which would at least be directed toward two things: One, multiple representation, which I think is a problem with which the code of professional responsibility does not adequately deal, and, second, rules which relate to the demeanor and conduct, the method of giving advice and counsel to a witness, particularly during the course of testimony before the committee. As you know, in most circumstances of witnesses testifying, other than in congressional committees, once the inquiry is underway, and if there is a presiding officer, then counsel is not allowed to communicate constantly with the witness or to interrupt the interrogation, or to impede the questioning, unless it reaches a point of some different subject matter or whatever, unless special permission is obtained from the presiding officer, be it a judge, a magistrate or some other official. So I would suggest that those, and perhaps many others, but those are two areas that could be or might be dealt with by means of investigatory committee rules, rather than trying to enter the thicket of a general code of conduct for lawyers who appear with clients or on behalf of clients before congressional committees. I would think as a general proposition, aside from the specific interrogation and fact finding, that as to general conduct, conflict of interest, duties owed to the law, duty not to misrepresent, and all the other ethical considerations that are included in the code of professional responsibility, that in the event of aggravated violations of those ethical restrictions or directives, the committee ought to exercise its authority by invoking, to the extent possible, the disciplinary procedures and complaint procedures available for all other kinds of lawyer misconduct. But I do think there are some legitimate rules that could be set out, such as the two that I mentioned, which would apply specifically to congressional hearings and might deal with problems that otherwise do not violate the code of professional responsibility of lawyers. Mr. FITHIAN. And you think that if something were worked out in those two areas, that the Congress could balance the right of the witness to adequate advice and counsel on the one hand, against impeding an investigation or obstructing an investigation or delaying an investigation on the other? Mr. CIVILETTI. I think a rule could be devised which would be sound and lawful to do that, and I think it would help. I am not suggesting that a rule alone would completely resolve the difficulties that are inherent in a lawyer trying to do everything he can to protect the interests of his clients or client in a semiadversarial proceeding, and the members of the committee and their counsel trying to find the facts as forcefully and quickly as they can. There will still be difficulties, but it would help I think. Mr. FITHIAN. Thank you. Thank you, Mr. Chairman. Chairman STOKES. The time of the gentleman has expired. Mr. DODD. I have no further questions. Chairman STOKES. Mr Civiletti, let me refer you to part of your testimony on page 3 of your prepared remarks. I am going back once again to the media aspect of the former question that I asked you. Of course you mentioned in your testimony that it is very possible that any incident involving political assassination or attempted political assassination would occur in the presence of the media recorded at least in part on film or tape. You then go on to say that you would expect and in all probability the press or media would be cooperative with you in terms of the investigation and share those types of recordings, photographs, et cetera, with you. But you also cite the fact that in the event that 38-028 0 - 79 - 10 |