The first is that there is neither constitutional, nor judicial, nor statutory authority for the executive's claim of privilege to withhold information from Congress, or even from private litigants, merely because disclosure would, in the executive's judgment, be contrary to the public interest. The Constitution is silent on the matter, and while the executive has often cited United States v. Reynolds, 345 U.S. 1 (1952), as authority, the Supreme Court in that case expressly declined to consider the broad claim of executive privilege. The Reynolds case involved a privilege relating to military secrets, which was asserted against private litigants, not against the Congress. The Court found that the determination of privilege must be made by the court. declaring that "Judicial control over the evidence in a case cannot be abdicated to the caprice of executive officers."

Nor is there statutory authority for the so-called "executive privilege." It is a custom, not a law, and in our opinion an unhealthy custom. The most that can be said for the executive's position is that there is a general public policy against unnecessary disclosure of executive documents.

This policy, however, is subject to the well-established qualification that countervailing public policies may outweigh the general desirability of maintaining confidentiality. We can hardly think of a policy more important than the one which would assist elected representatives of the people to obtain the information they need to perform their duties. In other words, we have no doubt that the vague, sprawling, extra-constitutional doctrine of "executive privilege" must give way to the prerogative of the Congress, embodied in Article I of the Constitution, to perform its legislative functions.

In 1927, a unanimous Supreme Court in McGrain v. Daugherty, 273 U.S. 135, 174-75 (1927), stated that:

"... the power of inquiry-with process to enforce it-is an essential and appropriate auxiliary to the legislative function. . . . A legislative body cannot legislate wisely or effectively in absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information-which frequently is true-recourse must be had to others who possess it. . . .”

This "power of inquiry" is necessary for both informed legislation and, in the words of Woodrow Wilson, "the vigilant oversight of administration." President Wilson's views have never been more apt than they are now. Congress, the principal locus of democratic control, must challenge the growth of a nameless and expansive executive bureaucracy.

The founders of this country envisioned three relatively equal branches of government; each with separate responsibilities and each exerting certain checks on the others. Yet our twentieth century government has been characterized by a proliferation of the executive sphere of influence.

Often imperceptibly, a transfer in the governmental balance of power and influence has occurred-a transfer of significant powers from legislative, and therefore representative, control toward government by the technically competent fraternity of "experts." The legislature's vigilant oversight of the executive domain is vital if the trend toward bureaucratic predominance is successfully to be resisted.

Conscious of this growing imbalance of power between the Congress and the Executive, and the First Amendment premise in favor of maximum dissemination of information, the ACLU has considered its position on “executive privilege." Given the congressional duties of informed legislation and oversight of the executive, the assertion of any "privilege" which results in handicapping Congress carries a constitutional presumption against its validity. These principles guide us to the conclusion that the scope of the executive's claims to withhold information from Congress should be substantially narrowed, and that this narrowing will offer less opportunity for congressional abuse than the broad privilege now claimed presents for executive abuse.

In this connection, we should recall the words of Justice Robert Jackson, himself a former Attorney General of the United States, concurring in the famous Steel Seizure case, Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 654 (1952). He said:

"If not good law, there was wordly wisdom in the maxim attributed to Napoleon that "The tools belong to the man who can use them.' We may say that power... belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers."

It is in this context of broad congressional responsibility, but of declining congressional authority, that the claims for the so-called executive privilege should be assayed. These claims have not been modest. All executive departments and independent regulatory agencies in their executive capacities assert the right to withhold information from Congress when, in the judgment of an executive official, the disclosure is not "in the public interest.”

In 1954, Attorney General Brownell stated in a memorandum to President Eisenhower, that these officials have an "uncontrolled discretion," and President Nixon recently re-asserted this privilege to deny information when, in the judgment of an executive official, disclosure would be "incompatible with the public interest."

The most comprehensive statement of the nature of the privilege is contained in testimony by then Attorney General (and now Secretary of State) William Rogers before a subcommittee of the House Committee on Government Operations. He identified areas in which the privilege could be asserted at the executive's discretion. Among these are:

1. Military and diplomatic secrets;

2. Foreign affairs;

3. Pending litigation and investigations relating to litigation;

4. Information made confidential by statute and sources of that information; 5. Investigative files and reports;

6. Information relating to internal government affairs; and

7. Records incidental to the making of policy, including interdepartmental memoranda, advisory opinions, recommendations of subordinates, and informal working papers.

It is obvious that the privilege is claimed over a vast, unbounded area that could encompass broad stretches of data pertinent to the legislative function. Recall, moreover, that the privilege is asserted to be in the "uncontrolled discretion" of executive officials. Thus, all the elements coalesce for a constitutional rout of congressional prerogatives.

What is the justification offered for the virtually limitless "privilege"? It is principally, the doctrine of separation of powers, which the executive claims vests it with autonomy over information originating with it, so that divulgence of such information is a matter of executive grace.

Surely, this is to stand the Constitution on its head. There are of course Article I and the First Amendment-which together would seem ample authority for elected Congressmen to obtain information that they need in order to legislate. Apart from these provisions, the doctrine of separation of powers itself, does not support the boundless executive claims, but, to the contrary, provides constitutional reinforcement to those who seek to liimt the uncontrolled discretion of the President and his subordinates. In a dissenting opinion in Myers v. United States, 272 U.S. 52, 293 (1926), Justice Brandeis, one of our most astute judges stated:

"The doctrine of separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction but, by means of the inevitable friction incident to the distribution of governmental powers among three departments to save the people from autocracy."

In other words, separation of powers itself counsels against the "uncontrolled discretion" lodged in the executive to withhold information, a privilege which could be enlarged to embrace the whole range of executive activities. Sensing this, Professor Wigmore, pre-eminent authority on evidence, cautioned that "The possibilities of . . . abuse are plainly latent in this privilege. There is needed only the willingness to exercise them." 8 Wigmore, Evidence 791 (3d ed. 1940).

This brings us to the particular subjects of the privilege the seven basic categories compounded by Attorney General Rogers, as he then was. In our view this list is highly inflated, and the only category on it that properly denotes a privilege is the last one-"records incidental to the making of policy", and particularly the records of advice and recommendation that are so essential to the proper functioning of every branch of government, not only the executive.

This is why, we call it the "advice privilege" rather than "executive privilege." Properly understood, it should embrace the "advice" that is a constant element of government, but it should not be limited to the executive branch. The privilege would equally apply to the advice that Justices of the Supreme

Court receive from their law clerks, or members of this body receive from their administrative and legislative assistants.

What about the other categories on the Roger's list? Each of them can be explained wholly apart from the so-called executive privilege.

First, "military and diplomatic secrets" and "foreign affairs." We fail to see why these should involve a "privilege" at all. The Congress has the power, indeed the duty, to legislate in these areas. Information from the executive is essential.

The only basis of a privilege is that the information is secret, that is, classified. But this is not a satisfactory reason for keeping it from the Congress, the members of which deal daily with classified data. The answer must be either that there is no "need to know" on the part of Congress, or else that, as a realistic matter, if the information is in the hands of a committee it will soon lose its confidentiality.

Neither answer suffices. As to the former, there is assuredly a "need to know" in the constitutional sense. As already stated, Congress must legislate, and it must have facts to do so. As for the latter reason, it rests on a premise which has conclusively been rejected that a constitutional power might be abused and therefore should be denied. In this case, the argument is that to give the information to Congress will destroy its confidentiality; it will inevitably find its way to the hands of the public and our enemies. But this is fallacious in fact, and, as Chief Justice John Marshall said long ago, that a power may be abused is no argument against its existence. Every power may be abused. We believe that the greater risk here is not loss of confidentialityall branches of government have shown themselves capable of keeping secretsbut of arbitrary and uncontrolled action by the executive branch.

The other categories on the Rogers list are equally unrelated to an "executive privilege." The information made confidential by statute presents no difficulty; Congress has already acted, and the material is by definition lawfully withheld.

This leaves litigation data, investigative files and reports, and information relating to internal government affairs. The latter category may be interpreted to include personnel files, in which case it should be bracketed with litigation and investigative files or it may be interpreted to include records relating to policy development, in which case it would become part of the seventh category-the only one in our view for which "executive privilege" has any meaning.

As for litigation data and investigative files, there may in fact be a privilege, but it is not an "executive" privilege. It is the right of privacy that employees of the government and others possess fully apart from the interests of the executive branch. In other words, there is no need to resort to an "executive privilege", indeed, it is positively misleading to do so, when wellestablished legal doctrines are sufficient to justify confidentiality.

In this connection, I would like to make clear that the A.C.L.U. is fully mindful of the potential excesses of congressional investigating committees, and determined to rely on the Constitution to shield the public from these excesses. But we do not believe that dangers to individual rights should be fought by curbing legitimate powers of Congress.

I turn then to the one Rogers category where a privilege may appropriately be asserted by the executive-memoranda, advisory opinions, recommendations, in short, the paraphernalia of policy development. Here we can state our position succinctly, in two parts:

1. The Congress may question an employee of the executive branch as to (a) facts within his immediate knowledge, and (b) policy decisions that he personally made or implemented.

2. The Congress may not question an employee of the executive branch as to recommendations, advice, suggestions, that he passed on to his superiors for their consideration in the determination of policy. Nor may the Congress question others, including the superiors of the employee, about such matters.

In our judgment there is good reason to prevent overzealous members of Congress from inquiring about policy recommendations of subordinate officials. To permit such questioning would be to inhibit the free flow of ideas and suggestions that are vital to the formulation of policy. Individuals with actual responsibility for decisions may be questioned, and such inquiries should enable Congress to acquire all pertinent material.

On the other hand, when a government employee personally has knowledge of pertinent facts or personally was responsible for a policy decision, he is the logical person for the Congress to interrogate. In such cases, we see no reason to deny Congress access to the individual or the right to elicit responses regarding all relevant matter not otherwise privileged.

There is one final problem that should be underscored. It is not only important to the privilege issue in general, but it specifically concerns the bill now before the Committee. I refer to the assertion that the executive has "uncontrolled discretion" to determine the scope of the privilege.

We categorically reject this concept. Nobody should be above the law, and this includes the President himself. As I have already said, this is one of the reasons we cannot support the second part of S. 1125-it suggests that the President may determine finally, in his unreviewable discretion, when the "executive privilege" may be asserted.

The Reynolds case made it abundantly clear that even in government litigation with private citizens the courts ultimately must rule on claims of privilege, that the decision cannot be "abdicated to the caprice of executive officers." Surely, the same rule should apply here, where a coordinate branch of government seeks information it has a constitutional mandate to acquire.

Various suggestions have been made, as the Committee knows, for passing on claims of privilege, including a judicial proceeding or a commission composed of members from different branches of government and from the public. This Committee should, we suggest, give careful consideration to these proposals. We are not unaware of the difficulties. But to us these seem to pale before the problem of unchecked executive power, unilaterally asserted and enforced, that would abridge the legitimate interests of the Congress and of the people.

Senator ERVIN. If I interpret your position correctly, what you call the advice privilege or the executive privilege applies properly only to the communications which may pass between the President and persons whom he has called upon to assist him in the performance of his Executive functions.

Mr. DORSEN. Yes, sir.

Senator ERVIN. And it applies to the procedures which enable him to avail himself of advice in order to determine what the Executive policy will be.

Mr. DORSEN. Yes, that is our position, sir.

Senator ERVIN. Your position is, I infer, that where the Constitution permits specific powers to the Congress or imposes duties upon Congress, Congress has the right to call upon the President for information, apart from those questions of advice, which Congress feels necessary to enable it to exercise its constitutional powers or to perform its constitutional duties.

Mr. DORSEN. That is correct, sir.

Senator ERVIN. Now, you state, as I understand it, that you think the opinion by Attorney General Rogers encompasses many things which either are not relative to or have no place in what we ordinarily call the executive privilege.

Mr. DORSEN. That is correct, sir.

Senator ERVIN. You believe that military and diplomatic secrets and matters relating to foreign affairs belong in what you call the field of classification rather than in the field of privilege?

Mr. DORSEN. Yes, sir. And I think that is a very important distinction and one I believe that has not been sufficiently explored. I should add that in the testimony we gave before the House we made it quite clear that the secrets subject to withholding from the Congress and the public are extremely narrow; narrower certainly than it was argued before the Supreme Court in the Times case. There

are only three of them: Present or future technical military operations; blueprints or designs of advance military equipment; and third, objects or material identifying secret objects. Apart from that, we think the Congress has the right to the information.

Senator ERVIN. Now, who has the power in your judgment to determine questions of privileged communications, at least initially? Mr. DORSEN. I think the originating officer has the power, to make recommendations, but the final decision should be confined much more narrowly within the executive agency.

Solicitor General Griswold in open court in the Times case said that overclassification within the Government is rampant. Apparently, some 8,000 employees have the right to issue secret classifications. We believe that the head of an agency or his explicit delegate, should have authority, and nobody else.

Senator ERVIN. Do you have any doubt of the admission of the Solicitor General to the effect that information has been highly overclassified in the executive branch of the Government?

Mr. DORSEN. I do not. Of course, I haven't been in the executive branch for 16 years. But when I was there, I had the feeling that there was much overclassification.

Senator ERVIN. Senator Roth of Delaware has introduced a bill to establish a commission to study this entire question of classification of Government information. After studying the problem, the Commission will make recommendations to the President and to the Congress as to what ought to be done. Do you think that such a commission would serve a useful purpose?

Mr. DORSEN. Yes, sir.

Senator ERVIN. If you were a Member of Congress would you favor a bill of this general nature?

Mr. DORSEN. I would favor a bill, and I would vote for it.

But I would also encourage the Executive to take some unilateral action immediately to eliminate much of the overclassification.

Senator ERVIN. What do you think of Attorney General Rogers' third category of opinion and investigations relating to litigation? Is that something that would fall within the judicial branch as far as litigation is concerned?

Mr. DORSEN. I didn't quite understand it. If they are talking about the information that they are obtaining in connection with litigation that involves confidential data regarding individuals, that should be protected on general privacy grounds. If they are talking about lawyers' strategy, if they are talking about the way in which the Government would set up an antitrust suit or an SEC suit, there is precedence as you know-the case that comes to mind is Hickman v. Taylor, the famous work product case, in which the Supreme Court said that a lawyer's work product is protected.

Senator ERWIN. I infer from your statement that you heard the testimony of Governor Averell Harriman on the question of his action as Secretary of Commerce in declining to submit to an investigating committee data that had been collected in personnel loyalty files in the Department of Commerce. Would you support the action of a Government official having custody of such information to withhold such information on the basis that he has a duty to protect the privacy of the individual to whom that data relates?