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 O'MAHONEY. 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 $212 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 records.

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 point.

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. May I interrupt at this point, Senator?
Senator HRUSKA. Certainly.

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.

Had you made similar requests for similar information prior to 1956?

Mr. POWERS. Prior to 1956 most of our audit effort on that particular program was confined to centralized audits of the financial transactions including vouchers, invoices, and other supporting information.

We did not make any comprehensive examinations or reviews of the operations except for one limited survey in connection with the obligating practices in the Department of Defense on this program at the site of operations. In the spring of 1956, when Mr. Joseph Campbell, the Comptroller General, directed us to expand our work in the defense area to the operating sites, we started to get into the inspections, internal reviews, examinations, and other types of internal documentation.

Senator HRUSKA. And you got them how long, until when?

Mr. POWERS. Well, I would say this: When we made the announcement to the Army in the fall or in the late summer of 1956 15 that we were going to make an audit of the tank automotive area, we requested the assistance of the Department of the Army in making available all documents, records, and reports. We were advised that the Department of the Army felt that they should not make available to us their internal audit reports until after corrective action had been taken on their internal audits.

We were formally advised of the Army's position on that, as I recall, Senator, in December of 1956.16

We subsequently advised 1 the Secretary of the Army, Governor Brucker, that we could not accept such a determination; that information from their internal audits as well as any other internal reviews should be made available to us.

The Secretary of the Army directed then that the matter be given further consideration, and this was followed by a period of discussions with the Army representatives.

Later we were advised by the Army that the matter was under consideration by the Department of Defense.

After writing several times to the Secretary of Defense we subsequently received some correspondence from the. Defense officials to the effect that they were going to get together with the Comptroller General to resolve it, but nothing happened.

In August 1957, we reported the problem to the Congress and, as I recall, to the Senate Government Operations Committee.18

The chairman of that committee immediately sent in August 1957, a letter to the Secretary of Defense asking for a report on the matter. I think within 2 or 3 days after the letter from Senator McClellan was received by the Secretary of Defense, representatives of Defense and Army came to our office and, as a result of just about 2 hours of meeting, the Army directive was not only prepared and agreed to, but on August 20 or 21, the Secretary of Defense advised Senator McClellan, Chairman of the Senate Government Operations Committee, that the matter had been satisfactorily settled by Defense, Army, and the Comptroller General. That resulted in the issuance of the Army guidelines.

15 See exhibit No. 25 at p. 325 of the appendix. 16 See exhibit No. 26 at p. 326 of the appendix. 17 See exhibit No. 27 at p. 327 of the appendix. 18 See exhibit No. 28 at p. 329 of the appendix.

Now we did have the problem there in the Army at that point in time on the tank automotive area which was resolved. We more recently had the case of the refusal of the Air Force to make available an Inspector General's report on the missile ballistic program.

Also, during the hearings before the House Government Operations Committee, the Subcommittee on Government Information, the chairman of which was Mr. Moss, the Air Force, as I recall, referred to an earlier request that representatives of GAO had made. I think in point of time it was in 1954, and it was in connection with our review of procurement practices in the Air Force.19

As I recall, that request was made in the early spring of 1954. About 3 or 4 months later a letter was sent back to Mr. Warren, who was then the Comptroller General, advising him that the Secretary of the Air Force did not feel that this particular report involving an inspection review of their procurement activities should be made available outside the Department of the Air Force.

Now, when we finally received that letter, the requirement for that report had completely disappeared since our work was completed. It is my understanding that it was not necessary for us to press that particular matter any further.

There is also one thing I would like to make clear, and that is this: More recently, since the spring of 1956, both in the Air Force and in the Navy, up until the problem over the Defense directive occurred in 1958, we had been going into various Air Force activities and Navy activities, and we only had limited problems. This is understandable as our site audits were new to some of the bureaus and commands. They had never seen GAO out at the site before except under an investigation as contrasted with our comprehensive audit.

We have had access to reports of internal reviews in both the Navy and the Air Force.

Generally, there was no issue made of this by the operating people or by the responsible commanders at the operating levels. There were numerous reports, documents, and records that we have had access to, and there has been no significant problem on it.

The net effect, in my opinion, of this directive at this point in time is that it has reached a level of complete impracticality and stupidity, because practically all of our requests now have to be fed up this tremendous channel of command for someone to make a determination as to whether information in various documents needed in our audit of defense activities constitutes privileged information.

The result is there is a tremendous amount of manpower and time being wasted on the part of the operating people and on the part of our own employees in GAO trying to get the job done.

Senator HRUSKA. Mr. Keller, may I ask you to refer to your statement at page 13. At that point the Department of the Navy is reported to have advised you that "He believed"-I am reading now subparagraph (2), the last five lines on the page

He believed, in any event, that if the Navy should release them outside the executive branch of the Government in the future it would be only natural for persons familiar with the facts to soften criticism, avoid doubtful matter, and generally be more restrained.

19 See exhibit No. 31 at p. 332 of the appendix.

Now, I should like to address some thinking on the merit of that position.

After all, anyone who speaks in any of those internal audits or inspection reports has already placed himself on record with his superiors and with his service, isn't that true, by criticizing or making any statement or evaluation of an operation or procedure? He has already placed himself on record with his own service and within the executive department?

Mr. KELLER. That is correct.

Senator HRUSKA. There is no way that he could be prejudiced therefore by having recriminations inflicted upon him by his superiors, by a refusal of promotion, or by refusal of preferment or anything of that kind which has not already occurred?

Mr. KELLER. Except for this one point, Senator: It is my understanding that in certain types of investigations, the inspector goes out and may talk to Lt. John Smith, and that information supposedly only goes to the inspector.

Now, Lieutenant Jones' commanding officer may not know about the information he gives.

Senator HRUSKA. On the same basis that a great deal of information is gained by the FBI on its investigations or it gets its information on the assurance that that information will be confined only to the FBI man and his superiors or his associates?

Mr. KELLER. There may be instances where individuals would operate that way, but I think there are a number on the other side who speak their opinions very freely and do not care who knew about those opinions.

Senator HRUSKA. We can probably get into that further if and when we get representatives of the Departments to state and maintain their positions.

Mr. KELLER. Senator, I would like to clarify one point or, perhaps, supplement it is a better word.

You asked me about the hearings before the Moss subcommittee and who testified for the military departments.

It was limited to the Air Force representatives. It was the Secretary of the Air Force, Mr. Douglas; the General Counsel, Mr. Golden, and also the Inspector General, Lt. Gen. E. J. Rogers, U.S.A.F., and the Deputy Inspector General for Inspections, Maj. Gen. Jack Wood, U.S.A.F.

As I recall the testimony, the Secretary of the Air Force took the position that he was following the directive which was issued by the Secretary of Defense.

Senator HRUSKA. Mr. Chairman, have you finished?

Mr. KELLER. Yes, sir.

Senator HRUSKA. Mr. Chairman, I should like to ask leave to submit for inclusion in the record at this point the material found at pages 3885 to 3893, inclusive, which includes exhibit IX on page 3893 of the hearings of the subcommittee of the Committee on Government Operations held on November 12 and 13, 1958. Senator O'MAHONEY. It is so ordered.

(The pages referred to follow :)