Executive Privilege

EXECUTIVE PRIVILEGE

FRIDAY, MARCH 13, 1959

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to call, at 10 a.m., in room 457, Senate Office Building, Hon. Sam J. Ervin, Jr., acting chairman, presiding.

Present: Senators Ervin, O'Mahoney, and Hruska.

Also present: Charles H. Slayman, Jr., chief counsel, and William D. Patton, first assistant counsel.

Senator ERVIN. The committee will come to order.

I regret very much that illness will prevent the subcommittee chairman, Senator Hennings, from presiding today.

For the past several years the Constitutional Rights Subcommittee has been making a broad study of freedom of information and secrecy in Government. Our chief purpose has been to determine to what extent constitutional rights are being infringed by present-day restrictions on the dissemination of information in this country.

Today, we resume public consideration of an aspect of secrecy in Government which, in my opinion, raises a number of vexing constitutional problems the asserted power of the President and his subordinates, under the Constitution, to withhold information from the Congress and the public. Among the many difficult questions raised by the exercise of this alleged power or "privilege" are: To what extent does such a constitutional power or "privilege" actually exist? Who may exercise it and under what circumstances? To whom may it be delegated, and how? And, finally, to what extent may it properly be invoked by officials in the so-called independent regulatory agencies?

The subcommittee already has some testimony on this subject. On March 6, 1958, Attorney General Rogers appeared in person before the subcommittee and spelled out his views in considerable detail. Now we want to have the benefit of additional views.

Today's witnesses will include Prof. Joseph W. Bishop, Jr., of the Yale Law School; Mr. Robert Keller, General Counsel of the General Accounting Office; and Mr. Lawrence Powers, also of the General Accounting Office.

In addition to the testimony of these eminent gentlemen, we had hoped to hear testimony from Prof. Edward S. Corwin, who has long been one of the country's leading writers and students of the Presidency; and from J. Russell Wiggins, executive editor of the Washington Post, a leading authority on the entire subject of freedom of information. Unfortunately, illness has prevented Professor

Corwin from being present, while Mr. Wiggins has been unable to attend because of other commitments.

With no objection, the subcommittee will proceed to hear the first witness.

Mr. Counsel, you may call the first witness.
Mr. SLAYMAN. Thank you, Mr. Chairman.
Professor Bishop.

STATEMENT OF JOSEPH W. BISHOP, JR., PROFESSOR OF LAW, YALE
LAW SCHOOL

Mr. BISHOP. Yes. I have a very short prepared statement, sir. Mr. Chairman, I am much honored by the opportunity to appear before the subcommittee. I think that the problem of the release of executive information is one of the highest importance and the highest interest, although I must admit it is one on which I personally cannot claim great expertise. My specialties as a lawyer happen to be corporation law and military law, and my studies of constitutional law have been largely in those fields.

Nevertheless, like many lawyers who have worked with the executive branch or the legislative branch, I have had to think about the question, or at least that part of the question which relates to the release of information to Congress, and I have come to certain pragmatic conclusions.

One of those conclusions is that the problem cannot, in my opinion, profitably be considered solely or principally in terms of constitutional law or even in legal terms at all. That is, I don't think it can be solved by lawyers as lawyers. I don't believe that anybody would now claim, although Attorney General Brownell seemed to claim in 1954, that the Supreme Court has ever really decided the scope of the Executive's discretion under the Constitution to withhold information from Congress. Undoubtedly there are dicta in the CurtissWright case which do recognize that there is some such discretion, specifically in the field of foreign affairs.

I think it very unlikely that the Supreme Court ever will be called upon squarely to decide that precise problem. The Constitution itself certainly furnishes no explicit answer. I doubt very much that any statute could settle the question. A constitutional amendment might do so, but I don't believe that any such amendment is now seriously proposed, and I don't believe that it ought to be.

Summing up, the principal utility of study of the question from the legal standpoint seems to me to be to satisfy oneself that there is no clear-cut legal answer. Moreover most students of the problem today seem to agree that the executive must have some discretion to withhold at least some types of information from Congress and the public. Military and diplomatic secrets are the ones usually mentioned.

Personally, I feel just as strongly about some other categories of information-for example, the security files of individuals, whether employees of Government or not, and the private data of business corporations and advice furnished by subordinate officers of the Government to their superiors who are responsible for making decisions. Now, if we start from the assumption that the executive has power and I emphasize that I use the word "power" rather than

the word "privilege" or "right"-to withhold information, then the problem, of course, is to prevent abuse of that power.

I recognize that this is a tough problem. There are, there probably always will be, some bureaucrats who will try to cover up stupidity and worse than stupidity, who will try to keep skeletons locked in the closet in the name of the public interest. But I do believe that reform of such abuses has to come primarily from within the executive, with the help of the kind of useful stimulation which this subcommittee is providing.

The present practice, I recognize, is frequently very unsatisfactory, and it seems to me that there may be certain rather broad policies which the executive can and should follow with a reasonable amount of prodding in order to keep abuse down to a minimum.

First, I think that the standards which govern disclosure of information should be clearly stated in as much detail as possible in published regulations which are available to everyone.

I don't like the situation in which one man in a Government department or agency can decide every case ad hoc, depending on his own estimate of the situation.

I think, for example, that Army regulations—and I have specifically in mind AR 345–15 and AR 345-20-are a pretty good start in this direction, although I don't necessarily agree with every policy which is expressed in those regulations. I think the idea is a good one. (The text of AR 345-15 and AR 345-20 is set forth as exhibit No. 1 at p. of the appendix.)

Mr. BISHOP. I think that such regulations ought to start from the presumption that information is public unless it comes within a specific exemption.

Regulations of this sort, I think, should also provide a procedure for review by the head of the department if there is a decision not to release information.

Second, so far as standards can be applied to more than one department or agency, they ought to be uniform throughout the executive branch.

Now, ultimately, of course, the President is responsible for executive policy on disclosure, and the President should give to his subordinates the clearest possible guidance in the matter.

President Truman did just this in the particular area of release of data relating to the loyalty of Government employees back in 1948. Another example, perhaps, is President Eisenhower's Executive Order No. 10501, relating to military information. The concept is one that could well be extended.

(The text of Executive Order No. 10501 is set forth as exhibit No. 2 at p.- of the appendix.)

Mr. BISHOP. Finally, I would like to suggest very deferentially that perhaps Congress might consider some codification of its own policies respecting requests for executive information and the use of information so obtained.

In my own experience, at least, not all of the abuses have been on the side of the executive. I can say, again from my own experienceand I acted as General Counsel of the Army for a period that the conduct of a very few irresponsible representatives of the legislative

branch may have contributed to the secrecy psychosis which the executive sometimes shows.

(At this point in the proceedings, Senator Hruska entered the room.)

Mr. BISHOP. Perhaps if Congress were to impose general standards of responsibility in these areas on all of its Members, that might be conducive to the development of a more reasonable attitude on the part of the executive.

That is all I have to say. Thank you very much.

Senator ERVIN. Mr. Counsel, I suggest that you ask Professor Bishop any questions which occur to you for further information; and, Senator Hruska, I am glad to welcome you to the committee and have you ask any questions that you care to ask.

Mr. SLAYMAN. Thank you, Mr. Chairman.

If there is no objection, Mr. Chairman, I would like to put a Yale Law Journal article by Professor Bishop in the record, published in February 1957, entitled "The Executive's Right of Privacy: An Unresolved Constitutional Question."

Senator ERVIN. Without objection, it will be made a part of the record.

(The article referred to is as follows:)

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