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Mr. DORSEN. I believe I would. I think the case is easier when you use the words "unevaluated data." I certainly would agree with that. Senator ERVIN. And that is entirely divorced from the field of what you might call executive privilege?

Mr. DORSEN. Yes, sir.

Senator ERVIN. In other words, there is another basis for protecting that information from disclosure?

Mr. DORSEN. Yes, sir.

Senator ERVIN. Senator Mathias?

Senator MATHIAS. Mr. Chairman, I want to thank the witness for being here. It is a very thoughtful consideration.

I want to throw back at him, though, the criticism that he made of us. He said that he thought we had been too reluctant to press for information which we should have.

I think you were too reluctant yourself to call a spade a spade, because I think there has been a continuous current all through the discussions that this problem really is not a constitutional problem in the sense that we doubt what our constitutional position is, but it is a political problem in that we don't press the constitutional prerogatives that the Congress has. So, you come to really a question of whether or not we are discharging our responsibility, because, after all, the privilege the Constitution gives us is not so that we could have the pleasure of being informed of some kind of gossip, but it is that we have information which is a tool for the legislation that we have to enact.

Mr. DORSEN. I agree with that. I would just comment very briefly by adding one thing, and that is, in contrast to the clear constitutional responsibility and authority of the Congress in article I, there is no constitutional authority, and no judicial authority, as far as I know, and no statutory authority, for executive privilege. I recognize everyone has to, I suppose the political realities

Senator MATHIAS. You have anticipated my second question. I was going to say, you make that same statement on page 2 of your statement. That is pretty strong. And I would like you to elucidate that a little bit, where you say there is neither constitutional nor judicial nor statutory authority for the Executive's claim of privilege.

Mr. DORSEN. There certainly is nothing in the Constitution itself on this subject. One can read it in. But when one reads it in, one is not reading the Constitution, one is reading in his own preferences. So we reject the idea that there is anything constitutional about the privilege. To this extent, we are strict constructionists.

Senator MATHIAS. The Civil Liberties Union should be very grateful that we have read some things in the Constitution from time to time.

Mr. DORSEN. I suppose that is time for all of us. But there is no statute which deals with this subject. And as far as I know, the Court, the Supreme Court, has not countenanced a privilege of this kind. The most recent discussion is the Reynolds case. And they made it very clear, as we quote in our statement that the Courts cannot abdicate the decision about what is going to be made public by the Executive. That case was litigation between the Government and a private individual. But I don't see why the same thing

shouldn't follow a fortiori when a coordinate branch of the Government seeks information it has a constitutional mandate to acquire.

Senator MATHIAS. Of course, there are Executive orders which deal with it. But that in a sense is pulling up by one's own bootstraps. Of course, your statement is consistent. But Mr. Berger's testimony of yesterday was a very doubtful historical legal treatise on the subject, but I do think in all honesty you have to view it in the context of the history of both this country and of our predecessor Government in Britain, where executive privilege was not an unknown creature of the law.

Mr. DORSEN. Regarding the precedessor and existing Government in Great Britain, one feature of their constitutional system, is the question period in the House of Commons, when the executive must respond to questions put to them face-to-face. The Congress of the United States does not have the same opportunity to secure data in writing, much less face-to-face. And, therefore, the British experience supports our view that there must be some mechanism whereby the Congress can question the executive branch in areas where it has appropriate authority to do so.

Senator MATHIAS. What about the present Government in Great Britain which operates under the State Secrets Act?

Mr. DORSEN. Well, state secrets move us into the classification area. I think that is an important but a distinct problem.

Putting classification to one side, Mr. Heath, and Mr. Wilson before him, has to stand up in the House of Commons and respond to direct questions on every subject. When you get state secrets, our position would be that there are many more "state secrets" than there should be.

Senator MATHIAS. Thank you, Mr. Chairman.

Senator ERVIN. Professor Kurland?

Professor KURLAND. Mr. Dorsen let me get back to your basic. proposition, that there is neither constitutional nor judicial statutory authority to claim executive privilege. If I accept that proposal, as I would like to do, the question that necessarily comes to mind is, where do we find constitutional and judicial statutory authority for these things which you do think are entitled to privilege?

Mr. DORSEN. I think you have to take them one at a time. Take the privacy area, which touches two of the seven categories that Mr. Rogers dealt with. Well, one may disagree with Griswold in

Professor KURLAND. There isn't anything there to disagree with, if I might say so.

Mr. DORSEN. My point is, the Supreme Court recognized explicitly 6 years ago that there is a right of privacy. The right of privacy was recognized before that, althought not in so many words, in NAACP v. Alabama, and in other cases.

Professor KURLAND. To that same extent the Supreme Court has already recognized the right of executive privilege. And it has said that the ultimate determination as to whether it could be claimed would be made by the Court when the issue was presented in judicial proceedings. But in that case, they made the statement in the footnote, where many of our important constitutional doctrines

are now established, that there was an executive privilege. And really there are two areas. It is the communications by an adviser to a Government official, which I take it, almost everybody agrees are not to be the subject of scrutiny.

Mr. DORSEN. Yes.

Professor KURLAND. But I find it difficult to find a place in the Constitution for a statute or a judicial ruling which would sustain that as a privilege. Now, it may well be that we should write such

a statute.

Mr. DORSEN. I think perhaps that is one solution. I think one other approach is possible. And that would be not to look at that particular problem as a privileged problem, although we did call it the "advice privilege."

But in response to your question, it is possible to use a theory similar to the one that Justice Frankfurter used in Watkins v. United States, a theory of germaneness. If a superior officer is available to respond in an orderly way to questions about government policy, to ask the subordinate questions is not really germane to a legitimate congressional function. The Congress can obtain all the information it needs from the Assistant Secretary of Interior in connection with Indian Affairs, or the assistant Secretary of Defense on personnel matters. But to go down and ask the GS-13, what did you advise the assistant secretary, is that really germane? Perhaps it shouldn't be considered a privilege. It can be reviewed from the perspective which I am suggesting.

Professor KURLAND. I would agree that there might be more judicial authority for that proposition. On the other hand, on the terms you have just stated, your congratulations to the chairman on his hearings with regard to Army surveillance suggests that there remains a different problem. I take it you qualified your proposition by saying that the existing secretary could be called upon to answer a question if he had the information. The difficulty is that it is legally true the information is available only to a subordinate, and the only way that Congress can get access to it is through that subordinate.

Mr. DORSEN. I think maybe I wasn't clear, Mr. Kurland. We state at the bottom of page 6 that a subordinate may be questioned as to facts solely within his cognizance. In the case you quote. I agree with you, that if the subordinate is the only person who holds the data, he can be called. And it is only in the advice situation. where we would say it was not germane.

Professor KURLAND. Do you think it would be appropriate in the light of the goal of this committee's inquiry, that is, to discover ways of opening avenues of communication from the Executive to the legislative branches of government, that a definition of what you call the advice privilege, or whatever is called the executive privilege would be an appropriate function to perform which is not accomplished by the present bill before us?

Mr. DORSEN. Yes. We recognize the legal and drafting difficulties that would be involved. But we think on the whole it would be a desirable thing to attempt to develop standards in this area. At the moment, the issue is at large. It is at large and can be potentially very dangerous, although nothing may happen for another decade.

And then maybe there will be another New York Times case in a different context. So we think it would be highly desirable, one, to attempt to set up very precise standards; and, two, as you suggest, to open up channels of communication in the matter.

Professor KURLAND. Thank you, Mr. Dorsen.

Senator ERVIN. Professor Winter?

Professor WINTER. Without at all suggesting that I would be in favor of this kind of inquiry, I am not sure where in your scheme of things the ability to keep personnel files from Congress-personnel files including information on the political beliefs of government employees-fits.

Mr. DORSEN. We think the first amendment and the privacy doctrine suffices for most purposes. For example, in the case that Governor Harriman referred to, and the case that is uppermost in a lot of people's minds, the Joe McCarthy situation, we have no trouble saying that the loyalty-security files of individuals should be protected by well-established constitutional doctrine.

Professor WINTER. Congress can never inquire into whether the people appointed to carry out congressional policies believe in them or things like that?

Mr. DORSEN. Believe in them?

Professor WINTER. Or disagree with them. What difference does it make?

Mr. DORSEN. I think you have covered about a half dozen different issues. One of the things I tell my students is never to use the word "never." So I wouldn't agree to a proposition about never. Now there are well-established methods by which presidential appointees are confirmed by the Senate, and the Senate has its constitutional prerogatives in that area. There are also well-established personnel policies within the executive branch. There may be occasions when, in attempting to determine whether or not a particular policy of the executive branch has been effectively applied or effectively developed, it will become relevant how a particular individual functioned. But I would think a long, long time before saying we could ask a man what his beliefs were.

Professor WINTER. I thought that was what Senator Fulbright wanted to ask Mr. Kissinger.

Mr. DORSEN. I have no comment on that.

Professor WINTER. I am quite sure that is exactly what he wanted to do.

On section 306-A, you argue that the employee summoned ought to appear to explain the reasons for invoking the privilege. The only question I have is whether he is the right one to ask. It may be the Attorney General and it may be somebody in the President's office, and it may be any number of other people. Indeed, he may well have recommended that the privilege not be invoked. And the statute doesn't permit anyone but him to appear.

Mr. DORSEN. I think that is a very good point. In cases where this comes up, the ones at least in my personal recollection, usually the man in question does arrive with his friends and those friends. could usually include the Attorney General or a representative. But I think that is a good point you have made.

Professor WINTER. Yes. If they really don't want to explain the reasons for invoking the privilege, the administration would be delighted to send the person who is summoned, and he would do nothing but sit there and say, they told me not to talk.

Mr. DORSEN. I think that is true. I think the individual summoned should be there also.

Professor KURLAND. It is a violation of the Nuremberg rules to plead superior orders.

Professor WINTER. That is all.

Senator ERVIN. Mr. Edmisten?

Mr. EDMISTEN. Mr. Dorsen, you are familiar with Senator Ervin's work in attempting to prevent the Army from gathering information on civilians?

Mr. DORSEN. Yes, sir.

Mr. EDMISTEN. On numerous occasions he has written to the Army and requested that they produce documents. More specifically he has requested that they produce three generals who were connected most closely with that operation. He has received a number of replies from the Army, and here I shall quote from a letter by the General Counsel of the Army in response to Senator Ervin's letter of March 4:

"It is quite possible that any one or perhaps all of the three Generals whom you have requested to appear before your Subcommittee could be material witnesses in formal proceedings which might grow out of the current investigations. I am sure that you will agree that in order to protect the due process rights of any person who might be the subject of criminal administrative charges," et cetera. In other words he said, we will not let them come.

Now, those were weasel words all the way through.

Attorney General Rogers' seven categories are not, would you agree, the most stringent statement you ever have heard on the matter of executive privilege?

Mr. DORSEN. I agree with that.

Mr. EDMISTEN. I am not even sure that the procedures over in the Pentagon would fit No. 3. So even Attorney General Rogers could not excuse them, could he?

Mr. DORSEN. It is very hard for me to see how these generals could properly be privileged. Conceivably, if there was information that a specific inquiry was started, or imminently about to be started, they perhaps might have some sort of privilege related to the individual's rights on specific questions. But it seems to me that this is an example of the Executive failing to produce relevant individuals and information.

Mr. EDMISTEN. Do you see any problems with Senator Fulbright's proposed amendments to the bill which provides that if the President does not either claim executive privilege or produce the information required, funds will be cut off from the agency to which the request was made after a 60-day period?

Mr. DORSEN. I am dubious about that for a number of reasons. First, I agree with what I think is Governor Harriman's position that this sets up a very antagonistic situation from the outset, one in which the parties who have to deal with one another immediately are put in a situation of virtual animosity.

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