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JULY 28, 1971. Hon. MELVIN R. LAIRD, Secretary of Defense, Washington, D.C.
DEAR MR. SECRETARY : As you know, on the Committee's behalf, I have asked the Department of Defense on several occasions for a copy of the Five Year Plan for the Military Assistance Program to assist the Committee in considering foreign aid legislation and in overseeing the military aid program. On April 30, 1971 and July 12, 1971, following the Department's earlier refusal to furnish it, I wrote to you and asked that either the document be furnished or that the President formally invoke executive privilege as a reason to withhold it. There has been no substantive reply to either letter.
I had hoped that, in the interests of better relations between the Congress and the Executive Branch, your Department would be more cooperative and not force the Committee to use the authority of Section 634 (c) of the Foreign Assistance Act of 1961. Under the circumstances, you have left the Committee with no alternative. As you know, this section provides that foreign assistance funds shall be cut off for any activity thirty-five days after the Committee requests a document relating to the foreign assistance program upless either the document has been provided, as requested, or the President certifies that he has forbidden that it be furnished and gives his reasons for refusing to do so. The section is quoted below for ready reference:
"(c) None of the funds made available pursuant to the provisions of this Act shall be used to carry out any provision of this Act in any country or with respect to any project or activity, after the expiration of the thirty-five-day period which begins on the date the General Accounting Office or any committee of the Congress charged with considering legislation, appropriations or expenditures under this Act, has delivered to the office of the head of any agency carrying out such provision, a written request that it be furnished any document, paper, communication, audit, review, finding, recommendation, report, or other material in its custody or control relating to the administration of such provision in such country or with respect to such project or activity, unless and until there has been furnished to the General Accounting Office, or to such committee, as the case may be, (1) the document, paper, communication, audit, review, finding, recommendation, report, or other material so requested, or (2) a certification by the President that he has forbidden the furnishing thereof
pursuant to request and his reason for so doing." Today the Committee on Foreign Relations voted to invoke this authority. Pursuant to that provision, this letter is to request formally that you furnish the Committee with the current Five Year Plan for the Military Assistance Program for all countries. In view of the fact that the document requested involves all countries receiving military aid, the Committee is of the view that under this provision funds for the entire military assistance program shall be suspended thirty-five days from this date until one of the conditions specified is met. The Committee has decided to defer further action on foreign aid legislation until this matter has been resolved. Sincerely yours,
J. W. FULBRIGHT, Chairman.
THE WHITE HOUSE, Washington, August 30, 1971.
MEMORANDUM FOR THE SECRETARY OF STATE, THE SECRETARY OF DEFENSE It has been brought to my attention that the Senate Foreign Relations Committee has requested various internal working papers, and planning data of the Executive Branch relating to the Military Assistance Program.
As you know, the policy of this Administration, as directed in my memorandum for the Heads of Executive Departments and Agencies, dated March 24, 1969, is to comply to the fullest extent possible with Congressional requests for information. In pursuance of this policy, the Executive Departments and Agencies have provided to the Congress an unprecedented volume of information. In addition, Administration witnesses have appeared almost continuously before appropriate Committees of the Congress to present pertinent facts and information to satisfy Congressional needs in its oversight function and to present the views of the Administration on proposed legislation.
The precedents on separation of powers established by my predecessors from first to last clearly demonstrate, however, that the President has the responsibility not to make available any information and material which would impair the orderly function of the Executive Branch of the Government, since to do So would not be in the public interest. As indicated in my memorandum of March 24, 1969, this Administration will invoke Executive Privilege to withhold information only in the most compelling circumstances and only after a rigorous inquiry into the actual need for its exercise. I have accordingly conducted such an inquiry with regard to the Congressional requests brought to my attention in this instance.
The Senate Foreign Relations Committee has requested "direct access to the Executive Branch's basic planning data on Military Assistance" for future years and the several internal staff papers containing such data. The basic planning data and the various internal staff papers requested by the Senate Foreign Relations Committee do not, insofar as they deal with future years, reflect any approved program of this Administration, for no approved program for Military Assistance beyond the current fiscal year exists. Furthermore, the basic planning data requested reflect only tentative intermediate staff level thinking, which is but one step in the process of preparing recommendations to the Department Heads, and thereafter to me, for one-year programs to be approved for the ensuing budget year.
I am concerned, as have been my predecessors, that unless privacy of preliminary exchange of views between personnel of the Executive Branch can be maintained, the full frank and healthy expression of opinion which is essential for the successful administration of Government would be muted.
I have determined, therefore, that it would not be in the public interest to provide to the Congress the basic planning data on military assistance as requested by the Chairman of the Senate Foreign Relations Committee in his letters of July 28 and August 6, 1971, to the Secretary of Defense.
I, therefore, direct you not to make available to the Congress any internal working documents which would disclose tentative planning data on future years of the military assistance program which are not approved Executive Branch positions.
I have noted that you and your respective Departments have provided much information and have offered to provide additional information including planning material and factors relating to the military assistance program to the Senate Foreign Relations Committee. These planning materials and factors will enable the Congress to consider current year approved programs in light of considerations bearing on the future which can now be foreseen. In accordance with my general policy to provide the fullest possible information to the Congress, I will expect you and the Secretaries of other Executive Departments to continue to make available to that Committee all information relating to the military assistance program not inconsistent with this letter.
[Set IV-Monthly Statistical Reports on Military Operations in Southeast Asia ]
JANUARY 27, 1971. Hon. MELVIN R. LAIRD, Secretary of Defense, Washington, D.C.
DEAR MR. SECRETARY: As you know, at the request of the Committee on Foreign Relations the Department of Defense has, for some time, been supplying it with monthly statistical data relating to the situation in Vietnam. This information has proved to be extremely valuable in following developments there.
The Committee is finding it increasingly difficult to keep abreast of the rapid developments in Cambodia, Laos, and North Vietnam, and I believe that a monthly report containing data relating to those countries would be helpful. The Committee would, therefore, appreciate the Department's cooperation in supplying, on a monthly basis, the information requested on the enclosed list.
I, of course, have no objection to your making this information available to other interested congressional committees, as was done in the case of the Vietnam reports. Sincerely yours,
J. W. FULBRIGHT, Chairman.
ASSISTANT SECRETARY OF DEFENSE,
Washington, D.O., April 10, 1971. Hon. J. W. FULBRIGHT, Chairman, Committee on Foreign Relations, U.S. Senate, Washington, D.O.
DEAR MR. CHAIRMAN : Secretary Laird has asked me to respond to your letter of 27 January in which you requested that the Senate Committee on Foreign Relations be furnished, on a continuing basis, a detailed monthly report on military operations in Southeast Asia.
I regret that we are unable to comply with your request in this instance. Deputy Secretary Packard's letter to Senator Symington of 11 June 1970, a copy of which Senator Symington forwarded to you, pointed out that it would not be at all appropriate to discuss or disclose outside the Executive Branch highly sensitive information on military combat operations of the kind which your questions would elicit if answers were to be provided. Sincerely,
G. WARREN NUTTER.
THE DEPUTY SECRETARY OF DEFENDE,
Washington, D.C., June 11, 1970. Honorable STUART SYMINGTON, Chairman, Subcommittee on U.S. Security Agreements
and Commitments Abroad, Senate Committee on Foreign Affairs, Washington, D.C.
DEAR SENATOR SYMINGTON: I understand that when Generals Burchinal and Polk appeared as witnesses before your Subcommittee in late May, they were requested to make available to the Subcommittee copies of written instructions they had received both in connection with the European trip of staff members Pincus and Paul and with reference to their testimony before your Subcommittee.
I am sure you will appreciate that those instructions, by definition, were documents intended solely for internal use within the Department of Defense and I would hope that you would agree with me that such documents should not be distributed outside the Executive Branch.
From your personal experience as a former Secretary of the Air Force, you are well acquainted with the fact that, on the basis of custom, tradition, usage and precedent, the Legislative and Executive Branches have come to accept and recognize that there are certain matters which, for varying reasons, are not normally discussed outside the Executive Branch. The instructions in question contained topics meeting that general description for the most part and included such items as military contingency plans, National Security Council documents, Inspector-General Reports of Investigations, matters still in the planning, proposal stage upon which no decision has been reached, operational procedures and methods involving the risk of life or safety of military personnel, and so forth.
Early in the Subcommittee hearings, a misunderstanding apparently developed in connection with the handling or manner of treatment of information on nuclear weapons, a misunderstanding which, as I understand it, has been resolved by the briefing given to the Senate Committee on Foreign Relations on 27 May 1970.
These categories of information are those which have become widely accepted and generally recognized as topics which in the national interest, should be strictly limited in either dissemination or discussion. Be assured that any prohibitilons against discussing such topics apply to all testimony and were not, of course, restrictive solely to witnesses appearing before your Subcommittee.
Secertary Laird asked me to convey his apology for the delay in responding to your request, a delay which was occasioned by the urgency of preparing for his trip to Europe.
I trust that you will find this responsive to your Subcommittee's interest in this matter. Sincerely,
4. The "Housckecping" Pavilege ..............