treaty to require-I think you used the word request-the President. to submit to the Senate for consideration in executive session any documentary evidence that he had accumulated which showed the wisdom or the lack of wisdom of agreeing to the particular terms of this treaty. It was asserted that after this information was submitted to the Senate in executive session or to the appropriate committee, the question of whether it should later be published was a question for the Senate rather than the executive branch of the Government. I would like to have your comments on that.

Mr. ACHESON. I must be very courteous, because I don't know whose toes I would be stepping on. I would strongly disagree with that view. The practice has always been for the Secretary of State to report to the President all the relevant facts dealing with the making of the treaty. These are put in a report from the President to the Senate when it forwards the treaty with the request that the Senate give advice and consent to its ratification. There is everything that needs to be known. If by any chance anything has been overlooked, this is a matter of requesting. But to say that the Senate may require every piece of paper that bears on making the treaty I think goes quite too far. I would never have agreed to any such thing myself. My advice was asked when I was Secretary of State. Because all sorts of things go into a negotiation. And there is no point in explaining all this to the world when you are considering its ratification.

For instance, I should think that the Senate or the House would be indignant if the court, the District Court or the Court of Appeals or the Supreme Court of the United States, said: We are required to interpret an act of Congress. We ask the committee in charge of this to furnish all the minutes of the meetings of this committee while this bill was considered. We would like to know all kinds of deals which were made with various Senators to get their vote for the committee report.

Now, that isn't any business of the court at all. The court has a statute, and all it needs to do is to look at the reports of the various committees, the conference reports, the debates. And that is what it has to decide upon.

There was a bill recently under consideration in the House to impeach a Justice of the Supreme Court-if it had gone through to impeachment, I am sure the Chief Justice would have ruled inadmissible the House manager calling upon the law clerks to testify as to their talks with the Justice. One cannot inquire into that confidential relationship. These are practical matters having to do with running the most complicated and difficult thing in the world, which is government. And it requires consideration and courtesy and understanding on all sides.

Senator ERVIN. This hearing was decided upon long before we had the furor over the Pentagon papers. But there has recently been a tremendous amount of public interest on the scope of the power of government, particularly the executive branch, to withhold information on the theory that the national security requires such action. I am certain that the committee would be delighted if you would express your views on the power of the Government to withhold information on the grounds that the national security requires such

action and your views on what limitations there are if any on that power.

Mr. ACHESON. Senator, I don't regard this as a matter of withholding information. I think it is a question of prying into information which is not the proper business of the pryer. One speaks as though the President generally had a duty to tell the Congress and the people and the newspapers everything about everything. There is no such duty, not in the Constitution, not in the law, not in politics, not in morality, and not in common sense. It doesn't exist. Now, somebody comes around and says, I want to know what you said to your close adviser. Suppose they asked President Wilson, what did you and Colonel House talk about? You sent him off to Europe and he went off, why did he go, and what did you say to him? The President could have said, I am not withholding anything, but this is just not your business. Nobody has a right to what I say to my confidential advisers, no one, any more than they have a right to know about the Supreme Court Justices talking with the law clerks, not a bit. I think all these questions are over simplified.

In writing about these Pentagon papers I recall that-Professor Kurland will know that Justice Frankfurter used to quote all the time, from Alexis de Tocqueville who said: "In the United States. every political question sooner or later is turned into a judicial question." This is true, and it has been a disaster.

In my life the Sherman antitrust bill was passed 3 years before I was born. This turned over to judges the most complicated of all questions, the regulation of monopolistic practices. And the judges were given as a guide the most confusing phrase ever invented by the mind of men, combinations and contracts in restraint of trade are illegal. They have been working on it for 80 years, and no light has been thrown on that question yet.

Senator ERVIN. I certainly am gratified by that statement because that is exactly what I think about the Sherman antitrust law.

Mr. ACHESON. Just recall what has happened in our lifetime, Senator. The most complicated thing in the world, race relations, came out of the judges, who took over this problem themselves and found in a phrase, the equal protection of the laws, the way to deal with this complicated question, which didn't deal with it.

We then got on, early in my life, the matter of intoxicating liquors. That complicated question suddenly resolved itself into what was interstate commerce. And everybody rattled around about, is this bottle of whiskey in the original package? If it is, it can go into New Mexico and be sold to Indians so far as the State is concerned.

This is a silly way to deal with a complicated question.

And then we get on to apportionment of legislative districts. Again the Supreme Court undertook to decide that question, which it had previously refused to decide because it was a political question. It finally made it a judicial one, and it found the answer to that in equal protection of the laws.

And then it got on to qualifications of voters.

This is not the way to run a government. And therefore I don't think you will solve this important question of how to deal with the confidential relationship by talking about withholding information. These are too simple criteria for so complicated a matter.

Senator ERVIN. Professor Kurland, do you have any questions? Professor KURLAND. Mr. Secretary, I wonder whether it is not a fact that your statement supports the bill rather than opposes it. The essence of the bill, as I see it, is to assure that the executive privilege is to be claimed by the sole person who has the right to assert that privilege, the President of the United States. The problem derives from the fact that the withholding of information has come about without the assertion of that privilege, or what amounts to an assertion of the privilege by what you concede is a person who does not have the right to it. Would not the bill be appropriate, therefore, to establish the proposition that you put forth, that this is a privilege to be claimed by the President and only by the President?

Mr. ACHESON. I have no objection to that at all, Professor Kurland, none at all. The point I am objecting to is that somebody who is not connected with the privilege in any way is required to come up before a committee, an employee, and present this letter. The mails aren't very good, but they are good enough to carry the letter. And if the committee wants some information on so and so, write to the Secretary of State, and the Secretary will take it over to the White House, talk to the President about it, and if the President says, OK, go ahead, let him come up and testify to it. But to pick out some poor unhappy little creature down in a department and say, come up here and tell me about this, in the first place, it isn't sporting, and in the second place it isn't legal, and in the third place it is bad politics. And it just isn't the way to do things.

Professor KURLAND. It is the procedure that is devised that you object to, not the principle that the President and the President alone has the right to assert the privilege?

Mr. ACHESON. The present procedure does everything that youyou don't need any bill here at all. If any committee wants to know anything, write to the department of government in charge of it and say, we want to know about so and so.

Professor KURLAND. The difficulty has been that the responses have not been forthcoming. And that is essentially the basis for these hearings, you see. The record is replete with requests to various officials of the executive branch requesting information without reply, except suggestions that, to put it in the words you would put in the mouth of President Wilson, this is none of your business. And that, I assume, is a function that only the President of the United States has a right to assert.

Mr. ACHESON. Certainly. I have no question about that. But I cannot believe that a letter addressed to a Cabinet Office or to

Senator ERVIN. I have just been notified that I must go and answer a roll call. I will be back as soon as possible.

Mr. ACHESON. I am sure a letter addressed to the President, the Secretary of State or to the Secretary of Agriculture will produce an answer. I am sure it would have done so when I was Secretary of State.

Professor KURLAND. I think that is one of the differences, as Senator Symington pointed out yesterday, between your days and the current days.

Mr. ACHESON. I can't believe that that is the correct testimony.

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Professor KURLAND. The record does support it, and that is what we are looking for, such examples of that problem.

Mr. ACHESON. If the letter is addressed to the President or the head of the department involved, one or the other is required to appear and answer. And you will find the President won't come, but the other probably will.

Professor KURLAND. The suggestion you made is that there has been a change of personnel which is largely responsible for the difference in the relationships between the executive and the legislative branch, at least with regard to foreign affairs. I would like to suggest that in fact there has also been an institutional change. You talked about the proper role of the Senate in the approval of treaties. I would like to suggest that the present norm of behavior is no longer a treaty but an executive agreement as to which the legislative branch is kept totally in the dark in many, many instances. This in effect is a private agreement between our Executive and the Executive of some foreign country. I assume that the legislature should have some access to at least the terms of those agreements after they have been completed. Would you not say so?

Mr. ACHESON. I would think that the change has not been to executive agreements, but to legislative agreements. Certainly this was the case when I was in the Department. I remember a very clear instance when it wasn't so. I had proposed that the UNNRA relief agreement should be an Executive agreement. Vandenberg blew the dome off the Capital about this.

The private papers of Arthur Vandenberg are wonderful. He said, this was the greatest usurpation of power ever given to anybody. And the moment I heard about this I came rushing up and said, "Cool off, Arthur. I didn't mean a word of it, it isn't true, we will send a bill up here."

And he said: "If you won't do it, I am going to demand it."
And I said, "You demand it, and we will agree."

I don't know of any case since that-that doesn't mean that one didn't occur but I don't know of any important matter that had been decided by an executive agreement since then-there may be some, I don't know of any-but certainly the State Department was scared off. And I should think that in most cases a legislative agreement would be better. You bring the House in and you have a much broader basis of support.

Professor KURLAND. This committee earlier in its history attempted to secure from the State Department a list, not even the contents, but a list of executive agreements between this country and foreign countries and the State Department has been unwilling to afford that information to this committee. There are some hundred odd such agreements, the contents of which I think are unknown.

Mr. ACHESON. You mean over the history of the country, or now in effect?

Professor KURLAND. Now in effect.

Mr. ACHESON. Well, that is very interesting.

I should think you could get those if you really wanted them. Professor KURLAND. I have suggested, and others have, that Congress does have the clout if it wishes to use it to get information.

The last point I would like to make is that the emphasis in these hearings has been, and I think somewhat unfortunately, on the foreign affairs problems rather than on the total problem of the function of an executive branch. The problem of securing information, or the problem of concealment of information, is by no means limited to information dealing with the President's special prerogatives in the area of foreign relations. And the question is whether a bill is not appropriate to attempt to secure information as to domestic matters which is also being withheld from congressional committees. The point I am trying to make is that the bill ought not to be measured solely in terms of the problem in regard to foreign affairs. We do have a serious and important problem with regard to domestic programs as well.

Mr. ACHESON. You are asking me what?

Professor KURLAND. I am asking you whether the position that you have suggested with regard to the President's special competence in the area of foreign affairs ought not to be considered the appropriate standard when we are dealing with matters of essentially domestic

concern.

Mr. ACHESON. I think it has to be considered when you are dealing with matters of foreign affairs. If you are dealing with other matters, get another bill to deal with something which is different.

Professor KURLAND. A bill which is limited to matters of domestic concern of the same nature would not be as disturbing to you?

Mr. ACHESON. I assume that I was asked up here to testify about things I knew about.

Professor KURLAND. I assume you know about everything.

Mr. ACHESON. I don't know what the deep secrets the Department of Agriculture is keeping from the Committee on Agriculture. Maybe you have got a new dust for a corn borer which is too private to disclose. I don't believe it myself. I think this is directed at foreign affairs. And that is what I am talking about. If you have got other problems, ask another witness.

Professor KURLAND. Thank you, sir.

Professor WINTER. Just to reinforce what Professor Kurland said, the last three Presidents have issued memoranda directing the departments not to refuse-not to invoke the executive privilege without the President himself approving it. I am not sure that this approval has been invoked at all formally, maybe once, although there have been numerous refusals to divulge information to this subcommittee and a number of other subcommittees, as Professor Kurland said, on very inocuous matters, by lower officials in the Government. Ánd that entails a rather large political effort to get information which is hardly worth the effort.

But that is somewhat apart from your statement.

Let me ask one question, Mr. Secretary. I take it you would not object to requiring an official of the Administration not necessarily the person that had been asked to testify, but some official of the Administration, say, the Attorney General, to be required to appear formally and invoke the privilege on behalf of the President and to explain why it is being invoked. Would you object to that as strenuously as you object to the requirement that the particular official that had been asked to testify be required to come up and testify.