EXECUTIVE PRIVILEGE: THE WITHHOLDING
OF INFORMATION BY THE EXECUTIVE

HEARING

BEFORE THE

SUBCOMMITTEE ON
SEPARATION OF POWERS.

OF THE

COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE?

NINETY-SECOND/CONGRESS

FIRST SESSION

ON

EXECUTIVE PRIVILEGE: THE WITHHOLDING OF
INFORMATION BY THE EXECUTIVE

For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C., 20402 - Price $2.75

Stock Number 5270-1296

J874

COMMITTEE ON THE JUDICIARY

JAMES O. EASTLAND, Mississippi, Chairman

JOHN L. MCCLELLAN, Arkansas
SAM J. ERVIN, JR., North Carolina
PHILIP A. HART, Michigan

EDWARD M. KENNEDY, Massachusetts
BIRCH BAYH, Indiana

QUENTIN N. BURDICK, North Dakota
ROBERT C. BYRD, West Virginia
JOHN V. TUNNEY, California

ROMAN L. HRUSKA, Nebraska
HIRAM L. FONG, Hawaii

HUGH SCOTT, Pennsylvania

STROM THURMOND, South Carolina
MARLOW W. COOK, Kentucky

CHARLES MCC. MATHIAS, JR., Maryland
EDWARD J. GURNEY, Florida

SUBCOMMITTEE ON SEPARATION OF POWERS
SAM J. ERVIN, JR., North Carolina, Chairman

JOHN L. MCCLELLAN, Arkansas
QUENTIN N. BURDICK, North Dakota

CHARLES MCC. MATHIAS, JR., Maryland
EDWARD J. GURNEY, Florida

RUFUS L. EDMISTEN, Chief Counsel and Staff Director
JOEL M. ABRAMSON, Minority Counsel
PHILIP B. KURLAND, Chief Consultant
ALEXANDER M. BICKEL, Consultant
RALPH K. WINTER, Jr., Consultant
ARTHUR 9. MILLER, Consultant
TELMA P. MOORE, Executive Assistant
W. P. GOODWIN, Jr., Editorial Director
IRENE R. MARGOLIS, Staff Member

(II)

Ervin, Hon. Sam J., Jr., a U.S. Senator from the State of North Carolina,
chairman, Subcommittee on Separation of Powers...
Mathias, Hon. Charles McC., Jr., a U.S. Senator from the State of Mary-
land; ranking minority member, Subcommittee on Separation of
Powers...

15

TESTIMONY

Acheson, Hon. Dean, former Secretary of State; Covington & Burling...
Berger, Raoul, Esq., Concord, Mass.

259

272

Bundy, William P., Massachusetts Institute of Technology, Center for
International Studies_.

317

Buzhardt, J. Fred, general counsel, Department of Defense.
Dorsen, Norman, professor of law, New York University School of Law;
general counsel, American Civil Liberties Union..

443

364

18

352

303

331

Reedy, George, Fellow, Woodrow Wilson International Center for Scholars,
Washington, D.C..

454

420

227

Fulbright, Hon. J. William, a U.S. Senator from the State of Arkansas. Harriman, Hon. W. Averell, former Ambassador to Great Britian and to the Soviet Union.

Keller, Robert F., Assistant Comptroller General of the United States__ Moss, Hon. John E., a Representative in Congress from the Third Congressional District of California.

Rehnquist, William H., Assistant Attorney General, Office of Legal
Counsel, Department of Justice.

Roth, Hon. William V., Jr., a U.S. Senator from the State of Delaware_
Rusk, Hon. Dean, former Secretary of State; professor of international
law, University of Georgia...

Salans, Carl F., acting legal advisor, Department of State; representing
the Honorable William P. Rogers, Secretary of State...

Swan, Alan C., professorial lecturer in law, Graduate School of Business,
University of Chicago..

Symington, Hon. Stuart, a U.S. Senator from the State of Missouri..
Tunney, Hon. John V., a U.S. Senator from the State of California___
Wellford, Harrison, associate, Center for Study of Responsive Law,
Washington, D.C...

339

472

241

214

381

479

ADDITIONAL STATEMENTS AND VIEWS SUBMITTED FOR THE

RECORD

Bishop, Joseph W., Jr., professor of law, Yale University Law School----
Jackson, William E., Jr., assistant professor of political science, Depart-
ment of Political Science, Davidson College....
Lowi, Theodore, Jr., professor of political science, University of Chicago..

499

515

520

1

Page

Miller, Arthur S., professor of law, The National Law Center, The George
Washington University; consultant, Subcommittee on Separation of
Powers..

Morgenthau, Hans J., professor, Department of Political Science, Uni-
versity of Chicago-

Robinson, Donald L., associate professor of government, Smith College;
visiting fellow, Center for the Study of Democratic Institutions, Santa
Barbara, Calif

Rostow, W. W., professor, Department of Economics, the University of
Texas at Austin..

PROPOSED LEGISLATION

S. 1125, a bill to amend title 5, United States Code, with regard to the exercise of executive privilege; introduced by Hon. J. William Fulbright, a U.S. Senator from the State of Arkansas and Hon. Alan Cranston, a U.S. Senator from the State of California, 92d Congress, first session.--Amendments No. 343 to S. 1125, proposed by Senator J. William Fulbright, 92d Congress, first session...

SUPPLEMENTAL MATERIAL

Attorney General Opinion, "Position of the Executive Department Re-
garding Investigative Reports," Robert H. Jackson, 40 Òp. A. G. 45,
April 30, 1941.

Berger, Raoul, Esq., "Executive Privilege v. Congressional Inquiry," 12
U.C.L.A. Law Review 1044 (1965)_.

Bishop, Joseph W., Jr., "The Executive's Right Of Privacy: An Unre-
solved Constitutional Question," 66 the Yale Law Journal 477 (1957)..
Defense, Department of, correspondence with Hon. Sam J. Ervin, Jr.,
chairman, Subcommittee on Constitutional Rights, Committee on the
Judiciary, U.S. Senate, regarding Army surveillance and data bank pro-
grams, from July 27, 1970, through June 10, 1971.

Correspondence with Hon. J. William Fulbright, chairman, Com-
mittee on Foreign Relations, U.S. Senate, regarding "History on U.S.
Decision Making Process on Vietnam", "Five Year Plan for Mili-
tary Assistance,' and "Command Control Study," from Novem-
ber 11, 1969, through July 12, 1971-
Ervin, Hon. Sam J., Jr., chairman, Subcommittee on Constitutional
Rights, Committee on the Judiciary, U.S. Senate, correspondence with
the Department of Defense and the Department of the Army regarding
Army surveillance and data bank programs, from July 27, 1970, through
June 10, 1971.
Executive Order 10501, "Safeguarding Official Information in the Interest
of the Defense of the United States," issued by President Dwight D.
Eisenhower, November 5, 1963..

Executive Order 10816, "Amendment of Executive Order 10501 of
November 5, 1953, Relating to Safeguarding Official Information
in the Interests of the Defense of the United States," issued by
President Dwight D. Eisenhower, May 7, 1959...
Executive Order 10964, "Amendment of Executive Order No. 10501,
Entitled 'Safeguarding Official Information in the Interests of the
Defense of the United States'," issued by President John F. Ken-
nedy, September 20, 1961....

521

527

527

534

8, 31
10

573

48

500

391

37

391

576

583

584

Foreign Relations, Committee on, U.S. Senate, press release, February 28, 1971.

43

540

"Freedom of Information Act," 5 U.S.C. § 552.

Fulbright, Hon. J. William, chairman, Committee on Foreign Relations,
U.S. Senate, correspondence with the Department of Defense regarding
"History on U.S. Decision Making Process in Vietnam," "Five Year
Plan for Military Assistance," and "Command Control Study," from
November 11, 1969 through July 12, 1971..

General Accounting Office, "Summary Listing of Significant Access to
Records Problems in Recent Years", prepared for the Subcommittee on
Separation of Powers, July, 1971..

Johnson, Hon. Lyndon B., President of the United States, letter to Hon.
John E. Moss, chairman, Foreign Operations and Government Infor-
mation Subcommittee, Committee on Government Operations, U.S.
House of Representatives, April 2, 1965--

Kennedy, Hon. John F., President of the United States, letter to Hon.
John E. Moss, chairman, Special Government Information Subcom-
mittee, Committee on Government Operations, U.S. House of Repre-
sentatives, March 7, 1962____

Kurland, Philip B., professor of law, University of Chicago Law School,
statement before the Subcommittee on Foreign Operations and
Government Information, Committee on Government Operations,
U.S. House of Representatives, June 30, 1971___
Library of Congress, Congressional Research Service, American Law
Division, "Executive Privilege," memorandum of June 7, 1971.
Moss, Hon. John E., a U.S. Representative in Congress from the Third
Congressional District of California; chairman, Special Government
Information Subcommittee, and Foreign Operations and Government
Information Subcommittee, Committee on Government Operations,
U.S. House of Representatives, letter to President John F. Kennedy,
February 15, 1962.

Letter to President Lyndon B. Johnson, March 31, 1965.
Letter to President Richard M. Nixon, January 28, 1969.
Nixon, Hon. Richard M., President of the United States, letter to Hon.
John E. Moss, Chairman, Foreign Operations and Government Infor-
mation Subcommittee, Committee on Government Operations, U.S.
House of Representatives, April 7, 1969; with attachment_

"Establishing a Procedure To Govern Compliance with Congressional
Demands for Information," memorandum of March 24, 1969, to
all heads of executive departments and agencies---
Memorandum to the Secretary of Defense and the Secretary of State
invoking executive privilege, September 1, 1971.-.
Packard, David, Deputy Secretary of Defense, reply to Hon. Stuart
Symington, chairman, Subcommittee on U.S. Security Agreements and
Commitments Abroad, Committee on Foreign Relations, U.S. Senate,
June 11, 1971__.

Pearce, W. Barnett, "On Fooling the People, Whether Some, Most or All
of the Time: An Examination of the People's Right to Know," Freedom
of Speech Yearbook: 1970, Thomas Tedford, editor..
Reid, Hon. Ogden R., a U.S. Representative in Congress from the 26th
Congressional District of New York, "Professor Kurland Speaks on
Constitutional Problems," excerpt from 117 Congressional Record
E 6899, Extension of Remarks, July 1, 1971.--.

Rogers, Hon. William P., Attorney General of the United States, "Con-
stitutional Law: The Papers of the Executive Branch," 44 American
Bar Association Journal 941 (1958) -

Roth, Hon. William V., a U.S. Senator from the State of Delaware, "Federal Program Questionnaire" sent to all Federal program administrators with cover letter, 1968

"The 'Fourth Establishment'," excerpt from 114 Congressional
Record H 9817, October 10, 1968..

Schwartz, Bernard, "A Reply to Mr. Rogers: The Papers of the Executive
Branch," 45 American Bar Association Journal 467 (1959).-
Wellford, Harrison, excerpt, "Sowing the Wind: Meat, Pesticides, and the
Public," Interest, Grossman Press, 1971.

Yarborough, Maj. Gen. William P., U.S. Army Intelligence, testimony before the Permanent Subcommittee on Investigations, Committee on Government Operations, U.S. Senate, April 25, 1968...

384

NEWS ARTICLES

Averill, John H., "White House Secrecy Hit by Fulbright," Los Angeles
Times, July 28, 1971.

606

Bruckner, D. J. R., "Pressure Mounting to Crack Walls of Secrecy in the
Executive Branch," Los Angeles Times, September 10, 1971.-
Crawford, Kenneth, "Perennial Blooms Anew-Hill's Demand for Infor-
mation," Washington Post, August 3, 1971..

607

608