BALTIMORE SUN - 28 APRIL 1973(30) Pg 2

# U.S. bombing called
'civil war' action

By CHARLES W. CORDDRY

Washington Bureau of The Sun

Washington—Senator Stuart Symington (D., Mo.), chairman of the Senate Foreign Relations Committee's panel on United States commitments abroad, charged yesterday that America is involved in "essentially a civil war" in Cambodia, and is using its air power "primarily" to support the Lon Nol government rather than to attack North Vietnamese troops in that country.

The senator issued a gloomy report by two subcommittee staff members, James Lowenstein and Richard Moose, outlining the pervasive involvement of the U.S. Embassy in Phnom Penh in direction of the air war, and showing a drastic shift in bombing targets over the past month.

Just back from a month in Indochina, the two reported that since March B-52 strikes had been switched from 80 per cent against North Vietnamese supply lines into South Vietnam and 20 per cent against Cambodian rebels to "close to the reverse."

In an analysis of the deteriorating situation in Cambodia, they said unless China and Russia take an active role in getting a settlement, "the war will probably continue as long as we are willing to defend from the air a Cambodian Army that does not seem to be able to defend itself on the ground."

They said American planes have been flying about 240 sorties (individual flights) a day over Cambodia since the big expansion of air operations in mid-March. Except for the strikes against North Vietnamese bases in Cambodia's eastern provinces, the sorties are tightly controlled by the U.S. Embassy in Phnom Penh where, from their description, it appears that an elaborate air-command center has been established.

This center is linked directly with U.S. Air Force headquarters in Thailand, command planes over Cambodia, forward air controllers in small, spotter planes, and the Cambodian

general staff.

## Involvement clarified

In his accompanying statement, Senator Symington said:

"The staff report makes clear how deeply involved is the American Embassy in Phnom Penh in the direction of American air operations in Cambodia; and this, despite the clear intent of legislation that was passed so as to limit the involvement of American personnel in any war in Cambodia."

Now, he said, an air war is being fought "without public knowledge of its scope and intensity," and a new commitment is undertaken "without prior congressional knowledge or approval."

The report of Mr. Lowenstein and Mr. Moose, the senator went on, "confirms the fact that the struggle going on in Cambodia is essentially a civil war between opposing Cambodian groups and that our bombing is being devoted primarily to the support of Lon Nol."

While they called it a civil war, with America increasingly involved in internal political as well as military affairs, the two staff investigators also said the Cambodian rebels could not mount sufficient military action to threaten the government without continued support of Hanoi.

The key to a cease-fire, they said, may be to give the insurgents a role in the government. If the military situation continues to deteriorate, they added, the Lon Nol government may have no choice but to take whatever terms the insurgents lay down.

[c]

N.Y. TIMES 29 APRIL (30)

Diplomacy
May Get
A Chance

WASHINGTON — North Vietnam charged the United States with "bravenly and systematically" rupturing the Vietnam cease-fire agreement. Washington responded by accusing Hanoi of "direct and excusable" breaches in the three-months-old accord. American reconnaissance planes again flew over North Vietnam — a none-too-subtle warning of a possible renewal of American bombing.

Yet despite the angry polemics of last week and the threat of a renewal of warfare, the diplomats seemed assured of another chance to put the Humpty-Dumpty peace accord together again.

As the result of an agreement worked out with Hanoi, negotiations resumed in Paris on Friday to achieve "strict implementation" of the agreement. William H. Sullivan, the State Department's top Southeast Asia expert, flew to the French capital for five and a half hours of talks with his counterpart, Deputy Foreign Minister Nguyen Co Thach.

The purpose of the Sullivan-Thach talks, due to continue this week, was to prepare the way for a meeting in mid-May between Henry A. Kissinger and Le Duc Tho, the men who worked out the terms of the actual cease-fire agreement.

A high White House official said he thought Mr. Kissinger had a "50-50 chance" to achieve an understanding that would reinforce the agreement. But as the sharply-worded recriminations between Washington and Hanoi indicated last week, there were serious disagreements between the two sides over the causes of the breakdown of the accord.

Hanoi's View. Hanoi argues that the United States has violated the spirit of the agreement by not disengaging from Indochina. North Vietnam apparently believed that once President Nixon got his troops and prisoners out of Vietnam, he would let the Indochinese send for themselves. While apparently not breaching the letter of the accord, Washington has given considerable military, economic and political support to President Nguyen Van Thieu and has backed up the anti-Communist governments in Laos and Cambodia.

In North Vietnam's view, this amounted to renewed "neocolonialism" by the Americans. Moreover, Hanoi has accused Washington of suspending mine-sweeping in North Vietnamese waters and of reconnaissance flights

over the North — both violations of the accord. Washington acknowledges these infractions but says they were in response to more serious ruptures of the accord by North Vietnam.

Washington's View. The United States charges Hanoi with violating both the letter and spirit of the accord. Mr. Kissinger says Hanoi had promised to bring about a cease-fire in Cambodia within a month of the Vietnam cease-fire but now seems to be giving full support to the anti-Government insurgents closing in on Phnom Penh. Washington also charges Hanoi with breaking the terms of the agreement by infiltrating men and supplies into South Vietnam.

The United States acknowledges that the Saigon forces have also committed breaches of the accord, but Mr. Kissinger says their violations have been less serious than Hanoi's.

One of the factors the White House must weigh is the deep reluctance of Congress to remain involved in that part of the world. Mr. Kissinger alleged to this when he complained to an editor's meeting on Monday that there was criticism both of the "stick" policy of threatening new air raids and the "carrot" policy of promising economic aid to Hanoi in return for compliance. In that case, Mr. Kissinger asked with some passion, "what should the United States do?"

But he did not give an answer.

—BERNARD GWERTZMAN

NEW YORK TIMES 29 April 1973 (30)

A Quarter of 'Peace'

Three months after the signing of truce in Vietnam, the United States is still at war. Not only is the end not in sight but each day brings new intimations that the Administration is ready for heightened combat in Southeast Asia.

Since the cease-fire came into effect Jan. 27, the United States has dropped at least 150,000 tons of bombs on Cambodia and Laos. Reported violations of the formal cease-fire pacts have become routine. The question is no longer: Who is torpedoing peace? Rather it has become: Can Hanoi and Washington retrieve enough of the common interest they once perceived to make the fragile structure of the cease-fire hold together very much longer?

For this purpose, the two hardy negotiators who initially achieved the truce are apparently preparing to add an epilogue to the Paris Vietnam negotiations that both asserted had ended in success.

Henry A. Kissinger asked the other day, "What should the United States do?" Should a solemn international agreement, once it is "totally violated... simply be treated as irrelevant?" This is hardly an easy question, even if the agreement was not "totally" violated—all the American prisoners are free. Put the basic dilemma was inherent in the ambiguities and divergent motives embodied in the Jan. 27 accord. The Administration freely entered into an agreement, including a system for dealing with truce violations, and declared itself satisfied with what was clearly perceived by many critics at the time as an unworkable charade. One can understand the despair of the Presidential adviser now, but not his

President Nixon is ready to take the credit for disengaging the United States from the Vietnam war, but he is not ready to disengage. It seems that the Administration retains some unattested sense of open-ended obligation to police Southeast Asia, and to the commitment of American resources to participation in what is officially acknowledged to be civil warfare.

The nation's elected representatives, now concluding Easter recess in their districts, find Vietnam a concern of low priority among their constituents—a predictable reaction with the fighting men and prisoners all at home. It takes little imagination, however, to foresee the possibility of making new prisoners from among the American airmen now flying their daily death raids over Cambodia. Already at least one flier has been reported killed in a Cambodian mission.

Congressional moves to limit continuation of the war are building up to confront the Administration this week. Though the White House will presumably flourish the time-wornformula of preserving the President's bargaining power just as his national security aide is negotiating in Paris, the first concrete step of legislative opinion will probably arise in the House.

With little public notice, the Defense Department has requested authority to transfer $500 million from other Penagon accounts to pay for these weeks of intensive bombing. Significant opposition to this ostensibly routine request when the House Appropriations Committee meets in the next few days could flash a meaningful signal to the White House that Congress is at last ready to assert its responsibilities in deciding when—and whether—the military force of the United States, are committed in foreign wars.

[c]

APPENDIX D

VIETNAM 1973 - SAMPLING OF CONGRESSIONAL ACTIONS

January 1, 1973 18 House Democrats, in letters to House Speaker Albert and Party Chairman Strauss, urged a national campaign to mobilize opposition to the bombing of North Vietnam.

Senator Brooke announced that he would reintroduce his end-the-war amendment in the form of a bill as soon as Congress reconvenes.

January 2, 1973 House Democratic Caucus adopted a resolution in support of legislation to immediately cut off funds for U.S. combat activities in Indochina, subject only to the safe withdrawal of U.S. troops and the release of POWs.

January 4, 1973 Senate Democratic Caucus voted 36-12 in favor of legislation to cut off all funds for the Indochina War as soon as an agreement could be reached for safe American troop withdrawal and the release of American POWs.

January 10, 1973 Senator Hughes announced that there may be an attempt in the Senate to delay confirmation of President's cabinet nominees as a means of putting pressure to end the war.

May 2, 1973 Senate Democratic Caucus adopted a resolution calling for legislation stopping further use of funds for U.S. military activity in Cambodia. Senator Mathias vowed to introduce legislation to end all military actions over Indochina.

May 3, 1973 House Appropriations Committee rejected an Addabbo amendment to the second FY1973 supplemental appropriations bill to prohibit a DOD transfer of funds from other programs for costs related to the war, which would have prohibited the use of funds for military activities in Southeast Asia, including Cambodia. The vote was 14-31.

2

[L]

<table>
  <tbody>
    <tr>
      <td>May 10, 1973</td>
      <td>House Democratic Caucus agreed to support the Addabbo amendment on the House floor. The vote was 144-22.<br/>House voted in favor of the Addabbo amendment to the second supplemental appropriations bill. The vote was 219-188.<br/>House also adopted Long amendment to the supplemental appropriations bill to specifically prohibit the use of any funds in the bill for support of combat activity in or over Cambodia. The vote was 224-172.<br/>House adopted, by voice vote, a Rarick amendment to the supplemental appropriations bill prohibiting the use of funds for reconstruction aid to North Vietnam.</td>
    </tr>
    <tr>
      <td>May 14-15, 1973</td>
      <td>Senate Appropriations Committee voted unanimously (24-0) in favor of Eagleton amendment (to second supplemental) to cut off all money for US bombing "in, over or from the shores of Cambodia or in Laos."<br/>The Senate committee also voted to prohibit DOD from transferring funds from other departmental programs to finance combat activities in Cambodia or Laos (but approved transfer of $170 million to pay for increased military costs due to devaluation of the dollar and increased military subsistence costs).<br/>The Committee also agreed to incorporate the House passed Rarick amendment prohibiting funds for reconstruction of North Vietnam.<br/>Senate Foreign Relations Committee by a 13 to 3 vote, approved a ban on the use of any present or past government funds to finance any US combat or bombing activities in Indochina. This prohibition was sponsored by Case and Church, attached to a State authorization bill.</td>
    </tr>
    <tr>
      <td>May 17, 1973</td>
      <td>Senate Foreign Relations Committee voted 15 to 0 in favor of war powers legislation restricting the President's ability to wage undeclared war for more than 30 days without Congressional approval. Bill sponsored by</td>
    </tr>
  </tbody>
</table>

[L]

Javits, Eagleton and Stennis. (Senate had passed a similar bill in 1972 which died when the House passed a weaker version. In 1973 a House Foreign Affairs subcommittee passed a stronger measure sponsored by Zablocki, with a 120 - vice 30 - day deadline in the Senate version.)

May 23, 1973
Senate Foreign Relations Committee reported out (16-0) the State Department authorization bill with a Church-Case end-the-war amendment which was broader than the Eagleton amendment to the supplemental (re Cambodia and Laos). Church-Case barred expenditures for all U.S. military operations throughout Indochina without specific Congressional approval. SFRC also attached an amendment prohibiting aid to North Vietnam without specific Congressional approval.

May 29, 1973
Senate ruled by a vote of 55-21 that the Eagleton amendment was germane to the supplemental appropriations bill.

May 31, 1973
Senate voted 63-19 in favor of the Eagleton amendment to the supplemental appropriations bill to cut off all funding for bombing in Cambodia and Laos.

In debate, Senate had rejected a Taft amendment to the bill to permit partial bombing to continue, directed solely against North Vietnamese troops in Cambodia. The vote was 17-63.

Senate also rejected Dole-Helms amendment to postpone implementation of the Eagleton amendment if the President informed Congress that the North Vietnamese were not making a good faith effort to account for American MIAs. The vote was 25-56.

June 7, 1973
House adopted a Rarick amendment to the State Department authorization bill barring the use of any funds for reconstruction aid to North Vietnam. The vote was 44-18.

House Foreign Affairs Committee voted 31 to 4 in favor of war powers legislation. (It would require Congressional approval for continued

4

US bombing in Cambodia). Contained a reporting deadline for the President of 72 hours after US military action and termination within 120 days absent Congressional approval.

June 13, 1973
Day of Hanoi/Washington communique on peace agreement implementation. Press reported that Congressional opponents of bombing in Cambodia would nonetheless continue their efforts to enact legislation cutting off funds for air strikes. Senator Mike Mansfield felt as far as he knew that there was nothing in the joint communique "that changes the situation in Cambodia."

June 14, 1973
Senate voted 67-15 to pass the State Dept. authorization bill with the Church-Case provision. Bill to be sent to conference with the House.

June 19, 1973
House and Senate conferees on the second supplemental appropriations bill agreed to maintain the Eagleton anti-war amendment in the bill.

June 25, 1973
House voted in favor of a funding cutoff, adopting an amendment to the supplemental appropriation bill providing that the House accept the Eagleton amendment. The vote was 235-172.

The Administration failed in a tie vote to delay the effective date of the fund cutoff until September 1. The vote was 204-204.

House agreed to the conference report on the supplemental appropriations bill with the Eagleton cutoff provision.

June 26, 1973
Senate also adopted conference report on supplemental appropriation bill with the Eagleton provision, 81-11.

House attached to a continuing funding resolution a Long amendment prohibiting use of funds for combat activities in Cambodia and Laos, by a margin of 240 to 172. In debate, Mahon amendment to defer cutoff date until September 1 failed.

5

June 27, 1973 President vetoed supplemental appropriation bill because of its Cambodia rider. While it mustered its largest anti-war vote yet - 241 to 173 - the House fell 35 votes short of the two-thirds needed to override. The Senate promptly reacted by voting 67-29 to attach a bombing ban amendment to another bill on the national debt ceiling.

June 28, 1973 House Appropriations Committee reported a new supplemental appropriations bill containing compromise language. While adding North and South Vietnam to Cambodia and Laos, the effective date of cutoff would be put off to August 15, 1973.

Senate Appropriations Committee voted (9-8) a Continuing Resolution with an amendment providing for an immediate cutoff of all funds for combat activities in North or South Vietnam, Laos or Cambodia. (Case-Church)

June 29, 1973 House compromise anti-war language for supplemental appropriations bill - with August 15, 1973 deadline won support of the Senate Foreign Relations Committee, 15-2, to be added to Continuing Resolution. Fulbright presented compromise language to Senate. After debate, Senate passed the House-approved language 64 to 26. Also that day, Senate passed an amendment barring funds for reconstruction aid for North Vietnam without specific congressional authorization.

June 30, 1973 Conferees on the Continuing Resolution agreed to delete reference in the bill barring the use of future appropriated funds with respect to activities in SE Asia.

July 1, 1973 President signed the supplemental appropriation bill and Continuing Resolution with compromise language (August 15 deadline); statement released by White House (San Clemente).

July 15, 1973 Senators returning from holiday visits reported firmly resistant to any consideration of extending August 15 bombing deadline; President would face certain defeat.

July 18, 1973 Full House passed war powers legislation

6

approved in June by House Foreign Affairs Committee, despite threat of Presidential veto. Vote was 244 - 170. Senate also began debate on a war powers measure of its own.

**July 20, 1973** Senate voted 72 to 18 in favor of its own version of war powers legislation, with 30 day deadline. This measure to go to a Senate-House conference to resolve differences between the two versions.

**July 26, 1973** House rejected an Abzug amendment to the foreign aid authorization bill to reduce military assistance grants for Indo-China from $550 million to $450 million (aimed at deleting assistance to Cambodia). Voice vote.

House rejected an Abzug amendment to the foreign aid authorization bill to bar grant aid to Cambodia. The vote was 26-105.

House adopted a Biaggi amendment to that portion of the same bill barring materials or commodities to North Vietnam unless it was deemed in the national interest; Biaggi added requirement that there be assurances that North Vietnam was cooperating in accounting for remaining POWs and MIAs. (58-8)

House adopted a Rarick amendment to bar the use of funds for reconstruction aid to North Vietnam unless specifically authorized by Congress. Voice vote.

**September 10, 1973** Senate Foreign Relations Committee reported (10-0) a foreign aid authorization bill with a McGovern-Hatfield amendment providing for an immediate cut-off of funds for activities, both military and paramilitary, in Indochina and requiring specific congressional approval of any renewal of U.S. involvement in the war. The bill also contained a Case amendment barring U.S. funding or support of military or paramilitary activities by third country military personnel in Laos, Thailand, Cambodia and North or South Vietnam, unless specifically authorized by Congress.

**September 21, 1973** Senate adopted without dissent a Case-Church amendment to the DOD procurement authorization

[L.C]

7

bill to prohibit the use of any funds in the bill for combat activities in Indochina unless authorized by Congress.

**October 4, 1973**
Follow-up to action in the House on July 18 and Senate on July 20 on war powers legislation, House-Senate conferees filed a conference report on war powers legislation with a 60 day deadline (and 30 days extension to protect US forces). The bill was steered through conference by Javits and Zablocki.

**October 10, 1973**
After two House-Senate conferences on State authorization bill, Congress cleared bill which included, among other provisions, the requirement for Congressional authorization effective August 15, 1973, of any funds "heretofore or hereafter appropriated" to finance involvement of U.S. military forces in hostilities in, over or from off the shores of North and South Vietnam, Laos or Cambodia; barred use of any funds "heretofore or hereafter appropriated" for aid to North Vietnam unless specifically authorized by Congress.

Senate voted 75 to 20 in favor of the compromise war powers legislation worked out in the previous week's conference.

**October 12, 1973**
House voted 238 to 123 in favor of compromise war powers legislation.

**October 24, 1973**
President vetoed war powers legislation.

**November 7, 1973**
House overrode the Presidential veto of the war powers legislation, 284-135, four votes more than the two thirds majority needed to override.

Four hours later, the Senate completed the process with a 75-18 vote to override, or a 13 vote margin over the two-thirds needed.

**December 14, 1973**
Senate adopted (60 to 33) an amendment proposed by Sen. Cotton to cut off funds for Pentagon fuel shipments to Indochina. This symbolic protest was added to the $73 billion DOD

UNITED STATES OF AMERICA

Congress of the United States

Notice of
Senate Deposition

To Dr. Henry Kissinger

1800 K Street, NW

Washington, DC 20006

Greeting:

Please take notice that at 8:00 o'clock a. September 14, 92, at S-407 the Capitol, Wash., DC of the staff of the Select committee on POW/MIA Affairs of the Senate of the United States, will

take your deposition on oral examination concerning what you may know relative to the subject matters under consideration by said Select committee. The deposition will be taken before a notary public, or before some other officer authorized by local law to administer oaths; it will, be taken pursuant to the Select committee's rules, a copy of which are attached.

Given under my hand, by authority vested in me by the Select committee, on September 11, 1992.

John F. Kerry, Chairman
Select Committee on POW/MIA Affairs

GPO: 1992 52-647 (m)

1 shall consist of 12 members, 6 to be appointed by the

2 President pro tempore of the Senate upon recommenda-

3 tions of the Majority Leader from among members of the

4 majority party, and 6 to be appointed by the President

5 pro tempore of the Senate upon recommendations of the

6 Minority Leader from among members of the minority

7 party.

8 (b) The Majority Leader shall select the chairman of

9 the select committee.

10 (c) The Minority Leader shall select the vice chair-

11 man of the select committee.

12 (d) The service of a Senator as a member or chair-

13 man on the select committee shall not count for purposes

14 of paragraph 4 of rule XXV of the Standing Rules of the

15 Senate.

16 (e) A majority of the members of the select committee

17 shall constitute a quorum thereof for the transaction of

18 business, except that the select committee may fix a lesser

19 number as a quorum for the purpose of taking testimony.

20 The select committee shall adopt rules of procedure not

21 inconsistent with this resolution and the rules of the Sen-

22 ate governing standing committees of the Senate.

23 (f) Vacancies in the membership of the select commit-

24 tee shall not affect the authority of the remaining mem-

25 bers to execute the functions of the select committee.

107 ATS 82

1 SEC. 2. (a) There shall be referred to the select com-

2 mittee, concurrently with referral to any other committee

3 of the Senate with jurisdiction, all messages, petitions, me-

4 morials, and other matters relating to United States per-

5 sonnel unaccounted for from military conflicts.

6 (b) Nothing in this resolution shall be construed as

7 prohibiting or otherwise restricting the authority of any

8 other committee of the Senate or as amending, limiting,

9 or otherwise changing the authority of any standing com-

10 mittee of the Senate.

11 SEC. 3. The select committee may, for the purposes

12 of accountability to the Senate, make such reports to the

13 Senate with respect to matters within its jurisdiction as

14 it shall deem advisable which shall be referred to the ap-

15 propriate committee. In making such reports, the select

16 committee shall proceed in a manner consistent with the

17 requirements of national security.

18 SEC. 4. (a) For the purposes of this resolution, the

19 select committee is authorized at its discretion (1) to make

20 investigations into any matter within its jurisdiction, (2)

21 to hold hearings, (3) to sit and act at any time or place

22 during the sessions (subject to paragraph 5 of rule XXVI

23 of the Standing Rules of the Senate), recesses, and ad-

24 journed periods of the Senate, (4) to require, by subpoena

25 or otherwise, the attendance of witnesses and the produc-

[c]

SRES 82.ATS

1 tion of correspondence, books, papers, and documents, (5)

2 to make expenditures from the contingent fund of the Senate

3 ate to carry out its functions and to employ personnel,

4 subject to procedures of paragraph (9) of rule XXVI of

5 the Standing Rules of the Senate, and (6) with the prior

6 consent of the Government department or agency concerned

7 and the Committee on Rules and Administration,

8 to use on a reimbursable, or nonreimbursable basis the

9 services of personnel of any such department or agency.

10 (b) The chairman of the select committee or any member thereof may administer oaths to witnesses.

12 (c) Subpoenas authorized by a majority of the select committee shall be issued over the signature of the chairman and may be served by any person designated by the chairman.

16 SEC. 5. (a) No employee of the select committee or person engaged to perform services for or at the request of such committee shall be given access to any classified information by such committee unless such employee or person has (1) agreed in writing and under oath to be bound by the rules of the Senate and of such committee as to the security of such information during and after the period of his employment or relationship with such committee; and (2) received an appropriate security clearance as determined by such committee in consultation with

SRES 82 ATS

1 the Director of Central Intelligence. The type of security

2 clearance to be required in the case of any such employee

3 or person shall, within the determination of such committee

4 in consultation with the Director of Central Intelligence,

5 be commensurate with the sensitivity of the classified information to which such employee or person will be

6 given access by such committee.

7 (b) The select committee shall designate a security officer qualified to administer appropriate security procedures to ensure the protection of confidential and classified information in the possession of the select committee

9

10 fied information in the possession of the select committee

12 and shall make suitable arrangements, in consultation

13 with the Office of Senate Security, for the physical protection and storage of classified information in its possession.

14

15 SEC. 6. (a) The select committee shall formulate and carry out such rules and procedures as it deems necessary to prevent the disclosure, without the consent of the person or persons concerned, of information in the possession of such committee which unduly infringes upon the privacy of which violates the constitutional rights of such person or persons.

22 (b) Nothing in this resolution shall be construed to prevent the select committee from publicly disclosing any such information in any case in which such committee determines the national interest in the disclosure of such in-

SRES 82 ATS

6

1. formation clearly outweighs any infringement on the pri-

2. vacy of any person or persons.

3. SEC. 7. The select committee is authorized to permit

4. any personal representative of the President, designated

5. by the President to serve as a liaison to such committee,

6. to attend any closed meeting of such committee.

7. SEC. 8. Paragraph 3(c) of rule XXV of the Standing

8. Rules of the Senate is amended by adding at the end

9. thereof the following:

"POW/MIA Affairs .................................................. 12".

10. SEC. 9. The select committee shall terminate at the

11. end of the One Hundred Second Congress. Upon termina-

12. tion of the select committee, all records, files, documents,

13. and other materials in the possession, custody, or control

14. of the select committee, under appropriate conditions es-

15. tablished by the select committee, shall be transferred to

16. the Secretary of the Senate.

SRES 82 ATS

111

[x]

102D CONGRESS
1ST SESSION

S. RES. 185

To provide for expenses and supplemental authority of Select Committee on POW/MIA Affairs.

## IN THE SENATE OF THE UNITED STATES

SEPTEMBER 26 (legislative day, SEPTEMBER 19), 1991

Mr. KERRY (from the Select Committee on POW/MIA Affairs) reported the following original resolution; which was referred to the Committee on Rules and Administration

OCTOBER 3 (legislative day, SEPTEMBER 19), 1991

Reported by Mr. FORD, with an amendment

[Strike out all after "Resolved," and insert the part printed in italic]

OCTOBER 16 (legislative day, SEPTEMBER 19), 1991

Considered, amended, and agreed to

## RESOLUTION

1. Resolved, That (a) in carrying out its powers, duties,

2. and functions under Senate Resolution 82, agreed to August 2, 1991 (102nd Congress, 1st Session), and under

3. this resolution, from August 2, 1991 through February

4. 29, 1992, and from March 1, 1992 until the end of the

5. One Hundred Second Congress, through January 2, 1993,

6.

1 the Select Committee on POW/MIA Affairs (referred to

2 in this resolution as the "select committee") is authorized

3 in its discretion to—

4 (1) make expenditures from the contingent fund
5 of the Senate; and

6 (2) appoint and fix compensation of personnel.

7 (b)(1) The expenses of the select committee for the
8 period from August 2, 1991, through February 29, 1992,
9 shall not exceed $540,300 of which amount not to exceed
10 $53,000 may be expended for the procurement of the serv-
11 ices of individual consultants, or organizations thereof, as
12 authorized by section 202(i) of the Legislative Reorganiza-
13 tion Act of 1946 (2 U.S.C. 72a(i)).

14 (2) The expenses of the select committee for the pe-
15 riod from March 1, 1992 through January 2, 1993, shall
16 not exceed $1,360,200 of which amount not to exceed
17 $160,000 may be expended for the procurement of the
18 services of individual consultants, or organizations thereof,
19 as authorized by section 202(i) of the Legislative Reorga-
20 nization Act of 1946 (2 U.S.C. 72a(i)).

21 (c) Expenditures from the contingent fund shall be
22 paid out of the appropriations account for Expenses of In-
23 quires and Investigations upon vouchers approved by the
24 chairman, except that vouchers shall not be required for—

1 (1) the disbursement of salaries of employees
2 who are paid at an annual rate;

3 (2) the payment of expenses for telecommuni-
cations services provided by the Telecommunications
Department, Sergeant at Arms, United States Sen-
ate;

7 (3) the payment of expenses for stationery sup-
8 plies purchased through the Keeper of the Station-
9 ery, United States Senate;

10 (4) the payment of expenses for postage to the
11 Postmaster, United States Senate; or

12 (5) the payment of metered charges on copying
equipment provided by the Sergeant at Arms, Unit-
ed States Senate.

15 (d) There are authorized such sums as may be nec-
16 essary for agency contributions related to the com-
17 pensation of employees of the select committee to be paid
18 from the appropriations account for Expenses of Inquiries
19 and Investigations, in like manner as for the standing and
20 permanent select committees of the Senate.

21 (e) Of the funds authorized by this resolution for the
22 funding period ending on the last day of February 1992,
23 any unexpended balance remaining after such last day
24 shall be transferred to a special reserve for this committee,
25 which reserve shall be available to this committee for the

•SRES 185 AT8

•SRES 185 AT8

1 period commencing March 1, 1992, and ending with the
2 close of September 30, 1992, for the purpose of—

3 (1) meeting any unpaid obligations incurred
during the funding period ending on the last day of
February 1992; and

6 (2) meeting expenses of such committee in-
curred after such last day and prior to the close
of September 30, 1992.

9 SEC. 2. (a) In addition to all powers, duties, and
10 functions vested in the Select Committee of POW/MIA Af-
fairs by Senate Resolution 82, agreed to August 2, 1991
11 (102nd Congress, 1st Session), the select committee is au-
thorized to do the following:
12
13

14 (1) To delegate to the chairman the power, with
the consent of the vice chairman, to authorize sub-
poenas for the attendance of witnesses and the pro-
duction of correspondence, books, papers, docu-
ments, and other records.

19 (2) To (A) authorize staff to conduct deposi-
tions of witnesses under oath, including oaths ad-
ministered by individuals authorized by local law to
administer oaths, for the purpose of taking testi-
mony and receiving correspondence, books, papers,
documents, and other records, and (B) require, by
subpoena or order, the attendance of witnesses and

•SRES 185 AT5

1 the production of correspondence, books, papers,
documents, and other records at such staff deposi-
tions.

4 (3) To make to the Senate any rec-
ommendations by report or resolution, including rec-
ommendations for criminal or civil enforcement,
which the select committee may consider appropriate
with respect to (A) the failure or refusal of any per-
son to appear at a hearing or deposition or to
produce records, in obedience to a subpoena or
order, or (B) the failure or refusal of any person to
answer questions during his or her appearance as
a witness at a hearing or deposition.

14 (4) To procure the temporary or intermittent
services of individual consultants, or organizations
thereof, in the same manner and under the same
conditions as a standing committee of the Senate
may procure such services under section 202(i) of
the Legislative Reorganization Act of 1946 (2
U.S.C. 72a(i)).

21 - (5) To (A) use, with the prior consent of the
chairman of any other Senate committee or the
chairman of any subcommittee of any committee of
the Senate, the facilities of any other Senate com-
mittees or the services of any members of the staff

•SRES 185 AT5

12

1 of them whenever the select committee or its chairman considers that such action is necessary or appropriate to enable the select committee to carry out its powers, duties, and functions, and (B) pay the official travel expenses for staff members of other committees used pursuant to this resolution.

2

3

4

5

6

7

8

9

10 179, agreed to May 25, 1977 (95th Congress, 1st Session).

11

12

13 may each select one investigator to serve on the staff of

14 the select committee.

15

16 shall serve as ex officio members of the select committee

17 but shall have no vote in the select committee and shall

18 not be counted for purposes of determining a quorum.

19

20 obtained by the select committee either directly from the

21 Executive branch of the United States Government,

22 through the Select Committee on Intelligence, or by other

23 means, shall be governed by the provisions of section 8

24 of Senate Resolution 400, agreed to May 19, 1976 (94th

25 Congress, 2nd Session), except that references to the Se-

-SRES 185 AT5

13

1 lect Committee on Intelligence in such section shall be

2 deemed to be references to the select committee.

14

## RULES OF PROCEDURE OF THE SENATE SELECT COMMITTEE ON POW/MIA AFFAIRS

### RULE 1. CONVENING OF MEETINGS AND HEARINGS

1.1 *Definitions.* As used in these rules, the term "meeting" includes a meeting to conduct a hearing. The term "hearing" is used to describe any meeting of the committee for the purpose of receiving testimony.

1.2 *Calling of Meetings.* The committee shall meet at the call of the chairman. The members of the committee may call special meetings as provided in Senate Rule XXVI(3).

1.3 *Notice of Hearings.* The committee shall publicly announce the date, place, and subject matter of any hearing at least one week before its commencement. A hearing may be called on shorter notice if the chairman, after consultation with the vice chairman, determines that there is good cause to begin it at an earlier date.

1.4 *Presiding Officer.* The chairman shall preside when present. If the chairman is not present at any meeting, the vice chairman shall preside. The chairman may designate any member of the committee to preside in the absence of the chairman or vice chairman.

### RULE 2. OPEN AND CLOSED SESSIONS AND MEDIA

2.1 *Procedure.* All meetings shall be open to the public unless closed. To close all or part of a meeting, or a series of meetings for a period of no more than 14 days, the committee shall vote in open session by a record vote, including proxy votes, of a majority of the members of the committee. If discussion is necessary, a motion shall be made and seconded to go into closed session to discuss whether the meeting will concern the matters enumerated in Rule 2.2. Immediately after such discussion the committee shall return to open session and the meeting may then be closed by a record vote.

2.2 *Closed Session Subjects.* A meeting may be closed if the matters to be discussed concern: (1) national security or the confidential conduct of foreign relations; (2) committee staff personnel or internal staff management or procedure; (3) matters tending to reflect adversely on the character or reputation, or to invade the privacy, of any individuals; (4) matters that will disclose the identity of any informer or undercover law enforcement agent or will disclose any information relating to the investigation or prosecution of a criminal offense that is required to be kept secret in the interests of effective law enforcement; or (5) other matters enumerated in Senate Rule XXVI(5)(b).

2.3 *Representative of the President.* The presiding officer at any closed meeting or hearing may permit any personal representative of the President, designated by the President to serve as a liaison to the committee, to attend the closed meeting.

2.4 *Witness Request.* Any witness may submit to the chairman, no later than 24 hours in advance of a hearing, a written request that he or she be examined in closed or open session. The chairman

15

shall inform the committee of the request, and the committee shall take such action pursuant to Rule 2.1 as it deems appropriate.

2.5 *Media.* Any meeting open to the public may be covered by television, radio, or still photography. Coverage must be conducted in an orderly and unobtrusive manner. The presiding officer, in exercising his or her responsibility for the conduct of meetings, may order that the use of cameras, microphones, and lights adhere to standards which the select committee deems appropriate, taking into account the concerns of any witness. For good cause the presiding officer may terminate coverage in whole or in part or take other action to promote orderly proceedings or for the protection of witnesses.

### RULE 3. QUORUMS AND VOTING

3.1 *In General.* A majority of members of the committees shall constitute a quorum for reporting to the Senate and for the transaction of other business.

3.2 *Testimony.* One member shall constitute a quorum for taking testimony.

3.3 *Proxies.* Proxies shall be in writing, and shall be filed with the chief clerk by the absent member or by a member present at the meeting. Proxies shall contain sufficient reference to the pending matter to show that the absent member has been informed of it and has affirmatively requested that he or she be recorded as voting on it. Proxies shall not be counted towards a quorum.

3.4 *Polling.*

(a) *Subjects.* The committee may poll only (1) internal committee matters including the committee's staff, records, and budget; (2) authorization for steps in any investigation within its jurisdiction, including the authorization and issuance of subpoenas, applications for immunity orders, and requests for documents; (3) other committee business, not including a vote on reporting to the Senate, that the committee at a meeting has designated for polling at a subsequent time.

(b) *Procedure.* At the direction of the committee or the chairman, the chief clerk shall distribute a polling form to each member specifying the matter being polled and the time limit for completion of the poll. If any member so requests, the matter shall be held for consideration at a meeting. If the chairman, with the approval of a majority of the members, determines that the polled matter is in one of the areas enumerated in Rule 2.2, the record of the poll shall be confidential. The chief clerk shall keep a record of polls, and shall notify the members of the committee of the results of each poll. In order for a proposition to be approved by poll, a majority of the members of the committee must have responded to the poll and a majority of those responding must have voted in the affirmative.

### RULE 4. SUBPOENAS

4.1 *Authorization.* Subpoenas shall be authorized either by a majority of the committee or by the chairman with the consent of the vice chairman, and shall be issued by the chairman. Subpoenas

10

may be served by any person designated by the chairman. The chief clerk shall keep a log, and a file, of all subpoenas.

4.2 *Return.* A subpoena duces tecum or order for records may be issued whose return shall occur at a time and place other than at a meeting. When a return on such a subpoena or order is incomplete or accompanied by an objection, the chairman, after consultation with the vice chairman, may convene a meeting, including a hearing on shortened notice, to determine the adequacy of the return and to rule on the objection, or may refer the issues raised by the return for decision by poll of the committee. At a hearing on such a return one member shall constitute a quorum.

### RULE 5. HEARINGS

5.1 *Notice.* Witnesses shall be given at least 48 hours notice, unless the chairman, after consultation with the vice chairman, determines that extraordinary circumstances warrant shorter notice, and all witnesses shall be furnished with copies of Senate Resolution 82 (102d Congress, 1st Session), Senate Resolution 185 (102d Congress, 1st Session), and these rules.

5.2 *Oath.* All witnesses who testify to matters of fact shall be sworn unless the committee authorizes waiver of an oath. Any member of the committee may administer oaths to witnesses.

5.3 *Statement.* Any witness desiring to make an introductory statement shall file 40 copies of the statement with the chairman or chief clerk 48 hours in advance of the appearance unless the chairman determines that there is good cause to modify either of these requirements. A witness may be required to summarize a prepared statement if it exceeds ten minutes. Unless the committee determines otherwise, a witness who appears before the committee under a grant of immunity shall not be permitted to make an introductory or other statement and may be required to testify only in response to questions posed directly by committee members or committee staff.

5.4 *Counsel.*

(a) *Presence.* A witness' counsel shall be permitted to be present during the witness' testimony at any open hearing, closed hearing, or deposition, or at any staff interview of the witness, to advise the witness of his or her rights; provided, however, that in the case of any witness who is an officer or employee of the government, or of a corporation or association, the chairman or the committee may rule that representation by counsel from the government, corporation, or association or by counsel representing other witnesses, creates a conflict of interest, and that the witness shall be represented by personal counsel not from the government, corporation, or association or not representing other witnesses.

(b) *Inability To Obtain Counsel.* A witness who is unable for indigence or other reason to obtain counsel shall inform the committee at least 48 hours prior to the witness' appearance, and the committee will endeavor to obtain volunteer counsel for the witness. Failure to obtain counsel will not excuse the witness from appearing and testifying.

(c) *Conduct.* Counsel shall behave in an ethical and professional manner. Failure to do so shall, upon a finding to that effect by a

majority of the members present, subject counsel to disciplinary action, which may include warning, censure, or ejection.

5.5 *Transcript.* An accurate electronic or stenographic record shall be kept of all testimony in open and closed hearings. At a witness' request and expense, access to a copy of the transcription of a witness' testimony in open or closed session shall be provided to the witness. Upon inspecting the transcript, within a time limit set by the chief clerk, a witness may in writing request changes in the transcript to correct errors of transcription. A witness may also request that specified grammatical errors and obvious errors of fact be corrected for the purpose of any printed record of the witness' testimony. The chairman or a staff officer designated by the chairman shall rule on such requests.

5.6 *Impugned Persons.* Any person who believes that evidence presented, or comment made by a member or staff, at a public hearing or at a closed hearing concerning which there have been public reports, tends to impugn his or her character or adversely affect his or her reputation may:

(a) file a sworn statement of facts relevant to the evidence or comment, which shall be placed in the hearing record;

(b) request the opportunity to appear personally before the committee to testify in his or her own behalf; or

(c) request that submitted written questions be used for the cross-examination of witnesses called by the committee. The chairman shall inform the committee of requests for appearance or cross-examination. If the committee so decides, the requested questions, or paraphrased versions or portions of them, shall be put to the other witnesses by a member or by staff.

5.7 *Additional Witnesses.* Any four members of the committee shall be entitled, upon a timely request made to the chairman, to call additional witnesses or to require the production of documents during at least one day of hearing.

5.8 *Objections.* The presiding officer shall rule on any objections at a hearing, which ruling shall be the ruling of the committee unless a majority of the committee disagrees with the ruling. In the case of a tie, the vote of the chairman shall prevail.

### RULE 6. DEPOSITIONS, EXAMINATION OF RECORDS, AND INTERROGATORIES

6.1 *Authorization for Depositions.* The chairman and the vice chairman, acting jointly, may authorize the taking of a deposition. The authorization shall specify a time and place for examination, and the name of the staff member or members who will take the deposition. Unless otherwise specified, the deposition shall be in private. The committee shall not initiate procedures leading to criminal or civil enforcement proceedings for a witness' failure to appear unless any notice of the deposition was accompanied by a subpoena authorized by the committee.

6.2 *Counsel at Depositions.* Witnesses may be accompanied at a deposition by counsel to advise them of their rights, subject to the provisions of Rule 5.4.

6.3 *Deposition Procedures.* Witnesses at depositions shall be examined upon oath administered by a committee member or an in-

18

dividual authorized by local law to administer oaths. Questions shall be propounded orally by staff members. Objections by the witness as to the form of questions shall be noted for the record. If a witness objects to a question and refuses to testify on the basis of relevance or privilege, the committee staff may proceed with the deposition, or may, at that time or at a subsequent time, seek a ruling by telephone or otherwise on the objection. The ruling may be sought from the chairman of the committee or, in the absence of the chairman, from the vice chairman, or, in the absence of both the chairman and the vice chairman, from any member designated by the chairman. The member from whom the ruling is sought may rule on the objection, and order the witness to answer the question if the objection is overruled, or may refer the matter to the committee for ruling. The committee shall not initiate procedures leading to civil or criminal enforcement unless the witness refuses to testify after having been ordered to answer.

### 6.4 *Deposition Transcripts.* An accurate electronic or stenographic record shall be kept of all testimony at depositions. If a transcript is prepared, the witness shall be furnished with a copy, or access to a copy, for review. No later than five days thereafter, if a copy is provided, the witness shall return it with his or her signature, and the staff may enter or append to the transcript the changes, if any, requested by the witness in accordance with the procedures established by Rule 5.5. If the witness fails to return a signed copy the staff shall note on the transcript the date a copy was provided and the failure to return it. The individual administering the oath shall certify on the transcript that the witness was duly sworn in his or her presence, the transcriber shall certify that the transcript is a true record of the testimony, and the transcript shall then be filed with the chief clerk. Committee staff may stipulate with the witness to changes in this procedure. Objections to errors in this procedure that might be cured if promptly presented are waived unless timely objection is made.

### 6.5 *Examination of Records.* The committee or the chairman and vice chairman, acting jointly, may authorize the staff to inspect locations or systems of records on behalf of the committee.

### 6.6 *Written Interrogatories.* Written interrogatories may be authorized by the committee or the chairman and vice chairman, acting jointly, and issued by the chairman, or, in the absence of the chairman, by the vice chairman, or, in the absence of both the chairman and the vice chairman, by any member designated by the chairman, and shall specify a date for filing an answer with the chief clerk. Written interrogatories shall be answered under oath.

## RULE 7. PROCEDURES FOR HANDLING OF CONFIDENTIAL OR CLASSIFIED MATERIALS

### 7.1 *Security.* Committee offices shall operate under strict security precautions. The chairman or vice chairman may request the Senate Sergeant at Arms and the Office of Senate Security to provide assistance necessary to ensure strict security.

### 7.2 *Confidential or Classified Materials.* Confidential or classified materials shall be segregated in a secure storage area under the supervision of the committee's security officer. The committee shall

adopt security regulations, in consultation with the Office of Senate Security, governing the handling of confidential or classified materials. The chairman may enter into agreements to obtain materials and information under assurances concerning confidentiality. Each member of the committee shall be notified of such agreements.

### 7.3 *Privacy Interests.* Before disclosing publicly information that could adversely affect the privacy or other legitimate interests of any person, the committee shall carefully consider that person's interests, but the committee may disclose publicly any information for which it determines that the national interest in disclosure outweighs the privacy or other interests of the persons concerned.

### 7.4 *Access.* Staff access to classified materials shall be limited to staff members with appropriate security clearances and a need to know, as determined by the chairman and vice chairman, in consultation with the Director of Central Intelligence. The committee shall adopt internal guidelines governing staff access to particular categories of classified materials, which shall be applied by the chairman and vice chairman. Staff access to confidential materials may be limited by the chairman and vice chairman.

### 7.5 *Nondisclosure.* No member of the committee or its staff shall disclose, in whole or in part or by way of summary, to any person outside the committee and its staff, for any purpose or in connection with any proceeding, judicial or otherwise, any testimony taken, including the names of witnesses testifying, or material presented, in closed hearings, or any confidential materials or information, including the results of the committee's investigation and any proposed or otherwise non-public conclusions of the committee, unless authorized by the committee or the chairman.

### 7.6 *Nondisclosure Agreement.* All members of the committee staff shall agree in writing, as a condition of employment or agreement for the provision of services, to abide by the conditions of the nondisclosure agreement promulgated by the committee pursuant to section 5(a)(1) of Senate Resolution 82.

### 7.7 *Violations.* Allegations concerning unauthorized disclosure may be addressed by the committee or may be referred by a majority vote of the committee to the Select Committee on Ethics in accordance with section 8 of Senate Resolution 400 (94th Congress, 2d Session), as made applicable to this committee by Senate Resolution 185. Any member of the staff who fails to conform to the provisions of Rule 7 shall be subject to disciplinary sanction, including termination of employment or agreement for the provision of services.

### 7.8 *Applicability of Rules.* For purposes of Rule 7, committee staff include the employees of the committee, staff designated by the members, with the approval of the chairman, to work on committee business, other officers and employees of the Senate who are requested by the chairman to work on committee business, and deantailees and consultants to the committee, including any person engaged to perform services for or at the request of the committee.

15

1C

ZU

## RULE 8. DETAILEES, CONSULTANTS, AND ASSISTANCE OF OTHER COMMITTEES

8.1 *Detailees and Consultants.* The chairman and vice chairman, acting jointly, shall have authority to use on a reimbursable or nonreimbursable basis, with the prior consent of the Committee on Rules and Administration, the services of personnel of any department or agency of the United States and shall have authority to procure the temporary or intermittent services of individual consultants or organizations.

8.2 *Assistance of Other Committees.* The chairman and vice chairman, acting jointly, may request the chairman of any Senate committee or subcommittee for consent to utilize the facilities of any such committee or the services of any members of its staff for the purpose of enabling this committee to perform its responsibilities under Senate Resolution 82 and Senate Resolution 185.

8.3 *Scope of Authority.* Detailees, consultants, and staff of other committees who provide services to the committee pursuant to Rule 8 shall be deemed to be staff of the committee for all purposes under these rules.

## RULE 9. FOREIGN TRAVEL

No member of the committee or its staff shall travel abroad on committee business unless specifically authorized by the President pro tempore, Majority Leader, or Minority Leader of the Senate, in accordance with Senate Resolution 179 (95th Congress, 1st Session). All requests for authorization of such travel shall first be presented to the chairman and vice chairman for approval and shall state the extent, nature, and purpose of the proposed travel. When the foreign travel of a member of the staff not accompanying a member of the committee has been authorized, all members of the committee shall be advised, prior to the commencement of such travel, of its extent, nature, and purpose.

## RULE 10. EFFECTIVENESS OF RULES AND RULE CHANGES

These rules shall become effective upon publication in the Congressional Record. These rules may be modified, amended, or re-pealed by the committee, provided that all members are present or provided proxies or if a notice in writing of the proposed changes has been given to each member at least 48 hours prior to the meeting at which action thereon is to be taken. The changes shall become effective immediately upon publication of the changed rule or rules in the Congressional Record.

O