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gently. In 1958, Chairman Lyndon Johnson of the Senate Preparedness Subcommittce requested copies of the “Killian and Gaither panel reports” which had been prepared at President Eisenhower's request to assess the nation's military status. The President resuscd on the ground that a turnover would (1) "violate the confidence of the advisory relationship" and (2) "make public thc highly secret facts containcd in their reports."631 How can that "confidence" be weighed in the scales with the fears that haunted Congress and the nation as the Soviet Sputnik circled the skies? 632 Johnson and Speaker Rayburn could as readily be trusted with information that must at all costs remain secret as Eisenhower himself. When President Kennedy was taking steps to “quarantine" Cuba in the ominous days of November, 1962, measures that carried the dread possibility of atomic war, he did not keep the congressional leadership in the dark.638 Surely lesser matters are not entitled to greater concealment. Nor does communication to Congress necessarily entail publicity.634 True, the President is Commander-in-Chief, but it is Congress that is to “raise and support armies." Without the aid of Congress he would have no army to command, and before it raises an Army it is entitled to know “the state of the Nation.” It should not be forced "to legislate in a vacuum."636 Upon Congress no less than the President depends the readiness of the nation to meet the dangers that threaten: "The Congress, as well as the President," said Mr. Justice Douglas, is “trustee of the national welfare."30 It is not a limited partner in the business of governing. Nor must the desirability of secrecy be too readily assumed. There is impressive testimony by noted scientists that the top-secret executive approach has hindered the technological development which is the key to paramountcy in the Cold War.637 And at least one competent 1965)

631 Carrow 167.

632 The Sputnik was fired on October 5, 1957. N.Y. Times, p. 1, col. 8. "Not unnaturally, many Congressmen have come to fccl that they are being torn and badgered by dilemmas for which they are not responsible ...." TAYLOR 110.

633 Time, Nov. 2, 1962, p. 26.
634 See notes 567-69 infra.
635 This was a Senate committee's plaint. Kramer & Marcuse 877.

636 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 629 (1952) (concurring opinion).

Not a little remarkable is the withholding from Congress of unpublished opinions of the Attorney General, accompanied by an admonition that "the relationship between the United States and the Department of Justice was that of attorney and client." Kramer & Marcuse 664. This Freudian slip, the assumption that the executive department is the United States and that the Congress is not, may furnish a cluc to thc malady.

637 Wiggins 68-69. Lord Radcliffe, a judge of the Court of Appeals, who led a security inquiry after the conviction of William J.C. Vassal for espionage, reportedly said that “ 'everybody' who had anything to do with security 'always began and ended by realizing that far too much was called secret, compared to what was truly important."" N.Y. Times (Western ed.), Aug. 7, 1963, p. 2.

68 - 287 0.71 - 11

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observer remarks that "there is considerable likelihood, however, that the Congress may bc less well informed than the cncmy."138 Certainly the record of unflagging departmental opposition to disclosure on any and all grounds docs not conduce to confidence in executive determinations that information must be withheld.630

Such confidence is further undermined when one overcomes the tendency to personify executive refusals, to view them as actions by the department head or the President, and considers that agency heads “cannot, and should not ... determine in every instance whether or not action is required."640 What this means in a private litigation disclosure context was graphically portrayed by Wigmore:

The subordinate at that lowest point, obsessed by the general dogma
against disclosure, prepares a reply denying the application; he will
usually not have the initiative or courage to propose an exceptional
use of discretion in favor of granting the application. This draft reply
is sent up, "through channels" (as the phrase goes) past two or more
intervening superiors (each one treating it in routine fashion), till it
reaches the Departmental head or other chicf officer whose signature
is necessary. Arriving in a ponderous pile of daily draft correspondence
[plus quasi-judicial opinions, legal or economic memoranda, drafts of
proposed legislation or rules, or of proposed testimony before con-
gressional committees), it reccives the necessary signature without

further consideration.641 One who has seen government service, whether in upper or lower echelons, can confirm that the picture is lifelike. And it is generally

638 Wiggins 66, quoting SMITHIES, THE BUDGETARY PROCESS IN THE UNITED STATES 276. (Emphasis in original.)

639 We may perceive in another context how far administrative obstinacy, even persistence in wrong-headedness, can go. In the sequel to United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950) (sustaining bar to admission of foreign wife of American serviccman), the House "after considering the objections of the Department of Justice," had unanimously passed a private bill for Mrs. Knauff's relicf. While like action was pending in the Senate, the Immigration officials hastily brought her to Idlewild Airport for passage to Germany, and were halted only twenty minutes before departure by a stay issued by Mr. Justice Jackson. Hc stated that this departe mental action was calculated to "defeat any effort" to obtain Supreme Court revicw of bér petition for babcas corpus, and to "circumvent any action by Congress which the Department has vigorously opposed to cancel ber exclusion." GELLHORN & BYSE 812-13.

Another illustration of administrative persistence in error, after condemnation by a Scnatc committee, is afforded by Heyer Prods. Co. v. United States, 140 F. Supp. 409, 411, 412 (Ct. Cl. 1956). Hcycr had tcstificd before a Senate commilice that an Ordinance Center had made an award to the high bidder though Icycr's bid was $116,730 lower. The Scnato report said that Ordinance failed to "give convincing cxplanations” of the rejection of the low bid. Thercaster Hcycr bid again, was again the low bidder and again the same high bidder was prcfcrred. After investigacion the Senate committee reported that this "is a shamcful story." Judicial revicw unhappily was unavailablc because of the "standing to suc" doctrine. Rcscarch would doubtless multiply the instances.

040 Report of the Allorney General's Commillee on Administralive Procedure, S. Doc. No. 8, 77th Cong., 1st Sess. 18-22 (1941), quoted in GELLHORN & BYSE 19.

641 8 WIGMORE 793 (3d ed. 1940). Cj. note 416 supra.

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agreed that the food of major matters that cry for action by the department head must constrain him to shunt such relatively unimportant matters aside. 642 If they do reach him and involve "technical or complcx” matters, perhaps military secrets, the agency hcad, a veteran administrator has remarked in another connection, will usually take the staff proposals “on compulsory faith"; 643 "staff recommendations will inevitably be taken as prima facie correct."14

Of course the stakes are higher when Congress rather than a private litigant seeks information. But such requests also do not ordinarily reach the department head but are siphoned off by some lower official. If he is a top level associate, a general counsel for example, competing claims on his attention should not be lightly discounted. Initial refusals may therefore rest on the dictum of some bureaucratic underling to whom secrecy of the files has become second nature.545 As the heat rises review is escalated but by that time the agency position very likely has jelled, for it is the exceptional administrator who will frecly admit that his subordinates have erred.646 Some of the "embarrassing" withholdings earlier noted probably had their origin in just such a train of circumstances.

642 Ibid. McCORMICK, EVIDENCE 307 (1954). See note 416 supro.
618 Gardner, quoted in GELLIIORN & Byse, at 25.
844 Id. at 27.

646 Scc text accompanying note 399, 502-03 and notc 491 su pra. A former Deputy General Counsel of the Army tells us that "usually, thc head of a department has an aide-often his gcncral counsel-who is responsible for what is burcaucratically known as 'lcgislative liaison.' The aidc controls the flow of information to Congress, referring only the hottest questions to his boss. Of coursc thc ability and vicws of these virtuosi vary widely, and most of them play by car...." Bishop 489. Not by choicc do they “play by car" but bccausc thc nightmarish flow of business across their own desks simply lcaves no time for the kind of mcaningíul study that is involved in making an independent judgment. The subordinates upon whom perforce they must rely are often as not little men whosc first instinct is to hold all cards close to their chests. See Hardin 883.

A House subcommittee recently referred to cases "in which the exccutive branch personnel-often far down the administrative line from the President-cited this 'privilege' as authority for withholding information from the Congress and the public.” Gov't Info. Memo. 43.

That such determinations can turn on petty considerations was perceived by Lord Simon in Duncan v. Camell, Laird, & Co., (1942) A.C. 624, 642.

646 Senator Paul Douglas, a sympathetic obscrver of the administrative process, has observed that administrators, as other human beings, “do not like to admit mistakes and they naturally protect their own class." DOUGLAS, ETHICS IN GOVERNMENT 86 (1952), quoted GELLHORN & BYSE 182. In England, states Professor Wade, "lhc Minister will do what he can, out of natural loyalty, to protect his officials from ccnsurc." WADE, TOWARDS ADMINISTRATIVE JUSTICE 99 (1963). For examples of persistence in wrong-hcaded administrative action, scc note 539 supra.

Warner Gardner stated that: "In the course of a quarter oi a century in Washington I have encountered only one clcar instance where the head or an alrcady established agency or department succeeded in subjugating his employees to the point that the clear preponderance of the departmental actions, where there was room for choice, reflected his vicws rather than those held by his staff when he held office. That was done by Harold Ickes (who had 13 ycars in which to accomplisb it)." Quoted GELLHORN & BYSE 27.

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The difference between low level and top level consideration is illustrated by the broader attitude taken by President Eisenhower on the few occasions when he was questioned at news conferences about information withholding,547 and by the drastic diminution of the stream of refusals after President Kennedy took hold of the spigot.618 It may therefore be thought that the cure is to require certification by a department head that he has considered the matter personally. For the most part this would merely add an empty formality if only because of the relentless pressure of more important affairs. 640 An arresting illustration is afforded by the Attorney General's Memorandum earlier discussed. When one considers its numerous internal contradictions, 660 its strange concatenation of "authorities” which on even cursory scrutiny are revealed to be no authority at all,651 it is scarcely conceivable that either the Attorney General or his chief assistants could have read it.62 The fact that it was submitted to Congress in its woefully inadequate state over the Attorney General's signature as decisive of a longstanding controversy between Congress and President should make us skeptical of certifications by department heads on such lesser issues as the need to withhold information in the public interest.

VIII. PRACTICAL ARGUMENTS FOR EXECUTIVE PRIVILEGE

EXAMINED

If I have not misread history, the power of legislative inquiry into executive conduct at the time of the adoption of the Constitu

647 Scc text accompanying notes Sos and 524-26 supro.

618 Scc text accompanying notc 6 supro. Like President Kconcdy, President Johnson has announced that he "will not permit subordinates to claim cxccutive privilege to withhold government information from the Congress" but that the claim "will continuc to be made only by the president." San Francisco Chroniclc, April 3, 1965, p. 8, col. 1.

640 Scc suggested statutc in text accompanying notes 573-75 infra.

160 Compare his quotation of the Act of 1789 requiring the Sccrctary of the Treasury to furnish information to the Congress as “'may be required,'Atty Cen. wa mio. 47, with his statement that: “Up to now, Congress has not passed such a iaw,' id. at 4; his statement that "courts have uniformly held that the President and the heads of departments have an uncontrolled discretion to withhold the information," id, at 1, with his quotation that “the legal problems which are involved were never presented to the courts.' " Id. at 62.

Corwin is cited by him as confirming "the soundness of the actions of our Presidents and the decisions of the courts which lodges in the exccutive branch the power to determine what information to divulge and what to kccp sccrct," Att'y Gen. Memo. 43, despite a quotation from Corwin on the same pagc: "Nevertheless, should a congressional investigating committce issue a subpocna duces tecum to a Cabinet officer ordering him to appcar with certain adequately specificd documents, and should he fail to do so, I sce no reason why he might not be proceeded against for contempt of the house which sponsored the inquiry.'"

551 E.8., Appeal of Hartranji, discussed in text accompanying notes 311-14 supra. See also note 309 supra.

682 See statement by Mr. Justice Jackson, quoted in note 416 supra.

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tion was virtually unlimited; and on the whole it has served the democratic process well. While history is not a straitjacket, departures from historical “meaning" should not be at the call of every brccze that blows but only in response to grave-exigencics adjudged to be such by the courts. ,

The strongest argument for the existing de facto substitution of an unlimited power of withholding in the executive discretion is made by Professor Bishop, who concludes that "whercas the present situation is quite tolerable (not inimical to good government”), unlimited congressional access to executive information (whether "secrets of state" or merely "official information”) would almost certainly be intolerable."663 This conclusion collapsed under the recent facts: with one'exception President Kennedy gave Congress complete access to executive information 664 and as yet there is no sign that the consequences are “intolerable.” Then too, over the years the vast bulk of congressional requests for information have met with compliance,665 from which we may conclude that "merely 'official information'" was freely turned over without "intolerable” consequences. The claim of privilege for "merely 'official information,'” it cannot be unduly emphasized, is of relatively recent origin, and such claims have been rebuffed in private litigation.667 Of grave military and state secrets more will be said later. Several “practical considerations” are advanced by Professor

and such claims houly emphasized, is

litigation.667 Of ora

Bishop.

First, he argues, "congressional control over appropriations and legislation is an excellent guarantee that the executive will not lightly reject a congressional request for information . . . .9568 Events have proven the "guarantee” ineffectual; repeatedly the very administration under which he served lightly rejected such requests,669 notwithstanding congressional power to appropriate or abolish functions. Happily Congress has not permitted its frustrations to drive it to effective reprisals, such as withholding appropriations for missiles programs or abolishing the office of Inspector General because information was not forthcoming from the Armed

663 Bishop 486. 664 See text accompanying note 6 supra. 666 Sce text accompanying note 304 supra. Kramer & Marcusc 898, 629, 638. 660 Sce Younger 771-73. Sec also tcxt accompanying notc 492 supra.

667 "Mercly 'official information'" no longer can lay claim to the shelter of the housckcoping statutc, scc tcxt accompanying notc 489 supra; it cnjoys no casc. law protection, sce text accompanying note 490 supra. See also Wigmorc's comments, quoted in note 492 supre. See also note 451 supra.

668 Bishop 486. 660 See, e.g., text accompanying notes 356-65, 497, 500-04, 507-11, 518-52 supra.

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