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The July 9 directive directs the military departments to issue supplementary regulations to carry out the overall defense directive.
Now, the overall defense directive is a departure from the Army agreement which we worked out.
I assume the new Army directive when issued will follow the July 9, 1958, directive issued by the Secretary of Defense and, therefore, the Army policy will become more restrictive than it has been in the past.
Senator HRUSKA. Mr. Keller, that subject of the Department of the Army agreement which you made was canvassed by the Comptroller General—I do not know if he appeared personally or not in the House hearings before the Government Operations Committee in November of 1958, I think, but at any rate
Mr. KELLER. That is right.
Senator HRUSKA (continuing). In the appendix exhibit VIII A there is a letter from the Comptroller General directed to Congressman Moss, chairman of the special committee, and there are attached to that letter a number of exhibits, and also an appendix or two.
Now, in that collection of exhibits is included exhibit VIII which consists of a memorandum entitled "Guidelines Relative to General Accounting Office Comprehensive Audits.”
If you have a copy of that, you will find that on page 3891. I notice on page 3892 of that report that there are paragraphs 8 and 9 dealing with the material which will be made available to the Comptroller General.
In those paragraphs I further notice that there is the distinction made between investigative reports to which you referred and the internal audit reports. That is correct, is it not?
Mr. KELLER. That is correct, sir.
Senator HRUSKA. So the testimony which you gave here earlier today substantially reflected paragraphs 8 and 9 as contained in these guidelines to which I refer?
Mr. KELLER. That is correct, as contrasted with paragraphs 3 and 4 of the Defense directive.
Senator HRUSKA. Am I correct in that?
You understand, Senator, there is a difference between paragraphs 3 and 4 in the new directive and 8 and 9 of the old Army directive.
Senator HRUSKA. Precisely, and that is very readily apparent from the language of the two. In fact they say so expressly in paragraph 3 that such reports, in one instance such reports may be summaries, and summaries may be furnished, and so on, which is not true in paragraph 9 of the guidelines that were issued last August.
Mr. KELLER. That is true.
In fact, of the guidelines issued by the Army, there was no restriction on summaries at all. In other words, they could be furnished. If we wanted a complete investigation report, as distinguished from an inspection report, we would take the matter up with an Assistant Secretary.
Senator HRUSKA. I would like to read from page 3886 of that report, which is the memorandum of the Comptroller General on this subject. It reads as follows:
Representative of the Department of Defense and Department of Army assured us that all inspections, surveys, and internal review types of reports as distinguished from the investigative type would be readily available to our representatives under the directive to be issued by the Department of Armyand then this very significant sentence:
It was further indicated that the Department of Defense would make this procedure uniform throughout the three military departments.
Now then, did you have any negotiations or conferences with representatives of the Department of Defense or the Army, Navy, or Air Force after August 1957 or 1958 on this subject?
Mr. KELLER. Yes, sir; there were several letters and conferences on the subject, particularly in the spring of 1958.
There was a shift, at least in my opinion, in the position of the Department of Defense between the time of the Army directive in 1957 and the Defense directive in 1958.
Senator HRUSKA. Was their attention called to these assurances that were made back there in August that this same set of rules would be extended to the other two Departments of the Department of Defense?
Mr. KELLER. Yes, Senator. Our negotiations covered this point, but we were not able to prevail.
Senator HRUSKA. You were not able to prevail ?
Did they offer any explanation for the shift of policy in that regard or the decision?
Mr. KELLER. I cannot answer that precisely but I would say this, that in March 1958, a tentative draft was agreed on between the negotiators. This draft followed quite closely to the Army directive of 1957.
The Assistant Secretary of Defense, Comptroller W. J. McNeil submitted the draft to the Comptroller General stating it was his understanding that our representatives have worked this out and it was satisfactory to the Comptroller General.
The Comptroller General on March 21, 1958 (see exhibit No. 24 at p. 324 of the appendix) replied that he thought the proposal would be satisfactory; he was willing to try it, but if for any reason the procedures did not work out he reserved the right to reopen the question.
Between that time and July 1958, when the final directive was issued, there was a shift in position of the Department of Defense. I personally cannot explain why the position shifted. Senator HRUSKA. A little bit ago I did make an error.
It was not August 1958, in which the guidelines were issued; it was August 1957.
Mr. KELLER. 1957; that is right.
(Senator Ervin left the committee room at this point. Senator O'Mahoney is now presiding.)
Senator OʻMAHONEY (presiding). You may proceed, Senator.
Senator HRUSKA. Now, has any other committee, to your knowledge—we probably should know, but maybe you were called upon to testify-has any other committee followed up on the letters and the communications which were addressed to them on this subject!
Mr. KELLER. At this point
Senator HRUSKA. Addressed to them by the Comptroller General on this subject!
Mr. KELLER. At this point, Senator, one committee has held hearings. Hearings were held by the Government Information Subcommittee of the House Committee on Government Operations, on the denial of the report made by the Air Force Inspector General on the ballistic missile program.
Senator HRUSKA. Were you present at those hearings?
Senator HRUSKA. Dó you recall whether representatives of the armed services were present and testified at those hearings?
Mr. KELLER. Mr. Douglas, Secretary of the Air Force, and Mr. Golden, General Counsel of the Air Force, testified.
Senator HRUSKA. Mr. Chairman, may I inquire of counsel whether it is contemplated to call representatives of the Armed Forces for enlightenment on this subject and for their comments? After all we have one viewpoint here. Is it contemplated that we will call representatives of the Department of Defense and the Army, Navy, and Air Force and the ICA for the purpose of getting additional information?
Mr. SLAYMAN. Yes, sir.
As I indicated to you informally in our conversation a few minutes ago, we wanted to hear the General Accounting Office first as the eyes and ears of Congress itself, and then proceed to hear the positions to be made by the executive departments and agencies that have been covered here, today. We had not at that time contemplated, Senator Hruska, going into the Army matter because that seemed to be satisfactorily handled, but there is no reason why we could not reexamine that, too.
We intended to question the Air Force, the Navy and the ICA.
Senator HRUSKA. One reason I wanted to bring out the Army part of this was this: That earlier in the morning we had some very fine testimony from Professor Bishop, and I referred to the Army situation. At least I intended to, and I do not know whether I designated it properly or not-I referred to that situation as an example whereby this matter of confidential information and executive privilege can be adjusted properly by regulation on a totally satisfactory basis, assuming good faith on the part of both parties, and apparently for some reason we have had a withdrawal by the Department of Defense from the position that is set out in those guidelines.
I think, as one member of this committee, I should like to know why they receded from that position.
Earlier, also, the present chairman of this committee, the Senator from Wyoming, referred to the ICA program. I suppose we could get into a very extended discussion on that subject.
Senator O'Mahoney, I have indicated my way of dealing with that whole problem by consistently voting against foreign aid or mutual security appropriations and this is one of the reasons why. The program is so far removed from the control of the Congress that it is not even funny, and here we have a confirmation further of that very thing when they refuse to allow the agency of the Congress to inquire into the matter, which is made possible only because we loosen the
pursestrings and throw these billions at them and allow them to do pretty much as they want to with them.
That is one way of dealing with the situation. Unhappily there are not enough votes that go that way to affect that issue.
Senator OʻMAHONEY. If I may interrupt the Senator, I will say that I think the reason for it is that Members of Congress are all very busy with terribly complex problems and they do not have the time to make as many protests as should be made.
For my part, I think it is so important that we should do it in a very consistent and an efficient way, and when we have executive sessions of this committee I will be very glad to make suggestions along that line, as I know the Senator from Nebraska will.
For example, in the famous Teapot Dome case, when officials of the Government at the secretarial level were charged with improperly and corruptly giving a lease upon the Teapot Dome and on Elk Hills, as I remember it later, this plea of executive privilege was made in the court.
Of course, in this case the charge was corruption and deceit, and a crime, and the court held plainly that the plea could not be recognized where the issue involved a crime or fraud.
The reason for the establishment of the General Accounting Office was to prevent fraud, to keep the expenditures of the people's money on such a high, clean level that there would not be any fraud, and any regulations which are drafted by any agency of the Government authorized to spend money appropriated to it should not be permitted, in my judgment, to use this executive privilege.
Some have called this the executive fifth amendment.
Senator HRUSKA. Am I correct in my recollection of the Teapot Dome case that the assertion was made by the defendant in the case and not by the Government ?
Senator O'MAHONEY. That is right.
Senator HRUSKA. The Government, in fact, wanted to adduce the testimony, and the objection was raised not by the executive but by a man who had betrayed his trust of office, and was later found guilty and put in prison.
Senator O’MAHONEY. No question about that.
Senator HRUSKA. On the other hand, I would not want the record to indicate that ICA has been doing anything illegal, apparently not. The piling up of these $21/2 billion without the ability to spend it unless the country says so is something that is perfectly in accord with the laws that have been passed by this Congress.
But here is a question I would like to ask you, Mr. Keller: You have repeatedly referred to the budget act of 1921, and later of the, what is it, the 1950 or 1951 act?
Mr. KELLER. 1950.
Senator HRUSKA. The 1921 act directs that the Comptroller General and the General Accounting Office shall have access to all of these
Now then, would you have an opinion as to the constitutionality of that law in the light of these many decades of the assertion of executive privilege along lines which you have already outlined here?
Mr. KELLER. Senator, I do not profess to be a constitutional lawyer. I think we have here a very plain and clear statute enacted by the Congress, and signed by the President without any protest on that
We also are faced with a situation, which I think everybody concedes, that the precise question of whether executive privilege exists between the branches of Government has not been decided by the courts.
My position is, as General Counsel to the General Accounting Office, that we read the 1921 act as it is written by the Congress, and in the absence of a judicial determination to the contrary we have the right under that act to ask for and receive any information that we feel is necessary to carry out our duties.
Senator HRHsKA. I think, before I get to my next question, I would think the General Accounting Office is to be highly commended for the fashion in which it has gone not only by the law by which it was created, but also by the obviously good faith efforts to work it out on the basis of a regulation which would do justice to both branches of the Government.
However, in reference to the part of the law being signed by the President without regard to a protest, he also did not make any statements saying he is receding. Neither in 1921 nor in 1950 did the President indicate he is receding from his position that the executive privilege does exist and that he will continue to avail himself of it.
Mr. KELLER. No, sir.
Senator O’MAHONEY. I want to point out that the testimony of Mr. Powers this morning indicates that the obstacles to which the counsel of the General Accounting Office has been testifying have been recently established after, according to Mr. Powers, the fact. There have never been instances of this kind before, and complete access has been allowed to the books and papers of the Defense Department in the investigation of the mutual security supplies of military procurement.
Senator HRUSKA. Of course, we will have to go into the situation and find out how many times in the last 15 years requests had been made. Maybe they did not start earlier. Can you enlighten us on that?
Mr. POWERs. Yes. Senator, and Mr. Chairman, I was addressing myself, in response to the acting chairman's question to our requests for information relating to the military assistance program
Senator O'MAHONEY. Yes.
Mr. POWERS. We asked for and received this same or similar type of information, internal review reports made by country evaluation teams. We had access to those reports.
We had access to inspections made by the military services on the military assistance program. We effectively used that in performing our examination and audit of these programs.
Senator HRUSKA. Over how long a period of time did you make these requests?
Mr. POWERS. Since we began the military assistance audit in, roughly, the late fall of 1956.
Senator HRUSKA. So that there was a period there of many years when no request had been made at all for information of that kind?
Senator O'MAHONEY. Well, the mutual assistance program is a recent program.
Mr. POWERS. That is right.
Senator HRUSKA. I will go back to the Marshall plan. The labels may be different, but the program is the same.