Page Elsasser, Glen, "Senate Told of Harms of Secrecy," Chicago Tribune, 610 Evening Star, Washington, D.C., "Fulbright Panel Fights Secrecy," 611 Halloran, Richard, "Johnson & Clark Linked to Surveillance Planning,' 416 Hey, Robert P., "Executive Smoke Means Ire," Christian Science Monitor, 612 Hunter, Marjorie, "President Denies Arms-aid Plans to Senate Panel," "President vs. Congress, Nixon's Refusal to Furnish Data Deepens Constitutional Struggle," New York Times, September 3, 1971.. Kentucky Edition Courier, Evansville, Indiana, "Secrecy Irks Senate,' editorial, August 4, 1971... 615 614 616 Lewis, Flora, "A Question of National Security or Vengeance?", Washington 617 Marder, Murrey, "Senators Accuse Executive Branch of Contempt for 618 620 "Hill Unit Blocks Aid Bill, Demands Data," Washington Post, Washington, D.C., July 20, 1971 621 "The Balance of Powers," Washington Post, Washington, D.C., July 31, 1971_. 622 McGrory, Mary, "A United Front for Executive Secrecy," The Evening 623 Mintz, Morton, "Secrets of the Bureaucracies," Washington Post, Washington, D.C., July 20, 1971_. 624 Miami Herald, "Senate Committee Holds Up Foreign Aid Bill Over 626 National Observer, "Fulbright Panel Sets Deadline for Nixon to Give 627 Oishi, Gene, "Fulbright Would Bar Funds to Units Balking Congress," 628 1971__ 629 BIBLIOGRAPHY Library of Congress, Congressional Research Service, Foreign Affairs Library of Congress, Congressional Research Service, American Law 629 634 635 EXECUTIVE PRIVILEGE TUESDAY, JULY 27, 1971 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS, Washington, D.C. The subcommittee met, pursuant to notice, at 10 a.m. in room 2228 New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding. Present: Senators Ervin and Mathias. Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Professor Philip B. Kurland, University of Chicago Law School, chief consultant, and Professor Ralph K. Winter, Jr., Yale Universitiy Law School, consultant. Senator ERVIN. The subcommittee will come to order. The hearings the Subcommittee on Separation of Powers begins today concern the exercise of so-called "executive privilege"-a practice which touches the heart of the separation of powers doctrine. The term "executive privilege" is most commonly used to refer to a situation where the executive branch of the Government refuses to divulge information requested by the Congress. It is a term used more often by members of the legislative branch and by scholars than by the members of the executive branch who willfully withhold information. As I use the term, it refers to the withholding of any kind of information by the executive branch from any persons, be they Members of the Congress, or members of the taxpaying public. The subcommittee has studied the subject of executive privilege for the past 4 years. However, the current in-depth inquiry has attained special significance because of the recent controversy surrounding the publication of the so-called "Pentagon Papers" and the subsequent Supreme Court decision in the New York Times and Washington Post cases; that controversy brought the issue sharply into focus in the public mind, although it did not trigger these hearings, which were scheduled well in advance of the furor arising out of the publication of the Pentagon study. At issue in these hearings are conflicting principles: The alleged power of the President to withhold information, the disclosure of which he feels would impede the performance of his constitutional responsibilities; the power of the legislative branch to obtain information in order to legislate wisely and effectively; and the basic right of the taxpaying public to know what its Government is doing. These opposing principles have clashed in virtually every administration since the legislative branch undertook an investigation of (1) the St. Clair Expedition during George Washington's first term as President. Without questioning the propriety of the investigation, President Washington asserted: First, that the House was an inquest, and therefore might institute inquiries. Second, that it might call for papers generally. Third, that the Executive ought to communicate such papers as the public good would permit and ought to refuse those, the disclosure of which would injure the public: consequently were to exercise a discretion. Fourth, that neither the committee nor House had a right to call on the head of a department, who and whose papers were under the President alone; but the committee should instruct their chairman to move the House to address the President. In spite of his contention that the Executive possessed the discretionary power-or duty-to refuse to communicate any information "the disclosure of which would injure the public," all of the St. Clair documents were turned over to the Congress. There is ample precedent for the contention that Congress has the power to institute inquiries and exact evidence. "The power to legislate carries with it by implication ample authority to obtain information needed in the rightful exercise of that power and to employ compulsory process for the purpose ***" McGrain v. Daughtery, 273 U.S. 165 (1927). Although the Constitution is silent with regard to the existence of executive privilege, its exercise is asserted to be an inherent power of the President. Its constitutional basis allegedly derives from the duty imposed upon the President under article II section 3 to see that the laws are faithfully executed. The President claims the power on the grounds that it is necessary in order to provide the executive branch with the autonomy needed to discharge its duties properly. Inasmuch as the "President alone and unaided could not execute the laws ***" but requires "the assistance of subordinates" (Myers v. U.S. 272 U.S. 117 (1926)), the alleged authority to exercise executive privilege has thereby been extended in practice to the entire executive branch. In theory, the release of information within the executive branch is governed in part by Executive Order No. 10501, issued by President Eisenhower, and amended by him in Executive Order No. 10816, and by President Kennedy's Executive Order No. 10964. Essentially, these orders establish a system of security classifications which would restrict the release of information of defense matters that might cause injury or embarrassment to our national defense or our relations with foreign nations. Such orders are not authority to assert executive privilege, but they simply forbid or restrict disclosure of classified information. President Kennedy attempted to end the practice of delegating to employees of the executive branch the authority to claim executive privilege. In a letter to the House Foreign Operations and Government Information Subcommittee in 1962 he stated that the basic policy of his administration would be that "executive privilege can be invoked only by the President and will not be used without specific Presidential approval." Presidents Johnson and Nixon have reaffirmed this policy of limiting the exercise of executive privilege to the sole discretion of the President. Thus, theoretically, procedures have been instituted in the executive branch which would place the ultimate decision and responsibility for the exercise of the practice with the President. However, throughout my years in the Senate, I have learned that there is a great discrepancy between theory and practice, a discrepancy which is demonstrated by the continuing problems the Congress has in obtaining information from the executive branch. The asserted doctrine of executive privilege has developed unrestrained. In the absence of any congressional statutory authority or constitutional grant of the power, the will of each succeeding President has been substituted for legislation in the field. A contest of political power between the President and Congress has superseded the proper administration of Federal functions by the President under the restraints that would be provided by effective legislative oversight. Nor have the courts given any definite guidance on the issue, although the Reynolds and Curtiss-Wright 2 cases do contain some dicta relating to the problem. The assertion of executive privilege, or the power to withhold information, written and spoken, from Congress and the public under the assumed "inherent executive power," must, I think, be viewed in the context of the slowly but steadily increasing power of the Executive, a development that has been duly noted by numerous political and legal scholars. During recent years, the subcommittee has studied several examples of this trend-the so-called "Philadelphia Plan," instituting quota hiring requirements on Federal contractors in clear contravention of the 1964 Civil Rights Act; the misuse of the pocketveto power by the President; and Presidential impoundment of appropriated funds, to mention only three instances. As these studies have demonstrated, the increased power of the executive branch has enabled it to make crucial decisions absent any system of formal "accountability" for the exercise of such powers beyond the Presidential election every four years. Because the President has been able to act through Executive orders without the inconvenience and restraint of congressional authorization or delegation of power, there has been a very serious erosion of the principle of the separation of governmental powers. In all candor, we in the legislative branch must confess that the shifting of power to the Executive has resulted from our failure to assert our constitutional powers. Other than sporadic complaints by some Members and committees of the Congress, we have done little to prevent the Executive from withholding information when, in its sole discretion, it determines that it was necessary-or politically desirable to do so. Moreover, through the almost unlimited delegation of authority to the bureaucracy, Congress has actively encouraged the aggrandizement of Executive power. Finally the executive branch has access to information which the Congress cannot possibly match, and further the Executive has asserted the discretionary authority to employ that data in performing its myriad tasks. I fear that the steady increase of Executive power has come close to creating a "government of men, not of laws." 1 345 U.S. 1 (1953) 299 U.S. 304 (1936) There is no express language in the Constitution permitting the exercise of executive privilege. Its development has come about because the Congress has failed to assert its rightful powers, and the Executive has stepped in and filled the vacuum. However, the practice of executive privilege, it seems to me, is clearly in contravention of the basic principle that the free flow of ideas and information and open and full disclosure of the governing process is essential to the operation of a free society. Throughout history, rulers have invoked secrecy regarding their actions in order to enslave the citizenry. When the Government operates in secrecy its citizens are not informed and their ignorance breeds oppression. In contrast, a government whose actions are completely visible to all of its citizens is a government which best protects the freedoms which the Founding Fathers attempted to embody in the Constitution. Moreover, it is clear that the invocation of executive privilege is contrary to the spirit, if not the letter, of the Freedom of Information Act (5 USC 552), which was passed by the Congress with the express purpose of expanding to the fullest practical extent the full disclosure to the public of the actions of the Government. While it provides for nine specific exceptions, it likewise specifies that none of those exceptions constitutes authority to withhold information from the Congress. Section (4) (c) of the act explicitly states "This section is not authority to withhold information from Congress." It also can be argued with some cogency that the practice contravenes the philosophical thrust of the 1952 Supreme Court case of Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), where the Court invalidated President Truman's seizure of the steel mills by Executive order. The several majority opinions in that case clearly indicate that Congress is a coequal branch of the Government, and that its prerogatives may not be usurped or impeded by actions of the executive branch. The refusal to make information available to the Congress when needed for its legislative functions is inimical to the power of the Congress to fulfill its legislative duties. Beyond the penchant for maintaining secrecy through the invocation of executive privilege, there is a more generalized attempt to withhold information through the classification system, the infirmities of which were so clearly reflected in the recent furor over the "Pentagon Papers," and through the simple failure or refusal to disclose data which is of potential use or interest to the public in general. Through the use of the devices of secrecy, the Government attains the power to "manage" the news and use it to manipulate public opinion. Such governmental power is not consonant with a Nation of free men, and must be curtailed. Additionally, when the people do not know what their government is doing, those who govern are not accountable for their actions-and accountability is basic to the democratic system. In effect, those who govern are insulated from the effects of their actions, and the populace is precluded from obtaining the knowledge that is necessary to control the actions of the government in the manner envisioned by the Founding Fathers. |