Thus, the exercise of the assumed power of executive privilege is of basic importance to our governmental system, and the ramifications of a growing policy of governmental secrecy is extremely dangerous to our freedoms.

The subcommittee was mindful of these dangers when it initiated its study on the subject. We have found that our Nation's history is replete with examples of congressional demands for information which have been countered with the invocation of executive privilege or some other bureaucratic excuse for withholding information. These examples have been amply documented in a number of excellent law review articles and in certain congressional publications; I shall not review them at this time.

During this past month, however, I have requested every Member of the Senate to supply the subcommittee with examples of recent instances of executive withholding of information. The responses indicate that withholding is widespread and extends to the control of unclassified information as well as information withheld in the name of national security.

One such glaring example was submitted by Senator William V. Roth, who during his first term as a Member of the House, conducted a survey of all Federal domestic assistance programs and compiled the information into an excellent compendium of simplified and consolidated guidelines, access requirements, and programs available for Federal assistance. Even though most departments and agencies responded quickly to his request for data, Senator Roth stated that he "met with much-unexpected resistance *** from the Departments of Agriculture and Health, Education, and Welfare." Although HEW never formally invoked executive privilege, the Department refused to comply with parts of his requests on the grounds, inter alia, that: It would take too long to process the request; HEW programs and personnel change so rapidly that the information would be obsolete; HEW has such vast authority in the implementation and evolution of its programs that it is difficult to describe precisely each and every one.

After being frustrated in his efforts for nearly a year, Senator Roth was able to pry the information from HEW after he received the assistance of other Members of Congress and the Bureau of the Budget.

As chairman of another subcommittee-the Subcommittee on Constitutional Rights-I have for some time attempted to secure information pertinent to a study of Army surveillance and data bank programs which infringe on the privacy and first amendment rights of citizens. While some of my requests for information and for the appearance of certain witnesses have been granted, the most important have been denied for the following stated reasons; extracted from letters I received from the Department of the Army:

we are precluded by consistent Executive Branch policy from releasing to the public." (J. Fred Buzhardt, General Counsel, Department of Defense) Inappropriate to authorize the release of these documents. (Melvin Laird, Secretary of Defense)

This information is solely for your use in conducting your inquiry. (R. Kenly Webster, Acting General Counsel, Department of Army)

The records . . . cannot be obtained without an inordinate expenditure of time and effort. (R. Kenly Webster, Acting General Counsel, Department of Army)

No useful purpose would be served by a public report on the materials ... (J. Fred Buzhardt, General Counsel, Department of Defense)

I do not believe it appropriate that the general officers in question appear before your subcommittee, but that any "desired testimony" . . . should be furnished by my designated representative. (Emphasis added.) (Melvin Laird, Secretary of Defense)

Other indirect means of denying information include the use of delaying tactics which continue for so long that the information. when submitted, is no longer pertinent, and the placing of security classifications upon information supplied, thereby precluding any meaningful use of the data.

These practices 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.

While the executive branch must function in a manner assuring the candid participation of all those involved in the decisionmaking process, the elected representatives of the American people likewise must be fully informed in order to legislate intelligently.

Our system of government, in effect, is not a government of strictly separated powers, but a government based upon the concept of separate but balanced powers, divided along functional lines. For obvious reasons, such a system could not and does not operate in strict conformity to the underlying principle.

The Founding Fathers fully understood that governmental responsibility must be shared in order to make the whole fabric of government viable. Yet they knew that each branch must maintain a basic respect for the duties and prerogatives of the other branches and that such divisions are mandatory in order to avoid the undue accretion of power in any one branch of the Federal Government. As Madison, in the Federalist No. 48 observed:

After discriminating, therefore, in theory, the several classes of power, as they may in their nature be legislative, executive, or judiciary, the next and most difficult task is to provide some practical security for each ...

However, overlapping the functions of the three branches may be, and however imprecisely the system may seem to work, the doctrine of separation of powers itself is based upon good and sound grounds and the ends it was designed to serve 200 years ago are as important, if not more so, today as then.

Our discussion during these hearings will center on S. 1125, a bill introduced by Senator Fulbright which would amend title 5 of the

United States Code with regard to executive privilege. The bill provides that an employee of the executive branch:

Summoned or requested to testify or produce documents before Congress .. who intends to exercise executive privilege as to the whole or any portion of the matter about which he was summoned, requested to testify or produce documents, shall not refuse to appear on the grounds that he intends to assert executive privilege.

The bill seeks to limit the assertion of executive privilege and place the responsibility for invoking it directly on the President by stipulating that:

(i)n no case shall an employee of the executive branch appearing before the Congress assert executive privilege unless the employee present a statement signed personally by the President requiring that the employee assert executive privilege as to the testimony or document sought.

This bill offers a vehicle by which the Congress can examine the entire concept of executive privilege.

Perhaps this investigation of the implications of S. 1125 will afford the legislative and executive branches an opportunity to come together and find some common ground that will more clearly define the powers, duties, and prerogatives of the two branches in this sensitive area. We must be ever mindful of the necessity for cooperation between the Congress and the Executive if the Government is to operate efficiently. That pressing requirement makes it mandatory that we seek and find an amicable settlement of the problems involved in the invocation of executive privilege to prevent Congress and the American people from knowing the details of executive actions. As Prof. Arthur S. Miller, a consultant to the subcommittee wrote to remind me, Woodrow Wilson once observed that warfare between the legislative and the executive branches can be fatal. Hopefully these hearings will contribute to a satisfactory peace.

We are delighted to have the assistance of two of the subcommittee's professional consultants, who have rendered great service to the subcommittee during the past several years.

I welcome Prof. Philip B. Kurland of the University of Chicago Law School, and Ralph K. Winter, Jr. of Yale Law School. Prof. Arthur S. Miller of the George Washington University National Law Center, and Alexander Bickel of Yale Law School, express their regrets that they cannot be present at these hearings.

The witnesses scheduled to participate are drawn from varied segments of public and private life, in order to provide a balance of opposing opinions.

We are fortunate to have Senator Fulbright with us today to give us the benefit of his views and insights into the provisions of S. 1125 and the scope of executive privilege in general. His testimony is drawn from his vast experience during many years of distinguished service in the Senate. The subcommittee is delighted to welcome Senator Fulbright as the first witness for these hearings.

(A copy of S. 1125 follows):

92D CONGRESS 18T SESSION

S. 1125

IN THE SENATE OF THE UNITED STATES

MARCH 5 (legislative day, FEBRUARY 17), 1971

Mr. FULBRIGHT (for himself and Mr. CRANSTON) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend title 5, United States Code, with regard to the exercise of executive privilege.

1

Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That (a) chapter 3 of title 5, United States Code, is amended 4 by adding at the end thereof the following new section: 5 "8306. Executive privilege

6

"(a) An employee of the executive branch summoned 7 or requested to testify or produce documents before Congress,

8

any joint committee of the Congress, any committee of either 9 House of the Congress, or any subcommittee of any such 10 committee, who intends to exercise executive privilege as

11 to the whole or any portion of the matter about which he

II

2

1 was summoned, requested to testify, or produce documents,

2 shall not refuse to appear on the grounds that he intends to

3 assert executive privilege.

4

"(b) In no case shall an employee of the executive

5 branch appearing before the Congress, any joint committee of

6 the Congress, any committee of either House of the Congress,

7

8

or any subcommittee of any such committee, in response to

a summons or request, assert executive privilege unless the 9 employee presents, at the time executive privilege is asserted 10 in response to any testimony or document sought, a state11 ment signed personally by the President requiring that the 12 employee assert executive privilege as to the testimony or 13 document sought.".

14

(b) The analysis of such chapter is amended by adding 15 at the end thereof the following new item:

"306. Executive privilege.".