EXECUTIVE PRIVILEGE

TUESDAY, MAY 5, 1959

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The subcommittee met, pursuant to call, at 10:40 a.m., in room 318, Old Senate Office Building, Hon. Thomas C. Hennings, Jr. (chairman of the subcommittee) presiding.

Present: Senator Hennings and Senator Hruska.

Also present: Charles H. Slayman, Jr., chief counsel, and William D. Patton, first assistant counsel; and Jerry O'Callaghan, legislative assistant to Senator Joseph C. O'Mahoney.

(Following is the announcement of the hearing, from the Congressional Record, Apr. 29, 1959.)

[Congressional Record, Apr. 29, 1959]

NOTICE OF HEARING ON EXECUTIVE PRIVILEGE BY CONSTITUTIONAL RIGHTS

SUBCOMMITTEE

Mr. HENNINGS. Mr. President, I wish to announce, as chairman of the Subcommittee on Constitutional Rights of the Committee on the Judiciary, that the subcomittee has scheduled a public hearing on the subject of executive privilege on Tuesday, May 5, 1959, at 10:30 a.m., in room 318-the caucus room-of the Old Senate Office Building, Washington, D.C.

The subcommittee will hear representatives of the International Cooperation Administration, who will testify regarding the citation of the so-called executive privilege by officials of the International Cooperation Administration as authority for withholding certain types of information from the General Accounting Office. Previously the subcommittee heard testimony from Mr. Robert Keller, General Counsel of the General Accounting Office, regarding this subject, and now is affording the Director of the International Cooperation Administration the opportunity to present his views.

Senator HENNINGS. The committee will please come to order.

I apologize to you, Mr. Saccio, and to others here for being late. I was detained in my office and was, therefore, unable to be here until this moment. Your patience is appreciated.

This is a public hearing, as all of you know, on the question of executive privilege.

Mr. Saccio, Acting Director of the International Cooperation Administration, is accompanied by Mr. John G. Burnett, General Counsel, and Mr. Henry T. King, Deputy General Counsel. They are here this morning to testify before the committee.

I understand Mr. Saccio will testify, and possibly the other gentlemen will want to make some oral remarks, too. This matter I will leave entirely to their discretion.

For some time, as you know, the subcommittee has been making a study of the alleged constitutional power of the President and his subordinates in the various executive departments and agencies, and also the independent agencies, to withhold information from the Congress and the public. Last year we heard the testimony of the Attorney General on this subject, and on March 13, 1959, we heard the testimony of several additional witnesses, including Mr. Robert F. Keller, General Counsel of the General Accounting Office.

During the course of the hearing on March 13, Mr. Keller testified in some detail regarding difficulties the General Accounting Office has experienced in obtaining certain types of information from the International Cooperation Administration, the Department of the Navy, and the Department of the Air Force. The subcommittee now wishes to give representatives of these departments and agencies an opportunity to discuss and explain their positions regarding the matters referred to by Mr. Keller, of which I am sure you gentlemen are familiar.

Mr. Leonard J. Saccio, who is Acting Director of the International Cooperation Administration, will be our first and possibly only witness representing the agency.

In the near future, I might say at this time, the spokesmen for the Departments of Defense, Navy, Air Force, and the Army will also be given opportunities to present their views and comments on Mr. Keller's remarks.

On behalf of this subcommittee, I will welcome you here this morning, gentlemen.

Mr. Saccio, we will be pleased to have you proceed in any manner you care to. You may read from a prepared statement, if you have one; or you may read from notes, of course; or you may speak more or less impromptu, if that is your desire.

STATEMENT OF LEONARD J. SACCIO, ACTING DIRECTOR, INTERNATIONAL COOPERATION ADMINISTRATION; ACCOMPANIED BY JOHN G. BURNETT, GENERAL COUNSEL; AND HENRY T. KING, JR., DEPUTY GENERAL COUNSEL

Mr. SACCIO. Thank you very much, Mr. Chairman. I do have a prepared statement which I would like to read.

Mr. Chairman and members of the committee, my name is Leonard J. Saccio. I am Acting Director of the International Cooperation Administration. I have with me Mr. John G. Burnett, General Counsel of ICA.

I am pleased to appear here this morning, in response to your invitation, to discuss the general subject of executive privilege and how it relates to the International Cooperation Administration, and in particular to discuss the question raised with you by the General Accounting Office regarding their access to evaluation reports prepared for the Director of the International Cooperation Administra

tion.

It may be appropriate to point out that we begin this discussion with what I believe is a very large area of agreement.

We in ICA firmly agree that Congress, the GAO, and the public should be fully informed with regard to our agency's programs and

operations. As the President has often emphasized, it is vital that there be a broader base of public and congressional understanding of the mutual security program if that program is fully to achieve its objectives.

Senator HENNINGS. Well, there is another factor there, too, Mr. Saccio. A good many of us will be voting for that program and voting for the full amount in support of the President. I have always been prepared to do so, irrespective of who the President may be, and have done so. I think it is very important, don't you, for Members of Congress to know as much as they can about these things?

I don't have to point out to you that many of us are subject to severe criticism by several organizations, some of which have been founded for the purpose and have as their main objective the stopping of all so-called foreign aid. Recognizing that these programs are hard to explain for the average businessman, farmer, wage earner, sometimes members of organized labor, we must prepare to inform our respective States in order to justify these programs and our votes.

I will vote as I have, and will continue to vote as I have, irrespective of the criticism, because I feel very strongly and I have always felt that the maintenance of our position-one might even say as a leader of the free world and of the great Western alliance-that we have no choice.

But we certainly do need all the facts marshaled.

Mr. SACCIO. I agree with that, Mr. Chairman.

Senator HENNINGS. That little interspersion, I thought was appropriate at this time. It need not be pointed out to you, because we are under fire on these things all the time, there are so many millions and billions of dollars sent to such and such a place, and the old cliche inevitably follows, "You can't buy friends," and all these threadbare arguments that we have been hearing ever since the birth of these programs.

Mr. SACCIO. I appreciate your remarks, Mr. Chairman.

Senator HENNINGS. I assure you there is no want of experience. You may proceed.

(At 10:45 a.m., Senator Hruska arrived at the hearing.)

Mr. SACCIO. All right.

We know that in a program such as ours-involving large appropriations administered under broad authorizations and used in complex operations conducted in some 66 countries and territories throughout the world-it is especially important that Congress and the General Accounting Office be provided with the maximum possible information needed for the performance of their respective functions.

We know that investigations of our programs-when conducted objectively and with the common aim of improving our effectivenesscan help us find ways to do a better job. We are under no illusion of perfection. We have a large organization of capable and highly dedicated people engaged in a most difficult and complicated task which is of critical importance to our Nation and its future. I am convinced they are doing a fine job. But there have been mistakes and there are bound to be more. We want to avoid or correct them as far as we can. So, while I don't suppose we find criticism any more pleasant than anyone else, we know the value of accepting and indeed seeking constructive criticism.

There is of course the possibility that the results of an investigation might be misused-that they might be employed to distort our record of performance or to damage rather than improve the program. But withholding of information is not the remedy for such a situation.

I have talked about our attitude regarding the furnishing of information. What is more important, our practice and performance have, I am satisfied, lived up to those standards. Over the years since this program began, and especially during the past 2 or 3 years, there have been not only the yearround audit activities of the GAO but also almost continual intensive investigations by various congressional committees. We have, with a few rare exceptions, made available all of the information and documents sought from us by these various audit or investigating groups. And let me assure you personally that in those few rare cases documents have not been withheld because they might prove embarrassing to the agency for the information they contained.

To be more specific, take the case of the GAO. At least since I joined the agency in December 1954, we have, to the best of my recollection, withheld only one type of document requested by the GAO—the special evaluation reports for the Director of the agency about which you have heard, and which have been withheld for reasons I will explain in a minute. With this sole exception, we have given the GAO access to all of the documents and materials they have requested, which has meant access to all of the documents and materials in our operating files.

I would hope that it is with this perspective-with the recognition that we will be talking about only a minute fraction of the total information and materials available that we can address the specific topic for discussion.

As regards the general question of the right of the executive to withhold information, Attorney General Rogers in his testimony before this committee on March 6, 1958, gave a full statement of his position. We, as an executive agency, share that position. I assume there is no need for me to undertake here to restate the basic position and underlying reasoning.

The withholding of the ICA evaluation reports is in accordance with well-known principles reflected in the Attorney General's statement and in other expressions of the executive's view on this matterthese reports, as I shall indicate, being a type of material as to which the executive has historically asserted the privilege of withholding. When the evaluation report system was instituted by the agency in 1956, it was determined at the outset that these reports were privileged and were to be withheld. Mr. Hollister, who was then Director of ICA, explained the basis for that determination in a letter of August 30, 1957, to the Comptroller General, pointing out that the Department of State fully concurred. Mr. James H. Smith, Jr., Mr. Hollister's successor as Director, expressly confirmed that determination in a letter of April 25, 1958 to the Comptroller General. And the Secretary of State has reaffirmed the determination.

Let me explain somewhat more fully what these evaluation reports are. These are confidential reports prepared for the ICA Director personally. They are prepared by a special program evaluation unit established in the Director's immediate office. Each report, normally