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(GENERAL ACCOUNTING OFFICE),

BEFORE THE

STANFORO
HEARINGS

AU VORIGHTS COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

OF THE

EIGHTY-SIXTH CONGRESS

FIRST SESSION

(PURSUANT TO S. RES. 62, 86TH CONGRESS, 1ST SESSION)

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COMMITTEE ON THE JUDICIARY

JAMES O. EASTLAND, Mississippi, Chairman ESTES KEFAUVER, Tennessee

ALEXANDER WILEY, Wisconsin OLIN D. JOHNSTON, South Carolina

WILLIAM LANGER, North Dakota THOMAS C. HENNINGS, JR., Missouri EVERETT MCKINLEY DIRKSEN, Illinois JOHN L. MCCLELLAN, Arkansas

ROMAN L, ARUSKA, Nebraska
JOSEPH C. O'MAHONEY, Wyoming

KENNETH B. KEATING, New York
SAM J. ERVIN, JR., North Carolina
JOHN A. CARROLL, Colorado
THOMAS J. DODD, Connecticut
PHILIP A. HART, Michigan

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS

THOMAS C. HENNINGS, JR., Missouri, Chairman JOSEPH C. O'MAHONEY, Wyoming

WILLIAM LANGER, North Dakota SAM J. ERVIN, JR., North Carolina

ROMAN L. HRUSKA, Nebraska
OLIN D. JOHNSTON, South Carolina

ALEXANDER WILEY, Wisconsin
JOHN L. MCCLELLAN, Arkansas
JOHN A, CARROLL, Colorado

CHARLES H, SLAYMAN, Jr., Chief Counsel and Staff Director
WILLIAM D. PATTON, First Assistant Counsel and Deputy Staff Director

SUE H. McCANDLESS, Research Assistant
MARCIA J. MAcNAUGHTON, Research Assistant

II

CONTENTS

Witnesses:

Bishop, Joseph W., Jr., professor of law, Yale Law School..

Keller, Robert F., General Counsel, General Accounting Office,

accompanied by:

Powers, Lawrence J., Director, Defense Accounting and Auditing

Division..

Staples, George H., Associate Director, Civil Accounting and

Auditing Division-

Kane, Owen A., legislative attorney, Office of Legislative Liaison;

and..

Bell, Hassell, Assistant Director, Defense Accounting and Audit-

ing Division..

Materials submitted for the record:

Article: “The Executive's Right of Privacy: An Unresolved Constitu-

tional Question,” Yale Law Journal, volume 66, No. 4, February

1957..

Letter to Thomas C. Hennings, Jr., chairman, Senate Constitutional

Rights Subcommittee from J. Russell Wiggins, executive editor,

Washington Post and Times Herald....

Letter to Thomas C. Hennings, Jr., chairman, Senate Constitutional

Rights Subcommittee from Joseph Campbell, Comptroller General

of the United States..

34 Opinions Attorney General 446...

Excerpts from “Availability of Information from Federal Departments

and Agencies," hearing before a Subcommittee of the Committee on

Government Operations, House of Representatives, November 12

and 13, 1958, pages 3885 to 3893 inclusive...

Memorandum on right of the Comptroller General to access to a report

of the Inspector General of the Air Force entitled "Survey of Man-

agement of the Ballistic Missiles Program”.

Letter to Thomas C. Hennings, Jr., chairman, Senate Constitutional

Rights Subcommittee from Hubert H. Humphrey, U.S. Senator

from Minnesota, together with text of an address entitled “The Need

To Know"

Symposium on "Executive Privilege: Public's Right To Know, and

Public Interest,” Federal Bar Journal, volume 19, No. 1, January

1959-

Article: "The Power of Congressional Committees of Investigation To

Obtain Information From the Executive Branch: The Argument

for the Legislative Branch,” by Philip R. Collins, the Georgetown

Law Journal, volume 39, page 563.-

Article: “The Power of the Executive To Withhold Information From

Congressional Investigating Committees,” by Richard P. Milloy,

the Georgetown Law Journal, volume 43, page 643.

Letter to Hon. Joseph Campbell, Comptroller General of the United

States, from Robert Dechert, General Counsel, Department of De-

fense, February 3, 1959..

Department of Defense Directive 7650.1, July 9, 1958-

APPENDIX

Exhibits for the record:

No. 1. Army Regulations 345–15 and 345–20..

No. 2. Executive Order No. 10501..

No. 3. May 17, 1954, letter to Secretary of Defense from President of

the United States...

No. 4. Section 161 of the Revised Statutes (5 U.S.C. 22).

No. 5. Budget and Accounting Act of 1921.-

No. 6. Section 206 of the Legislative Reorganization Act of 1946.-

245

48

247

268

274

282

282

294

Exhibits for the recordContinued

No. 7. House Document No. 805, 66th Congress -

No. 8. June 13, 1958, letter to the Secretary of the Air Force from the

Comptroller General of the United States....

No. 9. July 30, 1958, letter to the Comptroller General of the United

States from the Secretary of the Air Force-

No. 10. August 13, 1958, letter to the Comptroller General of the

United States from the Secretary of the Air Force-

No. 11. September 10, 1958, letter to the Secretary of the Air Force

from the Comptroller General of the United States - -

No. 12. Budget and Accounting Procedures Act of 1950-

No. 13. October 30, 1958, letter to the Comptroller General of the

United States from the Secretary of the Air Force.--

No. 14. November 7, 1958, letter to the Secretary of the Air Force

from the Comptroller General of the United States . -

No. 15. September 9, 1958, letter to the Secretary of the Navy from

the Comptroller General of the United States -

No. 16. October 17, 1958, letter to Comptroller General of the United

States from the Under Secretary of the Navy (W. B. Franks)-

No. 17. October 30, 1958, letter to the Secretary of the Navy from

the Comptroller General of the United States.

No. 18. November 22, letter to the Comptroller General from Secre-

tary of the Navy Thomas S. Gates-

No. 19. June 18, 1957, International Cooperation Administration

Memorandum for the Executive Staff.

No. 20. April 25, 1958, letter to the Comptroller General from J. H.

Smith, Jr..

No. 21. August 15, 1957, letter to John B. Hollister, director, Inter-

national Cooperation Administration from the Comptroller General

of the United States....

No. 22. August 30, 1958, letter to Comptroller General of the United

States from Director of International Cooperation Administration.-

No. 23. June 26, 1958, letter to the Secretary of Defense from the

Comptroller General of the United States..

No. 24. March 21, 1958, letter to Assistant Secretary of Defense W. J.

McNeil from the Comptroller General of the United States.-

No. 25. October 9, 1956, letter to the Secretary of the Army from the

Comptroller General of the United States ..

No. 26. December 19, 1956, letter to the Comptroller General of the

United States from the Secretary of the Army -

No. 27. February 7, 1957, letter to the Secretary of Army from the

Comptroller General of the United States.

No. 28. August 13, 1957, letter to Hon. John L. McClellan, Chairman,

Committee on Government Operations from the Comptroller

General of the United States..

No. 29. August 15, 1957, letter to Secretary of Defense Charles E.

Wilson from Senator John L. McClellan, chairman, Senate Com-

mittee on Government Operations.

No. 30. August 20, 1957, letter to Senator John L. McClellan, chair-

man, Senate Committee on Government Operations from Secretary

of Defense Charles E. Wilson.--

No. 31. October 2, 1958, letter to Mr. Paul Southwick, professional

staff member, Government Information Subcommittee, Committee

on Government Operations, House of Representatives, From R. F.

Keller, Assistant to the Comptroller General of the United States,

with attached correspondence in 1954 between the Comptroller

General and the Secretary of the Air Force--

No. 32. Notice in Congressional Record, March 12, 1959, of public

hearings on “Executive Privilege" and "Freedom of Information”..

EXECUTIVE PRIVILEGE

FRIDAY, MARCH 13, 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 a.m., in room 457, Senate Office Building, Hon. Sam J. Ervin, Jr., acting chairman, presiding.

Present: Senators Ervin, O'Mahoney, and Hruska.

Also present: Charles H. Slayman, Jr., chief counsel, and William D. Patton, first assistant counsel.

Senator ERVIN. The committee will come to order.

I regret very much that illness will prevent the subcommittee chairman,

Senator Hennings, from presiding today. For the past several years the Constitutional Rights Subcommittee has been making a broad study of freedom of information and secrecy in Government. Our chief purpose has been to determine to what extent constitutional rights are being infringed by present-day restrictions on the dissemination of information in this country.

Today, we resume public consideration of an aspect of secrecy in Government which, in my opinion, raises a number of vexing constitutional problems—the asserted power of the President and his subordinates, under the Constitution, to withhold information from the Congress and the public. Among the many difficult questions raised by the exercise of this alleged power or "privilege” are: To what extent does such a constitutional power or "privilege” actually exist ? Who may exercise it and under what circumstances ?

To whom may it be delegated, and how? And, finally, to what extent may it properly be invoked by officials in the so-called independent regulatory agencies?

The subcommittee already has some testimony on this subject. On March 6, 1958, Attorney General Rogers appeared in person before the subcommittee and spelled out his views in considerable detail. Now we want to have the benefit of additional views.

Today's witnesses will include Prof. Joseph W. Bishop, Jr., of the Yale Law School; Mr. Robert Keller, General Counsel of the General Accounting Office; and Mr. Lawrence Powers, also of the General Accounting Office.

In addition to the testimony of these eminent gentlemen, we had hoped to hear testimony from Prof. Edward S. Corwin, who has long been one of the country's leading writers and students of the Presidency; and from J. Russell Wiggins, executive editor of the Washington Post, a leading authority on the entire subject of freedom of information. Unfortunately, illness has prevented Professor

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