Thank you for your leadership in this field, about which I agree with Senator Fulbright. It was and is badly needed.

The vehicle the legislative proposal of Senator Fulbright to require Executive employees to appear when requested before appropriate congressional committees even if they intend to assert executive privilege is not a frivolous bill. Such legislation could enhance this worthwhile discussion by cutting back the perimeters of an administrative barrier to the capabilities of Congress to exercise responsibly the rights and duties with which we are charged under the Constitution.

In the first instance, this legislation required that an executive branch employee come forward, present himself to the Congress and then claim "executive privilege" only by means of a written personal assertion of said privilege by the President. That requirement should bring about fresh thinking on the part of the Executive as to the real significance of an open society and a self-governing people. It should be a healthy stimulus to claim privilege only under circumstances which can be justified to the people.

In itself, this would serve to diminish the frequency of such claims. In the second instance, should there be an assertion of the privilege which Congress thereupon had reason to believe was ill-founded, an opportunity would be provided to seek, in orderly fashion, a determination by the Judiciary of this age-old dispute between the legislative and executive branches of government.

By way of background to a suggestion, I will set forth shortly with respect to a change in language that may be needed to accomplish the objectives of this bill. During recent months by my skepticism has grown as to whether or not duly enacted laws now actually bear the fruit of their intention.

As but one example, despite the prescription contained in the military procurement authorization and appropriation acts for 1971, where there was obvious intent to prohibit the use of American funds to support Thai and other foreign military forces in Cambodia or Laos to in turn support those governments, Thai troops fighting in Laos are nevertheless currently being financed and trained by the U.S. Government.

Whatever dubious claim the executive branch may have on the bare legality of the payment of these Thai forces, it is a costly argument indeed in terms of an average citizen's understanding of the law's meaning; and also of his faith in the constitutional responsibility of the executive branch to take care that the laws be faithfully executed.

In this particular case I have now introduced an amendment designed to remove once and for all the cinder from the eyes of the Administrators which has resulted in approval of payments to these Thai mercenaries.

The suggestion I would offer to avoid possible misinterpretation of this bill on executive privilege has to do with the use of that latter term. As now drafted, the bill states that "an employee of the executive branch summoned or requested to testify or produce documents before Congress, any joint committee of the Congress, any committee of either House of Congress, or any subcommittee of any such committee ***" and here follow the troublesome words * * "who in

tends to exercise executive privilege" *** shall not refuse to appear on the grounds that he intends to assert executive privilege.

It would seem that at times executive employees refuse to appear because of previous actions and or the very nature of their position, rather than any expressed intention to assert "executive privilege."

As a practical matter, in the long and tedious negotiations we have had in the subcommittee on U.S. Security Agreements and Commitments Abroad, a formal claim of "executive privilege" was rarely if ever lodged. Instead, first one reason and then another was asserted as to why the information requested was not to be supplied.

More often than not it has been the implied threat of executive privilege, rather than its actual exercise, that has hovered over negotiations to obtain the release of information even in executive session; information which we considered so crucial to the senatorial responsibility in the formulation of foreign policy that it belonged to the committee as a matter of right; and therefore information which Ishould have been volunteered.

Before moving on to a brief discussion of the nature of the information sought, let me conclude in regard to a possible change in the language of the bill.

Should the subcommittee hopefully look with favor on this proposal of Senator Fulbright, I suggest that consideration be given to clarification of the term "executive privilege" so as to avoid any possible misinterpretation or evasion by an executive branch employee. One of the latter might refuse to appear on the theory that, while he did not intend to exercise executive privilege, he nevertheless did not intend to testify or to produce documents, either because of the position he held, or because he did not believe it to be in the public interest.

One method of accomplishing this could be the substitution of the words "exercise executive privilege" and "assert executive privilege," where used in section (a), with the words "withhold information." The section would then read to the effect: that no employee requested to testify, or to produce documents, who intends to withhold information as to the matter about which the request was made, shall refuse to appear on the grounds he intends to withhold information.

Another remedy might be to add a new section which would define executive privilege in broad terms.

As many know, our subcommittee and other committees have long sought adequate information with respect to the deployment by the United States of nuclear weapons in foreign countries; also the agreements entered into with each country prior to the deployment of these weapons.

Eventually, our subcommittee did receive limited information, but even that was grudgingly given and only after long negotiation.

Mr. Chairman, because of consistent refusal to obtain information -I happen to be a member of both Foreign Relations and Armed Services I also joined the Joint Atomic Energy Committee where, under section 2 not only must all pertinent information be given to any member of that committee, under the law it has to be volunteered by the Atomic Energy Commission. They have to be certain that members of that committee know what is going on.

After going on that committee, Senator Pastore, Chairman of said Joint Committee, suggested we take a trip to Europe. I think it a fair statement to say that on our trip I learned in 6 days in Europe with him more about the true nature of the strength of NATOmore specifically the strength of the United States in Europe-than I had in 18 previous years on the Armed Services Committee. To me that is a very serious indictment of what has been going on.

With respect to the proposed change of this law, the able Chairman and I happen to serve on the Armed Services Committee. When any questions re nuclear matters are asked by members of that committee or the staff, the executive branch today states that information can only be given, under the law, to members and the staff of the Joint Atomic Energy Committee. The same thing is true with respect to requests from the Foreign Relations Committee.

We have had an Assistant Secretary of State recently testify that he did not know whether or not atomic weapons were located in a country under his jurisdiction. To me this illustrates the absurdity of just what is going on.

Surely the properly authorized committees on military matters and matters of foreign policy should be concerned with 20th century fundamentals of policy in this nuclear-space age to which so many appointed members of the executive branch are privy.

As example: without knowledge of the type, location and nature of these modern weapons in various foreign and neutral countries, how can members of the Armed Services Committee have any real knowledge of our actual military strength, let alone our relative strength, especially against the other superpower.

If you don't know, what right do you have to take a taxpayer's money and appropriate tens of billions of dollars each year because of what other people have done? And yet that is what we have been doing, you and I, over a period of years.

Another example: how can members of the Senate Foreign Relations Committee have any true knowledge of our relationship with various foreign countries in which these weapons are located unless committee members know the nature and the degree of our commitments with those countries as a result of their agreement to have these modern weapons placed by us on their territory.

So many cases have come up where this particular problem was involved that I would say that the Foreign Relations Committee is probably as ignorant about the commitments made incident to the location of nuclear weapons as the Armed Services Committee is about the relative strength of the two super powers in Europe even though at an open hearing not too long ago Secretary McNamara testified that there were 7,000 nuclear warheads of the United States located in Europe.

It should be obvious to all that the Congress is not different from other organizations which have the responsibility and the duty to make decisions, in that the wisdom of any decision depends primarily upon obtaining the pertinent facts in connection therewith.

The executive branch of our Government-whose obligation it is to faithfully execute the laws, carry out our foreign policies and present information to the Congress on the State of the Union-is, or should be, the best source of information to which the Congress

can turn if it is to know how and whether the laws and policies which it approved are, in fact, being carried out.

Constitutionally, Congress has many powers to lay and collect taxes; to regulate commerce with foreign nations; to coin money, regulate the value thereof; to declare war; to raise and support armies; to provide and maintain a Navy; and to make all laws 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 in any department or officer thereof.

I must say this resolution business at times is amusing. It is like a man saying: "When I die I leave my wife $500,000." His lawyer says, "Don't be silly, you haven't got $500,000." He then says: "Well, I know, but it will look great in the papers."

As I read resolution after resolution I at times chuckle about it almost about as much as do people in the executive branch. They know well the run around they constantly give us.

The basic authority of the Congress, however, does not rest in a series of resolutions. Rather it lies in the power of the purse; and prior to authorizing and appropriating the taxpayers' money, the Congress has both a right and a duty to obtain in the above fields far more information than it has been receiving in recent years, and is receiving today.

As one formerly connected many years with private business, it would appear that the role of the Congress is somewhat comparable to that of the board of directors of a corporation. If we are to carry out our responsibilities, we need the type and character of information any member of a board of directors would expect before approval of funds requested by the company's president.

Such information should be supplied as a matter of right and not be a matter of constant negotiation.

I have served on many boards and have heard many presidents present their reasons for wanting the stockholders' money. It seems that is quite comparable to what goes on in Government, when the executive branch comes to the Congress and asks for authorizations and appropriations. Yet always on a board, as a director, especially because of the obligations of a director, I wanted to know how the money was going to be used and why it was wanted.

We never get that information properly on any of the committees I serve except the Joint Atomic Energy Committee. In fact, in the case of the troops in Laos, we passed a law to prevent what was and is being done with the money after we both authorized and appropriated said money.

As I see it, Mr. Chairman, in this 20th century the mystique surrounding foreign policy and military matters would seem to have made it both acceptable and popular to cloak in secrecy various intentions and actions of the executive branch. In effect, we are told that such policies and programs are both too delicate and too complicated, not only for public knowledge, but also for that of the Con

gress.

I wonder what I am here for, simply to come down and rubberstamp the money the executive branch decides it needs? My interest in being in the Senate has actually lessened because on at least some committees I serve on it is an accepted principle that you shouldn't

ask these questions. But if you don't ask these questions, what right have we using the taxpayer's money, to build up the type and character of debt we have built up, the premise being it was done for national security and prosperity?

Circumstances can of course be envisioned wherein secrecy is advisable. As example, the Senate cannot-is not authorized-to negotiate treaties; but the Senate should be kept informed because it has the constitutional duty of approving treaties.

In summary, it is now clear that the risk of failure of executive branch policies and programs occasioned by their revelation to the Congress is much to be preferred as against the risk of vital damage inflicted on a democratic system because of failure to disclose the truth.

Thanks to Professor Kurland I have some additional quotes from Woodrow Wilson which I won't take the time of the committee with, but would insert in the record.

(The documents referred to follow :)

STATEMENT BY SENATOR STUART SYMINGTON (D-Mo.) BEFORE SENATE JUDICIARY SUBCOMMITTEE ON SEPARATION OF POWERS, TUESDAY, JULY 27, 1971

EXECUTIVE PRIVILEGE-DANGER TO DEMOCRACY

Chairman Ervin and Members of this Committee: Thanks to the leadership of the Chairman, by means of these hearings the Congress is being furnished, as are also members of the Executive Branch and interested citizens, an opportunity to bring into the open for further public discussion the powers as well as the authority, if any, of the Executive Branch to withhold information from Congress under the banner of "Executive Privilege."

Out of these hearings let us hope that there will emerge a better understanding of the practical meaning and effect, in a democratic form of government, of secrets which have been withheld from the representatives of the American people.

Recently I noticed an admonishment from one of the distinguished consultants of this Subcommittee (Professor Philip B. Kurland of the University of Chicago Law School) to the effect that Woodrow Wilson's "Congressional Government" should be required reading for every Member of Congress; and I would quote a passage from that volume which is in line with my own thinking:

"It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents.

"Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct.

"The informing function of Congress should be preferred even to its legislative function. The argument is not only that discussed and interrogated administration is the only pure and efficient administration, but, more than that, that the only really self-governing people is that people which discusses and interrogates its administration.

"The talk on the part of Congress which we sometimes justly condemn is the profitless squabble of words over frivolous bills or selfish party issues. It would be hard to conceive of there being too much talk about the practical concerns and processes of government.

"Such talk it is which, when earnestly and purposefully conducted, clears the public mind and shapes the demands of public opinion."

Fortunately, both the legislative and informational functions can be well served in these hearings.

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