severely taxes one's faith in legislative moderation to foresee Congress practicing self-denial to the point of refusing to peck at information on the mere say-so of a bureaucrat, or even of an independent "Government Information Commission," that such information is a military or diplomatic secret.

(3) There are serious weaknesses in the assumption, popular among liberals who happen at the moment not to be thinking about Senator McCarthy, that public policy ought to draw a sharp distinction between "military and diplomatic secrets" on the one hand and all other types of official information on the other, giving Congress free access to the latter.43 In the first place, the line is by no means easy to draw, even when the best of faith is used: there is not much information in the files of the State and Defense Departments-of a sort likely to attract congressional interest-which could not with some plausibility be given a security classification, if the executive wished to withhold it on that ground. More fundamentally, however, the executive's interest in the privacy of certain other types of information is not less than its interest in preserving its military and diplomatic secrets. One obvious example is the data, derogatory or otherwise, in the security files of individuals. Another, perhaps still more important, is the record of deliberations incidental to the making of policy decisions. Undoubtedly the official who makes such a decision should be answerable to Congress for its wisdom. But the subordinate civil servants who advise him should be answerable only to him-i.c., they should be able to present unpalatable facts and make unpopular arguments without fear of being dragooned by the first Congressman who needs a headline.45 This principle is applicable to many government decisions; it finds what is probably its most. compelling illustration in the operation of the employee security system. The power to discharge an alleged security risk resides in the head of a department; his is the decision and his the responsibility to Congress. If the department head is conscientious, as is often the case, he personally studies such

42. See note 39 supra.

43. See Hearings, supra note 27, at 462-63.

44. The Deputy Attorney General recently stated that the policy of the Department of Justice "does not permit disclosure of staff memoranda or recommendations." See 58 PUB. UTIL. FORT. 319, 320 (1956).

45. "Because it is essential to efficient and effective administration that employees of the Executive Branch be in a position to be completely candid in advising with each other on official matters, and because it is not in the public interest that any of their conversations or communications or any documents or reproductions concerning such advice be disclosed, you will instruct employes of your Department that in all of their appearances before the Subcommittee of the Senate Committee on Government Operations regarding the inquiry now before it they are not to testify to any such conversations or communications or to produce any such documents or reproductions...."

Letter from the President to the Secretary of Defense, May 17, 1954. N.Y. Times, May 18, 1954, p. 24, col. 1. The weight of this consideration seems to have become apparent only in comparatively recent years. So astute a commentator as Wigmore, for example, completely overlooks it. See WIGMORE, EVIDENCE § 2378a (3d ed. 1940).

cases before deciding. But obviously he cannot start from scratch with an undigested mass of papers; he must have advice. In the Army, as elsewhere, such cases are reviewed by screening boards, which make recommendations to the Secretary. A casus belli in the Army-McCarthy Armageddon was the Army's repulse of the Senator's attempt to subpoena individual members of these boards and cross-examine them to find out who had voted to clear employees whom the Senator termed subversive. It is obvious that if the Senator had managed to stage this Roman holiday the usefulness of the security review system would have virtually ended, for it would have taken a man of quite exceptional hardihood and integrity to exercise his judgment unaffected by the Senator's hot breath on the nape of his neck. It is one thing for a cabinet officer to defend a decision which, however just, offends the prejudices of a powerful Congressman and, very probably, a highly vocal section of the public; it is quite another thing for a middle aged, middle-ranking civil servant, who needs his job, to do so. The Secretary's own responsibility to Congress for wrong decisions is a sufficient guarantee that he will not long tolerate incompetent or disloyal advisors; and he is certainly in a much better position to detect such undesirables than is any member, or even any committee, of Congress.

The other side of the case was eloquently stated by Professor Bernard Schwartz, testifying before the Subcommittee on Government Information of the House Committee on Government Operations. He said:

"[T]he overriding danger is not congressional abuse but the vesting of unfettered discretion in the executive to surround with secrecy all its activities.

"Those who are concerned with the possibility of legislative abuse ignore the overriding peril of the present century, that of the superstate with its omnipotent administration, unrestrained by any checks on its all pervasive regulatory activities, so vividly pictured by George Orwell in his novel 1984. The great danger today is 1984, not Senator McCarthy. If the elected representatives of the people assert their right to lay bare all that goes on within the executive, that danger may be avoided. An executive whose abuses and inadequacies are exposed to the public eye can hardly become a menace to constitutional government."47

The plain and short answer to this is that neither can there be a menace to constitutional government by an executive which has to go to Congress for every cent it spends, which has no power by itself to raise and maintain armed forces and which cannot jail its citizens except under a law passed by Congress and after proceedings presided over by an independent judiciary. These are the factors that make the essential difference between an American President and Big Brother-not whether Senator McCarthy is or is not allowed to prospect in the security files of charwomen, junior clerk-typists and building

46. The Army based its refusal on directives of President Truman which, not having been revoked by the new administration, were still in force, notably his directive of March 13, 1948. 13 FED. REG. 1359 (1948).

47. Hearings, supra note 27, at 465.

guards. Moreover, on the pragmatic basis of the experience of the last decade or so, the proposition that Congress is the paladin of civil liberties and the executive their foe seems at least debatable.

In practice, of course, as has already been suggested, the executive has not "unfettered discretion. . . to surround with secrecy all its activities."48 All but a minute percentage of congressional requests for information are honored promptly and even with a show of cheerfulness, for the very good reason that the executive needs from Congress cooperation which it will not get without reciprocating..

A brief consideration of the generally satisfactory modus vivendi which has evolved may help to dispel the picture of the executive branch in the character of Domitian. There is, of course, no statute that sets standards for the release of information to Congress, and only sporadically, as in the case of security files, are there formal executive regulations. Usually, the head of a department has an aide-often his general counsel—who is responsible for what is bureaucratically known as "legislative liaison." The aide controls the flow of information to Congress, referring only the hottest questions to his boss. Of course the abilities and views of these virtuosi vary widely, and most of them play by ear, but, according to the writer's observation, the most experienced of them agree on certain fundamental policies. These policies may be briefly summarized, as follows:

(1) No fishing expeditions are allowed. The initiators of a congressional investigation (who, in practice, are often members of committee staffs rather than the Congressmen themselves) must define with reasonable precision the general area which they intend to investigate and the character of the documents they wish to see.

(2) No "raw" files are to be released. The files requested will be screened by the legislative liaison officer or one of his assistants, who will remove any documents which, in his judgment (or, as in the case of individual security files, because of directives of higher authority) should not go outside the executive branch. There can be no blinking the fact that this affords an opportunity for serious abuse. It is entirely justifiable and sometimes necessary to remove, for example, genuine military or diplomatic secrets, or documents identifying confidential informants, or confidential data respecting costs or production techniques furnished by private business.49 It is arguably justifiable, for the reasons outlined above, to remove recommendations on policy made by subordinate officials, or documents (besides the above-mentioned individual security data) containing allegations which, although unsubstantiated,

48. Ibid.

49. Compare the recent action of the Department of Justice in refusing to give the House Committee on the Judiciary access to the files relating to settlement of the antitrust suit against American Telephone and Telegraph Company. The Deputy Attorney General said that such action "would violate the confidential nature of settlement negotiations" and "discourage defendants, present and future, from entering into such negotiations." See 58 PUB. UTIL. FORT. 319, 320 (1956).

might work irreparable injury to private reputations. But it is most certainly unjustifiable to remove part of a file simply because it betrays administrative stupidity or inertia. The temptation to indulge in just such an abuse is, of course, considerable. The only answers to this objection are first, that the risk of abuse and consequent prejudice to efficient government which it raises is on the whole less than the risk inherent in giving Congress free access to executive files; and second, that in practice, competent department heads sooner or later learn the truth of the homely maxim about honesty as a policy in their dealings with Congress. It pays better to admit errors and correct them than to deny their existence; Congress, when it embarks on an investigation of an executive abuse, usually has other sources of information-e.g., disgruntled contractors or bidders-than the files of the executive, and these other sources, if untempered by complete disclosure, are likely to make matters look much worse than they really are.

(3) Congressional recipients of classified information must themselves be subjected to a security check. Committees of Congressmen and their aides are, of course, constantly given access to military and diplomatic secrets. The Department of Defense applies to members of committee staffs the same criteria which it applies to its own employees and grants them appropriate clearances, the committee chairman being always formally reminded of the statutes and regulations applicable to any such information transmitted. Congressmen themselves are a more delicate problem. The executive is naturally reluctant to say outright that a member of a coordinate branch of government is not regarded as a proper person to be trusted with his country's secrets-although it has done so on occasion.50 Seniority may bring a security risk to the chair of an important committee or subcommittee. Fortunately, this has never happened; if and when it does, great finesse will be required to solve the resulting problems of committee access to executive information.

(4) The executive should have a chance to comment on any resulting committee report before it is published. The more responsible committee chairmen usually agree to some such arrangement, the utility of which is obvious. Bona fide mistakes can be eliminated in this way, and both sides of a disputed question brought out. A committee is, of course, under no obligation to submit its drafts to such a preview or, if it does so, to accept any of the executive's comments and suggestions. Some chairmen are unwilling to permit their reports to be inspected before they are made public-perhaps because they feel it wasteful to dull a sparkling, sensational allegation by exposing it to lackluster facts.

These principles are, of course, primarily designed for dealing with responsible committees, who are trying to fulfill a legislative function beyond the mere capture of headlines. Rules for dealing with the guerillas, the Congressional Comanches, are naturally far harder to formulate. Still, there are one or two basic, simple principles which, based on the experience of the present writer,

50. Representative Robert L. Condon of California was barred from a test of nuclear weapons in May, 1953. See N.Y. Times, July 6, 1953, p. 12, col. 1.

the executive ought as a general thing to employ in dealing with the irresponsibles. For example, the brunt of denying a demand for information, which cannot be acceded to, should be borne at the highest level-by the department head and even, if the matter is important enough, by the President. It is unfair and unwise to expect a subordinate official to weather the congressional blast alone. Thus, if it can be predicted—as it frequently can be—that Senator So-and-So is going to demand from an official witness information which should not be disclosed, the witness should carry up to the Hill in his pocket a letter from the department head, describing in some detail the prohibited categories of information and instructing him to refer demands for such data— courteously to the signer of the letter. If trouble is anticipated, the witness ought, moreover, to be accompanied by counsel. It takes a lawyer, and a fairly astute and cool-headed one at that, to deal with such maneuvers as vociferous insistence that a witness, barred from saying what he has done or will do in his official capacity in an actual case, give his "personal opinion" as to what ought to be done in a hypothetical case closely resembling the actual one. Another sound principle is to produce promptly, and publicize as widely as possible, all the germane facts (such as the context from which misleading excerpts have been torn) which can be released, together with an explanation of the reasons-which had better be good-for withholding the others. The ruses de guerre of the legislative franc-tireurs are, naturally, extremely varied, and certainly the author of this paper would not and could not attempt to catalogue them all; but it seems to be true, if banal, that the impact of most of them is minimized by maximum candor and disclosure on the part of the executive branch.

CONCLUSION

A situation so ambiguous and muddled cannot fail to distress the tidyminded constitutionalist. And yet there is every prospect that it will continue for some time to come. For reasons given it is not likely soon to be cleared up by judicial decision. An act of Congress, even if it avoided or surmounted a presidential veto, would simply beg the question.52 An amendment to the Constitution would at least meet the problem squarely; in view of the recent vogue of amendments designed to limit the powers of the executive, it is perhaps a matter of some surprise that none such has been seriously proposed. l'erhaps this is so because, on the whole, a good case can be made out for the proposition that the present imprecise situation is, in fact, reasonably satisfactory. Neither the executive nor the Congress is very sure of its rights, and both usually evince a tactful disposition not to push the assertion of their rights to abusive extremes. Of such is the system of checks and balances.

51. E.g., the Truman directive cited in note 46 supra, and the Eisenhower directive cited in note 45 supra.

52. In 1948 the House passed a Joint Resolution in substance purporting to require the executive to furnish to all House and Senate committees any information the committees might deem necessary. H.R.J. Res. 342, 80th Cong., 2d Sess. (1948); see 94 CONG. REC. 5821 (1948). The Resolution died in the Senate.