son said yesterday that he thought that provision was a mistake, that it would in essence open up employees of the executive branch to bullying, and rather unjustified bullying, because it is not up to the employee himself to invoke the privilege, it is up to the President or the President's representative. Do you have any comments on that section?

Mr. BUNDY. No, except that just purely as a layman looking at it, if you know a man is going to invoke executive privilege-and we are both assuming for the purposes of this question that senior advisors to the President, for example, would take that position, as they have historically, not merely in the last 10 years, but for a much longer period-what is accomplished by bringing him up? That is what is difficult for me to imagine.

I try to imagine what the session would be. Mr. X. Colonel House, or Mr. Kissinger, or whoever it may be, appears on the witness stand before a committee, and says: "As to any matter that you may address to me on any subject I propose to plead executive privilege." What is left, other than questions on matters extraneous to any particular circumstances? And therefore in certain circumstances which I think we would both imagine, it might partake of harassment. I don't see what is accomplished, in all bluntness.

This again, I repeat, assumes that the executive privilege is being invoked, and assumes that the ground on which it is being invoked is that this is a person who is in direct and confidential relationship to the President. I don't see myself how you can avoid having a group of persons in that position at any given time.

Professor WINTER. Would you have any objection to a provision compelling him to appear unless the President explicitly invokes the executive privilege?

Mr. BUNDY. I don't see any objection, but I don't see much gain either, just off the cuff.

Professor WINTER. I think there is a good deal of evidence before the subcommittee that even though the President very rarely invokes the executive privilege, lower officials much more frequently fail to appear or refuse to give information that is requested.

Mr. BUNDY. I am simply not familiar with the kind of case where anybody at a lower level brandishes executive privilege. I think that is totally unjustified. I think you have got to do it on the authority of the President. And as I said in my opening statement, my understanding has been that procedures are that the counsel of the President and therefore the President himself are the ones who are deciding this. But I do not know this from any personal experience, and therefore I am not in any sense contradicting your statement before the subcommittee. And to the extent that that is the case, I think it is wrong.

Professor WINTER. For instance, yesterday representatives of the General Accounting Office testified that they had not been able to get internal audits and reports on the military assistance training program. There has been no formal invocation of the executive power by the President. That is just one of a number of instances that we had. The trouble is that there isn't a formal invocation of the executive privilege by the President or by the lower officials. They just

don't give the information, sometimes on the ground that they think it is not appropriate, or that it wouldn't be useful to the subcommittee, or things like that. As a practical matter, there are a number of very mundane matters of information which Congress is unable to obtain, and it is unable to obtain any kind of Presidential ruling on it.

Mr. BUNDY. I see your point. May I comment just very briefly, because your mention of internal audits and military assistance programs has hit a bit of my personal experience in government?

I suppose those internal audits are an example of the executive branch conducting a self-inquiry. This has got to be done, frankly, with a view to raising the most critical issues, and in a very tough minded fashion, if it is to be any good at all. I think it is a case of one of the most difficult aspects of this subject. And I am not trying to be categorical about it. But since I have participated in decisions to withhold such internal audits, maybe my testimony is. relevant.

I did so on the ground that while we were prepared to state what we believe the facts to be and to go to great lengths to do so to members of the General Accounting Office, we in the relevant offices in the military assistance programs of which I happened to be in a supervisory capacity from 1961 through 1963-felt that we could not keep the efficiency of the process of self-audit if the auditors thought that everything they said would be revealed. The next thing we knew the fellow down the line in the program would be picking a ves man as his auditor, and we wouldn't find out what was wrong ourselves so that we could correct it. It is a pretty good example of why you have executive privilege. And at the same time, with the information that audit discloses in terms of what is the fact about this, the GAO ought to be able to get it. I think we used to give them hours and hours to say what we thought the facts were-but we were not about to give them the audits, in order to protect the toughness and efficiency of the audits, which we regarded as part of the executive process.

Now, this doesn't explain every case, but I happen to have some personal knowledge of why the privilege is invoked in this particular case, and it is a good example of a particularly tough kind of borderline situation. I don't think we ever went to the Secretary of Defense or to the White House on this. What happens of course is that the doctrine of executive privilege plays in the background like summer lightning on any encounter of this sort between the executive and the legislative. It is invoked about one case in 200, of the times that it is relevant and plays a part. And I am inclined to think that strictly procedural requirements on actually invoking it are a sound thing. I thought they already existed.

Professor WINTER. I am rather confused. During the last three administrations we have been told that the internal rules of the administration forebade lower officials from invoking the executive privilege without the authority of the President without the President invoking it himself. This is a good example of what you and I agree is within the Executive authority, and perhaps also a good example of a lower official refusing to divulge knowledge about something without following the rules. That is, before you refused to give.

these internal audits to the General Accounting Office you were supposed to go to the President and have the President invoke the executive privilege. On the merits you may be right, but procedurally I think it is exactly what we have been talking about in the subcommittee.

Mr. BUNDY. I see your point. I think this is a case where each side in effect tries to assess how valid the claim is and how far it should press its position. Now, in the case of the GAO asking for internal audits, I really feel strongly. I am not sure whether we ever went to the Secretary of Defense as I say, I don't recall our doing so. If it had been passed to that point, I think I would have recommended that the Secretary of Defense take the position that this was ultimately a question of executive privilege, and that if necessary he get White House authority to do it. What you are going to set up is a small, very high powered office in the White House to pass on these claims very rapidly, and to set up certain categories of executive process that will be protected. I think that would be to the good. It would systematize the subject. And it is much too diffuse now and not well handled in the executive branch.

Professor WINTER. I think then, that what you would probably say is, we are wrong in thinking that the second part of the S. 1125 was superfluous and that it requires a form of declaration by the President, because it would accomplish what you are saying, it would stop diffusing the authority and it would set up categories and perhaps help us to define the substance of executive privilege over the years much more precisely.

Mr. BUNDY. What I think has actually happened in cases like this one, I don't imagine that the GAO has pushed this to the point where it reached even the Secretary of Defense. I may be wrong. It didn't in my time and to my recollection. If you push it you are going to end up with a Presidential determination, because there is no valid basis to deny information to the Congress on any other procedural basis. In other words, part 2 of your bill states what I believe to be the constitutional requirement. I think what you would do by part 2 in effect is to tighten and stiffen the way the executive deals with this. And I think that may be to the good, so that you don't get captious or self-protecting invocations of the privilege, but you do get clear lines, and everybody would understand what you were doing.

Which gets back to what I said in my opening statement. I think if the Congress could focus on the substance of what it wants rather than the process by which that substance has been obtained, a very great improvement could be achieved by that one thing alone. And I grant that this is not a fixed distinction either. But internal audits. are precisely the kind of thing on which, if the executive branch is to operate effectively you can see, there is a reason for protecting it. I am not arguing definitively in that case, but you can see that a

reason exists.

Professor WINTER. I am not arguing as to the substance. But yesterday the representative of the GAO did say that they had written to the Secretaries of Defense and State just about a year ago about this.

Mr. BUNDY. If Elmer Staats can't get in to see Secretary Laird on an issue of this sort, then the Government isn't working correctly, if he feels really strongly about it.

Professor WINTER. I think the feeling is that you have documents setting out administration policy about how executive privilege is invoked which don't actively reflect what is happening. And I think that may be all this bill is trying to accomplish.

Mr. BUNDY. I see. This is something that you know more about than I do.

Professor WINTER. Thank you.

Senator ERVIN. Your position fundamentally is that it would be wise to attempt to minimize conflict by establishing standards which would define the extent and scope of executive privilege. You believe that we should have a standard which would be binding both on the executive and on the legislative branches of the Government, and not have each separate department attempting to have the final voice on each of the possible controversies in this field.

Mr. BUNDY. That describes it, Mr. Chairman. I think in the end you can't get a final and binding treaty on this subject for all times in any circumstances. But you could at least reduce the areas of misunderstanding. In all bluntness, I think there are certainly members of the executive that are waving the privilege around even if they are not actually invoking it, in an unjustifiable fashion. And I think there are staffs of some congressional committees and in congressionally associated offices like the GAO who are asking for information which is on its face within the processes of the executive and entitled to the protection of the privilege. And if you could narrow the disagreements of that type, usually at lower levels, you would be much better off.

Senator ERVIN. I was pleased by your discussion with Professor Kurland with respect to the use of the term "national interest". It seems to me that term is so broad and says so much that it really says nothing. I think you have made a significant contribution to some understanding of the proper use of this term by separating it from national security.

On page 5 of your statement you indicate that there are three fields in which executive privilege might properly apply. One is the information gathering activity of the executive branch-the effort to acquire the information on which to make the decision. The second field is the decision making process in which, as I understand it from your statement, there is great need to have a free exchange of ideas on the part of those who are participating in the decisionmaking process. Such a free exchange requires that they not be confronted in the headlines with some foolish remark that they might make on the spur of the moment.

Mr. BUNDY. Some of us have had that experience.

Senator ERVIN. The third field consists of matters which pertain entirely to internal administration and personal security of the persons working in the executive branch of the Government.

Mr. BUNDY. That is correct, sir; those are examples-they are the examples in the field that I know anything about of the protection of the process of government. I wholly agree with you that the term "the national interest" is too sweeping. And I find myself sympa

thetic, without having thought it through to the point that I believe Professor Kurland was making, or Professor Winter, that you should divide it into its constituent parts. Are you talking about the matter of national security-in which case you are talking about the matter having to do with the executive function of Commander-inChief-or matters that affect relations with other nations-in which case you are talking about the President's either inherent or constitutional function-there is debate on this which need not detain usto conduct foreign affairs and negotiate treaties and things of that sort. "The national interest" is the legal phrase, but it must be broken down into its constituent parts. And I think it is a service that this subcommittee could render to insist on that division and to focus on the real reasons why people invoke this privilege. Senator ERVIN. Senator Mathias?

Senator MATHIAS. Mr. Chairman, I am sorry I was detained and didn't hear all of the statement and colloquy.

But I am struck by a portion of Mr. Bundy's statement on page 2 in which he says that he shares the belief that Congress does not now receive as much information as it should, and that part of it may relate to personalities at particular times which is exactly what Secretary Acheson said yesterday, and as to which I think there was general agreement.

Mr. BUNDY. It is entirely coincidental if my view agreed with his, but I still hold it.

Senator MATHIAS. I think it is just as well to be reminded of these very human facts, that all of us have to perhaps try harder to reach across the gulfs that have existed and did exist, and remember that we are all human beings, and we have emotions and egos, and sensitivities that get ruffled. And I think there is almost no effort going on in this regard today, and I would think, Mr. Chairman, less so than when I came to Congress 10 years ago. But I go on to what is perhaps for this hearing the more important second part of that sentence, which is, "but that a great deal more of the inadequacy seems to me to tie to differences of view on procedure." And I think in your response to the chairman just now you have perhaps answered this. But just to be clear, you do feel, it is my understanding, that those who invoke the privilege should give a very detailed explanation for refusal to disclose information.

Mr. BUNDY. I think they should give a clearly pegged answer. In a sense you can't ask for the bill of particulars behind the invocation, because that quite often in itself would be privileged.

Senator MATHIAS. It is like a secrecy case where you have to tell the secrets in order to present the case.

Mr. BUNDY. I agree you ought to have a specific statement,

We believe that the disclosure of this information would do harm to the national security in a miltary sense or in the sense of our relationship to important countries.

At least that much ought to be said. And when you get down to cases, of course-in fact this is far more often than not done, at staff level, and in relation to the transcript of testimony in executive session. Now, I think the executive has been gravely at fault in letting this clearance of testimony be done at far too low a level. The clearing of a transcript and the decision when particular information, if made