Senator ERVIN. Before hearing from Senator Fulbright I would like to ask Senator Mathias, a member of the subcommittee, if he has a statement he would like to make.

STATEMENT OF SENATOR CHARLES MCC. MATHIAS, JR., RANKING MINORITY MEMBER OF THE SENATE JUDICIARY SUBCOMMITTEE ON SEPARATION OF POWERS

Senator MATHIAS. Thank you, Mr. Chairman.

I won't delay Senator Fulbright very long because I share with you a desire to welcome him, and anticipate what he has to say.

I would just like to say to you that I am delighted you called these hearings on S. 1125 and to point out that I think this is a further instance of the very signal service that you are rendering, because these hearings on executive privilege, taken together with the previous work of this subcommittee in an area of the impoundment of funds and the pocket veto, are all concentrating on the vital role of Congress as it was conceived in the Constitution, and as it may be leaching away under present practice.

Now, as far as Senator Fulbright's bill is concerned, it is my understanding that what he proposes is that when we ask officers and agents and employees of the executive branch to testify that they grant us at least the pleasure of their company, even if they are going to deny us the illumination of their knowledge and the comfort of their wisdom by the technique of invoking executive privilege. I think the bill represents a thoroughly modest move. It is the very least that can be done, that we can do. We are reasserting the role of Congress as a separate but equal branch of government. Few principles are more basic as to our system of government, as the chairman has just pointed out, as the separation of powers, but we seem to have forgotten over the years and decades that before you can have a genuine separation of powers that you have to have some genuine and vital powers to separate.

I regret to say that today in relation to the executive branch of government that Congress is in many respects, if not a third, a fourth class power.

The inability of the Congress to function as a truly coequal branch of government is, in my judgment, the far larger issue that underlies such current concerns as excessive executive secrecy, the abuse of executive privilege and the classification process, and the rather extensive reservoir of emergency powers available to the President.

Duane Lockard, the chairman of the Department of Politics at Princeton, a former Connecticut State senator, and one of our most respected students of our governmental system, has recently written that:

In essence the Presidency has become an elected kingship with decisive power in a broad wave of matters. The initiative is the President's to use or withhold; he can start a war or end one; he can breathe life into a domestic project or smother it. And these powers are singularly his-no institutional method by which his singular authority can be shared with others -not the Cabinet, the Congress nor anyone.

In no respect have the relative powers of the Congress and the executive become more unequal than in their respective abilities to

amass, assess, and use information. The executive branch is, among other things, one of the more enormous information gathering machines ever devised by man. The Congress, on the other hand, in carrying out its unique responsibilities for assisting the President in the conduct of foreign policy must rely for information partly upon what it reads in the papers, partly upon whatever it can get from experts outside government, but most of all upon what the executive branch chooses to tell it.

The executive branch can, with impunity, control the flow of information to the Congress and to the public. It can turn it off and on. It can decide how much information it will let flow, to whom it will flow, and when it will flow. Through the classification process it can-if it chooses-not only prevent the Congress and the public from obtaining information; it can keep them from even knowing that it exists. And by invoking the dubious doctrine of executive privilege, it can withhold information that the Congress has specifically requested, and withhold employees whom the Congress has asked to testify.

We have recently seen a particularly disturbing example of this problem. Congress last year directed the Law Enforcement Assistance Administration to submit by May 1, 1971, its recommendations for legislation to insure the security and accuracy of criminal justice data banks and guarantee the protection of individuals' constitutional rights. May 1, 1971 passed without any recommendations being received. An attempt to make expenditure of funds earmarked for criminal data bank projects this year dependent upon receipt of the recommendations was rejected by the Senate last week. The money was appropriated for the new fiscal year. In other words, even when the Congress dares to ask for information it then submits abjectly and performs in spite of the Executive's refusal to provide the requested information. We find ourselves appropriating without legislating, delegating without legislative oversight.

When any branch of government comes to possess such vast power over such a vast and vital body of information it comes, inevitably. to regard that information as its own exclusive property and employs it, inevitably for its own ends. In the process it prevents both the Congress and the public from doing their job. It undermines the foundations of democracy, which must rest on mutual trust between the people and their government, and among the various branches of government. It jeopardizes even the legitimate use of secrecy which in the words of Justice Potter Stewart, "can best be preserved only when credibility is truly maintained" when, in other words, the Congress and the public has a firm basis for believing that the executive branch will withhold information only on the gravest of grounds and under the most unusual of circumstances, not simply because it might embarrass the executive branch or any of its members, or even because it might give support to policies or proposals or ideas other than its own.

Today, the members of this Nation's press often have easier access to sequestered documents and information than do the representatives of this Nation's people. Officials of the executive branch have honed to a high art the practice of leaking-through "back rounders" and

other devices carefully selected classified material, as well as other previously confidential information, as a means of influencing public and congressional opinion. Recently, for example, at the same time Dr. Ellsberg was under indictment for making classified material public, somebody in the executive branch leaked to the peace proposal. Even foreign governments are sometimes made privy to information that is carefully kept from the Congress.

We seem to have reached the point, Mr. Chairman, where-as, more than anyone, you have made us aware the power of the executive branch to pry into the lives of individual citizens seems far greater than the power of citizens, or their representatives in the Congress, to pry out of the executive branch information that is legitimately

theirs.

Former Senate and White House aide, George Reedy, has described with considerable cogency the inevitable tendency of any Chief Executive-faced with the responsibilities of his Office-to identify his interests with those of a nation itself to regard opposition to his particular policies and programs as endangering the country itself. We have become accustomed, in recent years, to think of our national Government more and more exclusively in terms of the Presidency, and to think of the Presidency in terms of a single man sitting aloof and alone, in anguished isolation, writhing and wrestling like some latter-day Laocoon with the serpents of awesome responsibility, the coils of awful decision. That image, unfortunately, has proved all too accurate a reflection of reality. We have all seen, in such disasters as the Bay of Pigs and such tragic mistakes as the Vietnam war, how such isolation hurts the President and hurts the country. The more a President sits surrounded only by his own views and those of his personal advisers, the more he lives in a house of mirrors, in which all views and ideas tend to reflect and reinforce his own.

Rather than retreat even further behind Executive walls, it seems to me, a President would want to share the burden of decision and responsibility on such tortuous matters as Vietnam-would want to seek the advice and consent of the Senate not simply because the Constitution requires it, but because he requires it and the country requires it. He would understand that if that advice and consent are to be worth anything they must be based-to the greatest degree possible upon the same information that is available to him.

And if any President does not understand it, the Congress must insist upon it-must insist that if it is to carry out its constitutional responsibilities in foreign affairs, it must have access to the same information the President has access to the documents, the recommendations, the advisers-especially those White House advisers whose influence upon foreign policy is far greater than that of any members of the Senate or even of the executive department.

Beyond this, the Congress must-it seems to me develop a far clearer and more coherent policy governing the whole question of public and congressional access to information within the executive branch. I have introduced measures to improve the process of declassification of past documents and I expect in the near future to introduce measures to build a greater degree of automaticity-and objectivity-into the declassification process itself. These measures,

along with others such as Senator Fulbright's bill, will serve, I hope, as preliminary steps toward a more inclusive policy.

Indeed, Mr. Chairman, I hope that these measures, these hearings, and the issues they are concerned with, will encourage the Congress to undertake a far more fundamental effort not only to increase congressional and public access to information within the executive branch, but to strengthen the independent capacity of Congress to gather, analyze and evaluate information.

The Federal budget, for example, is the singlemost important instrument by which the Congress and the Executive make national policy and influence national priorities. Yet the Congress is not organized to consider the budget as a whole and, thus in any conscious, coherent way, to affect its fiscal impact upon the economy or to alter the allocation of funds among different programs. Nor is the Congress equipped to undertake anything but the most rudimentary analysis of new proposals or evaluation of old programs. Even in initiating programs of its own, it must depend on information and analyses supplied by either the executive branch or outside experts.

"Most ignorance," someone once wrote, "is vincible ignorance. We don't know because we don't want to know." If, in comparison with the Congress, the executive branch has become a separate and superior branch of Government, it is in no small part because the Congress has, over time, allowed it to assume almost exclusive control over that enormous information apparatus called the Federal Government-and because, over time, it has failed to improve its own capabilities for getting and sifting information.

Mr. Chairman, I wholeheartedly support Senator Fulbright's bill. Its purpose is as limited as it is laudable. I hope this subcommittee and the Congress will approve it as a part of a much broader and more basic effort to make the Congress the great deliberative and decisionmaking body that it must, once again, come to be.

Senator ERVIN. The Chair would like to commend the excellence of the statement of the Senator from Maryland, who makes many valuable contributions to the work of this subcommittee, and who, like our first witness, the Senator from Arkansas, is a champion of the right of the legislative branch of Government to occupy the place assigned to it by our Constitution.

We will hear from our first witness, Senator Fulbright.

STATEMENT OF HON. J. W. FULBRIGHT, A U.S. SENATOR FROM THE STATE OF ARKANSAS

Senator FULBRIGHT. Thank you, Mr. Chairman.

I listened to your statement and that of the Senator from Maryland with great interest. As we say on the floor of the Senate: I would like to associate myself with your remarks.

You, as Chairman of this committee, have been a great inspiration to all of us who are interested in restoring a proper role for the Congress in our constitutional system. In fact, I think it is your activities in the past several years which have given us enough encouragement to believe that our efforts wouldn't be completely futile to even introduce such legislation. Your activity is one of the reasons why I am here today and why I venture to make a suggestion.

I want to say-I will refer to it a little later in my remarks-I have a supplementary bill that has grown out of the first one which has been introduced, that I intend to introduce very soon as to the mechanics and the implementation of the principle which is contained in S. 1125.

Mr. Chairman, I hope you will bear with me, because much of what I am saying obviously to going to be very similar to what you have said. I find our experiences in this field have been quite similar, our experiences with the executive department.

The term "credibility gap" which we have heard so frequently in recent years, is a tame euphemism for a deep malady of our society. The malady is a loss of faith on the part of the American people in the truthfulness and integrity of their own Government. A recent Harris poll indicated that 71 percent of the American people believed that the "real story" from Washington seldom reaches the people. Another survey shows that 64 percent of our people believe the country is "off on the wrong track," and still another indicates that 47 percent of the American people are pessimistic about the Nation's future and believe there could be a "real breakdown in this country."

I would just interject, Mr. Chairman, to say that your own statement and that of Senator Mathias and the activities of this committee, I think, more than anything else I can think of, might restore some faith in the Government.

The controversy generated by the Pentagon papers is only the latest manifestation of the dissembling and subterfuge which have undermined popular confidence in our leaders and-far worse-in our institutions. Again and again, from the time of the U-2 incident in 1960 to the Bay of Pigs, the Dominican intervention, and all of the well-known misrepresentations concerning the war in Vietnam, our Government has been exposed in falsifications of its own practices and policies. Inevitably, this has taken a heavy toll on public confidence in our Government.

Sophisticated students of international affairs may scoff, pointing out that all governments engage in subterfuge in their foreign policies; it is, so they tell us, in the "nature" of politics, especially power politics. Perhaps it is, but until recently we Americans had supposed that we were guided by a higher, democratic standard. It comes, therefore, as something of a shock to have it suggested-in the understated words of The Guardian of London-that "The McNamara papers show that superpowers make decisions much the same way the world over-with scant concern for the opinions or the feelings of those they represent."

When a government refuses to put its trust in the people, the people in turn will withdraw their trust from that government, and that I fear, is exactly what has been happening in America in recent years. You, yourself, Mr. Chairman, have been in the forefront of the effort to resist and reverse this trend. Along with other Senators and citizens, I have followed with admiration your effort to curb the surveillance of civilians by the military, and I concur in your suggestion as reported in a recent press article that the Pentagon has conveyed "the appearance, if not the reality, of a contempt for

1 Quoted in Washington Post, June 17, 1971, p. A12.