Page images

further held that the separation of powers doctrine was not violated by requiring the Commission to provide the legislature with whatever information it required to carry out its legislative functions.

In limiting its decision, the court said: “We are not here dealing with any question of diplomatic, military, or other secrets, involving the security of the State, or with any instance where for other sufficient reasons disclosure is forbidden by law." The report involved could hardly be considered secret, nor was the refusal based upon the grounds of public detriment. It is believed that the limitation supplied by the court would, if such a claim were made, have constituted "sufficient reason” to forbid its release. It seems clear that the executive department may not adopt the attitude that the legislature is not entitled to any of the documents held by the executive branch. Refusal must be limited to those documents the disclosure of which is considered detrimental to the public interest.

The foregoing "legal" argument demonstrates that the courts have, by analogy, tended to uphold the position of the Executive. While the cases are not directly in point, they are pertinent and would be given serious consideration should the issue come before a court.


Would it not be feasible to have the legislative committee consider disputed material in executive (closed) session and determine for itself whether disclosure would be against the public interest? The dangers involved in this procedure are so obvious as to have been recognized by members of Congress themselves. During the debate over House Joint Resolution 342,87 representative Sasscer of Maryland said:

. . . We say that the information may not get out. I have been in public life for a long time. ... if you are in a conference with over two or three people, no matter how sincere they may be, if the subject matter of the conference has to do with some matter or information which is secret and other information that is not secret, then after days go by, your recollection becomes dim as to what is secret and what is not secret. ... Then it is only a short time before the information begins to seep out over your radio and through your news commentators.68 As an example of the possibilities for harm, imagine secret disclosure to a Senate Committee of executive discussions on Formosa policy before a position was taken by the United States on the problem. A Senator

BS Opinion of the Justices, 328 Mass. 655, 102 N.E.2d 79 (1951).
66 Id. at 661; 102 N.E.2d at 85-86.
67 80th Cong., 2d Sess. (1948).
68 94 Cong. Rec. 5724 (1948).

need not disclose what he heard about the intentions of the executivehe need merely state prior to presidential action that he is unalterably opposed to any defense of Formosa and that he hopes the British are of the same mind. In making the front page, he may upset foreign negotiations, disclose our position to Communist China, and let the cat out of the bag generally. It is no answer to say members of Congress would not act in that manner. It was said in regard to House Joint Resolution 342:

I do not mean to indicate a lack of confidence in my brethren in the House. But I do recognize the apparent desire of some Members to do something sensational to get publicity. I have not seen any finer opportunity presented since I have been in Congress to bring about that sort of thing, which is quite contrary

to what we are attempting to achieve in the proposed legislation.89 If discretion with regard to information held by the executive branch is to exist, it must reside in the President.


An attempt has been made to demonstrate that the legislative investigating committees have no more right to subject the executive to their will than the executive has to impose its will upon Congress. The Constitution, precedent, and reported cases do not furnish a basis for encroachment by either branch.

The Constitution established three branches of government and each was intended to be supreme in the functions assigned to it.

By the precedent argument it has been shown that Congress has done little for 150 years when the president or one of his departmental heads refused, on grounds of public interest to furnish committees with information ordered to be produced.

As to reported cases, no court has been found which has held a department head in contempt because of his refusal upon grounds of public interest to furnish the information requested. The decisions show that the executive privilege is recognized by the judiciary, and by analogy, the courts should apply the same ruling to congressional investigating committees.

Lastly, the inherent danger of effective disclosure and harm to the public precludes the possibility of publication to a committee in executive session.

The privilege does not apply to all matters, but is limited to material prejudicial to the public. It would be absurd to claim the privilege for

Congressman Boggs in 94 Cong. Rec. 5729 (1948).

all information the legislature requested of the executive. The executive has never claimed such a broad privilege.

The discretion must lie somewhere and it should be with the executive. “Discretion and the right of decision regarding executive papers must lie with the President as head of the executive branch of the government. But these must be guided by a recognition that the executive and legislative branches belong to the same government and are supposed to function as partners.

170 That the executive has cooperated in most cases was shown by the legislative's argument in opposition to the executive "precedent” argument. There, by a recitation of many instances when the president cooperated with Congress, it was shown that the privilege of refusal has rarely been used except when presumably necessary on grounds of public policy.

The power of the Executive to withhold information from congressional investigating committees involves the broader issue of the nation's need for Presidential leadership. The following excerpt from an address by former President Truman on May 8, 1954, is in point:

The President is responsible for the administration of his office and that means for the administration of the entire executive branch. It is not the business of Congress to run any of the agencies for him. Unless this principle is observed, it is impossible to have orderly government. The Legislative power will ooze into the Executive offices. It will influence and corrupt the decisions of the executive branch. It will affect promotions and transfers. It will warp and twist policies. Not only does the President cease to be master in his own house, but the whole house of government becomes one which has no master. The power of decision then rests only in the legislative branch, and the legislative branch by its very nature is not equipped to perform these executive functions. To this kind of encroachment it is the duty of the President to say firmly and flatly "No" The investigative power of Congress is not limitless. It extends only so far as to permit the Congress to acquire the information that it honestly needs to exercise its legislative functions. Exercised beyond those limits, it becomes a manifestation of unconstitutional power. It raises the threat of legislative dictatorship.71 This is a correct statement of the true basis of the executive's power to withhhold information on grounds of public interest. It is not only a privilege and right of the executive—it is a duty.


70 Barth, Government by Investigation 39 (1955). 71 Quoted in Barth, op. cit. supra note 71, at 219.

Mr. SLAYMAN. Mr. Chairman, we will be in touch with the Army and Air Force and Navy and ICA to see about getting their positions on these matters.

Senator HRUSKA. Don't forget the Department of Defense.
Mr. SLAYMAN. Thank you. And the Department of Defense.

Mr. KELLER. Mr. Chairman, I was asked by counsel as to whether we had any additional information or communications.

When we reported to the Congress the Military Sea Transportation Service case we also reported the matter to the Secretary of Defense. I have here a copy of a reply from Mr. Robert Dechert, General Counsel of the Department of Defense dated February 3, 1959, addressed to the Comptroller General acknowledging receipt of a letter to the Secretary of Defense, Mr. Dechert's letter in closing says:

“Your letter and its enclosure are being carefully considered and I hope that the Department will be in a position to make further answer promptly.”

Senator O'MAHONEY. Have you read the whole letter?
Mr. KELLER. No, sir.

Senator O’MAHONEY. It may be inserted in the record at the conclusion of your remarks.

Mr. KELLER. All right, sir.
(The document referred to follows:)

Washington, D.C., February 3, 1959.
Comptroller General of the United States,
Washington, D.C.

DEAR MR. CAMPBELL: I write at the direction of the Secretary of Defense in order that you may have an acknowledgment of your letter of January 22, with which you sent a copy of your nine page letter of the same date, addressed to the Honorable Carl Vinson, Chairman of the Committee on Armed Services of the House of Representatives.

We understand that this letter to the Secretary of Defense represents your answer to the interview which you courteously gave to Assistant Secretary of Defense McGuire, General Counsel of the Navy Trowbridge von Baur and me, during November.

Your letter and its enclosure are being carefully considered and I hope that the Department will be in a position to make further answer promptly. Very sincerely,

ROBERT DECHERT. Senator O’MAHONEY. Anything else, Mr. Slayman? Mr. SLAYMAN. No, sir.

Senator O’MAHONEY. The committee will now stand in recess subject to the call of the Chair.

Thank you very much, Mr. Keller, and your associates for your presentation this morning.

Mr. KELLER. Thank you, Mr. Chairman.

(Thereupon, at 1:05 p.m., the subcommittee took a recess subject to the call of the Chair.)

« PreviousContinue »