Mr. ACHESON. I have no objection to getting the man who would advise the President on this subject to come up here.

Professor WINTER. On the invocation of the privilege?

Mr. ACHESON. Yes. I am outraged by committees of Congress getting employees up here and bullying them as they so often do in both Houses. This I don't think is a decent bit of behavior for anyone at all. You won't bully the Attorney General of the United States, I am sure of that. If you want him to come, okay.

Professor WINTER. At least we will concentrate the bullying on one official, who perhaps will gain some immunity over time.

Mr. ACHESON. My own practice was always to come myself. If my instructions were that we were not to discuss a matter, then I could deal with it, because I knew why. And I wasn't intimidated by Senators no matter how annoying they could be. But I don't think you ought to ask that of an employee, whose whole official life may be destroyed by being made a fool of.

Mr. EDMISTEN. I have one question, Mr. Chairman.

May I read a quote to you from Senator Fulbright yesterday?
Mr. ACHESON. Yes.

Mr. EDMISTEN. He said: "Unlike Colonel House and Harry Hopkins, who had no staffs of their own, and even unlike Mr. Rostow, who at the end of 1968 had a substantive staff of no more than 12 persons, Mr. Kissinger presides over a staff of 54 'substantive officers' and a total staff of 140 employees. In addition, Mr. Kissinger serves as chairman of six interagency committees dealing with the entire range of foreign policy and national security issues and is also in charge of 'working groups' which prepare the staff studies on which high level policy discussions are based."

Senator Fulbright contended that Mr. Kissinger is far more than a personal adviser and that he should be subject to congressional inquiry, especially in view of the fact that he gives frequent press conferences. Do you have any views on Senator Fulbright's statement? Mr. ACHESON. I disagree with it. I don't care whether he has one person or 26 or 126, he is a personal adviser to the President.

Senator ERVIN. As Chairman of the Subcommittee on Constitutional Rights I have been attempting to make an investigation of the use of the Army during 1967 and 1968 to place civilians who had no connection with the Army under surveillance. The method you suggest to get information has not been very fruitful. I have about 30 pages of correspondence that has passed between me and the Department of the Army in which I asked for information on the extent to which the Army engaged in that surveillance. One of my letters drew a response stating that the requested information would be inappropriate for the public to know. I then asked for the use of certain information that they had collected in the surveillance which would reflect the kind of evidence collected. They said that they would furnish it to me in a confidential capacity, which meant that I could not use it publicly even in summary form deleting references and individuals. When I asked for witnesses, the type of witnesses they wanted to send down were the Secretary of the Army, or the Assistant Secretary, or the General Counsel. Neither of these men. were in the Department of the Army at the time these events occurred and neither of them had any personal knowledge of the events; but

they insist on giving the testimony. When I asked for the presence of the general who had charge of this surveillance, who has personal knowledge, not for the purpose of asking anything that went on in the executive branch, but for the purpose of determining the extent of the surveillance, I was informed that it would be inappropriate for the general to appear. Now, I would like to get some expert advice on how I could get that information from the Department of the Army and whether or not I can subpena the general.

Mr. ACHESON. The only privilege I have is to say that I have retired from the practice of law.

Senator ERVIN. In this instance the Department of the Army went far beyond its authorized constitutional and statutory duty in these respects. I think there ought to be some legislation to see that the Army is not used as a national police force or as a national detective force in the future. And when I am told by the Department of the Army what is appropriate for me to learn, what is appropriate for the public to hear, and who is an appropriate witness for my subcommittee to have, I am inclined to think that that particular branch of the Executive Department does not cooperate with the Congress as it should.

I should add that I am sorry you retired from the practice of law because your advice would have been welcome.

Mr. ACHESON. I would give you a suggestion, Senator, which would be, to write the kind of a bill you want to write and send it to the Attorney General and the President and say, I take it you have no objection to my reporting this bill. And you will find some action happening very fast.

Senator ERVIN. Thank you very much.

I again wish to express our deep gratitude for your appearance here and the very illuminating testimony and views which you have given us on this subject.

Mr. ACHESON. Thank you, Senator. It is a pleasure to be with you. Senator ERVIN. Counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, the next witness is Mr. Raoul Berger.

Senator ERVIN. Raoul Berger received law degrees from Northwestern University and from Harvard University. He practiced in Washington and was in charge of certain appellate matters for the SEC. He then became a Special Assistant to the Attorney General, and during World War II he served as associate and then general counsel to the Alien Property Custodian. He entered private practice in Washington in 1946.

In 1962 Mr. Berger was invited as regents professor to the University of California (Berkeley), remained several years, and left to devote himself to study and writing. The first fruit of his study, Congress v. The Supreme Court, was published by Harvard University Press in 1969. In a review in the American Historical Review, Professor Alexander Bickel termed the book a distinguished piece of scholarship. A second book, dealing with impeachment (and related problems under the Federal Constitution) will be published by the Harvard Press in 1971-1972.

Mr. Berger was for years a member of the American Law Institute, served as chairman of the section on administrative law of the

American Bar Association, and as chairman of its special committee on special courts. The Harvard Law School has appointed him as Charles Warren senior fellow in legal history.

Mr. Berger has done some very fine work in the particular field in which the subcommittee is interested. The subcommittee is delighted to welcome him and to express its appreciation of his willingness to come and give us the benefit of his views on this very important question.

STATEMENT OF RAOUL BERGER, ESQ., AUTHOR OF "EXECUTIVE PRIVILEGE v. CONGRESSIONAL INQUIRY”

Mr. BERGER. Mr. Chairman, I thank you for your invitation; and I am indeed happy to have the privilege of appearing before you. Any lawyer who is called on to follow our illustrious colleague, Mr. Dean Acheson, must feel like the lowly vaudevillian who had to follow Al Jolson. It is a hard act to follow. If I take heart, it is because for 2 years I devoted myself to a study of the problems involved in claims of executive privilege. And in the course of those years, I came forth with some convictions. And I don't think any lawyer is worth his salt who, after study, arrives at convictions and hasn't the courage to state them forthrightly.

The study to which I refer is entitled "Executive Privilege v. Congressional Inquiry," which I have been told was introduced by Senator Fulbright. And a statement which I shall submit here for the record is keyed to that study.

Having had the opportunity to hear Mr. Acheson, perhaps you will indulge me if I begin first with a few comments on his remarks. As I listened to him, I felt that he had toned down the position taken in his written statement. When I first read in the statement, for example, that the practical consequences of the Fulbright bill would be to cause useless friction and hamper the conduct of the Government, I confess I was astonished, because as Professor Winter noted, three Administrations, or at least two that I recall, Kennedy's and Johnson's, made it a practice to screen all requests to invoke executive privilege. And the consequences in the Kennedy Administration were not to cause useless friction and hamper the functions of the Government, but to diminish what was a torrent of requests (after the McCarthy hearings by the Eisenhower Administration) to a tiny trickle. It didn't shake the Government into bits, at all. And the first thing President Johnson said when he came into office was, I am going to continue that practice, and I am going to screen every request. And it proved to be a very useful thing. Which is not to say that what can be done on the presidential side by a President directly can be done out of hand by the Congress, if there is a constitutional problem of privilege.

I will come back to that.

Let me make another point. I am glad that your academic consultants have narrowed Mr. Acheson's objections to foreign relations, so that he is not making a blanket attack on the entire investigatory process. Because when I first read his statement I thought, my God, has Senator Fulbright dropped an illegitimate baby on the threshold of your hearing room. In fact, congressional investigations have a

long and respectable ancestry, and they have proved an indispensable instrument of Government.

Mr. Acheson also raised the ghost of the McCarthy hearings. We have to face up to the fact that the McCarthy hearings left a stench in the nostrils of decent men. Every time you come up with an investigation to get more information, you are going to have that thrown up to you. I am not here to apologize for McCarthyism; I despised it. And I suggest that the Congress-and you will permit me to be indiscreet-the Congress, if it wants the President to police the executive branch, has also to police some of its own reckless and hot-headed chairmen. So I see nothing here that should raise the shades of Robespierre, and of McCarthyism, not to mention the shade of the King of Morocco. What you are talking about is a timeworn, legitimate function. When Mr. Acheson testified as to his own experience he demonstrated that a big, broad-gaged man dealing with big, broad-gaged men, can avoid a lot of problems. That just confirms Madison's: "If men were angels, you would need no laws." But you know at first hand men are not angels.

I will address myself later to some of the problems of foreign relations and of treaty making.

Let me say one other thing. Of course, I agree with Mr. Acheson that there are no absolutes. There are no absolutes in either the congresional power or the executive power, just as there are none in the first amendment. You can't push any constitutional mandate to extremes. But in practice, what results, as you well know, is that the executive branch does have the last word: it determines what you shall know.

I can't resist saying, I feel like a moviegoer who says, this is where I came in.

Fourteen years ago, I was employed by the Comptroller General along with two professors, Dean Frank Newman, and another, to furnish an opinion. The Secretary of the Air Force had withheld a document that by statute the Comptroller General could require. It was an Inspector General's report. That wasn't on the puny scale of Mr. Kissinger's staff; there was a staff of about 3,000 men with a budget of $24 million. At that time that sounded like a lot of money to me because when I was with the SEC, we didn't have more than about $4 million. It struck me before I even investigated it, isn't this something that Congress should legitimately know? How was this Inspector General's function being performed? Maybe you don't want to leave it there. Maybe you ought to give him more money; or maybe you ought to withdraw the appropriation. What was the rationale for the withholding by the Secretary of the Air Force? It was that if he were compelled to give you a report it would destroy the Air Force's capacity for self-criticism. This is self-righteousness raised to the nth degree, for an agency to tell you that if you investigate into our efficiency, you will destroy it.

Here you are again, as I read Senator Fulbright's statement-with which I am in great sympathy, although I have some reservations about his method of going about it-facing the same thing with the Comptroller General and the Secretary of Defense.

You don't need still another opinion; and I claim no special respect for an opinion rendered by myself as an ex-professor. I am

here as a working lawyer, who has been accustomed to assemble facts. and submit them for judgment. If the facts support my opinion, my opinion is entitled to respect. But I think this is important: Committee after committee has investigated executive privilege and determined that the claim of privilege is not constitutional. For the most part, the committees have drawn different conclusions than those of the Committee of 1816 that Mr. Acheson read to us.

I want you to indulge me while I pull together a few historical facts that are incontrovertible, not a matter of mere opinion. These facts, in my judgment, illustrate first of all that a broad power of investigation (I am tempted to say almost untrammeled, but for the fact that we have grown to distrusts absolutes) was an attribute of the legislative power. I want then to look at the executive power and ask, what is embraced in the executive power? Was it designed to curtail the legislative power of inquiry?

And by the way, the word "Executive" wasn't even known in English law. We invented that when we were setting up a Government. And I beg to remind you of what you so-well know, Mr. Chairman, that the seperation of powers only comes into question after you determine that there are three classes of powers, the legislative power, the executive power, and the judicial power. Then you conclude, as the Massachusetts Constitution so wonderfully said, each of these different powers shall be separate. In a word, the seperation of powers is really an abstraction. You can't build anything on it by mere logical analysis. You have to go to history to find out what was the legislative power, as for example we go to English history to find out whether courts have a contempt power.

Then I want to address a few remarks to what is clearly an extraordinary document, submitted on a great constitutional controversy by the Attorney General to the Senate, the so-called "Attorney General's Memorandum," which has become a bible. This bible deserves a closer look, because you are going to get citations from the Attorney General's Memorandum as if it were holy text.

And, finally, I want to address myself to this: What we have here are two conflicting claims of constitutional power; a conflict respecting constitutional boundaries. And neither branch can settle those boundaries by itself. A boundary dispute has to be turned over to the courts. And if I may be so bold. Mr. Senator, no attempt to handle this by temporizing, by persuasion, is going to settle it. Sooner or later you will have to do what Senator Matthew Nealy once said: "This intolerably prolonged controversy must be submitted to the courts." Only the court may finally decide whether your powers are limited by executive privilege. When the court speaks, you will no longer be a beggar, you will be in a position to demand the information you are entitled to have.

With your indulgence, let me begin with the question of power. If we have power, we can then talk about the Fulbright bill and some of its deficiencies.

I don't propose here to go into details of Parliament's power to investigate. That was studied by Professor Landis of Harvard, who devoted a long article to Parliament's power of inquiry. I went over a great deal of that material, and I am convinced after reading and