Mr. JOHNSON. The experience to date has been that the drug addiction in this type of patient has been in the outpatient.

Senator CRANSTON. Could you please expedite your VA report on S. 2108 and S. 2091, the proposed "Veterans Employment and Readjustment Act of 1971," which I introduced on June 17 along with Senator Hartke, chairman of the Veterans' Affairs Committee, which would be relevant to employment opportunities for rehabilitating addicts. If you could expedite reaction on that point, we would be most grateful.

S. 2108 directs that the President's annual budget include a separate line item for the treatment or rehabilitation program to be carried out. You do not have to comment now if you do not want to.

Mr. JOHNSON. That point is covered in our report to you on S. 2108. Senator CRANSTON. My final question: Do you have any comments on my suggestion that you designate and fill one of the three vacant positions of Assistant Chief Medical Director in the VA Department of Medicine and Surgery as an ACMD for the treatment of drug and alcohol rehabilitation?

Mr. JOHNSON. In this matter, we have raised the level of alcohol and drug dependency to a full service. We are currently undergoing a total reorganization of the Department of Medicine and Surgery, and this implementation is tied also to our omnibus bill which we have before the Congress, which calls for the addition of some ACMD's who could be of the nonphysician type. Until the completion or discussion of that legislation and of that reorganization of the DMS, I would prefer not to comment specifically on that.

Senator CRANSTON. I understand. I thank you for your patience and for your long and very constructive testimony.

We will now take about a 6-minute recess. We will then continue with the next witness, who is executive director of the American Civil Liberties Union.

(Recess.)

Senator HUGHES (presiding). The committee will come to order again, and the Chair wishes to welcome Mr. Neier, who is executive director of the American Civil Liberties Union. Mr. Neier, you may proceed as you desire.

STATEMENT OF ARYEH NEIER, EXECUTIVE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION, NEW YORK

Mr. NEIER. I have a prepared statement which I would like to submit for the record, and then I will summarize the statement very briefly and respond to any questions you have.

Senator HUGHES. The entire statement will be included in the record at the end of your testimony.

Mr. NEIER. First, let me express my gratitude to you for listening to our views. The ACLU has a Saigon-based affiliate called the Lawyers Military Defense Committee. It is an organization which provides the only free legal services to soldiers stationed in Vietnam. It is called upon with great frequency for assistance in drug cases, and therefore, has considerable experience with such cases. The reports that we have from this office in Saigon indicate that the Army's estimates as to the extent of drug addiction among soldiers are, if any

thing, understated. I do not want to set forth any figures. We do not have any figures; but just to comment that we think that the estimates that have been presented by the Secretary of the Army, and others, are on the conservative side, if anything.

The President, in his statement, has recognized the responsibility of the armed services and Veterans' Administration to deal with this problem. Many soldiers are in Vietnam against their will, having been conscripted into the Armed Forces. They have become addicted to narcotics as a consequence of this unwilling service. It seems only fair that the armed services themselves and the Veterans' Administration should provide medical services in order to rehabilitate them. I stress "rehabilitate them", because a feature of the President's proposal, and many of the other proposals that have come forward, is that they seem to be more punitive than rehabilitative in nature. We are very much concerned by this punitive approach. The U.S. Supreme Court, in the Robinson v. California case, in 1962, recognized that drug addiction was a sickness and noted that it would be cruel and unusual punishment to subject any person to punitive measures as the consequence of sickness. The Supreme Court said that it would be cruel and punitive punishment to subject a person to 1 day in jail for having a common cold. We recognize that it is cruel and punitive to subject any person to any kind of punishment, either through discharge or through criminal prosecution, as a consequence of sickness.

Senator HUGHES. Could you give the citation where that can be found?

Mr. NEIER. Robinson v. California, 370 U.S. 660 (1962). That is the leading case on criminal penalties for drug addiction. I think the punitive measures perhaps can be exemplified by referring to one of the bills that has been introduced into the Congress. I use this bill as an example because it is one which I have in front of me, but some of the provisions in this bill characterize other bills which are in the Congress. This is H.R. 8388.

Let me just read the first few words of the definition of treatment. "The term 'treatment' means confinement and treatment." Anyone who has any experience with this problem of narcotics addiction is aware of the dismal record of various confinement programs in actually serving the purposes of treatment. The State of California has had a compulsory commitment program for several years. It was emulated in 1966 by the New York State Narcotics Addiction Control Act. New York State has had much the largest program of compulsory treatment. It has had several hundred million dollars invested in it. By all accounts, even by the account of the author of the program, Governor Rockefeller, the program has been a failure. There are no hard statistics on the numbers of persons who have actually been rehabilitated. The statistics that are furnished by the agency itself vary internally and are at sharp variance with statistics supplied by critics; but I think it is fair to say that there is no one any longer claiming that confinement, compulsory commitment by itself, as compared with other things, is the best method of rehabilitation.

In New York State, the jailing of persons for narcotic addiction was outlawed by the Supreme Court in the Robinson case, and hospitals were substituted. Changing the name on the door, however, does not achieve anything but a deception. These programs, that serve to

put people away for periods up to 3 years, did not have any substantial record of having effected any rehabilitation.

I think the same dismal record can be attributed to the California program of compulsory commitment. Programs which provide for confinement and commitment against a person's will that are now being proposed are doomed to repeat the same experience of the New York State and the California programs.

Another provision of the bill, H.R. 8388, provides that a member treated pursuant to this section shall be released from active duty only when he is no longer a narcotics addict. I do not know what is meant by the words "is no longer a narcotics addict." If it means that a person has been detoxified, presumably that can be accomplished in a very few days. If it means that a person has been cured of narcotics addiction, that might never happen. The person may eventually die. He may be cured, though by what process may not always be clear. But it is a virtually indefinite sentence, if a person is to be, under one provision, confined as a matter of treatment, and under another provision, held in the armed services until such time as he is no longer a narcotic addict.

There is another measure which we regard as punitive. This is one where I have to rely on a newspaper account-I am not sure that it is being done but I would suggest to you that it is appropriate, in legislation, to make sure that nothing of this sort is done. This is an account in the New York Times of May 30, describing the current programs or programs being launched for medical testing of servicemen.

The paragraph in the Times, of May 30, reads: "The purpose of the check is to catch addicts who are now leaving services at the rate of 20,000 a year. According to Presidential Adviser, Robert H. Finch, they could then be persuaded to enter Veterans' Administration clinics or hospitals or would at least be identified for surveillance by the civilian authorities!"

Again, if they are identified for surveillance by the civilian authorities, this seems to be a perversion of a medical testing program—a program which would be designed for purposes of rehabilitation-by entering something which is, in fact, the law enforcement program, and one which would result in punitive measures rather than rehabilitation. I think all of the proposals which would make any results of medical testing available to law enforcement officials, or proposals which would retain servicemen in the Armed Forces until free from addiction, are, in fact, punitive rather than rehabilitative.

The testimony of Mr. Kelly, of the Department of Defense, that was given here yesterday, had a somewhat ambiguous statement in it. He stated that all service members whose terms of service are expiring, who need and desire treatment because they are dependent upon drugs, will be provided the opportunity for a minimum of 30 days treatment. If Mr. Kelly had in mind that the programs would be offered on a voluntary basis, that is one thing. I think we certainly support their availability on a voluntary basis. If this implies that they are going to be held against their will, then we regard it as a deprivation of liberty as a consequence of sickness, and a deprivation of liberty not reasonably related to the process effectuating a cure, or even the process effecting rehabilitation, since there is no evidence whatsoever that confinement to a program is any more effective than a voluntary pro

gram. Indeed there is a good deal of evidence that it is less effective than any voluntary program.

The President, in his message, stated that: "We will be requesting legislation to permit the military services to retain for treatment any individual discharge who is a narcotic addict. The President has thus clearly committed himself to seeking through the processes of legislation what is ambiguously set forth in Mr. Kelly's statement.

Our proposal is that under any circumstances a person should never be denied liberty as a consequence of illness. In this case, it is not as if you were faced with a hard choice of a compulsory program which was effectual, as opposed to a voluntary program which was ineffectual. In this case, the cause of success or the cause of curing or rehabilitation, as far as the record goes, seems to be better served through voluntarism than it does through any program of compulsion. Therefore, as we see it, all the arguments are on the side of not infringing people's rights, not interfering with their liberties, but on the side of encouraging them to participate in voluntary programs.

There are certain essential measures which are necessary if people are to be encouraged to participate in voluntary programs. One is absolute confidentiality between soldiers and doctors on drug addiction. I was horrified to hear this morning that the communications that are presently made to doctors in the Veterans' Administration can be made available to the Justice Department. It would seem to me this would be a gross breach of medical ethics and entirely counterproductive if soldiers are to be encouraged to come forward. I suspect the reason why so many soldiers have come forward is because they do not know that what they say in confidence to doctors can be made available to the Justice Department at this time. It seems to me to be necessary to ensure that, as they do become aware of this kind of possibility, they still come forward to participate in programs, hopefully in increasing numbers. One way to achieve that would be to protect confidentiality through legislation.

I note the Air Force has taken larger steps than other services to protect the confidentiality of communications. I do not think this should be something that is left up to each of the services. It is something that should be embodied in legislation. I think it is the necessary condition to encourage people to come forward to seek treatment voluntarily. One of the services, the Marine Corps, has refused to adopt even the limited amnesty program that is presently in existence in other services. This should not be a matter for the individual services to determine. It is a matter for legislation. There should be a guarantee of complete amnesty both as to the question of discharge from the Armed Forces and as to subsequent prosecution.

Let me make a further point on the question of confidentiality, and then I will respond to any questions that you may have. As I was listening to the testimony this morning, a problem came to my mind which I did not deal with in the statement that I prepared for submission; and that is how to make this question of confidentiality effective. We have had, in ACLU, very extensive experience with the Selective Service System and its supposedly confidential records on draft registrants. The Selective Service System has a practice, as do a great many other agencies which maintain supposedly confidential records,

of releasing those records if they receive a waiver of the confidentiality. This would seem to me to make sense.

The problem is that a great many governmental and private agencies routinely require waivers of such confidentiality as a condition of, say, employment or licensing. To use one example with which I am familiar, the New York City Board of Education, which employs some 90,000 persons, and therefore is a major part of the job market for persons in the city with the largest problem of drug addiction, requires such waivers of confidentiality as a condition for employment. The consequence is that the city board of education forwards the waiver to the Selective Service System, and routinely receives the Selective Service System's allegedly confidential records about registrants. This kind of compulsory waiver, especially by a governmental agency, makes something of a mockery of the concept of confidentiality. I am not prepared here and now to submit to you language which could protect confidentiality against such routine waivers and at the same time allow for waivers in situations where the person genuinely voluntarily seeks a waiver of confidentiality, but I think, in order to insure that confidentiality means just that, it would be necessary to take into account the easy processes by which waivers take place. I would like, if I may, to submit, at a later date, langugage which would seek to accommodate both the need for occasional waivers and the problem of waivers routinely obtained as a condition of employment. Senator HUGHES. The record has been ordered kept open for a period of 2 weeks, so if you could submit that within 2 weeks we would be grateful.

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