They were proceeding peacefully with an unsegregated school, as is the case, of course, in overwhelming areas of our country. Then outside individuals came in and, as the court record shows, threatened the superintendent and the members of the school board with violence, and threatened some of the parents with violence, in case the unsegregated school proceeded.

In that case the school superintendent and the members of the board filed a suit in the Federal district court seeking to restrain the defendants from interfering with the operation of the school in the district on an unsegregated basis.

An injunction was issued and on the appeal the Department of Justice came in as a friend of the court and filed a brief in support of the plaintiffs. The court of appeals upheld the district court and the school is now back on an unsegregated basis with everything proceeding peacefully.

The school board in the Hoxie case was courageous and forthright in taking the case into court. There may well develop other situations in which, after voluntary desegration, the pressures placed upon the local school authorities are so great as to prevent their taking the initiative in instituting legal action.

In this type of situation the Department under this legislation would be authorized to take the initiative in filing a suit for an injunction against any individuals seeking to interfere with the school authorities in their attempt to comply with the ruling of the Supreme Court.

There is another area related to the school segregation issue in which the Department has been involved and may be involved in future cases-but for reasons unrelated to the legislative proposals now before you.

But to anticipate any questions on the subject, I would like to discuss it briefly at this point. That is the Clinton, Tenn., situation, the Federal district judge after much litigation entering an order in a civil suit brought by private individuals ordering the school officials to admit Negro students. This order became final and the school officials admitted the Negro children.

Thereafter, various private individuals songht by threats of force to compel the school authorities to violate the court order and exclude the Negro children.

In this situation, the school authorities appealed to the Federal judge and he issued an order charging a number of private individuals with contempt of court. Trial of this action is now pending. The Department, through the local United States attorney, will handle the prosecution in which it will be determined if the acts charged actually constituted contempt.

I wish to say to you at this time that the court in the Clinton situation already had full power to proceed and that the pending legislation will have no bearing on such cases. I want also to say to you that the problem of the Clinton case extends beyond civil-rights cases into all areas of Federal law enforcement.

Ours is a government of laws. The remedy for disagreement with an order of the Federal district court is an appeal, not resistance. Once such an order becomes final the Federal Government must have authority to protect persons acting pursuant to the order from outside interference. This protective power has long been recognized

and must exist if Federal law is to be made effective, if private individuals are not to be permited to make a mockery of Federal courts. In concluding my presentation of the reasons why we urge the Congress to provide the Government with civil remedies in civil-rights cases, I should like to make three general observations. First, we are not asking for new and untried powers. The use of civil remedies as a means of enforcing Federal rights is not uncommon and exists in a number of areas.

For over 60 years, as a matter of fact, the Department of Justice itself has had experience in the coordinated use of civil and criminal remedies in the antitrust field. Ever since its adoption the Sherman Act has provided that the district courts should have jurisdiction to prevent ahead of time and restrain violations of the criminal sections of the act and has made it the duty of the Department of Justice to "institute proceedings in equity to prevent and restrain such violations."

I think it is fair to say that much of the success of the Department in antitrust work is directly attributable to the availability of civil remedies since here, as in the civil-rights cases, criminal prosecution of violators sometimes is unduly harsh and too restrictive.

The second observation I would make is this. These proposals would not extend or increase the area of civil-rights jurisdiction in which the Federal Government is entitled to act. These rights are now protected by amendments to the Constitution, and when they are violated the Government may act already under the criminal law.

Enactment of our proposals would add civil remedies which would not enlarge or in any way clash, as we see it, with the constitutional limitations on Federal Government action in this field. Rather it would permit us to take civil remedial action instead of having to depend solely on criminal proceedings. I am convinced it would make the difference between success and failure in the meaningful protection of the civil rights of our citizens.

Third, it has consistently been the policy of the Department over the years not to prosecute criminally under the civil rights statutes where remedial action has been taken locally.

But in those areas where the local community completely fails to respect Federal rights, the Federal Government must have power to act, and to act effectively, if the Federal Constitution and the Federal laws are to be, in the words of the Constitution, the "supreme law of the land."

The second proposal as I mentioned in the beginning, Mr. Chairman, is one dealing with the Civil Rights Division in the Department of Justice.

In 1939 the present Civil Rights Section was created in the Criminal Division of the Department of Justice. Its function and purpose has been to direct, supervise and conduct criminal prosecutions of violations of the Federal Constitution and laws guaranteeing civil rights to individuals. As long as its activities were confined to the enforcement of criminal laws it was logical that it should be a section of the Criminal Division.

Recently, however, the Justice Department has been obliged to engage in activity in the civil rights field which is noncriminal in character, such as the litigation arising out of the situations in Hoxie, Ark., and Clinton, Tenn.

Adoption by Congress of the administration proposals for giving civil remedies to the Government in these cases will cause the Department's duties and activities in the civil courts to increase even more rapidly than in the past.

We believe it is important that all of the Department's civil rights activities be conducted in a single division, but it is not appropriate that an organization with important civil as well as criminal functions should administered as a part of the Criminal Division.

Hence, for these reasons alone we urge the Congress to authorize the appointment of an additional Assistant Attorney General and the creation of a new Division in the Department to handle all civil rights matters. But even more important reasons make such action imperative. The civil rights field is extraordinarily complex.

Nearly every case involves subtle problems of constitutional interpretation along with delicate problems of Federal-State relationships. Every day as I deal with these problems, along with the myriad others which cross my desk, I become more conscious of the need to have responsibility centered in a well qualified lawyer with the status of a presidential appointee who will be able to devote his full time and attention to the legal aspects of civil rights problems within the area of Federal jurisdiction.

Senator HENNINGS. Mr. Attorney General, may I interrupt for just a moment?

Mr. BROWNELL. Surely.

Senator HENNINGS. You remember you and I had some discussion about various aspects of this last year when you testified before the full Judiciary Committee.

In order to aid our thinking and clarification on this legislation now before the subcommittee, I remember that we had some discussion, because the committee had reported out I think in February a bill requiring that there be not only appointed an Assistant Attorney General, but that he be charged with conducting a Civil Rights Division, instead of the Section which is now presently operative.

I see in checking further-I thought I was right in my assumption. Your bill says section 111 on page 14-your bill is a composite? Mr. BROWNELL. Yes.

Senator HENNINGS. This contains all the bills?

Mr. BROWNELL. I think that is correct, Mr. Chairman.
Senator HENNINGS. Section 111 of the bill states:

There shall be in the Department of Justice one additional Assistant Attorney General who shall be appointed by the President by and with the advice and consent of the Senate who shall assist the Attorney General in the performance of his duties, who shall receive compensation at the rate prescribed by law for other Assistant Attorneys General.

You may recall this matter came up before, and I wondered why, since this undertakes to create a Division of Civil Rights, why isn't it spelled out that the Attorney General shall have within his purview the sole jurisdiction in the matter of the enforcement of the constitutional or civil rights of persons within the United States?

Mr. BROWNELL. I think there is a historical background there, Mr. Chairman, that perhaps accounts for that. Historically the Congress, each time it has created a new Assistant Attorney General, has merely done it more or less in a one-sentence statute, and realizing that con

ditions change, has left to the authority of the Attorney General at the time the specific description of his duties.

It is well known that year after year they come before the Appropriations Committee, and it is broken down into civil, criminal, antitrust, tax and so forth.

But this has been a pattern that was established over the years and serves not to limit them.

Senator HENNINGS. I am aware of that, but since we have been speaking, Mr. Attorney General, of a Division, a Civil Rights Division within the Department of Justice, there is nothing in the bill which Senator Dirksen introduced on the matter, there is nothing in here that indicates to me that that Attorney General is not to be used, for example, in antitrust matters. It does not say so, and it does not put the intent of the Congress if the Congress should pass this legislation. It certainly does not seem to be expressive of the intent, which is to create a Division to supersede the present Section.

Mr. BROWNELL. Perhaps I could give you an illustration.

Senator HENNINGS. So that this additional Assistant Attorney General could under the Attorney General be put to doing anything, couldn't he?

I don't refer to you but to your successors possibly.

Mr. BROWNELL. I think not.

In the first place, I would make a flat statement now and I am authorized to make it in behalf of the administration, that that would be the function of the Assistant Attorney General.

Senator HENNINGS. That is true perhaps and undoubtedly is true insofar as you are concerned, and I am giving you full credit for good faith on this.

The thing that disturbs me is what is going to happen in the future? Mr. BROWNELL. Let me make a couple of observations on that, which I think will clear it up.

Senator HENNINGS. We will be glad to hear you.

Mr. BROWNELL. One is that of course we come before the Appropriations Committees of the two Houses each year, and a very, very detailed examination is made into this sort of thing, so that if there is any variation from such a pledge, it is caught immediately. Perhaps most important of all is this.

For example, if you start to put the language right in the bill, that he shall have full charge of it, does that mean, for example, that the Solicitor General could not argue an appeal?

There are all those interrelations within the Department itself, so we would not want to be tied up with statutory revisions.

Senator HENNINGS. To get away from the facets of this and to get into the functions of the others, the office of itself certainly does not preclude the Solicitor General appearing before the Supreme Court, but when we talk about a Civil Rights Division, I cannot understand why we do not say so in the legislation.

it

Mr. BROWNELL. There certainly would be no objection to putting

Senator HENNINGS. Even giving some of the historical judgement. it still in my humble judgement does not comport with what we like to call a Civil Rights Division. It just says one additional Attorney General.

Mr. BROWNELL. I think I have some reference to this later in my statement, but just in order that we may have it all at the same time, it is possible, for example, that a case may come up that it would seem advisable from a criminal case even in the area of civil rights to have some particular specialist who is in the Criminal Division try it, and that has been the historical reason, I think, why Congress has left the discretion there.

Senator HENNINGS. That is one thing and having charge of a division is another. You are the Attorney General of the United States, but that does not mean that you are either precluded from nor compelled to do this, that, and the other thing within the powers of your office.

Mr. BROWNELL. Perhaps a satisfactory arrangement would be to have the report express the understanding. I am a little hesitant of putting it right in the statute itself because this precedent going back over the years, I believe, has a pretty sound foundation.

In fact, no litigant would be able to say that we were not carrying out the terms of the statute if we used the ordinary discretion which we must have to have the best qualified person in the whole Department try the case.

Senator HENNINGS. You say you get to that later in your statement? Mr. BROWNELL. I believe so.

Senator HENNINGS. I raise that point because I think it is exceedingly important. We are talking about a division, but we still do not create one under this language.

We appoint an additional Assistant Attorney General.

Mr. BROWNELL. Shall we proceed then, Mr. Chairman?
Senator HENNINGS. Please proceed.

Mr. BROWNELL. I shall proceed with the third proposal, which is the one relating to a Civil Rights Commission.

Above and beyond the need for improving the legal remedies for dealing with specific civil rights violations is the need for greater knowledge and understanding of all of the complex problems involved. The proposal before you would create a bipartisan executive commission for the express purpose of making a full-scale study of the problem and of reporting within a 2-year period.

Senator HENNINGS. Mr. Attorney General, I don't like to interrupt you, but you and I are both lawyers and we are trying to get at this.

Mr. BROWNELL. That is perfectly all right.

Senator HENNINGS. I believe you used the words "making a fullscale study of the problem."

What do we mean by "full scale"?

Mr. BROWNELL. Shall I proceed with the description I have here of the functions of the Commission?

Then if I have not answered your question we could come to it then, for the language of the proposal itself, I think, gives the scope. In the first place, it would be a temporary body designed to obtain information and not a continuing agency. In order that it would be able to be effective it would be give the authority to subpena witnesses, take testimony under oath in public hearings, and request necessary data from any executive department or agency.