Second, on a different level, judging from the experience of title VI of the Civil Rights Act of 1962, I don't have too much confidence in massive fund cutoffs. It is the most severe possible remedy. It is one that will not be invoked; in fact, it will be known that it will not ever be invoked, and it will therefore not work. Accordingly, I would be dubious about the proposal. Mr. EDMISTEN. I have sometimes speculated that if the Congress wants to have its laws duly executed and information readily supplied by an agency or department, it could set up a mechanism to reduce the super grades of that agency or department in half. I believe that information would be forthcoming very quickly. That procedure is something short of cutting off the whole department. Mr. DORSEN. It seems to have a better prospect. Senator ERVIN. As I interpreted your statement on the bottom of page 6, you say that when a Government employee has personally had knowledge of pertinent facts or personally was responsible for a policy decision, he is the logical person for the Congress to call as a witness. Mr. DORSEN. Yes, sir. Senator ERVIN. I wonder if you would not agree with the proposition that if a Government employee has had the direct responsibility for carrying out Government policy, he would likewise be subject to be called by Congress to say what he did in carrying out the policy. Mr. DORSEN. Yes; we actually said that at one point. We probably should have repeated it. In the third paragraph above the one you quoted, we said that the Congress may question an employee on the policy decisions that he personally made or implemented, which would, I think, cover perhaps the case that your counsel mentioned. Senator ERVIN. It does exactly. The committee is deeply grateful to you and the American Civil Liberties Union for your appearance here today. I want to thank Mrs. Eastman, who has been of great help on several occasions to the other subcommittees of which I am chairman, for being present. Mrs. EASTMAN. If I may just add one thing before we close, most of the testimony today has demonstrated that there is a great deal of overlap in peoples' thinking in this issue on executive or advice privilege, and classification. It seems that the committee could do a very great service to clear up this confusion and to make it quite clear to this administration and any other that what the administration has done is to confuse informing Congress in making things available to the public. And while I don't want to carry that too far, because I believe that the public ultimately needs the information from the Congress. I think drawing a clear distinction between classification and executive privilege would go a long way toward redressing this kind of imbalance. Senator ERVIN. Thank you very much. Mr. DORSEN. Thank you very much, Senator. Senator ERVIN. The subcommittee will stand in recess until 10 o'clock on next Wednesday. (Whereupon, at 3:43 p.m., the subcommittee adjourned to reconvene at 10 a.m.. Wednesday, August 4, 1971.) EXECUTIVE PRIVILEGE WEDNESDAY, AUGUST 4, 1971 U.S. SENATE, SUBCOMMITTEE ON SEPARATION OF POWERS, Washington, D.C. The subcommittee met, pursuant to recess, at 10:15 o'clock a.m. in room 2228 New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding. Present: Senator Ervin, (presiding). Also present: Senator J. William Fulbright, Rufus L. Edmisten, chief counsel and staff director. Senator ERVIN. The subcommittee will come to order. Counsel will call the first witness. Mr. EDMISTEN. Mr. Chairman, we are honored this morning to have the Honorable John Tunney as our first witness. Senator ERVIN. Senator Tunney, we are delighted to welcome you to the subcommittee and to express the appreciation of the subcommittee on your willingness to appear and give us the benefit of your views on one of the most important practical questions confronting the Congress. STATEMENT OF THE HON. JOHN V. TUNNEY, A U.S. SENATOR FROM THE STATE OF CALIFORNIA Senator TUNNEY. Thank you very much, Mr. Chairman. Senator ERVIN. I might also say that this is an important question confronting the Executive. Senator TUNNEY. It is a great pleasure for me to have the opportunity to appear before you this morning as a witness. As a member of your subcommittee, I have been a great admirer tenacity of your leadership in fighting for constitutional rights of individuals and your unflagging devotion to the constitutional rights of each person in this country. I might say that at times, it has taken a tremendous amount of courage for you to do what you have done, and as a junior member of your subcommittee, I find such leadership inspiring. I appreciate the opportunity that you have offered me to appear before you to testify on the issue of executive privilege. In my short time in the Senate and as a member of the Constitutional Rights Subcommittee, the problem of congressional inability to obtain information from the executive branch has been brought home to me. in a most vivid manner. I asked to appear before you today in order to present a case study of what I have seen over the past 6 months. In relating my testimony, I am in a most unusual position. The distinguished chairman of this subcommittee is, of course, also chairman of the Constitutional Rights Subcommittee. He knows better than any one else, and certainly better than that subcommittee's most junior member, the events, the frustrations and the excuses that the subcommittee has faced in its long 18-month effort to uncover the full facts about Army spying and Government data banks generally. But I think that for the benefit of the other members of the subcommittee, and for the American people, who will read this record, it is important to discuss at length the operation of executive privilege as it has applied to the Constitutional Rights Subcommittee investigation. It is also important to present this information because the General Counsel of the Department of Defense, Mr. J. Fred Buzhardt, is a witness today, and obviously his testimony will be set against his actions as one of the protagonists in the case of Constitutional Rights Subcommittee v. Army Spying. The subcommittee's efforts to obtain information cover, as I have said, a period of 18 months. I will not relate the entire history of the subcommittee's dealing with the Department of Defense and the Department of Justice, but will only select three examples which illustrate the problem the subcommittee has faced. They are (1) the missing generals, (2) the computer printouts, and (3) the elusive. memoranda. The missing generals example began early this year as the subcommittee undertook preparations for the hearings that began in late February. By letter of February 18, 1971, the chairman asked that certain persons be present when the Department testified. Interestingly, the intent at this time—and it was made clear to the Department orally and in writing was not to call these people to testify. It was to ensure that should questions arise which the Department witnesses were not able to answer out of their own knowledge, they could obtain the information from these people. In effect, the subcommittee only wanted to make certain that the Department had proper back-up resources at the hearings. This was particularly necessary because the Department witnesses, Mr. Robert F. Froehlke and Mr. Buzhardt, had only recently been given responsibility in the Department for the program and the congressional investigation. Only since mid-December-8 weeks earlier had they been in charge. The subcommittee wanted to avoid a common problem-or standard ploy, to be ungracious-of a Department sending an ignorant witness to avoid embarassing truths. The witnesses the chairman requested were: Col. John W. Downie, Director of Counterintelligence, OACSI; Maj. Gen. Joseph A. McChristian, ASCI; William L. Parkinson, Deputy Chief. CIAD; Stanley R. Resor, Secretary of the Army; Robert E. Jordan III, General Counsel, Department of Army; Gen. William H. Blakefield, former CG, USAINTC: Bland West, Deputy General Counsel, Department of Army; Maj. Gen. William P. Yarborough, former ACST; and Lt. Col. William Mann, Jr., Chief, Civil Disturbance Branch, OACSI. They all had direct personal knowledge of the events between 1967 and 1971. They did not appear. Following the hearings it became clear that these persons not only were necessary as back-up witnesses, but that it was essential that they testify themselves. The issues raised and the questions opened at the hearings could only be satisfied if they could give personal testimony. The subcommittee selected the three most important witnesses the general in command of Army Intelligence between 1967 and 1971 and the generals who were Assistant Chiefs of Staff for Intelligence. The others on the list were also important, and I think necessary, but the chairman decided that only the three generals were essential. In any event, the subcommittee's requests were refused. This illustrates one Executive tactic-the resisting or ignoring of senatorial requests for information until they are reduced to the bare essentials, which are then in turn refused. A number of different reasons have been given for this refusal, and in fact, those reasons have varied from time to time. The first formal rejection came from the General Counsel, Department of Defense on March 9, I quote from his letter: As Mr. Froehlke advised the Subcommittee during his testimony, formal investigations are in progress in connection the activities of two organizational units of the Army. It is quite possible that anyone or perhaps all three of the general officers, whom you requested to appear before your Subcommittee on March 17, could be material witnesses in formal proceedings which might grow out of the current investigations. I am sure you will agree, that in order to protect the due process rights of any persons who might be the subject of criminal or administrative charges as a result of the current investigations, it would be inappropriate for Generals McChristian, Blakefield and Yarborough to testify before your Subcommittee on this subject at this time. An additional reason given was that the generals were presently stationed overseas. The chairman then sought to find out what court-martial might be contemplated. The answer which came back on March 26 merely described the investigation in general terms. The relationship of the generals to it was left obscure, and even more hypothetical than what was suggested in the earlier Department of Defense letter. I quote from the March 26 letter: The formal investigations to which I referred in my letter to you of March 9 were initiated with respect to allegations that military personnel from Fort Carson units and from undetermined units in Texas had engaged in information collection activities on individuals not affiliated with the Department of Defense. The allegations were directed at personnel of other than the United States Army Intelligence Command. The initial purposes of the investigation are to determine which, if any, of the allegations are factually based, who participated and who directed the activities, if any, to be performed. Once these questions are answered, it will be necessary to determine, if such occurred, under what authority they were conducted, and whether any of the activities exceeded the authority vested in the commander who initiated them. These activities are being subjected to formal investigation because there is no present evidence that civilian authorities specifically authorized such activities or were aware of them. At this stage of the investigation, it is not possible to anticipate what might be the nature of the judicial or administrative actions, if any, that result. At this point, the controversy over the general's appearance escalated another notch. The Secretary of Defense wrote the next letter. In his view the generals were not the proper persons to speak for the Department on the "broader issues" the subcommittee had ad dressed its attention to. They were "under the direct supervision and control of senior civilian officials." Of course, one of the questions the subcommittee wants to resolve is whether they were under control of the civilians. The other information it seeks relates to operations, the need for intelligence, how it is analyzed, and what use it was. These are questions which only the senior intelligence officers by their experience, training, and command responsibility, are in a position to answer. Again for the record, I quote: It was against this background that the Department of Defense decided that the proper spokesmen for the Department in these hearings should be the senior civilian officials directly responsible for the programs under review by your subcommittee. As our general counsel advised you, I designated the Assistant Secretary of Defense (Administration), Mr. Robert Froehlke, to represent me at the hearings and to provide you with an in-depth report of the events surrounding the counterintelligence role in the military departments. He was also directed to report to you the actions which have been taken to insure that civilian control is maintained, and that adequate safeguards are instituted to insure against violations of individual privacy. The Assistant Secretary and the general counsel were completely candid in their evaluation of what transpired, and sought to give you a full and complete account of the organizational and policy changes which I had directed. The 86-page prepared statement by the Assistant Secretary was supplemented by that of the general counsel of the Department of Defense, and in the closing part of the hearings by the general counsel of the Department of the Army. Following the hearings, additional documents and information were collected and transmitted to your staff, and additional submissions will be forthcoming as a result of still further requests set forth in your March 30 letter. Against this background of events, the request for the appearance of Major Generals McChristian, Blakefield and Yarborough before the subcommittee is frankly disquieting. These individuals, while highly qualified in their area. cannot speak for the Department of Defense on the broader issues to which the subcommittee has addressed its attention. These individuals do not occupy high level policy positions as they relate to central issues under discussion, but are instead under the direct supervision and control of senior civilian officials. Even though your invitation to these witnesses be based on a desire to review past events during the period 1967-1969, I believe this has been fully covered in the testimony and in the records submitted by the Department of Defense before, during and subsequent to the hearings. Consequently, I do not believe it appropriate that the general officers in question appear before your subcommittee, but that any desired testimony as referred to in your March 30 letter, should be furnished by my designated representative, Mr. Robert Froehlke. Another reason for not presenting the generals-one given orallywas that it is executive branch policy not to present intelligence personnel before congressional subcommittees. I do not know where this policy originated but certainly Mr. Hoover testifies regularly. As head of the FBI, it is most appropriate that he should. Indeed, one of the generals (General Yarborough) appeared briefly before the Senate Committee on Government Operations on April 25, 1968, to answer possible questions on Army spying. The following is his exchange with Senator McClellan during those hearings: STATEMENT OF MAJ. GEN. WILLIAM P. YARBOROUGH, U.S. ARMY INTELLIGENCE General YARBOROUGH. Yes, Mr. Chairman, we have been gathering a great deal of intelligence; 85 percent of this however, comes from the FBI, 10 percent from the local police, about 5 percent comes from our own observation and from the press. The CHAIRMAN. So you have accumulated intelligence information through the sources that you have named? |