mation from Congress. However, both of these rights are rooted in history and precedent.

In threatening to halt foreign aid unless the Administration supplied the requested data or the President forbade its release, the Foreign Relations Committee acted under a provision of the 1961 Foreign Assistance Act.

That act stipulates that spending for a foreign aid activity will be suspended if, within 35 days, the executive branch has not supplied a document requested by Congress or unless the President forbids making the document available. Siding with the committee, the Controller General of the United States, Elmer B. Staats, had ruled that foreign military aid funding would cease tomorrow unless the Administration complied.

The Controller General, whose General Accounting Office is the investigative watchdog agency of Congress, has authority to disallow disbursement of appropriated funds when he finds noncompliance with the law.

NIXON STRESSES "PRIVACY"

In refusing to divulge the military assistance information, President Nixon expressed concern that "unless privacy of preliminary exchange of views between prsonnel 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."

Assistant Attorney General William H. Rehnquist said today that he knew of only one other instance in which President Nixon had invoked executive privilege in withholding requested information from Congress.

That case, in June, 1970, involved a request by a House Government Operations subcommittee, headed by Representative L. H. Fountain, Democrat of North Carolina, for Federal Bureau of Investigation reports evaluating scientists nominated to serve on advisory boards for the Department of Health, Education and Welfare.

In refusing to divulge the contents of the F.B.I. reports, Attorney General John N. Mitchell informed the subcommittee: "This invocation of privilege is being made with the specific approval of the President."

While this is only the second time that the President has openly invoked executive privilege, there have been other instances in which the executive branch has denied information to Congress by refusing to allow key officials to testify or by refusing to supply requested documents.

In several instances-such as the Pentagon study of the Vietnam war and a study of the supersonic transport aircraft-the Administration supplied information many months, and in some cases several years, after Congress sought the data.

[From the New York Times, Sept. 3, 1971]

PRESIDENT vs. CONGRESS

NIXON'S REFUSAL TO FURNISH DATA DEEPENS CONSTITUTIONAL STRUGGLE

(By Marjorie Hunter)

WASHINGTON, September 2.-By refusing this week to disclose long-range plans for foreign military aid, President Nixon has deepened the constitutional struggle between the Presidency and the Congress.

He may also have jeopardized all or at least a large part, of the Foreign Military Assistance Bill, now pending in the Senate Foreign Relations Committee. This was implicit in a statement by Senator J. W. Fulbright, the committee chairman, scarcely an hour after he was formally notified that the President would not furnish the data.

"It is my personal view," the Senator said, "that the state of the American economy, and especially our balance-of-payments situation, makes it essential that the burden on the United States of outright gifts of military equipment and training to over 30 countries must be scrutinized most carefully this year."

"That scrutiny," he went on, "requires that the Congress have available to it the Administration projections for military assistance for the next few years-information which is not now to be forthcoming."

This was a thinly veiled reminder that by refusing to enact military assistance legislation or by threatening to slash it drastically, the Senate might still force the President's hand.

SERIES OF CONFRONTATIONS

Senator Fulbright is not alone in challenging the power of the White House. His committee's demand for information on military aid was merely the latest in a long line of confrontations.

Among them have been the following:

The Foreign Relations Committee has repeatedly demanded other documents-including a study of the Gulf of Tonkin incident and a Pentagon study of the Vietnam War. The Administration released some of the Pentagon study, but only after portions had appeared in The New York Times and other newspapers. It has not yet made available the Tonkin study.

Various committees have sought testimony from the President's national security adviser, Henry A. Kissinger. He has refused on the ground that he is a personal adviser to the President.

A Judiciary subcommittee, headed by Senator Sam J. Ervin, Democrat of North Carolina, is considering legislation that would compel Government officials to appear before Congressional committees for questioning, unless the President specifically ordered them not to appear.

Senator John Sherman Cooper, a Republican of Kentucky, has proposed that the Central Intelligence Agency furnish information to Congress, just as it does to the White House.

A bill to limit the war powers of the President has won unexpected support in Congress and could be enacted as part of the draft extension bill this fall. These and other efforts to reassert the power of Congress as a co-equal branch of government have brought together usually diverse groups, Democrats and Republicans, conservatives and liberals. Thus, it is entirely possible that some move to force the President to supply the data on foreign military aid could eventually succeed.

Sources within the Senate Foreign Relations Committee say that one lever could be refusal by the committee to send the military aid bill, approved by the House, to the Senate floor unless the information is supplied.

However, the sources say, it is more likely that the committee will choose first to make major reductions in the $4-billion, two-year military aid bill, perhaps eliminating all or part of the $390-million earmarked for Cambodia and reducing aid to countries with military regimes.

These sources say that the committee also is likely to crack down even harder than the House has on military aid to Greece.

The House voted to suspend aid to Greece, but coupled this with an "escape clause" allowing the President to provide such aid on the ground of "overriding requirements of the national security."

Any sizable reductions in military aid, or deletion of Presidential escape clauses, would be viewed as a severe blow to the Nixon Doctrine.

For it is under this doctrine that the President has promised increased aid to a number of countries to strengthen their military forces so they might fight their own battles, thus eliminating or reducing the need for United States troops.

[From the Kentucky Edition Courier, Aug. 4, 1971]
SECRECY IRKS SENATE

A frustrated Senate is boiling over. The overflow of indignation came in hearings on "executive privilege" before the Senate Judiciary subcommittee on separation of powers, headed by Sen. Sam J. Ervin Jr. of North Carolina. Frustrated by Vietnam disclosures in the Pentagon papers, and President Nixon's disclosure of his visit to China, Sen. J. W. Fulbright of Arkansas, chairman of the Senate Foreign Relations Committee, exploded with:

"Recent American presidents have been playing God. The last three Presidents-Kennedy, Johnson and Nixon-who were never thought to be infallible when they were in the Senate, have created an illusion of infallibility. The Russians went through this-they got over the 'cult of personality'I don't know why we can't get over it."

Of course, the Russians have not gotten over the cult of personality except on the surface, as Fulbright should know, but the liberal senator must always have a good word for them.

The wars in Vietnam, Laos and Cambodia may have brought the issue of executive immunity to a head, but congressional frustrations are by no means limited to foreign policy.

Ervin protested congressional inability to secure information on such subjects as "Army surveillance of civilians and data bank programs, which infringe on the privacy and First Amendment rights of citizens."

"These practices of withholding information," said Ervin, "reflect a certain contempt for congressional requests for information and an apparent disdain for the right of the American people to be informed about the operations of their government."

The aggrieved senators spoke of cutting off appropriations, the traditional congressional power of the purse, as one way of bringing the executive branch to heel.

They talked also of legislation requiring the President and the attorney general to assent to executive privilege claims before they are granted.

Former Under Secretary of State George W. Ball came up with the most sensible solution. He warned against drastic legislation passed "in the transient mood of disillusion and disenchantment."

Instead, he counseled developing "effective working arrangements without having to freeze the procedures in legislative aspic." That is sound advice.

[From the Washington Post, Aug. 5, 1971]

A QUESTION OF NATIONAL SECURITY OR VENGEANCE?
(By Flora Lewis)

For a government dominated by lawyers, the administration is taking some strange positions.

Now, from the Department of Defense, comes word that release of nonsensitive parts of the Pentagon Papers has to be postponed indefinitely beyond the 45-day deadline promised by Secretary Melvin Laird. The reason officially given is that release might "jeopardize the legal rights of individuals and of the government because of potential criminal actions and pending investigations." This, the statement said, was on recommendation of the Pentagon's general counsel.

So far as the Pentagon spokesman knows, nowhere in guidelines for classifying documents for national security is there anything about not getting in the way of criminal cases which the government might bring. And in fact the Pentagon says it simply can't answer the obvious question of what releasing documents no longer considered secret has to do with anybody's "legal rights."

But it does say cheerfully that "as soon as legal requirements permit and damage assessments are completed, it will be possible to release substantial portions of the study (Pentagon Papers)."

That is to say, the government itself considers that a lot of it isn't secret. But, it says, even what isn't secret can't be revealed now for reasons that have nothing to do with defense or national security.

What reasons, then?

Daniel Ellsberg has been indicted for his part in disclosing the papers. Further, the administration is still evidently considering whether to prosecute some of the newsmen who accepted the papers and wrote about them, and the New York Times, Washington Post and Boston Globe, the first three newspapers to publish them.

So it appears that executive privilege and the right to keep national security secrets are being used just to help the government make a case, which might not be there otherwise.

Rufus Edmisten, counsel to Sen. Sam Ervin's subcommittee on separation of powers, says that "it's some kind of legal mumbo jumbo to hide something that might be detrimental to their (the government's) case." The Pentagon, he says, has been coming up "with some of the queerest legal principles I ever heard of. I don't think they're acting legally."

Another complete logical blank in the Pentagon's explanation for holding up release is that assessments haven't been finished on how much "unauthorized disclosure has harmed or would harm" national security. Why do documents have to be withheld to find out how much damage their publication has already done? Once again, the Pentagon's answer is that they don't have an answer.

It's impossible to make sense of this without looking beyond what the administration has said in public. It leads to the unhappy suspicion that it isn't security but vengeance, or anyway panicky self-protection, that is keeping the government from releasing the papers now. If it did, it might be admitting that there isn't any case of stolen secrets because they weren't secret any more. And if there wasn't any crime, then there won't be any criminals, or any way to get even with the Supreme Court for deciding against the government when it tried to prevent publication.

Sen. Ervin, a North Carolina conservative stalwart, has said he thinks that "rather than protecting national security, (this policy) is protecting some politician's security."

Further, Ervin has become so provoked with the whole government approach to secrecy on questions of clear public concern that he is holding hearings on the issue of executive privilege the administration's right to tell Congress "we won't tell."

The executive branch, under law, does have a right to refuse information to Congress, but only on personal request from the President and with an explanation of his reason. For many years, this rule has been shelved in favor of a rule of courtesy under which Congress doesn't insist if officials keep mum. That evolved as a lubricant to make a government of separate powers run smoothly.

But now many members of Congress feel it has been abused so long and so outrageously that something drastic must be done. Sen. Fulbright told Sen. Ervin's subcommittee that he's going to introduce a bill providing that whenever Congress asks for information, if the President doesn't formally request privilege according to hard rule and the material isn't delivered within 60 days, the funds of the department involved will be cut off.

That comes near to a declaration of war between the legislature and the executive. It would be an explosive confrontation, and a sorry way to run a government. But it may well come to that if the executive persists, as it has from administration to administration, in using secrecy as a weapon against Congress, the public, and now it seems the criminal courts.

[From the Washington Post, July 28, 1971]

SENATORS ACCUSE EXECUTIVE BRANCH OF CONTEMPT FOR HILL

(By Murrey Marder)

Senators frustrated by Vietnam disclosures in the Pentagon papers and the secrecy surrounding President Nixon's China trip boiled over yesterday to charge the Executive Branch with "a certain contempt" for Congress.

The real question is whether Congress has "the guts" to do anything about it by "cutting off funds," said Sen. Charles McC. Mathias Jr. (R-Md.). So far, Sen. Stuart Symington (D-Mo.) agreed woefully, "we won't bite the bullet" to cut off appropriations until information is supplied, so "we are as much at fault as the Executive Branch."

Recent American presidents have been "playing God," said Sen. J. Fulbright (D-Ark.), chairman of the Senate Foreign Relations Committee.

"The [projected] China visit provides a striking example of the way in which the new foreign policy apparatus in the White House circumvents the Congress." said Fulbright. He said that presidential national security adviser Henry A. Kissinger, who secretly visited Peking earlier this month, is operating "the new super-bureau of foreign affairs."

Kissinger, Fulbright added, "is the President's chief foreign policy adviser, the principal architect of his war policy in Indochina, and the emissary for his forthcoming trip to China."

By concentrating extraordinary power in the White House, said Fulbright, the "last three presidents" who were never thought to be "infallible" when they were in the Senate, have created an illusion of infallibility.

"The Russians went through this-they got over the 'cult of personality,'" said Fulbright; "I don't know why we can't get over it."

This overflow of indignation came in hearings on "executive privilege" opened by the Senate Judiciary Subcommittee on Separation of Powers, headed by Sen. Sam J. Ervin Jr. (D-N.C.).

Simultaneously, the Senate Foreign Relations Committee continued with its hearings on legislation to place restrictions on the President's warmaking powers.

The two inquiries have the overlapping purpose of attempting to redress the balance of power between the Executive and Legislative branches. The wars in Vietnam, Laos and Cambodia have brought this issue to a head, but congressional frustrations are by no means limited to foreign policy.

Ervin protested about congressional inability to secure information on such subjects as Army surveillance of civilians and "data bank programs which infringe on the privacy and First Amendment rights of citizens.

"These practices" of withholding information, said Ervin, "reflect a certain contempt for congressional requests for information and an apparent disdain for the right of the American people to be informed fully about the operations of their government."

President Woodrow Wilson, Ervin recalled, "once observed that warfare between the Legislative and Executive Branches can be fatal."

"I don't wish a confrontation," said Fulbright, for "I prefer a reconciliation." "If he [President Nixon] can go to Peking, we ought at least to go down to 1600 Pennsylvania Avenue."

George W. Ball, Under Secretary of State in the Kennedy and Johnson administrations, expressed concern to the Foreign Relations Committee about enacting drastic legislation in "the transient mood of disillusion and disenchantment which our Vietnamese embroilment has created."

It would be better to develop effective working arrangements, said Ball, "without having to freeze the procedures in legislative aspic."

Sen. William V. Roth, Jr. (R-Del.) said "resistance and subterfuge" are often used to withhold information, as well as refusal.

Senator Republican Leader Hugh Scott (Pa.) told the Foreign Relations Committee, that "I think we need some kind of war powers legislation because the time has come when Congress must participate in this whole ominous problem and the only way we are going to cut into this merry-goround is through legislation."

Sen. Lloyd Bentsen (D-Tex.) outlined his bill to that Committee. He said it "more tightly prescribes the circumstances where the President may commit forces" than another proposal by Sen. Jacob K. Javits (R-N.Y.).

Sen. Thomas F. Eagleton (D-Mo.), said the Pentagon papers "portray an ever-broadening, almost boundless, unilateral decision-making role by the postWorld War II Executive Branch. The key to this enormous accretion of power... is secrecy. He said "Unless Congress has regular access to information about Executive decisions which could move us toward war, any 'war power' legislation emerging from this (Foreign Relations) Committee will be only a half step."

Fulbright served notice that he will tighten his bill before the Ervin committee, to require first the assent of the Attorney General, then the President, to sustain an Executive privilege claim to withhold information. If Executive privilege is not invoked within 60 days, "funds will be cut off from the agency concerned" until the information is supplied, or the privilege invoked.

At least once, Fulbright noted, "the Senate has ordered the confinement of a contumacious witness in the common jail of the District of Columbia." "Not for a moment," Fulbright added drily, "would I wish to impose so drastic a procedure on Mr. Kissinger or any other official of our government." He said Kissinger now has "a staff of 54 'substantive officers' and a total staff of 140 employees."

Fulbright said, "I do not consider Mr. Kissinger's influence, or that of his new foreign policy bureau, as being in any way sinister, illegitimate, or even inappropriate-except in one respect: their immunity from accountability to Congress and the country behind a barricade of Executive privilege."