proposing NATO. And that was with the full approval of the President. Since the Republicans were in the majority of the Senate at that time, it seemed best to have him make the first speech, put up a trial balloon and see how the public reacted. So, as I recall, every aspect of the NATO treaty was discussed in advance with the Senate, and it was publicly discussed. Many of these things which are at the time considered to be highly sensitive were discussed in advance. You see, no foreign policy will stick unless the American people are behind it. And unless Congress understands it the American people aren't going to understand it. And therefore I think there are many cases where it is best to have a public discussion of matters affecting foreign policy.

Let's take a case in point, this question of what our responsibilities are to Taiwan. There appears to be in the press two schools of thought. I am not trying to suggest that we settle it here. This is going to be a long-range responsibility of the people of the United States. And I think that is the sort of thing that ought to be discussed before the President's visit to Peking, what is the view of the Senate on this and get the reaction of the people of the United States, if we are going to take a long-range commitment.

Chou En-Lai doesn't object to making public his views. Why should the President? You remember Chou En-Lai's talk with some American scholars. If the reports are accurate and they seem to be--they state that Chou En-Lai has indicated that we have to take all of our troops out of Indochina, not just Vietnam but all of Indochina. And also we have to recognize the sovereignty of China over Taiwan. Now, he doesn't object to making his position public.

So it seems to me that Congress and the people of the United States are entitled to know what is going to be talked about in this upcoming meeting. I am in no sense criticizing the right of the President to send Dr. Kissinger to Peking. I don't think the Senate has a right to demand knowing about that in advance. It couldn't have been kept secret. I think the President has the right to travel and have his assistants travel without prior consultation with Congress just as the Senators have the right to travel. But when it comes to taking action, and coming to specific agreements, many subjects are better discussed in advance, even though at first blush one thinks they are too sensitive for public discussion. I think that it is rather amusing that Chou En-Lai doesn't mind telling what he is going to tell the President, and yet we haven't heard anything so far-unless it has been told in executive session, in one of the meetings in the White House-I don't know the attitude of the President on these matters, but we are told what Chou En-Lai is going to say. Senator MATHIAS. Where do you draw the line? What about the SALT talks, for example? Would the SALT talks be an area that in your judgment is too sensitive?

Mr. HARRIMAN. No, I think we would do well to know more about the SALT talks.

Senator MATHIAS. That has been very closely held up to this time.

Mr. HARRIMAN. It has been very closely held, I think too closely held. I would like to know, if it is accurately reported in the press. why the administration thinks it is necessary for us to have 300

ABM's. I think that is a very important subject. I happen to be among those who feel that maybe it is a good idea to have as few ABM's as possible. And many of my friends feel the same way. Why shouldn't we hear about that? I gather there is a subcommittee of the Foreign Relations Committee now delving into that subject. I was amazed the other day to hear from the Pentagon, if it is accurately reported, we heard that the Pentagon was opposed to a comprehensive test ban; in other words, ending the testing of nuclear weapons underground as well as the above ground. In the past the objection to it was that we would have been able to detect whether illegal tests were made or whether there were natural earthquakes. Now, there seems to be a general agreement among scientists that we have that knowledge, so that the Soviets couldn't conduct them secretly. But I gather that the Pentagon says that we want to continue testing underground in order to improve our nuclear arsenal. That is a brand new conception. That means we want to continue the arms race. The American people ought to know whether this administration wants to continue the arms race or whether we want to stop it. And that ought to be discussed, sir. I don't think there is anything secret about that. Should we have a comprehensive test ban? There is no reason why that shouldn't be discussed. Now, I may be inaccurately informed, but it was quoted in the press that the Pentagon representatives took the point of view that we needed to test underground in order to keep our nuclear arsenal up to date. Now, that is a new thought to me, and I haven't been entirely unaware of the thinking in this field, because as you know, President asked me to undertake the negotiation of the limited test ban agreement in 1963. This sort of information ought to be demanded by the Congress. And I think sometimes the Congress isn't quite on the job, if I may say so, in demanding information. I hope the subcommittee of the Foreign Relations Committee now will demand this information. I know plenty of times in the past where the Congress has not seemed to want to be involved in the decision and then after it has happened, they have taken the position that they weren't consulted. I think this is a point which the Congress should give some thought to.

Senator MATHIAS. I have just two further questions. One is that in your statement, toward the latter part, you refer to an explanation of what the administration means by a reasonable chance. Now, I am wondering what impact this has on this doctrine of executive privilege. Are you suggesting that when the Executive opens the subject then, in effect, it weighs defense? I hesitate to talk about courtroom procedure in Judge Ervin's court, but when you open up a subject on the examination-in-chief, then you open it up for the defense as well. So what you mean is that when the Executive opens the door, then it is obliged to keep it open.

Mr. HARRIMAN. I think that is quite correct. And, also, the phrase has been used in several different connections-a reasonable chance to avoid a Communist takeover, a reasonable chance to decide their own future, a reasonable chance to be independent-it has been used in several different ways. And, therefore, I think perhaps you are right, Senator, that the President having raised the subject, the Congress has a right to pursue it.

Now, there is the whole question of what is communism in these days I discovered that the North Vietnamese are nationalistic in fact, they are the Titoists of Asia, if you can use that expression. And, in fact, communism is totally different from what it was in 1947 and 1948, when there was a monolithic structure. These are things that ought to be thrashed out, and certainly the dangers of international communism is one thing that ought to be considered. Senator MATHIAS. Thank you very much. I will withhold anything further.

Senator ERVIN. Professor Kurland?

Professor KURLAND. I have no questions.

Mr. HARRIMAN. I might say, sir, that my own judgment is that you will give the South Vietnamese people a more reasonable chance if they are allowed to have a political contest, than if you leave them with a military conflict. And I think that ought to be aired, it ought to be discussed. I think there is very little chance of their continuing the military conflict, unless you give them a fair chance to solve the political conflict. There is no reason in the world why we shouldn't have a free and open discussion. Then it comes to what is involved in Vietnam, and what our vital interests are. Senator ERVIN. Mr. Edmisten?

Mr. EDMISTEN. Mr. Harriman, I have one question. Senator Fulbright apeared on Tuesday and proposed an amendment to the bill which is now before the committee. His amendment provides that if within 60 days the executive branch does not either assert executive privilege or release the information requested, that the funds for that particular agency shall be cut off until either the President asserts executive privilege or the agency produces the requested information. What do you think about that?

Mr. HARRIMAN. I haven't given it enough thought. I don't like the idea of going after the Executive with an ax in advance. I think that it would be quite appropriate for the Congress to take that action if you find the Executive obstreperous. But for the Congress to use that kind of approach, I think it would create immediately an antagonistic feeling. I am strong for cooperation. Whether the Congress would gain more in going about it in a more persuasive manner than the meat-ax approach is something I would want to think about a good deal. It is likely to produce antagonism by its very nature. On the other hand, if it's the only way you can get an administration to act, why I certainly think it would be quite appropriate, as Senator Symington indicated, if the administration doesn't come across to produce the information. I wouldn't object. to it, but I must say that I wouldn't purpose it.

Mr. EDMISTEN. Senator Fulbright the other day said this: "Contrary to the intent of Congress, the spirit of the Constitution and democratic principle, there has been grown up within our government a whole new bureau or department." He calls it the "White House Foreign Policy Bureau." Senator Fulbright said that Mr. Kissinger has a total staff of over 140 employees, that he serves as a chairman of six interagency committees, and that he gives press interviews and performs a number of other duties which make him more a Cabinet member than a close personal advisor. Would you have any comment on Senator Fulbright's proposition?

Mr. HARRIMAN. I think I have already said in answer to Senator Mathias' question, that I believe Dr. Kissinger should respond to a call to testify. I was in that position during the Korean war and I was ready to testify. I was abroad when the hearings were closed. But I submitted a sworn brief to that committee, which is a matter of record. I had a similar position. But I didn't have 140, I only had 26 employees, so I was a piker compared to Dr. Kissinger. But, at the same time, I did have that same position. But I didn't interfere with the relationship of the Secretary of State and the President, which seems to be the case today. I supplemented him. I was assistant to the President in the international field. And I was involved in military relationships. I went out to Korea and I was involved in political relationships. But I felt that it was appropriate for Congress to call me. It is quite different from calling a private secretary or the President's personal counsel. I think those might be withheld from testifying. But Dr. Kissinger certainly is assuming some of the responsibilities of the Secretary of State. The Secretary of State normally is supposed to be the President's most intimate advisor on foreign policy, and if he is called I can see no reason why Dr. Kissinger should not respond. I think it would be useful, both from the standpoint of the information that would be obtained from him, and from the standpoint of his being able to see at firsthand what the members of the committee are interested in. Of course, he could be called in an executive hearing or public hearing, whichever might be considered best by the particular committee that is involved.

Senator ERVIN. Governor, I want to again thank you for your willingness to appear here and give us the benefit of your views on what I consider to be a very important question.

Mr. HARRIMAN. Could I say, sir, that I have no objection in any way to clarifying legislation. But I emphasize as being more durable and more valuable the customary relationship of give-and-take between the Congress and the Executive. I feel strongly that Congress must exercise its function of getting information. Of course, no foreign policy can be successful if it doesn't have the support of the American people. The tragic war in Vietnam no longer has the support of the American people and it is tragic to continue it. I give you that case in point. Other matters were thrashed out as in NATO and have had lasting support because there was an open and full discussion ahead of time. Now, if we undertake some further commitment in the Pacific, it should be fully discussed by the Congress and the people.

So I think your committee is doing a great service in reviewing this question of executive privilege. And I want to thank you for your concern in this field on a matter of vital importance for our future foreign policy.

Senator ERVIN. Thank you very much.

Counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, our next witness is Professor Norman Dorsen, who is general counsel for the American Civil Liberties Union. He is accompanied by Mrs. Hope Eastman.

Senator ERVIN. I want to welcome you to the committee and express our deep appreciation to you and the organization for

which you speak for your willingness to give us the benefit of your views on a very important subject.

STATEMENT OF PROFESSOR NORMAN DORSEN, GENERAL COUNSEL, AMERICAN CIVIL LIBERTIES UNION; ACCOMPANIED BY MRS. HOPE EASTMAN, ACTING DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON, D.C.

Mr. DORSEN. Thank you very much, Senator Ervin. It is a very great pleasure to be here. And as you have already heard, Mrs. Eastman, the acting director in Washington, is here. You and your staff know her well. And I know also that you know about the ACLU because of our many appearances before you.

I am a professor at New York University School of Law, and I am general counsel of the ACLU. In addition, I was the chief counsel for the ACLU in the recently concluded Times and Post litigation, and therefore I had plenty of time to reflect upon the subject of the hearing today.

One other matter may be of interest. Soon after graduating from law school, I served on the staff of the Secretary of the Army and worked with Mr. Joseph Welch during the Army-McCarthy hearings, and therefore had occasion to consider the privilege issue from the perspective of the executive branch.

The ACLU position on the bill is that we support the first section of the bill, which would prevent an employee of the executive branch duly summoned by Congress for refusing to appear because he intends to assert a privilege. On the other hand, we oppose the other provision of the bill which would require the President personally to direct an assertion of the privilege. As in the case of all of our conclusions, they are spelled out more fully in the statement that, with your permission, I will file with the committee. I would rather speak extemporaneously rather than read the entire statement.

Senator ERVIN. Let the record show that your statement will be printed in full in the body of the record immediately after the completion of the oral testimony.

Mr. DORSEN. Thank you very much, Senator.

On the first section, we really don't think it should be a controversial matter. If there is an employee of the executive branch called by a committee of the Congress, he should appear. If there is a specific privilege which he can declare he should assert it. Whatever the scope of the privilege may be, the time to iron it out is in front of the committee of Congress. We just do not see how a system can operate from behind closed doors. The Executive cannot judge for itself whether or not the privilege exists. We wholeheartedly endorse the first section of the bill.

On the other hand, the second section of the bill raises some very complex problems. We support its objective. It is a good idea for the President to give his most solemn attention to a matter and personally decide whether he wishes his subordinate to assert a privilege. But we have many problems with the section as it is drafted, which causes us to oppose it.

In the first place, we feel that if the section is passed, it will give credence to the idea that the President can determine in his review