only by the President and would not be used without specific Presidential approval.23 This commitment, as members of the subcommittee are well aware, has been reduced to nullify by the simple device of withholding information without formal invocation of executive privilege. I have already cited the difficulties encountered by the Foreign Relations Committee and the General Accounting Office in their efforts to obtain copies of the 5-year plan for the military assistance program. There have been many other instances over the years in which documents pertinent to a congressional committee's legislative or oversight functions have been withheld on vague or spurious grounds. In the case, for example, of the history of the U.S. decisionmaking process on Vietnam policy, now known to the world as the "Pentagon Papers," repeated requests for access by the Foreign Relations Committee were dismissed on the alleged ground that "it would be clearly contrary to the national interest" to disseminate the study "more widely." 24 In these and other instances the Department of Defense has not only declined to invoke executive privilege but has also sought to evade accountability by long delays in responding to congressional requests. Such tactics of delay and evasion, permit the executive to exercise executive privilege without actually invoking it and without honoring the commitment of three Presidents that only the President would invoke executive privilege. As matters now stand, that commitment has been reduced to a meaningless technicality: Only the President may invoke executive privilege but just about any of his subordinates may exercise it-they simply do not employ the forbidden words. In order to remedy this situation it seems to me most important that legislation restricting executive privilege contain specific time limits within which the eqecutive would be obligated either to provide the information requested or to invoke executive privilege. More important still, it should be specified in the legislation that information can be withheld from Congress by no means other than a formal invocation of executive privilege. In his memorandum to agency heads of March 24, 1969, outlining a procedure for compliance-or noncompliance-with Congressional requests for information, President Nixon refers in passing-as if it were axiomatic-to the executive branch's responsibility of withholding certain information the disclosure of which would be incompatible with the public interest." Until and unless legislation is adopted by Congress to restrict executive privilege both as it applies to information and as it has been extended to shield individuals in high policy positions, the executive will continue to be the sole judge of that amorphous category called the public interest and of what is compatible or incompatible with it. It will still retain the power to decide for itself whether and to what extent it will be investigated. It will still be the judge and jury in cases of its own malfeasance and failures of judgment, of which there have been a great many in recent years. 23 The commitment was made in letters addressed to Representative John E. Moss. Chairman, House Foreign Operations and Government Information Subcommittee, dated Apr. 7, 1969, from President Nixon; Apr. 2, 1965, from President Johnson; and Mar. 7, 1962, from President Kennedy. 24 Letters from Secretary of Defense Laird to Senator Fulbright, dated Dec. 20, 1969, and July 21, 1970. For over a century executives upon occasion have refused information to Congress, and Congress, for the most part, has acquiesced. No doubt, as in the case of Presidential use of the war power, these unwarranted denials of information will be cited as precedents conferring legitimacy on the claim to a right of unrestricted and unreviewable executive privilege. My own view-which I believe to be an accepted principle of jurisprudence-is that usurpation is not legitimized simply by repetition, nor is a valid power nullified by failure to exercise it. The valid power involved is that of legislative oversight, which cannot survive in the face of an absolute and unrestricted executive privilege. No one questions the propriety of executive privilege under certain circumstances; what is and must be contested is the contention that the President alone may determine the range of its application and, in so doing, also determine the range of the Congress' power to investigate. As Senator George Norris once said: Whenever you take away from the legislative body of any country in the world the power of investigation, the power to look into the executive department and every other department of the government, you have taken a full step that will eventually lead into absolute monarchy and destroy any government such as ours. Mr. Chairman, with the permission of the subcommittee I should like to insert several documents in the record of these hearings: first, the two bills which I have discussed, the one, S. 1125, pertaining to the appearance of executive branch employees before congressional committees, and the other, which I intend to introduce in the immediate future, outlining specific guidelines for the invocation of executive privilege; second, the exchanges of letters between Representatives Moss on the one hand and Presidents Kennedy, Johnson, and Nixon on the other relating to the invocation of executive privilege, along with President Nixon's memorandum for agency heads regarding congressional requests for information; third, a series of letters between Secretary of Defense Laird and myself pertaining to the efforts of the Foreign Relations Committee and the General Accounting Office to secure access to certain documents; and finally, a twopart article, from which I have drawn in the preparation of my statement, by Professor Raoul Berger entitled "Executive Privilege r. Congressional Inquiry," which was published in the UCLA Law Review in May and August 1965. I also commend to the subcommittee's attention the study entitled "Congressional Inquiry into Military Affairs," which was written by Mr. Vincent Doyle of the American Law Division of the legislative reference service and published by the Senate Foreign Relations Committee in March 1968. (The documents referred to follow): APPENDIX 1 [S. 1125, 92d Cong. first sess.] A BILL To amend title 5, United States Code, with regard to the exercise Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) chapter 3 of title 5, United States Code, is amended by adding at the end thereof the following new section: "$306. Executive privilege "(a) An employee of the executive branch summoned or requested to testify or produce documents before Congress, any joint committee of the Congress, any committee of either House of the Congress, or any subcommittee of any such committee, who intends to exercise executive privilege as to the whole or any portion of the matter about which he was summoned, requested to testify, or produce documents, shall not refuse to appear on the grounds that he intends to assert executive privilege. "(b) In no case shall an employee of the executive branch appearing before the Congress, any joint committee of the Congress, any committee of either House of the Congress, or any subcommittee of any such committee, in response to a summons or request, assert executive privilege unless the employee presents, at the time executive privilege is asserted in response to any testimony or document sought, a statement signed personally by the President requiring that the employee assert executive privilege as to the testimony or document sought.". (b) The analysis of such chapter is amended by adding at the end thereof the following new item: "306. Executive privilege.". [S. 92d Cong. first sess.] A BILL To amend title 5, United States Code, with regard to the exercise Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That chapter 3 of title 5, United States Code, is amended by adding at the end thereof the following new section: "§ 306. Availability of information to Congress and the General Accounting Office "(a) The Congress declares that information of, or under the custody or control of, any agency of the Government is to be made available to the Congress so that the Congress may exercise, in an informed manner, the authority conferred upon it by article I of the Constitution to make laws necessary and proper to carry into execution the powers vested in the Congress and all other powers vested in that Government or any department or officer thereof. "(b) For the purpose of this section "(1) ‘agency' means— "(A) an Executive agency; "(B) a military department; and "(C) the government of the District of Columbia ; "(2) 'employee' means "(A) an employee in or under an agency; and "(B) a member of the uniformed services; "(3) 'Government' means the Government of the United States and the government of the District of Columbia and "(4) 'information' includes any information, paper, record, report, or document. "(c) Any information of, or under the custody or control of, any agency or employee of that agency shall be made available to any joint committee of the Congress, any committee of either House of the Congress, any subcommittee of any such committee, or the General Accounting Office, upon request of any such committee, subcommittee, or Office for information relating to matters within the jurisdiction of the committee, subcommittee, or Office making the request, unless executive privilege is invoked with respect to that information and is invoked in accordance with this section. "(d) Executive privilege shall be invoked with respect to any information so requested only if the President signs a statement invoking such privilege with respect to that information requested. "(e) (1) Any information requested by such committee, subcommittee, or Office shall be furnished immediately unless the head of the agency which receives the request determines, as soon as practicable after receiving the request, that the information requested is information with respect to which the head of the agency believes there are compelling circumstances for invoking executive privilege. If the head of the agency so determines, he shall immediately inform the committee, subcommittee. or Office requesting the information of his belief and shall consult with the Attorney General or his designee to obtain advice on the question whether to seek invocation of the privilege by the President. “(2) If, after a prompt and thorough consideration, the head of the agency and the Attorney General or his designee agree that compelling circumstances do not exist for invoking executive privilege, the information requested shall be made available immediately to the committee, subcommittee, or Office requesting that information. If the head of the agency and the Attorney General or his designee believe that compelling circumstances exist for invoking executive privilege, they shall recommend to the President in writing that the privilege be invoked. If 30 days after an agency has received a request for information, no such recommendation has been transmitted to the President, such information shall be made available immediately to the committee, subcommittee, or Office requesting the information. "(3) If the President invokes executive privilege with respect to any information requested, such committee, subcommittee, or Office requesting the information shall be furnished promptly with a statement by the President in writing giving his reasons for invoking executive privilege with respect to the information so requested. If the President does not invoke executive privilege with respect to information so requested within 30 days after a recommendation seeking invocation of the privilege has been transmitted to the President, such information shall be made available immediately to the committee, subcommittee, or Office requesting that information. "(f) If the General Accounting Office determines that any information requested of an agency by any such committee, subcommittee, or Office has not been made available within a period of 60 days after the request has been received by that agency, and if during such period the President has not signed a statement invoking executive privilege with respect to that information, no funds made available to that agency shall be obligated or expended commencing on the 70th day after such request is received by such agency or employee of that agency, unless and until such information is made available or the President invokes executive privilege with respect to such information." (b) The analysis of such chapter 3 is amended by adding at the end thereof the following new item: "306. Availability of information to Congress and the General Accounting Office." APPENDIX 2 SPECIAL GOVERNMENT INFORMATION SUBCOMMITTEE, Hon. JOHN F. KENNEDY, President of the United States, The White House, Washington, D.C. DEAR MR. PRESIDENT: In your letter of February 8, 1962 to Secretary McNamara you directed him to refuse certain information to a Senate Subcommittee. The concluding paragraph of your letter stated: "The principle which is at stake here cannot be automatically applied to every request for information. Each case must be judged on its merits." A similar letter from President Eisenhower on May 17, 1954 also refused information to a Senate Subcommittee, setting forth the same arguments covered in your letter. President Eisenhower did not, however, state that future questions of availability of information to the Congress would have to be answered as they came up. I know you are aware of the result of President Eisenhower's letter. Time after time Executive Branch employees far down the administrative line from the President fell back on his letter of May 17, 1954 as authority to withhold information from the Congress and the public. Some of the cases are well known-the Dixon-Yates matter and the investigation of East-West trade controls, for instance-but many of the refusals based on President Eisenhower's letter of May 17, 1954 received no public notice. A report of the House Committee on Government Operations covering the five years from June, 1955 through June, 1960 lists 44 cases of Executive Branch officia's refusing information on the basis of the principles set forth in the May 17, 1954 letter. I am confident that you share my belief that your letter of February 8, 1962 to Secretary McNamara should not be seized upon by Executive Branch employees-many of them holding the same policy-making positions of responsibility they did under the Eisenhower Administration-as a new claim of authority to withhold information from the Congress and the public. A Subcommittee staff study indicates that during the year between the time you took office and February 8, 1962, the claim of an "executive privilege" to withhold government information was not used successfully once, compared to the dozens of times in previous years administrative employees held up "executive privilege" as a shield against public and Congressional access to information. Although your letter of February 8, 1962 stated clearly that the principle involved could not be applied automatically to restrict information, this warning received little public notice. Clarification of this point would, I believe, serve to prevent the rash of restrictions on government information which followed the May 17, 1954 letter from President Eisenhower. Sincerely, Hon. JOHN E. Moss, (s) JOHN E. Moss, Chairman. THE WHITE HOUSE, Washington, March 7, 1962. Chairman, Special Government Information Subcommittee of the DEAR MR. CHAIRMAN: This is in reply to your letter of last month inquiring generally about the practice this Administration will follow in invoking the doctrine of executive privilege in withholding certain information from the Congress. As your letter indicated, my letter of February 8 to Secretary McNamara made it perfectly clear that the directive to refuse to make certain specific information available to a special subcommittee of the Senate Armed Services Committee was limited to that specific request and that "each case must be judged on its merits". As you know, this Administration has gone to great lengths to achieve full cooperation with the Congress in making available to it all appropriate documents, correspondence and information. That is the basic policy of this Administration, and it will continue to be so. Executive privilege can be invoked only by the President and will not be used without specific Presidential approval. Your own interest in assuring the widest public accessibility to governmental information is, of course, well known, and I can assure you this Administration will continue to cooperate with your subcommittee and the entire Congress in achieving this objective. Sincerely, (s) JOHN F. KENNEDY. MARCH 31, 1965. Hon. LYNDON B. JOHNSON, President of the United States, The White House, Washington, D.C. DEAR MR. PRESIDENT: The use of the claim of "executive privilege" to withhold government information from the Congress and the public is an issue of importance to those who recognize the need for a fully informed electorate and for a Congress operating as a co-equal branch of the Federal Government. In a letter dated May 17, 1954, President Eisenhower used the "executive privilege" claim to refuse certain information to a Senate Subcommittee. In a letter dated February 8, 1962. President Kennedy also refused information to a Senate Subcommittee. There the similarity ends, for the solutions of "executive privilege" problems varied greatly in the two Administrations. Time after time during his Administration, the May 17, 1954 letter from President Eisenhower was used as a claim of authority to withhold information about government activities. Some of the cases during the Eisenhower Administration involved important matters of government, but in the great majority of cases Executive Branch employees far down the administrative line from the President claimed the May 17, 1954 letter as authority for withholding in |