of executive officers." If the judiciary cannot be asked to abdicate to the Executive in choosing between the public's need for information and the need for secrecy, separation of powers might properly dictate a comparable stand by Congress.

I think also reference might be made at this point to the Constitution itself, Article I, Section 5, of which provides in pertinent part:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such parts as may in their judgment require

secrecy.

The framers of the Constitution certainly evinced no lack of confidence in the ability of the legislature to judge when secrecy was required in the public interest. And the notion that only the Executive is the proper judge of what can or cannot go to the public is not to be found in either the separation of powers principle or in any provision of the Constitution."

At this point, clarification is in order. The Executive cannot be blind to the fact that at times individual Members of Congress and even congressional committees, whether out of policy disagreement or a desire for personal or partisan advantage, are prepared to make confidential information public or use it to injure innocent people. The Executive cannot be expected, nor should it, to respond in these cases. Nothing in the separation of power doctrine equates the individual legislator's judgment or even the judgment of a committee with that of the Senate or the House. Here I suggest Congress has a responsibility by establishing appropriate procedures to undercut some of the legitimate fears which surely have contributed much to the erosion of the congressional prerogative.

Thus far, I have addressed myself mainly to the principle of the matter. Now, let me turn to the more hazardous task of reviewing the precedent. I am fully cognizant of a long line of attorney general opinions upholding the executive privilege with respect to investigative materials. Likewise, there are statements of fairly recent vintage by distinguished senators and members of Congress concurring in these opinions and confirming a plenary privilege with respect to state secrets. I am sure that the executive branch's witnesses will not fail to bring these statements to the committee's attention.

Nevertheless, I believe an examination of the history justifies a reassessment of these positions. The precedents from the period when members of the Constitutional Convention were still active in Government, and upon which the attorneys general have relied are entirely equivocal. There is ample precedent to sustain our argument with regard to state secrets. And finally the importance of the matter to the health of our democracy, warrants, I suggest, a reassertion by Congress of its historic rights.

The chairman, this morning, called attention to the famous notes of Jefferson of the meeting at which Washington's Cabinet discussed the St. Clair expedition documents. According to the notes, the Cabinet acknowledged that the House could mount the investigation and call for papers generally, but also 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.

Several things are notable about this statement. There is no evidence that these views were communicated to the Congress;

Jefferson's

own annotations to British parliamentary precedents fail in important respect to support the assertions stated; all documents were turned over to the committees and the Secretaries of War and Treasury both appeared to offer "explanations." In short, this was no withholding.

***

Next, in 1807, during Jefferson's presidency, the House requested the President for all information on the Burr conspiracy "except such as he may deem the public welfare to require not to be disclosed." The President complied with the request subject to "the reserve therein expressed." By way of explaining his use of that reserve. Jefferson noted the conjectural nature of much of the evidence and stated that "*** neither safety nor justice will permit the exposing of names, except that of *** (Burr) * * whose guilt is placed beyond question." The President's explanation for using an authority expressly conferred upon him by Congress can hardly be interpreted as a claim of a constitutional right to withhold information. Moreover, the congressional grant of discretion was, as we shall see, a matter of courtesy and not a recognition of right. Yet, at least three Attorneys General have cited the case as the first definitive authority for a constitutional privilege to withhold investigative reports from Congress.

In contrast to Jefferson, Andrew Jackson in 1835 withheld from the Senate copies of charges of fraud made against one Gideon Fitz, because the information was to be used in executive session. This would, according to the President, have deprived Fitz of his right to a "public investigation in the presence of his accusers and of the witnesses against him."

On these authorities we must wonder what is the true basis for an executive withholding of investigate reports. Apparently, protec tion of the innocent requires not only that information be kept confidential but confidential within the executive branch. It alone, we are led to believe, is capable of exercising a proper regard for a citizen's rights; an assumption that finds no warrant in the separation of powers doctrine.

Finally, in 1842, President Tyler refused the House an investigative report concerning frauds perpetrated on the Cherokee Indians, because to do so would, according to the President, visit "irremediable injury upon innocent parties by throwing them into libels most foul and atrocious." Earlier, the Secretary of War had declined the House's request and the House had passed a resolution asserting its right to demand any information from the Executive "relating to subjects *** within the sphere of its legitimate powers." Tyler also claimed that the courts had recognized his discretion, and what could be withheld from the courts, he argued, could certainly be withheld from Congress.

This incident is far from definitive. The House dissented from the President's assertions each step of the way. The President eventually turned over most of the documents, requesting that they be kept confidential until the appropriate committee had judged "what portions *** should not at present be printed." His claim of judicial sanction, of doubtful validity then, has since been completely undermined by the Reynolds case.

These are, I believe, the main precedents from the first 50 years of our history upon which the Attorneys General have built their doctrine of an unqualified privilege to withhold investigative materials. They are entirely equivocal. At most they show ambiguous action accompanied by brave words in which the Congress never acquiesced. On this record, I would urge a return to the first principles, the more so today than in Jackson and Tyler's time. At the same time it cannot be denied that the progress of the Executive on this matter has been aided, perhaps decisively, by the occasional abuses of the investigative power.

In contrast to the executive's claims of discretion to withhold investigative reports, information pertaining to foreign and military affairs early became the subject of a special accommodation.

The first telling event occurred in 1798 when following receipt by the President of dispatches from our envoys in Paris, a resolution was introduced in the House calling for the dispatches "or such part thereof as considerations of public safety and interest, in his (the President's) opinion, may permit." This clause was objected to because it proposed to transfer to the President the House's right to determine what should be made public. In the debates, the asserted right of the House was not questioned. It was argued rather that in a matter of such sensitivity the House ought to extend to the President the courtesy of a discretion. On the vote, the grant of discretion was struck from the resolution.

Then, in complying with the resolution, President Adams requested that the dispatches be held confidential:

until the members of the Congress are fully possessed of their contents, and shall have had an opportunity to deliberate on the consequences of their publication; after which time I submit them to your wisdom.

The House, after considering the papers in secret session, authorized their publication. These were the famous X, Y, Z papers, which undoubtedly increased popular hostility toward France and influenced Congress in its decision to authorize the "Naval War" with France of 1798-1800.

Perhaps out of this experience-one can only conjecture-the practice developed of regularly including a grant of discretion in requests to the President for documents concerning the Nation's foreign relations. This explains the exception granted Jefferson in the request for the Burr Conspiracy documents, it being widely held that those documents would reveal the complicity of at least three foreign governments. What is most important for our purposes, is that as late as 1850 and probably as late as 1904, this grant of discretion was well understood to be a congressional dispensation and not a constitutionally-based presidential right.

President Monroe used the discretion in 1821-explicitly recognizing the House as its source-and again in 1825. Jackson and Polk also used it where the information concerned negotiations in progress. In 1846 Polk fully acknowledged the right of Congress to publish the documents if they were made available. He therefore used the discretion granted him but invited Members of the Senate personally to peruse the documents at the State Department.

Along with this custom, it also became the habit, at least in the Senate, of reviewing the documents in executive session. This

meant that disclosure to the Senate and disclosure to the public were kept quite separate. Indeed, by 1904 the view was expressed that the Senate's right to confidential information was contingent upon a willingness to consider it in executive session. Although some Senators were also of the opinion that if considered in executive session, the Senate should dispense with the customary courtesy. What is clear is that nothing in the practice of holding executive sessions implied abdication of the Senate's right to make the documents public. It merely assured the President that the Senate had assumed the responsibility for maintaining confidentiality until public release had been approved by the affirmative action of the whole Senate. Such a posture, as we have argued, is based upon sound constitutional principle.

Finally, as late of 1904, a motion in the Senate to insert the customary grant of discretion in a call for the Hay-Harran Treaty correspondence, was objected to because it might be taken as a senatorial recognition of a constitutionally-based executive privilege. While the argument was made that with or without the clause the President could withhold the documents, this was hotly contested. It seemed to be the more general view that the President should be given the customary courtesy and the motion was agreed to.

On this record, we may conclude that throughout our history up to the first decade of this century, President and Congress alike recognized that the latter, particularly the Senate, had right to all information, without qualification, necessary to the discharge of its responsibilities concerning the Nation's foreign relations and that the Congress was free to make its own independent determination of what confidential information might be made public. At the same time, in recognition of the sensitivity of these matters and of the great weight to be attached to the President's judgment, the practice developed of extending to the President the courtesy of a discretion to withhold information. So long had this practice persisted, that toward the end of the period some partisans of the President, including some Senators, began attributing to it a mandatory character; a courtesy which had matured into a right upon which the President could insist. Such a view, however, was certainly contrary to the presidents and the theoretical foundations of the practice and appears never to have commanded a majority in the Congress.

In the recent years since, the record becomes much less clear. Further systematic investigation is needed. Yet it does seem that calls to the President by resolution of the Senate or House appear with less frequency. The increased reliance upon committees, although essential, has bred a tendency to equate disclosures to and consultations with committee leaders as disclosure to the Congress. And while this has at times been a very effective way of imposing congressional views upon the Executive, it most surely has made it more difficult to preserve Congress in its historic role of guardian against excessive executive secrecy. Nor should we lose sight of the fact that in the intervening period the Executive has with increasing vigor asserted its claim to a plenary power to direct the Nation's foreign affairs. Under these circumstances, the Executive has been able without great difficulty to convert a historic courtesy into a

unqualified claim of right, and to go largely unchallenged by Congress. I for one urge that this continue no longer.

Finally, a word concerning the most difficult and perhaps most deceptive grounds asserted for the privilege: the protection of the internal deliberative processes of the executive branch. In theory it can be readily defended. It is not difficult to perceive that the power of Congress to scrutinize the opinions, the recommendations, the thinking processes, of the executive could inhibit the giving of candid and unpopular advice and the exercise of independent judgment, and in so doing render the Executive wholly subservient to Congress. Not surprisingly, therefore, the precedents for this privilege go back at least to 1833 when Andrew Jackson irately refused the Senate's request for a document purportedly read by him to the Cabinet regarding the removal of deposits from the Bank of the United States.

Yet, this is potentially a most mischievious privilege. Virtually every scrap written in the executive branch can, if desired, be labeled an internal working paper. Rarely are matters neatly labeled "facts," "opinions," "advice." It can be used as readily to shield opinion corrupted by graft and disloyalty as to protect candor and honest judgment. And it can be used as a "back door" device for withholding state secrets and investigative reports from Congress.

But it has a more subtle effect. In the longer sweep of our Republican history, there has been perhaps no more significant change than that from congressional to presidential government. Even the scanty bits offered up in this statement are witness to this change. It is not the growth in size of the executive establishment, nor the fact that the Executive commands most of the engines that get things done. It is rather that now, gathered in the hands of the Executive is the central power of decision on virtually all issues about the shape of our society that are given to the Government to decide. While on many important things Congress retains formidable powers, a shield has been built around the Presidency, jealously guarding its power, particularly against any inroad from the representative branch of the Government. Perhaps this is the way things should be. At times past it has seemed so, when Congress appeared blind to people's needs, or to the rights of individuals or paralyzed by a handful of willful men. But on balance, I fear that in presidential government we have created an ever potential threat to our liberties. At least I know that in balanced government-one punctilious in its adherence to the separation of power principle— there is no such threat. So, the shield must be dismantled. It is not merely a shield of secrecy. It is that the key decisions-the high and delicate matters of state-must essentially remain open until Congress speaks and cannot end with the deliberative processes of the White House. To this end, I see S. 1125 as one, albeit modest, first step.

I thank the committee for having heard me out. I know I have taxed your patience but would be happy to answer any questions you may have.

Senator ERVIN. You made a most interesting and helpful statement of precedent. You recognize the existence of the powers on the part of the President to withhold information where the in