Senator FULBRIGHT. I didn't think to inquire how many times he actually has done it, because he has denied the information without invoking privilege. That is what my major claim is. I don't see that to be a great burden because I don't think he is entitled to it except on the rarest occasions. I don't think it is in the national interest.

In our committee we always give our witinesses-whether Executive or anyone else, if they wish it, either for personal grounds or public grounds the privilege of going into executive session. Much of this information we were requesting was not intended to be used in open sessions for publication.

For example: As to the study I mentioned, it was not our intention to put it on the front page. It was for our own information to see how the operations of the government were carried on. So I don't think that they have invoked executive privilege except very rarely.

My staff tells me he thinks only once by Mr. Nixon and prior to that the last invocation was by Mr. Eisenhower. I know of no other instance. The problem hasn't been their invocation of it. What we are saying is: They should not refuse to give information unless they do invoke executive privilege. I don't see that that is any great burden, because I think it would occur very seldom if it is legitimately used. Professor KURLAND. It also purports to be the present policy, does it not, as expressed by recent Presidents, that it is they and they alone are capable of asserting executive privilege?

Senator FULBRIGHT. Oh, yes. Of course it is a coincidence that Secretary Rogers, who wrote that very far-reaching opinion when he was Attorney General, is now Secretary of State, and I am sure he still shares the views he expressed at that time. This is a very extreme view. When Mr. Katzenbach was Attorney General he took an extreme view about the Constitution on the war powers. He practically said the Constitution was obsolete and no longer applicable. This is a view some people still take. I don't accept it. I share what I believe to be the views of the chairman of this committee, that the Constitution is still a very important document and our greatest difficulties have arisen when we have deviated from it. I am one who wants to abide by it.

Professor KURLAND. It seems to me that S. 1125 is incomplete without the adjunct bill.

Senator FULBRIGHT. I agree with you. We will introduce that either this afternoon or tomorrow. As we thought about it, we thought that the initial bill was incomplete and needed supplementation; therefore we drew up this subsequent bill.

I don't know whether we should introduce it as an amendment to that bill or as a separate bill.

Professor KURLAND. It is only the second bill which contains a provision which would compel testimony?

Senator FULBRIGHT. That is right.

Professor KURLAND. And it is only the second bill which has any sanctions for failure to comply?

Senator FULBRIGHT. That is correct. I was at first impressed with the difficulty of, you might say, public relations, of convincing the public and Congress that we are entitled to information. I drew up my first bill to precipitate discussion of the question. Then when we

got to thinking about the implementation, you are right, it seemed necessary to complete the legislation.

Professor KURLAND. Thank you, Senator.
Senator ERVIN. Professor Winter?

Professor WINTER. I think I agree with Senator Mathias that this bill is a modest first step. He is certainly correct that there is no power in the Executive to refuse information without either invoking executive privilege or relying on some statute. I do think, however, S. 1125 has some area of constitutional vulnerability that might be cleared up. I wonder how you would meet the argument that because executive privilege is an inherent power of the Executive branch the Congress has no power to regulate the way in which it is delegated and that the President may delegate the power as he sees fit. Would you object to a recasting of the bill to avoid that contention?

Senator FULBRIGHT. Well, Professor, I agree that it is modest; it is modest in one sense; in another sense it would be a most radical departure from the present practice.

The decision to make it modest was dictated by the consideration of the feasibility, probability of getting action on it. My own feeling is that the Congress, as I understand the Constitution, has the ultimate power in the government, that the Executive has no inherent power arbitrarily to assert executive privilege. That privilege is not mentioned in the Constitution, and I do not endorse this recent theory of attributing to the Commander-in-Chief all kinds of powers, or to the Executive all kinds of powers, not mentioned in the Constitution. I do not look with favor on it.

What I think is implied by Madison's view, and by other views, is that the delineation of these two areas of authority cannot be left to either one branch or the other. To prevent the arbitrary withholding of information, there necessarily has to be an ultimate judicial decision, although the courts have never done this. Even if this legislation is enacted, we still have to accept the principle that the question of whether the President in any given instance has asserted executive privilege reasonably or arbitrarily would be a judicial question.

I agree; we haven't got authority for that final determination. This is the theory which I think would have to apply. Under that theory, however, the President does not have absolute "inherent" authority to say he will not provide information.

Senator ERVIN. If you and Professor Winter will pardon me for interrupting

Senator FULBRIGHT. Oh, no; I welcome it.

Senator ERVIN. I invite your attention to Section 8 of Article I of the Constitution, which says:

Congress shall have the power to make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or any Department or Office, thereof.

I believe we can agree that the President is an officer of the United States and that if he has this inherent power of executive privilege it is inherent because of his constitutional powers. Therefore, I would suggest perhaps the bill could be sustained under this provision of the Constitution. While we can't deny the President any inherent

power arising from the Constitution, we can describe how it shall be exercised.

Senator FULBRIGHT. Professor Berger meets this by saying there is no inherent power of executive privilege. He says this is simply custom that Congress has accepted. One reason I have been modest, as you say, in proposing legislation here is that it seems to me that if we said he had no privilege at all. it would arouse a vigorous opposition.

The solution would seem to me to be that the judiciary would have final power to judge where there is a contest between the two branches. Does that meet with disfavor?

Professor WINTER. No; it does seem to me legislation at this time would be very wise. It would be good legislation. I would hate to see it get tied up in the question of whether the President has an inherent executive privilege, because I think then you start a debate which is rather irrelevant to your central purpose: to insure that the President and his officers invoke the privilege expressly rather than just refuse to give information on any grounds that come to mind.

It seems to me that you could recast the bill and make it somewhat narrower so that the witness need appear and show how the President has delegated to him the power to assert the privilege and to name the grounds upon which he asserts it or that he has been ordered to assert the privilege by someone else authorized by the President, and it seems you could call him, it seems to be the type of bill which would be what you want but avoids the executive branch by Congress regulating a constitutional power inherent in the President.

I think the bill as made gets you into issues that really aren't essential to what you are trying to achieve.

Senator FULBRIGHT. That could well be. It seems to me the legislative power to investigate arising not only from the Constitution as written, but also from its history and the parliamentary history before we had a Constitution, would indicate that it is a more basic power than any executive privilege, unless you go back to the divine right of kings. I didn't think we carried that over into our basic principles.

Where there is a contest between the two branches, it would seem to me that it has to be finally resolved by judicial authority. But I think the practical effect of this legislation would be to make the President take this matter seriously. If he is made to exert executive privilege, it will be asserted very seldom. They will think very closely about it before they do it.

The chairman in his statement, talked about the essentiality of respect on the part of one department for the other in order to make our system work. This cannot always be solved by a strictly legal solution. This is an effort. I guess, to reinspire some degree of respect on the part of the Executive for the legislative branch. If it accomplishes that it will accomplish a lot. I think we ourselves are guilty of being so subservient to them they really don't think we are going to have to do anything at all.

When we get in these long contests over such things as the Hatfield-McGovern bill, a provision which every poll showed the people of this country were overwhelmingly in favor of, the Congress still doesn't have the nerve to pass it, because it involved cutting off some

funds, it involved the putting on of pressure. They compromised and put in the Mansfield amendment.

As an elected official I can easily understand that, in controversial matters, it is advantageous under our system, not to take responsibility; just let the President take the rap and you can always say: I supported the President and he knows best. He gets all of these secret agreements-most of which are plain garbage. Much of what he does know is irrelevant to the main question. But this is a way of avoiding responsibilty. It is inherent in our system.

You have a psychological problem of how to inspire the Congress to take the responsibility. We could do it now. We could have stopped the war long ago. We could have done a lot of things which the people indicate they want, but there is a reluctance to take the responsibility to do it because it is controversial and it will put us in the limelight and somebody will say you are disloyal and so on. We know that is the trouble with our system.

But this kind of legislation, it strikes me, will cause all members of Congress to reflect upon their responsibility and give them some backing for the exertion of it. As chairman of a committee, I, myself -and I don't think I am any more reticent than most people still hate to get into a public controversy with a member of the Executive. We had a case where a little minor man under Kissinger made some very minor remarks. We asked him to come before the committee. He refused to come. The real issue has nothing to do with the remarks unjustified remarks about the Foreign Relations Committee and so forth. He refused to come. He is a very minor official, way down the list. I could have made a public demonstration. I think I probably would have won. It is like Wilson said: you get into a civil war between the two branches and you don't do anything but stir up trouble. I refrained from doing it in this case, although some of my staff wanted to do it.

But that isn't the point. I think it is to reassert our responsibilities in a way that will not lend itself to internal warfare, and I think it can be done if we can pass this legislation. I don't know if we can pass it over the objections of the Executive. If it has to please the Executive in every respect, maybe we can't pass it at all. But recent Presidents have given lip service to the principle of accountability. All of the last three Presidents have publicly endorsed the principle involved in this legislation. They may go back on it, as they might if faced with a real law, but we can't see until we pass it. I am sure they won't like it because it doesn't agree with the present Secretary of State's previously expressed views.

Professor WINTER. Just one other suggestion. It might be strengthened if it didn't have section 306. It appears gratuitously to make someone come before a hearing for no purpose. If you could include language to indicate the purpose of the appearance is to invoke the privilege, to explain why it is being invoked. It seems to me Congress has a clearly valid power to regulate the manner in which a claim for executive privilege is made.

Senator FULBRIGHT. If that is thought to be too abrupt I would be very pleased to do that.

I may say on the other matter, because I feel strongly about this, I would take great exception. I would welcome your suggestion, espe

cially if you feel it is designed to make it more acceptable to the Executive. I realize to pass a bill over a veto is extremely difficult.

I would hope, taking them at their word. that is the last three Presidents' word, that they mean it and we can have a reconciliation here sort of like going to Peking, only we would be going down to the White House in hope of developing some way of getting along with each other. If he can go to Peking we ought to at least go down to 1600 Pennsylvania Avenue.

I would certainly welcome the advice of the staff of this committee, which is far more experienced in constitutional and legal matters than my committee is. I hope that they will feel very free to refine or improve any parts of this legislation. It is really just a suggestion growing out of my own frustration, which I was very glad—not glad, sad-to see shared.

Senator ERVIN. As I said in my statement, I was not furnished the information which I requested. I have been told that the information I sought was not useful, and I have also been told in another letter that it was not appropriate to release the requested information to me. When they were willing to furnish information they said: This is just furnished for your use, and the classification is still on it.

Then when I asked for certain witnesses they said: Why, we will send the witnesses down to give you this information, but we want to designate the witnesses.

Senator FULBRIGHT. They didn't want the ones you wanted.

Senator ERVIN. I was told that I must hear from their designated representative and that he would convey the information to me. The designated representative had no personal knowledge whatever of what he was asked to testify on. He wouldn't be allowed to testify in any court in the United States, but they insisted on sending somebody down who got his information from hearsay and had no personal knowledge of what happened.

Thank you very much, Senator. You made a very significant contribution to our studies.

Senator FULBRIGHT. Thank you very much, Senator Ervin. We certainly appreciate the leadership you are giving to the Congress in this whole field of reestablishing congressional roles. You have done it in other areas, and without that I don't think we would get off the ground at all.

Senator ERVIN. Counsel will call the next witness:

Mr. EDMISTEN. Mr. Chairman, the next witness is the Honorable Stuart Symington. We are sorry for the delay of your appearance. STATEMENT OF HON. STUART W. SYMINGTON, A U.S. SENATOR FROM THE STATE OF MISSOURI

Senator SYMINGTON. I have a prepared statement which I would file for the record and then, because of the lateness of the hourSenator ERVIN. That will be all right.

Let the record show that the entire statement submitted to the subcommittee by Senator Symington will be printed in full at the conclusion of his oral testimony.

Senator SYMINGTON. Thank you, Mr. Chairman.