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pursuant to the act of May 5, 1950 (64 Stat. 107), and on the general basis that the heads of executive departments have the right to withhold information or papers which they deem confidential, in the public interest.

The Manual for Courts-Martial, 1951, Executive Order 10214 dated February 8, 1951, was issued pursuant to article 36 of the act of May 5, 1950, 64 Stat. 120. Article 36(a) provides :

"The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he deems practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the U.S. district courts, but which shall not be contrary or inconsistent with this code.”

Article 151 (b) (3) of the Manual for Courts-Martial provides :

“The Inspectors General of the various Armed Forces, and their assistants, are confidential agents of the Secretaries of the military or executive departments concerned, or of the military commander on whose staff they may be serving. Their investigations are privileged unless a different procedure is prescribed by the authority ordering the investigation. Reports of such investigations and their accompanying testimony and exhibits are likewise privileged, and there is no authority of law or practice requiring that copies thereof be furnished to any person other than the authority ordering the investigation or superior authority. However, when application is made to the authority by court-martial certain testimony, or an exhibit, accompanying a report of investigation, which testimony or exhibit has become material in a trial (to show an inconsistent statement of a witness, for example), he should ordinarily approve such application unless the testimony or exhibit requested contains a state secret or unless in the exercise of a sound discretion he is of the opinion that it would be contrary to public policy to divulge the information desired.

“In certain cases, it may become necessary to introduce evidence of a highly confidential or secret nature, as when an accused is on trial for having unlawfully communicated information of such a nature to persons not entitled thereto. In a case of this type, the court should take adequate precautions to insure that no greater dissemination of such evidence occurs than the necessities of the trial require. The courtroom should be cleared of spectators while such evidence is being received or commented upon, and all persons whose duties require them to remain should be warned that they are not to communicate such confidential or secret information. * * *"

Since the Manual for Courts-Martial was issued pursuant to the authority of the President to prescribe procedure for such trials, and article 151 (b) MCM by its language is addressed to procedures of such courts, it obviously does not affect access by the General Accounting Office to Inspector General's reports determined by the Comptroller General to be necessary to the performance of his work, particularly where the report requested is not one dealing with personnel or criminal investigations.

Air Force regulation 120–3, paragraph 9, October 11, 1954, and similar regulations provide :

“Disclosure of or access to matters pertinent to and inquiry or investigation will be limited to persons whose official duties require such knowledge. The Manual for Courts Martial, 1951, states that inspector general investigations are privileged information. The same privileged status applies to inquiries and investigations conducted under this regulation. Also paragraph 3, AFR 190–16, July 29, 1954, excludes investigative reports and reports of inspectors general and base inspectors from release to the public as information. Reports by investigators will not be released or disclosed outside the Air Force without approval of the Secretary of the Air Force.”

Presumably these regulations were issued pursuant to section 161, Revised Statutes, 5 U.S.C. 22, or similar authority, authorizing the head of a department to issue regulations, not inconsistent with law, for the conduct of his department and the custody and use of its records. Since under section 313 of the Budget and Accounting Act the Secretary is required to give the Comptroller General access to records, any construction of the Air Force regulation denying the Comptroller General access is improper, and the regulation to that extent, being inconsistent with law, has no effect.

With reference to the right or privilege of the head of the executive branch of the Government to refuse to the legislative and judicial branch of the Government free access to records in the custody of the executive departments, support for such claim of right or privilege is found in 25 Op. Atty. Gen. 326, 40 Op. Atty. Gen. 45, and cases referred to therein.

Assuming, arguendo, that such right or privilege does exist, we do not believe it warrants an executive agency denying to the Comptroller General information or access to its documents in view of section 313 of the Budget and Accounting Act which clearly provides that “all departments * * * shall furnish * * * information * * *” required by the Comptroller General and that he shall have "access to and the right to examine any * * * documents of any such department. * * *" The opinion of the Attorney General in 1925, 34 Op. Atty General 446, discussed earlier, clearly recognizes the prerogative of the Comptroller General to determine what papers he should have to enable him properly to perform his audits and that the departments are required to furnish them.

The right or privilege asserted from time to time by the executive branch was considered in a study by the staff of the House Committee on Government Operations entitled “The Right of Congress To Obtain Information From the Executive and From Other Agencies of the Federal Government,” committee print dated May 3, 1956, and in great detail by the House Committee on Government Operations in connection with Public Law 85–619 approved August 12, 1958, as were the court cases cited and relied upon by the Attorney General. See House Report No. 1461, 85th Congress, 2d session. Also, there was there considered a line of later decisions starting with McGrain v. Daugherty, 273 U.S. 135 (1927) which upheld the power of Congress to require information sought for legislative purposes. None of the cases relied upon by the Attorney General involved demands by the Congress for information from the executive agencies. This was considered in a study on the matter furnished the committee by the Attorney General. See page 2938 of the printed hearings before a Subcommittee of the House Committee on Government Operations on June 20 and 22, 1956, on "Availability of information From Federal Departments and Agencies” wherein after citing and quoting from numerous court decisions he stated “None of the foregoing cases involved the refusal by a head of department to obey a call for papers or information. There has been no Supreme Court decision dealing squarely with that question."

As indicated, the precise question of whether the Congress has a right to obtain information from the executive which it refuses to furnish because of its confidential nature has not been the subject of a court decision. Where information sought by Congress by an executive department has been refused, the Congress has, at times, succeeded in bringing sufficient pressure to bear to obtain the information, or the executive department has, upon reconsideration, relented and furnished it. At other times the Congress has not pressed the matter-possibly because of its feeling that the President was in such a position that he should know whether the information should be withheld, or that the Congress had no machinery to force his compliance—and the information was not furnished. But regardless of whether such right or privilege exists, it is clear that the Congress in passing on future appropriations and other legislation has a right to know whether the funds appropriated are being properly and efficiently used for the purposes it intended and that any information available in that regard should be available to the Comptroller General.

In view of the above, and in the absence of any judicial determination specifically dealing with the rights of the Comptroller General under section 313, we do not believe that the position of the Secretary of the Air Force that the report in question can be legally withheld is proper.

ROBERT F. KELLER, General Counsel. Senator HRUSKA. You would not want to exercise your executive privilege in that regard? [Laughter.]

Mr. KELLER. No, sir.

Senator O'MAHONFY. He has no executive privilege. He is no better than a Senator. (Laughter.]

Mr. KELLER. Our position is quite clear. The General Accounting Office will not claim executive privilege.

Senator HRUSKA. Let the record show that the last remark of mine was facetious, Mr. Chairman.

Mr. SLAYMAN. Mr. Chairman, we have had references to certain provisions, and I would like to put those in the appendix, with your permission, if they are not set out in the

Senator OʻMAHONEY. I was going to ask Mr. Keller if he would go over his paper and insert not only the citations to the statutes but also the names of the individuals who have been mentioned.

You followed a very careful practice of referring, let us say, to the Inspector General without identifying the individual.

In a matter of this kind I think persons involved ought to be identified for the benefit of the committee.

Mr. KELLER. I would be very glad to do that.

Mr. SLAYMAN. We have the Attorney General's 1925 opinion, I think, already put into the record.

Have there been any court decisions on the power of the GAO to obtain information, that is, the Comptroller General to obtain information ?

Mr. KELLER. No, sir; there was not.

Mr. SLAYMAN. How long are these audit reports which you have referred to? I mean the size?

Mr. KELLER. I have an example of one here, sir. This is the report on Laos. It is 84 pages.

However, I anticipated your question. We could submit for the record the pertinent provisions relating to, the pertinent statements relating to, these evaluation reports.

Mr. SLAYMAN. And fully identified with titles ?
Mr. KELLER. I would be very glad to, sir.

Mr. SLAYMAN. Mr. Chairman, I have a few things for the record, aside from Mr. Keller's. We have a letter from Senator Humphrey with a statement on “the need to know."

Senator O'MAHONEY. It may be received.
(The document referred to follows:)


March 12, 1959.
Chairman, Subcommittee on Constitutional Rights, Judiciary Committee, U.S.

Senate. DEAR Tom: In connection with your subcommittee hearings scheduled for tomorrow on the topic of executive privacy, I would like to request that there be included in the hearing record the enclosed text of an address on this subject which I delivered February 13, 1959, before the national debate banquet at Northwestern University in Evanston, Ill. Best wishes. Sincerely yours,


THE NEED TO KNOW (Excerpts from address prepared for delivery by Senator Hubert H. Humphrey

(Democrat, Minnesota) receiving “Speaker of the Year" Award, at national debate banquet, Northwestern University, Evanston, Ill., Friday night, February 13, 1959) I am deeply grateful for the award you have bestowed upon me tonight.

To be cited as a person who has, in your opinion, done a commendable job to stimulate discussion and thought on current public issues is indeed a great honor. It is the more so because it is presented by a group which has so much experience and talent in the art of public discussion and debate.

Your award places me in the position of having earned a reputation which I must continue to deserve. But since you have presented me with this citation it is fitting that I use the occasion to speak briefly on the importance of discussion and debate, and on the essentiality of having the necessary information on those subjects chosen for discussion.


It is axiomatic that without lively discussion of current public issues, our political system—with its inestimable democratic process—would not survive. It would atrophy through lack of an essential ingredient in its diet, public discussion and debate. Public debate and discussion provide our citizens with the knowledge that they must have to judge the merit of the many issues which confront our Government, and without the discussants, the public would often be left with little or no opportunity to know how to choose public servantshow to choose those who best represent their views as to how the country should be managed.

Public debate and discussion, although imperative if our society is to survive and retain its vitality, must also have substance. If debate and discussion mean an exchange of ignorance, then certainly our people will be fooled into approving policies, and our legislators will be misled into passing laws, which are wrong from the standpoint of our national security and the well-being of our citizens.

On domestic matters, reliable information can and does emanate from a variety of sources. Our universities, our research institutions, our inquiring press, and the lay but well-informed voter all makes priceless contributions, in addition to the Government itself to the evaluation of proposed solutions to problems facing the body politic.

On the foreign front, however, our store of reliable information is sometimes more limited.

I do not mean that private institutions and private citizens do not and cannot make a contribution in the field of foreign policy. They can and they must. But on certain aspects of our national security, the information that is necessary to have before making decisions and rendering judgments is contained within the executive branch of our Government.

Let me cite an example which is very familiar to you, the problem of controlling and reducing armaments, and particularly the question of the prohibition of the further development of nuclear weapons.

You have been debating this question for the past several months. In order to prepare your cases, you had to have information. Without knowing what your various sources were, I am willing to bet that many, if not most, came from hearings and studies held and conducted by our Senate Subcommittee on Disarmament. Or, if they did not come directly from the subcommittee, many of your sources were stimulated as a result of the subcommittee's work.


Last year it took us literally months to find people in the executive branch of the Government who were willing and prepared to discuss the problem of the detection of nuclear weapons tests. Once we had some knowledge of what was involved in the detection problem, we could go outside the Government for additional views. But basically, we had to start with information that only the executive branch of the Government could supply. Until the Government agencies involved could be persuaded to release more information, intelligent discussion of the control and inspection aspect of prohibiting nuclear weapons production and stopping nuclear weapons tests could not progress.

But there is still a great deal of information that is classified on this matter, some of it for reasons that are difficult to understand.

The Disarmament Subcommittee has been holding hearings the past couple of weeks on many aspects of the disarmament question. Many of these hearings, the subcommittee felt required to hold in executive session. The reason for this was only so that the executive officers could speak frankly before the subcommittee. An executive session means that no witness can refuse to speak or discuss a matter on grounds that the matter is classified. However, the subcommittee requested each witness to go over his testimony carefully so that the maximum portion of it could be made public, and thus contribute to the public's understanding of the issues involved.


Getting information that has been presented in executive session released to the public is a frustrating and time-consuming job. And as I said previously, much information still cannot be released for a variety of reasons, some of them not very defensible.

Let me give you some examples, all of which have come out of my recent experiences with the Disarmament Subcommittee hearings. You will immediately see, I think, that the withholding of some of the information is justified, that the withholding of some of the information is questionable, and that the refusal to disclose still other information borders on the ridiculous.



Case No. 1. Information relating to the weight of atomic weapons relative to their yield is classified. This, I think you will agree, is clearly sensitive. I have no quarrel with this type of classification.


Case No. 2. A private witness who has been serving the Government in a specific capacity makes recommendations to the executive branch regarding future policies on the relationship of disarmament matters to the prevention of surprise attack. These recommendations are agreed to by one agency, but may be opposed by another agency and, therefore, the recommendations are classified.

This case I would call questionable.

It is understandable that the executive branch prefers to coordinate policy and reach agreement with all agencies concerned before a given policy is stated to the public. But such an attitude assumes that the public should not be privy to the formulation of policy, that the public should only know of policy after it has been set and determined.

It is reasonable to wait for policies to be coordinated among the various agencies of the government if eventually a decision is made which the public can then discuss and debate. But what we are witnessing today is a Government in which decisions are not being made, because there is no leadership at the top to resolve the differences of opinion among the various executive agencies.

I am aware that this is somewhat a partisan remark.

I would be dishonest, however, if I tried to gloss over this problem. I can understand that the Department of Defense, the Department of State, and the Atomic Energy Commission as well as other agencies in the Government have different views on such a question as to whether the United States should attempt to negotiate with the Soviet Union on questions of armaments control.

These differences of opinion are legitimate.

But if our Government is to be a positive force in this world, if our national security is to be preserved, if we are to earn the respect and confidence of the peoples of other nations, and if we are to know what kind of policies we should follow in dealing with the Soviet Union and other countries of the Soviet bloc, then these differences of opinion must be resolved. And they must be resolved within a reasonable period of time.

So I say that a witness' personal recommendations may be legitimately withheld from the public for a time, but if weeks go by and nothing happens, then it is time for the public and its Representatives in Congress to begin to ask questions, and to apply pressure to have these matters brought before the public for debate.

SEISMOLOGICAL RESEARCH Case No. 3. Scientific research is now going on regarding the study of the earth, how to distinguish earthquakes from nuclear explosions, and how to perfect instruments to identify earthquakes and explosions. This research is still classified. I fail to comprehend why the nature of the research is withheld. The research does not deal with weapons; it deals with seismology. We are told that if instruments are placed deep in the earth, this may be an excellent means of detecting and identifying nuclear explosions and earthquakes. But you cannot be told how the experiments will be conducted, where they will be conducted, who is responsible for carrying on the research, and when it is expected to be completed. Yet, the experiments would have great interest for seismologists the world over, and even more important at this particular time, the results could have a significant impact on negotiations now underway in Geneva for a controlled suspension of nuclear weapons tests.


Case No. 4. Certain portions of testimony are deleted on the ground that the witness is a consultant to an advisory body to the President and, therefore, the information should not be given out. Not only is it contended that this is privi

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