Page images

guards. Moreover, on the pragmatic basis of the experience of the last decade or so, the proposition that Congress is the paladin of civil liberties and the executive their foe secnis at least debatable.

In practice, of course, as has already been suggested, the executive has not "unfettered discretion ... to surround with secrecy all its activities."'48 All but a minute percentage of congressional requests for information are honored promptly and even with a show of cheerfulness, for the very good reason that the executive needs from Congress cooperation which it will not get without reciprocating

A brief consideration of the generally satisfactory modus vivendi which has evolved may help to dispel the picture of the executive branch in the character of Domitian. There is, of course, no statute that sets standards for the release of information to Congress, and only sporadically, as in the case of security files, are there formal executive regulations. Usually, the head of a department lias an aide-often his general counsel—who is responsible for what is bureaucratically known as “legislative liaison." The aide controls the flow of information to Congress, referring only the hottest questions to his boss. Of course the abilities and views of these virtuosi vary widely, and most of them play by ear, but, according to the writer's observation, the most experienced of them agree on certain fundamental policies. These policies may be briefly summarized, as follows:

(1) No fishing expeditions are allowed. The initiators of a congressional investigation (who, in practice, are often members of committee staffs rather than the Congressmen themselves) must define with reasonable precision the general area which they intend to ilivestigate and the character of the documents they wish to see.

(2) No "raw" files are to be released. The files requested will be screened by the legislative liaison officer or one of his assistants, who will remove any documents which, in his judgment (or, as in the case of individual security files, because of directives of higher authority) should not go outside the executive branch. There can be no blinking the fact that this affords an opportunity for serious abuse. It is entirely justifiable and sometimes necessary to renove, for example, genuine military or diplomatic secrets, or documents identifying confidential informants, or confidential data respecting costs or production techniques furnished by private business.48 It is arguably justifiable, for the reasons outlined above, to remove recommendations on policy made by subordinate officials, or documents (besides the above-mentioned individual security data) containing allegations which, although unsubstantiated,

48. Ibid.

49. Compare the recent action of the Department of Justice in refusing to give the House Committee on the Judiciary access to the files relating to settlement of the antitrust suit against American Telephone and Telegraph Company. The Deputy Attorney General said that such action "would violate the confidential nature of settlement negotiations" and "discourage defendants, present and future, from entering into such negotiations.” See 58 PUB. UTIL. FORT. 319, 320 (1956).

might work irreparable injury to private reputations. But it is most certainly unjustifiable to remove part of a file siniply because it betrays administrative stupidity or inertia. The temptation to indulge in just such an abuse is, of course, considerable. The only answers to this objection are first, that the risk of abuse and consequent prejudice to efficient government which it raises is on the whole less than the risk inherent in giving Congress free access to executive files; and second, that in practice, competent department heads sooner or later learn the truth of the homely maxim about honesty as a policy in their dealings with Congress. It pays better to admit errors and correct them than to deny their existence; Congress, when it einbarks on an investigation of an executive abuse, usually has other sources of information-e.g., disgruntled contractors or bidders—than the files of the executive, and these other sources, if untempered by complete disclosure, are likely to make matters look much worse than they really are.

(3) Congressional recipients of classified information must themselves be subjected to a security check. Committees of Congressmen and their aides are, of course, constantly given access to military and diplomatic secrets. The Department of Defense applies to members of committee staffs the same criteria which it applies to its own enployees and grants them appropriate clearances, the committee chairman being always formally reminded of the statutes and regulations applicable to any such information transmitted. Congressmen themselves are a more delicate problem. The executive is naturally reluctant to say outright that a member of a coordinate branch of government is not regarded as a proper person to be trusted with his country's secrets—although it has done so on occasion.50 Seniority may bring a security risk to the chair of an important committee or subcommittee. Fortunately, this has never happened; if and when it does, great finesse will be required to solve the resulting problems of committee access to executive information.

(4) The executive should have a chance to comment on any resulting committee report before it is published. The more responsible committee chairmen usually agree to some such arrangement, the utility of which is obvious. Bona fide mistakes can be eliminated in this way, and both sides of a disputed question brought out. A committee is, of course, under no obligation to submit its drafts to such a preview or, if it does so, to accept any of the executive's comments and suggestions. Some chairmen are unwilling to permit their reports to be inspected before they are made public—perhaps because they feel it wasteful to dull a sparkling, sensational allegation by exposing it to lackluster facts.

These principles are, of course, primarily designed for dealing with responsible committees, who are trying to fulfill a legislative function beyond the mere capture of headlines. Rules for dealing with the guerillas, the Congressional Comanches, are naturally far harder to formulate. Still, there are one or two basic, simple principles which, based on the experience of the present writer,

50. Representative Robert L. Condon of California was barred from a test of nuclear weapons in May, 1953. See N.Y. Times, July 6, 1953, p. 12, col. 1.

the executive ought as a general thing to employ in dealing with the irresponsibles. For example, the brunt of denying a demand for information, which cannot be acceded to, should be borne at the highest level-by the department head and even, if the matter is important enough, by the President. It is unfair and unwise to expect a subordinate official to weather the congressional blast alone. Thus, if it can be predicted—as it frequently can be that Senator So-and-So is going to demand from an official witness information which should not be disclosed, the witness should carry up to the Hill in his pocket a letter from the department head, describing in some detail the prohibited categories of information and instructing him to refer demands for such datacourteously—to the signer of the letter. If trouble is anticipated, the witness ought, moreover, to be accompanied by counsel. It takes a lawyer, and a fairly astute and cool-headed one at that, to deal with such maneuvers as vociferous insistence that a witness, barred from saying what he has done or will do in his official capacity in an actual case, give his "personal opinion" as to what ought to be done in a hypothetical case closely resembling the actual one. Another sound principle is to produce promptly, and publicize as widely as possible, all the germane facts (such as the context from which misleading excerpts have been torn) which can be released, together with an explanation of the reasons—which had better be good—for withholding the others. The ruses de guerre of the legislative franc-tireurs are, naturally, extremely varied, and certainly the author of this paper would not and could not attempt to catalogue them all; but it seems to be true, if banal, that the impact of most of them is minimized by maximum candor and disclosure on the part of the executive branch.

CONCLUSION A situation so ambiguous and muddled cannot fail to distress the tidyminded constitutionalist. .Ind yet there is every prospect that it will continue for some time to come. For reasons given it is not likely soon to be cleared up by judicial decision. In act of Congress, even if it avoided or surmounted a presidential veto, would simply beg the question.52 An amendment to the Constitution would at least meet the problem squarely; in view of the recent vogue of amendments designed to limit the powers of the executive, it is perhaps a matter of some surprise that none such has been seriously proposed. Perhaps this is so because, on the whole, a good case can be made out for the proposition that the present imprecise situation is, in fact, reasonably satisfactory. Veither the executive nor the Congress is very sure of its rights, and both usually evince a tactful disposition not to push the assertion of their rights to abusive extremes. Of such is the system of checks and balances.

51. E.g., the Truman directive cited in note 46 supra, and the Eisenhower directive cited in note 45 supra.

52. In 1948 the House passed a Joint Resolution in substance purporting to require the executive to furnish to all House and Senate committees any information the committees might deem necessary. H.R.J. Res. 342, 80th Cong., 2d Sess. (1948); see 94 Cong. Rec. 5821 (1948). The Resolution died in the Senate.

Mr. SLAYMAN. Professor Bishop, you may have covered some of the questions in your statement, but I hadn't seen your statement before. I would just like to pinpoint a few things here.

Do you find anything in the Constitution of the United States that specifically authorizes the President to withhold information from the Congress?

Mr. BISHOP. No, sir; I do not.

Mr. SLAYMAN. Or any thing that would specifically authorize the heads of departments to withhold information?

Mr. BISHOP. No, sir. I don't.
You say “specifically”?

Mr. BISHOP. I say, no. Of course, you can argue, as often has been argued, that this is implicit in the system of separation of powers, and so on.

Mr. SLAYMAN. Aside from whatever authority may be delegated to them by the President or given them by Congress itself, do you think the heads of the various executive departments have any authority to withhold information from Congress?

Mr. BISHOP. Well, there is, of course, the question of the old housekeeping statute which was recently amended by the Hennings-Moss bill. That has sometimes been invoked as authority for centralizing in the head of a department authority to withhold information. In my opinion, it never could be properly invoked to withhold information from Congress, although it was.

Leaving that statute to one side, I think that all of the power of the heads of departments, that is, the traditional departments of the Government as distinct from agencies created by Congress, does come from the President, including this power.

Mr. SLAYMAN. And that is referring to the heads of the executive departments, the traditional Cabinet officers ?

Mr. BISHOP. Yes.

Mr. SLAYMAN. What about other executive branch agencies and commissions ?

Mr. BISHOP. The big six, for example.

Well, in my opinion, what powers they have ought to be found within the four corners of the statutes which create them, but I note that in practice the courts have tended to treat them on pretty much the same footing as the traditional departments. That is all I can say

on that.

Mr. SLAYMAN. Well, assuming for the sake of this discussion that the President may delegate the exercise of the power, the "executive privilege,” how far do you think he can delegate that exercise, and to whom?

Mr. Bishop. Well, I would be getting into very deep water indeed were I to try to answer the question how far down the President can delegate.

As a general rule, in practice his delegation does not extend below the Cabinet level, except in certain instances, where, for example, the Chief of Engineers of the Army has certain functions, and so on.

I have had some trouble myself sometimes with the question of how far the Secretary of the Department can delegate his powers down.

In practice again, he seems to be able to delegate pretty far down. Whether that is good practice or not, I don't think I ought to say.

Obviously, he has got to delegate some of his powers a good way down the line because no one man could personally supervise the whole operation, for example, of the State Department or the Army Department. Some game tries have been made in recent years, but I don't think it can be done.

Mr. SLAYMAN. You mean you don't think it can be done because you don't think there is the authority for it?

Mr. BISHOP. No, sir. I think it is a practical impossibility for the Secretary of a department not to delegate some of his powers down the line. In practice he must. Now, of course, he can't delegate his responsibility. That he is stuck with always, but the powers he has to delegate.

Mr. SLAYMAN. You have been Associate General Counsel and Acting General Counsel of the Army?

Mr. BISHOP. Yes, sir. Actually, the title was Deputy General Counsel. It comes to about the same thing.

Mr. SLAYMAN. Now, we have discussed whether he has the power and whether the Chief Executive can delegate it and how far. Now, what is your opinion of the form of delegation? How can he delegate the exercise of the power ?

Mr. BISHOP. Well, in this particular instance of delegating the exercise of the power to withhold or disclose information, I think it ought to be done by published regulations of some variety—I don't care whether they are called regulations or directives or memorandawhich are available to everybody.

Mr. SLAYMAN. You would favor, if there is a delegation of the exercise of the power, that it be in some recognized and established form?

Mr. BISHOP. Public form, yes, sir.
Mr. SLAYMAN. Public form.

Mr. BISHOP. Right. And I would also favor some provision for review by the head of the department himself of any refusal to disclose informåtion. I think the responsibility is his and it ought to be attached clearly to him.

Mr. SLAYMAN. Well, now, addressing ourselves to the President's letter of May 17, 1954, which was addressed specifically to the Secretary of Defense and by its very terms limited Defense Department employees appearing at the Army-McCarthy hearings, do you think that that letter may properly be cited now by executive departments or agencies or independent regulatory agencies as authority for withholding information from Congress ?

(The text of the President's letter of May 17, 1954, is set forth as exhibit 3 at p. 274 of the appendix.)

Mr. BISHOP. Well, I believe it is cited by them. I think it can properly be cited in the sense that it is one more of a long series of executive assertions of discretion to withhold information. It is a precedent. It was, of course, as you have indicated, in its terms limited to the Secretary of Defense and to the disclosure of information in particular categories.

Senator Hruska. Would counsel yield?
Mr. SLAYMAN. Certainly, sir.

« PreviousContinue »