between subordinates of the President when they are engaged in the process of determining what recommendations they should make to the President in respect to matters of policy.

Mr. REHNQUIST. It would certainly extend that far, yes. Senator ERVIN. Now, I would like to ask you if you do not think that there is perhaps another category in which the Executive has the privilege and perhaps the duty of withholding information, not so much for the protection of the processes of government, but as a mater of fair play to the people involved? I am referring to the withholding of what you might call raw and unevaluated evidence. Such evidence has a distinct bearing upon the privacy of individual citizens and its disclosure rarely accomplishes anything other than the destruction of the privacy of those citizens in very sensitive areas of their lives.

Mr. REHNQUIST. Well, this certainly was the basis or one of the bases for Attorney General Jackson's opinion that it was not fair to the individual being investigated to simply make public everything you know, hearsay, rumor, that sort of thing-which had not been evaluated, which might be disproved by other matters in the file, since it might be a case in which the denial never catches up with the affirmative.

Senator ERVIN. We had, for example, some testimony the other day from Governor Harriman that when he served as Secretary of Commerce, he was called upon by a congressional committee for certain raw and unevaluated data which his Department had collected with respect to the personnel of the Department. He felt that he had the right to refuse to disclose that information as a matter of the right to privacy of those individuals. I think that does affect the process of the Government, because I think it is essential for the executive branch of the Government to be able to make an appraisal of those who apply to it for employment or those who are employed by it in order to hire and retain capable personnel and to monitor their performance of their duties. So it seems to me that this does, in a sense, become involved with the decisionmaking process of government.

Mr. REHNQUIST. Now, your whole Inspector General concept, Mr. Chairman. I think, the idea of an agency, whether it be some. branch of the military or a Cabinet department, kind of policing its own performance activities necessarily means that you are going to be gathering that sort of information. And if you feel that at a particular point the whole information is going to have to be divulged undigested, it is going to deter the collection of the information which, as you suggest, is a very important process of running the Government.

Senator ERVIN. I think Counsel has some questions.

Mr. EDMISTEN. Mr. Rehnquist, I am sure that you are very familiar with the President's memorandum issued to the executive departments and agencies, in which he specifically states that executive privilege will be invoked only in the most compelling circumstances and only personally by him. That memorandum does not give to any agency any authority whatsoever to devise its own means of refusing information, does it?

Mr. REHNQUIST. You mean short of a presidential

Mr. EDMISTEN. Yes.

Mr. REINQUIST. No. Let me add, Mr. Edmisten, that requests for information are never or virtually never addressed to the President himself. I think the President expects the responsible heads of the agencies to whom such requests are addressed to make some sort of a tentative determination as to whether some of the information requested might warrant a claim of executive privilege. And during the course of discussions or negotiations between congressional staff members and agency staff members, certainly it is not inappropriate, I think, for the executive people to say if you insist on that, then we will have to go through the procedure for presenting a claim for executive privilege to the President. But that is not the same thing as claiming the privilege.

Mr. EDMISTEN. But under the plain wording of this memorandum, there is no authority for any executive agency or department to refuse outright to give Congress information?

Mr. REINQUIST. No.

Mr. EDMISTEN. No agency or department is authorized to say no, you shall not have it?

Mr. REHNQUIST. No.

Mr. EDMISTEN. Now, I take it that the Department of Defense is a part of the executive branch of the Government. I notice in the General Counsel's testimony to be given today before this subcommittee that reference is made to a DOD directive-5400.4 which in my understanding is in direct contravention of the President's memorandum. I fail to understand how a department of the Government can do something in contravention of what the President has ordered. This DOD directive says that in the Department of Defense, in the rare case where there is a question as to whether particular information may be furnished to a member of Congress or to a committee, even in confidence, it will normally be possible to satisfy the request through some alternate means acceptable to both the requester and the DOD.

Then it goes on to say that in the event some solution cannot be had, before an employee in the DOD refuses to give such information, it must be cleared with the Assistant Secretary of Defense, Legislative Affairs, who shall be responsible for assuring compliance with all procedural requirements imposed by the President or pursuant to this directive.

I fail to understand how the Department of Defense can set up a directive determining whether or not it will assert executive privilege in these situations.

Mr. REHNQUIST. I am not familiar with the directive to which you refer, Mr. Edmisten. I do know that on at least one occasion, the Department of Defense has gone through the procedures set forth in the President's memorandum for invoking a claim of executive privilege. So from my knowledge, I think they are conversant with it and comply with it.

But obviously, I am not familiar with the day-to-day workings of the Department, nor am I familiar with this directive.

Mr. EDMISTEN. I believe you know, Mr. Rehnquist, that there has been some controversy between the chairman of the Subcommittee on Constitutional Rights and the Department of Defense regarding

his request for certain information for certain generals to appear before that subcommittee. Now, if I read the President's memorandum correctly, it says that the Department head-that to me would include the Secretary of Defense-and the Attorney General are to get together and determine whether or not a request for a claim of privilege should be made of the President. Has that not been done to your knowledge? Mr. REHNQUIST. With respect to the

Mr. EDMISTEN. To the information that Senator Ervin has requested from the Department of Defense.

Mr. REHNQUIST. I sat through a part of Senator Tunney's testimony before mine, and I do read the newspapers from day to day. I am not sure I am completely familiar with what Senator Ervin has requested from the Department. Is it the printouts?

Mr. EDMISTEN. The requests involve a number of things including the personal appearance of certain witnesses. If I read the President's memorandum properly, the Department of Defense has no legal authority whatsoever under that order to refuse to the Congress the information requested or the appearance of the generals, who have personal knowledge of the matter, unless the Department has complied with the procedures of the memorandum.

Mr. REHNQUIST. They certainly have no authority to refuse on the ground that executive privilege is being claimed unless they comply with the provisions of that memo.

Mr. EDMISTEN. I see no reason authorized by the memorandum to refuse information other than executive privilege. Since the memorandum establishes the President's policy on withholding certain information, I find no authority whatsoever for the Department of Defense to not furnish any information or witnesses requested unless they have complied with the procedures in the President's memo. I think that perhaps a meeting should be scheduled with the Department of Defense to see whether or not they are obeying the Chief Executive. Perhaps we can get to that later on in their testi

mony.

I have one more question. A couple of weeks ago, the Assistant Secretary of Defense for Public Affairs said that on the advice of the DOD General Counsel, the release of the "Pentagon Papers" will be postponed because of possible prejudice to "the legal rights of individuals or the Government in potential criminal procedures." I did not understand why the Department of Defense is determining whether or not there will be criminal prosecutions. I thought that was for the Justice Department to do. I also did not understand which legal rights or whose legal rights they were talking about. Mr. REHNQUIST. Well, the Justice Department, of course, gets referrals from numerous other agencies, including the Department of Defense. It is not a one-man show in that sense and it does not strike me as improper for the Department which has custody of papers to say that because we are recommending prosecution to the Justice Department, because we are in the process of preparing the recommendations to the Justice Department, we are not going to release to the public papers which might compromise the possibility of success of such a prosecution.

Senator ERVIN. Thank you very much for your appearance and testimony.

Mr. REHNQUIST. Thank you, Mr. Chairman.

Senator ERVIN. Counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, the next witness is J. Fred Buzhardt, who is General Counsel of the Department of Defense. I think he has some gentlemen accompanying him.

Senator ERVIN. If you have assistants accompanying you, they may come up and be seated at the table with you.

I want to welcome you to the subcommittee and express our appreciation for your appearance and your willingness to give us the benefit of your views on this question.

STATEMENT OF J. FRED BUZHARDT, GENERAL COUNSEL, DEPARTMENT OF DEFENSE; ACCOMPANIED BY ROBERT ANDREWS, ASSISTANT GENERAL COUNSEL

Mr. BUZHARDT. Thank you, Mr. Chairman. I welcome the opportunity to appear before your subcommittee and to discuss the issue of providing Defense information to Congress.

Senator ERVIN. You might introduce your companion.

Mr. BUZHARDT. This is Mr. Robert Andrews, Assistant General Counsel.

Senator ERVIN. Glad to have you, Mr. Andrews.

Mr. BUZHARDT. I share your expressed hope, Mr. Chairman, that this hearing may afford an opportunity to come together and find some common ground that will more clearly define the powers, duties, and prerogatives of the two branches of our one government.

I have not interpreted your request for a witness from the Department of Defense as a desire to obtain a further dialog on the basic constitutional issues raised by the doctrine of executive privilege. I can add little, if anything, to Mr. Rehnquist's testimony before your subcommittee and before the House Foreign Operations and Government Information Subcommittee last June. I will concentrate, therefore, on the practical aspects which arise in connection with the various requests for information from the Congress. At the outset, I believe it important to stress that Secretary Laird is fully committed to the proposition that the Defense Department shall provide the maximum information concerning its operations and activities to Congress and its committees. His long service in the House of Representatives has made it clear to him that the Congress and the executive branch must work together and that to do so they must share information in the decisionmaking process. Accordingly, in the vast majority of situations, information requested by the Congress is provided as rapidly and as expeditiously as it can be compiled. The volume of information so provided by the Department of Defense and the military departments of Army, Navy, and Air Force is enormous. In fiscal year 1969 an estimated 1,100 man-years were expended by Department of Defense headquarters personnel compiling and transmitting information to comply with congressional requests. Since that time, the requests for information and data from Congress have increased, as have the time and effort expended by departmental personnel. I might note, Mr. Chairman, that I believe we answer requests from all of the

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congressional committees and subcommittees. That amounts to 341 from whom we usually receive requests.

We recognize that in many instances delays have been occasioned in providing the information required. Often the delays are due to the fact that the precise information requested by the Congress is not available in Washington, or at any one point, or perhaps not at all in the form requested. In such instances, the material must be compiled and consolidated for submission to the Congress. In other instances, the information and/or documents requested are not easily or quickly identifiable a fact which may also cause delays.

As you are aware, executive privilege is one that can be exercised only by the President, pursuant to his specific direction. In each case the President, himself, must make the determination as to the exercise of the privilege. The privilege would be meaningless, however, were all the information requested by the Congress to be forthwith supplied without opportunity for the President to consider the issue. Subordinate officials within the Department, therefore, have neither the competence nor the authority to determine whether executive privilege shall be exercised.

As a practical matter, therefore, it is necessary that information or material requested by Congress be reviewed by departmental headquarters to determine if a substantial question as to executive privilege exists with respect to the particular information or document. Unfortunately, this procedure is also time consuming, but in no other way can the doctrine of executive privilege be made meaningful.

In determining, therefore, whether a specific question might involve a potential claim of executive privilege, departmental officials can only be guided by the precedence as to the types of materials concerning which executive privilege has been exercised by Presidents in the past. Mr. Rehnquist, in his testimony, cited to you a number of categories of such information.

In those instances where there appear to be a substantial question as to whether a specific request might be one to which the President could desire to exercise executive privilege, it is the policy of the Department of Defense to attempt to satisfy the congressional need for the information by alternative information or data or procedures which will avoid a formal consideration by the President of executive privilege. This Department of Defense policy is contained in DOD Directive 5400.4, signed by the Secretary of Defense on February 20, 1971. Paragraph IV.B 2 of that directive provides as follows:

In the rare case where there is a question as to whether particular information may be furnished to a Member of Committee of Congress, even in confidence, it will normally be possible to satisfy the request through some alternate means acceptable to both the requester and the DOD. In the event that an alternate reply is not acceptable, no final refusal to furnish such information to a Member of Congress shall be made, except with the express approval of the Head of the DOD Component concerned, or of the Secretary of Defense. The Assistant to the Secretary of Defense (Legislative Affairs) shall be informed of any such submission to the Head of a DOD Component or to the Secretary of Defense. A final refusal to a Committee of Congress may be made only with the concurrence of the Assistant to the Secretary of Defense (Legislative Affairs), who shall be responsible for