T1a B45 Legislative Privilege 1 Of 2 Fdr- Entire Contents- 3 Legal Treatises- 1st Pgs For Ref 452

LEGISLATIVE PRIVILEGE (notes) >

Seminal articles by D. Kaye: Congressional Papers and Judicial Subpoenas, 23 UCLA L. Rev. 57 (1975) Congressional Papers, Judicial Subpoenas, and the Constitution, 24 UCLA L. Rev. 523 (1977)

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The issue of legislative privilege has never been conclusively litigated. When presented with a judicial subpoena, Congress has by and large complied. In so doing, however, Congress has generally passed a resolution allowing compliance but re-affirming its legislative privilege not to comply.

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Kaye argues that the boilerplate language that is included in these Congressional resolutions actually originated from a privilege not to produce original documents - not a general privilege not to comply with judicial subpoenas.

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In the few instances where Congress has withheld information, the courts have avoided the question. See, e.g., Galley and Liddy decisions.

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There is no obvious textual source for such a privilege in the U.S. Constitution. Three possibilities are: (1) the Publication Clause, Art. I § 5 cl. 3, which provides that "[e]ach House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy;" (2) the Immunity from Arrest Clause, Art. I § 6 cl. 1, which provides that "[Senators and Representatives] shall, in all cases except Treason, Felony, and Breach of the Peace, be privileged from arrest during their Attendance at the Session of then: respective Houses, and in going from and returning to the same;" and (3) the Speech or Debate Clause, Art. I § 6 cl. 3, which provides that "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place."

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Arguments for (1) and (2) are weak textually and analytically. Kaye thinks, however, that the Speech or Debate Clause allows Congress to assert legislative privilege and not respond to judicial subpoenas for documents related to legitimate legislative activity (including Committee investigations).

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Kaye is at odds with other interpretations of the Speech or Debate Clause, which view that provision as providing individual legislators with immunity from criminal and civil liability for legislative activities but not concerned with legislative confidentiality. See Paisley decision (although opinion re Speech or Debate Clause vacated on appeal).

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Another possibility is that there is no textual home for legislative privilege, but rather that it is inherent in the separation of powers. There is dicta in some cases to support this view. See dissenting opinions of Wilkey and MacKinnon in Nixon and Soucie cases (DC Circuit).

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Query: Is there a separation of powers issue when the Commission is in the legislative branch? See district court decision in Galley, where the court makes a similar point with respect to a military court established pursuant to Article I.

LEXSEE519f2dl84

William L. CALLEY, Jr., Petitioner-Appellee, Cross-Appellant, v. Howard H. CALLAWAY, etc., et al., etc., Respondents-Appellants, Cross-Appellees No. 74-3471 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 519 F.2d 184; 1975 U.S. App. LEXIS 12794 September 10,1975

PRIOR HISTORY: [**1] Appeals from the United States District Court for the Middle District of Georgia. DISPOSITION: Reversed.

JUDGES: Wisdom, Gewin, Bell, Thornberry, Coleman, Goldberg, Ainsworth, Godbold, Dyer, Simpson, Morgan, Clark and Roney, Circuit Judges. * Bell, Circuit Judge, with whom Gewin, Thornberry, Morgan and Clark, Circuit Judges, join, dissenting. * Chief Judge Brown and Circuit Judge Gee took no part in the consideration or decision of this case. OPINIONBY: AINSWORTH OPINION: [*189] AINSWORTH, Circuit Judge: In this habeas corpus proceeding we review the conviction by military court-martial of Lieutenant William L. Galley, Jr., the principal accused in the My Lai incident in South Vietnam, where a large number of defenseless old men, women and children were systematically shot and killed by Galley and other [*190] American soldiers in what must be regarded as one of the most tragic chapters in the history of this nation's armed forces.

Petitioner Galley was charged on September 5, 1969, under the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., with the premeditated murder on March 16, 1968 of not less than 102 Vietnamese civilians at My Lai [**2] (4) hamlet, Song My village, Quang Ngai province, Republic of South Vietnam, nl The trial by general court-martial began on November 12, 1970, at Fort Benning, Georgia, and the court members received the case on March 16, 1971. (The function of court members in a military court-martial is substantially equivalent to that of jurors in a civil court.) On March 29, 1971, the court-martial, whose members consisted of six Army officers, found Galley guilty of the premeditated murder of not fewer than 22 Vietnamese civilians of undetermined age and sex, and of assault with intent to murder one Vietnamese child. n2 Two days later, on March 31, 1971, the court members sentenced Galley to dismissal from the service, forfeiture of all pay and allowances, and to confinement at hard labor for life. On August 20, 1971, the convening authority, the Commanding General of Fort Benning, Georgia, approved the findings and sentence except as to the confinement period which was reduced to twenty years. See Article 64 of the Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. § 864. The Army Court of Military Review then affirmed the conviction and sentence. United States v. Galley, 46 C.M.R. 1131 (1973). [**3] n3 The United States Court of Military Appeals granted a petition for review as to certain of the assignments of error, and then affirmed the decision of the Court of Military Review. United States v. Galley, 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973); see Art. 67(b)(3), U.C.M.J., 10 U.S.C. § S67(b)(3). n4 The Secretary of the Army reviewed the sentence as required by Art. 71(b), U.C.M.J., 10 U.S.C. § 871(b), approved the findings and sentence, but in a separate clemency action commuted the confinement portion of the sentence

LEXSEE382fsupp650 William L. CALLEY, Jr., Petitioner, v. Howard H. CALLAWAY et al., Respondents Civ. A. No. 74-7-COL UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA, COLUMBUS DIVISION 382 F. Supp. 650; 1974 U.S. Dist. LEXIS 6592 September 25,1974

JUDGES: [**1] Elliott, Chief Judge. OPDVIONBY:

ELLIOTT OPINION: [*654] ELLIOTT, Chief Judge. Background and Present Status of the Case On March 31, 1971 Petitioner was found guilty by Army general court martial of premeditated murder and assault with intent to commit murder in violation of Articles 118 and 134 of the Uniform Code of Military Justice. On February 16, 1973 the Court of Military Review affirmed the conviction. The Court of Military Appeals granted a limited review and on December 21, 1973 affirmed the Petitioner's conviction by a split decision. Having exhausted the appeal procedures provided in the military system, the Petitioner on February 11, 1974 filed a petition for writ of habeas corpus in this court praying that he be discharged from custody on the ground that his conviction is constitutionally invalid. At the time of the alleged offenses which are the basis of the Petitioner's conviction Petitioner was 25 years of age and held the rank of Second Lieutenant. At that time he had been an enlisted man for approximately 14 months and had been a Second Lieutenant for about 6 months. He had completed his first tour of duty in Vietnam, but when a shortage of junior officers [**2] developed he voluntarily extended his Vietnam tour by an additional 6 months.

When he enlisted in the Army he was given the usual basic training and he later asked for and received a recommendation for Officer Candidate School and was accepted for a class starting in March, 1967. After he finished OCS he was assigned to the llth Infantry Brigade in Hawaii where he was taught the usual infantry subjects and was specifically informed that he was required to give strict obedience to orders. The Petitioner's first assignment in Vietnam was at Due Pho. He had a short series of classes there and most of the instruction was given by ARVN instructors. This was his first indoctrination about the character of the potential enemy. He was told that women were as dangerous as men and that children were even more dangerous because they were unsuspected. He was also informed that the women were frequently better shots than the men and that the children were used to plant mines and booby traps. The first military operations in Vietnam in which he was engaged were those in which his unit was used for reconnaissance along trails and in seeking out and seizing enemy materials. During these missions [**3] the unit was continually subject to fire from unknown and unseen individuals. A number of men in the company had been killed or wounded and prior to the operation at My Lai Four they had never seen the persons responsible for the death or injury of their buddies. Consequently, they formed the opinion that civilians were in part responsible. Also prior to the operation at My Lai the unit had been used on some ambush missions and about the time of the TET offensive in 1968 the unit had suffered heavy casualties, 95% of which were caused by mines. During the course of an earlier operation one of the platoons of the company walked into a mine field with disastrous results. Without reciting details it can be said that the record shows a resentment by members of the command at the

LEXSEE 542 f2d 76 United States of America, v. G. Gordon Liddy, Appellant No. 74-1885, D.C. Criminal 74-116 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 177 U.S. App. D.C. 1; 542 F.2d 76; 1976 U.S. App. LEXIS 11328 June 18,1975, Argued May 17,1976, Decided

PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Columbia (D.C. Criminal 74-116).

* Sitting by designation pursuant to 28 U.S.C. § 292(d). OPINIONBY: MERHIGE

DISPOSITION: OPINION: Affirmed.

COUNSEL: Peter L. Maroulis, for appellant. Philip B. Heyman, Special Assistant to the Special Prosecutor, with whom Henry S. Ruth, Jr., Special Prosecutor, Peter M. Kreindler, Counsel, to the Special Prosecutor, Maureen E. Gevlin and Richard D. Weinberg, Assistant Special Prosecutors, were on the brief for appellee. Leon Jaworski, Special Prosecutor at the time the record was filed entered an appearance as Special Prosecutor. Ivan Michael Schaeffer, Attorney, Department of Justice, filed a memorandum on behalf of the United States of America amicus curiae. JUDGES: Leventhal and Wilkey, Circuit Judges and Merhige, * United States District Judge for the Eastern District of Virginia. Opinion for the Court filed by District Judge MERHIGE.

[*77] MERHIGE, District Judge: On July 12, 1974, a jury convened in the United States District Court for the District of Columbia and convicted the Appellant, George Gordon Liddy, of conspiring with co-defendants John D. Ehrlichman, Bernard [**2] Barker, and Eugenic Martinez to violate the Fourth Amendment rights of Doctor Lewis J. Fielding in contravention of Title 18, United States Code, Section 241. nl Sentence [*78] was imposed on the Appellant on July 31, 1974, by District Judge Gerhard A. Gesell for a term of from one to three years, n2 to run concurrently with the sentence he received in United States v. Liddy, CR. No: 1827-72 (D.D.C.). The appellant seeks reversal of his conviction on the grounds that his indictment was constitutionally defective, that his right to a speedy trial under the Sixth Amendment and his right to due process under the Fifth Amendment were violated by the dismissal, over his objection, of a California prosecution arising from his participation in the break-in of Dr. Fielding's office, and that his constitutional and statutory rights were violated by the refusal of the trial court to enforce two subpoenae duces tecum. For the reasons delineated below, we reject these contentions and affirm the Appellant's conviction.

LEXSEE 448 f2d 1067 Gary A. SOUCIE et al., Appellants v. Edward E. DAVID, Jr., Director, Office of Science and Technology, et al. No. 24573 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 145 U.S. App. D.C. 144; 448 F.2d 1067; 1971 U.S. App. LEXIS 10790; 2 ERC (BNA) 1626; 1 Media L. Rep. 2435; 1ELR 20147 December 7,1970, Argued April 13,1971, Decided

JUDGES: [**1] Bazelon, Chief Judge, Van Dusen, * Circuit Judge, U.S. Court of Appeals for the Third Circuit, and Wilkey, Circuit Judge. Wilkey, Circuit Judge (concurring). * Sitting by designation pursuant to 28 U.S.C. § 291 (a) (1964). OPESIONBY: BAZELON OPINION: [*1070] BAZELON, Chief Judge: This is an appeal from the dismissal of a suit for injunctive relief under the Freedom of Information Act. nl Two citizens seek to compel the Director of the Office of Science and Technology (OST) n2 to release to them a document, known as the Garwin Report, which evaluates the Federal Government's program for development of a supersonic transport aircraft (SST). n3

nl Pub.L.No.89-487, 80 Stat. 250 (1966), amending Administrative Procedure Act, ch. 324, § 3, 60 Stat. 238 (1946), 5 U.S.C. § 1002 (1964). Pub.L.No.89-487 was repealed, but its substantive provisions enacted into the United States Code, by Pub.L.No.90-23, 81 Stat. 54 (1967), 5 U.S.C. § 552 (Supp. V, 1970).

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n2 The OST was established in the Executive Office of the President by Reorganization Plan No. 2 of 1962, Pt. I, 3 C.F.R. 879 (1959-63 Compilation), set out following 5 U.S.C. § 133z15 (1964), at 247. Section 133z-15 has been replaced by 5 U.S.C. § 913 (Supp. V, 1970). [**2] n3 The statutory basis for the SST program is a provision in the Federal Aviation Act of 1958 authorizing the Administrator of the Federal Aviation Agency to undertake research and development in aviation. Pub.L.No.85-726, Tit. Ill, § 312(c), 72 Stat. 752 (1958), 49 U.S.C. § 1353(c) (1964). This function was transferred to the Secretary of Transportation, to be exercised by the Federal Aviation Administrator, by the Department of Transportation Act. Pub.L.No. 89-670, § 6(c) (1), 80 Stat. 938 (1966), 49 U.S.C. § 1655(c) (1) (Supp. V, 1970).

The Report originated in the following manner. The President asked the Director of the OST, then Dr. Lee A. DuBridge, n4 to provide him with an "independent assessment" of the SST program. Dr. DuBridge convened a panel of experts, headed by Dr. Richard L. Garwin, to assist him. When the President learned of the panel, he asked to see its report. Dr. DuBridge subsequently transmitted the Garwin Report, along with his own evaluation, to the President. n5