has the final word. This would be very healthy. And I regret that we seem to have been put under wraps and there is a reluctance on the part of the Executive to be forthcoming, at least as far as the Congress, on some of the substantive matters involved.

I am very much for the program. I would like to do anything I know to make his way easy to normalize our relations with China or any of the other countries. And I think it is very relevant to what you are saying.

I believe he would be more likely to succeed, the country would be more behind him, I even think the Chinese would be more reassured if they felt as a result of an enlightened debate took place and they knew where they stood. This is just he most currrent example. I could say the same with other instances.

I just believe and I wish to endorse that regardless of the fact that we Congressmen or Senators are not supermen, that we are ordinary men, that the very process of discussing these policies

Mr. REEDY. I have not found too many supermen in the executive branch, either, sir.

Senator FULBRIGHT. Well, because of their access to television and other reasons, they have let a lot of people think they are or ought to be. They look to that office to be their salvation. They are now concentrating on it. All these candidates, everything seems dependent upon who is in the Presidency. I always thought that the important thing was the preservation of the institutions of the Government and that the Presidency was only one of them, not the only one. It is a distortion of the very concept of our system, it seems to me, to exclude the participation of the Congress in policymaking. Mr. REEDY. Right.

I can see this very well in the China thing, Senator. I, myself, have not enough basic information in that part of the world. I am no China expert, do not claim to be a China expert, do not intend to become a China expert. Generally speaking, there is no doubt in my mind that there must be a rapprochement. You can not just ignore a country of some 600 to 800 million people. But I can see some tremendous problems arising merely out of the fact that this thing has been announced as an almost accomplished fact with, really, the public knowing absolutely nothing other than that a meeting has been set up.

Senator FULBRIGHT. And the Congress knowing nothing, too.

Mr. REEDY. Right. So what is going to happen whenever anything goes wrong? And things are bound to go wrong. This is part of the human condition. Sometimes a person simply cannot win for losing. And I think that probably about 60 to 75 percent of the time in life, things go wrong. Then the Nation will not be prepared to stand the shock of a mistake.

I think one of the reasons that the theory of corruption and venality, the search for devils, has become so prevalent in the last 20 or 30 years is that we have had this air of omniscience and an air of omnipotence out of the executive power of the Government. And I think they have done too good a job of selling the people on the feeling that they are omniscient. Therefore, when a mistake happens, it cannot possibly be human error in the minds of the people who have

been told these men are omniscient. There must be some evil or venal reason for it. I think to some extent, this particular psychology is digging its own trap.

The same thing may well happen in China. If something goes wrong, it is going to be rather difficult to convince the average American that a mistake was made. I think that is why things usually go wrong, because of mistakes, because we did not know enough about it at the time it happened to realize that there are traps down the road; because any international course is studded with spikes, has wrong turnings, bad turnings. I think it would be far better to run the risk of public debate, and there are risks to it. It is foolish to say there are no risks to it. There are plenty of risks. But I think I would rather run the risks, knowing that once the goal was achieved, it would have much more solid support.

Senator FULBRIGHT. Lastly, you see no great harm-well, I will put it this way: On balance, it would be beneficial if the members of this new great bureaucracy did respond to Congressional hearings and anticipate any debate?

Mr. REEDY. Oh, of course. I think this is one of the-I really feel more concerned about this development of a new department of Government than almost anything else that has happened to our country in the last 40 or 50 years. I think it is a very, very dangerous thing, to have a group of men who are actually in the process of running day-to-day affairs of the Government with no outside check on them. I think this is a terribly dangerous thing, Senator.

Senator FULBRIGHT. Well, Mr. Chairman, I appreciate your allow. ing me to participate here. I could go on endlessly, but I know you have other business.

Senator ERVIN. I realize the vastness of this whole subject. This is our fourth day of hearings, and I think that we could very well spend far more time than we have on this very vital subject.

I appreciate the contribution that the Senator from Arkansas has made by his interrogation of the witness.

Senator FULBRIGHT. Well, I thank the chairman and I certainly compliment him on taking the time, because I agree with him, this is fundamental to our system of Government and I think he is rendering a great service.

Senator ERVIN. I would also like to thank Mr. Reedy, because I think he has made a most important contribution to this whole discussion and has placed it on what I think is the highest philosophical plane.

Mr. REEDY. Thank you, Mr. Chairman.
Senator ERVIN. Thank you very much.

Counsel will call the next witness.

Mr. EDMISTEN. Mr. Chairman, the next witness is Mr. Carl F. Salans, acting legal adviser, Department of State, and he is here to represent Mr. William P. Rogers, who is Secretary of State.

He will be accompanied by former Ambasador Harrison Symmes. Senator ERVIN. I want to welcome both of you gentlemen to the committee and express to you our appreciation of your willingness to appear and share with us your views and those, I understand, of the Secretary of State on this matter.

STATEMENT OF CARL F. SALANS, ACTING LEGAL ADVISER, DEPARTMENT OF STATE, ACCOMPANIED BY FORMER AMBASSADOR HARRISON SYMMES, DEPUTY ASSISTANT SECRETARY FOR CONGRESSIONAL RELATIONS

Mr. SALANS. Thank you very much.

I am very grateful to you for the opportunity of being here. The Secretary of State has submitted a written response to your invitation to him, and I am here to read that statement to you and to express his appreciation to the committee.

Before I do that, I would like to make just one comment on the testimony of Mr. Reedy about the decisionmaking process in the executive branch of the Government. From my experience in the State Department, the decisionmaking process there seems to bear little resemblance to the description he gave of the decisionmaking process in the White House. There certainly is a great deal of debate in the State Department; there certainly is an adversary process, in which I have participated many times and have been licked many times in the course of that process. I think the Secretary of State encourages debate and an adversary process in the State Department. And I, for one, have certainly felt throughout my dozen years in that Department perfectly free to raise different points of view and to advocate them as strongly as I could.

Senator ERVIN. I think that is highly desirable. I have not had any real opportunity to know about what goes on in the Whice House. But in the absence of the truth which makes men free, I indulge in the assumption that perhaps too many of those on the White House staff who advise the President are people who are sometimes tempted to succumb to the temptation to express to the President views which they suppose his close advisers maintain or which they think the President maintains. People who happen to ascend Mount Olympus as advisers to Jupiter suffer a very constant temptation to ascribe to Jupiter extreme wisdom and are sometimes afraid of taking any views which they think might be inconsistent with the supposed supreme wisdom of Jupiter.

These are observations I make in a total state of ignorance, unobstructed by the truth which makes men free.

Mr. SALANS. There is that temptation, Mr. Chairman. It is greatly to be resisted.

Let me now proceed to read the statement of Secretary Rogers. STATEMENT OF HON. WILLIAM P. ROGERS, SECRETARY OF STATE, AS READ BY CARL F. SALANS

'Mr. SALANS. I appreciate the opportunity of submitting this statement to the Senate Subcommittee on Separation of Powers in connection with its consideration of S. 1125, concerning Executive privilege.

The Chairman of this Subcommittee has stated that the 'separation of powers questions in this measure are exceedingly important,' and I concur in this statement. As you know, as Attorney General I delivered a comprehensive statement on the subject of Executive privilege on March 6, 1958 before the Subcommittee on Constitutional Rights of the Senate Judiciary

Committee. In the present statement, I will not repeat the exhaustive review of the subject contained in my earlier testimony.

The doctrine of Executive privilege arises not from any, statute or administrative regulation, but rests directly on the Constitution itself and the design of the Founding Fathers for a separation of powers between the Executive Branch, the Legislative Branch and the Judiciary. Executive privilege is the power of the President to preserve the integrity of his constitutionally assigned functions by withholding information the disclosure of which would impair the process by which the Executive Branch carries out those functions or would be contrary to the public interest. The privilege has been exercised only on rare occasions. The Executive Branch, in the overwhelming number of cases, has provided information requested by the Congress. This practice is in recognition of the constitutional responsibility of the Congress to make investigations and seek information in order to enable it to carry out the legislative responsibilities assigned to it.

It has been commonly accepted, by Congress as well as by the Executive Branch and the Judiciary since the time of George Washington's presidency that there are certain matters the disclosure of which by the Executive Branch would not be in the public interest. On occasion, this is so because disclosure would reveal confidential communications to and from foreign governments, the revelation of which would be prejudicial to our foreign relations and to the detriment of this nation's well-being; other times it is considered that the exposure of differing and sometimes strongly held views within the Executive Branch in connection with the formulation of policy or the execution of a program would discourage Executive Branch officials in the future from dealing in utter candor as their effective functioning requires. There can be other reasons for deeming disclosure not to be appropriate, but in each case the ultimate criterion is whether or not the public interest would be served. The rationale for the privilege was described by a member of the Senate, Senator Spooner, some years ago, in 1906:

"It would not be admissible at all that either House should have the power to force from the Secretary of State information connected with the negotiation of treaties, communications from foreign governments, and a variety of matters which, if made public, would result in very great harm in our foreign relations-matters so far within the control of the President that it has always been the practice, and it always will be the practice, to recognize the fact that there is of necessity information which it may not be compatible with the public interest should be transmitted to Congress-to the Senate or to the House."

It may be illuminating to refer to some historic examples of the exercise of Executive privilege which bear on the issues raised by the bill now pending before your committee. When President Washington was asked by the Congress, in the course of its investigation into the failure of an expedition under the command of one General St. Clair, to produce relevant papers, he and his cabinet concluded:

"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."

While President Washington ultimately determined that the papers requested could be furnished without injury to the public, he and subsequent Presidents later acted upon the general principle he formulated regarding executive privilege.

In 1796, the House of Representatives requested President Washington to lay before the House a copy of the instructions to ministers of the U.S. who negotiated a treaty with Great Britain together with the correspondence and other documents relating to that treaty. In declining to comply with the request, President Washington said: ". 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 forbids a compliance with your request."

You are familiar with President Jefferson's refusal to comply with Chief Justice Marshall's subpoena in the trial of Aaron Burr. President Jefferson also declined to make available for testimony in another trial the Secretary of State, the Secretary of War, the Secretary of the Navy, and three clerks

of the State Department on grounds that their official duties could not be dispensed with.

More recently, on two occasions during the Administration of President Truman, a subcommittee of the House Committee on Education and Labor issued subpoenas to John R. Steelman, who held the title "Assistant to the President." In both instances he returned the subpoena with a letter stating that "in each instance the President directed me, in view of my duties as his assistant, not to appear before your subcommittee." (H. R. Rep. No. 1595, 80 Cong., 2nd Sess., pp. 3, 12. Investigation of GSI Strike, Hearing Before a Special Subcommittee of the Committee on Education and Labor, H. R. 80th Cong. 2nd Sess. pp. 347-353.)

In 1955, in connection with the hearing on the Dixon-Yates contract before the Subcommittee on Antitrust and Monopoly of the Senate Judiciary Committee, Presidential Assistant Sherman Adams declined to respond to a formal invitation to appear before the subcommittee. He relied on his "official and confidential relationship to the President" as the basis for his refusal. (Power Policy: Dixon Yates Contract, Hearings on S. Res. 61 Before the Subcommittee on Antitrust and Monopoly of the Senate Committee on the Judiciary, 38th Cong., 1st Sess. (1956) at 676).

During the hearings on the nomination of Mr. Justice Fortas to be Chief Justice of the U.S., the Senate Judiciary Committee requested W. DeVier Pierson, Associate Special Counsel to the President, to appear and testify regarding the drafting of legislation authorizing Secret Service protection for Presidential candidates. Pierson declined the invitation, writing Senator Eastland as follows:

"As Associate Special Counsel to the President since March, 1967, I have been one of the 'immediate staff assistants' provided to the President by law. (3 U.S.C. 105, 106) It has been firmly established, as a matter of principle and precedents, that members of the President's immediate staff shall not appear before a congressional committee to testify with respect to the performance of their duties on behalf of the President. This limitation, which has been recognized by the Congress as well as the Executive, is fundamental to our system of government. I must, therefore, respectfully decline the invitation to testify in these hearings." (Nomination of Abe Fortas and Homer Thornberry, Hearing Before the Committee on the Judiciary, U.S. Senate, 90th Cong. 2nd Sess., pp. 1347, 1348.)

It is against this background, both the importance and the common acceptance of the doctrine of Executive privilege, dictated by the Constitution's separation of powers, that one must consider S. 1125. Briefly, the bill would require any employee of the Executive Branch actually to appear before the Congress or any committee thereof in response to a request, even though Executive privilege were to be exercised with respect to the entirety of the testimony sought to be elicited. The bill would also require that any claim of Executive privilege be supported by a statement signed personally by the President.

I think that enactment of such a bill is unnecessary in view of the extremely limited invocation of Executive privilege, which fact I have already noted. Moreover, as a practical matter, there is little benefit discernible to the Congress in having witnesses appear if they are unable to testify. More seriously, it seems to me the bill attempts by legislation to impair the President's exercise of Executive privilege by requiring officials of the Executive Branch to appear before Congressional Committees even if the President directs that they not do so. Insofar as the bill purports to do this, it is of questionable constitutionality.

I should refer in closing to the memorandum issued by President Nixon early in this Administration, on March 24, 1969, addressed to the heads of all Executive Departments and agencies in which the President stated the policy of this Administration regarding requests from Congress for information. The President stated,

"The policy of this Administration is to comply to the fullest extent possible with Congressional requests for information. While the Executive Branch has the responsibility of withholding certain information the disclosure of which would be incompatible with the public interest, this Administration will invoke this authority only in the most compelling circumstances and after a rigorous inquiry into the actual need for its exercise. For those reasons