Mr. YOUNG. In your testimony last year before the last Congress you stated that you would be in favor of a conflict of interest waive of those statutes and a bill for the selecting of the members of the Commission.

Are you still in favor of that?

I notice it is not in this bill.

Mr. BROWNELL. I would leave that to the judgment of the Congress. Mr. YOUNG. As to the rules of procedure, which is an important housekeeping section in this bill, to give you some of the background, the old bill, H. R. 427, was the Celler bill last Congress in the House. The procedure was to strike out the enacting clause and put in the place of Congressman Celler's words this so-called administration bill.

When the bill was reported to the Senate floor or the House floor, rather, there was included in it by amendment these rules of procedure. In your testimony before the House, you were of the opinion at that time, that is the House of this Congress, that the rules perhaps should stay in, and in your testimony here you are of the opinion that the rules should be deleted.

I believe your change in opinion, at least I agree with it, is commendable. In that regard I would like to read you about five sentences which I believe will illustrate why the rules of procedure as drafted into the bill have destroyed the Commission so that it is unable to operate.

For instance, section 105 (e) of the bill provides in certain cases for subcommittees with a minimum of two members to carry on certain purposes.

Opposed to this we have section 102 (a) in the rule which provides for any subcommittee including one-man subcommittees.

2. Section 105 (e) provides for the Commission or subcommittees with a minimum of two members holding hearings at such times and places as deemed fit, whereas section 102 (c), the rules, it is provided that hearings can only be held upon a majority vote of the Commission.

3. Section 105 (e) provides for the issuance of subpena over the signature of the Chairman of the Commission or the chairman of a subcommittee, whereas section 102 (v) provides for the issuance of subpenas only by the Chairman of the Commission, not by the subcommittee chairmen, and also only upon written notice to all members of the Commission.

4. Section 105 (a) provides for the staffing of the Commission in order with the civil-service and classification laws, whereas section 102 (w) provides for the staffing of the Commission subject only to a majority vote of the members.

Lastly, section 104 (b) provides for the submittal of interim reports by the Commission to the President.

Section 102 (f) would permit reports only after certain procedures of presentations to the Commission.

Finally, the provisions relating to hearings in section 102 and the rest of the bill, namely, sections 104 and 105 are so opposed to each other and different that it is impossible to see how the Commission would operate.

I do not know whether those have been called to your attention or not, but I would like another statement from you, if you wish, sir,

as to whether these rules should be included in the bill or expunged from the bill.

Mr. BROWNELL. I think I would stand on my prepared statement there.

Mr. YOUNG. Your prepared statement, as I recall, was that you preferred them out?

Mr. BROWNELL. Before this committee.

Senator HENNINGS. In other words, Mr. Attorney General, you have not changed your position since yesterday?

Mr. BROWNELL. That is right.

Mr. YOUNG. General, in the Republican platform of 1956, we have a provision concerning use of force or violence relating to the school segregation cases mainly, in which the Republican Party takes a definite stand against the use of violence in the enforcement of court decrees in these cases.

We also have a similar provision in the Democratic platform in which they reject all proposals for the use of force to interfere with the orderly determination of these matters by the courts.

In that regard, I call your attention-I will read it for you, the statement is short-we have a civil-rights statute on the books which has not been mentioned here (42 U. S. C. 1993):

Aid of military and naval forces:

It shall be lawful for the President of the United States or such person as he may empower for that purpose to employ such part of the land or naval forces of the United States or of the militia as may be necessary to aid in the execution of judicial process issued under sections 1981 through 1983 or 1985 through 1992 of this title, or as shall be necessary to prevent the violation and enforce the due exemption of the provisions of sections 1981 through 1983 and 1985 through 1994 of this title.

Those are civil rights provisions in the law.

We have another

Senator HENNINGS. Mr. Young, were not those so-called "force bills"?

Mr. YOUNG. Yes. This is a bill giving the President of the United States

Senator HENNINGS. To set up military districts in the South after the war?

Mr. YOUNG. Yes, sir.

Senator HENNINGS. They are known as the "force bills."

Mr. YOUNG. But they give permissive power of the President to send the Armed Forces in certain areas for enforcement of court deThere has been a deal of worry, General, as you know, as to how far the Federal Government is prepared to go in the enforcement of the court decrees in segregation cases.

crees.

I would like an expression from you now as to whether this statute is intended at any time or has it been discussed, as being used for enforcement of these decrees?

Mr. BROWNELL. I am rather disturbed by you even raising these points, because, as I said so many times, public statements made by persons who intimate that there is any such thought in the minds of anyone here in Washington to use the militia in these cases does not represent the true state of facts, and I frankly think that the only reason it can be brought into the discussion at all is to confuse the issue.

I do not know of any responsible public official of any party of any branch of the Government that has made any statement that would even lead to an inference that there is any such thought in the minds of the Congress or the courts or the executive branch of the Govern

ment.

Mr. YOUNG. It is possible to do it under that statute, however, is it not, General?

Mr. BROWNELL. There are other statutes that would have to be considered in connection with that, and I think you will find the general rule is that the Governor of the State must request the President.

We do not want to take away any supplementary aid which the Governor of a State may want.

Mr. YOUNG. I think, General, you have reference to the Governor's right to call for armed help in the case of insurrection. This statute applies to the enforcement of judicial decrees. To go one step further in your platform, you also have a statement as follows:

This progress—

referring to the progress between the races—

must be encouraged

and there they are referring to the court decrees—

and the work of the courts supported in every legal manner by all branches of the Federal Government to the end that the constitutional idea of equality before the law, regardless of race, creed, or color, will be steadily achieved.

Those are mandatory words in the platform-every legal manner must be carried out for the enforcement of those decrees.

Would you care to comment on that, sir?

Mr. BROWNELL. Yes; I think it is rather irresponsible to even bring it into these discussions.

No one has had in mind any use of the militia in this situation, and I don't think that there should be any implication that they do.

Mr. YOUNG. The point is, General, that I am asking you, sir, the power resides in the President to do this, does it not?

Mr. BROWNELL. The President is presumed to act in a constitutional way, and I do not think that there is any indication that he is not going to.

Mr. YOUNG. Does he have the power, under this statute to do that? Senator HENNINGS. If counsel will yield, is counsel getting at the business that the President of the United States might send troops down to the States of the late Confederacy and enforce these things at the point of a bayonet?

Is that what this discussion is leading towards?

Is that the purpose of this examination?

Senator ERVIN. Mr. Chairman, if you will pardon me, this statute is not restricted. It exists as to all the States of the Union.

Mr. BROWNELL. I frankly don't think that it would be appropriate to have an exercise in the interpretation of that statute.

Senator HENNINGS. My ancestors having come from Virginia and Georgia I think I can speak of the late Confederacy with a certain amount of understanding.

Senator ERVIN. It applies to all States. It is on the books.

Mr. BROWNELL. I am sure the purpose of the questioning is laudable, but the effect of it is, it seems to me, to confuse two unconnected things.

Since there is not the slightest suggestion on the part of any responsible public official of bringing in matters of the militia into the civil-rights area, I think it would be quite misleadng really to continue with an abstract discussion of a matter which is not pertinent to the main line of our inquiry here this morning.

I may be out of my province in suggesting that, but I really feel that deeply.

Senator HENNINGS. As the Attorney General well knows, we cannot conduct these proceedings like a court, nor can we quite adhere to the rules of relevance, germaneness and so on.

Would counsel undertake to tell us what the purpose of this examination is?

Mr. YOUNG. I would be happy to, Senator.

The power is there; you have a situation in the South today in the school cases where one State legislature

Senator HENNINGS. Are any of those bills before the committee? Mr. YOUNG. Yes, sir; the power to enforce decrees as I have read here would apply to this statute, S. 83 as proposed.

Senator ERVIN. In other words, that would apply to the proceedings which would be brought under the amendments that would empower the President to use the Navy, the Army and even call out the militia to enforce those judicial decrees that might be in and under these amendments.

We think it bears directly on whether the Congress should or should not adopt such amendments.

Senator HENNINGS. S. 83 is the so-called administration bill introduced by Mr. Dirksen with a number of cosponsors, all of the Attorney General's own political party.

Now the Senator-and I make no point of that except to indicate does the Senator from North Carolina and do you, Mr. Young, undertake to make the point that the President of the United States, even though he may have the power under a statute during the reconstruction days after the war of 1861 to 1865--are we getting to that now? Is that the point?

Senator ERVIN. Mr. Chairman, the point is this: The Attorney General has asked us to amend the law so as to allow him to resort, among other things, to injunctive process, among other things to enforce section 1985 of title 42 of the United States Code, and this statute which Mr. Young has called to the attention of the Attorney General and this committee makes it lawful for the President of the United States or such person as he may empower for such purpose to employ such part of the land forces or the naval forces of the United States or the militia as may be necessary to aid in the execution of judicial process issued under the specified sections, including section 1985, "as shall be necessary."

He does not even have to wait for the execution of judicial process, but "as shall be necessary to prevent the violation and enforce the execution" of various sections including one of the sections he is asking that we amend.

Senator HENNINGS. Reading from United States Code Annotated, at pages 1220-1221, the derivation seems to have been under the acts of April 9, 1866, Statute 29, May of 1870, and no cases whatsoever under that provision ever arising.

Senator ERVIN. But that provision is still in existence. It is in Revised Statutes, section 1985, and in a section of the United States Code to which allusion has been made.

I think the question of whether that power exists is something that any Senator, when he goes to extending jurisdiction, goes to amend these statutes, would want to know something

Mr. BROWNELL. I am glad you corrected yourself on that because this program does not extend the jurisdiction of the Federal Government. Whatever power is there now, the constitutional power of the President remains exactly the same. We are not extending the Federal jurisdiction one bit.

Senator ERVIN. But the result of these amendments, if they are adopted, is to extend the power of the President under this statute to call out the Army or the Navy or the militia to enforce judicial decrees in the new cases to be authorized by these amendments so I think it is decidedly germane to the inquiry.

Senator HRUSKA. Mr. Chairman, it seems we are getting right back to that situation where the Senator is insisting "Yes" and the Attor ney General is insisting "No."

Now until we can resolve that difference, why I don't know how much continual benefit will flow from a continuance of this discussion, as interesting as it might be from an academic viewpoint.

Senator ERVIN. It is not entirely from an academic standpoint. We are not debating this point any further, but we do think we are entitled to make a record here that will show that if this bill is passed, that it will create a new type of remedy in which judicial decrees can be entered, and under which the President of the United States under existing law can enforce by the use of the Armed Forces of the country, so Senators may know what they are voting for.

Senator HENNINGS. Or any State under the police power can likewise exercise that, can it not, under the New Orleans slaughterhouse case and

Mr. BROWNELL. Mr. Chairman, I believe there is in here an implication that the President of the United States would act recklessly if not unconstitutionally, and I just cannot sit by and have the record contain any such implication of that.

I really feel that this has gone far enough. It has no place in these proceedings, and I personally cannot stay here and allow any such implication to be drawn.

Now let's have a ruling on that.

Senator HENNINGS. Mr. Attorney General, as you know, I have tried to be as impartial and objective as I can at these hearings in the course of these inquiries, and I don't like to limit any Senator or counsel in asking questions, but I do think that we can get so far afield on the subject as to enter the realm of Alice in Wonderland sometimes."

I think it would be perfectly appropriate if the Attorney General so desires, to file a brief on this subject or a memorandum.

Mr. BROWNELL. I would respectfully ask for a ruling, Mr. Chairman, as to whether or not this line of questioning is within the authority of the committee.

Senator HENNINGS. As the Attorney General well knows, this is not a court. We are not bound by any rules whatsoever.

Mr. BROWNELL. We are certainly bound by rules of proper respect being paid to the President of the United States.