Breaking the Silence Barrier: II

Friday's editorial gave the reasons why compulsory testimony coupled with immunity grants will help to determine more quickly the extent of the communist problem in the United States, and thus lead to a clear distinction between liberal and communist beliefs. Any law which requires this testimony, however, must assure the witness all the rights which he forfeits by testifying. The Fifth Amendment provides that no witness in a criminal case can be forced to testify against himself. This the courts have construed to mean that no witness before a Congressional committee must give an answer which may tend to incriminate him. In such investigations, therefore, the immunity must protect the witness to the same extent as the privilege against self-incrimination itself.

The Senate has passed a bill, Senate 16, designed to fulfill these requirements. Under its terms, committees could, by a majority vote, grant certain witnesses immunity from prosecution by federal agents for what they are compelled to say. In addition, it would cover non-judicial, but equally onerous, penalties like denial of a passport or loss of a government job on the basis of Congressional testimony. The bill does have two serious shortcomings, however.

First, it does not extend immunity to state courts. This omission cuts the protection, as it would permit state attorneys to use Congressional finding in state prosecutions. In the Kefauver investigation, these attorneys were there intending to glean evidence for state courts, and forced witnesses to invoke the self-incrimination privilege. When a man can refuse to give evidence against himself under the Fifth Amendment, he is assured that his silence will protect him from both federal and state prosecution. Before the bill takes its final form, then, immunity must cover state as well as federal judicial bodies.

The second failure of the Senate bill is that it gives the committee, not the law enforcing agencies, the final decision on who will receive immunity. With this blanket protection, a man granted immunity could throw any confession from tax evasion to murder into his testimony and free himself from prosecution by so doing. In the late nineteenth century, under the first compulsory testimony act, such "immunity baths" were common and often saved witnesses from charges being prepared by government attorneys. The Attorney General, who handles these cases, then, is a far better judge of immunity grants than the committee, and should deny immunity grants when he sees fit.

A bill like Senate 16 deserves support on its own merits. But it is even more vital-now, when many state legislatures are considering bills limiting the protection of the Fifth Amendment. Abuses of this amendment, like shielding friends or using silence to be doubly safe have clouded its necessity and constantly increase demands for its repeal. If these abuses are not checked, repeal may well follow. And forced testimony traded for immunity is far better than forced testimony alone.