Some specific legislative proposals that Congress can act upon to defend its autonomy are: 1. Sen. Fulbright's bill (with Sen. Symington's modifications) that would require employees of the executive branch to appear before congressional committees when summoned, even if they then declined to disclose information, claiming executive privilege; and that would specify that information could be withheld from Congress only on the basis of a formal invocation of executive privilege approved by the President. This legislation would place the responsibility and joint the issue; it would also discourage other means of executive evasion. Note that it would not prevent the Special Assistant to the President for National Security Affairs or other White House aides from appearing and invoking executive privilege as, in my opinion, they should have the right to do. 2. Why not incorporate into every authorization act a provision similar to the one in the 1961 Foreign Assistance Act which would stipulate that spending for a program or activity would be suspended if, within 35 days, the executive branch has not supplied a document requested by a congressional committee or the General Accounting Office? Congress' answer to the withholding of information is to withhold authority and funds in order to get the information. There are encouraging signs that the Comptroller General will disallow the spending of foreign aid funds if the Pentagon does not produce the document requested by September 1. 3. Sen. Hartke's proposal for the establishment of the Office of Legislative Attorney General. His duties would be to render legal opinions and representation to the members of Congress, the committees and both houses upon questions arising under the Constitution and laws of the United States. 4. Prof. Theodore Lowi's proposal of a "Tenure of Statutes Act," included in his prescription for juridical democracy in The End of Liberalism (1969). Prof. Alexander Bickel argued before this subcommittee four years ago that Congress ought to do more reviewing and rewriting of its laws in the light of their administration. "The real abdication of responsibility comes . . . later, when there has been experience under the statute, and when Congress, instead of reactivating the legislative process . . . falls in with the belief that because it was enacted once, it is more or less permanent . . ." It is remarkable that the Freedom of Information Act of 1966 has not received a thorough review to find out in what respects it is being ignored. In addition, Congress should give firm backing to the legal authority of the General Accounting Office. It is the only investigative watchdog body representing Congress as a whole. Note the Deputy Comptroller Generals testimony as to the difficulty of obtaining access to the records of the Department of State and the Department of Defense despite the clear wording of section 313 of the Budget and Accounting Act of 1921. I wonder if Secretary of State Rogers considers it contrary to "the public interest" for this law to be faithfully executed or observed by the President? In his statement to this subcommittee, Mr. Rogers' first category of matters not in the public interest to disclose would not permit Sen. Symington's Subcommittee on U.S. Security Agreements and Commitments Abroad to know about those not included in formal treaties. Congress needs reliable information. I am encouraged by the GAO's recent questioning of the methods used by the Pentagon to arrive at an inflated estimate of Soviet arms spending. In conclusion, I submit that one does not have to hold certain policy views to call for a strengthening of the legislative branch. Is it not enough to be persuaded, based upon the study of democratic theory and experience and a certain Lockean faith-that the public interest lies in having a strong Congress? MEMORANDUM JULY 10, 1971 To: Senator Sam J. Ervin. I strongly favor the purpose inherent in S. 1125, but I do not believe that the bill itself is an adequate one. It is right and proper for Congress to call for sensitive information, and in general it is the obligation of the Executive to provide it. The entire notion of Executive Privilege in the matter of information is an interpretation of the executive power that has no standing in constitutional law other than that which members of Congress wish to give it. It certainly has no meaning taken in absolute terms. However, the bill seems to recognize only two alternatives. One alternative is a unilateral exercise of executive discretion in the matter of privileged information, and the other alternative is the closing off of that exercise of discretion except in those instances where the President himself wishes to make the decision. That distance should be filled by some middle-level alternatives. And if we could find any alternatives, I am sure any President would be grateful, because an additional problem with S. 1125 is that the President would be drawn into a great number of detailed decisions from which we have spent many years trying to extricate him. In bringing unilateral executive privilege to an end, I would suggest a range of alternatives that would only culminate in Presidential involvement. There is no reason I can think of why an Act of Congress dealing with this matter cannot provide for such a range. One such provision I would like to see in a revised version of S. 1125 would be to require the Committee or Subcommittee in question to turn to the entire chamber for a resolution requiring the information to be brought forth. If the executive official persists in his refusal, then provisions could be made for recourse to presidential decision. Another provision would be to require the executive official to present the materials in question in executive session so that the members of the subcommittee and the members of Congress in general could decide whether the information should be kept secret. If the executive official persists despite this requirement in refusing to deliver the documents, then again recourse could be had to the President. In all such instances, the principle would be that by and large members of Congress can share in the decision of secrecy along with members of the Executive. This is a far cry from letting the American people and the entire world know all of our secrets, but it is consistent with the historic notion that the Congress of the United States does by and large represent the people of the United States. On the other hand, such provisions would also recognize realistically the problems of slippage and leakage when large numbers of people are involved. It would put heavy pressure on the Executive to envoke executive privilege only in the most extreme and severe cases, and it would put restraints on congressional committees, in having to turn to the whole chamber, so that we could prevent at some future time the irresponsible use of executive materials that we once feared as "McCarthyism." It has often been the case in the past that the Executive and the Congress have lived together by using Executive Sessions. It is also true that Congress has often made use of resolutions and joint resolutions to deal powerfully with the Executive Branch. I am only suggesting that these practices be brought directly into legislation that attempts to arrange systematically for a means by which the two Branches can live together in the modern and fast-moving age. The provisions I am suggesting seem to me to be simple, time honored, and yet very appropriate for the problem at hand. MEMORANDUM JUNE 30, 1971. To: Senator Sam J. Ervin, Jr., Chairman, Subcommittee on Separation of Powers. From: Professor Arthur S. Miller, George Washington University Law School, Consultant to the Subcommittee. Re: Subcommitee hearings on "Executive Privilege." This memorandum is written because of my inability to be present at the Subcommittee's hearings in July on "executive privilege." You may wish to include the memorandum in the printed hearings. In what follows, I shall set forth a few pronositions that seem to me to be basic to the question of the power of the Executive to withhold documents and information from Congress and the public; also included is a suggestion for a statutory remedy, plus a discussion of the need for enhancing the institutional capacity of Congress to handle an increased flow of information from the public administration. 1. The context: Assertion by the Executive of a power to withhold information, written and spoken, from Congress under an inherent" Presidential power usually called "executive privilege" should be viewed in the context of the slow but steady aggrandisement of power in the presidency throughout American history. The Subcommittee has called attention to a number of examples of this trend-in the so-called "Philadelphia Plan," in the misuse of the pocket-veto power by the President, and in Presidential impoundment of appropriated funds, to name but three instances. The consequence is that the Executive Branch is able to make the most portentous decisions without any system of formal "accountability" for the exercise of such powers. Put another way, there has been a progressive erosion of the principle of the separation of governmental powers. Cf. Corwin, THE PRESIDENT, OFFICE AND POWERS (4th ed. 1957). There are solid reasons for this development, however much it may run counter to the spirit of the Constitution. First, just as in the physical world, nature abhors a vacuum, so it may be said that in the political arena, politics abhors a vacuum. The Executive, so it seems to me, moved via executive privilege into an area either vacated by Congress or that had never been occupied. Other than sporadic complaints by some Members and Committees of Congress, all of which came to little or no avail, the Executive was permitted to withhold information when, in the opinion of the Executive, it was necessary (or desirable) to do so. An extra-constitutional practice may be said to have developed, not dissimilar from the practice of impoundment of funds appropriated by Congress. The Subcommittee's hearings on impoundment, held in March 1971, ascertained that more than $12 billion was being withheld, "impounded" by the Office of Management and Budget. (As with impoundment, the fact that Presidents have engaged in such extraconstitutional practices as asserting "executive privilege" when deemed desirable emphatically does not mean that the practice is constitutionally valid.) Second, Congress, through the medium of wellnigh unlimited delegations of power to the public administration (sometimes, it would seem, made almost casually-without regard for their long-range implications), has further contributed to the aggrandisement of power in the Executive. The situation has reached a point where discretion of the administrator is the rule, rather than the exception. As Charles A. Horsky said in 1952, the consequence is that we now have "a government of men, not of laws." Horsky, THE WASHINGTON LAWYER 68 (1952). Executive privilege is merely an aspect of that widespread discretion. In other words, when delegating power to the bureaucracy, Congress neglected to include requirements that it be informed, fully and completely, of what was being done under those delegations. Third, the Executive has access to and availability of information, garnered through an institutional capability that far overshadows that of Congress. The usual Congressional investigation or hearing tends to be a sometime thing, sporadic and hit-and-miss rather than continuous and routine. Fourth, the public administration has the responsibility, statutory or as with the public administration has the responsibility, statutory oras with the President-constitutional, to employ that data in executing its tasks. Finally, it should be remembered that Congress and Executive, in the usual course of governmental affairs, cooperate much more than they conflict. That cooperation is essential if modern government is to operate; it is the other side of the separation-of-powers coin. The latter point suggests the pressing requirement for a reasonable and amicable settlement of the problems involved in the use of executive privilege to keep Congress from knowing some details of American governance. "Warfare" between the two branches of government can be "fatal," Woodrow Wilson once said. Wilson, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES (1908). So it can be. The hearings scheduled by the Subcommittee should-at least, could-go far toward avoiding that warfare. 2. The constitutional basis of executive privilege. There is, of course, no express language in the Constitution permitting the exercise of executive privilege. Its use is, in Lord Bryce's terminology, an example of the "practical" sovereign in action, as compared with the "legal" sovereign. Ultimately, the question becomes that of which branch of government is superior, which, that is to say, is sovereign. There are no Supreme Court cases directly on point. The last, and most important, judicial enunciation of the constitutional positions of the two branches came in 1952 in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), the so-called Steel Seizure Case. In that decision, the Court invalidated President Truman's seizure of the steel mills by executive order. Any fair reading of the several opinions for the majority in that case shows without question that it is Congress which will prevail over the Executive when Congress acts within its sphere of constitutional authority. 3. The Executive's propensity for secrecy. There seems to be a desire on the part of the public administration to keep much of its affairs from being publicized, and even from being divulged to Congress. This is done in a variety of ways-by executive privilege, by classifying documents secret or top secret, by simply refusing to disclose data. It has become notorious that the spirit, if not the letter, of the Freedom of Information Act (Section 3 of the Administrative Procedure Act) is routinely violated. Added to the factor of secrecy is the fact that news is often "managed" by the Executive so as to create a climate of favorable public opinion, either by suppressing documents (for example, the Garwin report on the supersonic transport) or by the release of information favorable to the Executive or even at times affirmatively misleading the public and Congress. The amount of information kept secret is indicated by testimony by William G. Florence in June 1971 before a Subcommittee of the House Committee on Government Operations. Mr. Florence maintained that more than 20 million Pentagon documents were classified, "of which at least 99.5 percent should not qualify for even the lowest confidential stamp." Until May Mr. Florence was a security expert in the Pentagon. See the account in the International Herald Tribune, June 25, 1971, p. 2. 4. The lack of accountability. A fundamental principle of American constitutional government is that those who exercise governmental power should be accountable, that they should "answer in another place" for their actions. That is the theory of separating governmental powers. But accountability cannot take place unless information is available as to the details of decisions taken within government. Modern government, as has been said, tends to be dominated by the Executive-in the United States as well as the remainder of the world. That fact, coupled with secrecy policies exemplified in the use of executive privilege, means that in many important segments of decision-making accountability is lacking. The spirit of the Constitution is being flouted. (For a discussion of the problem in the area of federal procurement policy, see Miller, "Accountability and the Federal Contractor," to be published in the Fall 1971 issue of the Journal of Public Law.) Accountability is simply not possible without adequate information. Congress cannot do its job effectively; the public cannot know what government is doing; even the courts are limited. This does not mean, it should be emphasized, that access to more information about the workings of governmental organs will ipso facto mean that accountability will be accomplished. There may be other roadblocks to an effective system of insuring that the ends of "answering in another place" for decisions are met. All that added access means is that data about the operations of government-mainly the public administration-is indispendable if accountability is to be effected. Constitutional government, in sum, means responsible government, accountable government. Without responsibility or accountability, we have government by fiat. Cf. Davis, DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY (1969). 5. Search for a remedy. To me, there can be no escape from the proposition that, as a general rule, Congress is entitled to full and candid disclosure of all that takes place within the public administration. The various techniques by which the bureaucracy keeps information from Congress (and also from the judiciary, in litigation against the government, as will be further noted below) should be rigidly scrutinized and confined within the narrowest of limits. I can think of no circumstances in which data should be kept from Congress. Even "super-secret" intelligence activities and new weapons systems should be disclosed-at the very least, to a special com 68-287 - 71-34 mittee of Congress. “Blank checks" given by Congress to the Executive run counter to the spirit and nature of the Constitution. The essential problem is not the principle, but the remedy. Under present law, there is only the constitutional impeachment procedure by which officials in the Executive Branch could be forced to divulge data of any type. Assuming a conflict-and there have been many, so the conflict is obvious-between the need of Congress for information and the propensity of the Executive to wish to keep its internal workings safe from external scrutiny, the question becomes one of whether Congress can constitutionally legislate in the field, and, if so, what type of statute is both permissible and desirable. The impeachment remedy can be quickly dismissed. As Thomas Jefferson put it, it is a "bungling" way of operating: "experience has already shown," he once wrote to Judge Spencer Roane of Virginia, “that the impeachment the Constitution has provided is not even a scarecrow." XV THE WRITINGS OF THOMAS JEFFERSON 213 (Bergh ed. 1907). Lord Bryce said it even better it is "the heaviest piece of artillery in the congressional arsenal, but because it is so heavy it is unfit for ordinary use. It is like a hundred-ton gun which needs complex machinery to bring it into position, an enormous charge of powder to fire it, and a large mark to aim at." Bryce, THE AMERICAN COMMONWEALTH 208 (2nd rev. ed. 1891). That Congress has the constitutional power to legislate in the field of executive privilege (and other secrecy techniques) admits of no doubt. Under Article I, Congress not only has the power, it may be said to have the duty, to enact legislation. Cf. Miller, "Toward A Concept of Constitutional Duty," 1968 Supreme Court Review 199. That legislative power is plenary, limited only by those express provisions of the Constitution, such as the First Amendment, that were inserted to curb the power of the legislature. Cf. Reid v. Covert, 354 U.S. 1, 15-19 (1957) (on limitations on treaty-making power). Certainly it is valid to maintain that the power of Congress cannot be limited by the Executive relying merely on some theory of inherent powers not spelled out in the Constitution, see the Steel Seizure Case, supra, nor, as will be noted shortly, can it be limited by theories of self-restraint enunciated by the Supreme Court as a means of avoiding decision in some cases. Power being available, the question becomes one of the nature of a statute that would be constitutionally valid and also desirable from a policy point-of-view. Two types of statutes may be envisaged: (1) a requirement that Executive officials appear before duly constituted Congressional committees and testify and also produce documents. This might be thought of as a generalized subpoena. A refusal, then, either to appear or to testify would make that official in contempt of Congress. Of course, the usual remedies for any persons appearing before committees would be available. Assuming that "executive privilege" is invoked (after the passage of such a statute) by some official, the way would then be cleared for judicial determination of the constitutional validity of the use of executive privilege. A less drastic variation on this type of statute would be one that would require the personal appearance of Executive officers when requested by Congressional committees, but that would permit them to invoke executive privilege when so authorized by the President. In my judgment, there is considerable merit in this type of statutory approach-either the more drastic version or the latter less stringent version. I should think that the Subcommittee might wish to give careful attention to either variation. One problem still exists, however: It is possible to forsee a polite but firm refusal of some officialssay, those in the Executive Offices of the President-to appear at all, in which event Congress, at the very best, would have to rely on the President's lawyer-the Attorney General-to prosecute. It takes no special gift of clairvoyance to conclude that such prosecutions would be vigorously, and probably successfully, resisted by the Attorney General. This argues for institutionalizing a "lawyer for Congress," a question more fully explored below. (2) A statute could be enacted conferring upon segments of Congresssay, the standing committees-the requisite status to be able to go into court and get a judicial order requiring production of documents and testimony in general. The problem is that of the technical law of "standing" |