formation about routine developments. A report by the House Committee on Government Operations lists 44 cases of Executive Branch officials refusing information on the basis of the principles set forth in President Eisenhower's letter. President Kennedy carefully qualified use of the claim of "executive privilege". In a letter of February 8, 1962 refusing information to a Senate Subcommittee, he stated that the "principle which is at stake here cannot be automatically applied to every request for information." Later, President Kennedy clarified his position on the claim of "executive privilege", stating that— "... 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." As a result of President Kennedy's clear statement, there was no longer a rash of "executive privilege" claims to withhold information from the Congress and the public. I am confident you share my views on the importance to our form of government of a free flow of information, and I hope you will reaffirm the principle that "executive privilege" can be invoked by you alone and will not be used without your specific approval. Sincerely, Hon. JOHN E. Moss, Chairman, Foreign Operations and Government Information Subcommittee of the Committee on Government Operations, Washington, D.C. JOHN E. Moss, Chairman. THE WHITE HOUSE, Washington, April 2, 1965. DEAR MR. CHAIRMAN: I have your recent letter discussing the use of the claim of "executive privilege" in connection with Congressional requests for documents and other information. Since assuming the Presidency, I have followed the policy laid down by President Kennedy in his letter to you of March 7, 1962, dealing with this subject. Thus, the claim of "executive privilege" will continue to be made only by the President. This administration has attempted to cooperate completely with the Congress in making available to it all information possible, and that will continue to be our policy. I appreciate the time and energy that you and your Subcommittee have devoted to this subject and welcome the opportunity to state formally my policy on this important subject. Sincerely, (8) LYNDON B. JOHNSON. FOREIGN OPERATIONS AND GOVERNMENT INFORMATION SUBCOMMITTEE, Hon. RICHARD M. NIXON, Washington, D.C. DEAR MR. PRESIDENT: The claim of "executive privilege" as authority to withhold government information has long been of concern to those of us who support the principle that the survival of a representative government depends on an electorate and a Congress that are well informed. As you know, some administrations in the past made it a practice to pass along to Executive branch subordinates a discretionary authority to claim "executive privilege" as a basis to refuse information to the Congress. The practice of delegating this grave Presidential responsibility was ended by President John F. Kennedy when he restored a policy similar to that which existed under previous strong administrations, including those of Presidents George Washington, Thomas Jefferson and Theodore Roosevelt. In a letter to the Foreign Operations and Government Information Subcommittee, dated March 7, 1962, he enunciated the policy as follows: "... 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." President Lyndon B. Johnson informed the Subcommittee by letter, dated April 2, 1965, he would continue the policy enunciated by President Kennedy. He stated: "Since assuming the Presidency, I have followed the policy laid down by President Kennedy in his letter to you of March 7, 1962, dealing with this subject. Thus, the claim of 'executive privilege' will continue to be made only by the President." In view of the urgent need to safeguard and maintain a free flow of information to the Congress, I hope you will favorably consider a reaffirmation of the policy which provides, in essence, that the claim of "executive privilege" will be invoked only by the President. Sincerely, (8) JOHN E. Moss, Chairman. Hon. JOHN E. Moss, THE WHITE HOUSE, Washington, April 7, 1969. Chairman, Foreign Operations and Government Information Subcommittee, DEAR MR. CHAIRMAN: Knowing of your interest, I am sending you a copy of a memorandum I have issued to the heads of executive departments and agencies spelling out the procedural steps to govern the invocation of “executive privilege" under this Administration. As you well know, the claim of executive privilege has been the subject of much debate since George Washington first declared that a Chief Executive must "exercise a discretion." I believe, and I have stated earlier, that the scope of executive privilege must be very narrowly construed. Under this Administration, executive privilege will not be asserted without specific Presidential approval. I want to take this opportunity to assure you and your committee that this Administration is dedicated to insuring a free flow of information to the Congress and the news media-and, thus, to the citizens. You are, I am sure, familiar with the statement I made on this subject during the campaign. Now that I have the responsibility to implement this pledge, I wish to reaffirm my intent to do so. I want open government to be a reality in every way possible. This Administration has already given a positive emphasis to freedom of information. I am committed to ensuring that both the letter and spirit of the Public Records Law will be implemented throughout the Executive Branch of the government. With my best wishes. (s) RICHARD NIXON. MARCH 24, 1969. MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES (Establishing a Procedure to Govern Compliance with The policy of this Administration is to comply to the fullest extent possible with Congressional requests for information. While the Executive branch has the responsibility of withholding certain information the disclosure of which would be incompatible with the public interest, this Administration will invoke this authority only in the most compelling circumstances and after a rigorous inquiry into the actual need for its exercise. For those reasons Executive privilege will not be used without specific Presidential approval. The following procedural steps will govern the invocation of Executive privilege : 1. If the head of an Executive department or agency (hereafter referred to as "department head") believes that compliance with a request for information from a Congressional agency addressed to his department or agency raises a substantial question as to the need for invoking Executive privilege, he should consult the Attorney General through the Office of Legal Counsel of the Department of Justice. 2. If the department head and the Attorney General agree, in accordance with the policy set forth above, that Executive privilege shall not be invoked in the circumstances, the information shall be released to the inquiring Congressional agency. 3. If the department head and the Attorney General agree that the circumstances justify the invocation of Executive privilege, or if either of them believes that the issue should be submitted to the President, the matter shall be transmitted to the Counsel to the President, who will advise the department head of the President's decision. 4. In the event of a Presidential decision to invoke Executive privilege, the department head should advise the Congressional agency that the claim of Executive privilege is being made with the specific approval of the President. 5. Pending a final determination of the matter. the department head should request the Congressional agency to hold its demand for the information in abeyance until such determination can be made. Care shall be taken to indicate that the purpose of this request is to protect the privilege pending the determination, and that the request does not constitute a claim of privilege. RICHARD NIXON. APPENDIX 3 Hon. MELVIN R. LAIRD, [Set I-The "Pentagon Papers"] NOVEMBER 11, 1969. DEAR MR. SECRETARY: It is my understanding that the Department of Defense prepared a seventeen-volume history of the decision-making process on Vietnam policy covering the period from 1940 to April 1968. The project, I was informed, began under Secretary McNamara and was completed under Secretary Clifford and was confined to a study of written data. It appears that this study would be of significant value to the Committee in its review of Vietnam policy issues, and I would appreciate your making it, as well as any later studies of a similar nature, available to the Committee. Sincerely yours, J. W. FULBRIGHT, Chairman. Handwritten P.S.-I appreciate your making the contingency plan available. It was interesting. THE SECRETARY OF DEFENSE, Washington, D.C., December 20, 1969. Hon. J. W. FULBRIGHT, Chairman, Committee on Foreign Relations, Washington, D.C. DEAR MR. CHAIRMAN: This will acknowledge receipt of your letter with respect to the "history of the decision-making process" in connection with Viet nam. In 1967, Secretary McNamara initiated a detailed history of the evolution of the present-day situation in Vietnam. It was conceived as a compilation of raw materials to be used at some unspecified, but distant, future date. On the basis of the understanding that access and use would be restricted, the documents were designed to contain an accumulation of data of the most delicate sensitivity, including NSC papers and other Presidential communications which have always been considered privileged. In addition, the papers included a variety of internal advice and comments central to the decision-making process. Many of the contributions to this total document were provided on the basis of an expressed guarantee of confidentiality. As intended from the start, access to and use of this document has been extremely limited. It would clearly be contrary to the national interest to disseminate it more widely. However, the Department of Defense is naturally prepared to provide the Committee. information with respect to Executive Branch activities in Vietnam for any portion of the period covered by this compendium. I hope you will appreciate the reasons why we are unable to comply literally with your request. Sincerely, MELVIN R. LAIRD. JANUARY 19, 1970. Hon. MELVIN R. LAIRD, DEAR MR. SECRETARY: I wish to acknowledge your letter of December 20 refusing the Committee's request for a copy of the history of the decisionmaking process on Vietnam policy. I regret that the Department has taken this position and I urge that it be reconsidered. I had hoped that the solution to the problem about access to the Thai contingency plan marked the beginning of a more cooperative attitude within the Executive Branch on problems of this nature. The issue involved here is not merely that of allowing Committee members access to the documents but is far more fundamental, going to the heart of the continuing problem of striking the proper Constitutional balance between the Legislative and Executive branches, particularly on foreign policy matters. If the Senate is to carry out effectively its Constitutional responsibilities in the making of foreign policy, the Committee on Foreign Relations must be allowed greater access to background information which is available only within the Executive Branch than has been the case over the last few years. The history of the decision making on Vietnam policy would be of great value to the Committee in appraising the policy-making machinery of our government and in studying ways to insure that the mistakes of the past are not repeated. Since this study was not initiated by President Nixon but by former Secretary McNamara and the doctrine of Executive Privilege has not been invoked, I again urge that you provide the Committee with these materials. Sincerely yours, J. W. FULBRIGHT, Chairman. THE SECRETARY OF DEFENSE, Hon. J. W. FULBRIGHT, Chairman, Committee on Foreign Relations, Washington, D.C. DEAR MR. CHAIRMAN: I have received your letter of January 19, 1970 asking that I reconsider the position taken in my letter of December 20, 1969 regarding the request of your Committee for a copy of the history of the decisionmaking process on Vietnam policy. I will be back in touch with you on this matter as soon as practicable. MELVIN R. LAIRD. APRIL 20, 1970. Hon. MELVIN R. LAIRD, DEAR MR. SECRETARY: On January 19, I asked that you reconsider the Committee's request for a copy of the Department of Defense prepared history of the decision-making process on United States policy toward Vietnam. Thus far, I have not received a reply and I hope that it will be possible for a decision to be reached on this soon. Sincerely yours, J. W. FULBRIGHT, Chairman. JULY 10, 1970. Hon. MELVIN R. LAIRD, DEAR MR. SECRETARY: I have not received a reply to the Committee's request of January 19 that you review the decision to deny the Committee a copy of the Department of Defense prepared history on United States policy toward Vietnam, or to the follow-up letter of April 20. It seems to me that the Department has had ample time to consider this matter and I would appreciate your advising the Committee as to whether these materials will be made available. Sincerely yours, J. W. FULBRIGHT, Chairman. THE SECRETARY OF DEFENSE, Washington, D. C., July 21, 1970. Hon. J. W. FULBRIGHT, Chairman, Committee on Foreign Relations, Washington, D.C. DEAR MR. CHAIRMAN: I have received your letter of July 10, 1970, reiterating your request for a decision regarding the request of your committee for a copy of the history of the decision-making process on Vietnam policy. As noted in my 18 February acknowledgement, your request for reconsideration of the Department's earlier position on this matter has also been received. My letter of December 20, 1969, indicated that access to and use of this document, as intended from the start, has been and remains extremely limited. For the reasons expressed in that letter, I have again concluded that it would be clearly contrary to the national interest to disseminate the compendium more widely. May I again express the hope that you will appreciate the reasons why we are unable to comply with your request and reiterate that the Department of Defense is prepared to provide the committee information with respect to Executive Branch activities in Vietnam for any portion of the period covered by this compendium. Sincerely, MELVIN R. LAIRD. Hon. MELVIN R. LAIRD, DEAR MR. SECRETARY: As a former member of the Legislative Branch, I am sure that you understand the need for Congress to have access to reports, records, and other information in the possession of Executive Branch departments and agencies to enable it to carry out its Constitutional responsibilities. President Nixon, as did Presidents Kennedy and Johnson before him, recognized the importance of Congress's right to obtain such information to the proper working of our system of checks and balances. On April 7, 1969, he wrote to Congressman John E. Moss, Chairman of the Foreign Operations and Government Information Subcommittee of the House Government Operations Committee, that his ". . . Administration was dedicated to insuring a free flow of information to the Congress . . .," and stated that the doctrine of “executive privilege "must be very narrowly construed" and "will not be asserted without specific Presidential approval." I enclose, for your convenience, a copy of that letter and his memorandum which spelled out the procedural steps for invoking "executive privilege." On a number of occasions in recent years the Department of Defense has refused to supply the Committee on Foreign Relations with specific reports and other information, such as the following: ITEM, DATE OF REFUSAL AND REASON Command Control Study of the Gulf of Tonkin Incident, April 4, 1968, March 5, 1969, January 16, 1971. "Considered to be a privileged Executive document"— "inappropriate to disseminate it outside the Executive Branch." |