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trust the members of the Senate Subcommittee on Constitutional Rights with?

Mr. BUZHARDT. I am sure that is not the reason.

Senator ERVIN. Or rather is it to say that subcommittee members ought not to associate with generals, but it is all right for the subcommittee staffs to associate with colonels?

I would like to have an explanation of this matter. It is incomprehensible to me, really.

Mr. BUZHARDT. Mr. Chairman, I am at a loss to explain it. I do not know the circumstances, but I will be glad to give you an answer on it.

(Explanation subsequently furnished by the Department of Defense.)

The staff of the House Military Operations Subcommittee requested the Department of the Army to arrange an interview with Army personnel familiar with counterintelligence operations. The colonels referred to by Senator Ervin were interviewed by the staff members as a result of this request. The colonels did not appear before the House Military Oeprations Subcommittee, nor were they asked to testify under oath. It is understood that the staff of the Senate Subcommittee on Constitutional Rights has contacted the staff of the House Military Operations Subcommittee regarding their report of this interview.

Senator ERVIN. I would like to have an answer. I do not insist on generals if you can send me some colonels. In fact, I would take some majors.

Mr. BUZHARDT. I am glad the chairman does not discriminate on the basis of rank.

Senator ERVIN. In fact, I will take some sergeants, because they are the real authority in the Army anyway.

Now, as I recall, when John Marshall was acting as circuit judge and trying Aaron Burr for treason, he said that the court could issue a subpoena to the President of the United States and require the President of the United States to furnish information to the courts. I would like to have your opinion as to whether or not the Subcommittee on Constitutional Rights could issue a subpena for these generals?

Mr. BUZHARDT. I think there is no question, Mr. Chairman, that the subcommittee could issue a subpoena. I think if the President chose to claim executive privilege, then we would have another issue. Senator ERVIN. Under the DOD regulations that question would go up to the President?

Mr. BUZHARDT. Yes, sir.

Senator ERVIN. I would hate to do that, so I hope you will furnish the information that we want without the committee having to go to that extreme.

Mr. BUZHARDT. Mr. Chairman, let me say as far as furnishing information that you want, I think that we have-as you know, one letter outstanding now on the subject asking for information, which I explained to you earlier will take some time to compile. Except for the matters in this letter, I believe we have provided all the information which you have requested.

Senator ERVIN. Well, can I ask a question half facetiously and half seriously? Can the subcommittee reasonably hope that it will receive that information before the last lingering echo of Gabriel's horn trembles into ultimate silence?

Mr. BUZHARDT. Mr. Chairman, the information will be provided as rapidly as it can be compiled. Let me be quite frank. The list of questions you asked were quite extensive. They went back many years. The files are not all here in Washington. We have to go dig these files up. Much of the information has never been compiled. There is raw data at various places. But it takes a considerable while.

As you know, we are at reduced strength in the Department of Defense and I must admit, not everybody there is working on it, but a very large group of people is working on it.It is being compiled as rapidly as possible.

Senator ERVIN. Well, I believe the investigation discloses that a part of the information that we sought has already been collected. I am referring to the information that was collected and reviewed by the task force. So there will be no need for delay on the production of that material.

Mr. BUZHARDT. Your latest inquiry, I do not believe, relates directly to information collected by the task force.

Senator ERVIN. I know, but there were a multitude of inquiries that preceded the most recent one.

Mr. BUZHARDT. And Mr. Chairman, we have answered your previous inquiries.

Senator ERVIN. Yes; by failing to produce evidence in many cases. Well, thank you. I will not pursue this farther.

Mr. Edmisten?

Mr. EDMISTEN. I have several questions, Mr. Buzhardt. I want to know how far the Department of the Army has gone in following the President's memorandum. Let us take as an example the information which has been requested of the Department by the Subcommittee on Constitutional Rights.

As I mentioned to Mr. Rehnquist a moment ago, I think this is a rather clearly worded document which came from the President. In your testimony you also read part of the DOD Directive 5400.4 which establishes Department procedures for withholding information. Now, as Senator Ervin mentioned a moment ago, the wording in that DOD directive is "a final refusal to a committee of Congress may be made only with the concurrence of the Assistant Secretary of Defense, who shall be responsible for insuring compliance with all procedural requirements imposed by the President or pursuant to his direction."

Now, the subcommittee has a list here of information which has been requested by the Subcommittee on Constitutional Rights of the Defense Department. I take it that since these requests have not been honored, they are final refusals under your directive.

Mr. BUZHARDT. That is not correct, Mr. Counsel.

Mr. EDMISTEN. Then what do you call them?

Mr. BUZHARDT. Would you take it item by item of information? Mr. EDMISTEN. Yes.

Mr. BUZHARDT. Because I do not have the advantage of the list to which you refer.

Mr. EDMISTEN. The Fort Hood printouts are the latest documents requested. Have they been finally refused?

Mr. BUZHARDT. No; they have not. I am not aware of what the related documents are.

Mr. EDMISTEN. What is happening to them, then? Are they being screened?

Mr. BUZHARDT. I was not aware of the request for the Fort Hood printout as such. I think we delivered-some of the printouts have been delivered.

Mr. EDMISTEN. I recall from the correspondence that the Fort Hood printouts were definitely requested.

Mr. BUZHARDT. Then in due time I presume you will receive them. Mr. EDMISTEN. There are others. This list is so long, Mr. Buzhardt, that I could not possibly read it or we will be here all day. I am just trying to determine whether or not they are final refusals. If they are, I want to know what steps you have taken in regard to the President's memorandum, because I do not see how you could defy the President.

Mr. BUZHARDT. Mr. Counsel, we are not defying the President. As I explained to you earlier, there has been no final refusal on any of these things. As I just referred to the Senator, the material requested in his last letter, June, I think, is quite extensive and is in the process of being compiled.

Mr. EDMISTEN. Do you anticipate, Mr. Buzhardt, that following the channels outlined by the President's memo, you will assert executive privilege as to some of these materials?

Mr. BUZHARDT. I do not anticipate asserting executive privilege to anything, because that is the President's sole prerogative.

Mr. EDMISTEN. Do you anticipate following the channels and reporting to the Attorney General that you have a question about asserting executive privilege and that you wish to obtain his advice?

Mr. BUZHARDT. If no other means of satisfying the subcommittee's request on specific items after they get the material furnished to them are possible, if we have exhausted all other means, certainly. Mr. EDMISTEN. Am I correct in stating that at no time in the correspondence between the Department of Defense and the Subcommittee on Constitutional Rights has the issue of executive privilege been alluded to or asserted?

Mr. BUZHARDT. Not in correspondence, no. I think in private conversation with the Chairman, yes. I think I explained to him that we were not claiming executive privilege nor did we have the authority to do so.

Mr. EDMISTEN. I have just been informed that the Fort Hood material was requested on April 19, 1971, from the Secretary of Defense.

From your prepared testimony I take it that you and Senator Ervin agree on the hope expressed in his opening statement that these hearings may afford an opportunity to the executive and legislative branches to come together and find some common ground more clearly defining the powers, duties, and prerogatives of the two branches in this sensitive area. I also assume from your statement that the Department of Defense is going to furnish all the information requested or that if there is agreement among the Department and the Attorney General that the President should assert executive privilege, the question will be presented to him.

Mr. BUZHARDT. That is correct, but where such information can be found. Now, there are some things that have been requested that just are not in existence.

Mr. EDMISTEN. I am not on the staff of the Subcommittee on Constitutional Rights, although I used to be over there. But I have read much of their correspondence with your Department and as I look at the dates I find that correspondence has been going on over 18 months on some of these matters. So we must be approaching a final decision somewhere along there, are we not?

Mr. BUZHARDT. I do not believe you have requested anything for

18 months.

Mr. EDMISTEN. I said the correspondence has been going on for 18 months.

Mr. BUZHARDT. It has been going on. The Department has been providing material in great quantity-I would be glad to specify if you would like over this period.

Mr. EDMISTEN. I think it would be salutary if we could establish some procedure or practice whereby the Department of Defense and also other executive departments and agencies will not use what the Chairman refers to at times as "weasel words". It would be helpful if you would come forward and say, look, we are going to consult the Attorney General and determine whether we ask the President to assert executive privilege, and not use such terms as not in the national interest, do not think you need it, and so forth. I think what really-if I might use the word-irks so many people here in the Congress is the failure either to use when the plain, simple wording that the President's memorandum calls for or to supply the requested information.

Mr. BUZHARDT. Let me say, Mr. Counsel, that when requests are made, we do attempt to negotiate with the committees. If we referred every question about which there was a possible claim for executive privilege that the President might want to assert, the President might not have time to do much else. In the overwhelming majority of cases, we can satisfy the requests through alternate means, data, or procedures. This we attempt to do and this we will continue to attempt to do.

So I do not mean to suggest at all that every time there is a problem involved, we will immediately forward the matter to the President for his consideration for a claim of executive privilege. We will try to provide the data, in some form to meet the committee's requirements. And this has often been most successful.

Senator ERVIN. I would not like to have the embers of the controversy we have had in the past between the members of the Subcommittee on Constitutional Rights and the Department of the Army obscure the fact that you have made a very fine statement on executive privilege before this subcommittee. I infer from your statement that you accept the view that neither the executive branch of the government nor the Congress has or should have the right to impose its views upon the other branch of the Government, but that on the contrary, the conditions under which the privilege should be exercised is something which can be best worked out by cooperation between the two branches of the government.

Mr. BUZHARDT. Absolutely, Mr. Chairman. I think ours is a government of checks and balances and they can be worked out on a cooperative basis.

Senator ERVIN. Thank you for your very fine statement.

Mr. BUZHARDT. Thank you, Mr. Chairman.

Senator ERVIN. The subcommittee will stand in recess until 2 o'clock at which time Mr. George Reedy will be the first witness. (Whereupon, at 12:35 p.m., the subcommittee was recessed until 2 p.m. of the same day.)

AFTERNOON SESSION

Senator ERVIN. The subcommittee will come to order.
Counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, we are very honored to have Mr. George Reedy with us today.

Senator ERVIN. Mr. Reedy, I want to welcome you to the subcommittee and express our appreciation for your willingness to come and give us the benefit of your views on a very important question. You have had extensive experience both on the Hill, and in the executive branch of the government. I would like to take this occasion to commend your book on the "Twilight of the Presidency" and to recommend it to any American who is interested in becoming acquainted with some very basic truths respecting our government. STATEMENT OF GEORGE REEDY, FELLOW, WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS

Mr. REEDY. Thank you very much, Mr. Chairman. I appreciate that.

Senator ERVIN. You may proceed in your own way.

Mr. REEDY. Surely. I have no prepared statement, Mr. Chairman. What I do have, however, are some observations on the relationships between the executive and the legislative branch of the government which are drawn out of my own personal experience and which conclusions I have come to after being in a position where I could observe both branches in operation and get some concepts of some fundamental differences here that I think have some very important implications concerning the future of our nation.

I am very strongly in support of the principles of Senator Fulbright's bill. I am not a lawyer and I do not presume to make a legal analysis. I especially would not presume to make a legal analysis before this group.

I am not overly concerned about that, because I have had enough experience with the Chairman and with the Senate to be quite confident that no measure which is legally unsound would escape this committee. But I do propose to address myself to some of the substantive problems that are involved in this question of gathering information, as I think that this particular bill and the subject to which you are addressing yourself opens up a field that is far larger, and even of more importance than the information itself.

I have read over quite a bit of the testimony that has been given before this committee up to this point and I think that from quite a

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