Despite occasional excesses, the congressional power of investigation has proven its value repeatedly over the years. As Woodrow Wilson summed it up in 1885:

Unless Congress have and use every means of acquainting itself with the acts and disposition of the administrative agents of the government the country must be helpless to learn how it is being served . . .o

To state the matter in its simplest terms: if Congress does not investigate the Executive, there is no one to do it but the executive itself. One can easily understand that the executive would find it comfortable and convenient to serve as its own judge and jury, as it so frequently volunteers to do with its familiar contention that some matter or other is being "carefully studied" or is under "continuing review," in consequence of which-they hope to persuade us-no useful purpose would be served by a congressional inquiry. I am reminded, each time I hear this claim, of Frank Loesser's character from Guys and Dolls, "Big Julie," the gangster from Detroit, who forced his friends at gunpoint to shoot crap with blank dice, because "I remember where the spots formerly were."

In foreign as in domestic affairs there can be no question of the authority-indeed of the responsibility of the Congress to exercise legislative oversight. This power is spelled out in section 136 of the Legislative Reorganization Act, which states that each standing committee:

Shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that purpose, shall study all pertinent reports and data submitted to the Congress by the agencies in the executive branch of the Government.

The power and duty of legislative oversight are in fact, rooted deeply in our constitutional history. In the words of a study of the congressional power of investigation prepared for the Senate Judiciary Committee in February of 1954:

A legislative committee of inquiry vested with power to summon witnesses and compel the production of records and papers is an institution rivaling most legislative institutions in the antiquity of its origin. Its roots lie deep in the British Parliament, and only in the light of a knowledge of these origins and subsequent developments does it become possible to comprehend its limits.10 The same general proposition was endorsed by the Supreme Court in McGrain v. Daugherty in 1927, in which the Court stated that:

The power of inquiry-with power to enforce it-is an essential and appropriate auxiliary to the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed and ratified.

The principle of Executive accountability to Congress was asserted from the outset of our history. In 1789 Congress adopted, and President Washington signed, a statute stating that it:

Shall be the duty of the Secretary of the Treasury . . to make report, and give information to either branch of the legislature in person or in writing (as he may be required), respecting all matters referred to him by the Senate or House of Representatives, or which shall appertain to his office (emphasis added).

Quoted by Berger, ibid, p. 1050.

10 Congressional Power of Investigation, study prepared at the request of Senator William Langer, Chairman of the Committee on the Judiciary, by the Legislative Reference Service of the Library of Congress, U.S. Senate, 83d Cong., 2d sess. (Washington: U.S. Govt. Printing Office, 1954), p. 23.

In the congressional debate on this measure, Roger Sherman observed that:

As we want information to act upon, we must procure it where it is to be had, consequently we must get it out of this officer, and the best way of doing so must be by making it his duty to bring it forward."

The omission of similar requirements to provide information from the act establishing the Department of State or the "Department of Foreign Affairs" as it was first called-was first interpreted by Attorney General Rogers in 1958 as proof that "the founders of our Government, and those who sat in the first Congress, meant to give no power to the Congress to see secret data in the executive departments against the wishes of the President.12

In fact, Professor Berger points out the congressional debate about the proposed "Department of Foreign Affairs" contained not a single word about the congressional right to require information, secret or otherwise, and from this "the Attorney General might with equal plausibility have concluded that the right to require information had gone by default." 13

In complete contrast with the Rogers claim of unlimited Executive license for secrecy, an earlier Attorney General, Cushing, advised President Pierce in 1854 that:

By express provision of law, it is made the duty of the Secretary of the Treasury to communicate information to either House of Congress when desired; and it is practically and by legal implication the same with the secretaries, and with the Postmaster and the Attorney General."

In the tradition of the Treasury Act of 1789 many other requirements of information have been enacted into law over the years. Section 313 of the act of 1921 establishing the General Accounting Office directs every agency of the Government to furnish to the Comptroller General:

Such information regarding the powers, duties, activities, organization, financial transactions, and methods of business of their respective offices as he may from time to time require of them.

The language of the statute is clear: It refers to such information as the Comptroller General may "require," not to such information as the Comptroller General may desire and the agency involved choose to provide. Indeed, in 1925 President Coolidge's Attorney General acknowledged that the papers to which the Comptroller General was entitled, under the act of 1921, "would seem to be a matter solely for his determination." 15

In the name of executive privilege agency heads have taken the extraordinary position that they are at liberty to ignore this provision of law. To cite one recent, striking example: In 1969 the General Accounting Office was asked by the Foreign Relations Committee to conduct a review of the training of foreign military personnel under the military assistance program. This is purely within the long-term national interest and is a very expensive program of the Foreign Relations Committee.

11 Quoted by Berger, ibid., p. 1061. 12 Quoted by Berger, ibid., p. 1063. 13 Ibid.

14 Quoted by Berger, ibid., p. 1064. 15 Quoted by Berger, ibid., p. 1112.

For purposes of this study the General Accounting Office thereupon requested of the Department of Defense copies of its 5-year plan for military assistance, performance evaluation reports on Korea and possibly other countries, and a Defense Department staff report on the status of foreign military training systems. All were refused, the 5-year plan on the ground that it was only a "tentative planning document," the Korean report on the ground that it was "not available at the present time," the status reports on the ground that they contained the "opinions" of American military advisers the release. of which might provoke "adverse reactions" on the part of the foreign governments concerned.16

These, Mr. Chairman, parallel the same examples you have already given in your statement, but continuously through here the departments are much more sensitive as to how disclosure would affect a foreign government that they are as to how it affects Congress. It demonstrates to me more conclusively than anything the contempt of the President with regard to the Congress, even in respect to some foreign governments. Many of them are small in many ways, but this kind of reaction is one that cannot be tolerated. They cannot tell the Congress as to what it should know about such programs as this military training program.

The General Accounting Office submitted its report on the military assistance training program in early 1971 but was unable to comply fully with the Foreign Relations Commitee's request, pointing out that officials of both the State Department and the Department of Defense had "withheld or delayed the release of Military Assistance Program reports and records essential to a full and complete review ***"The denial of access to records, the General Accounting Office report pointed out, was not a new problem but "a continuation of similar problems the General Accounting Office has encountered over the years in reviewing Department of Defense programs, particularly evaluations of the military assistance programs." 17

My own view is that military assistance programs is one of the worst abuses we have encountered, and an enormous drain upon our

resources.

Since last winter I have made repeated efforts to secure access to the 5-year plan for military assistance for use by the Foreign Relations Committee in its consideration of military assistance under the foreign aid authorization bill. On two separate occasions I have asked the Defense Department either to provide the 5-year plan or to make a formal claim of executive privilege. All I have received in reply was a brief note over 4 months ago from an aide to the Secretary of Defense advising me that my request was "receiving careful consideration." The Defense Department, it appears, refuses either to provide the information requested or to make a formal claim of executive privilege.

This is only one of many examples I could cite of the willingness of executive branch officials to withhold information in defiance of the law. Executive privilege, Professor Berger recalls, was originally justified as a means of assisting the Executive to "take care that the

10 Letter from Secretary of Defense Laird to Senator Fulbright, June 26, 1969.

17 General Accounting Office report to the Committee on Foreign Relations, "Problems in the Administration of the Military Assistance Training Program," p. 94.

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laws be faithfully executed," and he comments: "It is a feat of splendid illogic to wring from a duty faithfully to execute the laws a power to defy them* * *"

This reminds me of the Chairman's comment that, despite the requirement in the Presidential oath of office to uphold the laws, after the law has been passed, he still takes the attitude that he can deny the law.

Professor Berger goes on to cite a Supreme Court pronouncement of 1838:

To contend that the obligation imposed upon the President to see the laws faithfully executed implies a power to forbid their execution, is a novel construction of the Constitution, and entirely inadmissible.10

The courts have not yet considered the Executive's claim that its invocation of executive privilege is unreviewable when invoked against Congress. The courts have left no doubt, however, that they will review such claims when they are invoked when military secrets are involved. The United States v. Reynolds in 1953, the Supreme Court rejected the specific pleas for disclosure of military information as of "dubious" necessity in that case but went on to assert that executive privilege was "not to be lightly invoked," that "the Court itself must determine whether the circumstances are appropriate for the claim of privilege," and that "judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers."

Can Congress' rights be less than those of a private individual? Can Congress be expected to abdicate to "executive caprice" in determining whether or not the Congress will be permitted to know what it needs to know in order to discharge its constitutional responsibilities? As James Madison said in The Federalist No. 49, neither the Executive nor the Legislature "can pretend to an exclusive or superior right of settling the boundaries between their respctive powers." The Supreme Court has ruled not only that the judiciary may review an Executive decision to withhold information sought by an individual but has also held that under certain circumstances the courts might require the disclosure to court personnel of classified information. In Halpern v. United States in 1958 the U.S. Court of Appeals (2 Cir.) stated that:

The privilege relating to state secrets is inapplicable when disclosure to court personnel in an in camera proceeding will not make the information public or endanger the national security.

It would be grotesque indeed if security grounds could be invoked to deny Congress information which was available both to executive and judicial officials.

III. LEGISLATIVE REMEDY

If the matter of accountability were to come to a final test-and it is much preferable that it does not-there seems little doubt of the legal authority of Congress, or of a congressional committee, to subpoena documents and Government officials, just as it can subpoena private individuals to appear and give testimony, and to hold an individual in contempt should he fail to comply. Under section 134a of the Legislative Reorganization Act of 1946, every standing committee and subcommittee of the Senate is authorized:

19 Kendall v. United States.

To require by subpoena or otherwise the attendance of such witnesses and the production of such correspondence, books, papers, and documents, to take such testimony and to make such expenditures as it deems advisable.

Legislative oversight is of course impossible without pertinent information. Insofar as the Executive is at liberty to withhold information, he is also at liberty to nullify the ability of the Congress to exercise legislative oversight. As Professor Berger comments:

Dress it decorously as you will, in the last analysis executive discretion to determine what Congress shall see empowers the executive branch to determine how far it needs to be investigated."

Although the issue is largely untested and in need of legislative clarification, authorities agree that Congress is not without resources to require the disclosure of pertinent information and the appearance of appropriate witnesses. A study of congressional inquiry into military affairs prepared for the Foreign Relations Committee in 1968 by the Library of Congress points out that contempt of Congress by reason of the failure of a witness to testify or produce papers is punishable by law as a misdemeanor. Furthermore, there is no necessity for Congress or a congressional committee to rely on the Department of Justice to act in a contempt case. As an agent of the executive, the Attorney General might be less than wholehearted in the prosecution of a recalcitrant witness. But, as the military affairs study points out:

There can be no doubt that either House of Congress has the power to seize a recalcitrant witness, try him before the bar of the House, and punish him for contempt by imprisoning him in the Capitol."

One legal authority has asserted that:

Congress undoubtedly has power to punish contempts without invoking the aid of the executive and the judiciary, by the simple forthright process of causing the Sergeant at Arms to seize the offender and clap him in the common jail of the District of Columbia or the guardroom of the Capitol Police."

There have in fact been instances in which witnesses in contempt have been brought to trial before the House of Representatives, and there has been at least one instance in which the Senate has ordered the confinement of a contumacious witness in the common jail of the District of Columbia.

Nor for a moment would I wish to impose so drastic a procedure on Mr. Kissinger or any other official of our Government. It does seem to me of the greatest importance, nonetheless, that appropriate action be taken to provide the Congress with a reliable and continuing flow of information. For these purposes I commend to this subcommittee the bill before it pertaining to the right of Congress to require testimony by individual officials of the executive branch and the bill which I plan to introduce for purposes of spelling out statutory guidelines for the invocation of executive privilege. In the latter bill an attempt is made to codify the commitment made by each of the last three Presidents that executive privilege would be invoked.

20 Berger, ibid., p. 1332.

21 Congressional Inquiry into Military Affairs, a study prepared at the request of the Committee on Foreign Relations, U.S. Senate, 90th Cong., 2d sess. (Washington: U.S. Govt. Printing Office, 1968), p. 7. Pertinent rulings were made by the Supreme Court in Jurney v. MacCracken (1935) and McGrain v. Daughtery (1927).

Joseph W. Bishop, Jr., The Executive's Right of Privacy: An Unresolved Constitutional Question, 66 Yale Law Journal 477 (1957), p. 484.