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to the nature of the information required or to the interests of the country or of individuals to be affected by such compliance, then do I feel bound, in the discharge of the high duty imposed upon me 'to preserve, protect and defend the Constitution of the United States', to declare in the most respectful manner my dissent from such a proposition.” 46
The able message of President Tyler is not an assertion of an "uncontrolled discretion" or unlimited right to withhold. With great care it enumerates some of the particular situations in which matters must be kept confidential: pending law enforcement investigations, incomplete inquiries before their truth or falsity has been ascertained, all papers "merely" because they concern matters about which the House is deliberating. He challenges this as the sole test of availability (and who wouldn't). He thinks "certain communications and papers are privileged" and that "the general authority to compel testimony must give way in certain cases to the paramount rights of individuals and the government.”
This is a strong and an able argument for executive prerogative “in certain cases” and an effective presentation of the claim of discretionary power.
However, the Department of Justice memorandum resers not only to the message but to “President Tyler's refusal to communicate to the House of Representatives the reports relative to the affairs of the Cherokee Indians and to the frauds which were alleged to have been practised upon them."
As a matter of fact, while making a statement of principle, President Tyler, nevertheless, did give the House what it asked for. In the very message discussed, he said:
“I have thought proper to direct that the report of Lt. Col. Hitchcock concerning the frauds which he was charged to investigate be transmitted to the House of Representatives, and it accordingly accompanies this message."
Tyler said he did this to "avoid even the appearance of a desire to screen any, and also to prevent the exaggerated estimate of the importance of the information which is likely to be made from the mere fact of its being withheld."
He sent along all the facts about the Cherokees except some correspondence “not supposed to be within the intent of the resolution.”
He assured the House that "all the papers in the War Office or its bureaus known or supposed to have any relation to the alleged frauds which Lt. Col. Hitchcock was charged to investigate are herewith transmitted.” 47
How does this comport with Mr. Wolkinson's statement that "in the great conflicts which have arisen, the administrations of Washington, Jackson, Tyler, Cleveland, Theodore Roosevelt and Herbert Hoover, the Executive has always prevailed?”
In most of Mr. Wolkinson's examples, the Congress prevailed, and got 'precisely what it sought to get. In the case of the Jay Treaty, the President prevailed, but not on the broad ground of executive prerogative but on the solid ground that the House lacked constitutional authority to advise and consent on
464 MESSAGES AND PAPERS OF THE PRESIDENT 222 (1896-99). 17 Id. at 925.
treaties. The Jackson episode, of all those prior to the Buchanan administration, seems to be the only instance in which it might be said that “the executive prevailed" in an assertion of absolute, unqualified discretionary right to withhold.
Some of the other and later examples ought to be explored under circumstances in which time and space permit. Certainly, the examples prior to the Civil War period, in the Department of Justice's own memorandum, in the light of history, do not support either the conclusion of Mr. Wolkinson who first compiled this information or the broad assertions of the Justice Department. Historical fact simply is overwhelmingly at war with the law as the Attorney Generals prefer to view it.
Pertinent and interesting as later cases may be, the early cases here examined arose during the years when the government was taking shape and no subsequent examples could shed more light on the nature of this separation of powers.
CONCLUSION The withholding of information by executive agencies of the Federal Government, over the generations, has steadily increased until now it threatens to deprive citizens of the knowledge essential to self-government and indispensable to a determination by the people of the adequacy of policy and the fidelity of individual public servants.
The means of reestablishing the right-to-know about executive agencies are readily at hand and involve changes consonant with constitutional principles and sound public policy, including:
(1) Adoption by the executive departments and agencies of a philosophy and theory of executive privilege that acknowledges the presumption in favor of disclosure inherent in all sell-governing societies and madc explicit in our own system by the First Amendment and its assurance of the citizen's right to "acquire" and to disseminate information, without abandoning the premise that there resides in the executive the right and duty to respect other constitutional provisions, specific statutory enactments, international practice and individual rights which, on occasion, require non-disclosure and oblige Congress and the courts alike to acquiesce in executive discretion asserted under these exceptional circumstances.
(2) Amendment of 5 U.S.C. S 22 so as to make it clear that Congress has not intended to sanction all withholding by executive departments
, without limit
, definition or restriction, and so as to restore a situation in which non-disclosure must be supported by express and specific limitations on the right to know under standards that thereby permit judicial review. (Accomplished since this article was prepared.)
(3) Amendment of the Administrative Procedures Act so as to assert the right of citizens as well as that of litigants and their clients to information involved.
(4) Congressional review of the more than sixty express statutory provisions providing for specific non-disclosure with a view to their curtailment where they seem impose unnecessary secrecy or their expansion where security seems to require more explicit protection.
(5) Congressional reexamination of disclosure statutes that expressly require release of information with the object of expanding and more clearly defining such areas.
The limits separating the powers of one branch of our government from another no doubt always will resist precise legal definition. The prerogative by Congress, the Executive and the Courts are not matters of law alone, but are often altered by Auctuating political power. Many of these issues will remain unsettled because the means of settlement available to all branches would involve contests too painful to be borne. There will be in the future, as there have been in the past, assertions of right by one branch, which the other branches neither contest over nor acquiesce in, and it always will be unsafe to judge as settled law contentions that have been met with silence by two out of three of the grand departments. So must the extreme statements of executive prerogative be regarded. And so must the most extreme statements of Congressional power be viewed.
The public's access to information, too, will depend in the end not only upon the constitution and the laws, but upon the climate of opinion and the genius of public institutions and the play of political forces. Perhaps it really will be these political forces that, in the end, will be the most effective in determining the extent to which doors of executive departments now shut and fastened against the inquiry of citizens will be opened to them.
Mr. SLAYMAN. The last, Mr. Chairman, are two law review articles from the Georgetown Law Journal, one on the power of congressional committees of investigation to obtain information from the executive branch, the argument for the legislative branch, and the other is the power of the Executive to withhold information from congressional investigating committees.
Senator O MAHONEY. Without objection, it may be received for the record.
GEORGETOWN LAW JOURNAL,
THE LAW CENTER,
Washington, D.C., March 12, 1959. Mr. CHARLES H. SLAYMAN, Jr., Chief Counsel and Staff Director, Senate Subcommittee on Constitutional Rights,
U.S. Senate, Washington, D.C. DEAR MR. SLAYMAN: In compliance with your request, the Subcommittee on Constitutional Rights is hereby granted permission by the copyright owners of the Georgetown Law Journal to reproduce for the record of a public hearing on "Executive Privilege" the articles listed below:
(1) “The Power of ('ongressional Committees of Investigation To Obtain Information From the Executive Branch: The Argument for the Legislative Branch" by Philip R. Collins. The Georgetown Law Journal, volume 39, page 563.
(2) "The Power of the Executive to Withhold Information From Congressional. Investigating Committees" by Richard P. Milloy. The Georgetown Law Journal, volume 43, page 643. Sincerely yours,
THOMAS M. HADERLEIN,
(The documents referred to follow :)
40377 059—pt. 1-13
THE POWER OF CONGRESSIONAL COMMITTEES OF INVESTIGATION TO OBTAIN INFORMATION FROM THE EXECUTIVE BRANCH: THE ARGUMENT FOR THE LEGIS
PHILIP R. COLLINS**
ades, become a part of our national scene. These committees, their members and tactics make good copy for column one, page one of our large metropolitan newspapers. More than one member of Congress has won favorable notice and political advancement by reason of his activities on such committees.
A participation in the ever-current debate as to whether a congressional committee is a force for good or for evil in our democratic form of government is not the purpose of this article. Nor are we concerned with the right of a witness or an "accused”, as he may be popularly called, to representation by counsel and to cross-examination of wit. nesses. This question has been properly and fully examined by other writers. Nor need there be a discussion of a question fully covered by both the courts and writers in legal periodicals through the years—the right of congressional committees of investigation to punish for con
* A more elaborate treatment of this subject and related problems is contained in a doctoral dissertation submitted to the Department of Political Science, The Graduate School, Georgetown University. See, Collins, A Problem in American Constitutional Law: The Power of Congressional Investigating Committees to Require Information from the Executive (Georgetowà University, June 1950).
** B.A., Loyola University, 1939; LL.B., 1942; M.A., Georgetown University, 1948; Ph.D., Georgetown University, 1950. Member of the Louisiana and Massachusetts Bars and the Bar of the U. S. Supreme Court. The author acknowledges the material assistance rendered by the Rev. Josepb T. Durkin, S.J., Associate Professor of Political Science, Graduate School, Georgetown University, in the preparation of this material.
i Senators Mundt of South Dakota and Nixon of California are examples of Congressmen who have risen to the upper chamber because of the publicity received from their service on congressional investigating committees.
Boudin, Congressional And Agency Investigations: Their Uses and Abuses, 35 Va. L. Rev. 143 (1949).
B.8, Lord, The Lawyer and the Congressional Investigation, 21 So. Calif. L. Rev. 242 (1948); Wyzanski, Standards for Congressional Investigations, 3 The Record, N. Y. C. Bar Asen. 93 (1948).