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St. Clair into the Northwest Territory. When demand was made upon the Secretary of War for the production of all papers connected with that expedition, President Washington called upon his Cabinet for consultation "because it was the first example and he wished that as far as it should become a precedent, it should be rightly conducted. . . . He could readily conceive that there might be papers so secret a nature as they ought not to be given up."

The Cabinet concluded unanimously on April 2, 1792 that the House of Representatives had the right to institute inquiries and that it might call for papers generally and "that the executive ought to communicate such papers as the public good would permit and ought to refuse those the disclosure of which would injure the public. Consequently were to exercise a discretion." The Writings of Thomas Jefferson (Ford Ed., 1892) Vol. I, pp. 189-190. President Washington determined that in this particular instancethe disclosure of the papers would not be contrary to the public interest and instructed the Secretary of War to make the papers requested available to the House of Representatives. The Writings of George Washington (GPO Ed., 1939) Vol. 32, p. 15.

In 1796, in connection with the appropriation of the funds required to carry out the financial provisions of the Jay Treaty, the House of Representatives requested the President to produce the instructions to the minister who negotiated that treaty. This time President Washington advised the House that he could not comply with its request. He explained:

"The nature of foreign negotiations requires caution, and their success must often depend on secrecy; and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolite; for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the principle on which that body was formed confining it to a small number of members."

"As, therefore, it is perfectly clear to my understanding that the assent of the House of Representatives is not necessary to the validity of a treaty; as the treaty with Great Britain exhibits in itself all the objects requiring legislative provision, and on these the papers called for can throw no light, and as it is essential to the due administration of the government that the boundaries fixed by the Constitution between the different departments should be preserved, a just regard to the Constitution and to the duty of my office, under all the circumstances of this case, forbids a compliance with your request." Richardson, Messages and Papers of the Presidents, Vol. I, pp. 194-196.

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 "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.

Mr. Justice Brandeis observed cogently in his dissenting opinion in Myers v. United States, 272 U.S. 52, 293 (1926):

"The doctrine of the 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."

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 available to Congress in executive session this sort of information.

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 the 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, self-evident." 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.

A report of the Foreign Relations Committee pointed out as early as 1816 that:

"The nature of transactions with foreign nations, moreover, requires caution and unity of design, and their success frequently depends upon secrecy and dispatch." (Quoted in United States v. Curtiss-Wright Corp., 299 U.S. 304 at 319 (1927). (Emphasis supplied.)

Congressional recognition of the power of the executive branch to withhold information in the field of foreign relations is also evidenced by the timehonored formula of resolutions of inquiry. Such resolutions normally direct or require a department head to submit the requested information to Congress. Resolutions of inquiry directed to the Department of State in matters of foreign relations, however, request the Secretary to furnish the information "if not incompatible with the public interest." See Cannon, Procedure in the House of Representatives, H. Doc. 610, 87th Cong., 2d Sess., p. 219; CurtissWright, supra, at 321. In the Senate, this practice goes back to the days of Daniel Webster. (See 38 Cong. Rec. 1307, Sen. Collum.)

This formula constitutes a courteous recognition of the authority of the executive branch to withhold from Congress in the fields of foreign relations information the disclosure of which would be inconsistent with the public interest. It has been conceded that the executive would have the same power if that clause were missing. Senator Teller, in discussing such a resolution in 1905, said:

*** But the President is not bound at all by a failure to put in that phrase. If he thinks it is incompatible with the public interest, it is his right so to state to the Senate, and the Senate has always bowed to such a suggestion from the Executive." 40 Cong. Rec. 22.

In 1906, a debate arose on the floor of the Senate prompted by what Professor Corwin termed President Theodore Roosevelt's "adventurous foreign policy." Senator Spooner of Wisconsin sided with the Administration while Senator Bacon of Georgia strongly argued for the privileges of the Senate. During that debate, Senator Bacon made the following statements:

"Mr. Bacon. * * *

"Of course, I recognize the fact that the question of the President's sending or refusing to send any communication to the Senate is a matter not to be judged by legal right, but a question which has always been recognized as one of courtesy between the President and this body, and which the Senate-except, perhaps, in the case in which the Senator took a very notable part and to which I have had occasion heretofore to alludehas always yielded to the judgment of the President in the matter and has never made an issue with him about it.

66 * * *

"Mr. Spooner. I am talking upon the principle. The Senator says 'legal right' or 'legal duty.' I admit that we have a right to pass resolutions calling for any information from the President; but does the Senator say it is the legal duty of the President to send it?

"Mr. Bacon. I do not dispute the fact that there may be occasions when the President would not.

"Mr. Spooner. Who is the judge?

"Mr. Bacon. The President, undoubtedly. Nobody has ever controverted that; and the very resolution concerning which the Senator is animadverting was expressly conditioned upon the President viewing the transmission of the information requested as being compatible with the public interest." 40 Cong. Rec. 2124. (Emphasis supplied.)

The congressional recognition of executive privilege, of course, is not restricted to foreign relations. In 1906, Senator Spooner explained on the floor of the Senate that cases in which the President is authorized to withhold information from Congress were not limited to foreign relations but included among others military information which could be of use to an enemy, and confidential investigations in the various departments of the government. 41 Cong. Rec. 97-98.

More recently, in 1944, the Chairman of the Select House Committee in an investigation of the Federal Communications Commission, recognized in principle that:

"For over 140 years a certain exemption [from the duty to testify before Congress] has been granted to the executive departments, particularly where it involves military secrets or relations with foreign nations." Hearings before the Select House Committee to Investigate the Federal Communications Commission, 78th Cong., 1st Sess., p. 2305.

And, in connection with the U-2 incident, the Senate Foreign Relations Committee recognized that with respect to intelligence operations:

"The administration has the legal right to refuse the information under the doctrine of executive privilege." S. Rept. 1761, 86th Cong., 2d Sess., p. 22.

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 decision-making 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. During the investigation into the circumstances surrounding the dismissal of General MacArthur held by the Senate Committees on Armed Services and Foreign Relations in 1951, General Bradley refused to testify about a conversation with President Truman in which he had acted as the President's confidential adviser. The late Senator Russell, the Committee Chairman, recognized that claim of privilege. When that ruling was challenged, the Committee upheld it by a vote of eighteen to eight. Military Situation in the Far East, Hearings before the Committee on Armed Services and the Committee on Foreign Relations, United States Senate, 82d Cong., 1st Sess., pp. 763, 832-872.

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.

"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."

The Chairman of the Subcommittee, Senator Stennis, upheld the claim of privilege. Military Cold War Education and Speech Review Policies, Hearings before the Special Preparedness Subcommittee of the Committee on Armed Services, United States Senate, 87th Cong., 2d Sess., pp. 508-513, 725. Finally 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.

The Attorney General's refusal of the Committee's request was based on the consideration that the supplying of such information could seriously prejudice law enforcement, by allowing a prospective defendant to know how much or how little information the government had about him, and what witnesses or sources of information it was proposing to rely upon. In addition, the Opinion cited the serious prejudice to the future usefulness of the government's information-gathering agencies, since much of the information was (and is) given in confidence and can only be obtained upon a pledge not to disclose the source. Finally, Attorney General Jackson said that disclosure "might also be the grossest kind of injustice to innocent individuals," since the reports included "leads and suspicions, and sometimes even the statement of malicious or misinformed people. Even though later and more complete reports exonerate the individuals, the use of particular or selected reports might constitute the grossest injustice, and we all know that the correction never catches up with an accusation."

The privileged nature of investigatory information was recognized during the Army-McCarthy hearings of 1954 by Chairman Mundt's ruling:

"The Chair is prepared to rule. He unhesitatingly and unequivocally rules that in his opinion, and this is sustained by an unbroken precedent so far as he knows before Senate investigating committees, law-enforcement officers, investigators, any of those engaged in the investigating field, who come in contact with confidential information, are not required to disclose the source of their information. The same rule has been followed by the FBI and in my opinion very appropriately so." Special Senate Investigation, Hearing before the Special Subcommittee on Investigations of the Committee on Government Operations, United States Senate, 83d Cong., 2d Sess., p. 770. 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 prepared by the Federal Bureau of Investigation which had been furnished to the Department of Health, Education and Welfare for the purpose of evaluating scientists nominated to serve on advisory boards. The Attorney General respectfully declined the Subcommittee's request, and stated in his letter, as provided for in President Nixon's Memorandum of March 24, 1969:

"This invocation of privilege is being made with the specific approval of the President."

The reasoning behind the claim of executive privilege in these four classical categories 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 United States 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 productthe treaty-which of course should be exposed to the fullest public scrutiny, but only the 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 exclude not merely Congress, but all but an infinitesimal number of the employees and officials of the executive branch as well.

I have summarized earlier in my testimony the reasons given by Attorney General Jackson, and reaffirmed by Attorney General Mitchell, as to the need for confidentiality of open investigative files.

Finally, in the area of executive decision-making, 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 either by Congress, by the press, or by the public at large, or that the President may be embarrassed if he would have to explain why he did not follow their recommendations. Again, the aim is not for secrecy of the end product-the ultimate Presidential decision is and ought to be a subject of the fullest discussion and debate, for which the President must assume undivided responsibility. But few would doubt that the Presidential decision will be a sounder one if the President is able to call upon his advisers for completely candid and frequently conflicting advice with respect to a given question.

The recent episode of the publication of the so-called "Pentagon Papers" by the press has focused public attention on the executive decision-making process. It has been urged in some quarters that the spotlight of publicity be focused, not upon the responsible head of the executive branch who must bear the ultimate responsibility for the decision, but upon his subordinate advisors, in order that they may be subjected to the various cross-currents of public opinion in formulating their recommendations to the President. Any decision to move in this direction would represent a sharp departure from the distribution of powers contemplated by the Constitution. The executive branch of the federal government has one head, and that is the President of the United States. It is he, and he alone, who must face the electorate at the end of his four-year term in order to justify his stewardship of the nation's highest office. The notion that the advisors whom he has chosen should bear some sort of a hybrid responsibility to opinion makers outside of the government, which notion in practice would inevitably have the effect of diluting their responsibility to him, is entirely inconsistent with our tripartite system of government. The President is entitled to undivided and faithful advice from his subordinates, just as Senators and Representatives are entitled to the same sort of advice from their legislative and administrative assistants, and judges to the same sort of advice from their law clerks. The notion that those engaged in directly advising members of any of the three branches of the government should have their work filtered through a process of analysis and criticism by columnists, newspaper reporters, or selected members of the public before that advice reaches their constitutional superior is entirely at odds with any system of responsible popular government.

I would add, finally, that the integrity of the decision making process which is protected by executive privilege in the executive branch is apparently of equal importance to the legislative and judicial branches of the government. Committees of Congress meet in closed session to "mark up" bills, and

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