Senator ERVIN. Counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, the next witness is the Honorable William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Department of Justice.

Senator ERVIN. Mr. Rehnquist, I want to welcome you to the subcommittee and express to you the appreciation of the subcommittee for your willingness to appear and give us the benefit of your views on this matter. I also wish to express appreciation for your willingness to make appearances before this subcommittee on other occasions. STATEMENT OF WILLIAM H. REHNQUIST, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE

Mr. REHNQUIST. Thank you, Mr. Chairman. I think you have kept me busier than any two or three other committee chairmen of the House and Senate combined, but it is always a pleasure to appear before you.

I have prepared a written statement which I hope is responsive to the letter which you wrote to the Attorney General on June 18, 1971, Mr. Chairman. And if I may, I will read substantial parts of my prepared statement and omit others in the interest of trying to compress the time which I take with a direct presentation and submit myself to questions.

Senator ERVIN. That will be entirely satisfactory to the subcommittee.

You might let the record show that the entire statement will be filed with the committee and will be printed in full in the body of the record after the oral statement of the witness.

Mr. REHNQUIST. In your words, Mr. Chairman, the purpose of these hearings is to accord the executive and the legislative branches an opportunity to come together and find some common ground that will more clearly define the powers, duties, and prerogatives of the two branches in this sensitive area.

I have tried to frame my testimony in that spirit. We are dealing not with a subject such as the law of real property where the metes and bounds are quite precisely fixed, but with a broad area of government in which both the legislative and executive branches have claims which are both legitimate and often conflicting. The historic precedents to which I shall subsequently refer are not the equivalent of binding judicial cases from courts of last resort, they do, however, indicate past practices of one branch which have been acceded to by the other. Discussion of the subject will doubtless profit from the spirit embodied in the quotation from the Federalist referred to by Senator Fulbright in his introductory statement:

Neither the executive nor the legislative can pretend to an exclusive or superior right of settling the boundaries between their respective powers. I shall first treat the question of executive privilege in general, and then deal with the more specific questions presented by S.1125, which was Senator Fulbright's original bill dated March 5. I realize that since that time, I think less than a week ago, an amended bill was offered and I tried to familiarize myself with

that. However, my prepared statement deals with his bill as originally drafted.

The doctrine of executive privilege, as I understand it, defines the constitutional authority of the President to withhold documents or information in his possession or in the possession of the executive branch from compulsory process of the legislative or judicial branch of the Government. The Constitution does not expressly confer upon the Executive any such privilege, any more than it expressly confers upon Congress the right to use compulsory process in the aid of its legislative function. Both the executive authority and the congressional authority are implicit, rather than expressed, in the basic charter. Thus, the Constitution nowhere sets out in so many words either the power of Congress to obtain information in order to aid it in the process of legislating, nor the power of the Executive to withhold information in his possession the disclosure of which he feels would impair the proper exercise of his constitutional obligations. Yet, both of these rights are firmly rooted in history and precedent.

It is well established that the power to legislate implies the power to obtain information necessary for Congress to inform itself about the subject to be legislated, in order that the legislative function may be exercised effectively and intelligently. Of course, the basis for that is McGrain v. Daugherty, 273 U.S. 135, 175 (1927) which you mentioned only a few minutes ago to Senator Tunney.

Conversely, the authority of the executive branch to withhold information from compulsory process under the doctrine of executive privilege has been sustained by the courts in the case of United States v. Reynolds, 345 U.S. 1, 8 (1953). Just as McGrain v. Daugherty involved the compulsory process of Congress directed against a private citizen rather than against a representative of the executive branch, United States v. Reynolds involved compulsory process of the judicial branch rather than the legislative branch.

The Court in Reynolds did not accord the executive carte blanche in asserting the claim of privilege, but the Court's description of the extent of judicial review of the propriety of the claim indicates that such a review would be a narrow one.

While the Supreme Court has recognized the authority of Congress to use compulsory process in aid of a legislative investigation, and has likewise recognized the authority of the executive branch to assert a claim of privilege against compulsory process where the public interest would be harmed by disclosure, there is no authoritative decision settling the extent to which Congress may compel the production of documents or testimony on the part of members of the executive branch. One of the reasons for this lack of precedent may be that the relationship between the two branches during most of our country's existence has been not that of conflict, but of cooperation, albeit a cooperation which was on occasion an uneasy one. The vast majority of requests by congressional committees for testimony from the executive branch are freely complied with, and every year hundreds of executive branch witnesses appear and testify before committees of the Congress. It is only in the rare case-indeed, the very rare case-the case in which a committee of Congress after mature consideration feels that information in the possession

of the executive branch is essential to the discharge of the legislative function, and where the executive feels that the constitutional principle of separation of powers would be infringed by its furnishing of such information-that the question of executive privilege arises. Here in my written statement I turn, as did the Court in McGrain v. Daugherty, to the historical usage of the two branches of the Federal Government in attempting to outline the nature of the privilege.

On page 8 I quote the very familiar reply of George Washington to Congress in 1796 when he declined to furnish the instructions given to the negotiators of the Jay Treaty.

Then going to page 9 of my prepared statement, since that time virtually every President has had occasion to determine whether the disclosure of information to Congress was appropriate.

The problem of executive privilege arises primarily in those areas in which congressional demands for information clash with the President's responsibility to keep the same information secret. Senator Fulbright suggested in his introductory statement that Congress cannot be expected "to abdicate to 'executive caprice' in determining whether or not the Congress will be permitted to know what it needs to know in order to discharge its constitutional responsibilities." But can the Executive conversely be required to abdicate to what might be called "congressional caprice" and release to Congress information which in the view of the President should not be made public? This conflict becomes all the more serious because some Members of Congress claim the right to determine not only what information should be made available to Congress, but also whether that information once made available to it should be released to the public.

The President's authority to withhold information is not an unbridled one, but it necessarily requires the exercise of his judgment as to whether or not the disclosure of particular matters sought would be harmful to the national interest. As is the case with virtually any other authority-including the authority of Congress to compel testimony-it has potential for abuse.

Executive privilege does not authorize the withholding of information from Congress where disclosure may prove merely embarrassing to some part of the executive branch. The privilege is limited to those situations in which there is a demonstrable justification that Executive withholding will further the public interest. Frequently the objection of the executive is not to the furnishing of information to members of Congress, but to the attendant complete release of the information to all interested parties throughout the world which necessarily accompanies disclosure at a public hearing. The executive branch has on more than one occasion made this sort of information available to Congress in executive session.

The doctrine of executive privilege has historically been pretty well confined to the areas of foreign relations, military affairs, pending investigations, and intragovernmental discussions. I will mention some pertinent examples, and attempt to indicate the reasoning behind the claim of privilege in each of these fields.

The need for secrecy in the first two categories, foreign relations and military affairs, has been well recognized by the judicial branch

as I have shown in the discussion of the Reynolds case. Most recently in New York Times v. United States, decided on June 30, 1971, Mr. Justice Stewart stated in his concurring opinion:

"Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, selfevident."--U.S. 39 Law Week 4879, 4884 (1971). Congress has recognized the need for Presidential discretion in the disclosure of information in the field of foreign relations.

I go on to mention other examples in which in debates on the floor of the House the doctrine of executive privilege in the field of foreign affairs has been recognized and substantiated by various Members of Congress.

There is another category of situations in which Congress has recognized the validity of claims of executive privilege. They include the confidentiality of conversations with the President, of the process of decisionmaking at a high governmental level and the necessity of safeguarding frank internal advice within the executive branch. Here, too, I will advert to some examples and I set forth in some detail the action of the late Senator Russell, Chairman of the Armed Services Committee, in sustaining General Bradley in 1951, when he was testifying before that committee on the circumstances surrounding the dismissal of General MacArthur. On that occasion General Bradley refused to testify as to a conversation he had had with President Truman, and Chairman Russell recognized that claim of privilege. When the ruling was challenged, the committee upheld it by a vote of 18 to 8.

During an investigation conducted in 1962 into Military Cold War Education and Speech Review Policies, President Kennedy by letters dated February 8 and 9, 1962, directed the Secretaries of Defense and State not to disclose to the committee the names of any individual with respect to any particular speech reviewed by him. He explained that the changes made in those speeches were made under the Secretaries' policies and guidelines and that the Secretaries had accepted responsibility for those changes. In these circumstances, and I now quote from President Kennedy's letter:

It would not be possible for you to maintain an orderly Department and receive the candid advice and loyal respect of your subordinates if they, instead of you and your senior associates, are to be individually answerable to the Congress, as well as to you, for their internal acts and advice.

Again, during this testimony, Senator Stennis, the Chairman of the subcommittee by whom the testimony was received, upheld this claim of privilege.

The executive branch has repeatedly withheld from Congress what may generally be referred to as "open investigative files." compiled by the Executive in taking care that the laws enacted

by Congress be faithfully executed. The principal precedent for such withholding is the refusal of Attorney General Jackson made "with the approval of and at the direction of the President" to comply with a request from Chairman Carl Vinson of the House Committee on Naval Affairs that the committee be furnished with all "future reports, memoranda, and correspondence of the Federal Bureau of Investigation, and the Department of Justice in connection with 'investigations made by the Department of Justice'" pertaining to labor disturbances taking place in industrial establishments which had naval supply contracts.

In 1970, the President through the Attorney General invoked executive privilege in response to a request of a subcommittee of the House Committee on Government Operations for certain investigative reports that were clearly within the committee's substantive jurisdiction.

The reasoning behind the claim of executive privilege in these four classical categories, foreign relations, military affairs, pending investigations, and intragovernmental discussions, seems to me to be as thoroughly defensible in principle as it is well established by precedent. In the field of foreign relations, the President is, as the Supreme Court said in the Curtiss-Wright case, the "sole organ of the nation" in conducting negotiations with foreign governments. He does not have the final authority to commit the United States to a treaty, since such authority requires the advice and consent of the U.S. Senate; but the frequently delicate negotiations which are necessary to reach a mutually beneficial agreement which may be embodied in the form of a treaty often do not admit of being carried on in public. Frequently the problem of overly broad public dissemination of such negotiations can be solved by testimony in executive session, which informs the members of the committee of Congress without making the same information prematurely available throughout the world. The end is not secrecy as to the end product-the treaty-which of course should be exposed to the fullest public scrutiny, but only confidentiality as to the negotiations which lead up to the treaty.

The need for extraordinary secrecy in the field of weapons systems and tactical military plans for the conducting of hostilities would appear to be self-evident. At least those of my generation and older are familiar with the extraordinary precautions taken against revelation of either the date or place of landing on the Normandy beaches during the Second World War in 1944. The executive branch is charged with the responsibility for such decisions, and has quite wisely insisted that where lives of American soldiers or the security of the Nation is at stake, the very minimum dissemination of future plans is absolutely essential. Such secrecy with respect to highly sensitive decisions of this sort excludes not merely Congress, but all but an infinitesimal number of the employees and officials of the executive branch as well.

Finally, in the area of Executive decisionmaking, it has been generally recognized that the President must be free to receive from his advisers absolutely impartial and disinterested advice, and that those advisers may well tend to hedge or blur the substance of their opinions if they feel that they will shortly be second-guessed by