Page images

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.



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 Iocked 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:)







A CONSTITUTIONAL question of the first importance, raised in more or less acute form in practically every administration from Washington's to Eisenhower's, is, singularly enough, still wide open. That question is the constitutional

power of the executive to withhold information from the legislature. seems to be no nearer settlement today than it was in 1792, when President Washington announced the right of the executive to exercise its discretion in communicating executive documents requested by a committee appointed by the House of Representatives "to inquire into the causes of the failure of the late expedition under Major General St. Clair."

A regular reader of the newspapers need reflect but briefly to realize the tremendous political importance of the problem. The files of the executive bulge with documents which Congressmen, froin the best and worst motives, are eager to examine and which bureaucrats, also from the best and worst motives, are determined to keep to themselves. Many of these documents, if published, would certainly cause headlines and headaches all across the nation, and some might create a stir in foreign chancelleries—a prospect from which the average legislator, especially if he be up for re-election, shrinks about as much as Brer Rabbit shrank from the briar patch, but which may cause exquisite pain to the executive branch. An example: among the large number of dossiers maintained by the FBI and the various intelligence and security services in the Pentagon there are inevitably some whose subjects are persons of local or national prominence. Many such dossiers contain "derogatory” information ? which, if portentously attributed by an unfriendly politician to "the

Deputy General Counsel of the Army, July, 1952 to October 1, 1953; Acting General Counsel in August and September, 1953. Member of the District of Columbia and Yew York Bars.

1. See BINKLEY, PRESIDENT AND CONGRESS 40-41 (1947). On this occasion, the President found no papers which might not properly be inspected by Congress. But four years later the problem recurred when a committee of the House demanded copies of the instructions and other documents employed in connection with the negotiation of a treaty with Great Britain. This time Washington found that “a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request.” 1 RICHARDSON, MESSAGES AND PAPERS OF THE PRESIDENTS 188 (1897).

2. The inclusion in a file of such information does not, of course, mean that it is true, or even that the agency thinks it is true. The investigators simply collect all available

files of the FBI,” might produce a political explosion. Another example: the files of the State and Defense Departments are naturally full of records of conversations between the governments of the United States and other countries, the disclosure of which might benefit the political fortunes of the Congressmen who disclosed them in approximate proportion to its adverse effect on relations between the two countries. Hence, it is not surprising that legislative demands for information and executive refusals have been so common;" what is at first blush surprising is that the conflict has never come to a real head.

As a matter of constitutional theory the problem might as well arise between the executive and the judiciary, or the legislative and the judiciary. The latter problem seems never to have arisen, probably because neither branch has any information, not available to the public, which is of much interest to the other. The former has often been raised—in situations in which the government is, or is said to be, in exclusive possession of relevant evidence—and has given rise to a considerable body of case law. Most such cases have been decided on grounds that throw at best a Alickering and feeble light on the main question. Nevertheless, because these cases have been cited as authority, and because it is at least true that there are no better judicial precedents, they merit discussion.

One class of such cases deals with the situation in which a subordinate federal official, directed by a court to disclose official information or produce official records, pleads a departmental regulation forbidding compliance with

material on the subject. Very few politicians (or evenordinary successful people) go through life without a single discreditable incident and still fewer without making an enemy.

3. The executive's right to withhold information has been asserted by such Presidents, in other respects so diverse, as Washington, Jefferson, Jackson, Tyler, Buchanan, Grant, Cleveland, Roosevelt I, Coolidge, Hoover, Roosevelt II, Truman and Eisenhower. These precedents are recapitulated in Wolkinson, Demands of Congressional Committees for Executive Papers, 10 Fed. B.J. 103, 223, 319 (1949).

4. Similarly, an interesting subject for speculation is the possible reaction of a congressional committee to an executive demand for information in the committee's files. In practice, the traffic has been all the other way, although once or twice the executive has politely indicated that it would appreciate information as to the facts on which congressional allegations.9., some of Senator McCarthy's figures on Communists in government-were based.

5. Sec, 6.9., 40 Ops. Art'y GEN. 45, 49 (1941). In a memorandum to the President, released by the White House on May 17, 1954, Attorney General Brownell made the remarkable and inexact assertion that “Courts have uniformly held that the President and the heads of departments have an uncontrolled discretion to withhold (from Congress) the information and papers in the public interest. ..." N.Y. Times, May 18, 1954, p. 24, col. 2. He cited no cases. The statement, like most of the memorandum, was lifted almost word for word from a law review article which had appeared some years previously, but the author of that article cited no cases either. See Wolkinson, supra note 3. Since there appears to be no case in which a court has passed on an executive refusal of a congressional demand for information, the writer must have had in mind cases in which the courts themselves have sought to obtain information from the executive-in which case the statement is still incorrect.

« PreviousContinue »