Mr. KELLER. Mr. Duff, you have been on the ground. Mr. DUFF. The response we usually get at the working level is that they do not have the authority to release them, and they will have to clear it with higher headquarters. And this just starts up the chain until it gets back to the Pentagon and State Department. No; they don't actually refuse us access; we just don't get it. Mr. KELLER. I would like to point out, Mr. Edmisten, that in the Philippine examination our people were sitting for 5 months in Manila trying to complete a job for a Senate committee, and at the end of 5 months we had four documents out of the 12 we had requested. I suppose we could have been there forever if we were patient enough to sit and wait for somebody to clear the papers. So we reach a point where we have to say: "We are going to cut off. If we are to productively use our manpower we can't have them sitting around until somebody decides whether or not they can have a particular document. It isn't a question of somebody in Manila getting in touch with the State Department here in Washington. It probably goes through six hands before it gets there, with all six making comment. Mr. DUFF. That is right. Mr. EDMISTEN. Do you fiind that the refusals to you generally parallel the refusals to, say a congressional committee? Mr. KELLER. Mr. Edmisten, the department recognize that we work for Congress. If they have refused Congress or a committee of Congress, they are going to refuse us; we can depend on that. Or if they know we are going to make a report to Congress and it is about something that they wouldn't give Congress, they probably won't give it to us. Mr. EDMISTEN. Did you ever have occasion to ask them for the so-called "Pentagon papers?" Mr. KELLER. No, sir; we have not. Senator ERVIN. We appreciate very much your appearance, Mr. Keller, and that of the gentleman who accompanied you. I would like to say that I am under the rather strong impression that the General Accounting Office does as good a job as any agency in our Government. I have a very high opinion of the kind of work that is done by the G.A.O. on behalf of the Congress and the country. Mr. KELLER. Thank you very much, Mr. Chairman. We deeply appreciate your comments. Senator ERVIN. Thank you very much. Mr. EDMISTEN. Mr. Chairman, we will be back in room 2228 tomorrow morning at 10 o'clock. Senator ERVIN. The subcommittee will stand in recess until 10 o'clock in the morning. We will reconvene in the Judiciary Committee hearing room. (Whereupon, at 3:30 p.m. the subcommittee adjourned, to reconvene at 10 a.m. Thursday, July 29, 1971.) 68-287-71-21 EXECUTIVE PRIVILEGE THURSDAY, JULY 29, 1971 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS, Washington, D.C. The subcommittee met, pursuant to recess, at 10 a.m. in Room 2228 New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding. Present: Senators Ervin, Mathias and Gurney. Also present: Rufus L. Edmisten, chief counsel and staff director; Joel M. Abramson, minority counsel; Prof. Philip B. Kurland, University of Chicago Law School, chief consultant; Prof. Ralph K. Winter, Jr., Yale University Law School, consultant. Senator ERVIN. The subcommittee will come to order. Counsel will call the first witness. Mr. EDMISTEN. Mr. Chairman, the first witness is Hon. William P. Bundy. Senator ERVIN. We welcome you, Mr. Bundy. William P. Bundy has served, since 1969, as Visiting Professor and senior research associate with the Center for International Studies, Massachusetts Institute of Technology. After being admitted to the District of Columbia Bar in 1947, Mr. Bundy engaged in the private practice of law with the firm of Covington and Burling. Mr. Bundy entered the service of the United States Government in 1951, serving with the CIA until 1961. In 1960, he was appointed to the President's Commission on National Goals; from 1961 to 1963, he was Deputy Assistant Secretary of Defense for International Security Affairs; and in 1964, was advanced to the position of Assistant Secretary. In 1964, Mr. Bundy was appointed Assistanct Secretary of State for Far Eastern and Pacific Affairs, and served in that capacity until 1969. Mr. Bundy has been named to be the next editor of the quarterly, Foreign Affairs, published in New York by the Council on Foreign Relations, and will assume the post in the fall of 1972. Mr. Bundy, a native of Washington, D.C., received his A.B. degree from Yale University and his M.A. degree and law degree from Harvard University. STATEMENT OF WILLIAM P. BUNDY, MASSACHUSETTS INSTITUTE OF TECHNOLOGY CENTER FOR INTERNATIONAL STUDIES Mr. BUNDY. Mr. Chairman, I am at the committee's complete disposal. I did bring a short opening statement. If you wish I will proceed to it. I believe the staff has made copies available to you. I appear at the subcommittee's request to testify concerning S. 1125. Since I do not have specific experience in past cases involving executive privilege, or any special legal knowledge concerning the subject, I assume that the subcommittee wishes to hear from me simply as a past officer of the executive branch. During my service there I was of course concerned with foreign affairs almost exclusively, particularly as an Assistant Secretary and Deputy Assistant Secretary in the Department of Defense from 1961 to 1964, and as Assistant Secretary for East Asian and Pacific Affairs in the Department of State from 1964 to 1969. In this capacity, I have been involved in many matters that raise the question of national interest and protection of the executive process which lie at the root of the doctirine of executive privilege. However, I repeat that I have never myself been involved in any case in which that doctrine was invoked. Thus, I speak without either the expertise or the scars that such an experience might bring. I shall try to approach the subject objectively and in an effort to be helpful. S. 1125 appears designed to make it more difficult for members of the executive branch to invoke executive privilege. Although I believe there has never been any question that the privilege pertains solely to the President, the second part of S. 1125 would apparently require specific Presidential approval in each case. I had myself supposed that this was the standing practice of all recent administrations, and am therefore not quite clear what would be accomplished by making it a legislative requirement. However, I will limit my specific comment to this one point, believing that the wider issue before the subcommittee is the flow of information from the Executive to the legislative branch, particularly in matters involving foreign affairs and national security. I believe that S. 1125 reflects above all belief by the Congress that it has not been able to obtain, in recent years at least, the information it needs to discharge its Constitutional functions. The Bill is in essence a means of getting more information from the executive branch, by stricter procedural requirements and possibly by the sanction of cutting off appropriations, if I understand correctly what Senator Fulbright proposed in the subcommittee on Tuesday. Based on my 8 years at the political level of the Defense and State Departments, I would share the belief that the Congress does not now receive as much information as it should. Part of this may relate to personalities at particular times, but a great deal more of the inadequacy seems to me to tie to differences of view on procedures, which go over into substance. To me, the answer does not lie in the invocation or noninvocation of the doctrine of executive privilege, but rather in the working out of practical procedures that balance the various interests involved. One of those interests surely is the right of the public to know what its Government is doing. Another, not necessarily the same, is the right of the Congress to be fully and adequately informed; since the Congress must act on a representative basis under our Constitution, this may mean that members of the Congress will receive large amounts of information that cannot be made available to the public as a whole. The third set of interests, and the one that comes into focus on the doctrine of executive privilege, has to do with the executive branch and is of a dual character. First, it is the protection of what in the classic phrase is called "the national interest," and second, it is the protection of the processes of the Executive in themselves. In the latter respect, as was pointed out for example by Attorney General Rogers in 1958 in a statement which I understand the subcommittee has before it, the so-called privilege of the executive, to a degree of privacy in this process, is exactly similar to the privacy of judicial and legislative deliberations. In short, protection of the processes of the Executive is a part of the basic doctrine of the separation of powers under our Constitution, which is of course the mandate of this subcommittee. Let me take first the kind of information that involves the "national interest," for it is here that I think the greatest change and improvement are possible. Normally, information affecting the national interest is classified under procedures established within the executive branch. The first thing that needs doing is obviously to review, possibly by an impartial commission, the procedures now used for classification, and particularly those now used for automatic declassification with the passage of time, which in my government experience are simply not followed a good part of the time. I am convinced that major revisions could be made that would release a great deal of information both to the Congress and to the public. Some of this would be information that never should have been classified in the first place; the rest would be information whose relevance to the national interest is on its face short-lived. Yet there remains the problem of current information concerning security matters and relations with foreign governments where I do not believe anyone would question that the information bears validity on the national interest, and cannot for a considerable length of time be made public without some degree of damage to that national interest. Yet it is precisely this type of information which Senate committees in particular most need to do their work. What should the balance be? In the case of this type of information, my broad judgment-subject of course to exceptions in individual cases-is that the Executive should disclose information of this type to the Congress, but solely under procedures that would prevent the release of the information to unfriendly or hostile parties. This means, in practice, that the interest of the public in current information must in such situations-and I emphasize that I am of course talking about cases in which reasonable men would agree that there is danger of damage to the public interest-be subordinate to the broader national (and public) interest, and to the need of the Executive and legislative to retain this information for the time being without release. Just here, of course, has been one of the most difficult and touchy questions between the Executive and legislative. In any human sense, it is a strong temptation for members of the Executive to put the blanket of classification over something that really does not affect the national interest, while by the same token members of the legislative, disagreeing with a particular policy or action, may wish to override valid claims that disclosure would affect the national interest. I do not see any total or conceptual answer to these human tendencies. But I do believe that if the committees of the Congress were to establish universally-as many have in fact done— |